2011 QCCQ 4879, 2011 QCCQ 4879

Lewis c. Groupe Degimi inc. 2011 QCCQ 4879 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-160099-092 DATE: May 12, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ RYAN LEWIS Plaintiff/Cross Defendant -and- ELANNA AARON -and- LES COURTIERS EN DOUANE ARRIVAGE LTÉE Plaintiffs v. GROUPE DEGIMI INC.

Defendant/Cross Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs Ryan Lewis, Elanna Aaron and Les Courtiers en Duane Arrivage Ltée (“Arrivage”) are suing Defendant Groupe Degimi inc. (“Degimi”), following renovations carried out by Defendant. Plaintiffs allege the work was defective and unfinished. They are seeking $69,762.44 in compensation. [ 2 ] Defendant denies responsibility.

It presented a cross demand for $8,989.38 [1] , representing the balance of its account, for material purchased. THE QUESTIONS IN LITIGATION: 1. What is the legal relationship between the parties; 2. Were Plaintiffs required to transmit a demand letter to Defendant; 3. What is the value of the work done by Defendant; 4. Are Plaintiffs entitled to damages and if so, how much; 5. Is Defendant entitled to the amount sought in its cross demand.

THE EVIDENCE: [ 3 ] This is a case of a renovation project gone wrong. Mr. Lewis and his wife, Ms. Aaron, purchased their first home on Circle Road, in Montreal, in 2008. The 1947 house, although well built, was in a time warp and needed a complete overhaul. Mr. Lewis decided to demolish the interior and rebuild it. [ 4 ] The contract was concluded with Defendant. Its project manager, Marcel Beauchesne, both supervised and did the actual work. [ 5 ] Gaétan Lapierre was the project supervisor, responsible for Defendant's submissions, material and billing. He was Mr. Lewis' main contact.

However, he had virtually no on site involvement. [ 6 ] Defendant's estimates, which became the parties' contracts, came to $12,136.32 for the demolition job and $35,577.64 for the remaining work. A third contract, concluded in November 2008 for finishing work, amounted to $9,070. The total was $56,784.66, for the project. [ 7 ] The cost of material was excluded. However, Defendant is claiming $9,312.72 from Mr. Lewis for small items, alleging there was an agreement to this effect. For Defendant, this sum added to the three contracts brings the project’s total cost to $66,097.38.

Defendant received $57,107.99; it seeks the balance of $8,989.39 by means of its cross demand. [ 8 ] Mr. Lewis gave Defendant plans prepared by a designer. No architectural plans or building permits were provided. The work began in May 2008, with the demolition of the entire interior of the house. [ 9 ] This was followed by the construction of walls, the plumbing installation and the bathroom renovations. Other contractors were hired for heating and electrical work, kitchen renovations and refinishing the floors. Defendant was to advise Mr. Lewis when to

schedule these contractors. Mr. Lewis was told by Defendant that “It should be finished by August” . [ 10 ] In November 2008, Mr. Lewis began to express his dissatisfaction about the slow pace of the work. Mr. Beauchesne had other ongoing projects. He stopped working full time on the site in September or October 2008 and was only present about 50% of the time. He instructed his employees to do the finishing work but was unaware of what aspect of the third contract was done. [ 11 ] By the end of November, Mr. Lewis had paid $57,107.99 and the work far from completion. On January 12, 2009, Mr.

Lewis sent a list of unfinished items to Mr. Lapierre, who sent it to Mr. Beauchesne, without any follow up. Mr. Beauchesne did not read English and, by then, had little involvement in the project. [ 12 ] On or about January 22, 2009, Mr. Lewis found the house to be in a deplorable state, with debris everywhere. Work remained to be done and the workmanship was shoddy. What concerned Mr. Lewis most was a sewage odour in the bathroom, gurgling from the bathtub when the faucets were opened, a water leak from a basement pipe and pipes installed on the surface of a basement wall. [ 13 ] Mr. Lewis had Mr.

Lapierre visit the house on January 22, 2009. Mr. Lapierre considered Mr. Lewis too fussy and he found nothing wrong with the plumbing system. [ 14 ] Mr. Lewis then called Urman Construction Inc. and upon its recommendation, he contacted JW Plumbing (“JW”) on January 25th to evaluate the plumbing system. [ 15 ] JW advised Mr. Lewis that the system had been installed contrary to the plumbing code. Given Defendant's incomplete, shoddy and defective work and its failure to acknowledge the plumbing problem, verify the system, or offer any solution, Mr.

Lewis wrote to Defendant on January 26, 2009, ending its services. [ 16 ] For Mr. Ryan, his letter was a means of obtaining a response from Defendant and was not intended to cut off discussions. Defendant responded, offering to reduce its last invoice by $3,000 to settle their differences. Mr. Lewis refused.

a) The state of the house in January 2009: [ 17 ] At the time Defendant ceased working, the house looked like a construction site. The premises were dusty, littered with debris and cigarettes covered the floor. Most rooms were unfinished; many had no doors; various appliances had not been installed; moldings, baseboards, steps and some plastering work had not been done. Not one bathroom was functional and the house was not habitable. [ 18 ] In addition, the workmanship throughout was poor. Bathroom tiles were cracked, chipped and crooked; some were not aligned with the bathtub.

