2016 QCCQ 1126, 2016 QCCQ 1126

Adler c. Struzer (Ultimate Reno) 2016 QCCQ 1126 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No: 500-22-176847-104 DATE: February 25, 2016 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ BARRY ADLER Plaintiff v.

HOWARD STRUZER , carrying on business under the registered trade name of ULTIMATE RENO -and- GARY STRUZER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Barry Adler sues Howard Struzer, who carries on business under the name of “Ultimate Reno”, for breach of contract of enterprise for exterior cement and landscaping work carried out at his residence. The scope of work of the contract included the building of a concrete balcony and concrete stairs at the back of Mr.

Adler’s house and a concrete retaining wall along the side of his house. [ 2 ] Co-Defendant Gary Struzer, the brother of Howard Struzer, was involved in the project throughout, from the negotiation of the contract to the performance of the work. [ 3 ] Mr. Adler alleges that the work was improperly done and that Ultimate Reno abandoned the work site before completion of the contract. Mr. Adler alleges that he paid $22,578 to correct the faulty work and requests compensation for that amount.

He also requests refund of his deposit of $15,653.95 as well as $10,000 for inconvenience and loss of time. [ 4 ] Ultimate Reno pleads that the work was not improperly performed and, to the extent that there were deficiencies, that they were caused by Mr. Adler’s interference with the performance of the work. Ultimate Reno alleges that its departure from the work site was caused by Mr. Adler’s unjustified refusal to make further payments until the work was completed and by what Ultimate Reno describes as Mr.

Adler’s abusive behaviour. [ 5 ] By Cross-Demand, Ultimate Reno claims for work done and materials purchased totalling $36,249.93 ($32,115.11, plus taxes), less the deposit received of $15,653.95, leaving an outstanding amount owed of $20,606.18. Ultimate Reno also claims for legal fees and disbursements incurred on the basis that Mr. Adler’s claim is abusive.

Questions in dispute [ 6 ] There are six questions and sub-questions in dispute, namely:

A) Was Mr. Adler entitled to refuse to make further payment to Ultimate Reno for work done or materials delivered until completion of the work under the contract?

B) Was Ultimate Reno within its rights to abandon the work site with the work unfinished?

C) Was Mr. Adler entitled to complete the work without putting Ultimate Reno in default by written notice?

D) What is the value of the work (labour and materials) performed by Ultimate Reno when it abandoned the work site and what is the allowable cost of the corrective work?

E) Can Mr. Adler oppose Ultimate Reno’s Cross-Demand and refuse payment on the basis of improper regulatory licensing of Ultimate Reno?

F) Are other claims for various amounts requested by the parties well founded? These include:

a) Mr. Adler’s claim for trouble and inconvenience;

b) Ultimate Reno’s claim for legal fees and disbursements;

c) Mr. Adler’s claim for solidary liability of Gary Struzer with Howard Struzer. Context The Contract and Scope of Work [ 7 ] On May 27, 2010, Mr. Adler and Ultimate Reno entered into a contract of work regarding concrete and landscaping work to be done at the former’s residence in the Town of Hampstead, Quebec (Exhibit P-1). Ultimate Reno’s representative was Gary Struzer, a Co- Defendant in the present proceedings. The price of the contract was $45,000 (or $50,793.75, inclusive of taxes). [ 8 ] There were three principal items of work in the contract that were discussed before the Court.

[ 9 ] First, Ultimate Reno was to build an exterior concrete balcony or deck at the back of Mr. Adler’s home. Second, Ultimate Reno was to build concrete stairs from the ground to the balcony. Third, Ultimate Reno was to build a concrete retaining wall running the length of Mr. Adler’s house and dividing Mr. Adler’s land from that of his neighbour. The contract also included various other landscaping work in the backyard and finishing work around the pool. That work was never done except for some preliminary measures taken. [ 10 ] The parties discussed and agreed to the terms of payment under the contract.

On the back of Exhibit P-1 [1] , to confirm those terms, they hand wrote as follows: “ 25 ck “ 20 muz [The Court: the parties agreed that this expression referred to cash.] ________________________________________ 10 – muz [The Court: cash] $10,000 in cash 5 – ck + tax 7/6/2010 Gary Struzer (signed) 30 k @ end” [ 11 ] On the signed contract (Exhibit P-1), it is also states: “Final payment must be made within 48 hours of completion of job.” [ 12 ] Both Mr. Adler [2] and Ultimate Reno [3] acknowledge that the two payments of $10,000 and $5,000 plus taxes ($5,643.95), totalling $15,643.95, were paid by Mr.

