2023 QCCQ 5344, 2023 QCCQ 5344

Chazan c. 9313-3205 Québec inc. 2023 QCCQ 5344 COURT OF QUEBEC « Small Claims Division »

CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-711517-203 / 500-32-711508-202 / 500-32-711511-206 DATE : 9 août 2023 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ HARVEY CHAZAN Plaintiff c. 9313-3205 QUEBEC INC Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ THE OUTLINE [ 1 ] The Plaintiff Harvey Chazan ( Chazan ) institutes three claims against the Defendant 9313-3205 Québec Inc. ( 9313 ) alleging poor workmanship, with respect to the manufacture and installation of a front door for his house, closet doors and cabinets for his basement. [ 2 ] Chazan seeks the reimbursement of all money paid to 9313, plus the cost of the materials purchased by him. [ 3 ] 9313 denies these claims insisting that the work done was in accordance with the contracts concluded with Chazan.

Moreover, the value of the work exceeded the amounts paid by him at the time of the cancellation of the contracts. [ 4 ] All three claims were joined and proceeded on the same evidence. THE CONTEXT [ 5 ] The first contract concluded between the parties was for the manufacture and installation of a front door, a contract concluded in October 2017, in accordance with the description of the work detailed in the bid [1] , in Court files n o 500-32-711517-203 ( 517 ). [ 6 ] The total cost for this work was $2,644.43.

On the date the contract was signed, Chazan paid a deposit of 30%, $793.33 [2] , the balance to be paid upon completion of the work. [ 7 ] When the cold weather arrives, Chazan complains that cold air infiltrates through the door frame, weather stripping is visible, frost appears on the frame and door handle and screw indents are visible. [ 8 ] In an email dated February 27, 2018 [3] , Chazan requested that these issues be repaired and following 9313 undertaking to do so, on February 28, 2018, Chazan paid the balance of the contract, $1,740.45 [4] . [ 9 ] According to Chazan, 9313 never proceeded with the repairs, forcing Chazan to retain the services of another worker to correct and complete the work. [ 10 ] On February 19, 2019, Chazan sent a first demand letter [5] , then a second on April 15, 2019 [6] , requesting the reimbursement of all amounts paid. [ 11 ] The second contract concluded between the parties, was for the manufacture and installation of closet doors for the entrance and a bedroom, in Court file #500-32- 711508-202 ( 508 ). [ 12 ] On January 15, 2018, 9313 submitted its bid for the manufacture of the doors, for an initial cost of $4,300, reduced to $3,950 plus tax [7] , further reduced on April 24, 2018, to $3,300 plus tax [8] .

On that date, Chazan paid a deposit of $990. [ 13 ] Shortly thereafter, Mr. Carranza, 9313’s representative, provided a sketch of the doors that, according to him, was accepted by Chazan. [ 14 ] Once the doors were completed, a dispute arose on the type of mesh to be incorporated, resulting in the refusal by Chazan to

accept delivery and pay the balance. [ 15 ] On February 19, 2019, Chazan sent a demand letter claiming the reimbursement of his deposit, plus the cost of the demand letter, for $1,004 [9] . [ 16 ] The third contract of May 4, 2018, was for the manufacture and installation of cabinets for his basement, consisting of 25 doors with moulding in a half circle, plus shelves, the cost being $5,940 plus tax [10] , in Court file n o 500-32- 711511-206 ( 511 ). [ 17 ] 9313 provided a sketch [11] , which was accepted by Chazan who paid a deposit of $1,782. [ 18 ] When the cabinets were delivered, Chazan realized they had not been painted on the sides and back and the doors, which were still in 9313’s warehouse, did not have the finish they had initially agreed upon. [ 19 ] Chazan refused to accept delivery or permit 9313 to complete the work. [ 20 ] On February 19, 2019, Chazan sent a Demand letter [12] claiming the reimbursement of the deposit of $1,782, plus $449.61 for the moulding he purchased.

