2024 QCCS 289, 2024 QCCS 289

9372-3401 Québec inc. c. Alberelli 2024 QCCS 289 SUPERIOR COURT (Civil Division) CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU No: 550-17-011945-217 DATE: January 23, 2024 _________________________________________________________________ PRESIDiNG: THE HONOURABLE PATRICK BUCHHOLZ, J.S.C. 9372-3401 QUÉBEC INC. Plaintiff/Cross-Defendant v. ROBERTO ALBERELLI Defendant/Cross-Plaintiff -and- THE REGISTRAR OF THE REGISTRATION DIVISION OF HULL Impleaded Party JUDGMENT JB5328 INTRODUCTION [ 1 ] The Plaintiff, 9372-3401 Québec Inc., doing business as Levage Danis (“Danis”), is suing the Defendant, Mr.

Roberto Alberelli, on an unpaid account of $72,335.49 for construction work that was done on the Defendant’s house, further to disastrous flooding that occurred in the Gatineau area in the spring of 2017. [ 2 ] Generally speaking, the work involved raising Mr. Alberelli’s house, replacing the foundation thereof, and sitting the house back down, together with much incidental work. [ 3 ] Mr. Alberelli cross-claims in the amount of $224,807 on the grounds that Danis did not build the foundation that was promised, and that Danis’ work suffered from other defects and deficiencies.

CONTEXT [ 4 ] Danis’ claim on account is calculated as follows: Invoices [1] 1117 $124,618.71 1123 $5,547.55 1125 $10,462.73 Subtotal $140,628.99

Less amounts paid [2] $62,443.60 Subtotal $78,185.39 Less credits offered at trial [3] $5,000 for not having removed existing slab and footings + $849.90 for not having installed the gas line TOTAL $72,335.49 [ 5 ] Danis also recognizes that another $5,600 worth of work was still remaining to be completed after he finished his work, which he divides as follows: [4] • $2,700 for not having closed the gaps between the house and the foundation; • $500 for required strengthening of front and side porches; • $1,900 to anchor the home to the foundation. [ 6 ] Danis’ President, Mr.

Didier Danis, does not agree to withdraw that amount of $5,600 from the claim as he says he was not given an appropriate opportunity to finish the work by Mr. Alberelli. [ 7 ] The latter recognizes having held back the sum of $67,175.11 from Danis and cross-claims for an additional amount of $157,632.39. The combined amount of $214,807.50 is in relation to deficiencies in, and incompleteness of, Danis’ work and the loss of life expectancy of the home’s new foundation. [ 8 ] Mr. Alberelli also claims $10,000 for trouble and inconvenience, and both parties seek reimbursement of their respective experts’ costs.

ANALYSIS [ 9 ] In order to resolve the dispute between the parties, several questions must be answered by the Court: 1. What type of foundation was provided for in the contract between the parties? 2. Did Mr. Alberelli accept the extras listed in the second and third invoices? 3. What are the defects and deficiencies? What are they worth? 4. Did Danis refuse to finish the work? Did Mr. Alberelli adequately put Danis on notice to correct the defects? 5. What is the amount owing, if any, to Danis? 6. What is the value-added to the home, if any? 7. Was the legal hypothec registered in due time? 8.

Are the parties entitled to reimbursement of their expert fees? [ 10 ] Prior to proceeding with the Court’s analysis of the parties’ submissions, it is useful to note that Mr. Alberelli had initially hired an engineer, Mr. Michel Charron, to provide him with an expert report, which report was duly filed in the Court record. Unfortunately, Mr. Charron passed away prior to trial. [ 11 ] Mr. Alberelli thus hired another engineer, Mr. Massarelli, who also filed an expert report. [5] Mr. Massarelli’s report and testimony makes clear that he generally agrees with the findings of Mr. Charron. As such, even though Mr.

Charron was never qualified as an expert by the Court, the Court will sometimes refer to Mr. Charron’s report as an expert report. 1. What type of foundation was provided for in the contract between the parties? [ 12 ] Danis sues on a fixed amount contract for the raising of Mr. Alberelli’s home and the building of a new foundation underneath, included related services. It also sues for fixed amounts relating to the extras indicated on its second and third invoices. [6] [ 13 ] Mr.

Alberelli alleges that Danis did not build the foundation that the parties agreed to. [ 14 ] He submits that the parties agreed on a construction contract based on using the last plans prepared by an engineer he hired in the summer of 2017. [ 15 ] Indeed, immediately after the flooding in the spring of 2017, Mr. Alberelli had plans drawn up by an engineer for a waterproof,

reinforced concrete foundation for his house. Such plans were drafted by ABC Structure Inc. (“ABC”) in July 2017. [7] [ 16 ] Shortly thereafter, Mr. Alberelli asked for new plans to be drawn up and, on August 24, 2017, ABC signed plans for a more conventional foundation, with much less water protection, but still with added metal rebar to reinforce the future concrete foundation walls. [8] These are the plans that the Court will refer to as the “D-1 plans” and upon which Mr. Alberelli’s legal claims are based. [ 17 ] The evidence is unclear as to what truly occurs between July 2017 and April 2018. Mr.

Danis alleges that, during that time, Mr. Alberelli and he sought to obtain approval from the government to subsidize the construction of a foundation based on the D-1 plans, and that the government did not agree to do so because Mr. Alberelli’s home was not in the 100-year flood zone and was at less risk of flooding. The government was only prepared to pay for a standard non-reinforced foundation of the size that Mr. Alberelli’s home initially possessed. Mr. Alberelli denies same and also denies that Mr.

Danis could have spoken to the government on his behalf. [ 18 ] What is clear is that, after the 2017-2018 winter, on April 9, 2018, Mr. Alberelli sent Mr. Danis the D-1 plans. [9] [ 19 ] The next day, on April 10, 2018, Mr. Danis sends the plans to Fondations Leblanc (“Leblanc”) for an estimate for the cement work. [10] Leblanc will be Danis’ foundation subcontractor. [ 20 ] On April 11, 2018, Leblanc submits its quote to Danis. [11] The amount on the quote is $ 28,761. The quote is clearly based on the D-1 plans, as the items match up with what is provided for in said plans. [ 21 ] On April 17, 2018, Mr.

Danis sends his bid (“Bid 1112”) to Mr. Alberelli in the amount of $124,618.71. [12] The bid includes work for the project in general, including the foundation work to be done by Leblanc.

