2015 QCCQ 4877, 2015 QCCQ 4877

Diaccoumacos c. Awad 2015 QCCQ 4877 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-133105-124 DATE: May 19, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ANGELOS DIACOUMACOS […] Kirkland, Qc […] and ANGELA SAREEN […] Kirkland, Qc […] Plaintiffs v.

YOUSSRY AWAD […] Dollard-des-Ormeaux, Qc […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Mr Diacoumacos and Mrs Sareen, owners of a home in Kirkland, Quebec, sue Mr Youssry Awad, claiming $ 7,000 in damages for alleged faulty installation of porcelain floor tiles pursuing to a contract dated May 13, 2010 (P-1, D-1). [ 2 ] They allege that the tile work was not of good quality, that it performed badly developing cracks and shifting, and it had to be replaced entirely. [ 3 ] The Defendant contests stating that he is not an expert in floor tiles nor had he held himself out to be so, and that he was simply working as a handyman under the Plaintiffs’ supervision. [ 4 ] He claims a balance of $ 2,000 of the total contract price of $ 15,000.

His claim is based on his assertion that he was not given the opportunity to complete his work in order to be paid the balance as the parties had agreed in an addendum to the contract (P-1). ISSUES [ 5 ] To resolve this case, the Court must answer the following questions: 1. Is the Defendant entitled to the balance of the contract because he was prevented from completing the work? 2. Is the tile work done by the Defendant faulty, giving rise to damages and, if so, for what amount?

FACTS [ 6 ] The contract, dated May 13, 2010, had as its object a substantial renovation of the interior of the home involving installation of new gyproc walls, stabilizing floors, installing plumbing including replacement of fixtures, the installation of hardwood floors, doors, carpets and painting, as well as a number of other works including, as a major portion of the work, the laying down of a new porcelain

tile floor throughout substantial portions of the living space, approximately 500 square feet, according to the testimony of the parties. [ 7 ] It is obvious that this work cannot be considered as the work of a handyman: it required the capacities and expertise of a contractor. The Plaintiffs are homeowners, not persons involved in construction.

Mr Awad’s assertion that he was simply working according to Mr Diacoumacos’s instructions does not have very much weight. [ 8 ] In fact, Mr Awad, although he admits not being a tradesman and having no formal qualifications in construction, believes that he is capable of performing work of good quality and informed the Court that he had done so for the person who was his contact with the Plaintiffs. [ 9 ] Although the Defendant is not a qualified contractor under the applicable regulations, nor is he a certified tradesman, he was, implicitly, holding himself out to be capable of doing the work when he agreed to the contract.

The contract was for a substantial amount, $ 2,000 for demolition and $ 15,000 for labour, all of the material costs to be provided by the Plaintiffs. [ 10 ] The work was approaching completion when a dispute arose between the parties. Mr Awad wrote July 15 th stating his readiness to finish the job, so long as the Plaintiffs provided the missing materials. He complained that the balance then held back was greatly in excess of the value of the work to be completed and he threatened legal action.

This led to the Parties agreeing on August 4 th , to the following addendum: If the contractor Youssry Awad does not show up on Tuesday August 10, 2010 to complete his job, this contract will be null and void.

The contractor will focus on this project for 4 consecutive days or if the job is finished before to the satisfaction of the homeowners (Balance owing $ 2,000). [ 11 ] The document is signed by Youssry Awad and Angelos Diacoumacos. [ 12 ] The evidence is contradictory as to what happened on August 10 th . [ 13 ] Mr Diacoumacos testified that he and Mrs Sareen were not present that day, but they left their daughter, Alexa Kiron Sareen Diacoumacos in charge of the house and of her younger sister.

She was approximately 14 years old at that time. [ 14 ] Alexa Kiron testified that, on that day, someone arrived at the door. She was expecting Mr Awad, whom she knew, having seen him during the time he worked on the premises.

