2013 QCCQ 2427, 2013 QCCQ 2427

JH 5371 Carlyle Construction inc. c. Cooke 2013 QCCQ 2427 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-182927-114 DATE: March 5, 2013 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ CARLYLE CONSTRUCTION INC. Plaintiff v.

JENNIFER COOKE Defendant and L'OFFICIER DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE DE MONTRÉAL ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Carlyle Construction Inc. (Carlyle) has introduced an Amended motion in forced surrender of an immoveable pursuant to renovations done in the home of Jennifer Cooke. It claims that Mrs.

Cooke is in default to pay it a balance of $17,478.34 (of a total of $34,903.01). [ 2 ] In her defence, Jennifer Cooke alleges that her budget, to the knowledge of Carlyle, was of $16,000.00 and that this is all she owes. Having paid $14,448.94, Mrs Cooke admits owing a balance of $1,501.60. She also claims damages for defective workmanship as well as moral damages. At trial, Mrs.

Cooke's attorney made a verbal motion to amend the cross-demand, to add a conclusion to condemn Carlyle to the payment of $5,000.00 in punitive damages in virtue of the Consumer Protection Act [1] . [ 3 ] Carlyle's attorney argued that he was taken by surprise by this amendment presented after both parties had closed their evidence. In view of this, the Court allowed the parties to specifically plead this question in writing. The Court has received their arguments and authorities on this question. AMENDMENT OF THE CROSS-DEMAND [ 4 ] The right to amend is the rule rather than the exception.

Only in circumstances where an amendment is useless, contrary to the ends of justice or constitutes an entirely new demand should it be denied. [ 5 ] Although the motion to amend was presented without prior notice and at the very last minute, the Court will nonetheless allow it since the criteria contained in

section 199 Code of Civil procedure are respected [2] . The amendment requires no further evidence. Plaintiff's defence to this claim is complete. QUESTIONS IN DEBATE [ 6 ] The Court must decide the following questions: 1. What is the nature of the parties' agreement? 2. Is Carlyle's billing justified? 3. Are the renovations affected by defects? If such is the case, what is the cost of repairing these defects? 4. Are the moral and the punitive damages justified? 5. What of the expert's fees?

THE FACTS [ 7 ] Carlyle is a licensed construction firm doing business in both residential and commercial renovations. Its president, Matthew Tennant, is an electrician by trade. It has approximately seven employees including Mr. Tennant and has an annual billing of approximately $1,000,000.00. [ 8 ] Mr. Tennant's tasks within the company are to give estimates, as well as to manage and supervise the work of Carlyle's employees and sub-trades. He is also responsible for marketing and accounting. [ 9 ] In 2009, Jennifer Cooke had recently moved to Montreal from Winnipeg.

She was searching for a house and was referred to Carlyle since she required a building inspector. Once she had decided to purchase the condominium in question in this matter, she requested that Carlyle do some minor renovations. This work was done in December of 2009. [ 10 ] At the end of 2009, Mrs. Cooke was planning to do more substantial renovations to her new home. This included important renovations to the kitchen, bathroom and dining room. She requested fixed price contracts from Carlyle.

She received three different estimates for substantially different projects: - Exhibit P-11, December 8, 2009: $32,506.15 (taxes included); - Exhibit P-12, January 21, 2010: $38,180.39 (taxes included); - Exhibit P-13, January 22, 2010: $62,194.12 (taxes included). [ 11 ] At this point, Mrs. Cooke had obtained a credit margin for her hypothec and for her renovations. Her renovation budget was of $16,000.00 or $17,000.00 and wrote the following e-mail to Mr. Tennant [3] on March 29, 2010: Hello Matt, Desjardins will not give me any more money than the $16,000.00 that they provided when I purchased the property .

This all has to do with my not putting 10% down, I only put 5% I wish I had put more on the property. This would not be an issue as they would have given me more money right from the start. Tabernooooosh :) What can I do with $16,000.00??? Obviously means doing way, way less… New toilet, new vanity, new floor, tub out goes replace with shower. Still want to take the closet out of the office give more space to existing bathroom. I need your suggestions. […] Can we chat about this? I am now a poor church mouse in need of renovations of a simpler kind.

