2019 QCCQ 3045, 2019 QCCQ 3045

Stelzer c. Peyrow 2019 QCCQ 3045 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-703870-172 DATE: May 17, 2019 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ STEVEN STELZER Plaintiff v.

MEHRZAD PEYROW Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, a structural engineer, is suing defendant, on account, for professional services rendered. [ 2 ] Defendant retained plaintiff’s services, in the fall of 2016, with a view to prepare structural drawings for the construction of an underground parking structure at [...], in Montreal. [ 3 ] The price of plaintiff’s services was verbally fixed at $100.00 per hour. [ 4 ] On January 18, 2017, plaintiff submitted detailed preliminary plans to defendant (exhibit P-13).

According to expert Thomas Egli, who is a civil structural engineer and testified on behalf of plaintiff, in a credible and convincing manner, these plans went beyond that which was expected of plaintiff at that time; and, despite some revisions, there were no “major comments or complaints” from defendant’s architect. [ 5 ] However, on February 2, 2017, defendant’s plans were modified: “the profile of the ceiling changed”, that which would also require changes to the profile of the roof and the lengths of the walls (revision 9, exhibit P-16). [ 6 ] Furthermore, on February 6, 2017, another revision intervened “further modifying the architect’s intent” (revision 10, exhibit P-17).

This “new layout” constituted a “major” change, which “would require a redesign by (plaintiff)”. Both plaintiff and his technical assistants would have to “start over”. [ 7 ] Defendant required that the amended plans be completed by February 14, 2017. [ 8 ] As stated by plaintiff in his letter to defendant’s lawyer, dated March 13, 2017: “ I received the new changes on February 7 th , 2017. I sent the drawings to the printer, picked them up and had my design and analysis work done by Friday, February 10 th , 2017. I was to meet with my draftsman the following week to have him work on it. Mr.

Peyrow gave me an unrealistic deadline of to have the drawings done by Tuesday, February 14 th , 2017 on Friday February 10 th , 2017 at 3:30 PM. I had no draftsman available on the weekend, and at least 40 more total hours would be required to complete this job. This would not include further Architectural coordination. You mentioned that you felt the changes would be simple to make. The changes were extensive enough that almost all the structure had to be redesigned or checked. Beams were added and some wall became higher.

It is a common misconception if an architect changes a few lines it does not change the structure significantly. Nothing could be further from the truth. Small changes, especially at critical points translates into allot of work for a structural engineer. It changes the path of the way horizontal and vertical loads can transfer. I

also had to recheck my seismic evaluation. It took me between 25 and 30 hours to redesign and reanalyze this project due these changes.” (sic) [ 9 ] Thus, plaintiff deemed defendant’s demand to be “unrealistic”, and refused to oblige (letter, exhibit P-4, page 3). According to plaintiff, his draftsman would have needed another 40 hours to make the changes.

Then, he himself would need to “recheck the drawings with the architect”. [ 10 ] Defendant’s Krista Ménard responded as follows, on February 10, 2017: “Hi Steven, I just got off the phone with Mr Peyrow and Roger from the foundation company and there was definitely a lot that was discussed. This new slightly optimistic deadline is just not going to work for us unfortunately. Dates were given to the foundation company months ago, before the holidays. They booked the job for Mr Peyrow for February as this was the information all parties gave them.

We understand that this isn't a simple project and you have been doing everything you can as quickly as you can, but they need these plans by the end of next week 1000%. If this is not possible at all for you then Wiseman and Mr. Peyrow will have no choice but to find someone who would be able to get all this done ASAP. If we hold off one more week, Roger won't be able to keep this project if his deadline to order the supplies to be able to start is pushed again. l'm running out of the office for a few hours but please feel free to call me after 3:30 at my office if you wish to discuss this further.

Regards, Krista Ménard” [ 11 ] Thereafter, defendant resiliated plaintiff’s contract and handed-off the project to engineer Daniel Turner of D.L. Turner Consultants Inc., who, in an email dated February 20, 2017, stated that he neither reviewed nor used plaintiff’s drawings for the project. [ 12 ] Following the resiliation of the contract, plaintiff issued an invoice, along with several revised versions thereof.

The amounts, for the same work, vary between $9,579.33 and $13,600.58. [ 13 ] In his “ Amended Appendix”, plaintiff breaks down his claim as follows: “22- Consequently, Plaintiff is entitled to claim the actual costs and expenses and the value of the work performed in the amount of $9 579.33 including the applicable taxes, plus the legal interest from the date of the demand letter, February 16, 2017 (Exhibit P-4); 23- In addition, considering Defendant terminated the contract in bad faith, hence the Plaintiff is entitled to claim damages in the amount of $1000 as moral damages and the amount of $4000 as damages for loss of profit (representing a minimum of 40 hours of work at $100 per hour).

