2013 QCCQ 10080, 2013 QCCQ 10080

Diotte c. Rénovation Sonic inc. 2013 QCCQ 10080 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-22-192257-122 DATE: September 6, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ MÉLANIE DIOTTE -and- VINCENZO TANGREDI Plaintiffs v. RÉNOVATION SONIC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs Mélanie Diotte and Vincenzo Tangredi are claiming an amended sum of $45,260.96 from Defendant, Rénovation Sonic inc. (“Sonic”), representing the cost to complete the renovations of their home and to correct the alleged deficiencies. They are also claiming damages. Sonic contests the action. THE QUESTIONS IN LITIGATION: 1 . Was the contract resiliated and if so, by which party? 2 . What is the value the work carried out by Sonic? 3 .

Did Sonic receive Plaintiffs’ demand letter? 4 . Are Plaintiffs entitled to the compensation they are seeking? THE EVIDENCE: [ 2 ] Plaintiffs, who live in a large upper scale home on the West Island, decided in 2011 to finish their basement and include a bedroom and bathroom. They also wanted the basement staircase moved and replaced by a circular one. They contacted Sonic, a company recommended by their structural engineer. [ 3 ] Sonic sent Plaintiffs an e-mail listing the renovations to be carried out and the approximate cost.

This was followed by what the parties referred to as the “actual contract” for $43,861.13 including taxes, which reads: “bathroom renovation, basement renovation and build stairs [1] ”. Plaintiffs were to provide the bathroom appliances as well as the ceramics, grout, etc.. Another contract was concluded for the structural work amounting to $9,000, including taxes. [ 4 ] The work began at the end of July 2011. Plaintiffs claim the job was to be completed in three to four weeks, a fact Sonic disputes. When Sonic quit on October 20, 2011, the work was not completed.

There were discussions regarding Sonic’s return to finish the job but no agreement was reached. [ 5 ] Mrs. Diotte, who ran her business from her house, remained at home during the renovations. She complained about Sonic’s

employees having abused the ground floor bathroom, leaving it in an unsanitary condition, arguments between the employees and the respiratory problems she developed because of the dust. [ 6 ] Plaintiffs complained about property damage: a marble table and the vanity top of the sink were broken during the renovations, the garage door was damaged and there were scratches on the stairs. The dining room floor began to creek, arch and become wavy.

For Plaintiffs the floor damage resulted from the installation of beams in the basement to support the new stairway, a fact Sonic denied. [ 7 ] Plaintiffs also complained about defective work, including a toilet not having been centered, a ring left on the tiles after the bathtub was moved and a furnace room drain covered by tiles.

They allege the stairway to the basement was not protected nor was the air conditioning and heat vent system. [ 8 ] The project was left unfinished: a portion of the kitchen floor had not been tiled; a number of items had not been completed including a cupboard, part of the paint job, the brick wall, grouting and the sealer in the bathroom. Plaintiffs also contend some belongings were missing and the debris and trash needed to be removed. [ 9 ] Sonic admitted the job was not finished. It was prepared to return to finish the project but ultimately refused, given the outstanding amounts Plaintiffs owed.

THE APPLICABLE LEGAL PRINCIPLES: [ 10 ] The contract concluded by the parties is a contract of enterprise within the meaning of

article 2098 of the Civil code of Quebec (C.C.Q.). [ 11 ] The contractor chooses the method of executing the work [2] but, as a counterpart, he assumes responsibility for the work done. He must act in his client's best interests, with care and diligence. He also must provide the client with any useful information regarding the task he has undertaken to perform [3] . [ 12 ] Where there is an obligation of result, as in the present case, a contractor must provide the expected result [4] .

To exonerate himself, he must show that his failure to execute his obligations stems from a superior force, namely an unforeseeable event [5] or the client’s actions. [ 13 ] The contractor must assure that the work performed is in conformity with the contract. He is obliged to act according to the rules of the trade and must respect the techniques and approved construction practices that assure quality work.