Rrrr/Purrr (Emphasis added) [ 12 ] The parties agreed that this budget would not allow the extensive renovations Mrs. Cooke would have liked initially. Also, the parties no longer worked with the previous fixed price projects. [ 13 ] On May 13, 2010, Mrs. Cooke and Mr. Tennant exchanged the following e-mails [4] : Hello Matt, Your figures total $20,600.00 What do we need to throw from the ship to get it to a total of $17,000.00 ??? I guess not doing the closet in my bedroom or maybe another solution for the closet? I believe that you can do either the closet and one other room, bathroom or kitchen.

As the building is very old I imagine we will find complications as we open walls and floors. If you have money left over I think you should reface the cabinet doors and then wait to do the remainder of the kitchen […] __________________________________________________________ 2) I have been going trough the numbers for the renos. Here is what I think you will get at cost plus. 1) Bathroom is still going to be a hefty number as we need to do electrical, plumbing. framing, tiling… I think you get the picture. Total cost $11,000.00 - $12,000.00

2) Your custom cabinet is going to be $2300.00 - $2700.00 3) Kitchen is going to run around 4800,00 – 5900,00. This should give you a good idea what the costs are going to be including material . Now the $$$ figure can go through the roof if the material changes. [ 14 ] Mrs. Cooke submitted a plan for renovations of the bathroom alone. She modified a plan that had been previously used by Carlyle for its fixed prices. On June 19, 2010, she submitted a final version of the plan to Mr. Tennant [5] . [ 15 ] Mr. Tennant responded as follows [6] : Hello, I saw the plans.

What a great solution and the most cost effective . We are finishing the 2 projects we started about a month ago this week so I would like to start yours on Monday the 28th around 5:00 am….Okay 7:00 so you can sleep in and I won't ask you questions until 9:00. Sound good? P.S for Carlyle email address were you thinking carlyle@carlylegroup.ca as I cannot remember what we had discussed and can this work for all of us. Thx (Emphasis added) [ 16 ] Mr.

Tennant testified that since the earlier fixed price projects had not been retained, he suggested that the work be done on a "cost-plus" basis, meaning that Carlyle would charge an hourly rate, plus the costs of materials. Carlyle did not claim any mark-up on the materials, nor any administration fees. However, since Mrs. Cooke did not have a car, it was agreed that Mr. Tennant would purchase and deliver all necessary materials. It was understood that this would not be free of charge.

However, no specific hourly rate for this service was discussed. [ 17 ] The work began on or about June 28, 2010 with the demolition of the existing bathroom. The project was to divide the space in two sections, in order to build a bathroom

section and a water-closet. [ 18 ] During the renovations, Carlyle remitted three bills to Mrs. Cooke: 1) July 11, 2010 : $9,219.62 (tax included) [7] ; 2) July 18, 2010 : $5,480.01 (tax included) [8] ; 3) August 11, 2010 : $16,956.09 (tax included) [9] . [ 19 ] After receipt of the second bill, Mrs. Cooke questioned Mr.

Tennant about costs in an e-mail dated July 19, 2010 [10] : Hello Matt, 2,632.25 March 18th Paid (for office etc) $9,076.09 July 12 th , Paid (bathroom and office) Your recent invoice of $5,480.01 brings total to $17,188.33 Does the $5,480.01 include finishing the office and exposing brick in sitting room and bathroom? I guess nothing for the kitchen? :) I am a wee bit over budget. Will confirm with Desjardins on balance in the construction account, I do not actually get to see the money in it. Just when it gets transferred over to my mortgage .

I might be able to squeeze an bit more out of them will have to see :) Rrrrr/Purrr (Emphasis added) [ 20 ] Mr. Tennant responded to this immediately [11] : I was not aware that the 17000 included the work in march. So with taxes I only really had like 12000 or less. Definitely over budget then but we need to finish and then will discuss budget . Ps andrew car broke down. He is getting another car and will be on his way. (Emphasis added) [ 21 ] Carlyle ceased to work at Mrs. Cooke's home on or about August 11, 2010.

[ 22 ] On receipt of the third bill, Mrs. Cooke realised for the first time that the cost of the renovations was practically double her budget ($31,655.72 instead of $16,000.00). A detailed exchange of e-mails began between Mrs. Cooke and Mr. Tennant. Mr. Tennant left (in Mrs. Cooke's mail-box) his spreadsheet identifying the cost of labour for each week of the project (Exhibit P-21) as well as the receipts for materials purchased for the project (Exhibit P-22). [ 23 ] At this point, the parties were no longer on speaking terms and corresponded exclusively through e-mail [12] and then their attorneys.

