2010 QCCQ 13025, 2010 QCCQ 13025

Embellissements Mont-Royal inc. c. Beyukian 2010 QCCQ 13025 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-114121-082 DATE: December 20, 2010 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ LES EMBELLISSEMENTS MONT-ROYAL INC. 8440, rue Daniel-Dony Montréal Québec H1E 6X2 Plaintiff v.

LEVON BEYUKIAN […] Ville Mont-Royal Québec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Les Embellissements Mont-Royal inc., is suing Defendant, Levon Beyukian, for $3,179.13, for goods delivered and the landscaping services rendered. Defendant disputes the amount of the bill and claims two of his trees died. The evidence: [ 2 ] Plaintiff, which provides maintenance, landscaping and snow removal services, began working for Defendant in 2006.

All arrangements for maintenance, installing flowers and trees as well as the labour costs were verbal. [ 3 ] Plaintiff, at Defendant's request, installed a cedar hedge and two taxus evergreen trees, put down topsoil, cut the grass, trimmed the hedge and took care of the flowerbeds. Defendant paid Plaintiff $500 in May 2008 but the sum of $3,179.13 remains unpaid. [ 4 ] Defendant refused to pay the invoice, alleging discrepancies between the monthly billings and the final bill. He also complained that a row of cedar trees Plaintiff had planted failed to provide privacy and cover his fence.

Although Plaintiff accepted to remove them, alleging it suffered a 25% loss by returning the trees, it charged its labour costs. Defendant disputes this charge. [ 5 ] Defendant considered the cost of labour, flowers and the two trees Plaintiff planted to be excessive. He had not been provided with a quote beforehand. One of the trees had died, as had a previous one, planted the preceding year. [ 6 ] Plaintiff had advised Defendant that the taxus trees were expensive but Defendant told him to go ahead. Plaintiff alleged the taxus tree died because it had not been watered properly; Defendant denies this allegation.

Analysis: [ 7 ] Defendant raised a couple of discrepancies between Plaintiff's monthly billings and its final invoice. The evidence does not support his claim; rather it shows that the final bill contains the addition of the various invoices preceding it.

[ 8 ] The remainder of Defendant's complaints concerns the loss of the taxus tree and a previously planted tree, the labour charge for removing the cedar hedge and for maintenance and the cost of the flowers and trees, in the absence of a quote. [ 9 ] Before entering into a contract, the provider of services is obliged to provide the client, to the extent possible, with useful information concerning the nature of the task and the property for that task [1] . The price of the services is fixed by the contract, by usage or by law or is based on the value of the services performed [2] .

The price for goods and services [ 10 ] Although the price for labour, maintenance and for planted flowers was not established by the parties before Plaintiff began to provide its services, Defendant has not shown the cost was excessive or that he suffered prejudice. Plaintiff, having charged its usual rate, is therefore entitled to the cost of its services. [ 11 ] The same applies to the cost of the taxus tree. Plaintiff had advised Defendant that this was an expensive tree; Defendant nevertheless agreed to its purchase.

Having been given this information, he cannot conclude that the taxus tree should cost the same as a less costly tree that was planted the previous year. The cost of the trees that died [ 12 ] The evidence established that one of the taxus trees Plaintiff had provided and another tree, planted the previous year, had died. The photographic evidence of the taxus tree shows a colourless tree, amid rich green grass and bushes. [ 13 ] Plaintiff, having planted the trees, has an obligation to provide goods that are durable for a reasonable length of time.

The trees should survive and grow, unless Plaintiff can show “force majeur” or that Defendant committed a fault [3] . [ 14 ] While Plaintiff contends Defendant failed to water the trees, Defendant testified that he had an underground irrigation system; consequently, the trees were being watered adequately. [ 15 ] As for the other dead tree, Plaintiff claims it already compensated Defendant, by providing Defendant with a discount for the cost of the two taxus trees, but it failed to substantiate this claim. [ 16 ] Plaintiff has the burden of proof.

It has not satisfied the Court that the trees died because of Defendant's lack of care. As well, Plaintiff has not shown that Defendant was compensated for the taxus trees. Accordingly, Plaintiff is responsible for reimbursing the cost of both trees, namely the sum of $110 and $285 for a total of $395.

Labour costs related to the hedge [ 17 ] Defendant did not want the hedge after it was planted since it failed to provide the privacy anticipated although Plaintiff had indicated that a few years were required before the hedge reached its expected height and fullness. [ 18 ] Plaintiff is entitled to its labour costs for planting the cedar hedge at Defendant's request, and removing it when Defendant no longer wanted the hedge. There is no evidence that the hedge was not of a good quality.

Furthermore, Plaintiff had advised Defendant that it required time to grow to its full height. ******** [ 19 ] In sum, Defendant hired Plaintiff for its landscaping and maintenance services. He is obliged to honour his contractual undertakings. Defendant is responsible for paying Plaintiff's invoice, subject to the reductions outlined above, which in total comes to $2,784.13 ($3,179.13 less $395).

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Defendant, Levon Beyukian, to pay Plaintiff, Les Embellissements Mont-Royal inc., $2,784.13 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since September 25, 2008 and judicial fees of $172. __________________________________ SUZANNE HANDMAN, J.C.Q.

Date of hearing: November 22, 2010