Where it is not acceptable, the client has recourse against his contractor for defects in the work done [6] . [ 14 ] When the client notes the contractor's failure to execute his obligations, the client must put the contractor in default, requiring him to respect his contractual obligations and carry out the work in question, before having it done by another [7] .

A demand letter is not required where the contractor clearly indicates he does not intend to execute his obligation or where there is urgency and he fails to immediately perform his obligation [8] . [ 15 ] The client can claim damages that are foreseen or could have been foreseen when the contract was concluded. Only real and direct damages are admissible. [ 16 ]

Article 1590 C.C.Q. stipulates that the obligation must be performed in full, properly and without delay. In the absence of any delay stipulated in the contract, the contractor must carry out the work with reasonable diligence. [ 17 ] The client's obligation is to pay the price agreed upon by the parties. The price is fixed by the contract, by usage or by law or on the basis of the value of the work carried out or the services rendered [9] .

Article 2109 C.C.Q. stipulates that where the price is fixed by the contract, it cannot be increased or decreased unless the parties agree to such a change in price. [ 18 ] However, extras or additional work, which was not initially foreseen nor part of the cost of the contract, results in supplementary costs. The same occurs when there are modifications in the conditions originally foreseen [10] . [ 19 ] The client or the contractor can resiliate the contract.

However, in so doing the client must pay the contractor, in proportion to the agreed price, the actual costs and expenses and the value of the work performed before the end of the contract. The contractor, for his part, must repay any advances he has received in excess of what he has earned [11] . [ 20 ] These principles are applicable in the present case. ANALYSIS: The resiliation of the contract: [ 21 ] On October 20 th , 2011 Mr. Lapointe, Sonic’s owner, and Mr. Tangredi argued over the electrician’s charges and the state of the ground floors. Their argument escalated. Mr.

Lapointe, claiming Sonic does not pay the electrician’s fees, told his employees to pack up and leave.

[ 22 ] On October 21, 2011, Sonic sent Plaintiffs an e-mail outlining the balance owed. Sonic then offered to complete the job for $6,400, namely half the balance it claimed was payable but its offer was refused. Mrs. Diotte offered $3,500 to have the work finished but wanted all extras included. Each party pointed to the other as the reason the contract ended. [ 23 ] Irrespective of which party is responsible for the job ending before its completion,

article 2129 C.C.Q. foresees that the client must pay the value of the work performed before the resiliation of the contract while the contractor must repay any advances he received in excess of what he has earned. [ 24 ] Plaintiffs invoked

article 2126 C.C.Q., which states that a contractor cannot resiliate the contract except for a serious reason and not at an inopportune time; otherwise, he is liable for any injury caused to the client. [ 25 ] Sonic explained that it left since it was not responsible for the electrician’s fees and Plaintiffs refused to pay for that service. Sonic considered Plaintiffs owed it more than $12,000 but they wanted Sonic to complete all the extras at no additional cost. [ 26 ] The evidence as to the reason for the resiliation of the contract is contradictory.

However, not only must the contractor have a serious reason to end the contract but he also cannot resiliate it at an inopportune time [12] . [ 27 ] Plaintiffs have not established that they were placed in a difficult situation. They immediately hired one of Sonic’s ex- employees as well as another contractor to finish the work and correct the alleged defects.

There is no evidence Sonic is responsible for any injury to Plaintiffs resulting from the resiliation. [ 28 ] As indicated above, when a resiliation occurs, the value of the work performed must be determined as well as what amounts, if any, are owed by either party. The cost of the services rendered: [ 29 ] The first contract concluded with Plaintiffs was for $9,000. The price of second contract, namely $43,861.13, was reduced to $35,000 plus tax for a total of $39,873.75 since the utility stairs were not constructed. The two contracts come to $48,873.75.

Plaintiffs have paid $37,000. [ 30 ] Sonic maintains it is entitled to the cost of its extras.