The grouting was sloppy, the powder room sink was cracked, the newly finished floors had been scratched, the banister was loose, door openings were uneven and larger than the doors, light switch openings were too large and cupboard heights uneven. [ 19 ] The shoddy work was everywhere: condensation was found around the upper floor windows, the shower drain was higher than the tiles, gyroc walls were cracked throughout the second floor, with screw heads coming out, the basement sub floor was crooked, etc.. In addition, the plumbing system was defective.

b) The events following Defendant's departure from the premises: [ 20 ] At Mr. Lewis' request, Defendant sent one of its managers, Pierre Messier, with Mr. Lapierre, on February 2, 2009 to verify the work. Mr. Messier, a plumbing expert, considered that the plumbing installation did not respect City regulations and advised Defendant's President, Mr. Gauthier, accordingly. [ 21 ] Mr. Gauthier turned over the responsibility for the file to Defendant's Vice-President, Mr. St. Pierre, and asked Mr. Messier

to correct the problem. Mr. Messier was not available for about 10 days; by then, it was too late. The work was begun by another contractor. No one had told Mr. Lewis that Defendant had planned to take charge of the repair work and when Mr. Lewis tried to reach his contact, Mr. Lapierre, he was either unavailable or refused to take the calls. [ 22 ] Upon Defendant's request, on February 5, 2009, Mr. Lewis sent Defendant JW's plumbing report plus a list of work that needed to be done immediately. [ 23 ] On Friday February 6, 2009, Mr.

Lewis asks that Defendant pay for the necessary corrections and either conclude a contract directly with JW or elect its own plumber and advise him by February 9th at 5:00 p.m., stating : “Otherwise, I will have no choice but to allow JW Plumbing to begin the work.” [ 24 ] On Monday, February 9th, Defendant responded that the delay specified by Mr. Lewis does not give it enough time “to react and act” , without indicating the time frame needed; for Defendant, Mr. Lewis would be responsible for all expenses. [ 25 ] On February 10, 2009, given Defendant's lack of response and considering the situation urgent, Mr.

Lewis hired Urman Construction and JW to rectify the plumbing work. They began on February 12th. [ 26 ] At Mr. Lewis' request, Defendant's Vice-President, Mr. St. Pierre, visited the house on February 13, 2009, with Mr. Lapierre. The master bathroom had already been demolished. Defendant did not question the presence of workers. [ 27 ] Urman Construction and JW Plumbing worked for approximately two weeks. Their mandate was to perform only work urgently needed to stop the leakage from the windows and basement pipes, unblock the drain and close the P traps leading to the sewer.

Urman made openings to access the plumbing and then replaced the surfaces. [ 28 ] Mr. Lewis claims that after the February 13th visit, Mr. Lapierre told him he should hire someone else to finish the job. On February 27, 2009, at Defendant's request, Mr. Lewis sent it the estimates of Urman Construction and JW Plumbing. [ 29 ] The parties exchanged e-mails in March. Defendant disputed the cost of repairs. It advised Mr. Lewis he was responsible for finishing the job since a new contractor had already begun the work. In mid March, Plaintiffs hired J.T. Reno to do the remaining repairs and finishing work. [ 30 ] Mr.

Lewis contends Defendant's work was shoddy and incomplete. He alleges Defendant hired unskilled workers, was unresponsive to the need for emergency repairs, failed to act responsibly or in good faith and as a result, Mr. Lewis and his family were only able to move into the house on April 4, 2009. Plaintiffs seek compensation for all the costs they incurred as well as damages.

c) The contractual relationship between the parties: [ 31 ] The present action was instituted by Ryan Lewis, his wife and Arrivage. Defendant disputes the status of Arrivage as a party to the proceedings. Defendant submits that Arrivage did not contract any obligation whatsoever towards Defendant or vice versa and no delegation of payment intervened between the parties. [ 32 ] The Court does not agree. The contracts were concluded between Defendant and Arrivage; the latter is indicated as the contracting party and listed with its address. Mr.

Lewis, an employee of Arrivage, signed on behalf of that company. [ 33 ] The project involved the interior demolition of a property and its construction. The property is owned by Mr. Lewis and his wife. The contracts clearly describe the project as “4784 Circle - Maison à Ryan” . [ 34 ]

Article 1444 C.C.Q. provides that a person may make a stipulation in a contract for the benefit of a third person. “The stipulation gives the third person beneficiary the right to exact performance of the promised obligation directly from the promisor.” [ 35 ] To be valid, certain conditions must be met. The contract between the stipulator and the promisor must be valid but no set formula is required. The stipulator must intend to create a right towards a third person and have an interest in the execution of the obligation in favour of a third party, namely the beneficiary.

The beneficiary must be determinable and accept the stipulation in order that a legal tie is created between him and the promisor. [ 36 ] In the case of Demers Estate v.

Dufresne Engineering Co. et al. , [2] the Supreme Court of Canada describes such a contract as follows: “ A stipulation for the benefit of a third person does not require that the parties use a set formula , any more than it results from the mere fact that a contract may benefit a third person; it exists when the parties intended to confer a right on the third person … The existence of a stipulation for the benefit of a third party thus depends essentially on the intent of the parties. In some cases this intent is manifested clearly….

