2017 QCCQ 8472, 2017 QCCQ 8472

A4 Architecture et Design inc. c. 7842759 Canada inc. 2017 QCCQ 8472 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Civil Division No: 550-32-023436-162 DATE: August 1 st , 2017 ______________________________________________________________________ BY THE HONOURABLE STEVE GUÉNARD, J.C.Q. ______________________________________________________________________ A4 ARCHITECTURE ET DESIGN INC. Plaintiff v. 7842759 CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, A4 Architecture et Design Inc. ( A4) is an architectural firm which claims an amount of 7 143,51$ from 7842759 Canada inc. ( Canada inc.). [ 2 ] The parties entered, on December 15 th 2014, into a contract for services [1] ( the Contract) relating to the Architecture and interior design of a building known as the British Hotel, located in Gatineau. [ 3 ] The British Hotel is a patrimonial building which is owned by Canada inc. and which was revamped in the last couple of years. [ 4 ] A4 executed and rendered various services for Canada inc., and sent three invoices, two of them [2] being left unpaid by Canada inc – thus the claim by A4 in the Small Claims Division. [ 5 ] Canada inc. contests the claim, stating that the work done by the Plaintiff did not meet professional standards.

Canada inc. also produces a counter-claim, for an amount of 15 000$, stating that various mistakes done by A4’s representatives – as well as faulty supervision - ended up generating Canada inc. delays and additional work and costs. Canada inc. claims that two mistakes were committed, and admitted, by A4’s representative, Ms. Sophie Lamothe. [ 6 ] We will see that Ms. Lamothe admits one of the said mistake, while denying the other. [ 7 ] The Contract entered upon between the parties ended on or around April 8th 2015, as it appears from an email sent from A4’s representative, Ms.

Jenny Lafrance, to Canada inc. [3] QUESTIONS IN ISSUE [ 8 ] Did A4 demonstrate its right to be paid, either totally, or partially, of the outstanding invoices totaling 7 143,51$? [ 9 ] Did Canada inc. demonstrate A4 did not act in accordance with the contract concluded between the parties [4] or that they were negligent, and if so, did Canada inc. demonstrate its right to be awarded damages up to an amount of 15 000$? THE FACTS AND THE EVIDENCE [ 10 ] A4 presented, as their first – and main witness, Ms. Sophie Lamothe. [ 11 ] Ms.

Lamothe is an architect since May 2015 after completing her internship period of 3 years. [ 12 ] She explains that the Contract is set at various hourly rates, depending on the member of the A4 team involved in a particular aspect of the execution of the Contract.

The Contract provides that Intermediate partner architect is billed at an hourly rate of 110,10$, and that a Junior partner architect and an interior designer are billed at an hourly rate of 82,40$. [ 13 ] Said Contract was divided in 4 specific phases, namely the Schematic Design Phase, the Design Development Phase, the Construction Documents Phase and the Construction Phase (contract administration). [ 14 ] It appears that A4 is working on portions of the Schematic Design Phase, which is the first phase, when the Contract is terminated.

[ 15 ] At the time of the arrival of A4 on the project, the plans are already signed and sealed by a previous architect, Mr. Michel Marchand [5] . Construction has already begun when A4 arrives on site. [ 16 ] Ms. Lamothe testifies to the effect that Invoice number 2 [6] , which totals an amount of 6146,85$, is owed to A4 since that invoice refers, in great part, to the interior design of the ground floor of the British Hotel.

She adds that the interior design that she worked on – namely for the ground floor of the building (restaurant) was used by Canada inc. [ 17 ] As for Invoice number 3 [7] , which totals 996,66$, Ms. Lamothe indicates to the Court that such amount is owed since A4 was mandated by Canada inc. to work, amongst other elements, on various design options on a possible interconnecting staircase in the building. She testifies that such work was done and produced to Canada inc. [ 18 ] Ms.

Lamothe testifies that 85% of the invoices are for interior design services, the balance being for architectural work. [ 19 ] It appears that two difficulties are raised during the course of the project. An additional one, as to Ms. Sophie Lamothe’s professional title during the execution of the Contract, is raised during trial. [ 20 ] Those difficulties relate directly to the counter claim produced by Canada inc.

WOOD OR STEEL STUDS [ 21 ] The first difficulty concerns, in particular, fire safety and the use – or not – of new wood studs in the building. [ 22 ] The two versions heard are contradictory. [ 23 ] Canada inc.’s representative, Mr. Michael Clemann, testifies to the following:

i) He is the President of Canada inc. He is a real estate developer. ii) He denies that the work done by A4 – as indicated in bills 2 and 3 (P-4 and P-5) had any kind of added value for the project; iii) The original building only contained wood studs, some of them dating back to the first half of the 19 th century; iv) It was his understanding, from discussions with his previous architect, Mr. Michel Marchand, that wood studs could also be used for the new walls installed in the modernised version of the building;

v) Once Ms. Lamothe learns that the workers on site are using wood studs, she stops them from doing so – more precisely on February 3 rd 2015; vi) February 3 rd ’s email [8] , from Ms. Lamothe to Mr. Clemann stipulates the following: We might need to also do the same demand for the combustible structure which has been installed. As discussed yesterday, major occupancy requires an incombustible construction (metal and/or timber post and beam).

