2015 QCCQ 13055, 2015 QCCQ 13055

6507913 Canada inc. c. Spisak 2015 QCCQ 13055 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-143587-147 DATE: December 8, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ 6507913 CANADA INC. Plaintiff v.

ADAM SPISAK and sylwia smolinska Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 6507913 Canada inc. (“ Canada ”) claims $2,717.81 from Mr. Spisak and Mrs. Smolinka representing the unpaid balance of its invoice for renovations to an income property owned by Mr. Spisak and Mrs. Smolinka. [ 2 ] Mr. Spisak and Mrs. Smolinka argue that the work was poorly done, that it was not completed and that it presents structural deficiencies.

They ask to be refunded $1,250.00 which they advanced to Canada for the purchase of construction materials. They also ask that Canada be condemned to pay them $3,449.25, which they had to pay another contractor to finish Canada’s work. Mr. Spisak and Mrs. Smolinka emphasize that at all relevant times, Canada did not hold the required licence from the Régie du Bâtiment du Québec (“ RBQ ”). ANALYSIS AND DISCUSSION [ 3 ] The following sections of the Building Act [1] and articles of the Civil Code of Quebec are relevant to the resolution of this case: [ 4 ] Building Act : 46.

No person may act as a building contractor, hold himself out to be such or give cause to believe that he is a building contractor, unless he holds a current licence for that purpose. No contractor may use, for the carrying out of construction work, the services of another contractor who does not hold a licence for that purpose. 49.

An owner-builder's licence is not required: (1) for a person who has construction work carried out by a licensed contractor whose main activity is the organization or coordination of construction work to be carried out by other persons; (2) for a natural person carrying out or causing to be carried out construction work on a single-family dwelling, or a civil engineering structure intended for his personal use or the use of his family.

However, no natural person shall carry out construction work on an installation intended to use gas, a petroleum equipment installation or an electrical installation unless he is a contractor. 50. A person not being a contractor who has entered into a contract for construction work with a contractor not holding the proper licence may apply for cancellation of the contract. The owner of an immovable charged with a legal hypothec referred to in paragraph 2 of

article 2724 of the Civil Code and registered on the application of a contractor who does not hold the proper licence may apply for the cancellation of the registration of the hypothec and for the cancellation of any related registration which the contractor may have applied for. No application for the cancellation of a contract or privilege will be granted where it is established that the applicant was aware that the contractor did not hold the proper licence.

[ 5 ] Civil Code of Quebec : 1422. A contract that is null is deemed never to have existed. In such a case, each party is bound to restore to the other the prestations he has received. 1699. Restitution of prestations takes place where a person is bound by law to return to another person the property he has received, either unlawfully or in error, or under a juridical act which is subsequently annulled with retroactive effect or whose obligations become impossible to perform by reason of superior force.

The court may, exceptionally, refuse restitution where it would have the effect of according an undue advantage to one party, whether the debtor or the creditor, unless it considers it sufficient, in that case, to modify the scope or modalities of the restitution instead. 2103. The contractor or the provider of services supplies the property necessary for the performance of the contract, unless the parties have stipulated that only his work is required. He shall supply only property of good quality; he is bound by the same warranties with respect to the property as a seller.

A contract is a contract of sale, and not a contract of enterprise or for services, where the work or service is merely an accessory in relation to the value of the property supplied. [ 6 ] Mr. Spisak and Mrs. Smolinka testified that Canada did not hold the proper licence. This was not contested by Canada. [ 7 ] The exception of paragraph 49(2) of the Building Act does not apply here, as the property where Canada’s work was carried out is not intended for the personal use of Mr. Spisak and Mrs. Smolinka, nor their family’s. [ 8 ] Likewise, Canada has not established that Mr. Spisak and Mrs.

Smolinka were aware that it did not hold the proper license. [ 9 ] As a result, Mr. Spisak and Mrs. Smolinka are entitled to the cancellation of the contract for services with Canada. [ 10 ] This contract is thus deemed to have never existed. [ 11 ] However, Canada has demonstrated that Mr.

Spisak insisted that the materials be purchased through his intermediary or on his behalf, in order to benefit from special discounts at hardware stores to which he is entitled as a member of a property owners’ association. [ 12 ] Based on this evidence, the Court concludes that the contract with Canada only pertained to work and services. Since Canada did not supply the materials but only acted as Mr. Spisak’s buyer thereof, there is no reason for Canada to reimburse the amount which Mr. Spisak gave it to purchase said materials. [ 13 ] As regards the claim that Canada be condemned to pay Mr. Spisak and Mrs.

Smolinka what they had to pay another contractor to finish Canada’s work, it has not been demonstrated that Canada’s previous work made the new contractor’s job any more complicated or expensive than it would have been if Canada had not already started the work [2] . FOR THE FOREGOING REASONS, THE COURT: DISMISSES the claim; DISMISSES the cross-demand; WITHOUT COSTS. __________________________________ VINCENZO PIAZZA, j.c.q. Date of hearing: November 16 th , 2015