2015 QCCQ 1139, 2015 QCCQ 1139

Liu c. Wang 2015 QCCQ 1139 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-129482-115 DATE: February 12, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ CHAO JAN LIU […] Ville Saint-Laurent, Qc […] JIAN ZHANG […] Ville Saint-Laurent, Qc […] ZHOU ZHANG […] Laval, Qc […] Plaintiffs v.

PING WANG […] Montréal, Qc […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Chao Jan Liu, Jian Zhang and Zhou Zhang, carried out work at a property administrated by the Defendant, Ping Wang, owned by 9245-8264 Québec Inc. in June 2011. [ 2 ] They sue for the payment of part of the contract amount, $ 800, and they make a claim totalling $2,540 related to alleged changes to the work and damages relating to difficulties in procuring and transporting materials. [ 3 ] The total amount sued for is therefore $ 3,340. [ 4 ] This action gave rise to a judgment rendered by my colleague Martine L.

Tremblay, J.C.Q. at the hearing held January 27, 2014. [ 5 ] Judge Tremblay’s judgment disposed of two matters.

Firstly, given the absence of the Defendant and the failure on the part of the Defendant to amend his cross-demand to reduce it from the stated amount of $ 10,080 to the limit of the Small Claims Division, at that time $ 7,000, Judge Tremblay dismissed the cross-demand. [ 6 ] Secondly, having taken cognisance of the exhibits and the testimony of Jian Zhang, it was held that the Defendant Ping Wang could be held personally responsible for the contract obligations and he was condemned to the full amount claimed on the basis of the

summary evidence given before the Court on that date. [ 7 ] I allowed the revocation of this judgment at the hearing before me on January 5, 2015 and annulled that part of the judgment consisting in the condemnation against Ping. [ 8 ] Mr Wang confirmed to me, however, that he had no intention of amending his cross-demand and accepted the fact that it had

been dismissed. [ 9 ] I proceeded therefore only on the merits of the principal action. [ 10 ] A further complication arises because Mr Wang raises in his contestation two distinct defences. The first is that there is no legal connection between himself and the Plaintiffs, the contract having been entered into between the owner of the building 9245 9264 Québec Inc. and Jian Zhang. [ 11 ] Secondly, the Defendant raises a judgment that was rendered on June 28, 2012 by another of my colleagues, the honourable Sylvain Coutlée, J.C.Q. in a file of the Civil Division, nº 500-22-188424-124.

The case in the civil division. [ 12 ] In that case, the owners of the property, 9245 9264 Québec Inc., and Zhong Wei Wang sued Jian Zhang for damages in the amount of $ 13,080. [ 13 ] The allegation in that case was that the building in question was owned jointly by Québec inc. and by Zhong Wei Wang and, pursuant to the same contract that is in issue in the present matter, the work was improperly done and damages are owed in the amount of $ 13,080. [ 14 ] Curiously, the allegation is made in paragraph 4, that the Plaintiff paid the two payments of $ 800 that are mentioned in the contract, one of which is claimed by the Plaintiffs against the Defendant Ping Wang. [ 15 ] Mr Justice Coutlée’s judgment, allows damages but only in the amount of $ 2,000. [ 16 ] The minutes of the trial, in which the judgment is contained, refer the reader to the grounds expressed orally and recorded numerically. [ 17 ] I had access to those reasons through “Court Log”, the numerical recording system that operates in all proceedings.

I learned from the reasons given by Mr Justice Coutlée that Québec inc. and Zhong Wei Wang had made two payments of $ 800 each, therefore, two out of the three payments of $ 800 that are stipulated in the “Agreement on labour fees and renovation project”. A translation of this document is available in the present file, in two versions (D-2 and P-2). In both of these translations, it is clear that the total contract price was $ 2,400 and it is alleged, in my case as well, that only the first two payments of $ 800 each were paid.

The Plaintiffs’s claim for the third payment of $ 800. [ 18 ] Be that as it may, Mr Justice Coutlée, having confirmed payments totalling $ 16,000, ordered that this amount be given back, because of a clause in the contract that provided for the reduction of the contract price by $ 100 per day of delay, if the contract is not performed on time. [ 19 ] Justice Coutlée came to the conclusion on the evidence that he heard that the Defendant in his case, Jian Zhang, had not only delayed the project but had abandoned the work before its completion.

He, therefore, reduced the contract price by $ 1,600 and he awarded an additional $ 400 as an arbitrary amount of damages in favour of the Plaintiffs, because of the necessity of carrying out certain demolition work prior to completing the project. [ 20 ] I am therefore faced with the unfortunate situation where there is a contradiction between the judgment I have revoked for other reasons, namely that Mr Wang is a party to the contract while Mr Justice Coutlée’s finding is that the parties to the contract were 9245 9264 Québec Inc. and Zhong Wei Wang. [ 21 ] Mr Ping Wang was not a party to that judgment.

