2019 QCCQ 4116, 2019 QCCQ 4116

Guerrera c. Rayside Labossière inc. 2019 QCCQ 4116 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-238960-176 DATE: May 2, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON ______________________________________________________________________ DENIS GUERRERA Plaintiff v. RAYSIDE LABOSSIÈRE INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Parties and procedures [ 1 ] The Plaintiff, Denis Guerrera, sues the Defendant, the architectural firm of Rayside Labossière inc. (“ Rayside Labossière ”), alleging prejudice resulting from fault on the part of the Defendant in the providing of architectural services for the design of a new condominium building to be constructed on a property owned by Mr. Guerrera, situated in the borough of Plateau-Mont-Royal, in the City of Montreal. [ 2 ] Mr.

Guerrera alleges that the Defendant failed in its duty to verify the city bylaws and regulations relating to the permissible dimensions of the building.

He asserts that the plans proposed initially followed the Defendant’s finding that the permissible minimum lateral margin was 1.5 metres and that it was only after the investment of significant time, energy and funds, in the development of the project, that it became apparent that the minimum margin required by the regulations was 2.5 metres. [ 3 ] He argues that the resulting reduction in the surface area and in the possible number of units that could be built would have impaired the profitability of the project such that it was no longer feasible. [ 4 ] Mr.

Guerrera claims, as prejudice resulting from the alleged error, the following heads of damage [1] :

a) Fees paid for Defendant’s services (P-13) 18,009.68 $

b) Legal fees for the acquisition of the Southern Lot (P-14) 10,522.25 $

c) Land surveyor’s fees related to the preparation________________ __ of a localisation certificate for the Southern Lot (P-15) 862.31 $

d) Taxes related to the property and cost of licences________________ __ and permits (P-16) 34,460.19 $

e) Trouble and inconvenience associated with the________________ __ pursuit of a futile project 20,000.00 $ TOTAL 83,854.43 $ [ 5 ] Rayside Labossière presents a defense based on assertions which we summarize as follows: 1. The Plaintiff was himself at fault in failing to provide the appropriate certificate of location required to establish the allowable margins; 2. No fault was committed in connexion with the allowable margin: the decision of the borough of Plateau-Mont-Royal was never made known because the application could not be processed without the said certificate of location; 3.

Subsidiarily, no prejudice resulted, even if Rayside Labossière committed a fault in that: - The Plaintiff made a substantial profit on the sale of the land;

- The costs incurred by the Plaintiff concerning the southern lot and the brickwork resulted in a higher sale price and therefore more profit; - The project was not futile or unfeasible because of the borough’s application of the minimum margin, because of the numerous options available to the Plaintiff and the availability of derogations or of a “projet particulier”. Issues [ 6 ] The Court must resolve the following issues: 1. Did Rayside Labossière commit any fault in the services provided; 2. If so, did any such fault result in: a.

Prejudice that would justify the reduction of the professional fees of Rayside Labossière; b. Prejudice in the form of useless or wasted legal fees, professional fees, taxes and permits and repairs; c. Prejudice in the form of trouble and inconvenience. Facts [ 7 ] Mr. Guerrera acquired the property in 2011 through what he refers to as an “auction”.

The sale [2] resulted from a judgement of the Superior Court dated July 15, 2011 in which a bailiff was designated to sell property owned by three individuals, including Denis Guerrera. [ 8 ] The property thus acquired is designated as lot number 2 003 077 in the cadaster of Quebec, with a building having the civic address 3476, 3478 and 3480 Saint-Dominique street. [ 9 ] Mr. Guerrera, together with a friend, Mr. Robert Abatzidis, planned to demolish the existing building and develop a new condominium project on the land.

To this end the two friends solicited the services of Rayside Labossière, a firm situated on the “Plateau” having experience in designing buildings in that borough. [ 10 ] After some preliminary discussions, a contract for professional services was entered into dated October 24, 2011 [3] .

The contract covers comprehensively the architectural services for the project, from the preliminary studies, through to the end of work and the follow-up on deficiencies. [ 11 ] The first phase is stipulated as follows: Étude préliminaire, relevé et mise en plans Cette étape comprend : Étude des différentes règlementations applicables (Code de construction, arrondissement,…) afin de s’assurer de la faisabilité du projet ; Prise de mesures de l’existant ; Mise en plan à l’ordinateur ; Rencontre préliminaire avec les clients pour établir les besoins. [ 12 ] One of the first steps was the request made by architect Antonin Labossière for a certificate of location.

