2014 QCCQ 9137, 2014 QCCQ 9137

Nevez c. Chaudhry 2014 QCCQ 9137 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-131799-126 DATE: August 28, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ FERNANDO NEVEZ Plaintiff v. AWAIS AHMED CHAUDHRY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Context [ 1 ] Defendant Mr.

Awais Ahmed Chaudhry hired the Plaintiff Fernando Nevez to carry out various landscaping work at Mr. Chaudhry’s house. Before the work was completed, Mr. Chaudhry requested that Mr. Nevez stop the work. Mr. Nevez instituted proceedings claiming the outstanding amount of $2,255 due under his contract. Mr. Chaudhry contests owing that amount and has taken a Cross-Demand of $7,000 on the basis of various damages, including the cost to complete the work and alleged deficiencies in the work performed by Mr. Nevez.

Position of Plaintiff Fernando Nevez [ 2 ] On April 10, 2011, Plaintiff Fernando Nevez entered into a contract with Mr. Chaudhry for landscaping work to be performed at the latter’s residence [1] . The contract specified certain work including: 1. Change drain; 2. Excavation; 3. Laying down and compacting gravel; 4. Levelling of rock; 5. Building paver support walls on each side of the garage; 6. Laying of pavers for garage entrance; 7. Laying of pavers for walking; 8. Transfer top soil, compact soil and lay sod (grass) in front, in back and on the side of the house; 9.

Installing polymer sand in the joints of the pavers;

10. Installing river rock on the left and right of the house. [ 3 ] The price for the labour and materials under the contract was $10,900. [ 4 ] Under the contract (Exhibit P-1), the terms of payment were that the first payment was to be made before the work commenced ($7,630) with the balance ($3,270) due at the completion of the work. It is not contested that the initial payment of Mr. Chaudhry was made. [ 5 ] According to the testimony of Mr. Nevez and that of his wife, it was very difficult to perform the work. They testified that Mr.

Chaudhry and his wife were constantly interfering with the work, changing their minds and demanding additional work. [ 6 ] One aggravating factor was perhaps a problem of communication. Plaintiff told the Court through an interpreter that he only speaks Portuguese and that he is unable to speak or communicate in French or in English. As for Mr. Chaudhry and his wife, they do not speak Portuguese. [ 7 ] The tensions at the work site were high. Nevertheless, Mr. Nevez continued to carry out his work under the contract to a certain point. On one hand, Mr. Nevez was of the view that Mr.

Chaudhry and his wife were constantly interfering with his work and were constantly changing their instructions as to the work agreed to under the contract. On the other hand, Mr. Chaudhry and his wife were of the view that the work being done was not in accordance with proper construction practice and that Mr. Nevez was not doing what was agreed to and was not following their instructions. It should also be noted that Mr. Nevez is responsible for the confusion as to the specifications of the work in that he did not draw up a written plan and have it approved by Mr.

Chaudhry before commencing the work. [ 8 ] On June 23, 2011, the tensions came to a breaking point. Mr. Chaudhry called the wife (who speaks English) of Mr. Nevez and advised that the work was suspended until further notice. This was confirmed by a notice sent by Plaintiff to Defendants on June 27, 2011 [2] . In that notice, Plaintiff requested payment of the balance of price owing of $3,900 as he was willing and available to complete the work and that, according to the notice, only 10% of the contract remained to be completed. On July 4, 2011, Mr. Chaudhry wrote to Mr.

Nevez and specified, in his view, the corrective work that had to be undertaken [3] . Mr. Chaudhry stated in part as follows: (p. 1): “Quality of work: you haven’t done your work so far of the quality we were expecting. 1: you used broken stones in wall; 2: steps are not straight and properly leveled; 3: bad looking caping; 4: wall not straight; 5: backyard not properly leveled and compact; 6: nothing done for gutter pipes; 7: weeds not removed; 8: land not properly sloped near basement windows; 9: driveway and walkway not deeply dug.” (p. 3): “Mr.