After taking into account the applicable deductions, it calculated the amount owed as follows: The amount of the two contracts $ 48,873.75 Agreement re structural wall and beam on 1st floor$ 3,417.75 $ 3,417.75 Additional services rendered ($4,000 plus taxes) $ 4,557.00 Total: Payments $ 56,848.57 $ 37,000.00 Cost of pot lights 781.87 Services not completed ($4,500 plus taxes) $ 5,126.63 Total owed: $ 13,940.07 The extras: [ 31 ] Sonic seeks $3,417.75 for the work involving the installation of a structural wall on the first floor.

Sonic also seeks $4,557 for the following extras: 1) the bathtub and plumbing installation 2) assembly of the vanity 3) construction of gyproc box for indirect lighting 4) rounding of the staircase 5) changing the door location by two feet 6) installation of a brick wall 7) construction of a shelf over the fireplace 8) repainting the bathroom and bedroom 9) duct work in the structural wall. [ 32 ] Mr. Lapointe maintains he advised Mr. Tangredi before working on the installation of the structural wall the cost would be $3,000 plus tax ($3,417.75) and an agreement was reached.

As for the remainder of the extras, which Sonic values at $4,557, Mr. Lapointe admitted he had not provided a price beforehand. [ 33 ] Since the contract was a fixed price,

article 2109 C.C.Q. requires that the parties agree to any change in price for extras. The contractor, claiming the cost of the extras, has the burden to prove that such an agreement took place [13] . [ 34 ] Plaintiffs deny there was any agreement regarding the extras. The Court prefers Sonic’s position. Sonic’s owner was forthright. He admitted to damages, deficiencies and the fact the job had not been completed. He did not attempt to claim Sonic had obtained an agreement on all the extra work performed.

He admitted that for the nine items in the basement, he had not discussed the cost with Plaintiffs. [ 35 ] The Court concludes Plaintiffs requested and accepted an extra charge for the structural work on the first floor. As for the other additional services, although Plaintiffs requested the work, Sonic did not provide a price prior to doing the work, claiming Mr. Tangredi

said the parties would work it out afterwards. [ 36 ] Given the absence of any agreement as to the cost to do the various jobs in the basement, Sonic bears the burden of establishing the value of this work. Sonic provided no evidence in this regard. Therefore, in accordance with

article 2106 C.C.Q., the Court does not include the cost of the extras in the basement in determining the cost of the contract [14] . Sonic is entitled only to $3,417.75 for the structural work. The percentage of work done: [ 37 ] Sonic considered the project was 90% finished. Sonic estimated the value of the remaining work at $6,750, based on the number of workers and their daily cost, but added it does not charge that amount.

Plaintiff, on the other hand, claimed only 50% of the work was done. [ 38 ] Sonic admitted the work had not been finished and enumerated what remained as: finishing and washing the brick wall, finishing the grouting and silicone in the bathroom, painting the plastered parts of a wall, adding cupboard shelves, tiling part of the kitchen floor, repairing the furnace room floor and cleaning. [ 39 ] The Courts have held that when the parties propose different percentages with respect to the advancement of the work in relation to the total cost of the contract, the burden of proof falls on the contractor [15] . [ 40 ] Plaintiffs attempted to evaluate the work that was done.

However, Plaintiffs are not experts in the field of construction. They did not present any expert report to establish the value of the completed work and the cost to finish the project [16] . Their global evaluation remains imprecise [17] and their evidence insufficient. [ 41 ] Plaintiffs have claimed $5,000 to complete the job. The Court adopts this figure which was Plaintiffs’ actual cost to finish the project. Moreover, this sum is close to Sonic’s estimate, namely that there remained 10% of the work to do.

The value of the work performed: [ 42 ] The Court concludes the cost of the project comes to $52,291.50 including the cost for the structural wall and beam on the first floor. Having concluded that the cost to finish the job is $5,000, the value of the work done by Sonic is $47,291.50. Sonic, to date, received only $37,000. Plaintiffs owe Sonic $10, 291.50 The demand letter: [ 43 ] Plaintiffs sent Sonic a demand letter dated November 3, 2011 (P-10) requiring it to finish the renovations, fix the defects and pay Plaintiffs $11,000 for damages Sonic allegedly caused [18] .

