2017 QCCQ 8185, 2017 QCCQ 8185

Hellmann c. Weinberger 2017 QCCQ 8185 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-149542-153 DATE: July 20 th 2017 ______________________________________________________________________ BY THE HONOURABLE GENEVIÈVE COTNAM, J.C.Q. ______________________________________________________________________ BILL HELLMANN […], Dollard-des-Ormeaux (Province of Quebec) […] Plaintiff v.

Deborah Weinberger and HOWARD BURAK […], Hampsted (Province of Quebec) […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mrs. Deborah Weinberger and Mr. Howard Burak (hereinafter “Defendants”) are the owners of a house located at [...] in Hamstead. [ 2 ] Defendants retained the services of Mr. Hellmann for the renovation of their daughter’s bedroom (hereinafter: “the Bedroom”). Mr.

Hellmann was to demolish an existing closet, build a new one, repair two sections of the floor, relocate a lamp fixture and an electrical plug, and repaint the room for a total price of $1,200. [ 3 ] Having completed his contract, Mr. Hellmann is asking for payment. Defendants refuse to pay as they claim the work done by Mr. Hellmann is of poor quality and had to be redone. They have filed a counterclaim for $3,350.74 which represents the cost of the corrective work. THE FACTUAL CONTEXT [ 4 ] Mr.

Hellmann, although he not licensed as a general contractor, has been earning a living doing renovation work for more than 25 years. [ 5 ] Mr. Burak is a general contractor and a businessman. He owns a medical clinic and has been involved in the construction of numerous houses. [ 6 ] Defendants’ house is an old house that has character but is in need of renovations. [ 7 ] Defendants decide to renovate the Bedroom while their daughters are away for the summer. Mr. Burak does not wish to hire his own staff to do the work. [ 8 ] Mr.

Hellmann was recommended to them by an acquaintance that worked with him on another contract. [ 9 ] Mr. Burak does not wish to be involved in the project, as he wants his wife to experience the challenges of taking charge of renovating a room. [ 10 ] Mrs. Weinderger meets with Mr. Hellmann and offers him a first contract that consisted in removing the Laura Ashley wallpaper in the Bedroom. [ 11 ] Mr. Burak, who did not negotiate the contract, testified that they agreed on a fixed-price contract for $400. Mr.

Hellmann denies having agreed to do the work for a fixed price, as he was aware of the fact that removing fifteen-year-old wallpaper from a plaster wall could be a long and complicated job. He agreed to do the work on an hourly basis of $35 per hour. [ 12 ] It took him almost to two days and a half to remove the wallpaper in the Bedroom. [ 13 ] Mr. Burak considers that Mr. Hellmann did not use the proper technique to do the work. He chose to use hot water and a sponge instead of leasing a steam machine. This took longer than needed.

[ 14 ] Mrs. Weidenberger asked Mr. Hellmann if he would agree to pursue the renovation project. Essentially, she wanted to demolish the existing closet, build a new one, repair two sections of the floor, relocate a lamp fixture and an electrical plug, and to repaint the room. [ 15 ] Mr. Hellmann agreed to do the work for $1,200 (including the material). [ 16 ] Mr. Burak, who, once again, did not negotiate the contract, testified that this price also included the removal of the wallpaper. Mr. Hellmann considered that he had two separate contracts.

Otherwise, considering the time spent removing the wallpaper that would have left him with only $400 to complete the renovation, including the material. [ 17 ] In fact, Mr. Hellmann insisted on being paid for the removal of the wallpaper before starting the other contract. Mrs. Weinderber offered him $400 while he wanted to be paid for the two days and a half on an hourly basis. They finally agreed on an amount of $700. [ 18 ] The cleaning lady paid Mr. Hellmann by giving him an envelope containing $700 in cash. She asked him to count the money in front of her before signing the envelope as a receipt. Mr.

Hellmann seems to have taken offense in this process sensing a lack of trust from the owner. Mrs. Weinberger testified that she simply wanted to make sure that Mr. Hellmann was entirely paid. [ 19 ] Although the lack of a written contract had obviously been a problem for the wallpaper contract, the parties chose not to put their agreement for the renovation of the Bedroom in writing. [ 20 ] Mr. Hellmann testified that he should not have gotten involved in this second contract. He should have known it would be problematic. Mrs.

Weidenger led him to believe that he would be getting more work after this, so he decided to go on with the project. [ 21 ] However, He was left on his own to pursue the work. Defendants left on vacation without giving specific instructions as to the work that needed to be done. [ 22 ] He was told to wait for instructions from Mrs. Weidenber’s decorator but they never came. Mr. Hellmann took on him to draw up a plan for the closet which he texted to Mrs. Weidenber for approval. [ 23 ] He proceeded to demolish the existing closet, to replace it with a new one with mirror doors.

The demolition of the closet meant that he had to repair part of the floor where the wall used to be. The opening in the floor that needed to be repaired was perpendicular to the existing floor. Mr. Hellmann chose to install the new boards in the same sense as the opening meaning that the repair was very obvious since the new boards and the old one were not in the same direction. [ 24 ] Mr. Hellmann made some repairs to the plaster walls before repainting them. [ 25 ] When Defendants came back from vacation Mr. Hellmann gave them an invoice for $1,905 including taxes.

Defendants refused to pay this invoice, as they were unhappy with the work done. Mr. Hellmann sent a letter of demand on October 1rst 2015 granting a delay until October 11 th to receive payment. [ 26 ] When they inspected the Bedroom Defendants noticed that the mirror doors for the closet were scratched, the boards installed to repair the floor were in the opposite direction of the existing floor, the walls had not been correctly repaired and the paint job was of poor quality. [ 27 ] Plaintiff had to pay $2,997.40 to another contractor to redo part of the work.