So for the continuation of the construction, we would ask to continue with incombustible material. vii) Because of such position, Canada inc. buys and installs steel studs [9] , which are claimed from A4, only to be told on or around February 18 th , that wood studs – finally – are ok to go. This confirmation was done by Ms. Lamothe during a meeting which was, according to Mr. Clemann’s testimony, “celebratory” because of that good piece of news; viii) It is not contested that Canada inc., at time of construction, preferred to use wood studs; ix) That “flip flopping” caused, based on Mr.

Clemann’s testimony, various monetary damages to Canada inc.,, namely 1 845,60$ for the cost of steel studs, and a cost of 9 651,13$ for the “labour for installation of metal (at a 50% rate) [10] .

x) Consequently, Canada Inc.’s portion of its counterclaim which relates to that alleged flip flopping between wood and steel studs totals an amount of 11 496,73$; xi) According to Mr. Clemann’s testimony, and in a lesser measure, from other witnesses produced by Canada inc. [11] , A4 did admit committing a fault as to this aspect of wood and steel studs. [ 24 ] A4’s chronology of events, as put forward in Ms. Lamothe’s testimony is quite different. It goes as follows:

i) One of A4’s main responsibility was to obtain from the City of Gatineau a building occupancy permit for the British Hotel. As such, one of A4’s main tasks was to ensure that the work done on the building respected the original construction plans prepared by retired architect Michel Marchand; ii) Those plans from Mr. Marchand were signed and sealed and they were used by the construction crew on site; iii) Those precise plans indicated – which is not contested by Canada inc. that the new walls were to be constructed using steel studs. iv) Consequently, Ms.

Lamothe, once she realised, on February 3 rd 2015, that work was being done on new walls using wood studs, told Canada inc. about the situation and requested the continuation of the construction using metal studs, as indicated on the sealed architectural plans of Michel Marchand;

v) Considering Canada inc.’s willingness to proceed with wood studs, A4 worked on a possible alternative option. In the meanwhile, work could continue with steel studs considering that the plans from Michel Marchand provided specifically for those; vi) The alternative option was communicated, on or around February 18 th 2015. [12] That option consisted in obtaining a mechanical engineer’s report stipulating the required level of sprinklers for the entire building.

The class of sprinkler safety would have to be determined keeping in mind that new “combustible component” – namely those new wood studs in those new walls; vii) A4 insisted, on numerous occasions, that a specific mandate be given to such engineering firm – which would have permitted A4 to produced sealed architectural plans (which would have included, notably, wood studs); viii) A4 could not determine the class of sprinklers necessary because that is out of their scope of expertise and potential liability; ix) A4 insists that Canada inc. was very slow in mandating a mechanical engineering firm;

x) It appears from Ms. Lamothe’s testimony that, even though CIMA had been mandated earlier on during the year [13] , that a specific mandate to CIMA, especially on the added combustible value of those new wood studs, was only given to CIMA in late February [14] ; xi) Ms. Lamothe strongly denies having admitted any type of mistake / or fault during the February 18 th meeting Canada inc. is referring to [15] .

She admitted having committed a mistake [16] on a preliminary option for another portion of the project, but denies having admitted any type of mistake regarding the wood and steel studs portion of the project; MS. SOPHIE LAMOTHE’S PROFESSIONAL TITLE [ 25 ] As mentioned earlier, it appears that Ms. Lamothe obtained, officially, the title of Architect in May 2015. It appears that such fact was not mentioned to Mr. Clemann. [17] She had concluded, with success, her exams in November 2014 and she was waiting for her title to be officially delivered.

She had been an intern architect (une stagiaire) for approximately 3 years as it is provided in the relevant professional obligations of new architects. [ 26 ] Mr. Clemann learns about that situation during the Trial . “That is new to me”, he states. [ 27 ] Ms. Lamothe indicates that the vast majority of her tasks concerned interior design work (approximately 85%) and that her “email signature” never hid in any way that she was not an architect. Indeed, her email signature [18] reads, during the relevant portion of time as the following: Sophie Lamothe M. Arch, DEC Design d’intérieur [ 28 ] In comparison, Ms.

Lamothe refers the Court to her Senior partner [19] ’s signature, which reads: Jenny Lafrance, Architect. [ 29 ] Mr. Clemann testifies to the effect that he cannot understand why such an important project – the British hotel – with an approximate value of 10 000 000$, would be left in the hands of an intern. As to the “various signatures”, Mr. Clemann replies that for “the layman, or the builder”, such little details in one’s email signature do not change the fact that everybody on the project, including him specifically, were under the impression that Ms.

Lamothe, “who was running the show”, was a fully accredited architect. Consequently, for that reason and the other ones mentioned in the present judgment, Canada inc. is contesting the added value – the quantum meruit – of the work done. [ 30 ] A4 replies that it was never hidden from Canada inc. that Ms. Lamothe was an intern, although it was never mentioned specifically. Ms. Lamothe mentions that she was always under the supervision of Ms. Jenny Lafrance, an intermediate partner at the time, and a fully accredited architect.

