2019 QCCQ 7242, 2019 QCCQ 7242

Peintres Fab inc. c. JCOR Construction inc. 2019 QCCQ 7242 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-703417-172 DATE: November 21, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ LES PEINTRES FAB INC. Plaintiff/Cross-defendant v. JCOR CONSTRUCTION INC.

Defendant/ Cross-claimant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Les Peintres FAB Inc. (“ FAB ”), a residential and commercial painting subcontractor, and JCOR Construction Inc. (“ JCOR ”), a general contractor, entered into a subcontract whereby FAB agreed to paint condominium units of a new townhouse project in Montréal. [ 2 ] FAB alleges that JCOR has failed to pay two invoices, # 2318 and # 2320, for painting services provided at JCOR’s request, and claims $10,797.27 from JCOR. [ 3 ] JCOR denies owing anything to FAB on the grounds that the painting services covered by the two unpaid invoices cover work carried out by FAB to correct its deficiencies and do not pertain to “extra” work.

It adds that it never authorized FAB to perform any “extra” work beyond the scope of the contract. [ 4 ] Moreover, JCOR alleges that because of FAB’s poor painting work which led to clients’ complaints, it had to redo some of its work to correct the deficiencies not corrected by FAB. It asserts that it incurred costs of $7,959.50 to carry out this work and claims this amount from FAB in its counter-claim. Issues [ 5 ] To decide the parties’ dispute, the Court must address the following issues:

a) Does JCOR owe FAB $10,707.27 for the painting services covered by invoices # 2318 and # 2320 or was this work performed by FAB to correct deficiencies?

b) Was the painting work for which FAB claims payment through invoices # 2318 and # 2320 deficient, and if so, what damages were caused to JCOR by this breach? Analysis and Decision

a) Does JCOR owe FAB $10,707.27 for the painting services covered by invoices # 2318 and # 2320 or was this work performed by FAB to correct deficiencies? [ 6 ] JCOR is a general contractor. Sometime in 2015, it entered into a CCDC contract with Gestion 1500 Dr. Penfield Inc. to renovate and build a townhouse and condominium project on Dr. Penfield Boulevard in Montréal (“ Project ”). [1] [ 7 ] JCOR subsequently entered into a subcontract with FAB to provide painting services for the Project (“ Subcontract ”). [ 8 ] The precise contractual terms and scope of the Subcontract remains unclear.

As JCOR’s representative candidly observed, “it was a very confusing contract for everybody”. [2] The confusion persisted at the trial. [ 9 ] The Subcontract was evidenced by a number of purchase orders issued by JCOR in October and December 2016. [ 10 ] Initially, FAB was engaged to prime the walls and ceilings in units B, C, and D of the Project. [3] [ 11 ] On October 27, 2016, JCOR issued a purchase order to FAB whereby the latter agreed to “supply all labour, material and equipment to complete the following work as per your quote dated October 27, 2016: Prime all new gyp roc walls and ceilings for units

B, C & D” for $8,900 plus applicable taxes. [4] Appendix A to this purchase order contains JCOR’s general terms and conditions. [5] [ 12 ] This purchase order appears to have been amended a first time, to cover painting of Units B and C for $16,965 plus taxes. [6] [ 13 ] On December 2, 2016, the parties amended the subcontract again and JCOR issued a new purchase order for the completion of painting work in unit D of the Project for a price of $10,260 plus taxes. [7] [ 14 ] Change order # 3 includes installing wallpaper in Unit D for $1,900. [ 15 ] By June 1, 2017, JCOR had paid FAB $49,927 (taxes included) for work performed by FAB on the Project, not including the disputed invoices, namely invoice #2318 for $6,346.63 and invoice #2320 for $4,442.64. [8] [ 16 ] On the same date, FAB signed a release acknowledging having been paid by JCOR for all amounts due for work performed on the Project except for invoices # 2318 and # 2320 (“ Disputed Invoices ”). [ 17 ] FAB does not dispute that it has been paid in full for the original price of the subcontract and the change orders.

