2013 QCCQ 1650, 2013 QCCQ 1650

Moskovic c. Caon 2013 QCCQ 1650 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-125759-102 DATE: MARCH 5, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ ROBERT MOSKOVIC Plaintiff-Cross Defendant vs.

SUSAN CAON and MANLIO DEL NEGRO Defendants-Cross Plaintiffs ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, an architect, claims $6,647.04 for professional services rendered to Defendants between October 2008 and March 2009. [ 2 ] Defendants deny owing any additional fees and file a cross-demand in the amount of $7,000 for the following: – $5,000 for the completion of Plaintiff’s work; – $2,000 for moral damages resulting from the abusive registration of a legal hypothec on the part of Plaintiff.

THE CONTEXT [ 3 ] The parties have known each other since approximately 2006 when they were first involved in a renovation project. In April 2009, they agreed on the services to be provided by Plaintiff with respect to the renovation of Defendants’ home. [ 4 ] According to Plaintiff, the agreement was that he would be paid for his professional services on an hourly rate of $125 plus taxes.

He does not recall that an estimate was given. [ 5 ] According to Defendants, the parties rather agreed that Plaintiff’s services would cost $10,000 plus taxes, which they entirely paid following Plaintiff’s first invoices dated October 20, 2008. [ 6 ] According to Plaintiff, there were two phases in his work and a litigation arose regarding the second phase with respect to the windows.

In his invoice dated April 1 st , 2009, he refers to the following services: – Prepare, revise and present architectural plans, photo history regarding new windows to the City of Westmount for the construction permit. [ 7 ] He included in his invoice the task description of the 46 hours he spent working on Defendants’ project. [ 8 ] Plaintiff said that Defendant Del Negro offered him $2,000 for his fees but he refused and hired an attorney who sent a letter of default on May 5 th , 2009. [ 9 ] The documentary proof shows an exchange of emails between Defendant Del Negro and Plaintiff’s attorney regarding a deposit offered by Defendants with respect to Plaintiff’s claim in order to avoid the registration of the legal hypothec.

The proof also demonstrates that following said exchange, a legal hypothec was registered by Plaintiff for an amount of $6,647.04 on Defendants’ home which value is in the $2M range. [ 10 ] In any event, Defendants explain that they encountered several problems with the plans prepared by Plaintiff, namely regarding the windows, and that part of the mandate given to Plaintiff had not been fulfilled (i.e. balconies).

Defendants argue that they had to pay window manufacturer Prodomo an extra amount of $5,000 for “services de consultation de design” because Plaintiff’s plans were not compatible. [ 11 ] In early 2010, Plaintiff also served upon Defendants a Notice of the exercise of a legal hypothec of the taking in payment of an

immovable property which lead to the presentation by Defendants of a Motion in substitution of warranty and the radiation of inscriptions. Following said proceeding, the parties, through their attorneys, finally came to an agreement that an amount of $8,710.56 would be deposited with Papineau Avocats inc. in trust until a final judgment be rendered regarding Plaintiff’s claim for professional services. [ 12 ] Defendant Caon testified that following registration of the legal hypothec, she had numerous phone calls and even letters offering credit, services of a bankruptcy syndic, etc.

The line of credit used by Defendants during the renovations of their home was compromised because of Plaintiff’s legal hypothec and that was also stressful to them. From Defendant’s standpoint, the abusive proceedings taken by Plaintiff caused moral damages they assess at $2,000. ANALYSIS Plaintiff’s claim [ 13 ] Plaintiff has the burden of demonstrating by preponderant proof that his claim is well founded as per

Section 2803 C.C.Q . which reads as follows: 2803. A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. [ 14 ] In that respect, the testimonial proof demonstrates contradictory evidence.

Plaintiff’s version is to the effect that Defendants agreed to pay him on an hourly basis and Defendants’ testimony is rather that the parties agreed upon an all inclusive agreement in the amount of $10,000 which was completely paid for. [ 15 ] Considering the contradictory evidence and the previous invoices sent by Plaintiff and totalling $10,000 in October 2008, the Court finds that Plaintiff neglected to demonstrate that Defendants agreed to pay him on an hourly basis. [ 16 ] In view of the foregoing, the Court dismisses Plaintiff’s claim.

Defendants’ cross-demand [ 17 ] It is Defendants’ contention that due to Plaintiff’s incompatible plans, they had to incur an additional $5,000 expense with Prodomo. The sole proof offered at the hearing is Defendants’ testimony together with an invoice sent by Promodo. Said proof does not convince the Court that the additional $5,000 expense was incurred because of Plaintiff’s inadequate plans. There are numerous reasons why during extensive renovations, a client has to incur expenses related to design consultation.

Defendants’ claim in that respect must be dismissed. [ 18 ] Regarding the $2,000 claim for moral damages resulting from the abusive proceedings taken by Plaintiff, the Court must also dismiss it. [ 19 ] At the relevant time, Plaintiff was represented by an attorney who suggested the registration of a legal hypothec.

Although this proceeding seems exaggerated considering the amount at stake and even though there is no doubt in the Court’s mind that the registration of the hypothec certainly caused stress to Defendant Caon, the Court cannot condemn Plaintiff. [ 20 ] The exercise of a right is not a fault unless it is abusive. The proof offered does not support such an exceptional conclusion. [ 21 ] In view of the foregoing, the Court must dismiss Defendants’ cross-demand. [ 22 ] Considering the above, the amount of $8,710.56 held in trust by Papineau Avocats inc. should be remitted to Defendants.

IN VIEW OF THE FOREGOING, THE COURT: DISMISSES Robert Moskovic’s claim against Susan Caon and Manlio Del Negro; DISMISSES Susan Caon’s and Manlio Del Negro’s claim against Robert Moskovic; THE WHOLE , without costs. __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: February 19, 2013