Adler on or about June 7, 2010. [ 13 ] Work proceeded well at first. Ultimate Reno excavated, set up formwork for the concrete balcony and concrete stairs, excavated earth all along the side of the property in order to build a retaining wall, and set up formwork for the retaining wall. Deterioration of the Business Relationship and Breakdown [ 14 ] However, relations between Mr. Adler and the Struzers progressively deteriorated. Each party has its own version of events as to the cause of the deterioration and ultimate breakdown of the relationship. [ 15 ] According to Mr.

Adler, the Struzers left the work site on occasion without notice. This is denied by the Struzers who said it occurred only once for one of them for one day. [ 16 ] Mr. Adler states that it was agreed from the outset with the Struzers that the work was to be carried out continuously until completion. However, the Court notes that there is nothing in the contractual documents to support that allegation. [ 17 ] Mr. Adler also states that the Struzers were sloppy and unprofessional workers and that he and his neighbours objected to them

parking a trailer continuously in front of his house. [ 18 ] Mr. Adler states that the work was not advancing at a steady pace and was late. However, there was no agreed and written deadline for the completion of the work contained in the contractual documents. [ 19 ] On their part, the Struzers complain that Mr. Adler was constantly changing his mind about the dimensions and configuration of the work, including the balcony, stairs and retaining wall. They state that Mr. Adler was using abusive language with them and not respecting them. They state that they asked Mr.

Adler for further payment advances under the contract in light of the fact that the work executed, including sub-contracted work, the materials delivered and the cost of their labour at that point far exceeded the received advance of $15,643.95. [ 20 ] The Struzers state that, on June 17, 2010, Mr. Adler insisted that they pour the cement for the stairs, despite their categoric warnings and advice not to do so. They state that it had rained in the days before and that it was scheduled to continue raining. As a result, the wooden forms for the stairs were soaked and the Struzers testify that they warned Mr.

Adler that the forms might not hold the cement and could fail. According to the Struzers, Mr. Adler ordered them to proceed so as to avoid further delays. [ 21 ] Mr. Adler emphatically denies that version of the facts.

He states that he was anxious for work to proceed but he left it up to the Struzers as to the decision of when to pour the cement. [ 22 ] Unfortunately, after the pouring of the cement, the forms did in fact give way in many places causing major collapses in certain areas of the mold for the concrete stairs and many variances with the intended dimensions of the stairs. [ 23 ] This disastrous result of the stairs was an important catalyst to the collapse of the entire relationship between the parties. [ 24 ] The Struzers insisted upon receiving further advances under the contract considering that the work and materials performed far exceeded the amount received.

Mr. Adler insisted that no further payments would be made until all of the work under the contract was completed. He told the Struzers that, until the completion of the work under the contract, they would not receive from him “one red cent”. [ 25 ] On June 18, 2010, foul language was exchanged between the parties. The Struzers walked off the work site. Mr. Adler called the Struzers and insisted that they return and complete the work immediately. The Struzers responded that the relationship was over and that they would not be returning.

Later that night, the Struzers removed their sign of Ultimate Reno that had been previously placed on Mr. Adler’s front lawn. Over the next several weeks, the Struzers gradually returned to remove their equipment and forms. Repair and Completion of the Work [ 26 ] Mr. Adler had to react. He had a half-finished, abandoned work site in his backyard. The unfinished work, the random materials and the existing ditches created an unsafe environment for him and his family, including his wife and three children ranging in age from 8 to 15 at the time.

[ 27 ] On July 5, 2010, Mr. Adler, through his attorneys, wrote to Ultimate Reno to confirm that Ultimate Reno had unilaterally ended the contract and abandoned the work site (Exhibit D-4). Mr. Adler demanded the refund within five (5) days of all amounts paid under the contract, namely $15,643.95. He also demanded payment for damages caused by the improper work carried out by Ultimate Reno. [ 28 ] On or around July 24, 2010, Mr. Adler entered into a contract with the company of RMC Entretien Paysagiste Inc. (“RMC”) to continue, repair and complete the project for a cost of $20,000 plus taxes ($22,578) [4] . Mr.

