2018 QCCQ 3427, 2018 QCCQ 3427

9338-1309 Québec inc. c. Bourque 2018 QCCQ 3427 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155691-175 DATE: May 16, 2018 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ 9338-1309 QUEBEC INC. , carrying on business under the registered trade name of MONSIEUR DRAIN Plaintiff v. PATRICK BOURQUE Defendant v.

DAVID KELLNER Defendant in Warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Overview [ 1 ] 9338-1309 Quebec Inc., carrying on business under the registered trade name of Monsieur Drain ( Monsieur Drain ), is suing Patrick Bourque for payment of an outstanding amount of $1,115.47 under an invoice for excavation work carried out at Mr. Bourque’s residence. Mr. Bourque retorts that the amount has already been paid in full. Mr.

Bourque has also taken a Cross-Application against Monsieur Drain as well as a Forced Intervention in Warranty against an employee of Monsieur Drain, David Kellner. Question in Issue Did the parties conclude a verbal separate agreement for work relating to the installation of a backup valve for the amount of $1,500? Context [ 2 ] Mr. Bourque, along with his spouse Kim Fontaine-Skronski, are owners of a house in the West Island of Montreal. The house, built in 1953, was having problems with water backup from the municipal sewers. On December 4, 2016, a serious water backup occurred which caused damages to Mr.

Bourque’s basement. Mr. Bourque made a claim under his home insurance policy. He called Monsieur Drain to examine the problem. Excavation and Plumbing Work

[ 3 ] On December 5, a crew from Monsieur Drain attended at the premises and inspected the exit pipe. Mr. Bourque and Ms. Fontaine-Skronski were present to meet with Mr. Kellner and go over any proposed remedial work. The person representing Monsieur Drain was Mr. Kellner. He recommended to Mr. Bourque and Ms. Fontaine-Skronski to excavate and replace the exit drain and to redo the internal piping, including the installation of a backup valve. [ 4 ] Mr. Bourque and Ms. Fontaine-Skronski agreed to proceed with the proposed work and to give the contract to Monsieur Drain. [ 5 ] Mr.

Bourque did want to claim as much as possible of the required work under his home insurance policy. Mr. Kellner agreed to work with Mr. Bourque in order to try to assist him to obtain maximum indemnification under the policy. [ 6 ] The insurer took the position that it would indemnify their insureds Mr. Bourque and Ms. Fontaine-Skronski for the work deemed a consequence of the cause of the damages but not for the work required to eliminate the cause itself. Cash Deposit and Alleged Verbal under the Table Agreement for Certain Work [ 7 ] As stated, as part of the proposed work, Mr.

Kellner recommended installing a backup valve to avoid sewage backups in the future. [ 8 ] Mr. Kellner required a cash deposit of $3,400 before agreeing to execute and

schedule the work. Mr. Bourque and Ms. Fontaine- Skronski were surprised by the cash nature of that request but decided to accede to it. [ 9 ] Mr. Bourque and Ms. Fontaine-Skronski did not have that amount of cash on-hand. The next day, on December 6, 2016, Ms. Fontaine-Skronski withdrew that amount from her line of credit. She then confirmed to Mr. Kellner that he could return to the premises to pick up that amount. When Mr. Kellner arrived in the evening, he did not have his receipt or order book to confirm receipt of the deposit. Mr. Bourque and Ms.

Fontaine-Skronski were not comfortable remitting such a large cash amount without obtaining a receipt. [ 10 ] As such, a hand-written receipt was prepared acknowledging receipt by Monsieur Drain of an amount of $3,400 for work “related to emergency excavation and relating piping replacement” [1] . [ 11 ] The receipt and the work that it covered are at the heart of the present litigation. The parties have different positions and

interpretations of their agreement and specifically regarding the work to be performed for the deposit amount of $3,400. [ 12 ] According to Monsieur Drain, there was a verbal side agreement for undeclared work relating to the installation of a backflow valve for the amount of $1,500. In accordance with this version, the amount of $3,400 was to be divided by $1,500 for the work regarding the backflow valve while the remaining cash amount of $1,900 was to be allocated to other pipe work. [ 13 ] Mr. Bourque and Ms. Fontaine-Skronski deny the existence of any such side agreement for additional undeclared work.