The notice of legal hypothec was registered on Mrs. Cooke's property on September 1, 2010 [13] . Carlyle's notice to exercise a hypothecary right was registered on January 14, 2011 [14] . EXPERT TESTIMONY [ 24 ] Each party has filed an expert report and presented an expert witness. [ 25 ] Mrs. Cooke's expert was Mr. Richard A. Cartmel of G.T. Inspections. Mr. Cartmel is a civil technologist by profession. He has experience in building inspection and costing of construction projects. He has taught building inspection at Vanier College since 2002. He has acted as an expert witness on numerous occasions. [ 26 ] Mr.

Cartmel received the mandate from Mrs. Cooke to evaluate the renovations done by Carlyle. He received all of the e-mails exchanged by the parties as well as all of the bills, spreadsheets and receipts provided by Carlyle. He inspected the work and concluded that the entire project should have required approximately 160 man/hours at an average rate of $40,00 an hour, as well as requiring approximately $7,000.00 in materials. He concludes that the work should have cost approximately $16,000.00 plus applicable taxes. [ 27 ] Mr. Cartmel concludes his report as follows: Thus, in G.T.

Inspections opinion the hours of work presented appear unsubstantiated or an exaggeration. Carlyle Contr., has stated that they worked 545 man hours. Which does not make any sense at all. (As determined from invoices presented, Annex E and Annex

F) However, the original price of 16,000 $ for the work that was done, appears to be a reasonable and just amount. Please note for this estimate $40./hour was used when in actual fact the average total price of dollars per hour is calculated to be $33.2/hour as used by Carlyle Construction. [15] [ 28 ] As for defects, Mr. Cartmel is of the opinion that there are deficiencies requiring repairs [16] . In his report, he indicates that the cost of repairs would be between $2,100.00 and $3,650.00.

He testifies that the sum of $ 3,000.00 would be a reasonable cost for repairs. [ 29 ] The expert presented by Carlyle to rebut Mr. Cartmel's report was Mr. Tassos Viron of the general contracting firm, G.A. Viron Construction. [ 30 ] Mr. Viron is a Master carpenter by trade and has been involved in general contracting since 1982. He is responsible for the costing of his company's projects as well as supervision of the work and general administration. Although he has testified in Court for his company in the past, he has never acted as an expert witness. [ 31 ] During his cross-examination, Mr.

Viron conceded that his company was a regular subcontractor for work provided by Carlyle. At trial, the Court declared Mr. Viron an expert witness and that his working relationship with Carlyle would be taken in to account in regard of the weight to be given to his testimony. [ 32 ] Mr. Viron testified that he inspected Mrs. Cooke's home for approximately an hour. He was accompanied by Mr. Tennant. He did not speak to Mrs. Cooke to obtain any information. He read the report by Mr. Cartmel only after his visit. As for Mr. Cartmel's evaluation that the work should have cost approximately $6 400,00 for labour, Mr.

Viron's response was that this was "way under". It is however noteworthy to point out that Mr. Viron states in his report [17] :" It is my expert opinion that the minimum amount for this work would have cost: $10,000.00 to $11,000.00 for labour hrs. only + extras ". He provided no details, either in his report or his testimony, as to his reasons for either of these conclusions. [ 33 ] As for the deficiencies described by Mr. Cartmel, Mr. Viron was of the opinion that these were generally of an esthetic nature or caused by the fact that these are renovations to an old house.

ANALYSIS 1- Nature of the agreement [ 34 ] A service contract existed between the parties (art. 2098 C.C.Q. ). But a debate remains as to the type of contract, which intervened. [ 35 ]

Article 2109 C.C.Q. defines the "fixed price" contract: 2109. Where the price is fixed by the contract, the client shall pay the price agreed, and may not claim a reduction of the price on the ground that the work or service required less effort or cost less than had been foreseen. Similarly, the contractor or the provider of services may not claim an increase of the price for the opposite reason. Unless otherwise agreed by the parties, the price fixed by the contract remains unchanged notwithstanding any modification of the original terms and conditions of performance. Mrs. Cooke argues that since a budget was discussed between the parties, this is the

article that applies.