The relevant annotation on Danis’ bid indicates “voir estimation Fondation [sic] Leblanc”. [ 22 ] However, noteworthy is the fact that, with respect to the amount indicated for the foundation, Danis' Bid 1112 is actually approximately $5,000 lower than what Leblanc quoted. [ 23 ] Also, Danis' bid provides for a painted tar membrane on the foundation which Danis himself will take care of, as opposed to the more sophisticated and expensive protection prescribed in the D-1 plans.

According to the various witnesses heard, a painted tar membrane would be standard for a regular, non-reinforced concrete residential foundation. [ 24 ] Six weeks later, on June 4, 2018, at the request of a friend of Mr. Alberelli, Mrs. Céline Caron, Mr. Danis sends her Bid 1112 so that she can advance discussions for governmental assistance. [13] In this somewhat modified version of Bid 1112, the expression “crawl space” is indicated. [14] [ 25 ] The next day, on June 5 th , Mrs. Caron advises Mr.

Danis that the Ministère de la sécurité publique (“MSP”) wants more detail regarding the bid. [ 26 ] The following day, on June 6, 2018, Mrs. Caron prepares a new version of the bid to be submitted to the MSP. [15] The new version includes the same amounts, but with slightly more detail. The evidence shows that Mrs. Caron was in conversation with Mr. Danis at the time. In fact, earlier that day, she sends Mr.

Danis a version of the invoice for discussion and a list of questions that needed answering for the MSP. [16] [ 27 ] Interestingly, and without explanation, neither party provides the Court with evidence of the final bid that was actually approved by the MSP, nor do the parties file the actual subsidy program, and its relevant modalities and conditions, under which Mr. Alberelli applied and would have received a grant or subsidy. [ 28 ] In any event, Mr. Alberelli received some money from the government at the end of the summer of 2018 and was able to provide Mr.

Danis with a deposit in early September 2018. [17] [ 29 ] The work commenced shortly thereafter. Prior to the actual foundation work, on October 30, 2018, the foundation subcontractor, Leblanc, sent a new estimate to Danis in an amount of approximately $24,245. [18] The foundation work mentioned in the new estimate calls for lesser strength concrete for the walls and footing, and a three-inch-thick floor slab (instead of the original 4-inch slab mentioned in the D-1 plans and the original Leblanc estimate). [19] [ 30 ] A week later, on November 7, 2018, Danis issues its first invoice to Mr.

Alberelli. [20] [ 31 ] Regarding the foundation work, it indicates "Voir estimation Fondation [sic] Leblanc", but now adds “Mur 8 pied

partie avant et crawl Space a l’arrière”, [21] as compared to the initial estimate. [ 32 ] On November 14, 2018, Leblanc sends its invoice to Danis. [22] The amount is now for a total of $23,692.22 and reflects the foundation work that was actually done, as opposed to the foundation work that was set out in the D-1 plans. [ 33 ] Danis issues two other invoices to Mr.

Alberelli, one for removing the hot water tank, the furnace and related ducts as well as the gas line, in addition to some electrical work (invoice 1123) [23] and one for installing a new furnace and related ducts, a new hot water tank, and the gas line (invoice 1125). [24] [ 34 ] On December 19, 2018, Mr. Danis advises Mr. Alberelli that he has finished work (it is at issue as to whether he mentioned that it was temporary for the winter) and asks for payment of his invoices. [ 35 ] Mr. Danis will be disappointed. Mr.

Alberelli only gives him a cheque for $10,000, whereas the existing invoices owing amount to more than $75,000. An argument ensues over an alleged promise for the installation of a sump pump and Mr. Danis storms off. [ 36 ] The parties also differ as to what occurred over the winter that followed. Mr. Danis says he tried to collect payment and that Mr.

Alberelli did not return his calls. The latter recalls the opposite, that Mr. Danis did not return Mr. Alberelli’s calls, who complained about frozen pipes. [ 37 ] In any event, in the spring of 2019, Mr. Danis returns to finish some work and to try and get paid. Among other things, he has approximately twenty truckloads of dirt to remove from the adjacent property where he temporarily put the soil and other materials excavated from Mr. Alberelli’s property. [ 38 ] Unfortunately, in the spring, the parties do not get along any better.

On June 3, 2019, Danis registers a legal hypothec based on the work done, [25] and eventually sues, in November 2019, for the payment of the balance due on its invoices. Evidence supporting Mr. Alberelli’s view [ 39 ] There is much evidence to support Mr.

Alberelli’s position that he had agreed on a reinforced concrete foundation as provided for in the D-1 plans of August 2017. [ 40 ] Firstly, the D-1 plans are the only plans that existed in the discussions between the parties. [ 41 ] Secondly, Leblanc's initial estimate for foundation work was clearly made according to the D-1 plans. [ 42 ] Thirdly, it is also true that Danis’ Bid 1112 (and eventual related invoice) uses language that suggests that it is based on existing plans (and the only relevant plans at that point are the D-1 plans). [ 43 ] Furthermore, it is also true that there is no written evidence of an accepted change to Danis’ bid (which by reference included the Leblanc estimate). [ 44 ] Finally, Mr.

Danis' testimony was difficult at trial. He got confused rather easily during cross-examination. Some of his testimony seemed at first rather implausible, particularly with respect to the fact that he did not have copies of his older bids because his computer system would override (and thus erase) existing bids as each new one was created. Danis’ position [ 45 ] But there is also much evidence that the parties agreed on something other than a foundation based on the D-1 plans. [ 46 ] Firstly, because what was built, while Mr.

Alberelli kept careful watch with a relatively knowledgeable eye, was not what was drawn in the D-1 plans. For example, the following differences can be noted compared to the D-1 plans: • Lack of armour in the concrete; • An entire foundational wall is replaced by a steel beam; • The footing and original slab are left in place; • Support for Mr.

Alberelli’s chimney is left in place; • Addition of a back entrance to the basement, with new protection wall and stairway; • No “aquablock” panels or waterproofing membrane on the foundation; rather only tar was painted on the foundation; • Exterior drains were installed; [26] • Change in type of piles used to support front balcony; [ 47 ] In fact, much is different between the D-1 plans and what was actually built.

Correspondingly, Leblanc’s initial estimate, also, does not match at all what was built. [27] Rather, what was built matches Leblanc’s second estimate to Danis, issued in October 2018, [28] just prior to the work. What was built also matches Leblanc’s invoice to Danis. [29] [ 48 ] Most, if not all, of those differences would have been obvious to Mr. Alberelli. The Court adds that he would also have noticed that all of the new basement windows were much smaller than they would have been expected to be if the original Leblanc estimate had been followed. Absence of complaints [ 49 ] Yet, Mr.

