2017 QCCQ 3568, 2017 QCCQ 3568

Toro Real Estate Management Inc. c. Fondation Place Coco 2017 QCCQ 3568 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147315-156 DATE: March 24, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE David L. Cameron , J.C.Q. ______________________________________________________________________ Toro Real Estate Management inc. Plaintiff v.

La Fondation Place Coco Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ THE CLAIM [ 1 ] The Plaintiff, Toro Real Estate Management inc. (Toro), who acted as a contractor for renovations performed on premises rented by the Defendant, La Fondation Place Coco (Fondation), sues for a balance of the contract price of $ 7,765.84 on a total price of $ 22,240.84 and an additional $ 1,000 for extra work outside the scope of the contract, for a total of $ 8,765.84.

This amount is corrected by an invoice dated December 12, 2016 at $ 8,819.25. [ 2 ] The work in question involved certain renovations and improvements in the basement of the premises which were used as an educational centre known as “The Little Red Playhouse” at 263 Percival, Montreal. In its initial contestation the Fondation alleged that the Plaintiff had changed its estimate and overcharged and that it did not finish the work properly. THE CONTESTATION AND COUNTER-CLAIM [ 3 ] The contestation did not clearly claim a reduction in price and a cross-demand for damages.

The Court allowed amendments of the contestation at the initial hearing held June 28, 2016. [ 4 ] According to the amendments, the Defendant alleges that the initial contract price was reduced by credits to $ 12,500 and then increased by additional work consisting in the construction of a powder room for between $ 3,000 and $ 4,000 and an extra for the construction of a partition for $ 300. [ 5 ] The amended contestation also asserts that the estimated cost of making good defective work is $ 7,547 and that the Defendant incurred direct labor and material costs of $ 2,052.70 to perform the work as well as “donated labor” worth $ 4,990. [ 6 ] There also remained a dispute about the amount of partial payments made to date with the Defendant asserting that it had paid $ 21,950 and the Plaintiff alleging that it had received only partial payments totalling $ 14,475. [ 7 ] At the subsequent hearing held November 29, 2016, it was established that Toro had in fact received no more than $ 14,495. [ 8 ] This amount was arrived at after both parties carefully checked their banking records.

ISSUES [ 9 ] The amount of the partial payments having been established, the Court, to resolve this conflict, must answer the following remaining questions : 1. What is the amount of the contract price as adjusted for credits and extras ? 2. Should this adjusted contract price be reduced because of uncompleted work and, if so, by what amount ? 3. What amounts are owed to Fondation for costs it incurred in completing the work or that are anticipated to complete or correct defective work ? ANALYSIS

The price as adjusted for credits and extras [ 10 ] The establishment of the contract price was difficult because no written agreement was entered into between the parties.

There is a series of estimates, the last of which was revised on January 1, 2015 (P-4) for a total of $ 19,300. [ 11 ] This document is consistent with testimony from both parties to the effect that Fondation had a budget of approximately $ 15,000 but agreed to an additional amount for the construction of a powder room, the requirement of which only became known to the parties after the contract had been commenced. [ 12 ] The building in which the school is operated is leased to Fondation by a school board, and the authorities responsible insisted upon the addition of this powder room for technical regulatory reasons. [ 13 ] While the Plaintiff alleges the price was a flat fee of $ 4,000, the Defendant takes the position that it was to be $ 3,000 or $ 4,000.

Sharon McCarry, the representative of Fondation at the hearing, admitted in her testimony that she would have gladly approved the payment of $ 4,000 were it not for the fact that she had complaints about the quality and late delivery of the project. [ 14 ] This admission was sufficient for the Court to prefer the version according to which this extra was to be charged at a flat rate of $ 4,000.