[ 36 ] This is not correct. The parties did in fact discuss the possibility of a fixed price contract. Exhibit P-11, P-12, and P-13 are examples of such discussions. However, the evidence is abundantly clear that these proposed agreements were never finalised since Mrs. Cooke's budget did not allow it. [ 37 ] In the opinion of the Court, this is rather a situation were

article 2107 C.C.Q. applies: 2107. Where the price of the work or services is estimated at the time the contract is entered into, the contractor or the provider of the services shall give the reasons for any increase of the price. The client is bound to pay such increase only to the extent that it results from work, services or expenses that the contractor or the provider of services could not foresee at the time the contract was entered into. [ 38 ] Clearly, Mr. Tennant was aware of Mrs. Cooke's available budget. Mr.

Tennant estimated the price of the bathroom work at $11- $12,000,00 (including materials) in May of 2010 (Exhibit D-9). The work began hardly one month later. This estimate was never changed. There is no evidence that the project changed substantially. On the contrary, the plan sent on June 19 (Exhibit D-3) is "most cost effective" according to Mr. Tennant.

Article 2107 C.C.Q. therefore imposed on Carlyle the obligation of giving reasons for any increase in the estimated price. In the next section, the Court will discuss the facts as to the application of this article. [ 39 ] The evidence shows that other work than the bathroom renovations was agreed to. Mrs. Cooke requested that certain renovations be done to her home office space as well. There is no evidence to show that these renovations were for a fixed price. No written estimate was given by Mr. Tennant. The Court will discuss the evidence in this regard in the next section. [ 40 ] All through the next

section of this judgment, the Court will also take into account

article 2102 C.C.Q : 2102.

Before the contract is entered into, the contractor or the provider of services is bound to provide the client , as far as circumstances permit, with any useful information concerning the nature of the task which he undertakes to perform and the property and time required for that task . (Emphasis added) 2- Is the billing justified? [ 41 ] Although Carlyle's billing does not reflect the fact that part of the renovations were done on an estimate basis and part without, the Court will nonetheless evaluate the bathroom renovations separately from those done in the office. 2.1 The bathroom [ 42 ] This work was estimated at $11- $12,000.00 including material, before taxes (Exhibit D-9).

The only proviso is if material changes "the figure can go through the roof". There is no evidence that this was the case. As said above,

article 2107 C.C.Q. states that Carlyle must "give reasons for any increase of the price". This

article further obliged Carlyle to prove that the increase in cost "could not be foreseen at the time the contract was entered in to". [ 43 ] Does the evidence show that Carlyle gave reasons to Mrs. Cooke during the renovation work? More importantly, were any proven at trial? [ 44 ] The answer to both these questions is no. Carlyle argued forcefully that Mrs. Cooke was acting as "project manager" or "general contractor" all through the renovations. The argument is that Mrs. Cooke works at home, therefore she was present at all times and could see exactly what was going on. Mr.

Tennant went even further in his testimony stating that it was Mrs. Cooke's responsibility to keep an accounting of the hours worked, their cost, as well as the cost of materials. According to him, Mrs. Cooke then had the obligation to order Carlyle to stop working when she felt her capacity to pay had been reached. This is difficult to follow since he also stated that he could not have left the job when he became aware the maximum budget was reached, "because I could not leave Jennifer without a bathroom". [ 45 ] This argument is unfounded. Firstly, the evidence shows that Mrs.

Cooke was never advised of an hourly rate for any of the seven workers who were present at one time or another during this project. How therefore could she evaluate the costs? Secondly, Mrs. Cooke is obviously not an expert in the field of renovations whereas Carlyle is. Thirdly,

article 2107 C.C.Q. obliges Carlyle, not Mrs. Cooke. This attempt by Carlyle to impose on Mrs. Cooke its own obligations is not acceptable. [ 46 ] Carlyle also attempted to show that extra hours were caused by the difficulties during the demolition of the bathroom and by the replacement of the main drain pipe. The evidence does not show that these events were unforeseen. On the contrary, the evidence shows that it should be expected in a 100 year old house that the plumbing system be outdated. Mr. Tennant states exactly this in Exhibit D-9.

As for the other difficulties in demolition, the evidence shows that the bathroom is approximately 8 feet by 12 feet in size. Mr. Cartmel estimates that the time required for demolition is approximately 20 hours. In his opinion, the time spent by Carlyle on demolition is unreasonable. For the week ending on July 4, 2010, Exhibit P-21 shows that, excluding the work done by the electrician, approximately 134 hours were spent on this task. The Court agrees with Mr.