Alberelli did not complain about any of the differences from the D-1 plans or the April 2018 Leblanc estimate during construction. Additionally, and significantly, Mr. Alberelli did not mention, even at trial, the smaller size windows in the basement, which leads the Court to believe that he was expecting same, as he was the other changes. [ 50 ] We know that Mr. Alberelli kept a watchful eye because he actually chose to live in his house while it was lifted several feet in the air. [ 51 ] Mr. Alberelli would have noticed that there was no reinforcement steel for the concrete.

He knew the difference between reinforced concrete, and more standard concrete, as he was involved in trying to get the MSP to approve the use of his plans that provided for same. [ 52 ] Another obvious change in the plan is the inclusion of a foundational weight-bearing steel beam which permitted the removal of a complete interior foundation wall, giving Mr. Alberelli an open space area for the entirety of the new basement, as recognized by Mr.

Alberelli’s expert, Mr. Massarelli: [30] This steel beam was not included as part of the original engineering drawings which show that a new cast-in-place concrete wall was to be provided. [ 53 ] Also, tar would not have been used as a protection membrane if the D-1 plans were to be followed. This would have been obvious to Mr. Alberelli. [ 54 ] Yet, already in Danis' April 2018 estimate [31] , there is only “goudron” ("tar) mentioned. There is no additional protection. [ 55 ] Mr.

Alberelli may not be a construction expert or worker, but he is clearly a rather capable handyman, as appears from all of the work he did in and around his home, including the straightening of floors, the building of nice-looking balconies and decks and the installation of finishing around the house where the house meets the foundation. His remedial work generally appears esthetic and to be of quality. [32] [ 56 ] In the Court’s view, the differences between the work that was being done and the D-1 plans (together with the work described in the Leblanc bid of April 2018) was so obvious, that Mr.

Alberelli’s limited knowledge would certainly have been enough for him to have noticed, and to have complained. [ 57 ] Yet, Mr. Alberelli did not do so. While it is true that he did not pay the invoices in full upon request in December 2018, his only real complaint at the time was the absence of a sump pump. He certainly did not indicate that he was unsatisfied with the plans not having been followed. Furthermore, he made a payment at the time, albeit partial. [33] [ 58 ] In fact, the relationship between the parties was fine during the work. As Mr. Danis explained: [34] Q.

Vous dites que le client restait sur le chantier, donc, il était souvent présent, j'imagine? R . Oui, en tout temps. Q. Est-ce que vous aviez plusieurs échanges avec lui, pendant les travaux? Est-ce qu'il y a eu des plaintes, des retouches? Les relations étaient comment? R. Bien, mon client était très satisfait pendant les travaux, parce que je lui ai donné une pleine fondation que ... puis je lui ai pas chargé d'extra. Je lui ai fait une entrée, à l'arrière, pour rentrer et sortir que j'ai pas chargée aussi. On avait une bonne communication. Je faisais avancer les travaux.

T'sais, il y avait pas de plainte, pendant les travaux, là. Ça l'a juste commencé, là , quand il ... quand il était plus capable de payer [ 59 ] Indeed, towards the end of the work, on November 27, 2018, Mr. Alberelli even asked Mr. Danis for an estimate on potential furnace and related duct work. He did not seem disappointed with any of the work at that point, inviting him to bid on said furnace and duct work, which bid Mr. Alberelli eventually accepted. In the email to Mr.

Danis, he even writes, without any reserve or complaint of any kind, that he will be sending some funds when the heating work starts. [35] [ 60 ] At trial, Mr. Alberelli does not say that he was upset, over the 2018-2019 winter, about the lack of following of the plans, and that that was why he didn’t pay. Rather, he says, he felt “abandoned”, because of the lack of response by Danis to calls regarding the freezing pipes. [ 61 ] He also says he eventually lost confidence in Mr.

Danis because he stormed out after the December 19, 2018 discussion; not because of poor work, and again, not because of not following the D-1 plans. Conduct was intentional, and not fraudulent [ 62 ] Secondly, the evidence is clear that Mr. Danis did not make some type of unintentional mistake. Rather, he had the foundation built by Leblanc the way he intended same to the built.

Alberelli does not deny this. [ 63 ] Yet, given the significant difference in construction strength between the types of foundation, and the tremendous consequent financial and legal risk to Danis of such a difference, if not previously agreed upon with his client, what Mr. Alberelli essentially alleges, as to the change in foundation types, is tantamount to civil fraud on the part of Danis. [ 64 ] Yet, Mr. Danis had no reason to act fraudulently. As the evidence showed, he had a thriving business at the time.

He was very busy with other residents of Gatineau who had suffered great flooding. [ 65 ] It does not appear likely that Mr. Danis would intentionally (and thus in bad faith) build a foundation of a type that was not agreed to by the client. Good faith is presumed under our law. [36] [ 66 ] And if Mr. Danis disregarded the D-1 plans to save money, as the attorney for Mr. Alberelli suggested, why would Mr. Danis make it so obvious by doing everything so differently from said plans and the April 2018 Leblanc bid? Fraud is rarely committed in plain

view. [ 67 ] In addition, the evidence shows that the foundation that was built was perfectly standard. [37] If Mr. Danis was really trying to take advantage of Mr. Alberelli, it is unlikely that he would build him a normal, standard foundation in every way. The reason the D-1 plans were not followed [ 68 ] Also, as all admitted, working with the MSP was a “nightmare”. [38] [ 69 ] More than a full year passed before the MSP provided monies for Mr. Alberelli’s foundation.

Together with all the other evidence, the delay suggests that the nightmare likely ended with the MSP refusing to pay for the construction of a reinforced concrete foundation, and only approving a standard foundation. [ 70 ] Mr. Danis explains that the government would not pay for the additional cost incurred to follow the D-1 plans, and that Mr. Alberelli did not want to pay for the difference. [ 71 ] Mr. Alberelli’s experts suggested that the foundation should not only have been reinforced, but it should also have been waterproof.

The Court finds likely that the same reason that the foundation was not built waterproof, when the client’s own engineer recommended it, was also the reason that the foundation was not built with reinforced concrete. It was a question of money. [ 72 ] In cross-examination, Mr. Alberelli admitted that the government would only reimburse on “what I had”. Therefore, the government was unlikely to pay for a reinforced steel foundation, nor for one larger than his original foundation. [39] Mr.

