2019 QCCQ 1694, 2019 QCCQ 1694

123942 Canada inc. c. Sabourin 2019 QCCQ 1694 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-704931-189 DATE: March 18, 2019 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ 123942 CANADA INC. Plaintiff v.

ALAIN SABOURIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is an action on account. [ 2 ] Defendant’s motion for revocation of judgment was granted. [ 3 ] Plaintiff manufactures “custom furniture”. [ 4 ] In the month of March, 2016, a verbal contract intervened between the parties, with a view to manufacture and install the items which plaintiff described in a document it prepared post facto , entitled “estimate”.

The agreed upon price was $28,000.00, and the work was to be completed by the end of June, 2016.

Defendant paid plaintiff the sum of $10,000.00, on account, on March 17, 2016 (cheque, exhibit D-1), and then a further amount of $7,672.00, before the work was completed. [ 5 ] At issue here are kitchen cabinets, which defendant ordered for a residential property which he was renovating to later market and sell. [ 6 ] Defendant described the kitchen cabinets, which were eventually delivered, as “a disaster”. [ 7 ] According to defendant’s partner, Abraham Blair Wolman, he “was mortified” and “furious” when he saw them. [ 8 ] These cabinets, which were being installed in a luxury home, were “orange, not brown” as ordered (pictures, exhibit D-3 en liasse ).

There was “something very wrong” with the wood and the stain. In fact, plaintiff’s principal, Zvonko Butorac, admitted same to defendant. [ 9 ] Defendant stated that they were not “ à la hauteur ” and that “ la couleur était épouvantable; il n’y avait pas d’uniformité; et ce n’était pas vendable ”. [ 10 ] Real estate agent Albert Arkilanian, an independent and unbiased witness, corroborated the testimony of defendant and Wolman.

He stated that “the kitchen was awful”; that “this was a big big thing”; that he had suggested that the property be taken off the market, as visitors did not like the kitchen and were not making offers; and that “the final product was good, but took forever”.

[ 11 ] As stated by both defendant and Wolman, because Butorac was not available to redo the work for many months, due to illness and absence, defendant was eventually obliged to hire a third party to repair the cabinets, at a cost of $5,500.00. No invoice was provided, but Wolman’s testimony on this point was credible. [ 12 ] In the end, the work was only completed in July, 2017, that is to say one year after the promised delivery date (picture, exhibit D-5). [ 13 ] At some point during the protracted negotiations, Butorac and Wolman agreed that no further amounts were owed by defendant.

In other words, plaintiff agreed to accept the monies already paid by defendant ($17,672.00), in full and final settlement of its invoice, taking into account the lengthy delay incurred and the trouble and inconvenience suffered by defendant as a result of this delay. This agreement constitutes, in fact, a transaction and has, between the parties, the authority of a final judgment (arts. 2631 ff.

Civil Code of Québec ). [ 14 ] It is important to underline and repeat that, according to defendants, to Wolman and to Arkilanian, defendant was unable to sell the property with the cabinets as initially delivered and installed by plaintiff, and that this issue persisted for a whole year.

During this time, defendant was obliged to assume the operating costs of the property (taxes, insurance, electricity, etc. invoices, exhibit D-2, en liasse ). [ 15 ] Furthermore, the various so-called estimates and invoices issued by plaintiff, post facto , are confusing, and do not reflect the agreement and transaction which intervened between the parties, as mentioned above. [ 16 ] WHEREAS plaintiff did not honour its contractual undertakings towards defendant (art. 1458 C.C.Q .); [ 17 ] WHEREAS plaintiff, which was bound to provide results, did not act in the best interest of defendant, with prudence and diligence, nor in accordance with usage and good practice or in conformity with the contract (art. 2100 C.C.Q .); WHEREFORE THE COURT HEREBY: DISMISSES plaintiff’s claim, with costs, for the contestation only, in the amount of $202.00. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: February 4, 2019