2021 QCCQ 5593, 2021 QCCQ 5593

Chine c. Air Specialiste Inc. Anjou 2021 QCCQ 5593 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-706901-180 DATE: June 15, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ GLORIA CHINE Plaintiff v. AIR SPECIALISTE INC.

ANJOU Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Gloria Chine claims $3,575.72, [1] in reimbursement of amounts she paid to Air Spécialiste inc. Anjou (“ Air Spécialiste ”), a company that works in the fields of air conditioning, heating, and refrigeration, in July 2018 for services regarding which she is now completely unsatisfied. [ 2 ] Ms.

Chine states that Air Spécialiste cheated her and took advantage of her distance from Montreal to perform useless and costly work that, at the end of the day, did not solve anything, but instead worsened the condition of her air conditioning units. [ 3 ] Air Spécialiste contests the application and submits that it performed the work required by the plaintiff correctly and on time. [ 4 ] Air Spécialiste faults the plaintiff for voluntarily maintaining confusion regarding the work it performed to avoid paying its last invoice of $509.92 $. [ 5 ] Thus, Air Spécialiste has filed a cross-application and claims that amount from the plaintiff.

IssueS [ 6 ] The Court must answer the following questions: 1. Has the plaintiff established Air Spécialiste’s poor performance of the work and abuse in connection with the related air conditioning units? If so, to what damages is the plaintiff entitled? 2. Has Air Spécialiste proved that it provided the plaintiff with the services corresponding to its unpaid invoice?

BACKGROUND [ 7 ] In the summer of 2018, the plaintiff had the roof of her triplex located at 6845-6847-6849 Louis-Dupire Street, in Montreal, redone. [ 8 ] Because there are three air conditioning units on the roof of the building for the three apartments, the roofer informed her that she would have to retain a specialist to connect the units once the work was finished. [ 9 ] The plaintiff lives in the United States. She asked one of the roofer’s employees to take care of this and get back to her with the information.

The employee in question, Lucie Gemme, made the call and informed the plaintiff that according to the initial estimate provided by Air Spécialiste, reconnecting the two units would cost her approximately $700. [ 10 ] Ms. Chine deemed this price reasonable and called Air Spécialiste’s president, Normand Côté, to confirm the mandate, which was immediately accepted. [ 11 ] On or about July 18, the plaintiff received a call from Air Spécialiste. She was told that the estimate was no longer valid because

an on-site assessment of the situation revealed that the units were in very poor condition and that much more work was required than initially expected. [ 12 ] She was also told that further to attempts made by Air Spécialiste’s technician, the air conditioning unit for the apartment at 6845 was not working.

They suspected that the electronic card was burned and needed to be replaced, which was difficult considering the model of the unit. [ 13 ] The plaintiff says that she understood nothing of the verbal explanations given to her, but that driven by the sole objective of ensuring her tenants’ comfort in view of the excessive heat in July 2018, she authorized Air Spécialiste to proceed with the work, the estimated cost of which was $3,575.72 (P-3). [ 14 ] One month after Air Spécialiste had performed the work, the plaintiff was informed by the tenant in 6845 that the air conditioning was no longer working (P-14). [ 15 ] The plaintiff made a service call to Air Spécialiste, who immediately went on site.

Air Spécialiste communicated with her to inform her that the electronic card installed the month before was no longer working and needed to be changed again. [ 16 ] She understood from the information she was given that the electronic card comes from China and is not found on the Quebec market. The repair could not be done quickly unless she agreed to spend an additional $700 to accelerate the handling of her file. [ 17 ] Simultaneously with Air Spécialiste’s visit, Ms.

Chine was informed by the tenant in 6849 that water leaked into the apartment when she turned her air conditioning on. [ 18 ] The plaintiff again mandated Air Spécialiste, who quickly solved the problem after disassembling and cleaning the air conditioning system. [ 19 ] When she received the invoice for $509.92 for cleaning fees, she paid it, but she then quickly changed her mind (P-4). [ 20 ] The plaintiff told the Court that everything became clear for her at that moment in that she became deeply convinced that she had been swindled all along by Air Spécialiste. [ 21 ] In September 2018, the plaintiff asked her credit company, American Express, to put a stop payment on the amount of $509.92 (P- 19), and retained counsel, who demanded that Air Spécialiste return the amount of $4,335 to the plaintiff (P-2 and P-16). [ 22 ] In no uncertain terms, the plaintiff accuses Air Spécialiste of having taken advantage of the fact that she was not living in Montréal, that she is a woman, and that she must have money since she lives in Los Angeles. [ 23 ] The plaintiff also submits that the air conditioning units for the apartments at 6845 and 6847 were in excellent condition before Air Spécialiste’s involvement.