In other cases the stipulation is not expressly stated in the contract and the intent to stipulate for the benefit of another is only implicit ; it flows from the

interpretation given to the contract by the Court in the light of all the circumstances. In such a case the existence of the stipulation for the benefit of a third party is properly a matter of contract

interpretation. (…) …although the engineer and the contractor were third parties with respect to each other in the sense that they were not, except for the stipulation for a third party, contractually bound to one another, they were nevertheless not strangers…; both were bound to the owner by two separate contracts that obligated them to be constantly in contact with one another with a view to a common purpose: the construction of the planned work… the contractor was not a third party like any other in relation to the engineer; the contractor and the engineer were united in the pursuit of a common goal.” (the underlining is ours)

[37] In the present case, a contract was concluded between Defendant and Arrivage, with a stipulation for the benefit of a thirdparty, namely the property owners, Mr. Lewis and his wife. Arrivage was the stipulator, with the intention of having a home built for thecouple; Defendant was the promisor, responsible for constructing the project and Mr. Lewis and his wife were the beneficiaries. [38] Arrivage intended that Mr. Lewis and his wife have their house completely redone and it agreed to pay for the constructioncosts. Mr.

Lewis accepted this stipulation and signed a loan agreement with his employer Arrivage, undertaking to reimburse the loan,part of which has already been paid. [39] In light of the above arrangement, Arrivage had an interest in the execution of the obligations contracted by Defendant infavour of Mr. Lewis and his wife and its interest continued throughout the contract. Arrivage is a party to the contract and has the right toinstitute an action against Defendant, as the promisor, to execute the obligations it contracted in favour of the third party beneficiaries. [40] As for Mr.

Lewis' wife, Elanna Aaron, she is both an owner of the property in question and a beneficiary of the stipulationtogether with her husband and as such, she is a party to the agreement. [41] Finally, this contract creates a direct tie between the promisor and the beneficiary, such that the failure on the part of thepromisor to respect its contractual obligation results in its contractual liability towards the beneficiary. [42] In sum, both Arrivage and Mr.

Lewis together with his wife have the right to institute an action against Defendant, thepromisor, to execute the obligations contracted in favour of the third party beneficiaries, the Lewis'. [43] The Court concludes that the operation was a three party agreement, with Arrivage, Mr. Lewis and his wife as parties to thecontract with Defendant.

d) The Qualification of Gil Urman and Mr. Weinstein as expert witnesses: [44] Defendant contested the qualification of Mr. Urman and Mr. Weinstein as expert witnesses. It contends that having carriedout repair work in Mr. Lewis' home, they were not impartial but had a direct personal interest in the work done. Their testimony wasaccepted under reserve of the objection raised.

The Court concludes as follows: [45] The role of an expert is to assist the Court in understanding and analyzing evidence of a scientific or technical nature.Although the Court is not bound by an expert's opinion, such specialized knowledge is needed in certain instances.

The admissibility ofexpert evidence depends upon its pertinence, the need to assist the Court, the absence of any exclusionary rule and the expert'squalifications. [46] Our Courts have concluded that when one person employs or hires another, the relationship is not a relevant factor todetermine the admissibility of the expert's testimony; rather the issue is one of credibility and the probative value to be given to theopinion that is provided by the expert. [47] In the case of R. (

P) c. Ra. (K),[3] where the expert status of a physician was contested on the grounds that he had aprivileged relationship with one of the parties, the Court concluded that the relationship between the expert and a party did not precludethe expert from testifying: « 28 Les tribunaux se sont penchés sur les cas de l'expert interne qui témoigne pour celui qui l'emploie ou avec qui il a ou déjà eu desliens. 29 Dans l'affaire Marleau précitée, il a été décidé qu'il ne s'agissait pas d'une question de compétence pour témoigner. Il s'agissait plutôtd'une question de crédibilité. Ainsi, la relation d'employeur-employé avec une

partie n'est pas un facteur pertinent à la détermination dela recevabilité du témoignage de l'expert. Comme pour tout autre témoin expert ou non, ce fait relève uniquement de la question de lacrédibilité et, dans le cas d'un témoin-expert, de la valeur probante à accorder à l'opinion donnée. 30 À cet égard, on peut également consulter l'affaire General Motors du Canada ltée c. Cie d'assurance Missisquoi et commercialeRouville (QC CA), [1988] R.D.J. 18 (Cour d'appel, les honorables juges Bernier, Malouf et Vallerand). En page 19, cebanc écrit : La relation d'employeur-employé avec la

partie n'est pas un facteur pertinent à la détermination de la qualité de témoin-expert. Commepour tout témoin expert ou non, ce fait relève uniquement de la crédibilité et, dans le cas d'un témoin-expert, de la valeur probante àaccorder à l'opinion donnée. 31 En l'instance, le tribunal est d'avis que les motifs de reproche énoncés à l'endroit du Dr David relèvent davantage de sa crédibilité etde la valeur probante de son rapport.