This letter was served by bailiff, who left it in the mail box outside Mr. Lapointe’s home. [ 44 ] Mr. Lapointe wished to submit a letter dated December 16, 2011 (D-5), in which Sonic’s attorney states that his client did not receive a copy of the demand letter and is unaware of its contents. Mr. Lapointe also wanted to testify on this matter. [ 45 ] Plaintiffs’ attorney objected to the admissibility of Sonic’s D-5 letter and to Mr.

Lapointe’s testimony, claiming the bailiff’s attestation of service is an authentic act in virtue of 2821 C.C.Q. and a motion in improbation of the impugned document is required to have it declared a forgery or falsified. The letter D-5 and Mr.

Lapointe’s testimony was admitted under reserve of the objection. [ 46 ] In Allstate du Canada vs Bardos et al. [19] , the Court acknowledged that a bailiff’s service in a mailbox was made in accordance with the law but held that evidence is admissible to establish that a party had no knowledge of the proceedings that were served [20] . [ 47 ] In the present case, the Court considers the demand letter was legally served on Sonic but it nevertheless had the right to testify as to its knowledge of the letter.

However, it is not necessary to determine whether Sonic is responsible for its failure to obtain the demand letter. The issue surrounding the requirement of a demand letter can resolved in virtue of

article 1597 C.C.Q.: A demand letter is not required when a contractor indicates he does not intend to execute his obligation. [ 48 ] Sonic advised Plaintiffs, by letter dated November 7, 2011, that, in light of Plaintiffs’ refusal to make any additional payments and given Plaintiffs’ accusations, Sonic would no longer continue to render services to Plaintiffs.

The Quantum of Plaintiffs’ claim: [ 49 ] Plaintiffs are claiming the cost to complete the renovations as well as damages for the alleged defects, broken items, removal of debris, goods purchased that were allegedly covered by the contract and damages for stress, pain and suffering. Their original claim of $11,000 is now for $45,260.96, which is set out as follows:

a) Replacement of the ground level flooring : $15,275.

[ 50 ] Plaintiffs presented a quote for $15,275 [21] to replace the entire flooring on the main floor. They claim that as a result of the installation of support beams in the basement ceiling, which was allegedly jacked up, the floor in the dining room, above the placement of the beams, began to crack and wave. Plaintiffs say because of an open concept, the entire ground level floor must be replaced. [ 51 ] Sonic maintains the floors were warped and damaged due to humidity before it began the project and they did not squeak. Despite denying responsibility, Mr.

Lapointe tried to fix the problem but was unsuccessful. [ 52 ] The cause of the floor damage has not been established. Plaintiffs point to Sonic as having created the problem while installing beams in the basement ceiling. However, no expert witness was presented to provide such proof [22] and Sonic maintains the damage was a preexisting condition. Given the contradictory evidence, Plaintiffs have not met their burden of proof of establishing Sonic’s responsibility for the floor damages.

b) Visual and aesthetic damages caused to basement bathroom : $5,000. [ 53 ] Plaintiffs are claiming $5,000 since their toilet and lighting are not centered. Sonic contends that after the plumbing was done, Plaintiffs changed the size of the shower several times. When the shower walls were finally installed, they encroached on the existing space, such that the toilet and lighting were no longer equidistant between the walls.

Plaintiffs deny having changed the shower dimensions. [ 54 ] Sonic did not submit any plans to show the concerned area decreased in size following the modifications Plaintiffs allegedly requested. Sonic has the responsibility of constructing according to the rules of the art and, having installed structures which are not centered, have failed to meet their obligations. Although Plaintiffs have not established the cost to rectify the situation, given the photographic evidence of the inadequate work that was done, the Court, in its discretion, grants $1,500 for the existing visual damages.

c) Replacement of marble table and HVAC : $1,000 and $500 [ 55 ] Plaintiffs are seeking $1,000 as compensation for a marble table that was broken. Sonic admits to the damage and agrees to pay the amount sought. [ 56 ] As for the heating, ventilation and air condition system (“HVAC”), Plaintiffs contend that the system was not protected during the renovations and as a result the coil became dirty and the system stopped working. Plaintiffs are asking $500 for the corrective measures that must be taken. [ 57 ] Plaintiffs did not present any expertise with respect to the cause of the damaged HVAC system.

