2011 QCCQ 10156, 2011 QCCQ 10156

BCA Structural Consulting Services Inc. c. Skidmore 2011 QCCQ 10156 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY Civil Division No. 460-32-005956-106 DATE: April 27, 2011 ______________________________________________________________________ PRESENT: THE HONOURABLE FRANÇOIS MARCHAND J.C.Q. ______________________________________________________________________ BCA STRUCTURAL CONSULTING SERVICES INC. Plaintiff v.

CATHLEEN SKIDMORE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff is claiming $1693.13 for services provided to the defendant. [ 2 ] The defendant contests the claim, alleging that the services she requested have not been fully provided, as she did not receive the written report of the observations noted by the plaintiff’s representatives.

The facts [ 3 ] The plaintiff owns a house located in Valcourt. [ 4 ] In 2006, she requested the services of Christian Vachon to transform her house into an ecological dwelling, with minimum use of electric and fossil energy. She wanted a comfortable home using as little energy as possible. [ 5 ] There is a pool inside the house, and a greenhouse near the house. [ 6 ] The work was carried out in conformity with the plans and specifications prepared by Christian Vachon. After the work was done, the defendant noted a number of anomalies, deficiencies and defects, which affected her quality of life.

There was an excessive degree of humidity circulating inside the house. Moreover, the design of the greenhouse did not meet her expectations at all. The consumption of electricity was higher than before the work, which was carried out under the supervision of Christian Vachon. [ 7 ] She wanted to institute judicial proceedings against Christian Vachon. To do so, she needed to obtain an expert report identifying the deficiencies. She retained the services of Arnaud Bole, a junior engineer, to prepare the expert report. Mr. Bole noted a number of anomalies.

However, her attorney told her that, since the report was prepared by a junior engineer, it would not have the necessary authority to counter the expert report of a senior engineer before a court. [ 8 ] Thus, at her attorney’s request, she contacted the plaintiff to get the help of a structural engineer. [ 9 ] Roger Bartosh, working for the plaintiff, took cognizance to the various documents provided by the defendant. He had the plans, the specifications and the report of engineer Bole.

Further to his examination, he recommended that the defendant hire a mechanical engineer for the humidity problems noted inside the home.

The plaintiff agreed with the recommendation of Roger Bartosh. [ 10 ] Roger Bartosh, accompanied by Dominic Chiovitti, mechanical engineer, went to Valcourt in order to examine and inspect the house, greenhouse and adjoining rooms. [ 11 ] Further to their inspection, they concluded that the report of junior engineer Bole was true to reality. [ 12 ] In order to minimize the costs, they recommended that the defendant send a formal notice to Christian Vachon, and include the report of engineer Bole and mention that two senior engineers employed by the plaintiff confirmed Mr.

Bole’s conclusions. [ 13 ] Between October 5, 2009 and March 11, 2010, the parties exchanged many emails. [ 14 ] The agreement on the professional fees was $125.00 an hour for each expert.

[ 15 ] At the end of December 2009, the plaintiff sent the defendant its bill for $1500.00 in fees plus taxes, for a total of $1693.13. [ 16 ] Roger Bartosh did not prepare a written report, so as to minimize the defendant’s expenses. [ 17 ] The defendant refused to pay, alleging that she never received the report she had required and that the plaintiff had not provided the support and help necessary to correct the situation and assist her in her claim against engineer Christian Vachon. Analysis and decision [ 18 ] The Court bases its decision on the following articles of the Civil Code of Québec : 1590.

An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and without delay.

Where the debtor fails to perform his obligation without justification on his part and he is in default, the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence, (1) force specific performance of the obligation; (2) obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or the reduction of his own correlative obligation; (3) take any other measure provided by law to enforce his right to the performance of the obligation. 1594.

A debtor may be in default by the terms of the contract itself, when it contains a stipulation that the mere lapse of time for performing it will have that effect. A debtor may also be put in default by an extrajudicial demand addressed to him by his creditor to perform the obligation, a judicial demand filed against him or the sole operation of law. 1595. The extrajudicial demand by which a creditor puts his debtor in default shall be made in writing.

If the demand does not allow the debtor sufficient time for performance, having regard to the nature of the obligation and the circumstances, the debtor may perform the obligation within a reasonable time after the demand. 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 carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay. 2100.

The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be provided, they are also bound to act in accordance with usual practice and the rules of art, and, where applicable, to ensure that the work done or service provided is in conformity with the contract. Where they are bound to produce results, they may not be relieved from liability except by proving superior force. [ 19 ] There is a service contract binding both parties in this case.

The plaintiff wanted to receive a written report to support her contentions in a possible action against Christian Vachon. [ 20 ] But the plaintiff did not prepare any report, so as to minimize the fees for the defendant. Instead, the plaintiff recommended that she send a formal notice to Christian Vachon, include a copy of engineer Bole’s report and mention that two senior engineers employed by the plaintiff confirmed its content, in an effort to act in the best interests of its client and reduce the costs.

However, should a formal notice not give any concrete results, the plaintiff undertook to provide the report and any relevant document supporting the contentions of engineer Bole. [ 21 ] The defendant contends that she does not have to pay for the plaintiff’s services, as she did not receive the written expert report

she requested. [ 22 ] At no time did the plaintiff refuse to prepare such a report. In fact, the exchanged emails support this.

However, before preparing such a report, the plaintiff required the payment for the services it had already provided, which totalled $1500.00 plus taxes. [ 23 ] Under the law, the defendant had to put the plaintiff in default of having prepared a written report, which she did not do. [ 24 ] The defendant must be willing to perform her obligation, that is, pay for the services she received. [ 25 ] The plaintiff told the defendant that the report of engineer Bole was satisfactory and that, accordingly, a written report reiterating almost textually the report of engineer Bole would be superfluous.

The defendant would have needlessly paid the fees to have a report prepared, which would have been several hundred dollars additional. [ 26 ] The dispute involving the defendant and Christian Vachon was settled out of court, which shows that the plaintiff was partly right. [ 27 ] Considering that the plaintiff carried out work for the defendant. [ 28 ] Considering that the conclusions of the inspection and examination of the premises corroborate those of engineer Arnaud Bole; [ 29 ] Considering that the plaintiff did not see the use of preparing a written report that would have increased the fees for the defendant; [ 30 ] Considering that the Court concludes that the plaintiff acted in the best interests of the defendant; [ 31 ] Considering that the defendant’s defence does not justify her refusal to pay the plaintiff’s bill; [ 32 ] Considering that the plaintiff has proven the essential allegations of its claim; THEREFORE, THE COURT: ALLOWS the claim; ORDERS the defendant to pay the plaintiff $1693.13, with interest at the legal rate plus the additional indemnity provided for in

article 1619 of the Civil Code of Québec as of service, and costs. __________________________________ François Marchand J.C.Q. Date of hearing: January 31, 2011