However, it asserts that JCOR still has not paid invoices # 2318 and # 2320. [ 18 ] Invoice # 2318 covers work performed by FAB between March 3 and 10, 2017 and includes “repaint walls and ceilings due to excessive plaster repairs” in Unit C of the Project. [9] It includes only labour (80 hours @ $69/hours) and totals $5,520 plus tax, for a total of $6,346.63. [ 19 ] Invoice # 2320 covers work performed by FAB between March 13 and 17, 2017 and includes “extra” painting work in the elevator shaft and touch ups, and touch ups in Unit B of the Project. [10] It includes only labour (56 hours @ $69/hour) and totals $3,864 plus tax, for a total of $4,442.64. [ 20 ] FAB contends that the painting work covered by the Disputed Invoices constitutes extra work that was expressly authorized by John Corker of JCOR based on a time and materials remuneration basis. [ 21 ] FAB claims that this authorization results from an email sent by Mr.

Corker on February 17, 2017, to FAB (John Baranello) where he writes: [11] “SUBJECT: Unit C Painting I checked with Duncan [JCOR representative] and he confirmed there are extraordinarily repairs to the wall and ceilings. These were causes by the closet installer, millwork, and stair contractors, as well as some deficiencies in the plastering. We will assign the costs appropriately. Please proceed on a t&m basis and get Duncan to sign the time sheets.” (Underlining added) [ 22 ] FAB is correct that Mr.

Corker’s February 17, 2017, email constitutes authorization for some of the painting work performed in Unit C, but in no way does this email justify the payment of the whole of invoice #2318. [ 23 ] This email is not a blanket authorization for all the work covered by invoice #2318. [ 24 ] JCOR’s representative admits that it owes FAB for a portion of invoice #2318, namely the work which he authorized in his February 17, 2017, email. [12] [ 25 ] He explains that a portion of invoice #2318, specifically $2,300 in time (plus tax), or $2,644.43 out of the $6,346.63 (taxes included) does indeed include time spent by FAB to fix damages caused by the owners’ other sub-trades, work which he authorized in his email. [ 26 ] Given this admission, the Court concludes that JCOR owes FAB $2,644.43 on invoice #2318. [ 27 ] As for the balance of the work covered by this invoice, JCOR asserts that it covers work performed by FAB to correct painting deficiencies in units B and C of the Project.

This issue will be addressed in the second portion of these reasons for judgment. [ 28 ] As for invoice # 2320 which covers work performed in Unit B, Mr. Corker’s email only authorized work performed in Unit C. Accordingly, this email cannot be relied by FAB as proof that JCOR authorized the work covered by this invoice. [ 29 ] FAB argues that Invoice # 2320 includes painting of the elevator shaft, which was beyond the scope of the Subcontract, but which was nonetheless verbally authorized by JCOR through Mr.

Corker. [ 30 ] However, the Court agrees with JCOR in that the “extra” painting services covered by invoice # 2320 were never validly accepted by JCOR considering the terms of the Subcontract between the parties. Indeed, Clause 5 of the general terms and conditions to the Subcontract stipulates that “ No claims for compensation or lost time will be accepted without a purchase order signed by JCOR Construction Inc .” [ 31 ] Where a contract contains a modification clause, the parties must rigorously follow its provisions. [13] [ 32 ] While Mr.

Barnett, JCOR’s representative on the site, signed FAB’s purchase order for invoice # 2320 and for invoice #2318, the purchase orders he signed did not contain any hourly rates or price. [14] A price is an essential element of a purchase order. A person who signs a document which bears the title “purchase order” but which does not contain a price for the service to be provided does not

bind himself and this document does not constitute an enforceable contract. [15] [ 33 ] Moreover, Mr. Barnett’s signature could not constitute an acceptance of a claim for compensation for the purposes of clause 5 of the general terms and conditions as he was not authorized by JCOR for approving change orders. He only signed the FAB purchase orders to “acknowledge [FAB’s] presence on the job site.