Adler requested and RMC agreed to carry out the following work, as is detailed in the invoice: • Demolition of crooked concrete retaining wall • Demolition of concrete rear stairs • Remove forms from balcony • Transport to dump concrete from retaining wall • Transport to dump concrete from rear stairs • Backfill hole left from excavated retaining wall • Backfill hole left from excavated rear stairs [ 29 ] The work appears to have begun immediately and proceeded quite quickly. Legal Proceedings [ 30 ] On July 29, 2010, the attorney for Ultimate Reno wrote [5] to the attorney for Mr.

Adler to respond to the demand letter of July 5, 2010. Ultimate Reno’s attorney wrote that the work carried out by Ultimate Reno cost $32,115.11, plus taxes ($36,249.93). Ultimate Reno refused to refund any money received.

Applying the advance of $15,643.95, Ultimate Reno claimed the remainder of $16,471.36, plus taxes, being $20,606.18. [ 31 ] Ultimate Reno acknowledged that they had walked off the work site: “C’est à bon droit que notre client a quitté le chantier puisque votre client refusait de leur verser quelque autre somme que ce soit.” [ 32 ] Ultimate Reno, through its attorneys, also offered to correct the wall upon payment of $1,000. [ 33 ] On November 29, 2010, by the present legal proceedings, Mr.

Adler sued Defendants for $48,731.95 detailed as follows: - the refund of the deposits: $15,653.95 - the amount paid to RMC: $22,578.00

- inconvenience and loss of time: $10,000.00 - expert costs: $1,000.00 [ 34 ] On June 28, 2011, Defendants filed defences and Ultimate Reno made a Cross-Demand for $37,884.68 detailed as follows: - work and materials unpaid: $20,606.18 - legal fees: $15,000.00 - expertises: $2,278.50 Analysis and Decision

A) Was Mr. Adler entitled to refuse to make further payment to Ultimate Reno for work done or materials delivered until completion of the work under the contract? [ 35 ] This was the defining issue between the parties that ultimately caused the Struzers to walk off the job. The only proof regarding an agreement on payments before completion of the work is the handwritten agreement found on Exhibit P-1 stipulating advance payments of two amounts, namely $5,000, plus taxes and $10,000. Those handwritten notes state, as seen above, that the remainder was to be paid at the completion of the contract (“30 k @ end”).

Furthermore, the signed contract P-1 stipulates that final payment must be made within 48 hours of completion of the work. [ 36 ] These terms were negotiated with and agreed to by Ultimate Reno. The long established rule of our law, derived on this point from old French law [6] applies here: le contrat est la loi des parties . That was the law as determined by the parties. [ 37 ] Therefore, Ultimate Reno had no right to insist upon payment of further amounts in order to continue work. Mr. Adler was entitled to insist that Ultimate Reno complete the work before making further payments.

If Ultimate Reno misjudged the amount of labour and materials required for the work and the interim financing required, it had only itself to blame.

B) Was Ultimate Reno within its rights to abandon the work site with the work unfinished? [ 38 ] The consequence of the above legal ruling is that Ultimate Reno illegally walked off the work site and unlawfully refused to continue work. It defaulted and repudiated its obligations under its contract with Mr. Adler.

C) Was Mr. Adler entitled to complete the work without putting Ultimate Reno in default by written notice? [ 39 ] The attorney of Ultimate Reno argued with vigour before the Court that the claim against Ultimate Reno could not succeed

because Ultimate Reno was never put in default by written notice and that, with respect to the correction and replacement of the retaining wall, Ultimate Reno had offered to correct it [7] . [ 40 ] With respect, the Court does not share that view. When Ultimate Reno unlawfully left the work site, it repudiated its obligations under the contract.

Article 1597 of the Civil Code of Quebec (“C.C.Q.”) reads as follows: 1597. Le débiteur est en demeure de plein droit, par le seul effet de la loi, lorsque l'obligation ne pouvait être exécutée utilement que dans un certain temps qu'il a laissé s'écouler ou qu'il ne l'a pas exécutée immédiatement alors qu'il y avait urgence.