Furthermore, it appears from a February 4 th email [20] , and was regularly mentioned to Mr. Clemann that Ms. Lafrance “ will be the one stamping the drawings .” A4 adds that this situation raised by Canada inc. is a further excuse not to pay the bills that are claimed. [ 31 ] Let’s now turn our attention to the last problem which is raised by Canada inc. in their effort not to pay A4’s outstanding bills and as it relate to their 15 000$ counterclaim. INTERCONNECTING STAIRWAYS [ 32 ] It appears that in late January 2015, that Mr. Clemann and Ms.

Lamothe discuss about the feasibility of an interconnecting “central” stairways. It is not contested that Canada inc. expresses a very high level of interest in having such an interconnected staircase. [ 33 ] It is not contested that Ms. Lamothe verbally indicates to Mr. Clemann that such a stairway is feasible. “Yes, I did say that the interconnecting stairway without fire separation is ok”. However, Ms. Lamothe denies having specifically authorized any work relating to that possible staircase since she has not “stamped any plans” with that interconnecting stairway.

She denies having agreed that this “verbal opinion/information” that she gave was final. But it is clear, in January, that Ms. Lamothe is of the professional opinion that such stairway does not come in contradiction with any applicable standards. And it is clear that she did mention about her opinion to Mr. Clemann. [ 34 ] It is not contested by Ms. Lamothe and A4 that this was a mistake. Indeed, her verifications, at the time, seemed only to refer to the National Building Code of Canada. [ 35 ] As it appears from Ms.

Lamothe’s own testimony and admission at trial, she realised that she had made a mistake regarding that

interpretation “about 3 weeks afterwards”. Indeed, it appears, and is not contested by Canada inc., that the Quebec building code is more

restrictive when it comes to hotel spaces. [ 36 ] Consequently, A4 informs Canada inc. approximately 3 weeks later that there is a difficulty with the interconnecting stairway. It is not contested that Canada inc. is informed of such on February 26 th . [21] [ 37 ] At such date, it appears that Mr. Clemann is not very happy of the situation and tells Ms. Lamothe and Ms. Lafrance that “somebody is gonna have to pay for the modification of the work already done.” [ 38 ] The evidence is quite contradictory on that particular aspect. [ 39 ] Indeed, Mr.

Clemann testifies to the effect that some work had been done following Ms. Lamothe “verbal opinion” that the interconnecting stairway was feasible. [ 40 ] Canada inc. has Martin Barbe, an electrician with 33 years of experience, testify to that effect. [ 41 ] Mr. Barbe testifies to the effect that the work that he did was mainly for the interconnecting stairway.

However, he does testify that the claim put in exhibit D-6, is only an “estimate” of time, as he did not keep specific time sheets for the interconnecting staircase aspect of the file. [ 42 ] However, his testimony is clear: that work done from February 10 th to February 27 th , totalling 1 612,50$ was “mainly” for the interconnecting staircase. [ 43 ] Canada inc. argues that this work – which had to be redone in March (for an estimated amount of 1 875$, exhibit D-6), should be repaid by A4 because of the modification of their opinion as to the feasibility of said staircase. [ 44 ] It appears, from Mr.

Clemann’s testimony, that plumbing work was done and had to be redone. [ 45 ] The main element of disagreement concern the actual work which would have been done during that 3 weeks period of time during which it appears that Canada inc was under the impression that the interconnecting stairway was feasible. [ 46 ] Indeed, following the February 26 th meeting during which Mr. Clemann would have said that “somebody will have to pay to redo the work” [22] , Ms.

Lafrance goes on site and takes various photos of the 2 nd and 3 rd floor. [23] A4 indicates to the Court that those photos show that no particular work was done on those floors, contrary to what Mr. Clemann had indicated to them the day before. Indeed, those photos show “only chalk marks on the ground” and no specific work. [ 47 ] Mr. Clemann strongly denies those allegations, stating that actual work was done, as it appears notably from Mr. Barbe’s testimony and the exhibits produced as D-6. [ 48 ] A4 further submits that the work done by Mr.

Barbe, during that period of 3 weeks during which A4’s opinion got modified, cannot be claimed since that work was done by Mr. Barbe consisted in “closing” [24] the staircase, and not to “open” it, which was the “derogatory” proposal made by A4, which was modified later on. Such contention is strongly denied by Canada inc.

ANALYSIS AND DECISION [ 49 ] Canada inc.’s main argument is that the outstanding bills claimed by A4 should not be paid because of A4’s alleged lack of competency, experience, because the “process of A4 could have been more streamlined” [25] and because the “mistakes committed, and admitted by A4” generated lost time and costs for Canada inc. [ 50 ] The Court has analysed the entire and broad evidence [26] presented during the Trial. [ 51 ] The Court will revert back, infra , to the three elements of reproach of Canada inc., namely the wood/steel studs, Ms.

