2014 QCCQ 8474, 2014 QCCQ 8474

Aaron Construction & Renovation inc. c. Fleischer 2014 QCCQ 8474 COURT OF QUEBEC “Small claims division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-131975-122 DATE: September 16, 2014. ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ AARON CONSTRUCTION & RENOVATION INC. Plaintiff v.

MIRIAM FLEISCHER And MITCHELL FLEISCHER Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from defendants the sum of $ 5,581.31 representing the balance owed to it as a result of the renovations performed pursuant to a contract concluded between the parties on August 17, 2011 (Exhibit P-1). [ 2 ] Defendants contest plaintiff’s action alleging the following :

a) that plaintiff did not live up to the contract;

b) that plaintiff used unlicensed workers;

c) that plaintiff’s work was unsatisfactory in regard to plumbing, electricity and structure;

d) that plaintiff did not meet the time limit set in the contract. [ 3 ] Furthermore, defendants allege that, as a result of plaintiff’s unsatisfactory work, it was necessary for them to hire other contractors in order to correct the work performed by plaintiff and complete what was yet to be performed according to the contract. [ 4 ] According to defendants, plaintiff’s actions have caused them damages in the amount of $ 9,000.00. They have instituted a cross-demand against plaintiff for an amount of $ 7,000.00. [ 5 ] Plaintiff was represented a trial by its vice-president, Lana Assouline. [ 6 ] The work to be performed by plaintiff is described in

article 2 of the contract. According to Madam Assouline, the said work was performed in a full and satisfactory manner. [ 7 ] The contract also stipulates that the work was to be completed by September 1, 2011.

However, in the contract, defendants accepted the fact that “the work may not be entirely completed by September 1, 2011.” [ 8 ] According to Madam Assouline, the fact that the work was not completed by September 1, 2011 was caused by the failure of defendants to deliver requested materials and supplies on time. [ 9 ] This affirmation by Madam Assouline is denied by both defendants. [ 10 ] In fact, according to defendants, the project was not completed by September 1, 2011 nor by October 1, 2011 as a result of plaintiff’s lack of timely work on the site. [ 11 ] The evidence has revealed that defendants made every single payment provided for in the contract according to the payment scheduled therein contained.

Only the last payment was withheld by defendants. [ 12 ] The evidence has also revealed that, in a timely manner, defendants never put plaintiff on notice in writing regarding the complaints enumerated in their contestation. In fact, notice in this regard was given by them only after they received plaintiff’s letter of demand dated November 14, 2011 (Exhibit P-3). And, even then, the evidence has revealed that defendants never did put plaintiff on

notice to complete the work which according to them, was part of the contract and was incomplete when plaintiff left the construction site in October, 2011. [ 13 ] In regard to the unsatisfactory work allegedly performed by plaintiff, defendants filed bills in support of their claim. However, these bills are silent as to the allegedly unsatisfactory quality of the work performed. Furthermore, no qualified witnesses testified on behalf of defendants on this issue. [ 14 ] According to Lana Assouline, vice-president of the plaintiff, in the beginning of October 2011, the work was complete.

At this time, she went to the residence of defendants to pick up the tools and clean up but was told by them to leave the premises. [ 15 ] According to Madam Assouline, this was the first time she was made aware of the fact that defendants were unsatisfied with the work performed.

However, she did admit that some of the electrical and plumbing work performed by plaintiff was not performed by duly certified employees. [ 16 ] In support of their testimony, defendants filed pictures (Exhibit D-3) that, according to them, illustrate the extent of the uncompleted work when plaintiff left the site in October 2011 (Exhibit D-3). [ 17 ] From the examination of these pictures, it appears clear to the Court that a significant part of the finishing work provided for in the contract was not completed by the beginning of October, 2011 when plaintiff left the site. [ 18 ] The evidence has also revealed that plaintiff never requested that defendants allow it to complete the work stipulated in the contract.

In fact, in the letter of demand dated of November 14, 2011 (Exhibit P-3), plaintiff simply requested payment of the amount allegedly owed to it. [ 19 ] In view of the preceding, the Court concludes that, as the work was not completed when plaintiff left or was told to leave the construction site in the beginning of October 2011, and as it never formally requested that it be allowed to complete the work, it is not entitled to claim the balance of $ 5,240.44 representing the final payment as this amount is payable only upon full completion of the work. [ 20 ] Consequently, this part of plaintiff’s claim ($ 5,240.44) is dismissed. [ 21 ] However, the evidence has revealed that plaintiff left on the site materials valued at $ 340.87 that it paid for at the request and for the benefit of defendants.

These materials were never remitted to plaintiff by defendants.

Consequently, the Court is of the opinion that plaintiff is entitled to seek reimbursement of this amount. [ 22 ] Regarding the cross-demand, as defendants never addressed any written complaint to plaintiff during the course of the execution of the contract and as they never, formally and in writing, put plaintiff on notice to correct the allegedly unsatisfactory work and complete the contract, the cross-demand must be dismissed. [ 23 ] Finally, as no qualified witnesses testified on behalf of defendants in order to establish the unsatisfactory quality of the work performed, for this additional reason, the said cross-demand must be dismissed.

WHEREFORE, FOR THE FOREGOING REASONS, THE COURT: MAINTAINS in part plaintiff’s action; CONDEMNS defendants jointly to pay to plaintiff the sum of $ 340.87 with interest at the legal rate as of November 14, 2011, plus the additional indemnity provided for by

article 1619 of the Civil code of Quebec . THE WHOLE with costs limited to $ 124.00. DISMISSES the cross-demand filed by defendants, without costs. __________________________________ ARMANDO AZNAR, J.C.Q. Aaron Construction & Renovation Inc. Plaintiff Myriam Fleischer Mitchell Fleischer Defendants Date of hearing: September 9, 2014.