2019 QCCQ 2769, 2019 QCCQ 2769

Sayers c. Groupe XYZ Civitas 2019 QCCQ 2769 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Civil Division No: 455-32-700853-186 DATE: April 24, 2019 ______________________________________________________________________ PRESIDED BY SOPHIE LAPIERRE, J.C.Q. ______________________________________________________________________ Leslie SAYERS , residing at [...], Lac-Brome (Québec) [...] Plaintiff v.

LE GROUPE XYZ CIVITAS , 160, Cowie Street, Granby (Québec) J2G 3V3 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Leslie Sayers asks to be reimbursed the fees he paid to Le Groupe XYZ Civitas (Civitas), a firm of land surveyors, because of an alleged error in a plan made by the land surveyor, Mr. Daniel Jodoin. [ 2 ] Furthermore, Mr. Sayers claims that the estimated fees for Mr. Jodoin’s services would run from $1,500 to approximately $1,600. He nevertheless was charged $3,449.25.

He refuses to pay more than the estimated fees. [ 3 ] Civitas pleads that the work executed by the land surveyor is the result of two separate mandates requested by Mr. Sayers. The estimated fees were related to one of these. It also pleads that Mr. Jodoin did not make any error. QUESTIONS AT ISSUE [ 4 ] Does Mr. Sayers meet his burden of proving the professional error of the land surveyor? [ 5 ] Does Mr. Sayers have the right to be fully reimbursed for the paid fees because they exceed the estimate given by Citivas?

ANALYSIS [ 6 ] The Court has to analyse the facts according to the burden of proof bearing upon Mr. Sayers. [ 7 ] In order to succeed in establishing the surveyor’s professional liability, Mr. Sayers has to prove every one of these elements: • the nature and extent of the mandate he gave to Citivas; • that the land surveyor made an error which meet the criteria of a professional fault; • the prejudice caused by that fault. [1] [ 8 ] The Court concludes that Mr. Sayers does not meet his burden of proving the professional liability of Mr. Jodoin for the following reasons. [ 9 ] Mr.

Sayers gave a first mandate to Citivas consisting of a preliminary evaluation of the limit between his neighbor’s land and his own.

[ 10 ] Mr. Sayers is then of the opinion that the limit of his land coincide with a fence. He submits that a plan made by a previous land surveyor erroneously shows that the limit does not meet the fence. He wants this error to be corrected by a new plan. [ 11 ] Mr. Jodoin first visits part of Mr. Sayers’ land with him in order to make a preliminary evaluation of the situation, as agreed with Mr. Sayers. During that visit, Mr. Sayers asks Mr. Jodoin to measure the limit and draw a plan accordingly. Mr. Jodoin agrees. [ 12 ] As a result of his measurements, Mr.

Jodoin produces a plan showing that the limit does not coincide with the fence. [ 13 ] Mr. Sayers testifies that the plan is erroneous again. He states that the plan should show that the limit meets the fence. [ 14 ] Sometimes, one has to present an expert witness to meet his or her burden of proof. It is often the case when professional liability is discussed. [ 15 ] The Court cannot conclude that there is a professional error without sufficient proof. The sole testimony of Mr. Sayers is insufficient in this matter. [ 16 ] Mr.

Sayers expects the Court to state where the limit is but the Small Claims’ Division of the Court of Québec does not have jurisdiction on this matter. The Court also does not have jurisdiction to declare where or how the fence should appear on the plan. [2] [ 17 ] Mr. Jodoin provided his services according to what was agreed with Mr. Sayers. The fact that the result is different than the one expected by Mr. Sayers does not prove that Mr. Jodoin made a professional error. [ 18 ] This leaves the question of the cost of Mr.

Jodoin’s services. [ 19 ] Where the price of the services is estimated at the time the contract is entered into, the provider of the services shall justify any increase of the price. The client is bound to pay such increase only to the extent that it results from services the provider could not have foreseen at the time the contract was entered into. [3] [ 20 ] Mr. Sayers did not dispute the fact that he decided to extend Mr. Jodoin’s initial mandate. Thus, the original estimate did not stand anymore and Mr. Sayers did not ask for a new one. [ 21 ] Consequently, Mr.

Sayers fails to establish a right to any reimbursement for the fees paid to Citivas for Mr. Jodoin’s services. FOR THESE REASONS, THE COURT: [ 22 ] DISMISSES the introductive demand; [ 23 ] CONDEMNS Mr. Sayers to the judicial costs of $101. __________________________________ SOPHIE LAPIERRE, J.C.Q. Date of hearing: March 20, 2019