2017 QCCQ 1898, 2017 QCCQ 1898

Srivastava c. Hatjiantoniou 2017 QCCQ 1898 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU « Civil Division » No: 550-32-023143-164 DATE: March 8, 2017 ______________________________________________________________________ BY THE HONOURABLE SERGE LAURIN ______________________________________________________________________ Atul Srivastava Plaintiff v.

Aris Hatjiantoniou Defendent ______________________________________________________________________ JUDGMENT Rendered orally at the hearing and edited ______________________________________________________________________ INTRODUCTION [ 1 ] The Plaintiff is suing the defendant for unfinished work evaluated at 1 500 $. The defendant did not claim the registered letter for this Court’s demand, therefore he was notified by public notice in a newspaper on Tuesday April 5 th , 2016. The defendant did not contact the small claims clerk’s office nor file a notice of appearance in the court’s file.

The Court proceeds by default against Mr. Hatjiantoniou. QUESTION IN DISPUTE [ 2 ] The Court has to decide if the value of the unfinished work is greater than the sum given by the plaintiff to the defendant as a deposit. THE FACTS [ 3 ] The parties contracted a verbal agreement for landscaping work estimated at 4 600 $ and the plaintiff prepaid a sum of 3 800 $ to the defendant who failed to complete the work.

The plaintiff had to employ another worker to accomplish the work and pay 4 380 $ for his services. [ 4 ] The plaintiff estimates his loss to be at 1 500 $ based on the fact that about half the work was not completed by the defendant. ANALYSIS [ 5 ] Sections 2803 and 2804 of the Civil Code of Québec [1] (C.c.Q.) states: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. (…) 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 6 ] Conditions of liability are noted in

section 1458 C.c.Q. : 1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to

make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. [ 7 ] The parties verbally agreed on a contract of enterprise or services as stated in

section 2098 C.c.Q. Therefore,

section 2129 C.c.Q. applies: 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered [ 8 ] According to the underlined subsection and the proof established by the plaintiff, the defendant received an advance of 1 500 $ in excess of what he earned. [ 9 ] The Court concludes that the plaintiff met his burden of proof. FOR THESE GROUNDS, THE COURT: [ 10 ] ORDERS the defendant to pay to the plaintiff the sum of 1 500 $ with interest at the legal rate plus the additional indemnity stipulated in

section 1619 of the Civil Code of Québec and the Court fees of 100 $. __________________________________ SERGE LAURIN, JCQ Date of hearing: February 10 th , 2017