In short, she accuses the defendant of deliberately breaking her air conditioning units so that it could charge her a totally unjustified price. [ 24 ] She believes that Air Spécialiste misappropriated the electronic card of 6845’s air conditioning unit so that it could charge her for a new one. [ 25 ] She also suspects that Air Spécialiste wilfully sabotaged 6849’s air conditioning unit because the breakdown occurred in the hours following the presence of Air Spécialiste’s technician on her roof. [ 26 ] On September 28, 2018, Air Spécialiste responded to the plaintiff’s formal notice and clarified its account of the events (D-5). [ 27 ] On October 10, 2018, the plaintiff instituted her proceeding before the Small Claims Division.

ANALYSIS AND JUDGMENT [ 28 ] First, the Court recalls the civil law rules of evidence. [ 29 ] A person seeking to assert a right must prove the facts on which his or her claim is based through evidence that renders the existence of the facts underlying the claim more probable than their non-existence. [2] [ 30 ] While the evidence adduced need not lead to absolute, scientific or mathematical certainty of the facts alleged, it must be sufficiently clear and convincing to satisfy the balance of probabilities test, to render the fact in dispute probable. [ 31 ] If the evidence is not sufficiently convincing or if it is contradictory, and the judge cannot determine where the truth lies, the party that has the obligation of convincing the court of the merits of his or her claim will lose, in whole or in part. [ 32 ] Because each party is asserting a right in this case, they will each have to discharge this burden in turn.

Ms. Chine will thus have to convincingly establish the abuse committed by the defendant, who, in accordance with its cross-application, will similarly have to convincingly establish the services it provided to the plaintiff, for which there is an unpaid balance. [ 33 ] Let us now address the issues. 1. Has the plaintiff established Air Spécialiste’s poor performance of the work and

abuse in connection with the related air conditioning units? If so, to what damages is the plaintiff entitled? [ 34 ] In accordance with

article 2100 of the Civil Code of Québec (“ C.C.Q. ”), Air Spécialiste is bound to act in the best interests of its client, with prudence and diligence.

Depending on the nature of the service to be supplied, it is also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract. [ 35 ] According to the evidence filed in the record, the contract for services was limited to reconnecting two air conditioning units once the roof of the building was repaired. [ 36 ] In the end, however, it appears that the service was much more costly and complex than what was initially estimated. [ 37 ] Even if those two elements are proved with certainty, the plaintiff must still establish that this cost overrun was entirely caused by the defendant’s wrongful conduct . [ 38 ] In her formal notices (P-1 and P-2) and at the hearing, Ms.

Chine stated that the two air conditioning units were in perfect condition before the defendant’s involvement. She submits that the two units had been perfectly disconnected and protected by the first roofer she hired in 2017. In her view, the connection problems reported by the defendant’s employee did not exist. She also says that there was no problem with the electronic card of the unit for the 6845 Louis-Dupire apartment.

Because the defendant never gave her the electronic card, she is certain that the story was fabricated to get money from her. [ 39 ] That demonstration rests exclusively on the plaintiff’s testimony. [ 40 ] Indeed, the Court does not have the purchase agreements for the two air conditioning units, which documents would have revealed the age of the units. [ 41 ] No photographs of the units were filed; it is therefore not possible to assess the state of the air conditioning units before and after the defendant’s involvement. [ 42 ] The plaintiff did not file any maintenance contracts for the air conditioning units or any related invoices, which would have been a way of assessing the state of the units before July 2018.

Moreover, the Court notes that the evidence does not reveal whether any such maintenance contracts existed. [ 43 ] The plaintiff did not call any representative of Mega International inc., the manufacturer of the air conditioning units, to testify.

A representative could have testified at the hearing on the quality and life expectancy of the units in question. [ 44 ] Similarly, the plaintiff did not call any representative of the first roofer hired in 2017, who could have explained the way in which he disconnected and protected the air conditioning units to testify. [ 45 ] Finally, as for the abuse committed by the defendant, embodied by the deliberate breakage of components of the air conditioning units and the theft or breakage of the electronic card, the plaintiff’s evidence rests once again on her mere assertions based on her beliefs, impressions, and the testimonials of dissatisfied clients found on the web (P-20). [ 46 ] The Court is of the view that without corroboration, documents, or photographs regarding the essential points of her application, the plaintiff’s testimony does not withstand the contradictory evidence adduced by the defendant. [ 47 ] Let us examine this more closely . [ 48 ] Supported by contemporaneous notes and work orders (D-1), the president of Air Spécialiste described the poor state of the air conditioning units when his employee went on site: the refrigeration piping was crushed, there was a leak in the pipes, the insulation needed to be redone, there was no suspension under the units, and there was no coolant in the systems, which suggests that they had not been disconnected properly, etc. [ 49 ] Mr.

Côté also explained how fragile and capricious the electronic card of an air conditioner is and said that he was not surprised that it needed to be changed given the age he gives the units. [ 50 ] He said that he gave all this information to the plaintiff when he called her to explain why the first estimate provided remotely was no longer valid. He remembers suggesting that she replace her air conditioner given the difficulty finding an electronic card for the Mega Air model, which neither he nor his suppliers was familiar with. [ 51 ] Contrary to what the plaintiff says, Mr. Côté assured the Court that Ms.