Il est également en demeure de plein droit lorsqu'il a manqué à une obligation de ne pas faire, ou qu'il a, par sa faute, rendu impossible l'exécution en nature de l'obligation; il l'est encore lorsqu'il a clairement manifesté au créancier son intention de ne pas exécuter l'obligation ou, s'il s'agit d'une obligation à exécution successive, qu'il refuse ou néglige de l'exécuter de manière répétée. 1597.

A debtor is in default by the sole operation of law where the performance of the obligation would have been useful only within a certain time which he allowed to expire or where he failed to perform the obligation immediately despite the urgency that he do so.

A debtor is also in default by operation of law where he has violated an obligation not to do, or where specific performance of the obligation has become impossible through his fault, and also where he has made clear to the creditor his intention not to perform the obligation or where, in the case of an obligation of successive performance, he has repeatedly refused or neglected to perform it. [The italics are by the undersigned.] [ 41 ] As Ultimate Reno repudiated its obligations, it was in default by mere operation of law. Ultimate Reno left Mr.

Adler in the undesirable and difficult position of managing an abandoned and half completed work site that had major deficiencies to correct. [ 42 ] Furthermore, Ultimate Reno’s offer to complete only part of the work relating to the retaining wall was made on July 29, 2010 and therefore, only after Mr. Adler had entered into a contract on July 24, 2010 with RMC. Mr. Adler’s attorneys’ letter of July 5, 2010 provided for a deadline of five (5) days. [ 43 ] Lastly, Ultimate Reno never made an unconditional offer to complete and repair the retaining wall.

First, it was a conditional offer in that it required payment of a certain sum to resume the work. Second, the conditional offer only covered part of the work, namely the retaining wall. [ 44 ] As the offer was tardy, conditional and partial, the Court is of the view that Mr. Adler was under no obligation to accept it.

D) What is the value of the work (labour and materials) performed by Ultimate Reno when it abandoned the work site and what is the allowable cost of the corrective work? [ 45 ] This is the crux of the case. It is at this juncture that the main confusion by the parties results from what they claim as compensation and what is legally entitled to be claimed. [ 46 ] Both sides have exaggerated the amounts that they can claim. On his part, Mr. Adler has asked for both the entire amount of his advance ($15,643.95) plus the entire cost of correcting and completing the work ($22,575).

He also refuses to pay anything for the labour performed and the materials delivered. In effect, he is asking for the work and materials of Ultimate Reno to be forfeited to him free of charge, as though they were without value.

[ 47 ] As for Ultimate Reno, it asks for all materials purchased and labour expended on the work, regardless of deficiencies of the work or having abandoned the work site and thereby causing loss of time, stress and inconvenience to Mr. Adler. [ 48 ] In its proceedings, Ultimate Reno claims the amount of $36,249.93 for the materials and labour performed. The Struzers claimed that this amount represented mostly materials and disbursements in accordance with Exhibit D-6. But the final proof filed after trial did not support that number.

At trial, the various invoices filed were not validated by the required testimony of the third parties involved. The exhibits were not the subject of a Notice under

Article 403 of the Code of Civil Procedure (“C.C.P.”). [ 49 ] In accordance with the rule of proportionality (Article 4.2 C.C.P.;

Article 18 of the New Civil Code of Procedure ) and at the behest of the Court, the attorneys of the parties reviewed the exhibits, allowed further exhibits to be filed, and finally a list of invoices under Exhibit D-14 was jointly submitted as proof and adduced as evidence as to their content. These admitted exhibits provide for the following amounts for materials delivered and work done by sub-contractors at Mr. Adler’s residence and that were paid for by Ultimate Reno.

With respect to invoices dated after June 18, 2010, they relate to work performed and materials supplied before that date but invoiced after by the supplier or sub-contractor.

The dates and amounts are: 05/06/2010 $3,712.63 07/06/2010 $609.30 08/06/2010 $160.00 08/06/2010 $894.37 09/06/2010 $207.70 09/06/2010 $227.60 09/06/2010 (probable) 1,283.38 11/06/2010 $63.92 11/06/2010 $46.09 11/06/2010 $293.48 13/06/2010 $1,003.46 13/07/2010 $1,801.57 14/06/2010 $349.58 15/06/2010 $21.04 15/06/2010 $240.14 15/06/2010 $2,257.00 17/06/2010 $1,419.98 22/06/2010 $1,918.88 30/06/2010 $349.58 30/06/2010 (probable) $780.81 30/06/2010 $1,003.46 16/07/2010 $40.39 Total: $18,684.36 [ 50 ] As appears from the above, the total amount paid by Ultimate Reno for materials and sub-contractors was $18,684.36. [ 51 ] Ultimate Reno also claims labour as part of the $36,249.93 owed for the work done.

