2023 QCCQ 7112, 2023 QCCQ 7112

Arcobelli c. Charszan 2023 QCCQ 7112 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-712762-204 DATE: October 16, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ VINCENT ARCOBELLI Plaintiff v.

AVI CHARSZAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is an engineer. [ 2 ] He is suing defendant on account for professional services rendered. [ 3 ] A services contract intervened between the parties, on June 5, 2019 (contract exhibit P-1). [ 4 ] The terms and conditions are, inter alia , as follows: I (we) hereby wish to retain your consulting services as a Structural engineer and/or Building Consultant to inspect the construction of the front extension (vestibule) to our home and to prepare an expertise in this matter including a written report with recommendations.

I (we) understand that your fees for such work, including any other future consultation with you by either me and/or my lawyer in connection with this file or otherwise including presence in court if required, will be on an hourly basis of $ 170.00 plus expenses, taxes extra (a minimum of $450.00 plus taxes per visit). Expenses include travel ($.70/km), secretarial services ($35./hour), etc. [1] (we) understand that based on the information I (we) presented to you to date, you estimate a budget of $ to come taxes extra. This budget is currently authorized for this work.

I (we) also understand that any overrun of this budget will be communicated to me (us) in a timely manner and before further work is undertaken on this file. [ 5 ] Contrary to the above terms and conditions and despite promising to do so, plaintiff never sent defendant an estimate of his fees. [ 6 ] Furthermore, despite having undertaken to execute his mandate in a timely fashion, plaintiff never got back to defendant, and didn’t respond to his calls or his email dated July 19, 2019 (email, exhibit P-3). [ 7 ] At Court, plaintiff stated, “At the end of the year, we try to clean up files (and) bill whatever is active.”, although defendant’s file clearly wasn’t active. [ 8 ] At trial, plaintiff also admitted that he should have called defendant before the end of the year, but didn’t. [ 9 ] It is mind-boggling that plaintiff, who is a professional, took on the mandate, to then not communicate with his client with a view to discuss same, to answer the questions posed in email P-3, and to discuss ongoing work (if any) and further steps to be taken (if any). [ 10 ] In mid-January 2020, after he had “cleaned up his files”, plaintiff sent defendant an invoice and covering letter, exhibit D-2, en liasse . [ 11 ] He then sent defendant a draft “expertise”, supposedly prepared on July 15, 2019, along with a covering letter, exhibit D-2, en

liasse . [ 12 ] The Court does not believe that plaintiff completed the mandate on July 15, 2019. [ 13 ] Plaintiff contradicted himself and hesitated throughout his testimony. [ 14 ] It makes absolutely no sense for plaintiff to have allegedly completed the so-called expertise in mid-July, only to send it 6 months later. [ 15 ] The Court believes that the document was backdated for the purposes of collecting money from defendant; and, if it wasn’t, plaintiff cannot possibly believe that defendant owes him money for a document which he never sent him in accordance with the terms of the contract and best practices. [ 16 ] Furthermore, plaintiff is suing defendant for expenses, namely “travel, photos, office”, when he already billed “travel” at his hourly rate of $170.00.

In other words, he charged defendant 30 minutes of his time to travel, plus another $60.00 for approximately 32 kilometers at 70 cents per kilometer. In other words, he billed defendant twice for the same thing. [ 17 ] Regarding plaintiff’s alleged 33 pictures, billed at $1.00 per picture, they were

a) taken with a digital camera, and

b) never shown to defendant. [ 18 ] Also, the “office” expense is incomprehensible. [ 19 ] Moreover, plaintiff was untruthful about the length of his preliminary visit to defendant’s residence. He claims it was a one hour visit; but defendant and his witness, Alaina Gross, who testified in a most credible and convincing manner, claimed that it lasted at most 30 minutes. Defendant described the meeting as being “brief” and “uneventful”, Gross said it was “very fast”. [ 20 ] Be that as it may, plaintiff was also untruthful about having disclosed an estimate of his services to defendant, before his visit.

Again, defendant and Gross convinced the Court of the contrary. [ 21 ] In the end, the Court does not believe that plaintiff’s “Time/Expenses Allocation” sheet (exhibit P-6) was based on reality. [ 22 ] It is also to be noted that plaintiff billed defendant for “awaiting further instructions from client”, that which is nonsensical. [ 23 ] In acting as he did, plaintiff breached the law. [ 24 ] Sections 2098 and 2102 of the Civil Code of Québec state as follows: 2098.

A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. 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. [ 25 ]

Section 1458 C.c.Q. states: 1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. [ 26 ] Sections 3.02.03 , 3.03.02 , 3.03.03 , 3.08.01 , 3.08.02 , 3.08.03 and 3.08.04 of the Code of Ethics of Engineers [1] state: 3.02.03.

An engineer must, as soon as possible, inform his client of the extent and the terms and conditions of the mandate entrusted to him by the latter and obtain his agreement in that respect. 3.03.02. In addition to opinion and counsel, the engineer must furnish his client with any explanations necessary to the understanding and appreciation of the services he is providing him. 3.03.03. An engineer must give an accounting to his client when so requested by the latter. 3.08.01. An engineer must charge and accept fair and reasonable fees. 3.08.02.

Fees are considered fair and reasonable when they are justified by the circumstances and correspond to the services rendered. In determining his fees, the engineer must, in particular, take the following factors into account: (

a) the time devoted to the carrying out of the mandate; (

b) the difficulty and magnitude of the mandate; (

c) the performance of unusual services or services requiring exceptional competence or speed; (

d) the responsibility assumed.

3.08.03. An engineer must inform his client of the approximate cost of his services and of the terms and conditions of payment. He must refrain from demanding advance payment of his fees; he may, however, request a deposit. 3.08.04.

An engineer must give his client all the necessary explanations for the understanding of his statement of fees and the terms and conditions of its payment. [ 27 ] Plaintiff breached all of the above. [ 28 ] Furthermore, there was no meeting of the minds as to fees, as plaintiff did not respect his undertaking to provide defendant with an estimate, before executing the mandate, and the « budget » was not authorized as per the terms of the contract (contract, page 1, in fine , and s. 1385 C.C.Q.). [ 29 ] The contract also states that “any overrun of the budget will be communicated to (defendant) in a timely manner and before further work is undertaken on this file”.

Clearly, plaintiff violated the spirit of the agreement. [ 30 ] Defendant stated that he was flabbergasted when he received plaintiff’s bill. “I didn’t know whether to laugh or cry”, he said. He also felt that he was taken advantage of. “I couldn’t believe it.

It was awful.”, he added. [ 31 ] WHEREAS plaintiff’s fees are not fair and reasonable and are not justified by the circumstances (s. 3.08.01 and 3.08.02 of the Code ); [ 32 ] WHEREAS plaintiff did not act in the best interest of his client, with prudence and diligence or in accordance with usage and good practice (s. 2100 C.C.Q.); [ 33 ] WHEREAS plaintiff did not provide defendant with useful information concerning the time required for the task (s. 2102 C.C.Q.; 3.03.02, 3.03.03, 3.08.03 and 3.08.04 of the Code ); [ 34 ] WHEREAS plaintiff did not prove the facts alleged in his demand; [ 35 ] WHEREAS the claim is unfounded both in fact and in law; WHEREFORE THE COURT HEREBY: DISMISSES the claim, with legal costs in the amount of $104.00. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: September 11, 2023