The other amount of $ 300 for a partition is not in issue. [ 15 ] The issue of credits, namely $ 1,500 for electrical work taken out of the scope and $ 1,000 for anticipated removal of Asbestos that did not come about created a certain amount of controversy because the Plaintiff asserts that the price of $ 19,300, including the extras, already takes into account this reduction. [ 16 ] The explanation provided by Mr.

George Vokaty, representative of Toro, convinced the Court that the estimate, as revised on January 1, 2015, and which reduces the price from an earlier estimate, does take into account these credits. [ 17 ] The extra work of $ 1,000 claimed for 14 hours at rate of $ 25 per hour is not supported by any timesheets.

The Court nevertheless heard the testimony of Matthew Vokaty, the son of Toro’s representative. [ 18 ] Matthew Vokaty is a qualified workman holding a competency card as “ charpentier-menuisier ” since 2014. [ 19 ] The contract initially was expected to be completed before January 1, 2015. [ 20 ] The work became delayed for reasons that have not been established, nor has it been established that the contract actually provided for a strict delivery date. [ 21 ] It was, however, an expectation of Fondation that it could operate the school when the students returned from holidays in the New Year. [ 22 ] Mr.

Vokaty, who had been personally present during the construction, delegated certain tasks to his son Matthew and to another worker known as “Karl”. [ 23 ] Their presence on the site does not establish any consent by the Fondation to extra payments, as they were completing the contract work. [ 24 ] It is however not in issue that, when he was on site, Mrs. McCarry requested the reconstruction of the interior finishing of a structural brick wall.

Matthew Vokaty testified that he worked on this project for four hours per day during one week (20 hours). [ 25 ] He also testifies having carried out several small jobs for the Plaintiff at the request of Mrs. McCarry amounting to approximately ten hours of extra work. While the testimony of the parties differed as to the exact nature of the work Matthew Vokaty was carrying out, the Court is satisfied that Mr.

Vokaty’s recollection of the approximate amount of time spent is accurate and the Court arbitrates the value of this extra work at $ 750. [ 26 ] The price is therefore established as follows (before taxes) : Estimate (P-4) $ 19,300 Extra for powder room $ 4,000 Extra for partition $ 300 $ 23,600 Extra materials provided by Fondation [ 27 ] Certain materials were required for the contract work as opposed to the extra work and Toro admits this, but does not suggest an amount, leaving it to the Court’s judgment. [ 28 ] The Fondation presented, as part of Exhibit D-5, materials totalling $ 2,051.88. [ 29 ] Of this, $ 1,460.82 is listed in an expense report. [ 30 ] This includes several items such as moldings, quarter rounds, etc. that correspond to materials that Toro should have provided.

The Court also accepts the cost of a utility sink which replaced a very poor quality sink that Toro provided and was not accepted by the Fondation. The Court does not accept, however flooring materials which were not part of the contract. The Court arrives at $ 907.82, tax

included, by excluding : - grey floor painting supplies $ 191.18 - flooring $ 361.82 Claims for unfinished work [ 31 ] In respect of flooring, while the finishing of the floor was not part of the contract, Mr. Vokaty admitted in a letter of demand dated January 8, 2015, that he would credit $ 1,000 for cleaning plaster off the floors so that they could be finished by Fondation, installing kitchen cabinets, sink and countertop and painting of the basement walls.

Matthew Vokaty admitted that he did not perform all of the painting work and that Robert McCarry, the father of the Fondation’s representative, did painting as part of his contribution in January 2015. [ 32 ] Because Mr.

McCarry testifies as to having carried out a number of tasks, and since it is impossible to establish, with any accuracy, the amount of time that should be credited by the contractor for his work and that of those helping him, the Court accepts the $ 1,000 credit offered by Toro in good faith in its attempts to settle the matter as an accurate estimate of the prejudice associated with that claim. [ 33 ] Fondation’s claims for so-called “donated work” of Mr. McCarry fails. Mr.

McCarry’s contribution, and that of other volunteers does not constitute damages on the part of Fondation because it did not make a financial contribution correspondingly. [ 34 ] Mr.