They state that the excavation work was quoted and accepted in the amount of $6,668.55 ($5,800, plus taxes) and that, at the same time, all other piping work, including the work related to the installation of a backflow valve , was quoted and accepted for the amount of $2,184.53 ($1,900, plus taxes). Written Contracts and Performance of the Work

[ 14 ] On December 8, 2016, Mr. Kellner prepared a contract for exterior excavation work in the amount of $6,668.55 [2] . That contract was signed by Mr. Bourque. [ 15 ] On December 8, 2016, the work was commenced. [ 16 ] On December 15, 2016, Mr. Kellner sent Mr. Bourque a detailed report and a breakdown of the work and its cost [3] . That report was to be used for his insurance claim. The amount of $6,668.55 was stated as the cost of the excavation work and the amount of $2,184.53 was stated as being the cost of the pipe and labour work. The total cost was therefore $8,853.08. [ 17 ] On January 13, 2017, Mr.

Bourque received a cheque from his insurance company to pay for the excavation work ($6,668.55) less the applicable deductible of $500, leaving a balance of $6,168.55. [ 18 ] Mr. Bourque’s understanding was that the total amount owed to Monsieur Drain was $8,853.08. Therefore, he deducted from that amount the cash deposit payment already made of $3,400, leaving a balance owed of $5,453.08. [ 19 ] A cheque for that amount was forwarded to Monsieur Drain [4] . Mr. Bourque and Ms.

Fontaine-Skronski considered that to be full payment and that no further monies were owed to Monsieur Drain. [ 20 ] However, Monsieur Drain took the position that the deposit of $3,400 was in no way applicable to the excavation work. Monsieur Drain required payment of the full amount of $6,668.55. Monsieur Drain therefore claimed the “unpaid” difference of $1,115.47 ($6,668.55 - $5,453.08).

Analysis and Decision Did the parties conclude a verbal separate agreement for work relating to the installation of a backup valve for the amount of $1,500? [ 21 ] The case turns on the issue of whether there was a separate undeclared “under the table” agreement between the parties for the backflow work of $1,500. [ 22 ] After review of the evidence, the Court concludes that Monsieur Drain has failed to establish the existence of such an agreement, for the following reasons: 1) there is no document whatsoever produced by any party that supports the existence of such an agreement.

There is not even a commencement of proof in that regard; 2) Monsieur Drain issued a detailed report breaking down the cost of the work [5] . That report refers to only two amounts totalling, with taxes, $8,853.08, namely the excavation work ($6,668.55) and the pipe work ($2,184.53). Monsieur Drain, as a party carrying on an enterprise, cannot contradict its own document against a civil party by alleging the existence of an undocumented verbal agreement relating to alleged additional work for a supplemental cost. Articles 2862 and 2863 of the Civil Code of Quebec ( C.C.Q. ) read as follows:

2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1, 500 . However, in the absence of proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act executed by him in the ordinary course of business of an enterprise. 2863.

The parties to a juridical act set forth in a writing may not contradict or vary the terms of the writing by testimony unless there is a commencement of proof. 3) The testimony of both Mr. Bourque and Ms. Fontaine-Skronski was clear, convincing and without equivocation that there was never any “under the table” separate agreement and that instead it was always agreed that the cash deposit of $3,400 was to apply and be credited against both the excavation work and the pipe work . The terms of the written receipt support the factual version of Mr. Bourque and Ms.

Fontaine-Skronski since they states that the deposit is for “emergency excavation and related piping replacement”. [Emphasis added] 4) Furthermore, Monsieur Drain does not allege that the work of pipe and labour for $1,900 was also under the table. Instead, Monsieur Drain issued a report to be used by Mr. Bourque for his claim to the insurance company acknowledging that the charge for pipe and labour was “$1,900, plus taxes ”. The report specifically states that that amount “has been paid by client”.

