2015 QCCQ 7397, 2015 QCCQ 7397

Consultants BVA ltée c. Thanassoulis 2015 QCCQ 7397 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL « Civil Division » No: 500-32-139635-132 DATE: July 31, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ CONSULTANTS BVA LTÉE Plaintiff v.

PETER THANASSOULIS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Consultant BVA Ltée, represented by Mr. Vassily Verganelakis (« BVA »), claims $7,000 from Defendant for unpaid engineering services relating to Defendant’s project to build a new house in Côte Saint-Luc. [ 2 ] Defendant denies owing anything to BVA.

He claims that his contract with BVA was conditional upon the delivery of structural plans to the city of Côte-Saint-Luc by June 8, 2012 and that it was cancelled retroactively because BVA did not meet that deadline. He also argues that BVA did not complete all of the work invoiced. QUESTIONS IN ISSUE [ 3 ] The case raises the following questions:

a) Was the contract conditional upon the delivery of the structural plans to the City by June 8, 2012 and if so, was it cancelled retroactively?

b) If not, does BVA’s failure to deliver the structural plans to the City by June 8, 2012 bar it from payment of the amount claimed?

FACTUAL CONTEXT [ 4 ] Sometime in 2011, Defendant retained the architect Spiro Christopoulos (the « Project architect ») to prepare the architectural plans of the house he intended to build and to coordinate the project. [ 5 ] In April 2012, Defendant retained BVA as structural engineers to work with the Project architect and to produce the structural plans to be submitted to the City for approval along with the architectural plans. [ 6 ] BVA was introduced to the project at a meeting on April 15, 2012.

Shortly afterwards, BVA provided Defendant with an offer of services defining its services as follows: “For a fee of 7 250. $, we will provide the following services: Building concept and working drawings 1 Coordination and meetings with the architect in order to develop a building concept and to prepare the final drawings. 2 Preparation of detailed working drawings and specifications. Construction phase 1 Make three visits to the site to ascertain that the progress of the work is in general conformity with the drawings and specifications.

If additional visits or meetings are required we will charge you 250. $ per visit. 2 Approve shop drawings. Other services

For other professional services which may be required by you, such as the modification of the working drawings to suit changes, or any other additional work not included, we propose the following hourly rate: Principal: 95.00 $ per hour Technician: 55.00 $ per hour The following items are not included in our fees: 1 All reproduction cost and other out-of-pocket expenses 2.

All applicable taxes” [1] [ 7 ] Defendant accepted BVA’s offer of services on June 2, 2012, adding the following annotation above his signature : “Plans to be delivered to the City of Côte Saint-Luc on Friday June 8 th 2012, for building permit application.” [2] [ 8 ] In the morning of June 8, 2012, Mr. Verganelakis called the Project architect to ask how many copies of the plans were needed for delivery to the City, as the Project architect was to deliver them along with the architectural plans.

He was advised that the plans would not be delivered that day as originally planned, as both the architectural and structural plans needed to be modified to accommodate a design change to the house. [ 9 ] BVA sent the completed structural plans to the Project architect by email at 4:26 p.m. on June 8, 2012 [3] then proceeded to modify them as instructed. [ 10 ] On June 14, 2012, Mr. Hilton Schwartz, Defendant’s father-in-law, contacted BVA to ask that the modified structural plans for building permit application be sent to the printer so that he could submit them to the City.

BVA issued the modified plans and sent them to the printer the same day. [4] [ 11 ] On June 20, 2012, Mr. Schwartz contacted BVA again and requested a PDF copy of the structural plans to be issued for bid purposes, [5] which again were sent to him by email the same day. [6] [ 12 ] On July 2, 2012, Plaintiff invoiced Defendant $7,185.94 ($6,250 plus applicable taxes) for the professional fees incurred to that date, [7] the remaining fees relating to the construction phase of the Project. [ 13 ] In August 2012, Mr.

Verganelakis followed up with the Project architect regarding the status of the project and was advised that Defendant had abandoned it and was going to build a different house based on a different concept. [ 14 ] By letter of demand dated January 17, 2013, BVA requested payment of its fees no later than January 31, 2013. [8] It filed its application soon after, voluntarily reducing its claim to $7,000 to respect the jurisdiction of the Small Claims Division of the Court. ANALYSIS

a) Was the contract conditional upon the delivery of the plans to the City by June 8, 2012 and if so, was it cancelled retroactively? [ 15 ] Defendant’s principal ground of defense is that the Contract was subject to a resolutory condition and that it was cancelled retroactively when BVA failed to deliver the structural plans to the City on June 8, 2012, releasing him of any obligation to pay BVA’s fees.

He relies on the hand-written annotation added when he accepted BVA’s offer of services, which reads as follows: “Plans to be delivered to the City of Côte-St-Luc on Friday, June 8 th , 2012, for building permit application.” [9] [ 16 ] The Court does not follow Defendant’s reasoning. [ 17 ] Parties to a contract can of course agree that the obligations arising out of the contract will be extinguished retroactively upon the realization of a condition. [10] [ 18 ] Here, however, the Court does not see in the additional wording the intent of the parties to create a conditional contract.

On plain reading, the annotation merely provides a timeframe within which BVA was to complete the structural plans. [ 19 ] Even if the Court was to go beyond the plain meaning of the contract, nothing in the evidence suggests an intent to create a conditional contract. [ 20 ] Based on preponderant evidence, the Court concludes that the contract was not subject to a resolutory condition and that it was not cancelled retroactively on June 8, 2012.

b) If not, does BVA’s failure to deliver the structural plans to the City on June 8, 2012 preclude it from payment of the amount claimed? [ 21 ] BVA submits that it provided the services for which it is claiming payment in accordance with the instructions it received. The structural plans for building permit application were completed on June 8, 2012 and would have been delivered were it not for the instructions of the Project architect to modify the plans to accommodate the design change to the house. The plans were modified promptly and sent to the printer on June 14, 2012 as per the instructions of Defendant’s father-in-law. The plans for bid purposes were also remitted on June 20, 2012.

[ 22 ] Defendant denies that there was any change to the design of the house. [11] However, the Court did not find his testimony regarding the change in design credible. It was inconsistent and even contrary to the documentary evidence, [12] and it casts a doubt upon the credibility of his whole testimony. [ 23 ] The Court prefers the detailed and credible testimony of Mr. Verganelakis and concludes, based on preponderant evidence, that BVA was justified to follow the Project architect’s instructions. [ 24 ] Consequently, BVA has proven that it is entitled to the amount claimed.

FOR THESE REASONS, THE COURT: GRANTS the action; CONDEMNS Defendant Peter Thanassoulis to pay to Plaintiff Consultants BVA Ltée the amount of $7,000.00, together with interest at the legal rate and the additional indemnity provided by law from February 1 st , 2013; WITH COSTS in the amount of $218.00 representing the judicial stamp of the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: April 2, 2015