Alberelli’s out of pocket costs would have been very expensive if he paid for the difference between a standard foundation, on the one hand, and a reinforced concrete or waterproof foundation on the other. [ 73 ] Mr. Alberelli did not previously have a full foundation for all of his basement (part of same was a crawl space), and he wanted that. Danis agreed to build the full foundation at a price that Mr.

Alberelli agreed to, including certain extras such as the back entrance and the replacement of a crawl space with a full height cement basement, but the evidence suggests, on the whole, that the foundation was to be standard. [ 74 ] The evidence also supports Danis' claim that Alberelli would not agree to pay for the difference to have a more solid foundation put in. According to Mr. Danis, Mr. Alberelli chose not to move temporarily out of the house during the work as a matter of cost consciousness. As such, Mr.

Alberelli lived in the house for quite some time while it was lifted several feet in the air. [40] Credibility [ 75 ] Mr. Alberelli insisted at trial that he always asked Danis to follow the D-1 plans. But that isn't true. The parties agreed to do something else, as shown by the many differences mentioned above, and with which Mr. Alberelli had no issue, at the time. [ 76 ] In addition, the latter’s testimony regarding the flood zone applicable to his house was not credible at trial.

He initially stated that he believed that his house was in a 0-20 year flood zone, and then that his house was in the 20-100 year flood zone, potentially misleading the Court therewith. However, the evidence is abundant that the home is not within said zones, as appears clearly from the land surveyor plan that he paid for (for that exact purpose!), [41] as well as according to the plans drawn up by his engineer. The latter plans contain the following conspicuous note: [42] NOTE IMPORTANTE : SELON LE CLIENT ET LA VILLE DE GATINEAU.

LA MAISON DU CLIENT SE TROUVE À L’EXTÉRIEUR DE LA ZONE INNONDABLE D’OCCURRENCES 0-20 ANS ET 20-100 ANS . [The underlining is by the Court] [ 77 ] In addition, Mr. Alberellli appeared, understandably, to be extra cautious in his testimony regarding foundation types. However, at one point, when asked a question by the Court, he spoke more quickly and used the following expression: "Before I transitioned from the watertight foundation and the conventional foundation…". Such language suggests, and the Court finds, that Mr.

Alberelli did indeed transition away from both “watertight” and “conventional” foundations towards a “standard” foundation. [43] [ 78 ] And while Mr. Danis may also have hesitated from time to time during his testimony, he appeared more natural given his desire to tell the truth in a situation where the facts are rather complicated and difficult to recollect with precision, especially, as here, where several years have passed and, in the year in question, Mr. Danis’ business was flourishing with numerous clients after the 2017 floods. [ 79 ] In short, Mr.

Danis’ testimony appeared to be more credible than that of Mr. Alberelli. [ 80 ] Such lends credence to Mr. Danis’ position that, as regards the D-1 plans: [44] R. C'est les plans qu'il nous avait apportés que la Sécurité publique n'ont pas acceptés, puis Roberto voulait pas payer la différence . [The underlining is by the Court] Conclusion on type of foundation agreed to by the parties [ 81 ] Finally, the Court also notes that, importantly, Danis never used the initial bid amount provided by Fondations Leblanc for the foundation work (which estimate was prepared in accordance with the D-1 plans).

That Danis’ bid was materially lower than the cost on

Leblanc’s estimate, is indeed indicative that the D-1 plans were not going to be followed, and such was the case from as early as April 2018. [ 82 ] On the whole of the evidence, given the conduct of the parties, and the many other facts found above, together with a view to the parties’ respective credibility, the Court finds, on the balance of probabilities, that the parties had indeed agreed that the foundation for Mr. Alberelli’s home would be a standard foundation, and not the reinforced concrete foundation provided for in the D-1 plans. [ 83 ] Of course, Mr.

Alberelli would have liked a reinforced foundation. It would have been normal to want such a foundation as his home is indeed quite close to the 100-year flood levels. However, at trial, there was no material evidence whatsoever that the government agreed or would agree to pay for a reinforced foundation. Yet, such evidence, if existent, was easily within the reach of Mr. Alberelli. In any event, that the City of Gatineau or the MSP may have approved the D-1 plans, to which Mr.

Alberelli testified, does not preclude the parties from having agreed between themselves to build something else. [ 84 ] As the Court has found that the parties agreed on a standard foundation, Danis’ principal account for same is indeed owing, subject, however, to Mr. Alberelli’s claims for deficiencies and defects. 2. Acceptance of extras [ 85 ] In addition to the invoice for $124,618 flowing from his original estimate for the lifting and lowering of the home and related construction, Danis also invoiced Mr. Alberelli for certain extras. [45] [ 86 ] According to Mr. Danis, most of the extras were billed to Mr.

Alberelli because the latter, a capable handyman as mentioned, had proposed to personally handle certain matters, but then failed to do so. Thus, Danis invoiced removing and disposing of the water tank, the gas line, the furnace and ventilation system, and removing and reinstalling certain electrical wiring. [ 87 ] He also invoiced for providing and installing a new gas furnace and related ducts, a gas water tank, and a new gas line. [ 88 ] Invoice 1123, dated November 15, 2018, appears to be payable. [46] None of the work described therein was included in Danis’ bid, and during testimony, Mr.

Alberelli did not testify with great credibility that he was not supposed to generally have personally taken care of the matters in said invoice. [ 89 ] Regarding invoice 1125, [47] Mr. Alberelli admits to having accepted the bid for the new furnace. The Court also notes that he stated at trial that the government paid 100% of the $9,100 (before tax) that was invoiced (though later, in cross-examination, he stated that the government did not reimburse him the full amount). [ 90 ] Mr. Lane also admitted that Mr.