Indeed, had Defendant not terminated the contract in bad faith, Plaintiff would have earned at least the additional amount of 4000$ from said contract. Plaintiff refused other contract as well in order to execute the present contract. 24- The Plaintiff’s usual rate is $150.00 per hour, which Defendant was well aware.

However, Plaintiff agreed to reduce said rate to $100.00 per hour; 25- The Plaintiff is adding $ 1000 .00, on top of my latest invoice, as shown in Exhibit P-4, in moral damages, stress, insults, loss of time and inconvenience.” [ 14 ] Following the resiliation of the contract, plaintiff sent numerous disturbing and unprofessional letters, emails, phone texts and pictures to defendant and his entourage, including his daughter, who had nothing to do with this contract, per se. He wrote, inter alia , “Happy 40 th anniversary of the islamic revolution”; “U r fat”; “This is not a bazaar in teheran.

This is Canada”; “R u on drugs? Does ur ayatollah know?”; (with an accompanying picture) “my old high school friend’s daughter with iuanka (sic) and donald trump in the oval office and of course the white house discussing things like terrorism the expansion of the no fly list. Etc. I asked her 2 put in a good word 4 u. I blurred her face but not ivanka’s and donald’s.” (exhibit D-48); “[…] I guess bullies like you are not used to being stood up to. It is sad our long business relationship has come to an end after a decade. I have to admit I always felt a bit tenuous about you. It seems the Honourable Dr.

Kellie Leitch M.D. of the Conservative Party and member of Parliament for Simcoe Grey, would likely think you do not possess Canadian values if she met you.” (exhibit P-29). [ 15 ] It is hard to comprehend how a professional, or any other person for that matter, would communicate such distasteful remarks to another, under any circumstances. [ 16 ] When questioned by the Court on this topic, rather than apologize, plaintiff astonishingly responded that he was merely behaving “as a regular bill collector would”. Plaintiff’s disparaging comments are anything but “regular”.

They seem more like the rantings of an unstable individual. [ 17 ] Be that as it may, defendant did not file a counter-claim; and, furthermore, even if he had, the Small Claims Division of this Court does not adjudicate demands alleging defamation.

[ 18 ] As for the merits of the claim, in virtue of

section 2125 of the Civil Code of Québec , defendant was entitled to unilaterally resiliate the contract, even though the provision of service was already in progress. [ 19 ]

Section 2129 C.C.Q. states: “ 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered.” [ 20 ] The Court must therefore evaluate the actual costs and expenses and the value of plaintiff’s work before the notice of resiliation, and whether or not defendant is liable for any other injury that plaintiff may have suffered. [ 21 ] According to expert Engli, the 6-day calendar request imposed upon plaintiff to finish the work with the latest changes, was unreasonable. [ 22 ] Having said that, the only term and condition agreed upon by the parties was plaintiff’s hourly rate of $100.00.

No additional or incidental costs were ever discussed or agreed upon by the parties, as admitted by plaintiff himself. Therefore, fees for “opening of file”; “drafting by Jonathan Talbot”; “printing”; “carrying and service charges”; “closing file”; “postal… surcharge”; and “interest” are denied (sections 1385 and 1388 C.C.Q. ). [ 23 ] As for plaintiff’s fees, his own expert stated that it would have taken his office 40 man-hours (vs 56), to do the same amount of work.

Accordingly, 40 man-hours multiplied by $100.00 equals $4,000.00. [ 24 ] As for the other damages claimed by plaintiff, they are denied. [ 25 ] Plaintiff alleges that defendant resiliated the contract in bad faith. However, good faith is presumed (s. 2805 C.C.Q. ), and plaintiff did not fulfill his burden of proof in this regard (s. 2803 and 2804 C.C.Q .). [ 26 ] Defendant, as well as his daughter and employee, testified in a credible fashion.

Although defendant admitted that the “quality of (plaintiff’s work) was not in question”, he also stated that it was hard to work with him, as he was often hugely confused and disorganized and unable to synchronize his work with other trades. [ 27 ] The Court has no trouble believing this, as plaintiff was also very disorganized in the presentation of his evidence, both verbal and written, at Court.

Exhibits were filed in a haphazard and nonchalant fashion, and plaintiff expected the Court to go through hundreds of technical and other documents, without providing any real and useful explanation or direction in this regard. [ 28 ] Furthermore, there were repeated contradictions in plaintiff’s testimony (for example, regarding the formation of the contract and his hourly rate).

Plaintiff’s numerous revisions, both to his invoices and claim, also speak to his disorganization and administrative confusion. [ 29 ] GIVEN the actual value of plaintiff’s services, the terms and conditions of the contract and the absence of bad faith; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's claim, in part; CONDEMNS defendant to pay plaintiff the sum of $4,000.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , from December 11, 2017, and legal costs in the amount of $200.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: April 8, 2019