THE ANALYSIS The front door, file n o . 517 [ 21 ] A dispute arose as to when the door was initially installed, Chazan arguing that the door was only installed in February 2018, when he paid the balance owing, resulting in having to endure during winter months, a plywood instead of a door. [ 22 ] This is obviously contradicted by the fact that Chazan complained that the door did not fit properly, allowing cold air during the winter to enter the house, and by the photograph showing the door installed, unvarnished with a plywood instead of the glass insert [13] . [ 23 ] Chazan also complains that many defects were visible, such as screws having punctured the wood, weather stripping not properly installed or excessive and visible, a gap at the bottom allowing snow to come in, metal detail improperly installed. [ 24 ] Most of the complaints were done by email in which Chazan suggests that a moulding by installed and the day following the balance of the amount owed under the contract was paid [14] . [ 25 ] A year later Chazan sends two Demand letters, on February 19, 2019, [15] and April 15, 2019, [16] to 9313 claiming the reimbursement of all amounts paid. [ 26 ] The Court prefers the testimony of Mr.

Carranza when he admits that cold air may have seeped in the house and weather stripping may have been apparent, but this was corrected by the moulding he installed on the perimeter of the door, as appears from several photographs [17] . [ 27 ] Chazan had the burden of providing valid evidence that the door was defective and that these defects were never corrected, in accordance with the principles outlined in Articles 2803 , 2804 and 2845 of the Civil Code of QuÉbec . [ 28 ] The testimony of Messer, Millan and Locking, is not credible.

Firstly, they could not be qualified as expert witnesses, therefore preventing them from providing an opinion as to the quality of the work of 9313. [ 29 ] Moreover, their testimony cannot be qualified as independent as they are employees of Chazan since 2011/2012, as determined in another matter presented before Justice Lewis [18] . In fact, they have testified on behalf of Chazan in two other contractual disputes brought by Chazan [19] . [ 30 ] According to Chazan he retained the services of a third party to correct the work of 9313.

The Court would have therefore expected that an invoice be submitted representing the amounts paid to this third party, which amount would be at the basis of his claim, which would have fulfilled Chazan’s obligation to minimize his damages. [ 31 ] For these reasons, the Court dismisses Chazan’s claim in Court file n o 517. The closet doors, file n o . 508 [ 32 ] The same conclusion must be reached with respect to this claim. [ 33 ] The Court prefers the uncontradicted testimony of Mr.

Carranza when he states that Chazan came on a regular basis to his shop and followed the progress of the work on the closet doors. [ 34 ] During these visits, Chazan approved the sketch provided by 9313 [20] and saw the type of mesh that would be installed, a sample having been provided to him. [ 35 ] The Court does not accept Chazan’s testimony that 9313 agreed to provide a gold mesh sold by Richelieu. According to Mr.

Carranza, the cost of this mesh was four times the cost of manufacturing the doors. [ 36 ] Chazan had the right to cancel the contract [21] , however, in so doing he was obligated to pay the value of the work completed at the date of the cancellation [22] . [ 37 ] Considering the testimony of Mr. Carranza, the Court concludes that the work done exceeded the amount of the deposit of $990.

[ 38 ] The Court dismisses Chazan’s claim in Court file n o 508.

The basement cabinets, file n o . 511 [ 39 ] The same conclusion must be reached as to this claim. [ 40 ] Again, following the delivery of the cabinets, which included the hardware and shelves, Chazan cancelled the contract, alleging numerous defects, the proof of which consisted only of his testimony and the testimony of Messer, Millan and Locking that is not admissible. [ 41 ] Following this cancellation, Chazan had the obligation of paying for the value of the work done at the time of the cancellation. [ 42 ] The contract was for $5,940 plus tax and a deposit of $1,782 were paid.

However, 9313 has convinced the Court that the value of the work done, and the materials purchased, at the time of the cancellation, far exceeded the amount of the deposit. [ 43 ] As for the cost of the moulding Chazan says he purchased and provided to 9313, at a cost of $449.61, the Court notes that the invoice is dated June 15, 2017 [23] , nearly a year earlier, an expense clearly unrelated to this contract.

FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s recourse; WITH COSTS in the amount of $468, representing the judicial stamps of the Contestations in the Court records n o 500-32-711517-203 / 500-32-711508-202 / 500-32-711511-206. _________________________ DIANE QUENNEVILLE, J.C.Q.