They also failed to present any documentation to establish the cost to carry out the repair that was allegedly required. Therefore, no damages are awarded.

d) Bathroom vanity glass countertop : $1,500 [ 58 ] Plaintiffs claim the glass top of a vanity was broken during the renovations and presented a bill to show the cost of the vanity was $6,954.75. They estimated the cost of replacing the top at $1,500. [ 59 ] Plaintiffs failed to produce an estimate regarding the replacement cost and accordingly, in the absence of any evidence in this regard, no damages are awarded.

e) Missing Belongings : $500 [ 60 ] Mr. Tangredi testified that he provided 2 rakes, 3 shovels and 2 hoses to Sonic’s employees and these items are missing. Mr. Tangredi claims to have replaced all these items but provided no evidence of same.

f) Completion of renovation work in accordance with contract : $5,000 [ 61 ] Plaintiffs testified that a number of items had not been completed. Sonic does not dispute the fact the renovations were not finished. In fact, it provided a more detailed list of what remained to be done than that indicated by Plaintiffs. [ 62 ] Mr. Tangredi testified that Plaintiffs paid $18,000 to complete the project of which $11,000 was for the labour carried out by Yves Gaudreault, a former employee of Sonic and Raymond Chabot, another contractor.

Plaintiffs, in their introductory motion, claim a total of $5,000 to complete the work and not $18,000. [ 63 ] Plaintiffs produced a bill from Mr. Gaudreault which totals $2,600 and receipts for material of approximately $2,000. Since Plaintiffs did not pay Sonic to complete the job, they cannot claim compensation for costs they did not incur.

g) Reimbursement of doors, doorknobs, mouldings and other furnishing paid for by Plaintiffs but never installed by Sonic : $1,788.28. [ 64 ] Plaintiffs seek the reimbursement for the cost of the doors and door handles they ordered. Plaintiffs’ Visa statement shows Eximus Sales Consulting paid the bill. Sonic contested the admissibility of the invoice, claiming it emanated from Mrs. Diotte’s

company. However, in virtue of

article 1555 C.C.Q., “payment can be made by any person even if he is a third party with respect to the obligation” . [ 65 ] Sonic claimed five doors were to be installed at a cost of $50 each. The contract provides for the installation of doors where needed and does not limit their price. Plaintiffs are entitled to be reimbursed $1,788.28 for the doors and handles.

h) Damage to garage door : [ 66 ] The garage door did not close properly after Sonic left the premises. The cost of repair came to $138.99. This item is supported by an invoice and is admissible.

i) Trash and debris removal and disposal : $45.57 [ 67 ] Plaintiffs paid to have their trash and debris removed from their premises and substantiated their claim with a bill and receipt for payment. This expense is admitted.

j) Spotlight installation in basement bathroom : $7,013.12 [ 68 ] Plaintiffs, having paid ANJ Electrique $7,013.12 for the electrical wiring of the basement and for spotlights, dimmers, plugs, thermostats, etc.., are seeking reimbursement of this sum. According to Plaintiffs, Sonic was responsible for the electrical invoice and Plaintiffs were to be credited for their payment. [ 69 ] Sonic disputes this fact. According to Mr. Lapointe, Sonic does not pay for the electrician. Mr.

Lapointe explained that Sonic would supply the spotlights and the light fixture in the ceiling but it never undertook to pay the electric bill. [ 70 ] In this regard, Sonic pointed to P-2, which is the quotation for the renovation project and which states: “The quote for the electrical is not included, must get price from electrician.” [ 71 ] The quotation P-2 contains a detailed list of work to be done and items included in the basement and bathroom renovation.