It therefore does not establish against him a res judicata . [ 22 ] In other words, because he was never part of the case, except as a witness; the findings of the case are not binding upon him. [ 23 ] It is however quite odd that he should be considered a party to the contract, when an other judgment of this Court has not come to that conclusion in a case where he was a witness. As well, Jian Zhang was the Defendant in that case and there is no finding in the judgment that the other Plaintiffs in my case, Chao Jan Liu and Zhou Zhang, are parties to the contract.

ISSUES [ 24 ] To decide the present case, I must determine whether all of the Plaintiffs are parties to the contract or only Jian Zhang, whether Ping Wang is a party to the contract or simply a representative of Québec Inc. [ 25 ] If Mr Wang is a party to the contract, I must determine: 1) Whether he should pay the $ 800 payment, which is the third payment provided for in the contract; 2) Whether the Plaintiffs or any of them is entitled to be paid money for extra work contracted in addition to the works that are mentioned in the contract document. [ 26 ] The Court heard evidence on the merits.

Because there is no written document pertaining to any of the extra claim, it becomes very difficult for the Plaintiffs to prove there was any agreement for any extra work to be carried out. The evidence on that point was entirely inconclusive and the testimony was not sufficiently credible to fulfill the Plaintiffs’ burden of proof.

[ 27 ] As for the claim for the obligation of transporting materials or delays in procurement, the evidence of Ms Zhang is essentially that the materials were delivered to the garage of the building and it was difficult to move them to the third floor where the renovation had to take place, because the elevator was broken. [ 28 ] But there is no demand letter, asserting this at the time it occurred and calling upon the owners of the building to rectify the problem. [ 29 ] Mr Wang asserts, in his testimony, that he had no knowledge that there was any problem during the time of this contract with the elevator. [ 30 ] Finally, the assertion that Mr Wang is a party to the contract is not adequately proved.

Firstly, in the translation of the Agreement produced as P-2, in the place where the signatures are written at the end of the contract, the inscription is “Signature du représentant de la

partie A: Ping Wang et Signature du représentant de la

partie B : Jian Zhang”.

There are the names Jian Zhang, Chao Jan Liu et Zhu Zhang, with their phone numbers written below this, but there is no indication that anyone other than Jian Zhang is a party represented by Jian Zhan on the signature line. [ 31 ] Though Mr Wang is mentioned in the heading of the contract along with 9245 9264 Québec Inc., the inscription on the signature line would indicate that he is simply a representative, not a party acting in his own interest. [ 32 ] The evidence also establishes that Mr Wang was in fact acting in the capacity of a manager of the owners of the building and he asserts in his testimony having told Mrs Jian Zhang and the others who were working with her that he was the representative of the owner, not the owner. [ 33 ] There is therefore sufficient doubt as to whether Ping Wang is a party to the contract and, the Plaintiffs having the burden of proof on that matter, the Court finds that the action cannot succeed. [ 34 ] Its stands to reason, as well, that if Mr Wang was in fact a party having rights under the contract, he would have been part of the group of Plaintiffs who proceeded before Mr Justice Coutlée. [ 35 ] He was called as a witness and it would have been very strange indeed if he had collaborated in the case as a witness, if in fact, the lawyers acting in the file had excluded him as one of the potential beneficiaries of the judgment they were seeking. [ 36 ] On the whole, the Court finds that the Plaintiffs failed to make their case.

The contract documents do not establish the status of the Plaintiffs Chao Jan Liu and Zhou Zhang.

The Plaintiff Jian Zhang is a party to the contract, but she has not established that Ping Wang is to be considered a party to the contract in the circumstances where he was acting as a representative. [ 37 ] Finally, the Court, in its previous judgment issued by Mr Justice Coutlée, reduced the contract price because of delays to the work or the abandonment of the work and it would be, at the very least, contradictory for the Court, through my judgment, to award the payment of part of the contract price that was not recognized in the earlier case, against someone who, it would seem, is not a party to the contract. [ 38 ] Given, however, the confusion in this rather complex matter, the Court will not award costs. [ 39 ] Mr Wan Ping did not seek the Court’s approval for a mandarin translator, although he brought a translator on his own, whom the Court was able to authorize to conduct translation at the hearing. [ 40 ] Even though the procedure of prior authorization of the translation was not followed, the Court can authorize translation at the hearing and has requested that the fees for Lao Gao Fang be paid by the Minister of Justice.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiffs action; AUTHORIZES the Minister of Justice to pay, to the translator, Mr Lao Gao Fang, his fees for the translation services provided during the hearing; THE WHOLE without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 5, 2015