Fernando, come complete the work according to our satisfaction and I will pay the balance completely and at once. You are always welcome to come talk to me if there is anything to discuss. Come let’s finish all of this tension in a good manner.” [ 9 ] By letter dated July 22, 2011 [4] , Mr. Nevez responded through his attorneys, in part:

“Compte tenu de votre insatisfaction généralisée et des reproches plutôt insultants faits à nos clients, nos clients ne sont pas intéressés à travailler pour vous dans de telles conditions, où manifestement ils sont certains de ne pas se faire payer. Dans les circonstances, nos clients vous réclament la somme due sur les travaux exécutés jusqu’à maintenant dont ils évaluent la valeur à 95 % du contrat et par conséquent la somme de 3 355,00 $ vous est réclamée de laquelle il faut déduire la somme de 1,000 $ pour le coût du matériel.

Par conséquent à défaut de recevoir la somme de 2 255,00 $ dans les 10 jours au moyen d’un chèque certifié fait payable au soussigné en fidéicommis, notre client prendra les mesures légales qui s’imposent.“ [ 10 ] On January 16, 2012, Mr. Nevez instituted the present proceedings. Defendant Awas Ahmed Chaudhry’s position [ 11 ] Mr. Chaudhry states that Mr. Nevez was intransigent and impolite when carrying out his work. He states that Mr. Nevez’s work was often faulty and in violation of applicable construction practice. Mr. Chaudhry has filed into the Court record numerous exhibits, including over 20 photos. Mr.

Chaudhry admits that most of the items of work stipulated in the contract of work were done by Mr. Nevez. Of the 10 items listed above, he testified that the only remaining items to be performed were numbers 8 and 10. But he states that the work done necessitates many repairs for which he claims the cost by Cross-Demand. [ 12 ] Mr. Chaudhry states that the local city inspector complained on July 25, 2011 [5] , that the level of soil was improper and had to be changed in order that water run off go to the back of the property. Mr. Chaudhry also complains that Mr.

Nevez did not use heavy machinery but only simple and basic tools to carry out the work. [ 13 ] Mr. Chaudhry testified that in late August, early September 2012, after Mr. Nevez instituted legal proceedings, Mr. Chaudhry carried out the remaining landscaping and other work under the contract with the help of a neighbour. The various invoices are filed under Exhibit D-6 en liasse and total the amount of $2,741.70. [ 14 ] However, Mr. Chaudhry’s proof regarding alleged deficiencies of Mr. Nevez’s work is nebulous both as to the existence of such deficiencies and the alleged cost to repair.

No expertise was filed in that regard. Instead, the only proof is photos of the alleged poor workmanship and the very general and untechnical testimony of Mr. Chaudhry. [ 15 ] Mr. Nevez’s defence to the Cross-Demand is that the alleged deficiencies do not exist or if they do exist, they are minor only in nature and that he was always willing and desirous of completing the contract and he was never given an opportunity to do so. Analysis and Decision [ 16 ] The Court is called upon to decide two issues: 1. Is any amount owed to Mr. Nevez in virtue of the contract (Exhibit P-1), and if so, what amount? 2.

Is any amount owed to Mr. Chaudhry based upon his Cross-Demand?

Principal Demand under the contract by Mr. Nevez [ 17 ] Mr. Nevez originally claimed $3,255 in his demand letter, the amount outstanding under the contract for final payment. However, as the contract included material, he deducted $1,000 which he says would cover the materials that he did not have to purchase since items 8 and 10 were not completed. As such, he reduced his claim to $2,255. Mr.

Nevez states that the outstanding work represents 10% of the contract and the $1,000 reduction should suffice to cover it. [ 18 ] Based upon the evidence, the Court considers that the $1,000 reduction is insufficient to cover the outstanding work. The reduction should also include the labour costs for the outstanding work, as these were included in the contract as well. Considering the scope of the outstanding work, as appears from the proof of Mr. Chaudhry, the Court will increase the amount to be deducted to $2,000. [ 19 ] Mr.