Lamothe’s professional status and impact on billing, and the interconnecting staircase. [ 52 ] But let’s analyse first A4’s claim. [ 53 ] Sections 2803 and 2804 of the Civil Code of Quebec (CCQ) provides the following: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 54 ] Consequently, it was A4’s burden of evidence to demonstrate, by way of preponderant evidence, that the work claimed in the two outstanding bills (P-4 and P-5) has been done and that it was useful to Canada inc. [ 55 ]

Section 2106 CCQ enunciates the following: 2106. The price of the work or services 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. [ 56 ] On that topic, and with the exception of further comments infra, the Court concludes that A4 succeeded in making that demonstration during their testimony to that effect. Here is why.

[ 57 ] Indeed, A4 did demonstrate, by way of preponderant evidence, that they produced conceptual plans for the ground floor, specifically for the restaurant and conference room. A4’s contention is that bill number 2 (P-4), which totals the amount, all taxes included, of 6 146,85$, refers, to great lengths, to that portion of the work. (about 85% as per Ms. Lamothe’s testimony). [ 58 ] Mr. Clemann denies any type of added value to the work done by A4 – and such because of the three elements mentioned hereinafter. However, Mr.

Clemann does not deny that the conceptual plans did serve in the final design of the restaurant. [ 59 ] Consequently, the Court, as to the principal claim of A4 [27] , that bill number 2 (P-4) would be owed by Canada inc. After all, that bill is dated February 20 th 2015. Almost one month later, on March 17 th [28] , Mr. Clemann writes an email to A4 stating that he believes that “ Sophie [Lamothe] is competent and [I] wish to continue working in a professional manner .” [ 60 ] As for bill number 3 (P-5), the amount claimed is of 996,66$ [29] , all taxes included. That bill concerns, as per Ms.

Lamothe’s testimony, to the work done relating to various researches made in order to correct various difficulties in the project. She strongly denies that this bill is the result of the mistake committed as to the interconnecting stairways. She states that A4 does not bill clients, including Canada inc., for work or research done to correct one partner’s mistake or omission. [ 61 ] Consequently, the evidence does demonstrate, by way of preponderance, that the two bills claimed by A4 are owed by Canada inc.

Those were consequent of the Service contract [30] that was concluded and agreed upon between the parties. [ 62 ] Said contract is qualified, in the Civil Code of Québec (CCQ) as a services contract. Sections 2098 to 2100 [31] enunciate the following: 2098. A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. 2099.

The contractor or the provider of services is free to choose the means of performing the contract and, with respect to such performance, no relationship of subordination exists between the contractor or the provider of services and the client. 2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence.

Depending on the nature of the work to be carried out or the service to be supplied, they are 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. Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force. [ 63 ] It is not sufficient, indeed, as A4 pleaded, for Canada inc. to state that work done by a professional, in this case an architect firm, was not “up to standards”.

It is not sufficient to simply state that the new architect’s services were done quicker, for approximately the same amount and that “he got the job done”, that “his work was more streamlined”, and so on and so forth. [32] [ 64 ] As it was recently mentioned by Honourable Justice Pierre Cliche, J.C.Q., in the case of 9224-8905 Québec inc. vs. 141517 Canada Ltée [33] , himself quoting the Superior Court: De plus, dans la decision de Péloquin c.

Thériault, la juge Danielle Turcotte, C.S., devant décider du sort d’une requête en irrecevabilité d’une poursuite dirigée contre deux médecins, affirme ce qui suit: [18] La jurisprudence a établi que le Tribunal doit se référer à une preuve par expertise afin d’évaluer si un médecin a agi conformément aux règles de l’art.

En l’absence d’expertise prépondérante, le Tribunal ne peut en venir à la conclusion que les défendeurs ne les ont pas respectées. [19] Selon la jurisprudence constante, le Tribunal ne peut se fonder sur son opinion personnelle pour déterminer s’il y a faute professionnelle ou non en matière de responsabilité médicale. (…) [23] En l’absence d’expertise, la preuve offerte en demande est insuffisante pour établir les fautes reprochées aux médecins. [ 65 ] The Honourable Justice Cliche also stipulates, in paragraph 61 of said judgment: Cependant, le Tribunal ne peut, à ce stade-ci des procédures, présumer des faits qui seront révélés par l’interrogatoire et le contre- interrogatoire de monsieur Lagacé lors de l’instruction, y compris toutes admissions ou aveux de sa part, lesquels pourraient permettre au juge du fond de conclure à la commission d’une faute professionnelle de [sa] part, et ce, même en l’absence d’un rapport d’expertise au dossier. [our emphasis] [ 66 ] Of course, the obligation for a plaintiff (in this case a defendant which produces a counterclaim) to produce an expertise report is not an absolute one.

The evidence of a fault committed by a professional, for example an architectural firm, can also be admitted through other means. It is possible to demonstrate such fault through A4’s own admission of liability, if that is the case. [ 67 ] In the present case, the evidence is contradictory as to A4’s admission of liability as to the wood and steel studs component. The admission that a mistake was done and “it would not occur again” is admitted by A4 as it concerns the interconnecting staircase. [ 68 ] How does that evidence influence the final result?

