2019 QCCQ 1108, 2019 QCCQ 1108

Starnino c. Hendrick 2019 QCCQ 1108 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL "Civil Division" No: 500-32-156633-176 DATE: March 7, 2019 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ LORRAINE STARNINO Plaintiff v.

BRUCE HENDRICK Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims from the Defendant the sum of $1,040, namely $640 that she would have been billed twice and $400 as an overcharge of $5 an hour for 80 hours.

THE FACTS [ 2 ] The Plaintiff retained the services of the Defendant to work at her residence, removing a fence, pulling trees and posts and installing a new fence. [ 3 ] The Plaintiff provides the Court with four invoices [1] issued by the Defendant, one invoice lists the work done on May 4, 2017, namely 8 hours at $35 an hour for a total amount of $280. The second invoice represents the work done between May 4 to May 23, 2017, 71 hours at $40 an hour for a total of $3,302.62. A third invoice for the work done from May 23 to June 4, 2017, 56 hours at $40 an hour for a total of $2,240.

Finally an invoice for the work done from June 8 to June 12, 2017, 27.5 hours at $40 an hour totalling $1,100. [ 4 ] The Plaintiff also provides the Court with three duplicates of cheques, two issued on May 17, for $1,600 and $500 and a third, not dated, for $1,600 [2] . [ 5 ] The Plaintiff also provides the Court with a fifth invoice representing work done on May 9 and 15, 2017, 16 hours at $35 an hour totalling $640, with a duplicate cheque dated May 29, 2017 in this amount. [ 6 ] As appear in the invoices provided by the Plaintiff, the Defendant worked 154 hours, at $40 an hour, plus 8 hours at $35 an hour, which makes a total of $6,922.62.

Assuming the Plaintiff is right, and that the Defendant should have charged worked 162.5 hours, at $35 per hour instead of $40, the total for 162.5 hours, totals $5,687.50. Whereas, she only paid $4,340. [ 7 ] The Court prefers the explanation provided by the Defendant. He refers to the invoice where the total hours worked, at $40 per hour, totals $5,930. [3] [ 8 ] He also deducted a numbered hours, which results in an hourly rate of less than $35 per hour.

Finally, The Defendant accepted less than the amount actually owed. [ 9 ] The Plaintiff had the burden of proving that she overpaid the Defendant, whereas the evidence presented by the Plaintiff would indicate that she underpaid the Defendant. FOR THESE REASONS, THE COURT : DISMISSES the Plaintiff’s recourse; WITH COSTS in the amount of $300 representing the judicial stamp of the Contestation. __________________________________ DIANE QUENNEVILLE, J.C.Q .