2015 QCCQ 11050, 2015 QCCQ 11050

Débouchage et nettoyage Action inc. c. Logan 2015 QCCQ 11050 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-139127-130 DATE: October 29, 2015 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ DÉBOUCHAGE ET NETTOYAGE ACTION INC. Plaintiff v.

MAUREEN LOGAN and JAMES BOYCE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims from the Defendants $2,597.49 representing the unpaid cost to bring machinery and gravel to Defendants’ residence to start work on the sanitary and storm sewers, located on Defendants’ property. [ 2 ] Defendants deny owing any amount to the Plaintiff, arguing that no contract was concluded between them, requiring the Plaintiff to do work on their property.

THE FACTS [ 3 ] At the time when Defendant Boyce is informed by the City that the sewer connexions must be corrected, the Plaintiff was working in the neighbourhood. Mr. Boyce met with Plaintiff’s representative to obtain a quote for the work to be done. [ 4 ] On December 6, 2011, the Plaintiff provides to the Defendants a quote, estimating the work to cost between $2,800 and $3,500, plus tax [1] . André L’Écuyer, Plaintiff’s President, adds that a second excavation may be required at an extra cost of $1,200. [ 5 ] On the same day, Mr.

Boyce replies in an email that the Plaintiff can proceed with the work and he agrees to pay the amounts quoted [2] . He annexes to his email a copy of the quote. He also adds that he will arrange for his son to pay the deposit to the Plaintiff. [ 6 ] A series of emails is exchanged between the parties regarding the deposit, that the Defendants had not paid. Notwithstanding this, Mr. L’Écuyer informs Mr. Boyce that on December 19, 2011, the machinery and gravel will be delivered for the work to start the next day. [ 7 ] On December 19, 2011, Mr.

Boyce gives a check to the Plaintiff of 420 $, representing the amount of the deposit [3] . [ 8 ] Having the check in hand, the Plaintiff unloads the machinery and the gravel on Defendants’ lawn and driveway. [ 9 ] When the Plaintiff is advised by his bank that a stop payment has been put on the check by Mr. Boyce, it retrieves the machinery but leaves the gravel on Defendants’ lawn. [ 10 ] Asked by the Court the reasons justifying the cancellation of his check, Mr. Boyce states that it was because Mr.

L’Écuyer told him on the phone that the amounts quoted were only estimates. [ 11 ] In the spring, the Defendants had the work done by another contractor. [ 12 ] The Plaintiff claims $2,597.49 representing the cost to deliver and retrieve the machinery and the value of the gravel. THE ANALYSIS [ 13 ] The Court does not find credible the explanation given by Defendant Boyce justifying the cancellation of the contract.

Moreover, the fact that a cheque was given to the Plaintiff on the day the machinery and gravel were delivered, certainly contradicts Defendant Boyce’s argument. [ 14 ] The Court concludes, from his testimony, that Mr. Boyce decided to cancel the contract when he learned from the City that the deadline to obtain a subsidy for the work to be done on the sewers was not December 2011, but that he had until the spring 2012.

[ 15 ] In any event, the contract concluded between the parties is a contract of enterprise governed by

Article 2098 and following of the Civil Code of Québec . In accordance with

Article 2025, the Defendant was at liberty to unilaterally resiliate the contract with the Plaintiff. [ 16 ] However, in such circumstances, the Defendants had the obligation to pay for the work performed at the time of the resiliation of the contract as provided in

Article 2129 CCQ: Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay advances he has received in excess of what he was earned.

In either case, each party is liable for any other injury that the other party may have suffered. [ 17 ] The testimony of André L’Écuyer and Plaintiff’s employee, Anthony Coin has convinced the Court that Plaintiff’s claim is justified, as appears from the invoice issued by the Plaintiff of $2,597.49 [4] . For these reasons, the Court: grants Plaintiff’s action; condemns the Defendants, Maureen Logan and James Boyce to pay to the Plaintiff, Débouchage et Nettoyage Action Inc., the sum of $2,597.49 with interest at the legal rate, plus the additional indemnity provided in

Article 1619 of the Civil Code of Quebec , as of the date of the Demand letter [5] , January 9, 2012; WITH FEES , in the amount of $139, representing the judicial stamp of the application. __________________________________ DIANE QUENNEVILLE, J.C.Q . Date of hearing: September 14, 2015