This is what the Court will now analyse through the review of Canada inc.’s counterclaim. ANALYSIS OF CANADA INC.’S COUNTERCLAIM

[ 69 ] Canada inc.’s burden of evidence is to demonstrate, by way of preponderant evidence, that A4 committed a fault in the execution of the Contract and that such fault generated costs that could have been avoided. [ 70 ] As mentioned earlier, Canada inc. does not produce any expert report stating that professional standards were not upheld, in the current file, by A4. [ 71 ] As we have seen, the major portion of Canada inc’s counterclaim revolves around the alleged flip flopping between A4’s “withdrawal and further authorization” of wood studs. [ 72 ] First and foremost, the Court arrives to the conclusion that the preponderant evidence does not demonstrate that A4 admitted a mistake – or a fault – as to the wood/steel studs situation. [ 73 ] Indeed, Ms.

Lamothe’s testimony is very clear as to the chronology of that particular situation. [34] Their February 3 rd email, stating that the installation of wood studs could not continue is easily explained: the original plans, from Michel Marchand, architect, who is still, at that time, the “architect on record”, indicate that the new walls have to be put up using steel studs. [ 74 ] In other words, A4 had the obligation to raise that situation, since work done in early February was to install those new walls using wood studs – in contradiction with the plans.

Since A4 had to confirm, notably to obtain the building occupancy permit from the City of Gatineau, that work done on site was in accordance with the already authorized plans from Michel Marchand, A4 would have committed a major fault in not raising that issue. [ 75 ] Because of Canada inc.’s strong desire to try to find a way to continue with wood studs, A4 was mandated to find a solution in order to maintain wood studs for the new walls and not steel studs. [ 76 ] That solution did exist, and was communicated on or around February 18 th by A4.

The wood studs for new walls could be an option as long as a mechanical engineer would stipulate, in an expertise report, the level of sprinklers necessary to protect against that “added combustible element” in the building. [35] [ 77 ] Furthermore, even if Canada inc.’s contention that A4 should have raised that option – in early February – was accepted by the Court [36] , a close analysis of the counterclaim made by Canada inc. shows that only a very small fraction of said claim could be granted as to Canada inc’s efforts to buy steel studs. [ 78 ] Indeed, the analysis of exhibit D-6, which is the detailed counterclaim of Canada inc., show that the bills for steel studs date, respectively, February 4 th , 25 th and 27 th . [ 79 ] Even if the Court could arrive to the conclusion that the bill for steel from February 4 th (851$) could be granted, that bill would be the only one which could be linked to A4’s alleged “fault” committed on February 3 rd when Ms.

Lamothe clearly stated that the construction should continue using incombustible material. [ 80 ] Indeed, since the “solution” was communicated, on February 18 th [37] , Canada inc.’s decision, afterwards, to continue to buy steel studs (on February 25 th and 27 th ) can only result from Canada inc.’s own decision to proceed in such way. [ 81 ] It is obvious, from all parties heard at Trial, that the British hotel project was and had to be on “the fast track”. [ 82 ] Canada inc.’s decision to use steel studs – up until a solution was to be implemented – was the correct, obvious and sole decision to be made.

Wood studs could not, at that time, be introduced into the new walls because that was in clear contradiction – as admitted by Canada inc. [38] – with Michel Marchand’s signed and sealed plans which related to steel studs for new walls. [ 83 ] Consequently, if Canada inc. was under the impression, in early February 2015, that it could proceed with wood studs, A4 is not at all to blame for that situation. Canada inc. was indeed under that impression as it appears from an email from Mr. Clemann to Ms. Lamothe [39] dated February 3 rd 2015.

That impression, from Canada inc. was – in retrospect – erroneous. [ 84 ] Consequently, the Court comes to the conclusion that items 1, 3, 4, and 6 [40] from Exhibit D-6, which constitutes the counterclaim from Canada inc. as it relates to the wood/steel studs situation cannot be granted. [ 85 ] There was no convincing – nor preponderant – evidence of fault [41] of A4 in regards to that aspect. Consequently, that portion of the counterclaim (11 496,73$) is rejected. [ 86 ] It appears from the evidence that Canada inc. was quite slow in granting a specific mandate to CIMA (Mr.

Steve Tremblay), not for the entire project, or for the general sprinkler system of the building, but for the specific evaluation and determination of the necessary sprinkler class necessary in the eventuality that more wood studs were put into the new walls of the building. That report had been requested by A4 for quite some time. [ 87 ] The evidence is very preponderant, and convincing, that even on February 27 th , that CIMA had not begun specific work on that particular aspect of the file.

Consequently, the delays relating to the production of the “new” sealed plans can be explained by Canada inc. lack of sense of urgency to mandate CIMA for that important aspect of the project. [42] After all, and as Ms. Lamothe testified, and which is not contradicted, the City of Gatineau requested specific sprinkler plans for the building occupancy permit. Consequently, those specifications from CIMA were necessary and the delay in obtaining them cannot be of A4’s responsibility. CANADA INC’S CONTESTATION OF THE VALUE OF SERVICES RENDERED BECAUSE OF MS. LAMOTHE’S PROFESSIONAL STATUS.

