2018 QCCQ 9778, 2018 QCCQ 9778

Silver c. Ross 2018 QCCQ 9778 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32- 157261-175 DATE: December 12, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE ÉRIC DUFOUR, J.C.Q. ______________________________________________________________________ JASON SILVER Plaintiff vs. SILVIN ROSS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $4,660 from the Defendant.

He alleges that the Defendant, to whom he ordered a piece of furniture – a sofa – failed to build it in accordance with the specifications he gave. For instance, an arm and the back of the sofa are too high when compared to what Plaintiff wanted. He asks the Court to cancel the contract. [ 2 ] Defendant strongly denies Plaintiff’s allegations. He affirms that the sofa was built according to what was agreed upon by the parties after mutiple discussions. [ 3 ] For the following reasons, the Plaintiff’s claim will be set aside.

QUESTION IN DISPUTE Here is the only question the Court has to answer : What were the specifications of the sofa agreed on by the parties ? CONTEXT [ 4 ] Somewhere in the beginning of 2017, Plaintiff visits the Defendant at its business premises located on Amherst Street in Montréal. The name of the store is «Pouf-Pouf». Plaintiff wants Defendant to create and build a sofa which he needed for his sister’s engagement party. As Plaintiff has a specific idea of the design of the sofa, he brings photographies [1] of an Italian sofa, showing what he was looking for.

A total of seven meetings are held at the store while the sofa is being built. [ 5 ] Plaintiff has paid so far $4,600. It is noteworthy to point out that, according to Plaintiff’s testimony, no contract was signed by the parties. He adds that no bill or invoice was issued even when he asked for. [ 6 ] Defendant testifies to the contrary and produces the invoice he sent to Plaintiff [2] . [ 7 ] Plaintiff waits for long the delivery of the sofa.

According to the Defendant, the delay was occurred because of Plaintiff’s change of mind, notably the choice of the fabric. [ 8 ] When the sofa is finally delivered, Plaintiff notes the following defects : - the sofa was 9.5 feet in length instead of 10.5 feet; - the fabric inside the sofa was swapped for less expensive filling; - the height of the sofa was higher than what was demanded. [ 9 ] Plaintiff complains about the situation, but to no avail, according to him. On June 22, 2017, he send a letter of demand to the Defendant, asking for the reimbursement of what he paid so far. ANALYSIS

[ 10 ] What were the specifications of the sofa the parties agreed on? [ 11 ] First, the Court emphasises that it is the Plaintiff’s burden to establish the facts that found his claim. He must convince the Court that his claim is well-founded. He must do so according to the onus of proof in civil litigation, which is the balance of probabilities [3] . [ 12 ] That being said, the Court heard the testimonies of both the Plaintiff and the Defendant. The latest seemed to have a better recollection of the facts. He insisted that Plaintiff’s specifications of the sofa were not realistic.

Proportions have to be respected when it comes to build that kind of furniture. That is why, for example, the back of the sofa is a little bit higher than the height the Plaintiff wanted it to be originally. [ 13 ] Defendant strongly affirms that he discussed the matter with Plaintiff and made him aware of how the sofa was to look at the end.

Each time, says Defendant, Plaintiff was informed and he agreed to follow the advices of the Defendant, as one can read from an e- mail dated March 11, 2017, where Plaintiff writes :«I have attached an up close picture of the arm of the couch so you can see the arm is slanted as we discussed to allow for more room, I’m ok with 4’’ taken off if that works as well but will leave it to you to decide which is the best.» [4] . [ 14 ] Defendant also affirms that Plaintiff visited the store while the works were done and approved all the measurements, notably regarding the back of the furniture and the arms. [5] [ 15 ] The Court has no reason to put aside Defendant’s testimony.

He was calm at trial even when Plaintiff suggested that Defendant insisted to be paid with cash money to avoid paying the taxes whereas Exhibit D-1 shows the contrary. Defendant also convinced the Court that, while Plaintiff had a precise idea of the design of the sofa, he accepted the modifications suggested by the Defendant along the way. [ 16 ] In civil law (as well as under the Consumer’s Protection Act), a contract binds on the parties.

It cannot be torn apart unless one of them establishes that the obligations have not been fulfilled. [ 17 ] Here, Plaintiff did not meet his onus of proof and failed in establishing his claim. He did not convince the Court why Defendant’s testimony should be rejected. As the Court is faced with the situation where two different set of facts are put forward by the parties and considering that Defendant rendered a strong testimony, Plaintiff’s claim must fail.

For these reasons, the Court : [ 18 ] DISMISSES Plaintiff’s claim, with the costs of $100 of the fees of the Contestation to the Defendant. __________________________________ ÉRIC DUFOUR, J.C.Q. Date of hearing: December 3, 2018