It cost them: • $490.00 $ to have the walls resanded and to remove the damaged paint and lint correctly, • $292 to buy the paint, • $250 to remove and reinstall the wooden floor correctly • $475 to lightly sand the floor in order to remove paint residues left behind by Mr. Hellmann • $550 to remove and reinstall the damaged mirror doors • $250 to rewire a light fixture • $300 to move the plug, the light and to fix exposed wires according to code [ 28 ] Defendants are also asking Mr. Hellmann to refund a $700 deposit they had given him in cash on August 3 rd . QUESTION TO BE DECIDED [ 29 ] Did Mr.

Hellmann respect his contract and should he be paid for his work? [ 30 ] Are Defendants allowed compensation for the work that had to be redone? DECISION A- Did Mr. Hellmann respect his contract and should he be paid for his work? [ 31 ] The Tribunal concludes from the evidence is to the effect that there were two separate agreements between the parties. One for the removal of the wallpaper and another one for the renovation of the Bedroom.

[ 32 ] The first contract was completed to Defendant's satisfaction and the parties finally agreed on a price of $700 that was paid cash. [ 33 ] As for the second contract, it seems obvious from the discrepancy in the testimonies that the parties had different expectations as to the scope of the work to be done and the final result. [ 34 ] Mr. Hellmann considers that he completed the work he was hired to do. He had to work with the fact it was an old house. To have a perfect job he would have had to put gyspe on the wall, rewire everything. That was not what was discussed.

The owners could not have expected such a result for the price asked. [ 35 ] This being said the Defendants are clearly disappointed with the result. The floor was not repaired correctly, the electrical work is poorly done, the walls have not been prepared to receive the paint and the paint job is not satisfactory. [ 36 ] Plaintiffs chose to have the work done while they were away on vacation. They essentially surrendered control over the supervision of the project and loss the opportunity to correct things as they went. Furthermore they left Mr.

Hellmann with little or no instructions as to what was to be done. [ 37 ] Since the work was done, Mr. Hellmann should be paid. Therefore, the Tribunal considers that Plaintiffs owe $1,905.00 to Mr. Hellmann. B- Are Defendants allowed compensation for the work that had to be redone? [ 38 ] Although Mr. Hellmann is allowed to be paid for his work,

section 2111 of the Québec Civil Code provides that: “(…) At the time of the payment, the client may deduct from the price, until the repairs or corrections are made to the work, a sufficient amount to meet the reservations which he made as to the apparent defects or poor workmanship that existed when he accepted the work.” [ 39 ] Defendants are claiming $3,350.74 to compensate what was paid for in order to repair the work which was improperly done by Mr.

Hellman including the reimbursement of the $700 deposit. [ 40 ] As for the reimbursement of the deposit, the Tribunal believes that the $700 that was given to Mr. Hellmann in cash was the payment of the wallpaper contract and was not a deposit on the second contract. The Tribunal does not believe Mr. Burak when he says that the contract for the wallpaper was included in the $1,200 estimated for the renovation of the Bedroom. This would essentially mean that Mr.

Hellmann was not paid for the two and a half days spent removing the wallpaper or that he agreed to do the entire renovation for an extra $400, including the material, which does not make sense considering the work to be done. [ 41 ] Since the $700 is not a deposit but the payment of the first contract by Defendants, they are not allowed to recover this amount. [ 42 ] It is clear from the evidence that the hardwood floor was not correctly repaired and had to be redone. Therefore the Tribunal will allow the amount claimed to remove the hardwood floor at $250.

Defendants also paid $475 to install the floor in the correct direction and to sand the existing floor that had been damaged by construction materials spilled on the surface by Mr. Hellmann. This claim is only partly receivable as Mr. Hellmann testified that the floor was to be sanded and re-stained once his work was completed. The Tribunal will therefore allow $225, which represents 9 hours of work at $25 per hour, for this item. [ 43 ] The damages claimed to sand and repaint the walls will not be granted.

The result may not have been to Defendants satisfaction but had they been clear on their expectations and had they been there to supervise the work, Mr. Hellmann could have readjusted his work in due time. [ 44 ] Also, the evidence is not clear as to the nature of the work that was expected concerning the light and electrical fixtures. The fact that the installation was not according to code in not necessarily due to work done by Mr. Hellmann. [ 45 ] Finally, the contractor hired to redo the work seems to have replaced what he describes as a poor quality, damaged sliding door by a new one.

The old one, bought by Mr. Hellmann could have been returned to the store if not working properly but not if it was damaged afterward. The door originally installed by Mr. Hellmann cost $169 plus taxes. Therefore, $250.00 seems as an accurate compensation in order to purchase a similar door and install it. [ 46 ] The Tribunal considers that an amount of $950 plus taxes, which represent $1092.26, is a correct assessment of the costs incurred by Defendant to correct the work that had not been done correctly by Mr.

Hellmann. [ 47 ] Applying the rules of compensation between both claims the Tribunal reaches the conclusion that Defendant still owes an amount of $812.74 to Mr. Hellmann. FOR THESE REASONS, THE TRIBUNAL CONDEMNS the Defendants to pay jointly and severally to Plaintiff Mr. Hellmann $812.74 together with the legal interest and the additional indemnity from the date of the demand, October 11th 2015. THE WHOLE WITH COSTS against the Defendants __________________________________ GENEVIÈVE COTNAM, J.C.Q. Date of hearing: April 18 th 2017