2014 QCCQ 2798, 2014 QCCQ 2798

Produits d'ingénierie North Star ltée c. Avicor Construction inc. 2014 QCCQ 2798 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CIVIL Division No: 500-22-203897-130 DATE: April 4, 2014 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ LES PRODUITS D'INGÉNIERIE NORTH STAR LTÉE Plaintiff v. AVICOR CONSTRUCTION INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is an action on account. [ 2 ] Plaintiff alleges that a contract intervened between the parties, that which is vehemently denied by Defendant. THE FACTS [ 3 ] Plaintiff "Les Produits d'Ingénierie North Star Ltée" (hereinafter "North Star") operates a metal shop. Renaldo Di Pasquale is its president. [ 4 ] Di Pasquale has been friends with Antonino Randazzo for many years.

Randazzo used to own a company called Steel Components Produits Métalliques Inc. (hereinafter "Steel Components"), also in the metal industry. [ 5 ] At the end of 2012, both men discussed the possibility of entering into a joint venture.

Di Pasquale was thinking about acquiring North Star, which was owned by someone else at the time; and Randazzo, who was having financial difficulties with Steel Components, was to bring his knowledge, clients and some equipment into this venture. [ 6 ] Subsequently, Di Pasquale effectively acquired North Star; and, on March 4, 2013, Randazzo started working for North Star, where he stayed for only 6 or 7 weeks. [ 7 ] On March 21, 2013, Steel Components filed an assignment in bankruptcy. [ 8 ] Meanwhile, in December, 2012, Antonino Guarnieri, of Avicor Construction Inc. (hereinafter "Avicor"), had contacted Randazzo at Steel Components regarding the manufacturing of two staircases required for a construction project in which it was involved (hereinafter "IBS Capital Project"). [ 9 ] Guarnieri and Randazzo met on the site in 2012, and Steel Components submitted a quote for the project, in January, 2012.

[ 10 ] After some negotiation, in February, 2013, Avicor and Steel Components entered into an agreement for the manufacturing and installation of said staircases (exhibits D-1, D-2 and D-3).

Avicor issued a purchase order to Steel Components, on February 8, 2013 (exhibit D-1). [ 11 ] According to the credible testimony of Guarnieri, at no time during the negotiations or the formation of the contract, was he or anyone else at Avicor advised of the fact that Steel Components was in financial difficulty; that it was headed for bankruptcy; that the work would be carried out by a third party; or that the contract would be assigned to a third party. [ 12 ] In fact, at trial, Randazzo freely made the following admission: "When I moved from Steel Components to North Star, I had already engaged myself to create … and complete the job" for Avicor.

Furthermore, Randazzo was unable to explain why purchase order D-1 was issued to Steel Components rather than North Star; and could not explain why he did not advise Avicor accordingly. "It's a blur", he stated, adding that he had only told a secretary that he was "transferring the job to North Star". [ 13 ] At trial, Guarnieri described the numerous deficiencies in the staircases.

This is confirmed, inter alia , in e-mails from lawyer Claude Delage, Avicor's client (exhibits D-5, D-6, D-7 and D-9). [ 14 ] It is interesting to note that, in the numerous e-mails sent by Randazzo over the course of several weeks, which e-mails contained Steel Components' logo, nowhere is it mentioned that a bankruptcy was forthcoming, or that a third undisclosed party was doing the work.

It was only 3 days before the assignment in bankruptcy, that an e-mail went out (exhibit P-3A), from Steel Components, asking Guarnieri for a revised purchase order in North Star's name. [ 15 ] At his examination before plea held on August 22, 2013, Di Pasquale further admitted that North Star did not prepare the initial drawings; that he himself never contacted Avicor during the course of the work; that North Star did not submit a quote in relation to the project; that he never saw purchase order D-1; and that he never saw the documents filed as exhibits D-2 and D-3. [ 16 ] It is also interesting to note that no amount appears next to Avicor's name in the bankruptcy trustee's "AR Aging" report filed as exhibit P-11. [ 17 ] As it turns out, according to the preponderance of evidence, Avicor incurred damages as a direct result of Steel Components' faulty workmanship and merchandise; but, these damages are not at issue here, as Steel Components is not party to these proceedings.

DISCUSSION [ 18 ] As pleaded by Defendant, there is no lien de droit between the parties. [ 19 ] Only through magical thinking could North Star validly argue that Avicor is contractually bound to it. [ 20 ] No agreement ever intervened between North Star and Avicor.

In fact, Avicor was not even aware that North Star existed. [ 21 ] If North Star believes it has a right to be paid for work which it carried out, that claim needed to be directed towards Steel Components; and, if Steel Components is now bankrupt, it is certainly not incumbent upon Avicor to pick up the tab. [ 22 ] It is mind-boggling that North Star ever instituted these proceedings against Avicor. There is zero evidence of it being part of any agreement with Avicor with respect to the IBS Capital Project.

Plainly and otherwise stated, the main allegations contained in North Star's introductory motion, namely paragraphs 3 and 4 thereof, are unsubstantiated by the evidence and unfounded. [ 23 ] At its most elementary level, this case was bound to fail, as there is not and never was an iota of evidence (let alone a preponderance of evidence) to show that there was ever an exchange of consents between North Star and Avicor regarding the IBS Capital Project.

The credible testimony of controller Widad Chamoun also supports Guarnieri's testimony in this regard, as does the documentary evidence, which speaks for itself. [ 24 ] In retrospect, one cannot help but wonder if Steel Components proceeded as it did with a view to shield any monies it may have been owed by Avicor from the bankruptcy (if indeed any monies were owed). Be that as it may, as above-stated, Steel Components is not a party to these proceedings; and, ultimately, it does not change the fact that the action is unfounded.

WHEREFORE THE COURT HEREBY: DISMISSES Plaintiff's action, with costs. __________________________________ ELIANA MARENGO, J.C.Q.

Me Rémi Bourget Mitchell Gattuso Lawyers for Plaintiff Me Paul Déry-Goldberg Spiegel Sohmer inc. Lawyers for Defendant Dates of hearing: March 6 and 7, 2014