Subtracting the admitted $18,684.36 for materials and sub-contracting work would leave $17,865.57 for labour. However, Ultimate Reno’s proof of such an amount is not strong. Furthermore, in an initial document filed by Ultimate Reno, an amount of $3,685.92 ($3,200 plus taxes) is indicated [8] . But Defendants’ testimony was that such figure was an error and the real amount of labour was many times that.

[ 52 ] The work was carried out over two weeks from Monday June 7 to Friday June 11 and Monday June 12 to Friday June 18, 2010. That would calculate as $10,117.80 (10 days x 2 persons x 8 hours x $55 per hour = $8,800 + GST ($440) + QST ($877.80)). Although Mr. Adler states that some days one or both of the Struzers were absent, this is denied. Also, the Struzers argue that on many days they worked very late and well beyond 8 hours.

So the Court concludes that these opposing considerations cancel each other out and the Court will arbitrate the fair cost of labour by the Struzers at $10,000. [ 53 ] Based upon the above, the Court will now arbitrate the amount of value attributable to each of the three principal components of the work performed, namely (1) the balcony, (2) the stairs and (3) the retaining wall.

The Court will determine these amounts based upon the evidence heard and the applicable legal principles both for the claims made in the Principal Demand and for those made in the Cross-Demand. [ 54 ] The Court first determines that under the contract (Exhibit P-1), the division of the principal elements as to the total contract price of $50,793.75 was as follows: 1) Balcony: $15,000.00 2) Stairs: $5,000.00 3) Retaining wall: $22,793.00 4) Other work: $8,000.00 Total: $50,793.00 1) The Balcony [ 55 ] According to the proof, the balcony was well built and sturdy.

The only reproach was that some of the supporting cement columns are not entirely straight. The Court considers that the balcony was 80% complete because brick columns and finishing needed to be done. The Court considers that the overall amount of value in light of the materials and labour involved justify an amount of $12,000 (15,000 x 80%) in favour of Ultimate Reno. 2) The Stairs [ 56 ] The stairs were a total technical disaster. The proof, notably the reports and expert testimony of Architect Martin Troy (Exhibit P-2) and Engineer Daniel Turner, leave no room for doubt on that.

The stairs, as built, did not respect the rules of the trade, including the applicable building codes and were unsafe in their dimensions. Although in its proceedings Ultimate Reno denied this, its representatives at trial acknowledged this state of affairs in light of the overwhelming proof to this effect. [ 57 ] The question is: whose responsibility is that disaster? Ultimate Reno lays the blame on Mr. Adler who insisted on proceeding with the pouring of the cement despite the warnings by the Struzers that the wood forms were soaked and could collapse.

As stated, this entire version of the facts is categorically and flatly denied by Mr. Adler. [ 58 ] Ultimate Reno has failed to convince the Court that it should not bear full responsibility for the disaster of the stairs. It failed to discharge its burden of proof that it warned Mr. Adler of the consequences of proceeding and that he insisted nonetheless on that course of action in accordance with

Article 2118 C.C.Q [9] . [ 59 ] The Struzers are experienced in construction and they knew or ought to have known that in order to exclude their own liability in the event of collapse or loss, Ultimate Reno should have had Mr. Adler sign a waiver and an acknowledgement of acceptance of risk. The Struzers state that they tried but that Mr. Adler refused to sign one. A draft of such a document was not filed into Court. Nothing prevented the Struzers from sending an e-mail to confirm their warning and Mr. Adler’s instructions to the contrary.

Nothing prevented Ultimate Reno from calling upon a witness who could attest to their warning and Mr. Adler’s refusal. [ 60 ] As such, the Court concludes that Ultimate Reno should bear full responsibility for the patently unacceptable and poor result of the stairs.

