2018 QCCQ 3177, 2018 QCCQ 3177

Zhou c. Plomberie GVA inc. 2018 QCCQ 3177 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-700666-177 DATE: May 14, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ DAYU ZHOU Plaintiff v. PLOMBERIE G.V.A. inc.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff seeks the reimbursement of an amount of $468.31 that he paid under protest to Defendant for emergency plumbing services carried out at his condominium in November 2016. He submits that the amount charged by Defendant was excessive in light of the services rendered. [ 2 ] Defendant responds that prior to concluding the work, its representative, Mr.

Giovianni Di Paolo, explained to Plaintiff’s wife that because this was an emergency weekend service call, a minimum of three hours for the plumber and his apprentice would be charged at hourly rates of $150 for the plumber and $130 for the apprentice and that Plaintiff’s wife agreed to said charges prior to Defendant completing the work. questions in issue [ 3 ] The case raises the following questions:

a) Were the terms and conditions of the Defendant’s retainer accepted by Plaintiff’s wife?

b) If not, did Plaintiff demonstrate that the amount charged by Defendant was excessive? FACTUAL CONTEXT [ 4 ] Plaintiff owns a condominium unit located on the fifth floor of a condominium complex, where he lives with his wife. [ 5 ] On November 20, 2016, the occupant of the condominium located directly beneath Plaintiff’s unit noted that water was leaking from a light fixture in the kitchen.

She immediately called the property manager of the building, Groupe Immobilier Celico Inc., who in turn made an emergency service call to Defendant to identify the source of the water infiltration and to remedy the situation. [ 6 ] Defendant’s representatives, the plumber Mr. Di Paolo and his apprentice, arrived on site at noon. They initially investigated the unit located below Plaintiff’s where the water leak had been noted. They then investigated Plaintiff’s unit and eventually discovered that the leak was caused by the bathtub faucet. Defendant did not have the part needed to repair the faucet.

Plaintiff proceeded to the repair subsequently. [ 7 ] The parties disagree on what transpired during Defendant’s visit to Plaintiff’s unit. [ 8 ] According to Mr.

Di Paolo, as soon as he arrived at Plaintiff’s condominium, he had a discussion with Plaintiff’s wife and explained that because he was responding to an emergency weekend service call, a minimum of three hours would be charged for both him and his apprentice, at the hourly rates of $150 and $130 respectively. [ 9 ] He claims that Plaintiff’s wife accepted these conditions and that he provided his services after having obtained her approval. [ 10 ] Plaintiff denies that his wife accepted said terms and conditions. [ 11 ] It is uncontested that after the investigation was completed, Mr.

Di Paolo presented Plaintiff’s wife with a worksheet showing a charge of $793.33. At this point, Plaintiff’s wife called her husband who instructed Mr. Di Paolo to wait for his return. [ 12 ] Mr. Di Paolo and his apprentice waited approximately 30 minutes for Plaintiff’s return and explained the terms and conditions previously explained to his wife. [ 13 ] Plaintiff eventually paid the amount claimed under protest and on January 10, 2017, demanded the reimbursement of a portion

of the amount paid, namely $468.31. [1] [ 14 ] Defendant responded to Plaintiff’s letter of demand, stating that both the plumber and the apprentice had spent 2.5 hours to locate the plumbing issue and that the amount charged was justified. [2] [ 15 ] Plaintiff filed his claim on January 31, 2017. [ 16 ] It should be noted that Plaintiff acknowledges that he is liable for payment of Defendant’s services; the dispute is limited to the amount due for said services. ANALYSIS

a) Were the terms and conditions of Defendant’s retainer accepted by Plaintiff’s wife? [ 17 ] Defendant argues that Plaintiff cannot contest the terms of its retainer because his wife accepted these terms before the services were rendered. It relies on Mr. Di Paolo’s testimony. [ 18 ] Although the Court did not hear the testimony of Plaintiff’s wife, it cannot accept Mr. Di Paolo’s testimony.

Indeed, it is in direct contradiction with what Defendant stated in its letter of January 17, 2017, that the terms were explained to Plaintiff’s wife after the work had been completed . [ 19 ] The Court concludes, on a balance of probability, that Plaintiff’s wife did not approve Defendant’s terms and conditions.

b) If not, did Plaintiff demonstrate that the amount charged by Defendant was excessive? [ 20 ] Mr. Di Paolo claims that the amount invoiced of $793.33 is justified because he and his apprentice spent three hours at the building to investigate the source of the water infiltration, to explain their conclusions to Plaintiff’s wife and to wait for Plaintiff to return as he asked them to do. He adds that the doubled hourly rates are justified for an emergency service call on a Sunday. [ 21 ] After reviewing all of the evidence, the Court concludes on a balance of probabilities that Mr.

Paolo and his apprentice were on site no more than 1½ hours. [ 22 ] The Court relies in this respect on Plaintiff’s testimony regarding the time of his return, on the affidavit of Marie-Christine Roy, the occupant of the condominium where the leak occurred and the email of the property manager’s representative of November 20, 2016 at 12:58 p.m. [3] , indicating that the source of the leak had been identified at that time. The Court takes into consideration that Mr.

Di Paolo and his apprentice waited on site at Plaintiff’s request for an additional 30 minutes. [ 23 ] Consequently, Plaintiff should not have been charged for more than 1½ hours at the applicable double hourly rates ($420) [4] . Transportation costs (doubled at $130) should be added, as Plaintiff admits that they are part of Defendant’s standard conditions and is prepared to pay same. [5] [ 24 ] Consequently, Defendant should have charged $550 or $632.36 inclusive of taxes [6] .

Defendant must therefore reimburse Plaintiff an amount of $160.97. [ 25 ] Given that the claim will be granted in part and for a limited amount only, the Court uses its discretion not to grant legal costs so that each party will support its own costs. FOR THESE REASONS, THE COURT: GRANTS the action in part; CONDEMNS Plomberie G.V.A. Inc. to pay to Dayu Zhou an amount of $160.97, together with interest at the legal rate and the additional indemnity provided in

article 1619 of the Civil Code of Québec from January 18, 2017 [7] ; WITHOUT LEGAL COSTS . __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: February 13, 2018