Alberelli knew that he had to pay for the furnace and water tank work. [ 91 ] The amounts of invoices 1123 ($5,547.55) and 1125 ($10,462.73) are therefore also owed to Mr. Danis, subject to Mr. Alberelli’s claims for defects and deficiencies. 3. Defects and life expectancy of foundation [ 92 ] Mr. Alberelli claims for numerous deficiencies in Danis’ work, as well as for the loss of the projected life expectancy of the foundation of his home. [ 93 ] The claimed deficiencies are as follows:

a) The original slab and footing were not removed

b) Foundation too small for the house and consequent air infiltration

c) Back porch not to code and improper support

d) Screwed piles instead of sonotubes

e) Engineer's report for screw piles

f) Front and side porch issues

g) Joists, sill plates and anchoring the house

h) Frozen pipes

i) Different adjustments (water tap, cracks, doors, electrical,..)

j) Plumbing system

k) Levelling the floor

l) Gas line

m) Material for items b), c), f), h), i),

n) Provide additional bearing support for the wood joists atop the steel beam

o) Cracking around windows

p) Installing wood lintel above the rear basement door

q) Proper support to the rear deck

r) Invoice from Construction Heritage

a) Lack of removal of slab and footing and life expectancy of foundation [ 94 ] Analyzing the deficiencies in the same order, Danis recognizes that the slab and footing were not removed. He offers a credit for same in the amount of $5,000. [ 95 ] While Mr. Alberelli’s initial “expert”, Mr.

Charron, who could not testify given his passing, suggested that the lack of removal of existing slab and footing may lead to shortened life expectancy of the foundation, because, among other things, it did not permit enough crushed stone to be installed under the new floor slab, [48] the probability of same was not established to the satisfaction of the Court. [ 96 ] Indeed, the Court is more persuaded by Danis’ expert, Mr. Ayotte, that: [49] Le fait de construire la fondation sur les vieilles semelles et la vieille dalle de béton n'affecte pas la stabilité de la fondation.

On ne voit aucun signe de mouvement ou de fissuration importante dans les murs et la dalle de plancher. La construction de la fondation sur la dalle et les semelles existantes a permis de surélever les fondations en restant sur un sol non remanié. La

section qui était avec vide sanitaire a pu être excavée à la même profondeur que les vieilles semelles. Donc la fondation repose sur une base solide et un sol non remanié. M. Michel Charron fait allusion que le fait de gardé ( sic ) la vieille dalle empêche l'installation de pierre nette sous la nouvelle dalle ce qui est faux. Sur la photo fournie dans son rapport, on peut constater qu'il y a bien du drainage sous la dalle de béton. (Photo Plate 7 page 12).

Sur la photo on voit bien que l'épaisseur des semelles de fondation a été remplie de pierre nette. [ 97 ] This is also confirmed by the foundation subcontractor, Mr. Leblanc, who stated that his company installed the required gravel. [ 98 ] Also, the Court notes that Mr. Alberelli, who was on site at all times, noticed that the existing slab and footing were not being removed. He had no qualms with same at the time, nor in the spring when Danis was still seeking to be paid. [ 99 ] However, Danis is prepared to offer a credit for the money it saved him. [ 100 ] Mr. Danis proposes $5,000. Mr.

Alberelli’s estimate, [50] provided by Construction Héritage, is approximately $15,000. This latter figure is an amount grossed-up by the approximately 35% that Construction Héritage attributes for administration, profit and taxes. [All claimed amounts discussed by the Court in its analysis of deficiencies and credits will be the approximate 35% grossed-up amounts, as those are the amounts that Construction Héritage estimates that Mr. Alberelli would have paid, and in respect of which Mr.

Alberelli should receive a credit against Danis’ invoices, where applicable.] [ 101 ] Regarding the lack of removal of the slab and footings, Construction Héritage’s estimate seems closer to the actual saving to Danis, as the cost of digging out the original slabs and footings would have been expensive considering the material and surface size involved. The Court notes that Danis’ estimate provided a total sum of approximately $35,000 for excavation, demolition and transportation of the entire old foundation, before taxes.

Considering all applicable evidence, the credit attributed by the Court is thus set at $15,000. [ 102 ] As previously determined by the Court, the type of foundation agreed to be built was the type that was indeed built by Danis.

As such, there can be no valid claim for a life expectancy difference between the foundation which was built and the one described in the D- 1 plans. [ 103 ] The Court adds that there has been no probative evidence of any structural damage or movement of any kind in the five years since the new foundation was constructed by Danis, notwithstanding another major flood in the Gatineau area in 2019. It is also to be recalled that Mr. Alberelli’s foundation was previously merely stacked cement blocks. That foundation lasted 87 years.

b) Foundation size [ 104 ] As to the foundation being slightly too small for the size of the house, there is agreement by Danis that such is the case and that there remained minor work to be done to remedy same. It is often difficult to get new foundations to line up perfectly with an existing lifted house. [ 105 ] All agree, however, that the issue is not a structural one or a major defect. [ 106 ] That being said, the gap between the foundation and the house can cause several issues, including failing to keep cold air and rain from entering the home. [ 107 ] Mr.

Alberelli did most of the remedial work in this regard himself and should be compensated for same. [ 108 ] The Court determines such compensation to be in an amount of $1,000 given the approximate time involved by Mr. Alberelli, at an arbitrary rate of $25 per hour, and keeping in mind the estimated cost given at trial by both Mr. Danis and Construction Héritage.

Such an amount does not include the cost of materials, which the Court shall address later in the judgment.

c) Back porch not up to code [ 109 ] Mr. Alberelli claims approximately $10,000 [51] for the back porch not being up to code. More specifically, his porch is not properly connected to the house and there is a lack of flashing to protect from water infiltration. There was also the need for additional proper support for the porch. [ 110 ] Danis agrees this should have been done and says it can be done for a few hundred dollars, but he denies any liability for any other issues relating to the porch, as much of the work was done by Mr. Alberelli. It may be true that much of the work was done by Mr.

Alberelli, but the evidence shows that Mr. Danis had initially agreed to do much of that work (even if it does not appear on Danis’ bid). [ 111 ] From the testimony of Heritage Construction’s representative, who tried to justify his estimate of $8,000 of remedial work, such an estimate appeared grossly exaggerated. The detail on the work to be done and the materials required, and their cost, simply did not add up. [ 112 ] For the work done by Mr. Alberelli already [52] and the remaining issues of proper support and flashing, the Court awards Mr. Alberelli a credit of $2,500.

d) Screwed piles instead of sonotubes [ 113 ] Danis used screwed piles instead of concrete in sonotubes to provide support for the front porch. [ 114 ] Mr. Alberelli claims approximately $3,300 for the cost saved to Danis from the different technique used. [ 115 ] Mr. Alberelli’s initial expert recognizes that screwed piles are often used for such applications, [53] and Mr. Danis testified that the cost between both is relatively similar and that he did not really have a choice given the placement of an existing gas line. Moreover, he states that Mr.