[ 61 ] The Court considers that the stairs were 70% built since railings and other accessories and finishing would have been required to complete them. Although no doubt Ultimate Reno spent much in materials and in labour to build the stairs, their ultimate state left no choice but to demolish and rebuild them. So although they would have had a value of $3,500 if properly built, that value was destroyed by their poor workmanship. Mr. Adler had to pay to have them destroyed and to have all the concrete used for their construction removed and dumped elsewhere.

The Court will therefore reduce the value attributable to Ultimate Reno in that regard to $0. [ 62 ] Mr. Adler then claims the cost paid to have them rebuilt, which was another amount of approximately $4,000. The Court cannot award that amount to Mr. Adler. As he has already been compensated by the Court in that he will pay nothing for that work, he cannot also be compensated for getting that work done by a third party. If that would be permitted, he would end up paying nothing or nearly so for the stairs. [ 63 ] Mr. Adler paid to have the new stairs rebuilt on a different model and different dimensions.

That was a new contract to RMC. [ 64 ] However, the cost for the demolition and removal of the stairs, arbitrated at the amount of $2,000, should be and will be granted to Mr. Adler by the Court. 3) The Retaining Wall [ 65 ] The retaining wall was a major undertaking in terms of excavation and the substantial amount of concrete material to be used, and the labour involved to achieve the molding. Based upon the evidence, in the Court’s view, most of it (58%) was completed at the time that Ultimate Reno abandoned the work site. Furthermore, the technical completion as well as the back filling was not done.

The Court considers that, at the time of departure, the wall had a value of $13,184.36 (22,793 x 58%). [ 66 ] In the Court’s view, the work for the wall was in general well done and most of the issues raised by Mr. Adler and his experts with regard to the technical aspects were minor or not founded in fact. These issues appeared to be an exercise to justify, after the fact, the decision to abandon the retaining wall when that was in fact not necessary.

The Court considers that the wall could have been completed and the technical issues, such as sufficient depth and overall configuration, could have been managed, and that a satisfactory result, in accordance with the rules of the trade, could have been achieved. [ 67 ] In order to come to this conclusion and also with regard to the issues of correction, it appears to the Court that part of the configuration and alignment problems regarding the wall were caused by the absence of agreed upon plans and changes that occurred as a result of instructions given by Mr. Adler.

This work should have been authorized by a municipal permit before commencement and plans would have been required. The Court concludes that the amount for the corrective work would have been $3,000. The Court finds that each party, Mr. Adler and Ultimate Reno, should share liability in that regard for 50% each, namely $1,500. So the remaining value of the retaining wall for the account of Ultimate Reno will be reduced to $11,684.36. [ 68 ] With a new contractor, namely RMC, Mr. Adler decided to abandon altogether the original project of the retaining wall instead of simply completing it.

No satisfactory explanation was given to the Court to justify that decision. If Mr. Adler decided to change his mind, he was entitled to do so. But he cannot, by way of his Principal Demand, claim the costs of removal of all of the concrete and the execution of landscaping work for another solution nor can he be exonerated from payment for all the work performed by Ultimate Reno for the retaining wall. 4) Other Work

[ 69 ] There was reference during the trial to some other work, described in the contract, performed by Ultimate Reno. The proof before the Court was scant in details, to say the least, as to scope of work performed in that regard. In light of the absence or insufficiency of the proof of the exact work carried out or its value, the Court considers that Ultimate Reno has failed to establish any claim in that regard. Accordingly, Ultimate Reno will receive no compensation for other work.

Reconciliation of Claims and Counter-Claims for Work and Corrective Work [ 70 ] In light of the evidence and proof and the Court’s determinations, the amount for the work and the materials owing to Ultimate Reno is $23,684.36 ($12,000 + $0 + $11,684.36). After compensation for the claim of Mr. Adler with respect to the demolition and removal work of the stairs, that amount will be reduced by $2,000.

The following table summarizes these findings: Work Cost under Exhibit P-1 % of work completed Cost of labour and materials sub- contractors of Ultimate Reno Value of adjudication 1) Balcony $15,000 80% $12,000 $12,000 2) Stairs $5,000 70% $3,500 $0 (-$2,000: demolition and removal) 3) Retaining Wall $22,793 58% $13,184.36 $11,684.36 4) Other work $8,000 0 $0 $0 Total: $50,793 $28,684.36 $23,684.36 Adjusted: $21,684.36 [ 71 ] As Mr. Adler has already advanced the amount of $15,643.75 to Ultimate Reno, the remaining amount due to the latter is $8,040.61 (and $6,040.61 adjusted after judicial compensation).

