2021 QCCQ 12208, 2021 QCCQ 12208

Plomberie Pars inc. c. Nabati 2021 QCCQ 12208 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-145438-158 DATE: October 26, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ PLOMBERIE PARS INC. Plaintiff v. HABIB NABATI and CONSTRUCTION MKD INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Plomberie Pars inc. (“ Plomberie Pars ”) is claiming $1,155.80 from the defendant Habib Nabati for plumbing work it performed at [...]., in Westmount, Quebec, a property owned by Nabati. [ 2 ] The defendant contests the claim on the ground that he has no contract with the plaintiff.

Specifically, Nabati alleges that this claim must be directed to the contractor Construction MKD inc. (” MKD ”) to whom he entrusted the renovation work on his building and who alone must answer the claim by its sub-contractor Plomberie Pars. [ 3 ] Nabati seeks the forced intervention of MKD so that, in the event he is condemned, he can be indemnified by MKD, especially since he paid MKD everything he owed it, as appears from the receipt-release-transaction dated February 19, 2014 (D-2). [ 4 ] Nabati was absent on November 10, 2020, the day of the hearing.

Consequently, Riverin J. rendered a default judgment on November 26, 2020, condemning Nabati to pay Plomberie Pars $1,155.80, plus interest at the legal rate of 5% per year as of January 14, 2015, and legal costs in the amount of $159. [ 5 ] On May 25, 2021, Nabati filed an application for revocation of that judgment, which was accepted and the parties were summoned again to be heard on the application for revocation and, if necessary, on the merits of the dispute. [ 6 ] On September 7, 2021, the day of the hearing, the Court took the application for revocation of the judgment under advisement and, subject to its upcoming decision on the proceeding in question, heard the evidence on the merits of the case.

Issues: [ 7 ] The Court must answer the following questions: 1. Is Nabati’s application for revocation well founded in fact and in law? 2. If so, has Plomberie Pars provided clear and convincing evidence of the existence of a contract with the defendant Nabati, and if so, for what amount? 3. Is Nabati’s application for forced intervention against Construction MKD inc. well founded? ANALYSIS AND JUDGMENT 1. Is Nabati’s application for revocation well founded in fact and in law?

[ 8 ] In matters dealing with the recovery of small claims, applications for revocation are governed by

article 568 of the Code of Civil Procedure [1] (“ C.C.P. ”): [ 9 ] The grounds giving rise to an application for revocation are set out in articles 345 and 346 C.C.P. Here, only

article 346 C.C.P. attracts the Court’s attention: 346. A party against which a default judgment has been rendered following failure to answer the summons, attend the case management conference or defend on the merits but that was prevented from doing so owing to fraud, surprise or any other cause considered sufficient may apply to the court that rendered the judgment for the revocation of the judgment and the dismissal of the original application.

The application for revocation must contain the reasons justifying the revocation as well as the grounds of defence raised against the original application. (Emphasis added.) [ 10 ] By its very nature, an application for revocation is an exception to the principle of finality in litigation.

This means that the statutory provisions giving rise to it must be interpreted strictly and narrowly [2] such that re-assessing a decision remains the exception rather than the rule. [3] [ 11 ] The Court accepts the following from the evidence presented during the hearing on the application for revocation. [ 12 ] Nabati explains his absence from the hearing on November 10, 2020, by the fact that he did not receive the order to appear dated September 22, 2020, from the clerk of the Court of Quebec.

On that date, he was living in Toronto, having moved there in June 2018. [ 13 ] Nabati concedes that he did not inform the office of the Court of Quebec that he had moved in June 2018.

However, he has adduced proof of his contract with Canada Post for his mail to be forwarded to his new address between June 2018 and June 2020 (Exhibit R-1 en liasse). [ 14 ] Seyed Mohammed Sadrghayeni, Plomberie Pars’s representative, contests the application for revocation on the ground that it was also up to Nabati to warn the office of the Court of Quebec that he had changed addresses and his failure to do so shows some degree of negligence. [ 15 ] Admittedly, a litigant’s negligence cannot be used as a ground to apply to revoke a judgment, but in this case, the Court is of the view that the circumstances outlined do not show a lack of follow-up or carelessness by Nabati. [ 16 ] Clearly, Nabati made sure that his mail would be forwarded for 24 months after he moved and he is certainly not responsible for the unusually long period of inaction in this file.

Indeed, over five years elapsed between the date on which Plomberie Pars brought its application and the date of the notice of summons. [ 17 ] In the circumstances,

article 17 C.C.P. should be given priority. It states the fundamental principle of procedural law that the parties to a dispute are entitled to be heard by the court especially when, as in this case, a party in good faith provides a valid explanation for failing to appear at the hearing. [ 18 ] Accordingly, the Court revokes the judgment rendered November 26, 2020, and will address the merits of the case. 2.