Alberelli agreed with the screwed piles alternative. [ 116 ] Finally, Mr. Danis testified that the type of screw piles used was of a sufficient strength to support balconies with roofs. [54] [ 117 ] From the evidence heard, the Court concludes that Mr. Alberelli is not entitled to a credit for the use by Danis of screw piles, except as described in the next section.

e) Engineer’s report for screw piles [ 118 ] According to Mr. Alberelli, Danis’ choice of screw pile support for the front balcony would have required a new engineer plan to be submitted to the City. The alleged cost of $500 for such an engineer plan appears reasonable and causal to Danis’ choice of varying from what was understood initially between the parties. Such cost amount was also confirmed by the expert engineer, Mr. Massarelli. [ 119 ] The Court thus provides a credit amount of $500 to Mr. Alberelli for such issue.

f) Front and Side Porch [ 120 ] As previously mentioned, much of the porch and balcony work was finished by Mr. Alberelli before the experts were called in to examine them. As the work was done by Mr. Alberelli, any defects relating thereto do not appear to be Danis’ responsibility. [ 121 ] However, Danis recognized in his examination out of court that the work was mostly to be his; notably, that he still had the railings to do when he left. [55] [ 122 ] As Mr. Alberelli handled much of the work himself, he should be compensated therefor with a credit in the amount of $2,500.

Again, Construction Héritage’s estimate did not appear probative of the actual amount required to remedy work actually done by Danis.

g) Joists, sill plates and anchoring the house [ 123 ] Some important work was still required to bolt the house to the foundation. During the trial, Danis recognized that doing same would cost approximately two to three thousand dollars. [ 124 ] The estimate filed by Mr. Alberelli suggests the cost will be approximately $9,000. [56] [ 125 ] The Court finds that Danis underestimates the cost, and that Construction Héritage exaggerates the cost, as it did regarding several items in its estimate. Indeed, it is useful to note that the testimony of Construction Héritage’s representative was not overly credible.

It generally lacked detail and rigour and gave the impression that the numbers were broadly exaggerated to the benefit of Mr. Alberelli. [ 126 ] The Court arbitrates the amount at $5,000, based on the description of various witnesses on the moderate complexity of the work [57] .

h) Frozen pipes [ 127 ] Mr. Alberelli no longer claims the greatly exaggerated amount of over $12,000 estimated by Construction Héritage for the frozen pipe issue, [58] because, as he explains, the repair work was done by him.

[ 128 ] In the circumstances, the Court finds appropriate, as elsewhere, that Mr. Alberelli be compensated for his time fixing same. [ 129 ] Mr. Alberelli also took the time to install urethane foam and to add wood finishing around the gap of the house that let cold air in. [ 130 ] The Court thus awards $1000, not including materials which will be addressed later in this judgment.

i) Different repairs and adjustments (water tap, cracks, doors and electrical) [ 131 ] Mr. Alberelli claims for work to be done fixing cracks on interior walls and exterior walls and adjusting doors following the lifting of the house. He also claims for handling certain wires and other incidental matters. [ 132 ] The amount estimated by Construction Héritage to repair same is approximately $22,000 when including administration, profit and taxes, and combining items I and O set out in the estimate. [59] Mr.

Alberelli recognizes that Construction Héritage or other third party would not need to take care of installing or repairing the backflow valve mechanism as he took care of it himself. [ 133 ] As to the cracks in the house, there are many; however, according to the evidence, they were to be expected. And while not esthetically pleasing, they are not structural in any way. The evidence also showed that Mr.

Alberelli accepted to take care of minor and esthetic matters himself. [ 134 ] In the court’s view, the cracks are minor and esthetic in nature, as is the adjustment of doors. [ 135 ] As to the outside walls, including the cracks on the crépis , as Mr. Ayotte rightly noted, all of the cracks are less than 1 mm and do not require fixing [60] . Nor are they the symptom of a structural problem. [ 136 ] Mr. Alberelli did install the outside water tap himself. He also took care of the back-flow valve system. He also handled fixing the frozen and burst water pipes. He capped the plumbing.

He cleaned up debris after Danis left. He replaced a broken electrical wire and strapped certain electrical wires. He installed a ground plate. [ 137 ] Mr. Alberelli should be compensated for work he did himself albeit at a personal cost rate and not at the hourly rate of professionals. He should not, however, be compensated for work that does not need doing, nor for work that he agreed with Danis would be his own responsibility, such as minor or esthetic work. [ 138 ] In addition, Mr. Alberelli should be awarded an amount for the cost of repairing certain cold joints above the basement window openings.

The work to be done is well described by Mr. Massarelli in his report. [61] [ 139 ] On the basis of the evidence, the Court awards Mr. Alberelli a credit of $6,000 for his own repairs brought to the property that were not already awarded to him in other sections of this judgment, as well as for the work required to repair the cold joint issue.

j) Plumbing System [ 140 ] Mr. Alberelli claims he should have had a sump pump, pursuant to a verbal agreement with Mr. Danis. He claims $8,000 for the installation thereof pursuant to the estimate of Construction Héritage. [62] [ 141 ] A sump pump was not provided or in any document Mr. Alberelli produced as trial, yet he claims for same.

In the Court’s view, this supports the Court’s finding of the fluid relationship between the parties as to what was required to be built as compared to the alleged contractual documents. [ 142 ] There is no indication of a sump pump to be installed in the bids in the file, and it was not required, nor drawn in the D-1 plans. It was however recommended in the D-1 plans. And according to Mr.

Alberelli, the City encouraged a sump pump as well. [ 143 ] The Court concludes that the parties agreed that one would be installed for the following reasons. [ 144 ] The sump pump issue was raised at the meeting of the parties on December 19, 2018. It is essentially the only thing that Mr. Alberelli complains about prior to the winter break. Mr. Alberelli mentions to Mr. Danis that he is “disappointed” [63] that there was no sump pump or sump pit installed. [ 145 ] Mr. Alberelli and Mr. Lane say they requested a sump pit and pump in their early meetings with Mr. Danis.

This makes sense; the foundation that was agreed upon the parties to be built was not going to be water-resistant. There will thus be water infiltration from time to time. Indeed, the Court finds that on the basis of the evidence, [64] it would have been normal practice to install a sump pit and sump pump to cover such a situation. [ 146 ] It is not normal that after having spent so much money constructing his foundation, that Mr. Alberelli should have to be concerned about water on his basement floor that could easily have been evacuated by a sump pit and pump. In addition, Mr.