Il n'y a pas lieu, pour ces motifs, de l'écarter comme témoin et de rejeter son rapport du dossier de laCour. » [48] Other judgments that have adopted the same approach include Québec (Procureur général) c. Marleau,[4] Uni-Communications inc. c. Dessurault,[5] Aluminerie Alouette inc. c. Constructions du St-Laurent Ltée,[6] Champagnie, Banque deMontréal c. Prométic sciences de la vie inc..[7] [49] In the present case, there is no dispute as to Mr. Weinstein's or Mr. Urman's qualifications nor is there any dispute as to thepertinence of their testimony.

It should be noted that their expertise has assisted the Court in dealing with the issues raised that are of atechnical nature. Therefore, the request for disqualification, presented by Defendant, is not granted. As in the case of any other witness,the Court will determine their credibility and the weight to be given to their expertise. [50] Defendant objected to the admissibility of photographs regarding the plumbing installations, which were first produced at thehearing. The evidence established that Plaintiffs were unaware that photographs had been taken by Mr. Weinstein. The Court, in its

discretion, admits the photographs in evidence; they merely corroborate the expert report submitted as well as Mr. Weinstein's testimony. THE APPLICABLE LEGAL PRINCIPLES: [ 51 ] The contract concluded by the parties is a contract of enterprise within the meaning of

article 2098 of the Civil code of Quebec (C.C.Q.). [ 52 ] The contractor chooses the method of executing the work (article 2099 C.C.Q.) but, as a counterpart, he assumes responsibility for the work done. He must act in his client's best interests, with care and diligence.

Such an obligation constitutes a specific application of the general obligation of good faith, which is imposed on the parties. [8] [ 53 ] The contractor has an obligation of information and must provide the client with any useful information with respect to the task he has undertaken to do (2102 C.C.Q.). [ 54 ] Where there is an obligation of result, as in the present case, he must provide the expected result (article 2100 C.C.Q.). [ 55 ] To exonerate himself and avoiding liability, a contractor must show that his failure to execute his obligations stems for a superior force, namely an unforeseeable event (article 1470 C.C.Q.).

He cannot avoid his responsibility towards a client by attributing an unforeseen event to a subcontractor. [ 56 ] The contractor may employ third persons to perform the work involved in the contract but he nevertheless remains responsible to the client for the performance of the work, which is carried out under his supervision. [ 57 ] The contractor is obliged to act according to the rules of the trade and to assure that the work performed is in conformity with the contract. The obligation of respecting the rules of the trade is mandatory, even if the contract makes no mention of such a requirement.

Such rules of the trade apply to all trades and to all the stages of construction. [ 58 ] Furthermore, the contractor must carry out work that is in conformity with pertinent regulations and is obliged to take cognizance of the applicable regulatory norms and respect them. [ 59 ] Accordingly, the contractor must respect all the techniques and approved construction practices of his trade that assure quality work. While the work performed is not required to be the highest quality possible, it must be of an acceptable quality.

Where it is not acceptable, the client has recourse against his contractor for defects in the work done (article 2120 C.C.Q.). [ 60 ] When the client notes the contractor's failure to execute his obligations, the client must put the contractor in default, requiring him to respect his contractual obligations and carry out the work in question (article 1590 C.C.Q.).There are circumstances where a demand letter is not required, as for example when the contractor has made it clear he does not intend to perform the obligation or where there is an urgent situation and the debtor fails to immediately perform his obligation (article 1597 C.C.Q.). [ 61 ] The client can claim damages that are foreseen or which could have been foreseen at the time the contract was concluded.

When the work has to be redone because it could not be used, due to the contractor's fault, the client is entitled to the cost of the original work. [ 62 ]

Article 1590 foresees that the obligation must be performed in full, properly and without delay. In the absence of any delay stipulated in the contract, the contractor must carry out the work with reasonable diligence. [ 63 ] The client's obligation is to pay the price agreed upon by the parties. The price is fixed by the contract, by usage or by law or based on the value of the work carried out or the services rendered (article 2106 C.C.Q.).

Article 2109 C.C.Q. stipulates that where the price is fixed by the contract, it cannot be increased or decreased unless the parties agreed to such a change in price. [ 64 ] Extras or supplementary work, which was not initially foreseen and which was not part of the amount fixed by contract, results in supplementary costs. The same occurs when there are modifications in the conditions originally foreseen. [9] [ 65 ]

Article 2111 C.C.Q. authorizes the client to retain a sufficient amount of money, until the repairs or corrections are made, to satisfy his reservations as to the poor workmanship that existed when he accepted the work. [ 66 ] Either the client or the contractor can resiliate the contract. However, in so doing the client must pay the contractor, in proportion to the agreed price, the actual costs and expenses and the value of the work performed before the end of the contract. The contractor, for his part, must repay any advances he has received in excess of what he has earned (article 2129 C.C.Q.).

ANALYSIS: [ 67 ] Mr. Lewis and his wife planned their dream home by gutting the interior and reconstructing the house they had purchased. They had expected to move in at the end of the summer 2008 but the house was still not habitable at the end of January 2009. It looked like a construction site; most of the rooms were not finished, not one bathroom was functional and the work was defective. The plumbing system was installed improperly, resulting in a foul odour under the sinks and leakage in the basement.

a) The Extent and Quality of the Work:

[ 68 ] Sam Weinstein of J.W. Inc., after inspecting the plumbing system, concluded that none of the alterations made conform to the National Plumbing Code of Canada or any local code. As an example, none of the fixtures was protected by a trap such that there was no seal to prevent rodents, bacteria or odours from coming in and the lack of any traps presented a health hazard. [ 69 ] None of the fixtures was vented. All drainage branch connections were connected with “TY” fittings, rather than the required “Y” fitting; consequently the slopes went the “wrong way”. The drainage piping was undersized.

