2016 QCCQ 8861, 2016 QCCQ 8861

Petrovici c. Stroescu 2016 QCCQ 8861 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-136114-123 DATE: July 4, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ALINA PETROVICI and TRAIAN MUGUR PETROVICI Plaintiffs v.

ALEX STROESCU Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Alina Petrovici and Traian Mugur Petrovici, sue the Defendant Alex Stroescu, claiming $ 4,650, consisting of the reimbursement of a contract price of $ 2,600 for renovation services that the Defendant carried out in their home in the summer of 2012. [ 2 ] They claim an additional $ 2,000 for inconvenience and $ 50 for the letter of demand. [ 3 ] The Defendant, with respect to the amount $ 2,600, alleges that he only received $1,600 and claims a contractual balance of $ 1,858.72.

He also claims damages for insults to his reputation and waste of time and inconvenience, in the amount of $ 2,841.28 for a total Cross-claim of $ 4,700. [ 4 ] He arrives at the contractual balance by computing the total bill of $ 3,803.65 less a credit of $ 300 plus taxes ($ 344.93) for a total contract price of $ 3,458.72. [ 5 ] Taking into account the amount he admits having received, he sues for a balance of $ 1,058.72.

ISSUES [ 6 ] To resolve this conflict, the Court must answer the following questions: 1) Are the Plaintiffs entitled to a reimbursement in whole or in part of the amounts they paid to the Defendant? 2) And, if so, how much has in fact been received by the Plaintiffs? 3) What balance, if any, is owed to the Defendant? 4) Are the Plaintiffs entitled to damages relating to the faulty performance of the contract? 5) Is the Defendant entitled to damages because of the treatment he received by the Plaintiffs?

FACTS [ 7 ] The parties made a verbal agreement for work to be done in the renovation of the Plaintiffs’ laundry-room, as well as the painting of an adjacent corridor. They met on July 27, 2012 at the residence and the Defendant was given an advance of $ 1,600 toward the costs of the work.

[ 8 ] The agreement was for materials in the amount of $ 1,050 and labour in the amount of $ 1,550 for a total of $ 2,600, to which would be added TPS 5% and TVQ 8.5%. The contract total would therefore be $ 2,832.11. [ 9 ] The Plaintiffs also allege having paid $ 1,050, which would bring the amount paid to the total of $ 2,600 for which they are seeking reimbursement. They are met however with the problem that there is no written proof of this payment and the Defendant denies having received it. [ 10 ]

Article 2862 of the Civil Code of Quebec provides that proof of a juridical act, in this case the payment, may not be made between the parties by testimony when the value of dispute exceeds $ 1,500. [ 11 ] This difficulty is overcome, however, by one of the exceptions to this rule, because the juridical act carried out by their opponent, the Defendant, was done so by him in the course of the business of his construction enterprise. [ 12 ] The Plaintiffs rely upon the testimony of Marc Fournier, who is a friend of the family and Mr Petrovici’s boss.

He states that he provided the ten bills of $ 100 each to which Mr Petrovici added $ 50. This occurred on the morning of August 1, 2012. He was asked to lend the money to pay the contractor. He refers to a person who was present, wearing work clothes, in his mid-thirties, introduced as Alex. [ 13 ] The Defendant provides a document produced as D-1; it appears to be a document prepared for the purposes of the dispute in that it does not have the appearance of a usual commercial invoice.

It is a description of the work that was initially assumed, showing the estimate of $ 1,550 plus tax for manpower, and $ 1,550 tax included for materials. After the total is computed, there is a list of additional works detailed 1 to 6 with amounts indicated for labour and materials. [ 14 ] The document does not have the appearance of a receipt, but it does, in fact, establish an admission that an amount of $ 1,600 had already paid as of the day of the document, August 9, 2012.

Work to be performed [ 15 ] Alina Petrovici describes the work to be performed consisting of emptying the room, raising the floor, taking out existing cabinets, installing IKEA cabinets provided by her and her husband, and installing two large sliding doors. There were miscellaneous plumbing works including adjustment to pipes serving an air-conditioner, and the room was to be repainted and there was to be some repainting in an adjacent hallway. [ 16 ] One element of the work that became very problematic was the installation of the IKEA cabinetry.

Mr Stroescu maintains that certain parts that were required were missing, so that the two large doors could not be installed; he therefore credits $ 150 from the estimate for labour costs in his invoice (D-1). [ 17 ] In his list of works that were included in the contract, we have substantially the same elements that Alina Petrovici includes in her testimony.