Cartmel that the number of hours billed is exaggerated. [ 47 ] Carlyle argues that two and half hours each day for six weeks were required to install and remove a temporary shower requested by Mrs. Cooke. This work was billed at an hourly rate of $40,00. Therefore, Mrs. Cooke was charged a sum of $3,000.00 for a temporary shower. This argument is not founded for the following reasons:

a) Mrs. Cooke was never informed of the potential costs of her request. Obviously, $3,000.00 for a daily shower is unreasonable;

b) Mr. Cartmel's testimony is that 20 minutes per day is sufficient for this task. This is more convincing then the evidence presented by Carlyle;

c) the six week period alleged by Carlyle is surely exaggerated since the evidence also shows that, at least, the final week of this project was for finishing work. [ 48 ] Carlyle also insisted on Mrs. Cooke's alleged indecision during the renovations. She replaced the shower stall once in order to

have the correct size and asked for a change in the tiling by adding an insert for soap and shampoo. Carlyle's evidence on this point is far from convincing, because the time allegedly wasted (even if accepted at face value, which the Court does not) is far from sufficient to explain the difference between the estimate and the final bill. This argument will not be taken into account. [ 49 ] There is no evidence to show that the estimate of $11- $12,000.00 could not be respected. 2.2 The office [ 50 ] As for the work done in the office space, the billing is also not specific.

There is no specific evidence of the hours spent on this part of the renovations, nor the cost of materials. Clearly, Carlyle, whose burden it is to prove its bill, has not done so. However, the $4- $5,000.00 available, over and above the estimate for the bathroom, should have been sufficient. Otherwise, reasons for such insufficiency should have been proven. Carlyle has not proven that the work billed for the office is due. [ 51 ] Carlyle argues that the electrician invested more time than was expected for the moving and installation of a ceiling fixture, adding two plugs to this room and hiding exposed wiring.

Carlyle's electrician testified that he worked approximately a week and a half, some 60 hours on the bathroom and office. He also stated that he viewed Mrs. Cooke as "the general contractor". Mr. Cartmel estimates, in his report, that 15 hours for the electrician should have been sufficient. The Court agrees with this and sees corroboration in the testimony of Carlyle's electrician who stated that he "pitched-in" for other work, over and above his tasks as an electrician. For example, he spent a number of hours during the final week of this project participating in clean-up.

His higher hourly rate as an electrician was charged nonetheless. [ 52 ] Also, Carlyle did not respect

article 2102 C.C.Q. when the contract was entered into. Other than the estimate for the bathroom, Mr. Tennant never even attempted to supply Mrs. Cooke with "any useful information concerning the nature of the task which he undertakes to perform and the property and time required for that task". 2.3 Conclusion as to Carlyle's bills [ 53 ] On the whole, the Court is convinced that Carlyle lost control of its work on this project. Instead of assuming its own responsibility for its shortcomings, it billed Mrs. Cooke for all the time spent on this project. [ 54 ] Mr.

Cartmel suggested that Carlyle's planning was bad: too many workers used for demolition; the electrician used for clean-up rather than specialised work; 37 trips by Mr. Tennant to purchase supplies (three times a day on average, charged at $40,00 an hour). [ 55 ] The Court agrees with this description. In fact, it is confirmed by a number of elements:

a) Carlyle's insistence on qualifying Mrs. Cooke as project manager or general contractor;

b) the fact that Carlyle included in its billing purchases it should not have, such as bottled water for its employees and more importantly, the purchase of an electric saw that it kept in its possession after the contract was over;

c) the total of hours charged, namely 545 hours over a period of less than six weeks. As stated by Mr. Cartmel: "it does not make sense". He evaluated the total hours required for this project at 160; approximately three and one half times less;

d) the evaluation of $11- $12,000.00 is another reason to not retain Carlyle's evidence and arguments. [ 56 ] The Court is therefore of the opinion that Carlyle's total billing is unjustified. Also, Mr. Cartmel's evaluation of approximately $16,000.00 for the entire job is preponderant. [ 57 ] Mrs. Cooke admits in her proceedings and in her testimony that she owes a balance of $1,501.60. She will be condemned to pay this sum. 3- Are the renovations affected by defects? If such is the case, what is the cost of repairing these defects? [ 58 ] The evidence as to the defective workmanship consists basically of Mr.