Mr. Guerrera provided what he had at that time, a certificate from 2002 showing, in a plan view [4] , lot number 2 003 077, with the building covering most of its surface area, a vacant adjacent lot, number 2 003 075 directly to the right, and, to the right of that, the neighbouring building, built on lot 2 003 063. [ 13 ] Lot 2 003 075 is a very narrow parcel, not as long as its neighbouring lots. It was measured at 2,23 metres. Down the middle of the lot is a line with the inscription “passage en commun”. [ 14 ] The lot owned by Mr.

Guerrera, number 23 003 077 is 9,96 metres wide, along the axis of Sainte-Dominique street. [ 15 ] The architects’ reading of the certificate of location was that the small lot was a “servitude” as opposed to being land owned by Mr. Guerrera. [ 16 ] This was confirmed by a later certificate prepared in March 2013 [5] . [ 17 ] Mr. Guerrera asserted nonetheless that half of this small lot was in his ownership, because he had been paying taxes on it. [ 18 ] In early correspondence between Bobby Abatzidis and Virginie Parenteau, the architect working on the project, it is clear that Ms.

Parenteau was operating under the belief or the assumption that half of this small lot belonged to Mr. Guerrera. [ 19 ] For the project to go ahead, an application for the demolition of the existing building could only be issued by the city on the basis of the approval of a new construction in its place and, for this, the city required a recent certificate of location. Thus, it was appropriate for Ms. Parenteau to ask, from the outset, for a new certificate incorporating the parcel of land over which Mr.

Guerrera asserted ownership, showing the exact dimensions of the entire land he owned and upon which he wished to build something new. [ 20 ] At this stage, the architects were evaluating two options. They had already formed the opinion, based on a communication with the city, that it was not possible to build basement units, as Mr. Guerrera and his associate had hoped to do. It was however possible to build ground floor units that included the basement floor. Ms.

Parenteau wrote on November 8, 2011 [6] : […] De notre côté, nous avons évaluer [7] les possibilités que vous avez en vous conformant aux règlements municipaux d’un bâtiment de 3 étages + mezzanine. OPTION 1 4 logements sur 2 étages (rez-de-chaussée et sous-sol) de +/- 900 pi.ca. 2 logements (2 e étage) de +/- 1000 pi.ca. 4 logements (3 e étage et mezzanine) de +/- 700 à 800 pi.ca. Pour un total de 10 logements OPTION 2 4 logements sur 2 étages (rez-de-chaussée et sous-sol) de +/- 900 pi.ca. 4 logements (2 e étage) de +/- 400 à 500 pi.ca. 4 logements (3 e étage + mezzanine) de +/- 700 à 800 pi.ca.

Pour un total de 12 logements [ 21 ] In an email of November 15, 2011 [8] she wrote, in connection with the option of including windows on the lateral façade: […] il faut que le mur soit construit à un minimum de 1,2 mètre de la ligne de lot pour pouvoir mettre 7% de fenêtre. […] D’autre part, le certificat de localisation fourni démontre que l’espace entre les 2 bâtiments au sud est un lot en soit. Je crois que cet ancien lot est maintenant en moitié votre propriété.

Il faudrait un plan d’arpentage à jour pour que nous ayons la bonne grandeur de votre lot. [ 22 ] In December [9] , she reiterated her request for an up-to-date certificate of location: Bonjour, N’oubliez pas de me faire parvenir rapidement le certificat de localisation à jour (intégrant le lot adjacent) afin que je ne sois pas bloquée dans l’élaboration du projet. [ 23 ] The design work proceeded, however, on the premise that the building would be set back 1,5 metres from the building on the neighbouring lot number 2 003 063.

Given that half of the small lot is taken to be 1,2 metres, the building is set back from the lot line by 300 cm, for a total distance of 1,5 metres between the new building and the neighbouring lot. [ 24 ] The drawings dated October 2012 [10] , submitted to the city in the application for demolition of the existing building, show precisely this configuration. The number of units has been reduced to eight, with at total surface area of 542 square metres, based on a façade along rue Saint-Dominique of 9.960 metres.

This works out to a distance of 1,5 metres from the building to the edge of the adjacent property, premised on Mr. Guerrera owing half of lot 2 003 075. [ 25 ] Implicitly, the design is based on the

interpretation of the architects of the applicable bylaws and regulations, which govern the lateral margin required on a building with windows, having the height of the building designed. [ 26 ] Mr. Labossière, the chief architect on the project and a partner in the firm, stated in his testimony that the height of the building to be constructed, measuring less than 12.5 metres, excluding the mezzanines above the third floor, would permit a wall having windows set back 1,5 metres from the edge of the property. A building that was between 12.5 and 16 metres in height would require a setback of 2.5 metres.