Has Plomberie Pars provided clear and convincing evidence of the existence of a contract with the defendant Nabati, and if so, for what amount? [ 19 ] First, the Court recalls that a person seeking to assert a right must prove the facts on which the claim is based through evidence that renders the existence of the facts underlying the claim more probable than their non-existence. [4] [ 20 ] If the evidence is not sufficiently convincing or if it is contradictory and the judge cannot determine where the truth lies, the party that has the obligation of convincing the Court of the merits of his or her claim will lose, in whole or in part. [ 21 ] Let us consider. [ 22 ] As a preface, it is noteworthy that the evidence does not call into question the performance or quality of the plumbing work done by Plomberie Pars, which is described in the disputed invoices (P-2 to P-5).

Where the parties differ is on the identity of who should pay for the work. [ 23 ] Sadrghayeni claims that the plumbing work was done at the express request of Nabati. The work, he adds, was not planned or included in the fixed-price contract between Nabati and the contractor MKD (D-1). [ 24 ] Sadrghayeni completed his testimony by stating that he does not have written documents attesting to Nabati’s requests for additional work.

These agreements were entered into verbally and Sadrghayeni relied on Nabati’s word that he would pay him. [ 25 ] Nabati contests this testimony and ridicules the notion that he assured payment and then never did so. [ 26 ] It is up to the Court to assess these testimonies [5] and their probative value. The Court accepts the version of Sadrghayeni. Unlike Nabati, he testified calmly, and his version is bolstered by several elements of the evidence. [ 27 ] First, it is admitted that the four hot water tanks were removed and reinstalled because Nabati was dissatisfied with the floor.

[ 28 ] The evidence shows that between the first and second time the hot water tanks were installed, ceramic was put down to cover the cement flooring. [ 29 ] Sadrghayeni claims that Nabati requested this from him without going through MKD, the contractor. His testimony is corroborated by that of Ali Khaghani, MKD’s representative at the hearing. [ 30 ] Khaghani confirms that he was not involved with nor informed in real time of Nabati’s request.

In fact, he says, it was only after seeing that the hot water tanks had been removed that he understood that Nabati was making changes to the floor covering. [ 31 ] Nabati’s version that he does not exactly remember specifically requesting this work from Plomberie Pars is not credible given that he also acknowledges that he was dissatisfied with the floor done by MKD and wanted to change it. [ 32 ] Second, when Nabati attests to having personally moved the hot water tanks with his son and his son’s friend, he loses any remaining credibility.

Indeed, the defendant cannot state that he does not remember requesting the work while simultaneously stating that MKD is responsible for the payment for this work and ultimately arguing that because he did a significant portion of the work himself he should not have to pay invoices P-2 and P-5. [ 33 ] Ultimately, Sadrghayeni has met his burden of providing probative and convincing evidence that the work described in invoices P- 2 and P-5 reflect the services that Plomberie Pars rendered at Nabati’s request and for his benefit. [ 34 ] Regarding the work described in invoices P-3 (shower flow problem) and P-4 (connecting a refrigerator and moving a toilet), Sadrghayeni, once again confirmed by Khaghani, stated that it was done at the tail end of the fixed-price contract and was not included in that renovation contract. [ 35 ] Khaghani adds that he was not involved in the specific requests Nabati made to Plomberie Pars because at the time he was in conflict with Nabati regarding his own invoicing. [ 36 ] Nabati has failed to prove MKD’s involvement with any of the work described in the disputed invoices or its performance. [ 37 ] Also, Nabati has not established that the work performed by Plomberie Pars was part of his fixed-price contract with MKD.

Finally, Nabati has not proved that he paid MKD for the work in question. [ 38 ] The Court is therefore of the view that the plaintiff has provided probative and convincing evidence of the existence of a verbal contract with the defendant for additional plumbing work and the proper and full performance of this work for the sole benefit of Nabati. [ 39 ] The Court also deems that in the absence of any evidence to the contrary, the amount claimed by the plaintiff, specifically $1,155.80, reflects the value of the work performed. [ 40 ] There now remains to decide whether MKD is responsible for this amount. 3.

Is Nabati’s application for forced intervention against Construction MKD inc. well founded? [ 41 ] The Court answers this question in the negative because it is satisfied with the evidence offered by the plaintiff that Nabati directly asked Plomberie Pars to perform the work that was not included in the contract of enterprise entered into with MKD. [ 42 ] For that reason, the receipt-release-transaction dated February 19, 2014 (D-2), between MKD and the defendant is of no assistance to him. [ 43 ] As the terms of that transaction state, only “the work executed by the contractor … provided by the contractor” is covered.

The work performed by the plaintiff falls outside that situation. FOR THESE REASONS, THE COURT: [ 44 ] GRANTS the defendant Habib Nabati’s application for revocation; [ 45 ] REVOKES the default judgment rendered by the Honourable Louis Riverin on November 26, 2020; [ 46 ] GRANTS the proceeding of the plaintiff Plomberie Pars inc.; [ 47 ] CONDEMNS the defendant Habib Nabati to pay $1,155.80 with interest at the legal rate of 5% per year and the additional indemnity under

article 1619 of the Civil Code of Québec as of January 14, 2015; [ 48 ] DISMISSES the application for forced intervention against the defendant Construction MKD inc.; [ 49 ] THE WHOLE with legal costs of $159, but only on the principal application. _________________ JO ANN ZAOR, J.C.Q. Date of hearing: September 7, 2021