Fixtures were incorrectly connected and too many were connected on the same piping. Pipes were loose and unsupported and connections of branches were crooked. [ 70 ] Mr. Weinstein described the work done as the worst he had ever seen in his 40 years of experience. He stated that the drainage system would never drain properly; it would block and produce foul smells. [ 71 ] He considered the entire drainage system had to be changed. Because of the leakage coming from a basement pipe, resulting from the connection of too many fixtures together, the repair had to be done immediately. [ 72 ] Mr.

Messier, who was one of Defendant's managers and a plumbing expert concluded that the plumbing system had been improperly installed, contrary to applicable regulations. While the Court did not qualify Mr. Messier as an expert witness, it notes that Mr. Messier gave his report to Defendant and Defendant's vice president admitted to the existence of the plumbing problem and the need to have it rectified. [ 73 ] It is clear that the plumbing work carried out by Defendant did not respect the governing plumbing Code or the rules of the trade and it had to be re-done.

To access the pipes, the ceilings, walls and floors had to be opened. This work, as well as other repairs, was carried out by Urman Construction. [ 74 ] Mr. Urman noted extensive deficiencies, including door openings larger than standard; moldings and doorframes overfilled with caulking; missing and exposed screws and the lack of plaster.

Walls surrounding the upstairs windows were not insulated; water infiltrated in the upstairs bathroom window because of a lack of insulation and the attic insulation was inadequate; a railing was loose; improper gyproc was installed in the shower interiors, allowing for water infiltration or mold. He noted cracked tiles and gyproc; an unsecured bathtub; a shower drain set above the floor, preventing water from draining; a sink improperly installed, etc.. [ 75 ] He also noted incomplete work, including steps and the façade of the fireplace.

There were doors missing, a lack of moldings or baseboards, the laundry room was unfinished and many appliances had not been installed. [ 76 ] In light of the testimonial and photographic evidence, the Court considers both Mr. Wiseman and Mr. Urman to be credible witnesses and gives their testimony full probative value.

b) The rules of the trade and responsibility for the work done: [ 77 ] Mr. Lewis points to Defendant's lack of professionalism for having hired incompetent workers. He reproaches Defendant for excessive delays in the work, its lack of response to the required repairs and its failure to act responsibly or in good faith. [ 78 ] Mr. Beauchesne, the project manager, blames Mr. Lewis for delays, claiming his crew had to wait for ventilation and electrical work to be done. He considers the delays resulted from the scheduling of subcontractors, which was to be Mr. Lewis' responsibility.

The evidence, however, establishes that Defendant told Mr. Lewis when he could contact other tradesmen to come in. [ 79 ] Mr. Beauchesne reproaches Mr. Lewis for not providing architectural plans, claiming such plans are required for residential renovations and the designer plans he received were inadequate. He contends many items had not been foreseen; the measurements provided were inaccurate and had to be re-done, causing delays. However, Defendant accepted the designer plans and never required architectural plans, despite alleging their necessity. [ 80 ] Mr. Beauchesne blames Mr.

Lewis for the doors not fitting the frames, stating he had failed to buy standard size doors. However, the evidence shows that Mr. Beauchesne provided Mr. Lewis with the size of the doors to be purchased. [ 81 ] As for the plumbing, Mr. Beauchesne testified that pipes had to be relocated since the ventilation contractors had taken up too much space, leaving no room for the drainpipes. Mr. Beauchesne explained that pipes were placed on the external wall in the master bathroom, at Mr. Lewis' request. Pipes had also been installed on the surface of the basement wall; Mr.

Beauchesne testified that the new cupboards would cover them. [ 82 ] Mr. Beauchesne denied his workers were incompetent. For him, they were adequate, although the plumber was not licensed and others were apprentices. Mr. Beauchesne stated he did what he could, considering the budget and the low cost of the contract. [ 83 ] None of the foregoing defenses regarding the quality of the work is acceptable. A contractor cannot invoke that he acted contrary to the rules of his trade, because of his client's instructions or because he accepted a lower price for the job, to excuse defective work.

As the Court states in the case of Laurin et al. vs. Girard : [10] “Si un client, par souci d'économie ou d'autres motifs, demande à son entrepreneur d'effectuer des travaux non conformes aux normes ou aux règles de l'art, celui-ci doit refuser de le faire, au risque de voir sa responsabilité engagée. Les travaux ne doivent pas être de la plus haute qualité possible, mais ils doivent être de qualité acceptable (« qualité marchande »). » [ 84 ] In sum, if the contractor cannot carry out the work properly, in accordance with the rules of the trade, he should refuse to do the work.