[ 88 ] As we have seen, Canada inc. learns that Ms. Lamothe was not, during the relevant period of time (December 2014 to April 2015) a fully accredited architect. [ 89 ] Even if it appears that Ms. Lamothe never presented herself [43] as an architect during the course of the project, the Court agrees with Canada inc. that “for the layman, or the builder”, the subtle differences in the email signatures of Ms. Jenny Lafrance, Architect, and Ms. Lamothe, M. Arch. are, indeed, very subtle. [ 90 ] Ms. Lafrance admits that Mr. Clemann’s attention was never brought to the fact that Ms. Lamothe was an intern. Ms.

Lafrance admits that she can “understand” Mr. Clemann’s “point” on that particular topic. Ms. Lafrance further adds that the fact that Ms. Lamothe was an intern at the time was not made clear to Canada inc. “Ça n’a pas été mis clair en effet”, she concedes. [ 91 ] The Court does not dispute that a professional’s competency is not only based on a professional title. However, the Court believes Mr. Clemann when he states that “this is new to me”. [ 92 ] With respect for A4, it would have been simple to explain, specifically, to their client, Canada inc. that Ms.

Lamothe, even though she did not have the “title”, had successfully passed her exams in November 2014, and that she was the “perfect” professional for the project because she was not only an intern architect but because she was, and still is, which is not contested, an interior designer. [ 93 ] That level of transparency would have been, with regards, very appropriate. [ 94 ] The Tarif d’honoraires pour services professionnels fournis au gouvernement par des architectes [44] does create, as a tool for comparison , in Annex II, various levels of experience.

Indeed, it appears that junior architects are designated as having 3 to 4 years of experience. “Stagiaire” are designated as having 0 to 2 years of experience. [ 95 ] In other words, that Tarif does provide for a different classification for junior “fully accredited” architects compared to interns (stagiaire).

This reality is not taken into account in A4’s billing in this specific file. [ 96 ] But there is more. [ 97 ] The contract concluded between the parties, exhibit P-3, stipulates the following hourly rates for the various professionnals working on the file: Intermediate partner architect: 110,10$/hour Junior partner architect : 82,40$; Interior design: 82,40$; Site survey and layout: 55,75$; Administration tasks: 28,20$; [our emphasis] [ 98 ] In other words, Ms.

Lamothe’s services on the “architectural front” were billed at 82,40$, as if she was a junior partner architect, which was not, objectively speaking, the case. [ 99 ] Of course, one could argue that A4’s billing of Ms. Lamothe’s hours at 82,40$ was “correct” because it was, in the worst case for A4, her hourly rate as an interior designer. [ 100 ] Indeed, her hourly rate, as charged to Canada inc. was the same as a junior partner “architect” and as an interior designer. [ 101 ] However, with great respect and without taking anything away from her studies and experience, Ms.

Lamothe was not an architect during the execution of that specific mandate for Canada inc. Consequently, Canada inc.’s contention that a portion of the principal claim of A4 should be reduced is accurate. [ 102 ] As was indicated by Justice Guy Gagnon, J.C.Q. at the time – and now a Justice with the Court of Appeal, in the Consultants Simdan inc v. Gestion Caron-Gervais inc . [45] case: La cliente est en droit de s’attendre à être facturée pour les services professionnels reçus selon un taux horaire correspondant à l’ancienneté et à l’expertise du professionnel appelé à travailler dans le dossier.

Ainsi donc, on s’attendra à ce qu’un technicien en ingénierie coûte moins cher qu’un ingénieur stagiaire et que celui-ci aura un taux horaire moins élevé que l’ingénieur junior , qui lui- même devra avoir un taux inférieur à l’ingénieur senior. En ne retenant qu’un seul taux, peu importe le statut de la personne fournissant le service, la demanderesse a crée une confusion pouvant amener sa cliente à s’interroger sur la légitimité du taux horaire facturé.

En omettant de particulariser dans sa facturation le taux horaire pour chaque intervenant, la demanderesse crée donc une ambiguïté qui mérite l’intervention de ce Tribunal. [our emphasis] [ 103 ] That being said, what is the portion of A4’s billing that has to be reevaluated based on that determination? [ 104 ] Ms. Lamothe testified to the effect that 85% of the billed hours charged to Canada inc. concerned interior design work. In other words, only 15% of the billed hours concerned architectural work. It is possible that more hours were done on architectural work by A4 but, as It appears from Ms.

Lamothe’s testimony, those hours in order to “correct” the interconnecting staircase mistake were not charged

to Canada inc. [ 105 ] In the contested bills, exhibits P-4 and P-5, the time of Ms. Lamothe is indicated as being time for “Meeting, code analysis and design Junior partner.” However, the specific “interior design work” is billed separately, at the same hourly rate of 82,40$. [ 106 ] Consequently, of the total amount claimed by A4, which is of 7 143,51$, the work done by Ms.

Lamothe, and billed as a junior partner architect , is for less than half of the amount which is claimed [46] . [ 107 ] For the reasons mentioned hereinabove, the Court deems it necessary and appropriate to reduce that amount granted to A4 by 400$ [47] , including taxes. [ 108 ] This brings us to the last element of litigation between the parties, namely the interconnecting stairway.