E) Can Mr. Adler oppose Ultimate Reno’s Cross-Demand and refuse payment on the basis of improper regulatory licensing of Ultimate Reno? [ 72 ] This ground of Mr. Adler was not raised or alleged in his proceeding or his Defence to the Cross-Demand. By letter dated June 26, 2015, after the trial and after the case was suspended in order to allow the parties and their attorneys to resolve the issue of the invoices of Ultimate Reno to be admitted under Exhibit D-6, the attorney for Mr. Adler raised this issue. There is no amendment to Mr.

Adler’s Plea to the Cross-Demand regarding this ground and none was sought. [ 73 ] There was no opportunity given to the parties, in particular to the Defendants, during the trial to make evidence of this issue nor did the attorneys have proper notice or request to have proper notice to present legal arguments on this point. Furthermore, there was no opportunity provided to either party to counter such argument with an alternate legal theory, such as unjust enrichment for work performed. The consequences of inadequate licensing under the Quebec Building Board (Régie du bâtiment du Québec) and

Article 50 of the Building Act [10] invoke points of fact and law which raise regulatory questions, questions of application to work already performed and questions of knowledge of the inadequate credentials by the parties, in particular the client. This may or may not be a

determining or significant point but the state of the evidence before the Court in that regard is wholly insufficient. [ 74 ] Justice Amédée Monet, for the Court of Appeal, held as follows: “Le lien juridique d’instance est celui des parties. L’instruction est conduite par les parties. Les moyens de fait et de droit sont avancés par les parties.

C’est sur les prétentions respectives des parties que le juge du procès doit statuer.” [11] [ 75 ] The Court’s view is that, given the state of the proceedings and the state of the evidence when this case was taken under advisement, the issue of appropriate regulatory licensing is not properly before the Court and that it would violate the judicial contract of the parties (“contrat judiciaire”) to consider this issue at this belated stage.

F) Are other claims for various amounts requested by the parties well founded?

a) Mr. Adler’s claim for trouble and inconvenience [ 76 ] When Ultimate Reno abandoned the work site, it acted unlawfully and in violation of its contractual obligations to Mr. Adler. That caused Mr. Adler great anguish, inconvenience and loss of time. It was in the middle of summer. Instead of seeing his backyard landscaping, balcony and stairs being built and completed in accordance with the rules of the trade, Mr. Adler had to deal with the wholly unforeseen project of having to find another contractor and to manage a very significant problem. As we have mentioned, Ultimate Reno was in default by operation of law in accordance with

Article 1597 C.C.Q. The Court considers that equitable financial compensation for Mr. Adler in the circumstances is $3,000.

b) Ultimate Reno’s claim for legal fees and disbursements [ 77 ] According to the long established rule of jurisprudence in this area [12] , a claim for legal fees and extra judicial disbursements can only be granted when there is an abuse of proceedings. The Court does not find anything in the conduct of Mr. Adler or that of his attorney that would constitute an abuse of procedure. Accordingly, that claim will be dismissed.

c) Mr. Adler’s claim for solidary liability of Gary Struzer with Howard Struzer [ 78 ] Mr. Adler argues that since Gary Struzer declared and acted at all times with him as though he was owner of Ultimate Reno, he should be held solidary liable with Howard Struzer for any condemnation. It was presented to the Court that Howard Struzer was at the time of the contract (Exhibit P-1) the owner of a registered sole proprietorship operating under the trade name of “Ultimate Reno”. However, as appears from the Quebec Corporate Registry, Mr.

Gary Struzer is the owner of a registered sole proprietorship operating under the trade name of “Ultimate Renovations” (Exhibit P-12), which was active and its business registration was not struck until at least the trial date in this matter. This was the case since 1999. Furthermore, as also appears from the Quebec Corporate Registry, Howard and Gary Struzer are both shareholders of a federally incorporated company called “Ultimate Reno Inc.” which carries on business under the name of “Reno Ultimate” [13] . That has been the case since November 23, 2012. Mr.