The preparation of the plans went ahead on the presumption that Mr. Guerrera would establish his ownership of half of the intermediary lot, on which there were, according to the surveyor’s plan, servitudes of passage. This half of the lot would then be merged with lot number 2 003 077. [ 27 ] The ownership of half of the lot was eventually established when the Plaintiff’s attorneys obtained a declaratory judgement, dated March 4, 2014 [11] . Ms. Parenteau was communicating with her counterparts at the city and with the Plaintiff and Mr. Abatzidis over the

period from January 2013 through March 2014. On March 19, 2014 Ms. Parenteau wrote informing Jean-Pierre Lamoureux, of the city, of the judgment confirming ownership of half the lot and that this would be followed by a merger of the two lots. [ 28 ] The billing [12] , reflecting the plans of October 2012, shows the increment of $7,240.00 for “Études et plans préliminaires” (100% complete) and $8,424.00 for “CCU / Comité de démolition, MCCQ” (80% complete), for a total billed to that point, before taxes, of $15,664.00. [ 29 ] There are actually two versions of bill number 3831 dated January 1, 2013.

The Plaintiff made payment on a second version [13] showing CCU / Comité de demolition, MCCQ at 80% completion.

In the first version [14] , sent in December 2012, this stage was billed at 100% completion, for $10,530.00. [ 30 ] In comparing the billing to the contract for professional services [15] , it is clear that the design work had advanced beyond the preliminary stages defined in the first two titles, “Études préliminaire, relevé et mise en plans” and “Préparation des esquisses et plans préliminaires”. [ 31 ] It was well into the third and fourth stages of “Préparation des documents pour permis“ and “Présentation au Comité de démolition, CCU et MCCQ”. [ 32 ] The stage involving the study of the applicable regulations to insure the feasibility of the project had long since passed. [ 33 ] But, in terms of the allowable dimensions, the file was, really, not yet beyond the preliminary stage, a fact of which both the architects and the client were unaware. [ 34 ] All was proceeding, with most of the essential design issues decided, on the premise that the regulations permitted a building of this type and height to be 9.960 metres in width along the façade, because of an allowable distance of 1,5 metres from the adjacent land, assuming Mr.

Guerrera’s ownership of this half of lot 2003075. [ 35 ] At the meeting held in August 2014, Jean-Philippe Lamoureux, a permit officer (préposé aux permis) stated clearly that this building would have to be set back 2.5 metres, which would require the reduction of its width by one metre. This was an issue related in part to height, because of the particular design of the building as proposed. [ 36 ] M. Lamoureux clarified in his testimony that it was the height of the structure, close to the maximum of 16 metres, that called for a margin of 2.5 metres. [ 37 ] At the meeting, various options came out; Mr.

Guerrera could try to aquire 75% of lot 2003075 to gain the additional space required, or even 100% of this lot; he could request a derogation or he could reduce the lateral dimension of the building to respect a 2.5 metre setback. [ 38 ] Ms. Parenteau, in cross examination, explains that, at the beginning of the process, she and her colleague had worked on the belief that he planned height, 12.5 metres, plus the mezzanine level, would permit the 1.5 metre setback, because the mezzanine would not be considered in the height measurement.

This was based on the application of the regulation in other districts than the “Plateau”. It was only in August 2014 that it became clear that this

interpretation would not be applied. [ 39 ] She prepared several options to redesign the building in anticipation of discussion to seek a derogation or to proceed as a “projet particulier” [16] .

She had considered the option of eliminating the setback entirely and of eliminating the mezzanines. [ 40 ] It is unclear when precisely the Defendant became aware of the problem and when it accepted the city’s proposition on the matter, started clearly at the meeting held in August. [ 41 ] On a site plan which is part of the set of drawings of August 2014, annotations show a correction of the setback from 1.5 to 2.5 metres. Ms. Parenteau identified her writing. Whoever wrote the inscription, the setback was clearly the issue of the day. [ 42 ] From Mr.

Guerrera’s point of view, the reduction in the numbers of units because of the loss of one metre of width, the cost and risk of applying for derogations or proceeding by way of “projet particulier”, with no indication from Mr. Lamoureux that this process would be successful, made the project unacceptably uncertain. [ 43 ] He had not authorized the preparation of plans for the various options put on the table in August 2014, nor a subsequent drawing of September 2014 [17] . His attempt to negotiate with Mr.

Lamoureux at the meeting were not successful. [ 44 ] Because of the advanced state of deterioration of the vacant building 3476-3480 Saint-Dominique, the city authorized its demolition by a decision dated November 4, 2014 [18] . This demolition initially applied for on the basis of the new project. [ 45 ] The permit lapsed, however on June 9, 2016; no demolition occurred; Mr. Guerrera sold the immovable, consisting of lot 2003077 and the interest in lot 2003075 on October 14, 2016 for $550,000.00. [ 46 ] He and Mr.