That would therefore mean that an amount of $2,184.53 ($1,900 + $95 GST + $189.53 QST) had been paid to Monsieur Drain . However, Monsieur Drain’s own accounting and billing information contradict that version. First, Monsieur Drain never issued an invoice for that amount and none is filed into evidence. Second, if the version presented by Monsieur Drain was accurate (payment of $1,500 for backflow work), then the remaining amount from the deposit of $3,400 would be only $ 1,900, not $2,184.53, leaving a short fall of $284.53 for Monsieur Drain of unpaid taxes .

However, Monsieur Drain does not claim before this Court, and in fact, has never claimed that amount. That omission contradicts the basic premise of Monsieur Drain’s argument in support of his version of the existence of an alleged verbal under the table agreement. 5) At the outset of the disagreement, Mr. Bourque and Ms. Fontaine-Skronski also did not understand the calculations behind Monsieur Drain’s claim. In order to attempt to do so, they requested, on multiple occasions from Monsieur Drain, a reconciliation of amounts paid and claimed. In particular, on February 10, 2017, Mr. Bourque and Ms.

Fontaine-Skronski wrote to Monsieur Drain as follows: “En tout respect, et démontrant notre bonne foi pour acquitter tout montant dû, nous vous demandons, à nouveau, un

sommaire réconciliant les paiements, incluant le dépôt en argent comptant remis à M. Kellerman le 6 décembre 2016. Cette demande a déjà été effectuée à M. Kellerman ainsi qu’à votre commis aux comptes recevables, Mme Dina, sans résultat. Afin que nous puissions mieux comprendre votre document de réconciliation, nous vous demandons, de plus, à obtenir une copie de tout autre document que vous jugez pertinent à votre réclamation des sommes dues par voie de courrier recommandé. ” Monsieur Drain never responded to that elementary request.

On February 23, 2017, instead of attempting to document or justify its claim, Monsieur Drain instituted the present legal proceedings. [ 23 ] For the above reasons, the Court accepts and concludes that the factual version presented by Mr. Bourque and Ms. Fontaine- Skronski is accurate and the factual version presented by Monsieur Drain is erroneous. [ 24 ] Monsieur Drain’s claim will accordingly be dismissed with legal costs. The Court will order Monsieur Drain to refund Mr. Bourque the amount paid by him as the Court Stamp fee to issue his defence, namely $200.

Cross-Application and Forced Intervention [ 25 ] Mr. Bourque claims $1,115.47 against Monsieur Drain on the basis of abusive proceedings and time wasted, including the preparation of his defence in the legal proceedings.

Article 2805 C.C.Q. reads as follows: 2805. Good faith is always presumed, unless the law expressly requires that it be proved. [ 26 ] The Court is not convinced that Monsieur Drain’s claim was made in bad faith. It seems to have occurred as a result of confusion and erroneous accounting.

The Court is prepared to give Monsieur Drain the benefit of the doubt in the present circumstances in that regard. [ 27 ] However, if such conduct was shown to be repetitive in nature, there would have been grounds to consider the claim as abusive on the basis of recklessness, unreasonableness or excess (Article 51 of the Code of Civil Procedure ). [ 28 ] Accordingly, the Cross-Application will be dismissed, without costs. [ 29 ] Mr. Bourque’s Forced Intervention against Mr. Kellner was also based upon a misunderstanding. Mr. Bourque understood that the cause of the dispute was that Mr.

Kellner did not reveal to his employer Monsieur Drain receipt of the cash deposit given by Mr. Bourque and Ms. Fontaine-Skronski. That was not the case. Monsieur Drain was fully aware of receipt of that amount. The Forced Intervention will also be dismissed, without costs. FOR THESE REASONS, THE COURT: DISMISSES 9338-1309 Quebec Inc. (Monsieur Drain)’s judicial demand; DISMISSES Patrick Bourque’s Cross-Application; CONDEMNS 9338-1309 Quebec Inc. (Monsieur Drain) to pay Patrick Bourque legal costs (Court Stamp Fee) on his defence of $200; DISMISSES Mr.

Bourque’s Forced Intervention against David Kellner; WITHOUT COSTS . __________________________________ Jeffrey Edwards, J.C.Q.

Date of hearing: May 14, 2018