Cartmel's testimony. The photographs filed corroborate his testimony. In fact, both Mr. Tennant and Mr. Viron do not deny a number of these facts. Basically, they testified that Carlyle did its best in an old home or that the defects are "just esthetic". This being their position, it is not surprising that Mr. Viron's evaluation for repairs is extremely low. Also, as stated above, Mr. Viron is a regular subcontractor for Carlyle. For this and since Mr. Viron provided absolutely no reasons to justify his opinions, either in his report or his testimony, the Court considers that Mr.

Cartmel's testimony is preponderant. Therefore, the evaluation of $3,000.00 given by Mr. Cartmel, as being a reasonable cost for repairs, is accepted. [ 59 ] Carlyle was put on demand to repair its work. It inspected the allegations and denied them adamantly. Carlyle will be condemned to pay this amount to Mrs. Cooke. 4- Are the moral and the punitive damages justified? 4.1 Moral damages [ 60 ] Mrs. Cooke claims $2 500,00 in moral damages for the following reasons [18] : 33.

Enfin, la défenderesse est en droit de réclamer de la demanderesse la somme de 2 500,00 $ en compensation des troubles, ennuis et inconvénients découlant de ses agissements fautifs et abusifs. [ 61 ] Carlyle committed a fault in over-charging Mrs. Cooke. It further committed an abuse of its rights by undertaking its hypothecary recourse based on what it should have known was an entirely exaggerated bill. The trial required more than two days and included the testimony of two experts. Mr. Tennant maintained throughout the position that Mrs. Cooke was the "general contractor".

His attempt to put such an onus on his client is another example of his abusive position. Mrs. Cooke has obviously suffered inconvenience and stress throughout this process as she stated in her testimony. She was visibly upset and emotional at trial. She has been forced to defend against a hypothecary recourse. She feared losing her home.

[ 62 ] The Court is convinced that Mrs. Cooke has suffered moral damages. In absence of specific evidence, the Court will arbitrate these damages: $1,000.00 is sufficient compensation under this heading when taking into a count, in particular, the fact that Mrs. Cooke has been vindicated as to her other allegations. 4.2 Punitive damages [ 63 ] In support of her claim of $5,000.00 in punitive damages, Mrs. Cooke invokes

article 272 of the Consumer Protection Act : 272 . If the merchant or the manufacturer fails to fulfil an obligation imposed on him by this Act , by the regulations or by a voluntary undertaking made under

section 314 or whose application has been extended by an order under

section 315.1, the consumer may demand, as the case may be, subject to the other recourses provided by this Act, (

a) the specific performance of the obligation; (

b) the authorization to execute it at the merchant's or manufacturer's expense; (

c) that his obligations be reduced; (

d) that the contract be rescinded; (

e) that the contract be set aside; or (

f) that the contract be annulled, without prejudice to his claim in damages, in all cases. He may also claim punitive damages . (Emphasis added) [ 64 ] This claim will be dismissed. Firstly, the evidence does not demonstrate what obligation under the C.P.A. was not fulfilled by Carlyle. This is fatal to the claim. [ 65 ] Secondly, the Court of appeal wrote on this subject [19] : [33] L'octroi des dommages punitifs de 10 000 $ ne trouve pas de réelle justification et doit en conséquence être supprimé. La professeure Nicole L'Heureux [6] mentionne qu'on peut identifier trois objectifs qui ont motivé le législateur, en 1971, à introduire dans la

Loi sur la protection du consommateur un recours en dommages-intérêts exemplaires. En premier lieu, le recours vise à rétablir l'équilibre des forces en présence et à accroître le pouvoir de négociation de la

partie la plus faible. En second lieu, la mesure a pour but de faciliter la démarche du consommateur devant les tribunaux en lui donnant l'assurance que la poursuite ne l'appauvrira pas davantage et que le commerçant, qui ne respecte pas la loi, ne continuera pas à défier la loi. Enfin, l'aspect le plus important des dommages-intérêts exemplaires consiste à prévenir des comportements semblables.