McCarry told the Court that his own time was simply donated while that of the employee who works for him in his printing business counted as expenses of his business. [ 35 ] Since none of this appears on the books of Fondation, it cannot be considered as a financial loss of Fondation, a moral person, having been incorporated as a non-profit corporation. [ 36 ] Fondation claims extra time of staff and the cost of a cleaning lady for cleaning work carried out in January when the project continued despite the fact that the school had been reopened.

It claims, for the cleaning lady, $ 15 an hour for 80 hours and 30 to 40 hours at $ 18 to $ 25 per hour for the time of her staff. It claims various amounts based on estimates and she arrives, somewhat impressionistically, at these amounts not having kept accurate records. In such circumstances as these, where, certainly, the Court must recognize that there was a financial impact to Fondation, it must arbitrate a reasonable amount for want of any more accurate means of assessment. The Court will simply arbitrate an amount of $ 1,000 for this somewhat imprecise financial loss of the Fondation.

Claim for defective plumbing [ 37 ] One aspect of the Defendant’s claim, the requirement of correcting defective plumbing work, is very adequately established through an inspection report dated June 27, 2016, by Joshua B. Weinstein of J.W. Plumbing and Heating. [ 38 ] This expert provided his testimony in writing. [ 39 ] It is worth mentioning that Mr. Weinstein, through this plumbing business, provides advice to the school board that owns the premises as to the acceptability of works carried out at its premises. [ 40 ] Mrs.

McCarry’s testimony establishes that Fondation had to meet the technical requirements as an obligation of its lease. She asserts that the school board used Mr. Weinstein’s services to come up with a list of deficiencies. [ 41 ] The counter report, provided by another plumber on behalf of Toro, is much less thorough and not convincing, as it does not address many of the nine listed deficiencies appearing in the Weinstein report. [ 42 ] The Weinstein report is very impressively supported by photographs and references to technical requirements and the Court is satisfied that, if he had testified, Mr.

Weinstein would have withstood a rigorous cross-examination as to the unacceptability of the work. [ 43 ] The estimate he gives in the report for the cost of making good the faulty work is less convincing, an estimate of $ 5,000 plus taxes. [ 44 ] This seems disproportionate as the price of installing the washer, including running new pipes in the concrete floor slab, was only $ 4,000. In the absence of a detailed estimate and competitive quotes, the Court finds his quantification to be of a much lesser probative value and unconvincing.

The Court arbitrates this quantum at a more acceptable price of $ 2,000 plus taxes. Conclusions [ 45 ] In

summary, the Court establishes the state of affairs between the parties as follows : - Adjusted contract price $ 23,600.00 - Taxes $ 3,534.10 $ 27,134.10 - Amount paid $ 14,495.00

Balance owed to Toro $ 12,639.10 *** - Fondation’s claim for materials (tax included) $ 907.82 - Allocation to Fondation for incomplete work ($ 1,000 plus taxes) $ 1,149.75 - Allocation to Fondation for work of its staff $ 1,149.75 - Damage to Fondation for defective plumbing work ($ 2,000. plus taxes) $ 2,299.50 Total Claim owed to Fondation $ 5,506.82 *** Difference after compensation with amounts owed to Toro $ 7,132.28 [ 46 ] Fondation asserted that it benefits from a partial reduction of sales taxes, but did not substantiate this.

It is understood that if it can establish this and Toro is required to collect less tax than this judgment reflects, Toro will make the adjustment. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 12,639.10, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Quebec , calculated from February 28, 2015; CONDEMNS the Plaintiff to pay the Defendant the sum of $ 5,506.82, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Quebec , calculated from February 28, 2015; EFFECTS judicial compensation between the two condemnations up to the lesser of the two amounts. THE WHOLE with each party paying its costs. __________________________________ David L. Cameron , J.C.Q. Dates of hearing: June 28 and November 29, 2016