Adler does not ask that that company be added as a defendant in the proceedings.

[ 79 ] In light of the above, the Court concludes that both Howard and Gary Struzer held themselves out as owners of an enterprise carrying out business under the name of “Ultimate Reno”. As such, in accordance with established jurisprudence, such conduct negligently misled third parties in good faith, and in the present instance, Mr. Adler, to rely on the appearance that Mr. Gary Struzer was the owner [14] of the business with which he was contracting.

Based upon the above, Gary Struzer engaged his personal liability as a representative of his own business under the name of “Ultimate Renovations” [15] with respect to Mr. Adler. The confusion was so complete that even the first attorney for the Defendants used the name of “Ultimate Renovations” as the business entity involved in the present case [16] as did other service providers of Defendants [17] . As both Defendants were acting for the purposes of carrying on an enterprise, their responsibility is solidary in accordance with Article 1525 (2) C.C.Q.

Judicial Costs [ 80 ] Given the mixed result since the contestations of the claims of both the Plaintiff and the Defendants have been upheld in part, the Court will not order either party to pay judicial costs, with one exception. The Defendants initially took the position in their Defence and Cross-Demand that all of Ultimate Reno’s work was carried out in respect of the rules of the trade.

That justified Plaintiff’s expense for the expertise (Exhibit P-2) of Architect Martin Troy and forced him to pay for expert testimony (Exhibit P-10) and to further support his expert evidence with the report (Exhibit P-5) and testimony of Engineer Mr. Daniel Turner (Exhibit P-8). At the trial, it was established beyond all doubt that the concrete stairs were, in the final result, in violation of the rules of the trade. That was then admitted by Defendants.

So part of that expert evidence was useful in determining the truth to the Court and the expenses incurred by Plaintiff were rendered necessary by the unfounded position of Defendants. However, the expert testimony of Plaintiff’s expert witnesses was not sustained by the Court with respect to the balcony and the retaining wall. As such, the Court will award as judicial costs in favour of Mr. Adler sixty percent (60%) of his expert costs. Accordingly, the Court will grant the amount of $2,190.28 (Exhibit P-8 ($1.925.83) + Exhibit P-10 ($1,724.63) = $3,650.46 x 60%).

Interest and Special Indemnity [ 81 ] The Court has reviewed the proceedings in the Court file. In the Court’s view, it is unfortunate and exceptional that a case instituted in November 2010 was only pleaded at trial in June 2015. Both parties have made numerous motions to extend the deadlines set out in the judicial timetable. The matter was set for trial for May 5, 2013 and was postponed at the request of Defendants. Furthermore, after the trial, the matter was postponed further as Defendants did not have the parties present to support the invoices filed under Exhibit D-6 and had not sent a notice under

Article 403 C.C.P. This caused still further delay. As the amount owing to Defendants is higher than the amount owing to Plaintiff, after operating judicial compensation, an outstanding amount is owed by Mr. Adler. In the circumstances, legal interest and the special indemnity will only run from the time of the present judgment. FOR THESE REASONS, THE COURT: GRANTS in part Barry Adler’s Demand;

CONDEMNS Howard Struzer and Gary Struzer solidarily to pay Barry Adler the amount of $5,000; WITH JUDICIAL COSTS limited to $2,190.28 in favour of Barry Adler. GRANTS in part Howard Struzer’s Cross-Demand; CONDEMNS Barry Adler to pay Howard Struzer the amount of $8,040.61; WITHOUT JUDICIAL COSTS . And proceeding to operate judicial compensation (Article 1673 (2) C.C.Q.) between the respective amounts claimed by the parties (not including the award for judicial costs), CONDEMNS Barry Adler to pay Howard Struzer the amount of $3,040.61, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , starting from the date of the present judgment. __________________________________ Jeffrey Edwards, J.C.Q. Me Norman Goldberg Attorney for Plaintiff Me Laurent Sabbah Sabbah Mergui Attorneys for Defendants Dates of trial: June 3, 4 and 5, 2015 Discussions between attorneys regarding the filing of supplemental exhibits and admission into evidence: June 5 to August 21, 2015 Supplemental Hearings: August 5 and 6, 2015 Receipt of Supplemental Exhibits D-14: August 21, 2015 Case Taken under Advisement: August 21, 2015