Chine did indeed understand his explanations even if he is not English speaking. Moreover, an explanatory email was sent following their conversation and repeated in detail the nature of the proposed work and its cost. [ 52 ] According to Mr. Côté, Ms. Chine knowingly refused to purchase a new air conditioner and agreed to the recommended work. [ 53 ] Mr. Côté continued his testimony by explaining the many steps he took to successfully find an electronic card compatible with his client’s unit. He also said that he had to rearrange his employees’ schedules to perform the work quickly and satisfy Ms.

Chine, who was putting a lot of pressure on him for the work to be done as soon as possible. [ 54 ] Mr. Côté stated that the defendant performed only the work that was required and necessary. Ms. Chine paid for that work and did not hesitate to call him back when 6845’s air conditioning unit stopped working again.

[ 55 ] Mr. Côté admits that the electronic card that the defendant had installed a month earlier had stopped working. After finding a compatible electronic card from one of his suppliers, Mr. Côté offered to redo the work and provide Ms. Chine with a new electronic card at no charge, but she refused. [ 56 ] Last, Mr.

Côté denies the plaintiff’s allegations of abuse and fraud. [ 57 ] The Court, which much assess the testimony and the quality of the evidence, [3] has no hesitation in accepting the version of the facts presented by the defendant. [ 58 ] Contrary to the plaintiff, who merely states facts without ever proving them, who exaggerates and makes unfounded accusations, Mr.

Côté is precise, solemn, and factual. [ 59 ] The Court is convinced that the defendant acted in the best interests of the plaintiff and provided the services she needed with prudence and diligence. [ 60 ] For these reasons, the plaintiff has not successfully proved the factual and legal submissions, and her action is dismissed. [ 61 ] In view of that conclusion, the Court proceeds directly to the final issue. 2.

Has Air Spécialiste proved that it provided the plaintiff with the services corresponding to its unpaid invoice? [ 62 ] In its cross-application, the defendant claims payment of the invoice dated August 15, 2018, for $509.92, corresponding to the services rendered in regard to the air conditioning unit of the apartment located at 6849 Louis-Dupire (D-3). [ 63 ] In this case, it is not contested that the plaintiff requested the defendant’s services.

It is also admitted that the services were provided to the plaintiff’s satisfaction in that the issue with the water leaking when the unit was in operation was resolved. [ 64 ] In addition, the evidence shows that the plaintiff paid this invoice in full, only to then change her mind a few weeks later and ask her credit company, American Express, to put a stop payment on it. [ 65 ] The defendant established that following American Express’s investigation, $509.92 was debited from the company’s account on November 16, 2018 (D-4). [ 66 ] Mr.

Côté asserts that the plaintiff’s about-face is unacceptable considering the agreement reached and her consent to the performance of the work [4] (D-3 see document regarding the service call). [ 67 ] Using the invoice dated August 15, 2018, Mr. Côté described the services performed. [ 68 ] At the hearing, Ms. Chine explained why she changed her mind. She was convinced that Air Spécialiste had cheated her and was trying to get as much money as possible from her. She wanted to stop the losses. [ 69 ] To this defence, she adds that the cost of $509.92 is excessive.

She claims that all the technician did was wash the air conditioning unit, and she finds it abnormal that it took him 3.5 hours to do so. After comparing the prices of other suppliers, she realized she paid twice as much as necessary. [ 70 ] In short, while the Court does not question the existence of a request for service by the plaintiff or the fact that those services were performed by the defendant, it understands that the parties did not reach an agreement in advance on the cost of the services. [ 71 ] As a provider of services, Air Spécialiste is subject to the legal obligation to inform: 2102 .

Before the contract is entered into, the contractor or the provider of services is bound to provide the client, as far as circumstances permit, with any useful information concerning the nature of the task which he undertakes to perform and the property and time required for that task. [5] [ 72 ] Because the law does not expressly stipulate a sanction for the failure to inform, the Court must seek a fair balance to protect the rights of both parties.

In fact, it must determine the value of the work and weigh it in view of the parties’ breaches of their obligations to inform and of good faith. [ 73 ] At the hearing, Air Spécialiste provided little information on this part of its work. However, its invoice reveals that in addition to cleaning all the components of the unit, the technician had to disassemble it, unblock the drain, and then reassemble the unit.

Also, because the problem involved a leak, the technician deemed it necessary to remain on site for 30 additional minutes to ensure that everything was in order. [ 74 ] Having determined that the nature of the work went beyond mere cleaning, the Court uses its discretion to deduct one hour from the invoice and thus establishes the amount at $407.59. FOR THESE REASONS, THE COURT:

DISMISSES the plaintiff’s action; GRANTS in part the defendant’s cross-application; CONDEMNS the plaintiff to pay the defendant $407.59 with interest at the legal rate of 5% per year, and the additional indemnity under

article 1619 of the Civil Code of Québec , as of December 21, 2018, the date of the cross-application; THE WHOLE with legal costs against the plaintiff of $302, representing the judicial stamp on the defence and the cross-application. _________________ Jo Ann Zaor, J.C.Q. Date of hearing: April 6, 2021