2015 QCCQ 4890, 2015 QCCQ 4890

Andrade c. Pan 2015 QCCQ 4890 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-144070-143 DATE: May 7, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MARC-DAVID ANDRADE […] Senneville (Québec) […] Plaintiff v.

BIN PAN […] Beaconsfield (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ The Parties and their Positions [ 1 ] The Plaintiff, Marc-David Andrade, is self-employed, performing services of landscaping and yard care. He claims from a former client, Mr Bin Pan, who owns a home in Beaconsfield, Quebec, the amount of $ 398.25 alleged to be his costs for the preparation of the contract that the Defendant cancelled. [ 2 ] In fact, he voiced his claim as a “cancellation fee”.

He takes the position that a contract was formed on June 10 th to be carried out on June 23 rd , and that he was informed June 22 nd that the contract would be cancelled by Mr Pan. He only became aware of the email cancelling the contract after he had rented a special ladder to perform the work and it was too late for him to

schedule other work for the day. [ 3 ] The cost of renting the equipment, a 16 foot tripod ladder was $ 92.38, taxes included. Mr Andrade rented the ladder for a one- week period, and actually used it on another job in the week of June 23 rd , 2014. [ 4 ] Mr Pan denies the claim.

In his contestation, he states that he believes he had the right to cancel a “verbal” contract on the same day as he got the price, which he alleges was too high for the job. [ 5 ] At the hearing, it became clear that Mr Pan was also taking the position that a contract was only agreed to for the first time on June 22, and that, subsequently to the formation of the contract, Mr Andrade agreed to re-quote a price for a smaller scope of work and this new price was not agreed to. [ 6 ] So, Mr Pan’s Defence, as stated at the hearing, is actually that no contract was formed.

The Facts and Issues [ 7 ] The amount that Mr Andrade claims is significantly less than his actual losses according to his narrative. [ 8 ] His examination established that, had he done the work according to a second quote, he would have charged $ 738 and would have incurred costs of $ 220 for an assistant and $ 50 for his mobilisation, and use of equipment. His actual loss, therefore, was $ 560.38: his claim is for substantially less. [ 9 ] The real issue in the case therefore is whether the Defendant resiliated the contract as he is entitled to do so pursuant to

article

2125 of the Civil code of Quebec and, if so, the amount he is bound to pay Mr Andrade representing actual costs and expenses or the value of the work performed before the end of the contract or before the notice of resiliation. [ 10 ] The formation of the contract is established through the testimony of the parties and the exchange of emails. [ 11 ] On June 10 th , Mr Pan wrote to Mr Andrade: “When would you have time to trim the hedge?” [ 12 ] Mr Andrade replied the same day: “I have planned to pass by on Monday the 23 rd of June.

Is this good for you? ” [ 13 ] In 2012, Mr Andrade had performed similar work on the same hedge for an amount of $ 888. Mr Pan admits in a subsequent email, dated June 30 th : “I understand I brought inconvenient to you. I am very sorry for that. The first year we have agreed on $ 888, and the 2 nd year, you gave me a quote of $ 480 which I skipped.

This year is the 3 rd year and you gave me a quote the same as the first year”. [ 14 ] This email, sent after the work was called off, shows that a price had been quoted. [ 15 ] The email of June 10 th shows that Mr Andrade had committed to the work for June 23 rd and, in fact he attended at Mr Pan’s home on the evening of June 22 nd to reconfirm the scope of work, and was given the go-ahead.

Analysis [ 16 ] Mr Pan’s attempts to re-negotiate the contract and his subsequent failure to confirm his acceptance for a slightly different scope of work at a reduced price, amount to a resiliation: he decided not to go ahead with the work at all. [ 17 ] As the client, he had the right to unilaterally resiliate the contract and he would even had the right to do so had the work already been in progress. [ 18 ] In this case, the work was not yet in progress, so Mr Andrade’s claim is limited to the actual costs and expenses be incurred. [ 19 ]

Article 2129 CCQ does not permit a claim for loss of profit, only for the proportional value of the work completed up to the moment when the contract is resiliated. [ 20 ] Therefore, in this case, the only concrete cost that the Plaintiff has demonstrated is the rental fee of $ 92.38 for a special piece of equipment. [ 21 ] Mr Andrade very candidly admits that he used the ladder on another job that week, which enabled him to save time. [ 22 ] Since he rented the ladder for a week, it would seem probable that he intended to use it on the other job as well. [ 23 ] In that case, only half of the price should be awarded as costs associated with the contract resiliated in this case. [ 24 ] Since Mr Andrade did not have to pay the employee that he would have hired that day, he did not incur any other costs in that regard, nor did he actually mobilize on the site before the contract was resiliated.

His costs are, indeed, quite limited. FOR THESE REASONS, THE COURT: CONDEMS the Defendant to pay the Plaintiff the amount of $ 46.19 with interest at the legal rate of 5% per annum and the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from June 30 th , 2014, as well as costs for the judicial stamp in the amount of $ 74.25. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 13, 2015