2019 QCCQ 4120, 2019 QCCQ 4120

Sanchez c. Janas 2019 QCCQ 4120 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-156089-171 DATE: March 20, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ PAMELA SANCHEZ Plaintiff v.

KIMBERLY JANAS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Pamela Sanchez contracted for certain renovations in her home including the installation of kitchen cabinetry. This work was necessary because of water damage that had occurred. She entered into a contract with Construction Abbco (2007) inc. (“ Abbco ”) on June 1, 2012 [1] . [ 2 ] When the work was still ongoing, she resiliated the contract on July 22, 2013. In these present proceedings she now sues the Defendant Mrs.

Kimberly Janas as an administrator of Construction Abbco (2007) inc. as well as in her capacity as a “kitchen specialist” of Armoires Kiël inc. (“ Kiël ”) allegedly the suppliers of the kitchen cabinetry the installation of which was part of the subject matter of her claim against Abbco in case number 500-32-140068-133 [2] . In support of her application in the present file, she alleges that Mrs.

Janas, when she went to the Plaintiff’s home to take measurements represented herself as an employee of the supplier Kiël but that in fact she was “in collusion with her romantic partner and business associate” Howard Abboud of Abbco. [ 3 ] She alleges that Mrs. Janas altered the clients’ name in contract documents from Sanchez to Abbco thereby depriving her of any recourse against Kiël for warranties. [ 4 ] As a result of this alleged alteration, she claims from Mrs. Janas the amount of $7,507.87 based on the value of the cabinets, their delivery and their installation. [ 5 ] Mrs.

Janas contests the claim, denying she was in any way involved in collusion or dishonesty. She states that the work she did as an employee of Kiël in no way made her liable for the quality of the products and she states that her function as administrator of Abbco, the company in which her husband Mr. Abboud is the key person, was perfectly legitimate and did not constitute a fault. [ 6 ] She asserts as well that Mrs. Sanchez has already obtained judgment against Abbco and that this judgment provides for a full warranty to Mrs.

Sanchez by Destination Design, who stands in the place of Kiël. [ 7 ] Finally, she alleges prescription, the Demand having been made on April 24, 2017, more than three years after the facts. Issues [ 8 ] To resolve this case, the Court must answer the following questions: 1. Is there a legal connection between the parties arising from a fault on the part of Mrs. Janas that caused prejudice to Mrs. Sanchez? 2. If so, what is the value of the prejudice caused? 3. Is the case prescribed?

Facts and Analysis [ 9 ] Abbco’s quote of November 14, 2011 [3] includes the assembly, the delivery and the installation of the new cabinets, as well as demolition of the existing cabinets. The quote contains a note: Not included:

Cabinetry (see separate quote provided) [ 10 ] The quote provided by Kiël, naming Mrs. Sanchez as the client, it is based on the measurements that where taken by Mrs. Janas. [ 11 ] The contract as actually signed, however, includes the supply of the cabinets for the price that had been quoted by Kiël, $5,400.00 so that the cabinets and their installation was fully included in the contract dated June 1, 2012 [4] . [ 12 ] Mrs. Sanchez became dissatisfied with the work of Abbco and, as the judgment of Justice Gibbens [5] indicates, this was a resiliation as of right, not a resiliation based on fault.

This judgment settles all the issues relating to this contract and its resiliation, including the confirmation, through an undertaking given by Abbco [6] to confirm the transfer of Abbco’s warranty wrights in connection with the fabrication of the cabinets to Mrs. Sanchez. [ 13 ] Since Destination Design, the successor to Kiël, has warranty obligations owed to Mrs. Sanchez, her allegation that the conduct of Mrs.

Janas deprived her of her claim for the warranty of quality against the manufacture is ill founded. [ 14 ] Another judgment of this Court rendered September 6, 2017 by the Honorable Eliana Marengo, J.C.Q. [7] confirms that there is no contract between Les Armoires Kiël inc., Ove Decors ULC and Destination Design in connection with the quality of the installation of the cabinets. This judgment has no effect in respect of the warranty just mentioned. [ 15 ] In her allegations, Mrs. Sanchez casts aspersions on Mrs.

Janas alleging that her employment relationship with Kiël was terminated for fault because of her conduct in this case. [ 16 ] There is no factual basis for these allegations. [ 17 ] The monetary claim in the present case is redundant with the proceedings in which Mrs. Sanchez has, to a certain extent, already been successful as can be seen from Justice Gibbens’ judgment. That judgment provides for the amounts owing between Mrs. Sanchez and Abbco for the value of the incomplete and to some extent damaged cabinetry and it also convers her compensation in damages. [ 18 ] The claim presently made against Mrs.

Janas, even if it had some basis in fact, would constitute double recovery. [ 19 ] Finally, as to the question of prescription, which is theoretical in that Mrs Janas did not commit any fault generating a prejudice, it is difficult to determinate a date on which Mrs. Sanchez would have gained knowledge of the existence of the alleged collusion and fraud. [ 20 ] Mrs.

Sanchez alleges that she paid the contract price to Abbco on the basis of a contract that is in included the supply by Abbco of the kitchen cabinetry but that she was not aware that she did not have a contract with the manufacturer. [ 21 ] The judgment of Justice Gibbens shows that Mrs. Sanchez’ last progressive payment was made on February 3, 2013 bringing the total advances paid to $12,128.42 [8] . [ 22 ] In the Court’s view, it is probable that, by signing a contract that included the supply of the cabinets and by paying for them, Mrs.

Sanchez knew that her contract was with Abbco and not with Kiël. [ 23 ] To the extent that Mrs. Janas would have somehow brought about this contractual change, this would have been apparent to Mrs. Sanchez as of that time that the change came about. [ 24 ] The facts do not make it clear when Mrs. Sanchez arrived at the theory that Mrs.

Janas was responsible for this change, so it is difficult to decide the theoretical question of prescription. [ 25 ] The change in the contractual situation was that the initial quote that had been given by Kiël served as a basis for the price of the cabinetry in the contract whereby this cabinetry was supplied by Abbco. [ 26 ] The decision to make the change was that of Abbco and Mrs. Sanchez acting in agreement. There is no evidence that this change, which was perfectly legitimate, had anything to do with Mrs.

Janas who was simply the person who had taken the measurements as an employee of Kiël. [ 27 ] It is unfortunate that this claim has inconvenienced Mrs. Janas. It can only be hoped that there will be no additional litigation in this matter, which, for all purposes has been determined by the judgment of Judge Gibbens and the present judgment. BY THESE REASONS, THE COURT: DISMISSES the claim of the Plaintiff; WITH legal costs in favour of the Defendant. __________________________ David L. Cameron, J.C.Q. Date of hearing: November 23, 2018