Danis cannot validly argue the non-existence of such a promise on the basis of the absence of written evidence, when his own claim of an agreement for a standard foundation is itself based on verbal discussions. [ 147 ] That being said, the cost estimate by Construction Héritage appears, again, exaggerated. When its representative is asked in cross-examination, how he came up with the estimate cost for the sump pump installation, he merely replies: “C’est un prix budgétaire”. [ 148 ] There is some work to be done to install a sump pit and pump.

The concrete slab will have to be opened up to include the pit and there will be plumbing work to join the pump water to other existing plumbing or to make sure it otherwise evacuates outside the home. There are materials involved. [ 149 ] The Court determines the amount of the credit owed to Mr. Alberelli to be in the amount of $2,500.

k) Relevelling the second floor [ 150 ] By creating a strong and straight basement ceiling (required to the lift the house), the floors on the second storey of Mr. Alberelli’s nearly centenary home have become somewhat crooked. Mr. Alberelli had recently levelled them. [ 151 ] Mr. Danis says that Mr. Alberelli knew that crookedness of the floors was certainly a possible consequence from the lifting and resetting of the house. [ 152 ] There is indeed evidence that the parties discussed the issue before the raising of the house. Mr.

Danis would have said that he would be very careful and that the floors should not move too much. [ 153 ] Mr. Alberelli’s experts do not comment much on this issue, only to say that the work should be done by Danis as, being the contractor, he would have an obligation to make the required adjustments to level the home after the house had been redeposited on the new foundation. [65] [ 154 ] As to Mr.

Ayotte, he essentially says that the floors look “satisfactory” and that certain adjustments are normal in the circumstances. [66] [ 155 ] The Court finds that it would be normal for Danis, as contractor, to make the adjustments necessary to the floor, if they were worsened significantly by his work. There is no evidence that Danis excluded any responsibility for such normal adjustments. [ 156 ] Construction Héritage estimates a cost of approximately $25,000 to have the floors straightened, without demolishing same. [ 157 ] Given the latter’s propensity to exaggerate and given that Mr.

Ayotte saw the floor as being ‘satisfactory’, the Court finds that only a modest amount of work will be needed to level the second storey floors. [ 158 ] The Court determines a credit of $4,000 for such work.

l) Gas line [ 159 ] Mr. Danis agrees to give a credit for the $849.90 that it cost Mr. Alberelli to have the gas line installed by a third party. This appears appropriate and reflects that actual amount claimed by Mr. Alberelli.

m) Various materials [ 160 ] Mr. Alberelli purchased many materials to complete some of the work he undertook after Danis left the site in December 2018. [ 161 ] He has filed his purchase invoices as Exhibit D-5, which total an amount of $3,571.07. [ 162 ] He should receive a credit in that amount on such basis.

n) Additional bearing support for the wood joists atop the steel beam [ 163 ] Mr. Alberelli’s experts suggest that certain joists are poorly supported. [67] [ 164 ] Mr. Ayotte, Danis’ expert, who reviewed them, found that only one joist was poorly supported. [68] [ 165 ] Construction Héritage estimates the cost of the work required to be approximately $6,000. Its estimate is, however, based on a poor understanding of the situation, which grossly overvalues the cost of dealing with the issue.

It may be that is because the Charron and Masserelli expert reports are in the English language and that the representative of Construction Héritage only understands approximately 40 % of such language, as he admitted in cross-examination. [ 166 ] On the basis that there may be slightly more work than that which is described by Mr. Ayotte, the Court attributes a credit of $1,800 on this issue to Mr. Alberelli.

o) Repair the cracking around windows [ 167 ] This issue has been dealt with above.

p) Install wood lintel above the rear basement door [ 168 ] Mr. Massarelli has noted that there is insufficient topside protection for the basement entrance door. The thickness of the concrete above the rear door is only 75 millimetres thick. In his view, the situation requires a wood lintel. [ 169 ] Mr. Ayotte’s response, that because there has not yet been any resulting damage from the defect, there is no need to repair same, appears short in logic. [ 170 ] Construction Héritage’s cost estimate for same is approximately $3,000, including administration, profit and tax.

Such an amount appears exaggerated given the work involved. Rather, $1,400 should be credited in favour of Mr. Alberelli for this issue.

q) Proper support for the rear deck [ 171 ] This issue has been dealt with above.

r) Invoice from Construction Héritage [ 172 ] Mr. Alberelli claims the cost of having Construction Héritage prepare an estimate for the required repairs. The amount claimed is $919.80. [69] [ 173 ] This claim must be dismissed. The cost claimed is not an immediate and direct consequence of Danis’ fault, as required pursuant to

Article 1607 CCQ. [ 174 ] The invoice can neither be claimed as an expertise cost, as the work done by Construction Héritage for such estimate was not an expert report and cannot be qualified as such. Conclusion regarding amount of deficiencies [ 175 ] As shown from the following table, Mr.

Alberelli has proven, on the balance of probabilities, the following deficiencies and corresponding total amount: Deficiencies Amounts a Slab and footing $15,000.00 b Foundation size $1,000.00 c Back porch not up to code $2,500.00 e Engineer’s report for screw piles $500.00 f Front and side porches $2,500.00 g Joists, sill plates, anchoring $5,000.00 h Frozen pipes $1,000.00 i Various repairs $6,000.00 j Plumbing work $2,500.00 k Levelling floor $4,000.00 l Gas line $849.90 m Various purchased materials $3,571.07 n Bearing support work $1,800.00 p Wood lintel above back door $1,400.00 Total amount awarded by the Court $47,620.97 4.

Was Danis given an opportunity to do the work? Did Danis refuse to finish the work? [ 176 ] The Court is of the view, that in this particular file, being given the opportunity to do the work makes no substantive difference, as Mr. Alberelli was entitled to put an end to Danis’ work at any time, given articles 2125 and 2129 of the CCQ, which read as follows: 2125 . The client may unilaterally resiliate the contract even though the work or provision of service is already in progress. 2129.

Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered. [The underlining is by the Court] [ 177 ] As such, the Court concludes that Mr. Alberelli owes only for the work actually done and does not owe for work that was not done by Danis, whether or Danis offered to do same or not, and whether or not Mr. Alberelli refused to let that happen. [ 178 ] As seen, the work not done or in need of correction amounts to a total of $47,620.97. [ 179 ] This amount should be deducted from Danis’ invoices. 5. What does Mr.