Avant d'octroyer de tels dommages, le tribunal doit apprécier la conduite du commerçant afin de déterminer si elle manifeste une insouciance des droits du consommateur d'une manière assez sérieuse pour justifier une sanction supplémentaire et pour prévenir la récidive. [34] C'est ce dernier objectif de châtiment et de dissuasion qu'a retenu la juge de première instance pour accorder des dommages exemplaires. On peut difficilement conclure que l'appelante a manifesté une malveillance et une insouciance assez sérieuses pour justifier une sanction supplémentaire, lorsqu'on considère :

a) les offres répétées faites par l'appelante dans sa défense et défense amendée d'exécuter les travaux supplémentaires requis;

b) l'accord donné par l'intimé, en 1998, à des travaux destinés à reconstruire le système en deux zones, ces travaux ayant été entièrement assumés par l'appelante; et

c) la volonté de cette dernière de donner suite aux recommandations de l'expert Trépanier. S'il en était, les montants qu'elle est appelée à payer, en plus de ceux qu'elle a déjà encourus pour apporter des corrections, suffisent à dénoncer son comportement et à prévenir la récidive. (Reference omitted) [ 66 ] The evidence does not show that Carlyle " a manifesté une malveillance et une insouciance assez sérieuse pour justifier une sanction supplémentaire ". There is also nothing in the evidence to show that Carlyle risks repeating its actions. Therefore, the preventative goal of

article 272 C.P.A. does not come into play here. As held by the Court of appeal: " les montants qu'elle est appelée à payer, en plus de ceux qu'elle a déjà encourus pour apporter les corrections, suffisent à dénoncer son comportement et à prévenir la récidive ." 5- What of the expert's fees? [ 67 ] The report and testimony given by Mr. Cartmel were not only useful but also determinative in this trial. [ 68 ] Mr. Cartmel charged $569.63 tax included (Exhibit D-7

b) for the preparation of his report. He then charged $1,149.75, tax included, per day for his presence at Court and his testimony. His presence was necessary for the first two days of the trial since he needed to hear all of Mr. Tennant, Mr. Daniel and Mr. Viron's testimony in order to provide the Court with adequate information. [ 69 ] Therefore, Carlyle will also be condemned to pay the amount of $2,869.13 for experts fees.

SUMMARY OF THE MONETARY CONCLUSIONS [ 70 ] Mrs. Cooke is condemned to pay $1,501.60 as a balance of the work done by Carlyle. [ 71 ] Carlyle is condemned to pay:

1- $3,000.00 for repairs of defective workmanship; 2- $1,000.00 in moral damages; 3- $2,869.13 for expert fees. For a total of $6,869.13. [ 72 ] Compensating these amounts, Carlyle is condemned to pay $5,367.53. Interest will accrue on this sum only beginning 30 days after the date of this judgment since Mrs. Cooke has not yet done any repairs, nor has she paid Mr. Cartmel's fees. Also, although she admitted owing a balance to Carlyle, Mrs. Cooke never paid this amount or deposited it in Court.

FOR THESE REASONS, THE COURT: GRANTS , in part, Carlyle Construction Inc's introductory motion; DECLARES that Jennifer Cooke owes the sum of $1,501.60 to Carlyle Construction Inc.; GRANTS , in part, Jennifer Cooke's defence and cross-demand; DECLARES that Carlyle Construction Inc. owes the sum of $6,869.13 to Jennifer Cooke; After compensation: CONDEMNS Carlyle Construction Inc. to pay to Jennifer Cooke the sum of $5,367.53, with interest at the legal rate, plus the additional indemnity provided for in

article 1619 C.C.Q. , both accruing as of 30 days of the date of this judgment; ORDERS struck from the register and cancelled both the legal hypothec and the prior notice of hypothecary recourse, dated respectively September 1, 2010 and January 14, 2011, and inscribed under numbers 17 513 764 and 17 843 851 in the land register office for Montréal on the following immoveable: DÉSIGNATION « Un immeuble connu et désigné comme étant le lot numéro QUATRE MILLIONS TROIS CENT SOIXANTE-ET-UN MILLE SIX CENT SOIXANTE-QUATRE (4 361 664) du Cadastre du Québec, dans la Circonscription foncière de Montréal.

Avec bâtisse dessus érigée, portant le numéro civique [….], en la ville de Montréal, province de Québec, […. » THE WHOLE with costs in favour of Jennifer Cooke, including any land register fees. __________________________________ Scott Hughes, J.C.Q. Me Sylvan Schneider SCHNEIDER AVOCAT INC.

For the Plaintiff Me Habib Rachidi Alaoui DUNTON RAINVILLE For the Defendant Dates of hearing: Notes received from Plaintiff: October 25, 26 and November 16, 2012 November 30, 2012 [2] Art.199: At any time before judgment, the parties may amend their pleadings without leave and as often as necessary provided the amendment is not useless or contrary to the ends of justice and does not result in an entirely new action or application having no connection with the original one.