THE INTERCONNECTING STAIRCASE [ 109 ] As we have seen, this element of design was deemed important by Canada inc. who wished for the main staircase to be interconnected from the ground floor and up. [ 110 ] It is not contested that Ms. Lamothe did tell to Mr. Clemann and to Canada inc.’s representatives, in January 2015, that this element of design was possible – that it was feasible. [ 111 ] A4’s representatives do admit that this was a “mistake”.

After further review of the Québec building code, it was discovered, approximately 3 weeks after the first discussion with Canada inc., that the interconnecting staircase would not be possible because of the usage on the 2 nd and 3 rd floor, namely hotel (residential). [ 112 ] It is not contested, furthermore, that an admission as to that mistake was made during a reunion with many representatives of Canada inc., and Brookman industries [48] . [ 113 ] A4 does admit the situation. [ 114 ] It appears that the admission of that mistake included a strong “ mea culpa ” during which it was said that “such situation would not occur again”. [ 115 ] An email, dated March 19 th 2015 [49] , is quite revealing.

Ms. Lamothe writes to Mr. Clemann the following: We are looking forward in working with you in order to solve the issue of the corridor and the exits for the hotel. We will have to adjust our process in order to not repeat the previous situation. Therefore we will have to establish a process of correspondence and approval for documents . We can discuss this in the next meeting. Jenny and I are looking in a meeting together in order to put this project back on tracks.

Since our last meeting, we have gathered more information about the possibilities for your project. [our emphasis] [ 116 ] Consequently, it is not contested that a mistake was made and that it was admitted by A4’s duly authorized representatives. [ 117 ] A4 contests that this mistake is a “fault”, when it comes to civil liability issues. Furthermore, A4 contests that this mistake generated any kind of prejudice for Canada inc. [ 118 ]

Section 1458 of the Civil Code of Québec , in matters of contractual liability, does provide the following: 1458. Every person has a duty to honour his contractual undertakings.

Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. [ 119 ] As to the prejudice which can be indemnified, sections 1607 , 1611 and 1613 of the Civil Code are relevant. They state the following: 1607.

The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and assessable is taken into account in awarding damages. 1613.

In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the non-performance. [ 120 ] A4’s contention that the mistake they committed cannot be considered a “fault”, when it comes to contractual liability, because that “mistake” was not included in signed and sealed plans appears to be somewhat very narrow and reducer.

[ 121 ] That would mean that an architect who confirms verbally to a client that Options X and Y are feasible, but not option Z, would never be liable if those comments are erroneous up until the time the mistake in question is officially put in a sealed and signed plan. [ 122 ] Ms. Lamothe adds that A4 does not provide “verbal instructions”, only “verbal information.” [ 123 ] However, it is not contested by A4 that the verbal “information” relating to the interconnecting stairway was indeed erroneous. [ 124 ] As it was determined, notably by Justice Charles D.

Gonthier, J.C.S., as early as 1984, in the Taillibert v.

Ville de Montréal et la Régie des installations olympiques [50] : [181] La responsabilité de l’architecte ne saurait être que délictuelle ou quasi délictuelle soit qu’il ait fourni des plans dont la réalisation emporte un danger et non de simples déficiences, soit qu’il ait fait des fausses représentations ou par négligence ait fourni des renseignements ou plans erronés. [ 125 ] Even in a project which was, from the admission of all parties involved, on “the fast track”, the Court considers that a fault can be committed through an erroneous opinion (or information)– as it was the case in the present file. [ 126 ] The architect does have an “obligation de conseil” towards his/her client.

He/she has the obligation to act with prudence and diligence in the best interests of his/her client. [51] [ 127 ] On that very particular topic, the false opinion/information was given to Canada inc. and was only corrected 3 weeks afterwards. During at least a portion of that period of time, Canada inc. was under the impression, furthermore, that signed and sealed plans would be produced by A4 “the next day”. “They will be ready on Monday, or the day after”. [52] [ 128 ] This is confirmed by the evidence, in the current file, which demonstrates that A4 confirmed to Mr.

Clemann that the “sealed and signed plans” were about to be produced. “They will be on Monday – or the day after”. [ 129 ] Of course, A4 replies that those “sealed plans” could not be produced without Cima’s own sprinkler specifications. The Court agrees but, however, it is not contested by A4 that they took the undertaking to produce sealed plans “very shortly”, thus producing some “prepping work” on the upper floors by Canada inc. [ 130 ] The fact that A4 deemed it appropriate to apologize, in front of all the relevant intervening parties on the project, also points in the same direction.

This was not only a matter of a general “opinion” which was subsequently modified. There was a clear

interpretation of the Canadian building code that was given and it was discovered, about three weeks after, that this was not the route to engage on – unless a “different measure” process with the Régie du bâtiment du Québec was to be adopted. [ 131 ] As mentioned earlier, relevant case law does provide, indeed, that an expertise report can be somewhat useful, or even necessary, in many instances, to demonstrate a fault by a professional.

However, there are exceptions to that principle – and one of them revolves around an admission made by one party – as it is the case in the present instance as to the interconnecting staircase. [ 132 ] Consequently, the Court considers that A4 did commit a fault, as to the interconnecting staircase aspect of the file. If A4’s experience or expertise with the Québec building code, for this particular type of construction, was limited, that information should have been transmitted clearly to Canada inc.