Alberelli owe? [ 180 ] The invoices submitted by Danis prior to the winter break in December 2018 total an amount of $140,628.99. Had Danis effected his work completely and adequately, he would have been entitled to payment of his invoices in full. However, the work was not completed by him, and there were defects and deficiencies remaining in an amount of $47,620.97. [ 181 ] As such, Mr. Alberelli owed an amount of $93,008.02 to Danis for the work done on his home. [ 182 ] Mr. Alberelli paid an amount of $42,000 as a deposit on September 4, 2018. [70]

[ 183 ] Danis also received $10,443.60 on October 30, 2018, [71] and $10,000 at their last meeting prior to the winter on December 19, 2018. [72] [ 184 ] Therefore, deducting the valuation of defects and deficiencies as well as the amounts already paid by Mr. Alberelli from the amount of the total invoices, the amount owed to Danis by Mr. Alberelli is $30,564.42. 6. Was there value-added to the home? [ 185 ] The Court is of a view that the work did increase the value of Mr. Alberelli’s home substantially.

After the flood of 2017 destroyed the foundation of his home, it is more than likely that the valuation of the home would have been close to nil. There was testimony at trial to the effect that there was consideration of potentially demolishing same completely, given its state. [ 186 ] For municipal valuation purposes, Mr. Alberelli’s home was valued, after the work, at $174,400 as of July 1, 2019. [73] [ 187 ] Clearly, with the work done by Danis, there was value added to the home in an amount sufficient to cover the remaining amount owed by Mr. Alberelli. 7.

Was the legal hypothec registered in due time? [ 188 ] The law requires that the legal hypothec of a person involved in the construction on a property be registered within thirty days of the end of the work: 2727. A legal hypothec in favour of persons having taken

part in the construction or renovation of an immovable subsists, even if it has not been published, for 30 days after the work has been completed. It subsists if, before the 30 days expire, a notice describing the charged immovable and indicating the amount of the claim is registered. The notice shall be served on the owner of the immovable.

It is extinguished six months after the work is completed, unless, to preserve the hypothec, the creditor publishes an action against the owner of the immovable or registers a prior notice of the exercise of a hypothecary right. [The underlining is by the Court] [ 189 ] The law also defines when work is completed: 2110. The client is bound to accept the work when work is completed; work is completed when the work has been produced and is ready to be used for its intended purpose.

Acceptance of the work is the act by which the client declares that he accepts it, with or without reservation. [The underlining is by the Court] [ 190 ] Mr. Alberelli argues that Danis’ work finished when the latter stopped work on December 19, 2018. [ 191 ] However, the evidence showed that Danis stopped working due to the arrival of winter and the Christmas holidays. His employees were by then on vacation, and the ground had frozen. [ 192 ] In the spring, there were twenty transport loads of excavation material to be removed.

The value of same in relation to the overall contract was substantial. [ 193 ] The transport of debris and excavated materials was included in the parties’ agreement and, thus, the work cannot be considered completed until same was effected by Danis. [74] [ 194 ] The Court adds that, as Mr. Alberelli himself admitted, when Danis left for the winter, “the place looked like a bomb hit"; that is not the sign of work that is finished. [ 195 ] The Court notes in addition that Mr.

Alberelli essentially recognizes that “some work had still not been completed” in his Statement of Defence and Counterclaim Re-Re-Amended. [75] [ 196 ] According to Danis, the last time he was working on site was in June 2019. He produced photographs confirming the date. [76] [ 197 ] On the basis of the evidence, the Court concludes that Danis’ legal hypothec was registered in due time, having been registered within the thirty days of the end of the work, as required by law. 8. Expert costs [ 198 ] Both parties succeeded, in part, on their claims.

And the Court notes that it found both parties’ expert reports and testimony to be useful. As such, both parties shall be entitled to their expert costs, determined as follows: [77] Expert costs for Danis Invoices N o Dates Amounts 3157 2020/09/03 $1,437.19 3383 2021/07/02 $1,207.25

3785 2023/04/20 $689.35 3790 2023/04/28 $1,897.09 TOTAL $5,230.88 Expert costs for Mr. Alberelli Invoices N o Dates Amounts BE-016599 2020/11/03 $1,582.47 BE-016817 2020/11/10 $3,210.29 020920-01 2020/09/02 $1,250.00 TBD [78] TBD TOTAL TBD Trouble and inconvenience [ 199 ] Mr. Alberelli additionally claims trouble and inconvenience in the amount of $10,000 for his time spent on the matter. [ 200 ] He is already compensated in this judgment for his time spent repairing certain defects and deficiencies in Danis’ work. In addition, he had agreed with Danis that he would be responsible for all esthetic work.

Additional compensation appears inappropriate. Legal costs [ 201 ] Given the divided success of the parties’ claims, there shall be no costs awarded to either party, except as regards their expert costs as previously determined. FOR THESE REASONS, THE COURT: [ 202 ] GRANTS , in part, Plaintiff’s Application; [ 203 ] CONDEMNS Defendant to pay Plaintiff an amount of $30,564.42 with interest at the legal rate and the additional indemnity provided pursuant to

Article 1619 CCQ as from July 22, 2019; [ 204 ] DECLARES the following immoveable to be the subject of a legal hypothec pursuant to the

article 2724 CCQ in the amount of $30,564.42: Un immeuble connu et désigné comme étant le lot UN MILLION [...] (1 [...]) du cadastre de Québec, circonscription foncière de HULL.

Adresse : [...], à Gatineau, province de Québec, [...]. [ 205 ] ORDERS the Impleaded Party, Officier de la publicité des droits de la circonscription foncière de Hull, to register and publish the present judgment against said immoveable; [ 206 ] DISMISSES the Defendant’s cross-claim; [ 207 ] THE WHOLE, without legal costs in favor of either party, but each party being entitled to the cost of their experts, as provided for in this judgment, given the divided result. The parties may seize the present Court on the issue of undetermined expert costs if need be. _________________________ PATRICK BUCHHOLZ, J.S.C.

Me Vanessa Thibeault Cain Lamarre, s.e.n.c.r.l. Lawyers for Plaintiff/Cross-Defendant Me Caroline Simard Caroline Simard avocate inc. Lawyer for Defendant / Cross-Plaintiff

Dates of Hearing: May 1, 2, 3, 4 and 5, 2023