By acting to the contrary, he risks incurring his responsibility. [ 85 ] In the present case, the photographic and testimonial evidence establish that the work was sloppy, unprofessional and incomplete. The Court considers the work performed was inadequate. It failed to meet standards and the rules of the trade.

c) How the contract ended and whether a demand letter was required: [ 86 ] On January 26, 2008, Mr. Lewis advised Defendant of his dissatisfaction with the quality of the workmanship, the unfinished work and the delays and ended the project. [ 87 ] Defendant maintains it was not put in default. However, on January 22, 2008, Mr. Lewis asked Mr. Lapierre to visit the house because of a foul odour and because of water leaking from a basement pipe. Mr. Lapierre shrugged off Mr.

Lewis' concerns. [ 88 ] Despite the fact the problem was brought to Defendant's attention, it did not arrange to have the plumbing system examined. It was only after Mr. Lewis sent his January 26th letter that Defendant responded. [ 89 ] Defendant first sent Mr. Messier, one of its managers having plumbing expertise, to verify the plumbing system. He concluded the system was defective and presented his report to Defendant's president. The president, in turn, mandated Mr. Messier to repair the problem. However, neither the president nor Mr. Messier nor anyone else informed Mr.

Lewis of Defendant's intention to rectify the situation. As a result, Mr. Lewis had no knowledge of Defendant's plans. [ 90 ] The parties exchanged letters and e-mails relating to the defective installation of the plumbing system. Ultimately, they did not resolve the issue. Faced with a lack of any solution, Mr. Lewis proceeded to have the system repaired. [ 91 ] Defendant contends that Mr. Lewis failed to provide sufficient time for it to react, when he wrote to Defendant on February 6, 2009. However, Mr.

Lewis simply asked Defendant to advise him as to its intentions with respect to rectifying the problems, which had been pointed out on January 22, 2009 and which had been verified by Mr. Messier on February 2, 2009. Plaintiffs did not require Defendant to do the actual work by that date. [ 92 ] The Court concludes that Defendant was aware of the situation for at least two weeks but failed to act. Given that Defendant made it clear that it did not intend to perform the work in question, in virtue of

article 1597 C.C.Q., Defendant is in default. . [ 93 ] Furthermore, the evidence established the lack of traps on the plumbing fixtures constituted a health risk. There was also leakage from a basement pipe; the installation needed to be repaired right away. Considering the urgency of the situation, a demand letter is not required.

d) The value of the work: [ 94 ] Plaintiffs allege the work was incomplete and badly done and as a result, it resiliated the contract. It seeks the reimbursement of the costs it incurred. [ 95 ] A client has the right to terminate its contract but must pay the contractor, in proportion to the agreed price, the value of the work performed before the notice of termination (article 2129 C.C.Q.). The contractor must repay any sums he received in excess of what he has earned.

Therefore, the value of the work must be determined. [ 96 ] As of January 26, 2009, Plaintiffs had paid Defendant $57,107.99, [11] which exceeded the cost of the project, although many items had not been done. [ 97 ] The cost to repair the work came to $26,497.75, namely $5,855.73 paid to JW for the plumbing repairs and $20,642.02 for Urman Construction's work. The latter bill was for the opening of walls, ceiling and floors for the plumbing repairs, the subsequent closing of all such openings and the demolition of the master bathroom.

Other repairs included modifications to doorframes, repairs to doors, windows, baseboards and crown moldings. Stairs were rebuilt, plaster was repaired, insulation work was done throughout, a sub floor was finished, etc.. [ 98 ] Plaintiffs paid $21,369.10 to J.T. Reno Plus for the remaining repairs and finishing work. Its work included the repair of the staircase banister and a bathroom wall.

It re-installed a sink, levelled a floor, reframed a bathtub, redid bathroom tiles, fixed doors as well as tiling on the powder room floor, redid vent work in the attic, installed moldings, rectified the insulation problem, etc.. They also primed, plastered and painted. Mr. Lewis paid J. T. Reno $21,369.10. [ 99 ] Defendant contests the claim. It submits the regime applicable, where termination is for fault, requires a demand letter and none was provided in this case.

However, given the facts previously described, a demand letter was not required with respect to all the work done which related to the plumbing repairs. [ 100 ] In virtue of the rules applicable to all contracts, the creditor of an obligation has the right to the resiliation or resolution of the contract when it has not been executed. The provisions of 2125 and 2129 of the Civil Code are added, [12] allowing the client to unilaterally end a service contract or a contract of enterprise at any time.

In such an event, as already indicated, the client must pay the value of the work done before termination, while the contractor must repay any sums received which exceed the value of the work performed. [ 101 ] Accordingly, the Court is required to determine the value of the work in order to establish what amounts, if any, are owed by either party. In this case, while the invoices of JW Plumbing are detailed as to both material and labour, the other bills, including those of Defendant, do not itemize each element, with its cost.

Given the lack of details, the Court must use its discretion in its attempt to put a dollar figure on the outcome. [ 102 ] The total cost of Defendant’s three contracts is $56,784.66 (without the disputed cost of material). For this price, Defendant was to demolish the interior, erect walls and plaster, construct bathrooms, redo the plumbing, etc. Plaintiffs paid Defendant $57,107.99. [13] The project to be carried out by Defendant was to be complete and properly done. While a considerable amount of work was done, it had little value.

