2018 QCCQ 1532, 2018 QCCQ 1532

Arcobelli c. Mehta 2018 QCCQ 1532 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155120-167 DATE: March 9, 2018 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ VINCENT ARCOBELLI Plaintiff v.

MONICA MEHTA and AVINASH MEHTA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, who is a civil engineer, is suing defendants, on account, for professional services rendered. At trial, plaintiff reduced the amount of his claim to $10,811.36. [ 2 ] In his contestation, dated December 9, 2016, defendant Avinash Mehta states as follows: “1) Despite my repeated requests during the course of contract, Plaintiff failed to provide progressive billing.

Plaintiff is in breach of his contractual obligation to provide progressive invoices. 2) Plaintiff issued a single aggregate invoice ($15,811.36) more than a year after services were performed. Invoice showing unreasonable number of service hours being claimed by Plaintiff. 3) Plaintiff was requested but never issued itemized details of work performed. 4) The service contract was solely drawn between Plaintiff and defendant (Mehta Avinash).” [ 3 ] On August 15, 2014, a contract for consulting services intervened between plaintiff and defendant.

Defendant retained plaintiff’s services as a “structural engineer and building inspector”, for the property located at 292 Grosvenor, in Beaconsfield, Qc. Plaintiff’s mandate is described as follows in the contract: “I, (we) hereby retain your consulting services as a structural engineer and building inspector for the property mentioned above. Your services are required to review the documents pertaining to certain claims made by the purchasers of the above-mentioned property

and to prepare a counter-expertise in this file.” (exhibit P-1) [ 4 ] Plaintiff’s services were to “be billed at the rate of $140.00 per hour plus expenses, taxes extra. Payment for said services (were) due and payable on presentation of progressive invoices”. [ 5 ] Plaintiff never explained to defendant which expenses were potentially covered by the agreement. [ 6 ] Defendant had sold his home, and retained plaintiff’s services in the context of allegations of latent defects from the buyers.

No proceedings were ever instituted by the buyers; and, ultimately, the parties settled the matter amicably for an amount of $32,000.00. [ 7 ] Be that as it may, between August 15, 2014 and July 17, 2015 (Details of Invoice, exhibit P-20), plaintiff allegedly carried out services for which he billed defendant $15,811.36 on June 30, 2016 (invoice, exhibit P-2). [ 8 ] As stated by defendant in his contestation and in his letter to plaintiff dated November 15, 2016 (exhibit D-2), plaintiff never sent defendant progressive invoices, despite defendant’s repeated requests to do so.

Defendant saw plaintiff’s document “Details of Invoice” (exhibit P-20), for the first time, at trial. [ 9 ] Plaintiff did not act in accordance with the Code of ethics of engineers [1] in this matter and transgressed the following sections of the Code : “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.” [ 10 ] According to a preponderance of evidence, plaintiff did not, in fact, furnish defendant with explanations necessary to the understanding and appreciation of his services and the costs related thereto. [ 11 ] It would appear that, although plaintiff’s mandate was to “review the documents pertaining to certain claims made by the purchasers… of the property and to prepare a counter-expertise”, he overstepped this boundary and chose to become involved with finding solutions for the buyers, who had their own expert. [ 12 ] In fact, plaintiff billed defendant for an astounding total of 12 on-site visits, 11 of which were made after he prepared his counter-expertise dated September 18, 2014, exhibit P-4. [ 13 ] He also billed defendant for several visits to lawyers’ offices and visits to “the other expert” and “Construction Vézina”. [ 14 ] He billed defendant almost 10 hours to prepare a “solution to roof rafters including sketch SK-1/1”, a solution which would benefit the buyers, not the defendant. [ 15 ] He also billed defendant countless hours to “review documentation”; “review file”; “review report”; “revise report”; “review quotation”; “prepare report”; “prepare various lists of works to be done including a detailed sketch for roof”; “review comment”; “review scope of work”; “review modification of scope of work”; etc., [2] when his mandate was to “prepare a counter-expertise” with regards to a 35-year old single family dwelling and no proceedings had been instituted. [ 16 ] In addition to the foregoing, plaintiff billed defendant $1,712.00 for secretarial work, traveling time and parking expenses.

Defendant was never advised that he would be billed neither for secretarial work nor for traveling time. [ 17 ] Finally, it is important to underline that plaintiff chose to wait almost a year to send defendant his invoice in the amount of $15,811.36, without detailing his fees (86 hours) and expenses, despite defendant’s numerous requests for progressive billing over the course of the mandate. [ 18 ] When defendant finally got plaintiff’s invoice, he felt like “he was going to have a heart attack”.

[ 19 ] For all of the above reasons, the Court does not believe that plaintiff charged defendant fair and reasonable fees. [3] They were most definitely not justified by the circumstances (s. 3.08.01 and 3.08.02 of the Code ). [ 20 ] Plaintiff did not inform defendant of the approximate cost of his services as the mandate progressed, nor did he give defendant all the necessary explanations for the understanding of his statement (s. 3.08.03 and 3.08.04 of the Code ). [4] [ 21 ] In cases such as these, where a professional has charged fees that are neither fair nor reasonable, the remedy is to reduce them. [ 22 ] Given the preponderance of evidence and the scope of plaintiff’s mandate as described in contract P-1; whereas the scope of plaintiff’s mandate was not modified by mutual consent; given that plaintiff’s mandate was to work for defendant, not the buyers; whereas the Court cannot base itself on the details outlined post facto in document exhibit P-20, as it is unreliable; given defendant’s time analysis exhibit D-3 and defendant’s lawyer’s invoices exhibit D-4; given the amount of $5,000.00 already paid to plaintiff for his services (including expenses and taxes); and whereas plaintiff failed to respond to defendant’s request for progressive invoices during the course of his mandate, plaintiff’s claim is unfounded. [ 23 ] And, finally, as alleged by defendant, there is no lien de droit between plaintiff and Monica Mehta.

She was not a party to contract P-1 and was never a co-owner of the property. WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's application, with legal costs. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: February 19, 2018 [1] Code of ethics of engineers , CQLR, c. I-9, r. 6.