In the additional works that add up to $ 845 before tax as such items as moving and replacing an electrical baseboard heater, taking the washer and dryer out and reinstalling them, painting the laundry-room with a new white colour rather than simply repainting the initial colour, removing demolition debris, reinstallation of conduits to the hot water heater and installing new control valves, and the purchase and delivery of material from IKEA. [ 18 ] The Plaintiffs did not admit that there was any extra work in addition to what had been initially agreed to. [ 19 ] The major part of the work, according to them, was the installation of the IKEA cabinetry and doors, which required adjustments which they expected the Defendant to do as a part of his job, and it was necessary to reroute certain plumbing conduits because of the manner in which this new cabinetry was being installed. [ 20 ] There is no expert testimony to establish defects in the work.

Photos give the impression of certain work being incomplete, but it is quite another thing to evaluate this work as a function of the whole. [ 21 ] Mr Stroescu speaks of additional work he was asked to do, but none of this is properly documented.

ANALYSIS [ 22 ] When parties to a renovation project opt not to document their agreement and the accounting of payments, numerous evidentiary problems are created, should there be litigation. [ 23 ] In this case, the lack of documentation occurred in part, because there was a certain degree of confidence between people who had been introduced by mutual friends. [ 24 ] As well, the parties speak the same language, having the same national origins. [ 25 ] But there is more.

Mr Stroescu did not have qualifications with the RBQ and it is also implicit, in what the Court heard, that there was no intention to pay him the amounts of sale tax that are normally required and which appear in Mr Stroescu’s detailed invoice.

There is an agreement that the initial contract price was $ 2,600, and Mr Stroescu admits having received $ 1,600 as an advance. [ 26 ] The factual issues and the assignment of the burden of proof are as follows: 1) the Plaintiffs must prove that they made the additional payment they allege of $ 1,050; 2) the Defendant must prove that he made a subsequent agreement and was authorized to do additional work and he must prove the value of that work;

3) the Plaintiffs must prove that the work was incomplete or defective, for reasons that relate to the Defendant’s lack of care or skill, or simply his failure to do the work. [ 27 ] The Court is satisfied with the proof of the second payment of $ 1,050, because of the corroborating evidence of Mr Fournier, which appeared to be sincere. [ 28 ] The Court is not satisfied with the Defendant’s evidence of the stipulation of additional work. What was contracted for was a result: a reconstruction of the laundry-room with everything that entailed.

Unless he had been given a written contract with clear exclusions, everything that is a part of that project, including disposal of materials, moving of plumbing, and whatever finishing was required, is inherently part of that contract. [ 29 ] The work is substantially complete, the most significant part of it being the construction of the floor and its finishing, but there are clearly some elements where the finishing is not complete. [ 30 ] The work involving the cabinetry from IKEA was problematic, perhaps because there were parts missing and because the cabinetry was not perfectly adapted to the space.

This was, however, something that the Defendant committed to install, and it was up to him to find a way to do it. [ 31 ] The testimony of Alina Petrovici about the poor quality of the work and the impact of it not being finished was quite emotional, but by no means probative as to the specific value of the parts of the work that are incomplete or that have an element of deficiency. [ 32 ] This is only a $ 2,600 contract and it would not have been reasonable to hire an architect to quantify the minor deficiencies, but since a substantial amount of work was done, it would also not be reasonable and proportional to order the return of the entire contract price that has been paid, nor to impose damages that are almost equal to the amount of the work. [ 33 ] The Court has no choice but to arbitrate an amount of reduction in price to take into account the minor deficiencies and incompletion, especially that of the installation of the IKEA materials. [ 34 ] The Plaintiffs did not provide any invoices of amounts spent to correct and complete the work: they seem to have been done on their own or with the help of friends who did not provide invoices or receipts. [ 35 ] Based on the view of the photographs and on assessment of the testimony, the Court arbitrates an amount of $ 750, taxes included, to account for the minor defects and uncompleted work. [ 36 ] While this is by no means a scientifically accurate assessment; it is all that the evidence permits. [ 37 ] Finally, with respect to the claims that each party makes against each other for what could be generally referred to as moral damages, no amount will be awarded.

This is simply a case of antagonism and acrimony developing because of the parties’ decision to engage in an informal contractual process for work to be provided by a contractor that did not have demonstrated qualifications. It is a contract to carry out work that is not properly described, documented, nor fiscally traceable. The acrimony and inconvenience is simply par for the course.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiffs, solidarily, an amount of $ 750, plus interest at the annual rate of 5%, and the additional indemnity provided for by articles 1619 of the Civil Code of Québec , as of August 15, 2012; DISMISSES the Cross-claim; Each party paying its own legal costs. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: May 12, 2015 and March 1, 2016