It appears through preponderant evidence that this was not the case. [ 133 ] That being said, what is the prejudice which was suffered by Canada inc. because of that situation? [ 134 ] The evidence is – again - quite contradictory when it comes to that aspect of the file. [ 135 ] Canada inc.’s contention is that the guidance of A4 towards that “false solution” generated them an amount of 3 487,50$ of useless electrical work. Exhibit D-6 refers to those elements in items 5 and 9. [53] [ 136 ] Mr.

Clemann clearly testifies that “work began the day after since we were supposed to receive sealed plans very shortly from Ms. Lamothe”. [ 137 ] Mr. Martin Barbe did testify on the subject. As previously mentioned, he did confirm that “most of the work claimed” referred to the interconnecting staircase aspect of his mandate. [ 138 ] In other words, some of the work that is claimed in that amount of 3 487,50$ refers to other type of work which cannot be granted since A4’s fault relates to only one aspect of the file.

Consequently, it is obvious that one portion of the amount claimed for electrical work cannot be granted since it is not linked with any fault from A4. [ 139 ] Moreover, Mr. Barbe, in his testimony, did confirm that the amount claimed was only “an estimate”. He mentioned “C’est pas exact”. [ 140 ] Consequently, the claim is not extremely precise.

However, it appears clearly that a financial prejudice was suffered by Canada inc. because of this situation. [ 141 ] It was Canada inc.’s burden to demonstrate, with preponderant evidence, that a financial prejudice was caused because of the interconnecting staircase “flip flopping” [54] of A4. [ 142 ] The fact that extensive work was done is indeed contested by A4. Photos taken on February 27 th 2015, exhibit P-11, do demonstrate that the intensity of the work done was not what Mr. Clemann had mentioned to A4’s representatives on February 26 th . However, some work had been done, as per Mr. Clemann and Mr.

Barbe’s testimony. The court believes their testimony when it comes to the existence of the prepping work for the staircase.

[ 143 ] As to A4’s argument as to whether that work done by Mr. Barbe was done to “enclose” or “open” the staircase, the evidence is contradictory. On that precise topic, the Court considers that Canada inc.’s burden of evidence was met. Indeed, why would Mr. Barbe be directed by Canada inc. to work on the least favored scenario – which was to enclose said staircase? After all, the preponderant evidence does demonstrate that Canada inc. wished very strongly for the stairway to be connected and opened. Consequently, the Court considers that preponderant evidence does demonstrate that some of the work done by Mr.

Barbe was to proceed with A4’s derogatory (the derogation was unknown at that specific time) path. [ 144 ] Having analysed all the evidence submitted to the Court , it appears appropriate and reasonable to establish that an amount of 1 500$ of damages were incurred by Canada inc. because of the modification in A4’s information and opinion given to Canada inc. [ 145 ] Hence, the Court considers that an amount of 1 500$, as damages, is demonstrated by Canada inc.

COMPENSATION OF THE AMOUNTS OWED [ 146 ] Since both the principal claim and the counterclaim are partially awarded, the Court, in order to avoid a useless multiplication of payments between the parties, will proceed to the judicial compensation of the amounts owed between them. [ 147 ] In other words, since A4’s claim is granted for an amount of 6 743,51$ [55] , and because Canada inc.’s counter claim is granted for an amount of 1 500$, the Court, in accordance with sections 1672 and following of the CCQ, will proceed to the compensation between those two amounts which are owed by both parties. [ 148 ] Consequently, Canada inc. will be condemned to pay an amount of 5 243,51$ to A4.

INTERESTS AND COURT COSTS [ 149 ] A4 claims the contractual rate of 12% interest on the amount which is owed. Since that rate of interest clearly appears not only from the bills produced but from the Contract entered upon the parties, the Court will grant said interest rate. [ 150 ] Since a letter of demand was sent [56] to Canada inc. on December 2 nd , 2015, the interests will be granted from that date. [57] [ 151 ] As to court costs, both parties request payment of such costs from the other party. The Court sees no reason to divert from the general rule, which is stipulated in

section 340 of the Civil Code of procedure which provides that “legal costs are owed to the party that was successful, unless the court decides otherwise .” [ 152 ] Considering that both the Principal claim and the counter-claim are partially awarded, the court costs will be awarded on both procedures. [ 153 ] Consequently, legal costs will be awarded both on the Principal claim of A4 as well as on the counterclaim from Canada inc.

FOR THOSE REASONS, THE COURT: GRANTS partially the Plaintiff’s claim, with costs; GRANTS partially the Defendant’s counter claim, with costs; OPERATES compensation on the amounts granted to Plaintiff and to Defendant; CONDEMNS the Defendant to pay to the Plaintiff an amount of 5 243,51$, with the contractual interest rate of 12% and the special indemnity provided in

section 1619 of the Civil Code of Québec , starting from December 2 nd 2015; THE WHOLE , both for the Principal claim and the Counterclaim, with court costs. __________________________________ STEVE GUÉNARD, J.C.Q. Date of hearing: May 9th and July 4th 2017.