These hours were to complete the contract work, clean-up deficiencies…” [16] [ 34 ] Therefore, FAB has not proven that JCOR is obliged to pay the work covered by invoice #2320 as the work on this invoice does not constitute extra work which JCOR accepted pursuant to the modification clause (Clause 5 of terms and conditions) of the Subcontract. [ 35 ] To summarize: 1. JCOR owes FAB $2,644.43 for a portion of the work covered by invoice # 2318, namely that portion of the work that JCOR admits to owing.

The balance of the invoice, namely $3,702.20 ($6,346.63 – $2,444.43) is not owed by JCOR as it was not authorized by JCOR as per the terms of clause 5 of its general terms and conditions or covers work to correct poor workmanship (discussed below); and 2. JCOR does not owe FAB anything on invoice #2320 because it covers work that was not authorized by JCOR as per the terms of clause 5 of its general terms and conditions.

b) Was the painting work for which FAB claims payment through invoice # 2318 and # 2320 deficient, and if so, what damages were caused to JCOR by this breach? [ 36 ] JCOR’s contestation calls into play the grounds of defence codified in

article 1591 of the Civil Code of Québec ( C.C.Q. ) called exception for non-performance and the warranty against poor workmanship of

article 2120 C.C.Q . [ 37 ] This exception for non-performance is a remedy that allows a party to a bilateral contract to withhold its own performance, accompanied by a right to ward off a claim for such performance or to make a cross-claim, where the other party has failed to perform its obligations under the contract to a substantial degree. [ 38 ] Under

article 2120 C.C.Q. , FAB warrants its painting work for one year against poor workmanship existing at the time of the acceptance or discovered within one year from the acceptance of the work. [ 39 ] This warranty is triggered once the poor workmanship is proven; there is no need to prove the fault of the subcontractor if the contractor (or the client) proves the poor workmanship of the subcontractor. [ 40 ] The evidence reveals that the owner of Unit C, Mr. G. Brown, complained to JCOR by email sent February 23, 2017, of deficient paint work. [ 41 ] In June 2017, Mr.

Brown sent JCOR an updated deficiency list specifying numerous issues related to improper and uncompleted painting work. [17] Mr. Brown corroborated JCOR’s position that FAB never satisfactorily completed the items on the deficiency list. [18] [ 42 ] FAB was informed of these deficiencies. [19] [ 43 ] As for unit B, the owner of this unit, Mr. Burrows, had a deficiency list prepared by Mr. Leo Soares, engineer. According to Mr. Soares’s deficiency list dated May 30, 2017, there are numerous deficiencies related to FAB’s painting work.

The pictures annexed to the Soares Report support the conclusion as to deficient paint work. According to this report, it is estimated that the cost to remedy these deficiencies is $11,650. [20] [ 44 ] JCOR has proven that FAB breached the warranty against poor workmanship. [ 45 ] On August 21, 2017, JCOR sent FAB a letter raising the issue of the deficiencies and the poor workmanship.

The Soares deficiency list was attached to this letter. [ 46 ] JCOR incurred costs of at least $7,959.50 to correct FAB’s defective work. [21] [ 47 ] Hence, while JCOR owes FAB $2,644.43 for a portion of the work covered by invoice #2318, FAB’s poor workmanship caused JCOR to suffer damages of $7,959.50 to remedy this work. [ 48 ] Applying the rules of compensation [22] , FAB owes JCOR $5,315.07 ($7,959.50 - $2,644.43). FOR THESE REASONS, THE COURT: [ 49 ] GRANTS in

part Les Peintres FAB Inc.’s application for $2,644.43; [ 50 ] GRANTS JCOR Construction Inc.’s cross-demand for $7,959.50; [ 51 ] EFFECTS compensation between the debts owed between the parties; [ 52 ] CONDEMNS Les Peintres FAB Inc. to pay to JCOR Construction Inc. $5,315.07 with interest at the legal rate plus the additional indemnity of

article 1619 of the Civil Code of Québec as of the date of this judgment; [ 53 ] WITH LEGAL COSTS of $300 payable by Les Peintres FAB Inc. to JCOR Construction Inc.

__________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: July 9, 2019