Since it was not Mr Awad who rang the door bell, she did not answer. [ 15 ] Mr Awad testified that he attended that day, at the premises, with another individual, an air-conditioning contractor named “Mounir” who was an acquaintance of his who had worked on the property performing air-conditioning services for the Plaintiffs. [ 16 ] Mr Awad, therefore, complained that he was not given access to the premises to complete his work and that he should therefore be entitled to the payment of the $ 2,000 balance. [ 17 ] The Plaintiffs eventually had the work completed by someone else and withheld the final payment of $ 2,000. [ 18 ] The Plaintiffs complain that the tile work was cracked in several places and that the tiles appeared to be shifting. [ 19 ] After they put Mr Awad in default, on the 28 th of July, 2011 (P-3) and had no response, they eventually obtained estimates and had work done by Mr Diacoumacos’s brother, Constantinos Diacoumacos who does business under the name Costmos Peintures & Rénovations (P-14). [ 20 ] The Court heard the testimony of Mr Constantinos Diacoumacos.

He was not qualified as an expert witness, although he showed that he possessed a certain amount of experience in the construction field.

His testimony, to the effect that he used competent workman, was credible. [ 21 ] He observed that the tiles easily lifted from the floor and that the cement that had been used, having the appearance of a wafer of Portland cement mix, broke up and detached from the underlying plywood very easily. [ 22 ] He also observed that the plywood was not screwed to the floor’s joints at regular intervals and he spent considerable time with his workman re-screwing the plywood floor out the joints. [ 23 ] His tile man then applied the adhesive and the porcelain floor tiles of similar quality to the existing ones achieving a result that is visually quite acceptable, as can be seen in the photographs (P-16). [ 24 ] The Plaintiffs also produced two other estimates in which the contractors criticize the existing work and suggest ways of correcting it.

In all cases, the solution was to tear up everything that had been laid down and redo the work. [ 25 ] Although the statement of the other contractors are not admissible as to their observations, having not been properly produced with the appropriate notice to Mr Awad, the overall situation including the observations by the Plaintiffs and by their contractor, satisfy the burden of proof that, on the balance of probabilities, Mr Awad’s work was not adequately carried out. [ 26 ] Construction work is normally an obligation result.

Here the result was poor, and the obligation was therefore not adequately performed. [ 27 ] Mr Awad complained that he has never inspected the work, but he did not make any written reply to the letter of demand, nor can he establish that he attempted to contact the Plaintiffs to have an opportunity to inspect and/or correct the work. [ 28 ] As well, his assertion that he was prevented from completing his own work lacks substance because when he, according to his

testimony, was not given access on August 10 th , he did not give any written notice insisting on being given access and putting the Plaintiffs in default for the balance of the contract price. [ 29 ] It would have been appropriate for him to give a formal notice that he should be given access to complete his work within a given period, failing which he would consider that he is entitled to payment of the balance. [ 30 ] Throughout the period involved, Mr Diacoumacos established with phone records that he attempted on many occasions to communicate with Mr Awad, unsuccessfully. [ 31 ] The bill charged by the new contractor for the replacement work is $ 6,898.80. [ 32 ] This does not appear to be unreasonable given that another estimate was given at $ 9,455.77 (P-5). [ 33 ] As well, Mr Constantinos Diacoumacos answered the Court’s questions candidly and without hesitation when he was asked to give details of the time spent and the approximate cost and value of the work. [ 34 ] His work was charged at approximately $ 14 per square foot, materials and labour included, whereas his competitor would have charged a unit price equal to almost $ 19. [ 35 ] In

summary then, Mr Awad has not established that he is entitled to the balance of the contract, having not put the Plaintiffs in default to give him access when there was a certain ambiguity about his attendance or failure to attend on October 10 th . [ 36 ] The Plaintiffs are entitled to damages for the poor workmanship involved in the laying of the tiles, which was a significant component of the contract. [ 37 ] The Plaintiffs have established reasonable damages in the amount of $ 6,898.80. [ 38 ] Before having this work done, the Plaintiffs gave a proper written demand to Mr Awad who was therefore in default because he failed to provide a solution to the problem he was informed of.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiffs the sum of $ 6,898.80 with interest at the legal rate of 5% per anumn and the additional indemnity provided by

article 1619 of the Civil Code of Québec , calculated from the date the Plaintiffs incurred their damages, August 4, 2014; CONDEMNS the Defendant to pay the Plaintiffs’s judicial fees of $ 163.00; DISMISSES the Defendant’s cross-demand. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 14, 2015