With respect to the bathroom, one of the items is: “add potlights and lighting”. [ 72 ] The enumeration of basement items contains the following: “included are the pot lights to be installed.” [ 73 ] It is clear Sonic is to provide pot lights and lighting but in contrast to other items listed, as for example install tiles, install mirror etc., Sonic is not responsible for the installation of the pot lights. Moreover, the quotation expressly states that the electrical work is not included in the estimated price. [ 74 ] Plaintiffs submit everything was included in their turn key contract.

They contest any reference to items listed in the quotation P-2 to determine what was included but they nevertheless used the same list to support a number of their claims. As indicated at the hearing, parties cannot cherry pick from the quotation’s list of items. [ 75 ] While P-2 is a quotation and P-4 is the contract, P-2 details the content of the contract. Both list the bathroom and basement renovations respectively at $15,000 plus tax and $20,000 plus tax.

P-2 makes no mention of electrical wiring, plugs, dimmers etc. nor is any price assigned to such work and material. [ 76 ] The Court concludes Plaintiffs are to assume the cost of the electrician, with the exception of the cost of spot lights namely $781.77 plus tax for a total of $889.75.

k) Fees incurred to correct defective work by Sonic : $5,000 [ 77 ] Plaintiffs, claiming $5,000 for work done to correct Sonic’s defective work, testified they paid Mr. Gaudreau and Mr. Raymond $5,000. They did not provide any invoice and there is no evidence as to what was done. They have no receipts since they paid cash under the table. As the Court stated in Riccio c. Di Raddo [23] , “Celui qui viole la loi recherché en vain son secours” .

l) Stress, Pain and Suffering : $2,500 [ 78 ] Ms. Diotte is claiming $2,500 for her stress, health problems and loss of income. Plaintiffs contend that the delays involved in the project were unreasonable and dealing with a mess for two and a half months was too much to bear . While Plaintiffs submit that Sonic told them the time to complete the project would be 3 to 4 weeks, Sonic maintains it estimated eight to ten weeks to do the job. It added that it is impossible to do such an extensive project in three to four weeks. [ 79 ] The contract does not specify a termination date.

During the project, Plaintiffs requested several extras, which necessarily add to the estimated time to complete the job. Moreover, contrary to their obligation under

article 1590 C.C.Q., Plaintiffs never advised Sonic, before the project ended, that the delays involved were not acceptable to them. Accordingly, the Court does not consider that Sonic violated its obligations. [ 80 ] Plaintiffs and their family were able to live in the premises and had full use of the main floor and upper level of their house. Mrs. Diotte ran her business from her home and although her husband claimed she had lost income, she presented no evidence of any loss. [ 81 ] Mrs. Diotte complained of one argument between Sonic’s employees.

She claimed the employees were abusing the bathroom but provided no details in this regard and there is no evidence she raised her concerns with Sonic. As for her alleged respiratory problems resulting from dust, no medical proof was presented in support of her allegation. [ 82 ] It is recognized that construction projects result in inconvenience and stress for the inhabitants of the property.

However, more substantial evidence is required than that presented by Plaintiffs for damages to be awarded under this heading. ********** [ 83 ] In sum, the Court concludes that Plaintiffs are entitled to a total of $5,362.59 in damages. Given the value of the work, as established above, and the amount paid, Plaintiffs owe Sonic $10,291.50. [ 84 ] Although Sonic registered a legal hypothec against Plaintiffs’ property, it did not present a cross demand. Consequently, judicial compensation cannot be effected between the amount owed by Plaintiffs to Sonic and Plaintiffs’ claim for damages (article 1673 C.C.Q.).

Sonic will be required to institute the necessary legal action in order to obtain the amount Plaintiffs owe Sonic, in light of above conclusions, unless the parties resolve their differences. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff’s action: CONDEMNS Rénovation Sonic inc. to pay Mélanie Diotte and Vincenzo Tangredi $5,362.59 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since the institution of the introductory motion; THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Me Pierre-Hugues Miller Morency Société d’avocats Attorney for Plaintiff Me Dimitrios Hadjis Hadjis & Hadjis Attorney for Defendant Dates of hearing: June 7 and 10, 2013