[ 103 ] Plaintiffs subsequently had to pay another $50,962.45, in addition to the sum of $57,107,99 they had paid Defendant, for a total of $108,070.44, in order to rectify the plumbing problems, the shoddy work and finish the job. Given that the project that should have been completed by Defendant at a cost of $56,784.66, Plaintiffs paid $51,285.76 over and above what they contracted for. [ 104 ] Defendant disputes a number of items including painting costs, the cost to frame the fireplace and insulate the kitchen's crawl space.

The contracts between Plaintiffs and Defendant do not include these items and specifically exclude painting by stipulating: “peinture à être determiné” . [ 105 ] J.T. Reno includes the cost of painting in its bill, without any amount specified. However, Mr. Ryan in an e-mail to Defendant (P-11) points out that he had omitted to claim painting expenses, namely the sum of $4,300. This amount is to be deducted from from Plaintiffs' claim as well as Plaintiffs' bill of $414.83 for paint.

As for the fireplace, in the absence of any prices for this item in Urman's bill, the Court attributes the sum of $1,000 for the fireplace. This amount is to be deducted as well as the sum of $1,050 for the insulation of the kitchen crawl space. [ 106 ] Installation of doors and moldings as well as plastering and gyroc are shown on both Urman's bill and on that of J.T. Reno. J.T.'s representative testified that the insulation problem was rectified but Urman also charged for such work. Different areas may have been involved, but no details are provided.

In the absence of an explanation for what appears to be double billing for a number of items, the Court in its discretion reduces the remainder of J.T. Reno's invoice by $8,000. The total amount to be deducted from Plaintiffs' claim is $14,764.83. [ 107 ] After deducting the above amount from Plaintiff's extra costs, Plaintiffs overpaid $36,197.62 and are entitled to this sum, subject to the cost of material. THE DAMAGES CLAIMED:

a) Moral Damages related to trouble and inconvenience: [ 108 ] Plaintiffs are claiming $5,000 for trouble and inconvenience, alleging that Defendant's behaviour and its refusal to rectify the defective work was a constant source of stress. The delays involved and the couple's inability to move into their home added to their stress while the need to redo work caused them anxiety. [ 109 ] Defendant submits it never acted as a general contractor. According to Defendant, Mr. Lewis retained the services of Mr. Beauchesne; he was aware of the workers he would be employing and their lack of licenses. It reproaches Mr.

Lewis for failing to request construction permits and maintains he alone managed the construction site, providing access to the interveners. For Defendant, Mr. Lewis alone is responsible for his trouble and inconveniences. [ 110 ] The Court does not agree. The contract was not concluded with Mr. Beauchesne, but with Defendant, Groupe Degimi, and its employees. It was up to Defendant to provide experienced, licensed and competent workers to do the job.

If any construction permits were needed to operate on the site, it was up to Defendant to advise Plaintiffs accordingly. [ 111 ] Defendant's argument as to Plaintiffs' attempts to save costs is not valid as a defense for the type of workers Defendant hired, for the lack of permits or for any aspect of the defective work. [ 112 ] Furthermore, Mr. Lewis was not co-coordinating the various services; on the contrary, Defendant told Mr. Lewis when it was appropriate for another group to begin their work.

Defendant also advised Plaintiffs as to what materials to buy. [ 113 ] The Court rejects Defendant's contention that Mr. Lewis is responsible for the delays encountered and for any trouble and inconvenience he suffered. [ 114 ] As for Defendant's position that Arrivage has no juridical interest in this case, this argument has been considered above.

It suffices to reiterate that Arrivage, as the stipulator, is a party to the contract and, having advanced the funds required to construct the property, had an interest in Defendant properly executing the work. [ 115 ] Considering that the demolition began in the spring of 2008 and the construction was started shortly thereafter, the pace of the work was unacceptable. The project manager supervising the job was only present on a part time basis from October onwards. In January 2009, some seven months later, not one room was completed and most of the work was defective. [ 116 ] Mr.

Lewis was anxious to move into the house with his pregnant wife and baby. His complaints as to the unfinished work and the defects went unheeded. The state of the house and the absence of any resolution to the defective work caused stress, anxiety, trouble and inconvenience. The Court considers that the sum of $2,000 is justified in these circumstances.

b) Double Housing Costs: [ 117 ] Plaintiffs are claiming damages arising from the delay in construction. Mr. Lewis and his wife intended to move into their home at the end of the summer of 2008 but did not do so until April 2009. They seek compensation for their extra heating costs as well as for the taxes and insurance they paid for the property, from November 2008 until April 2009, since they were unable to move into their home. [ 118 ] Mr. Lewis and his wife claim the original move-in date was August 2008.

However, the contract does not specify any delay nor was a calendar provided of the timetable for the work to be performed. In the absence of any timeframe stipulated in the contact, the contractor must carry out the work with reasonable diligence (article 2100 C.C.Q.). [ 119 ] If the contract makes no mention of the specific time in which the work must be done, the client who wishes to sue the contractor in damages for the late delivery of the work must first put the contractor in default to execute the work by a certain date. If he

fails to do so, he is considered to have tacitly accepted the alleged delays and renounced to his right to raise the issue of tardiness. [ 120 ] In this instance, Defendant never admitted it would finish the job by the end of August. Mr. Lewis did not complain of delays in the summer. He admitted that although the work was progressing at a very slow pace, he tolerated the situation between May and November 2008. [ 121 ] Another contract was concluded with Defendant in November 2008, to do the finishing work. Mr.

