2015 QCCQ 8068, 2015 QCCQ 8068

7116284 Canada inc. (Ranco Technology Trading) c. Ricci Sablage au jet inc. 2015 QCCQ 8068 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Civil Division» No: 500-32-144722-149 DATE: September 9, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ 7116284 Canada Inc., doing business under the name of Ranco Technology Trading Plaintiff v.

Ricci sablage au jet inc. -and- Ricci lave mobile ltée Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $988.80 from Defendants for faulty workmanship in the execution of a contract for sandblasting and painting of security railings.

The paint started to blister quickly after the work was completed. [ 2 ] Defendant Ricci Sablage au Jet inc. (« Ricci ») denies that its work was faulty and claims that the blistering is due to the fact that the railings were left lying in grass for two weeks after they were painted. [ 3 ] It is admitted that Defendant Ricci Lave Mobile Ltée was not involved in the work and that its liability is not at issue. FACTUAL CONTEXT [ 4 ] In August 2014, Plaintiff retained Ricci’s services to sandblast and repaint two security railings at Plaintiff’s premises.

The work was to be carried out in Ricci’s workshop, requiring the railings to be removed from a concrete porch, transported to Ricci’s workshop for sandblasting and painting, transported back and reinstalled. [ 5 ] Ricci was responsible for transportation, but not for removing and reinstalling the railings. [ 6 ] On or around August 19, 2014, Plaintiff’s representative, Mr. David Gottlieb, inspected the repainted railings in Ricci’s workshop and was satisfied with the quality of the work.

Plaintiff therefore paid the agreed price of $977.29. [1] [ 7 ] On August 22, 2014, the railings were delivered to Plaintiff’s premises by Ricci.

Upon delivery, Ricci’s representatives were instructed to leave the railings lying in the grass, where they remained for approximately two weeks before being reinstalled by Plaintiff. [ 8 ] Quickly thereafter, Plaintiff noted that the paint on the railings was blistering in certain areas and the blistering worsened over the next few weeks [2] . [ 9 ] On October 21, 2014, Plaintiff sent Ricci a letter of demand requesting payment by October 1, 2014 of $977.29, representing the price paid for the work. [3] ANALYSIS [ 10 ] The contract between Plaintiff and Ricci is a contract of enterprise. [4] As such, it obliges Ricci to carry out the work in accordance with usage and good practice [5] and imposes a one-year warranty against any poor workmanship. [6] [ 11 ] Under this warranty, if a defect in the work appears within one year of the acceptance of the work, the contractor is presumed responsible unless it can demonstrate that the defect is due to a fault of the client or that it falls completely outside the scope of the warranty. [7] [ 12 ] In the instant case, Ricci admits that serious blistering of the paint appeared in certain areas of the railings within weeks of completion of the work.

This is clearly a defect in the work for which Ricci is presumed to be responsible. [ 13 ] To avoid liability, Ricci therefore bears the burden of proving, on a balance of probabilities, [8] that the blistering is due to a fault of Plaintiff or that it falls outside of the scope of the warranty. [ 14 ] To meet this burden, the evidence offered by Ricci must be clear and convincing [9] and the alleged facts must not only be

possible, but probable. [10] The Court must determine liability on the basis of the most probable facts. [11] [ 15 ] The Court finds that Ricci has not met this burden of proof for the following reasons. [ 16 ] Ricci alleges that the blistering of the paint is due to the fact that the railings were left in damp grass for two weeks after they were delivered.

Ricci suggests that the prolonged contact with the protein and acids contained in the grass affected the integrity of the paint and caused it to blister, but no evidence was offered to support this assertion other than the general statement of Ricci’s representative. [ 17 ] Plaintiff alleges, rather, that the blistering is due to faulty application. It relies on a letter from Mr.

Joseph Crosson of LPI Inc., consulting engineers, [12] who suggests that a delay between the application of the primer and the colour coat or moisture droplets or dust deposits under the colour coat could explain the blistering as well as an email from Mr. Chris Mapp of Mapp Testing Laboratories Limited [13] who also points to an application problem, but they were not heard by the Court. [ 18 ] All in all, the Court is not convinced, on a balance of probabilities, that the blistering of the paint is due to contact with the grass as suggested by Ricci.

It appears unlikely that paint intended for outdoor railings would be damaged by contact with grass and the Court cannot conclude that this is the most probable cause of the defect. [ 19 ] Ricci has not reversed the presumption of responsibility resulting from the legal warranty against poor workmanship [14] and it must therefore be held responsible for the blistering of the paint on the railings. [ 20 ] Plaintiff has established that the railings must be repainted and it is therefore entitled to an amount equal to that paid to Ricci ($977.29), in addition to the cost of its letter of demand ($11.50), [15] for a total of $988.79.

FOR THE REASONS, THE COURT: GRANTS the action in part against Defendant Ricci Sablage au Jet inc. only; CONDEMNS Defendant Ricci Sablage au Jet inc. to pay to Plaintiff 7116284 Canada inc. $988.79, together with interest at the legal rate and the additional indemnity stipulated in

Article 1619 of the Civil Code of Québec from November 1, 2014; WITH COSTS of $125 representing the judicial stamp of the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: June 11, 2015