Abatzidis decided, after a final meeting with the architects on January 28, 2015, that the project would be terminated. There was some communication by Antoine Labossière, seeking the client’s decision to accept a new arrangement, and a reaction to the proposed options [19] . In the email of January 28, 2015 he proposes obtaining clarity as to the precise line and a clear response as to the limits and setbacks the city would approve: Nous vous avons expliqué notre inconfort face à la situation de votre projet.

C’est-à-dire que 3 ans après avoir débuté les plans, nous ne connaissons toujours pas avec certitude la ligne précise sur laquelle nous pouvons construire un nouveau projet. Cette situation découle des interprétations et du changement de propriétaire du lot, comportant une servitude, bordant votre terrain. Nous voulons éviter de travailler pour rien et de vous faire dépenser de l’argent pour rien.

Nous proposons donc de demander clairement à la Ville quelles sont les limites (et reculs) de construction et de vous les faire approuver, avant de faire tout dessin d’un nouveau projet ou d’un projet modifié. Suite à cette réponse, nous pourrons poursuivre nos documents. Nous attendons votre acceptation avec de procéder. AnalysIs [ 47 ] It is true, as the Defendant asserts, that the Plaintiff was remiss in not acting on the recommendation to obtain a certificate of location establishing the property line applicable to this project.

Indeed, the process of obtaining decisions from the city was delayed because of this.

If it had turned out that the Plaintiff could not establish his ownership of his half of lot number 2 003 075 the loss related to incurring design fees for a project that could not be built as planned would fall on the Plaintiff. [ 48 ] That is not what occurred here, because the Plaintiff did have ownership of his half of the lot and was able to establish this through a judgement. [ 49 ] The issue in this case is not about a certificate, or a cadastral operation, it is the problem of a design that presumed the dimensions of the land available to be developed, but that was based on a setback distance resulting from an

interpretation of the applicable regulations that was not shared by the city. [ 50 ] The testimony of the chief engineer on the project makes it clear that the firm’s

interpretation of the regulation was that a 1.5 metre setback was allowed for the building as designed. That design went through a number of transformations up until the drawings were submitted, and the number of units planned and their dimensions. When the drawings were submitted, for review by the CUU, there was no idea that this

interpretation would be rejected by the city. [ 51 ] Mr. Guerrera had, since an earlier stage, approved the design including choosing among the options presented, and settling upon the size and number of units. Fault [ 52 ] The study of the applicable by laws was a key component of the contract between the parties. In professional matters generally, questions of opinion are often governed by the theory of the obligation of means [20] . Some professional obligations have an intensity of result, or even of a more absolute intensity [21] . It depends upon the particular facts of each case.

In the contract, under the heading “Étude préliminaire, relevé et mise en plans” the study of regulations is stipulated with at least the intensity of result, if not higher, because of the choice of the word “s’assurer” [22] : Étude des différentes réglementations applicables […] afin de s’assurer de la faisabilité du projet. [ 53 ] After the initial discussions and studies, a project was proposed and accepted by the client and the drawings for that project were prepared and proposed to the city.

Implicitly, the architects were stating their assurance that the project, with its mezzanine level and its dimensions, was “feasible”. The client had authorized the presentation of these drawings on the basis of this assurance. He had accepted the risks and potential delays inherent in the as yet inadequate documentation of his ownership of half of the small lot necessary for this feasibility, but not the risk of an erroneous belief about the effects of the regulations concerning height, setbacks and mezzanines.

The fact that the judgment was not followed up by a merger of the half ownership of the small lot with the larger one is not an issue: these are renovated lots of precise dimensions and the judgment was clear: a merger and certificate of location was a matter of course. [ 54 ] Mr. Labossière proposed in his email of February 25, 2015 a meeting with the borough on that basis [23] . The question of the setback – 1.5 metres versus 2.5 metres was a significant one that effected the feasibility of the project as planned.

If I were not, the architects would not have proposed applying for a derogation or transforming the process to that of a “projet particulier”. [ 55 ] Neither party asks the Court to give a legal opinion as to who was right, as between the city (Lamoureux) and the architects. It would have been difficult for the Court to give such an opinion because, to a certain extent, the question turns on technical issues, within the realm of expertise of architects, and no expert evidence was offered [24] . [ 56 ] What is of significance is that the architects no longer proposed their

interpretation, simply accepting the city’s position and proposing other alternatives. Mr. Labossière candidly admitted that his knowledge was based on an application in another part of the city, not on an application in the “Plateau” borough.