Nevez contests that the full amount of labour including profit should be lost by him since he is of the view that he never refused to carry out the outstanding items. The Court does not share that view. It appears from the correspondence cited above that Mr. Chaudhry requested Mr. Nevez to carry out the outstanding items (along with the items having deficiencies) and Mr. Nevez refused to do so. As such, Mr. Nevez was in default by the sole operation of law [6] . Therefore, Mr. Chaudhry should receive the full credit of $2,000. This would leave an amount of $1,255 owing to Mr. Nevez. Cross-Demand of Mr.

Chaudhry [ 20 ] Mr. Chaudhry claims in his Cross-Demand the amount of $7,000. But that amount is not broken down or explained. There is the work involved to complete the work that Mr. Nevez refused to do. The invoices for that total $2,741.70. However, that amount cannot be claimed since it would be a duplication of the amount already reduced from the principal claim. That reduction was in respect of the same work so it would be incorrect in law and in fact to deduct the amount twice. [ 21 ] As regards the remaining $4,258.30, Mr. Chaudhry comes to the Court with very little solid evidence to support that claim.

As previously stated, there was no expertise filed on the alleged existence of the deficiencies and the cost of repairs. Neither was there testimony offered by a contractor on the existence or costs of the alleged deficiencies. A two line quote by a contractor who did not testify and without breakdown was submitted [7] by Mr. Chaudhry but the Court was ill at ease to give any substantial weight to that. Mr. Chaudhry also called as a witness his friend Mr. Kamil Rose. This witness testified as to his view that the work done was of poor quality. But Mr. Rose is not a contractor or an expert. [ 22 ] However, Mr.

Chaudhry has produced in the Court record many photographs of what he alleges are construction deficiencies for his claim of $6,668.55. The Court went through these photographs with both parties and obtained their versions and comments. On a defence of law, Mr. Nevez contests whether the costs for repairs for these deficiencies can be claimed against him since he states that he was never advised of the existence of any problem and never refused to perform the repairs. Again, that ground of contestation is not well founded in fact. These deficiencies relate to those mentioned in Mr.

Chaudhry’s letter of demand (Exhibit P-3). As stated above and for the same reasons, Mr. Nevez refused to correct those deficiencies. [ 23 ] Mr. Chaudhry has only partially discharged the burden of proof as a Plaintiff making a Cross-Demand with regard to the existence and scope of the poor workmanship [8] carried out by Mr. Nevez. It may be that the costs to repair the deficiencies will be substantial but Mr. Chaudhry has not established by valid evidence such a proposition.

Nevertheless, as a result of the analysis by the Court of the testimony heard in regards especially to the photographs filed, the Court arbitrates that the cost of repair of those deficiencies will be $1,000. The Court will therefore grant the Cross-Demand in the amount of $1,000. Conclusion [ 24 ] As appears from the above, the Plaintiff Mr. Nevez’s claim is well founded in the amount of $1,255. Defendant/Cross- Plaintiff’s claim is well founded in the amount of $1,000. The Court will operate judicial compensation between these respective amounts and order Defendant/Cross-Plaintiff Mr.

Chaudhry to pay Plaintiff/Cross-Defendant Mr. Nevez the remaining amount of $255, plus interest, additional indemnity and costs.

FOR THESE REASONS, THE COURT: CONDEMNS Mr. Chaudhry to pay Mr. Nevez the amount of $1,255; CONDEMNS Mr. Nevez to pay Mr. Chaudhry the amount of $1,000; OPERATES judicial compensation between the above condemnations, leaving a balance of $255 that Mr. Chaudhry is CONDEMNED to pay Mr. Nevez, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 C.C.Q. from the institution of the legal proceedings, namely January 16, 2012. WITH JUDICIAL COSTS of $103 in favour of Plaintiff/Cross-Defendant Mr. Nevez. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: July 3, 2014