2018 QCCQ 8700, 2018 QCCQ 8700

Entreprises GSB inc. c. Tobias 2018 QCCQ 8700 COURT OF QUEBEC “ Small Claims Division “ CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL “ Civil Division “ No: 500-32-703610-172 DATE: November 19, 2018 ______________________________________________________________________ BY THE HONOURABLE STÉPHANE DAVIGNON, J.C.Q. ______________________________________________________________________ LES ENTREPRISES G.S.B. INC. Plaintiff v.

EDGAR TOBIAS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Having considered the testimonial and documentary evidence, reviewing the record and the exhibits, for the reasons given orally and recorded digitally, the Court renders judgment in the presence of the parties, as follows: [ 2 ] Les Entreprises G.S.B. Inc. ( G.S.B. ) claims an amount of $2,346.00 related to services rendered to Mr.

Edgar Tobias for the pavement of his driveway. [ 3 ] The claim is based on a contract signed by both parties on August 8, 2017 under the terms of which G.S.B. was to remove and excavate a surface of 290 square feet of old asphalt and then pave this surface with new asphalt. This surface is situated on the far left side of Mr. Tobias’ property. [ 4 ] On or about October 31 st , 2017, a team from G.S.B. conducted by their president, Mr. Santo Salvo, went on premises at Mr. Tobias’ property to carry on the work which was agreed upon. [ 5 ] On sight they met with Mr.

Tobias who was present during the entire period when the work was carried although he claims that after a short while he went in his backyard or inside his property. [ 6 ] During the morning, G.S.B. undertook to retrieve the entire asphalt of Mr. Tobias’ driveway, namely the entire portion situated in front of his garage and the staircase leading to the front entry door which represents a surface of approximately 600 square feet. [ 7 ] G.S.B. did not carry any work on the far left side, where the parties had agreed that the work was to be carried on. [ 8 ] Two witnesses, namely Mr.

Salvo himself and one of his employee, Mr. Pasquale Manno, clearly testified that once they were on the premises Mr. Tobias was present most of the time and was watching or seeing them perform the work, namely retrieving the asphalt from the entire driveway. They both testified that at no time Mr. Tobias intervened in saying that the work was not to be carried on in his driveway but rather on the far left side of it. [ 9 ] According to the proof, it’s only once the asphalt of the entire driveway was retrieved that Mr.

Tobias questioned the work and said that it was rather on the far left side that the work was to be carried on. During his testimony, he did not recall having any specific discussion with either Mr. Salvo or any of G.S.B.’s representatives as to what was agreed upon once he finally intervened. [ 10 ] On the other hand, Mr. Salvo states clearly that he had a further discussion with Mr. Tobias concerning a retaining wall situated on the left side of the garage about which he explained to Mr. Tobias that this wall was not solid enough to permit the paving of the far left portion of Mr.

Tobias’ lot. [ 11 ] He also testifies that he then said to Mr. Tobias that he should finish the work and put new asphalt in the driveway but he would need to be paid for that. Mr. Tobias did not produce any proof to contradict this testimony. [ 12 ] Moreover, it is only a week later that the paving was done and once again, Mr. Tobias did not intervene in any way. [ 13 ] He claims that his old driveway was still in good shape but he did not produce any other proof in this regard. On the contrary, both Mr. Salvo and Mr.

Manno testified that the previous surface was quite old and damaged. [ 14 ] The Court concludes that Mr. Tobias therefore agreed to the work which was finally done by G.S.B. [ 15 ] Although the Court understands that Mr. Tobias does not benefit from the pavement of an area which he first wanted to be paved, the Court understands that this area has never been paved ever since. [ 16 ] Moreover, Mr. Tobias agrees that the work which was performed by G.S.B. has been done properly.

[ 17 ] The Civil Code of Quebec provides in its

article 1493 for the doctrine of unjust enrichment : Art. 1493 . A person who is enriched at the expense of another shall, to the extent of his enrichment, indemnify the other for the latter’s correlative impoverishment, if there is no justification for the enrichment or the impoverishment. [ 18 ] The Court believes that

article 1493 is applicable in the present circumstances whereby if Mr. Tobias were not to pay any amount to G.S.B., that would unjustly enriched him and cause a prejudice to G.S.B. or his impoverishment since it carried some work on Mr.

Tobias’ property. [ 19 ] Although the work carried on was for a surface of approximately 600 square feet, G.S.B. claims an amount corresponding to work which would have been carried on a surface of 290 square feet. [ 20 ] The Court believes under these circumstances and considering the proof adduced that G.S.B.’s claim is reasonable although it should be deducted the amount of $300. which G.S.B. already received. [ 21 ] Moreover, considering the mitigated end result of the case, the Court will not allow any legal fees in the present case. FOR THESE REASONS, THE COURT: GRANTS in part Plaintiff’s claim.

CONDEMNS Mr. Tobias to pay to Les Entreprises G.S.B. Inc. the amount of $2,000. plus interest at the legal rate and the additional indemnity provided by

Section 1619 of the Civil Code of Quebec as of the date of the present judgment. THE WHOLE without any legal costs. __________________________________ STÉPHANE DAVIGNON, J.C.Q. Date of hearing: November 19, 2018