His suggestion in the last communication on the subject, on January 28. 2015 [25] , to make a clear request to the city as to the limits and setbacks and to have these accepted by the client begs the question why this was not done initially, before spending time and money on the preparation of the drawing for city approval. [ 57 ] In keeping with the omnipresent duty of information, coupled with the stipulation of “assurance” in the contract, Rayside Labossière had an obligation to inform Mr.

Guerrera of the true application of the regulations or, if the true application was a question of doubt and discussion, of the possible

interpretations, the uncertainty of the city’s position, and the risks and costs in going ahead with the design of the project in more detail, prior to resolving the issue. If it could be resolved in the client’s favour at that stage, he had avoided the risk. If it could not, he could either accept the risk, if the costs were acceptable, or avoid them if they were not.

[ 58 ] By not respecting this obligation of study of the regulations, of information and of counsel, Rayside Labossière committed a fault. Casualty and prejudice

a) fees [ 59 ] The fees incurred after the preliminary studies, beginning with the drafting of plans and the fees submitted to the city, are the direct result of the fault referred to above.

If the fault had not been committed, these steps would not have been prejudicial. [ 60 ] A stipulation in the discovery establishes that the financial loss is the amount of the invoices before tax, as the Plaintiff applied to have the GST / QST credited. [ 61 ] The evidence presents a difficulty, because the beginning of drafting is part way through the first invoice which includes 100 % of the study phase, and 80% of the preliminary design phase.

Details of the breakdown between these two parts of the first invoice have not been provided. [ 62 ] To established which fees were incurred after the feasibility study stage, in the actual design based on the faulty recommendation, the Court, somewhat arbitrarily, assesses the quantum at half the first invoice [26] , $ 3,620.00 ($7,240.00 ÷ 2), plus $8,424.00, CCU / Comité de demolition, MCCQ at 80% completion, for a total of $12,044.00. [ 63 ] The conclusion that the Court reaches that the architects should not have continued designing and billing after the inadequate feasibility study and recommendations is supported by the fact that the architects did not bill for their work in conjunction with the preparation of new plans with various options in August and September 2014 and by the fact that they did not inform their client of the wok they were doing. [ 64 ] The Court accepts the testimony of Messrs.

Guerrera and Abatzidis that the August revisions only came to light at the August meeting and that they had been unaware of them up until then.

b) Legal fees for the acquisition [27] of the southern lot $10,522.25 [28]

c) Land surveyors fees related to the preparation of a localisation certificate for the southern lot $862.31 [29] [ 65 ] These do not constitute prejudice resulting from the fault. In any event, whether he developed the land in some way or sold it, Mr. Guerrera could not avoid the costs of establishing his title to his part of the small lot.

d) Taxes related to the property and lost of licences and permits $34,460.19 [ 66 ] These are essentially carrying costs associated with the ownership of the immovable up until mid-2015. Mr. Guerrera sold the immovable more than one year late in October 2016 for $550,000.00 [30] ; he had acquired it for $350,000.00 [31] . [ 67 ] Would he have sold the property for less, if he had known earlier than August 2014 that the project he had planned on the basis of its feasibility was not feasible as planned? If he had sold it sooner would his net return have been more advantageous? The Plaintiff has not met his burden of proof on this particular head of damages.

e) Trouble and inconvenience associated with the pursuit of a futile project $20,000.00 [ 68 ] As a concept, this is a valid claim. If the non-feasibility of the project as recommended and chosen had been known earlier, Mr. Guerrera would have not spent time on it: he would have done something else, with or without financial gain or loss. But some of his time and energy was used up needlessly. The amount claimed is exaggerated: he did not spend so much time. He was angry and frustrated, but his disappointment is not that dramatic. Somewhat arbitrarily, the court awards $2,500.00. [ 69 ] In

summary, total damages particularised $83,854.43; total damages awarded: $14,294.00. Both parties being successful in part, each party will pay its own costs. [ 70 ] The Courts thanks the attorneys for their able representations. BY THESE REASONS, THE COURT: GRANTS the Demand in part; CONDEMNS the Defendant to pay the Plaintiff the amount of $14,294.00 together with interest at the legal rate together with the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from May 12, 2017; EACH PARTY paying its own costs.

__________________________________ DAVID L. CAMERON, J.C.Q. Me Armand Elbaz Me Serena Trifiro COLBY MONET s.e.n.c.r.l. Attorneys of the Plaintiff Me Nicolas Robichon DONATI MAISONNEUVE Attorneys of the Defendant Date of hearing: October 24 and 25, 2018