Lewis contends that Defendant was asked to do this work so that the project would be completed more quickly. However, by agreeing that Defendant would perform additional work in November, Mr. Lewis tacitly accepted further delays and renounced to any claim he may have with respect to having the job finished by a given date.

c) Punitive Damages: [ 122 ] Plaintiffs are seeking $5,000 in punitive damages alleging Defendant's lack of response to its demand letters and its omission to remedy the defective work. [ 123 ] However, such damages must be provided by law. Plaintiffs point to

article 272 of the Consumer Protection Act [14] , which foresees that punitive damages can be claimed, if a merchant fails to fulfill an obligation imposed on him by this Act or by the regulations. [ 124 ] Plaintiffs have not pointed to any provision in the Consumer Protection Act , which has been violated. Moreover, construction contracts are excluded from this Act. [15] [ 125 ] Plaintiffs refer to the case of Couverture Beauport c.

Weller [16] where the Court noted that our case law recognizes that contracts concerned with renovation or the improvement of an immoveable, as well as the sale of a good incorporated into the immoveable, can be qualified as consumer contracts. [ 126 ] Defendant refers to the case of 9147-0179 Québec inc. c.

Kovac , [17] where the Court concluded that the nature of the work to be done did not consist of usual renovations but involved substantial changes to the immoveable; as such the contract was not covered by the Consumer Protection Act . [ 127 ] In sum, to benefit from the application of the Act, the work in question must be considered as renovation, improvement, repair, upkeep or maintenance of an immoveable, as opposed to work of a more important nature. [ 128 ] In this case, the undersigned does not consider that the work falls into the category of an improvement or a mere renovation, within its usual meaning. [ 129 ] The interior of the house was demolished; walls were erected and plastered, the plumbing system was changed, bathrooms redone, plywood and ceramic floors installed, stairs and a railing were installed, etc..

The work done by Defendant consisted of substantial changes and the property was uninhabitable during the duration of the project. Given the extent of the project, the contracts are not covered by the Consumer Protection Act . [ 130 ] Plaintiffs also seek damages based on

article 49 of the Quebec Charter of Human Rights and Freedoms , [18] which provides for punitive damages where a fundamental right has been affected. However, Plaintiffs have not identified the interference with any right or freedom, recognized by the Charter . [ 131 ] Plaintiffs have not substantiated their claim to punitive damages and therefore none are awarded. DEFENDANT’S CROSS-DEMAND [ 132 ] Defendant instituted its cross demand only against Mr. Lewis.

However, the contracts were commercial in nature and therefore, solidarity between the Plaintiffs is presumed. [ 133 ] Defendant contends it spent $9,312.72 for material that was not paid. It is claiming this amount, less an overpayment of $323.33 for a total of $8.989.39 [19] . [ 134 ] Plaintiffs did not pay these invoices, submitting they had to redo the work and purchase new material to do so. Plaintiffs contend the cost of material was excluded from the contract. They also submit that many invoices contain unforeseen service charges; others do not show the work was done for Mr.

Lewis home or they lack supporting documents. [ 135 ] According to the evidence, the parties reached a verbal agreement with respect to this extra material. Defendant would purchase small items, the cost of which would be charged to Plaintiffs, including Defendant's administration fees. Plaintiffs did not object to this evidence nor did they contradict Defendant's testimony, in counter proof. [ 136 ] The Court considers Plaintiffs are responsible for the cost of material but does not accept those bills that are not accompanied by supporting documentation.

As well, Defendant added taxes to its bills, charging for material that had already been taxed. [ 137 ] After deducting the unsupported bills and the amount of extra taxes charged, the total sum payable comes to $6,061.65, which is payable by Plaintiffs. ******* [ 138 ] As obiter , it may be mentioned that since April 1, 2010, Defendant no longer has its R.B.Q. license and cannot prepare any invoices. A reorganisation has been planned for the past two years and Defendant's operations are being modified.

It abandoned its activities in Groupe Degimi inc.; the persons involved in this company have continued their activities in a newly created enterprise called

Degimi Renovations inc.. [ 139 ] Plaintiffs raised this question during the hearing. However, in the absence of a claim against those responsible for dismantling the company, while a lawsuit is pending, the undersigned cannot render any decision on this issue. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiffs’ action; CONDEMNS Defendant, Groupe Degimi inc., to pay Plaintiffs, Ryan Lewis, Elanna Aaron and Les Courtiers en douane Arrivage Ltée, the sum of $38,197.62 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec , since January 26, 2009, for a total of $43 035.96; GRANTS , in part, Defendant's cross demand; CONDEMNS Plaintiffs, Ryan Lewis, Elanna Aaron and Les Courtiers en douane Arrivage Ltée to pay Defendant, Groupe Degimi inc., the sum of $6,061.65 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec , since October 19, 2009, date of the service of the defense, for a total of $6 571.87; And Effecting Compensation: CONDEMNS Defendant, Groupe Degimi inc., to pay Plaintiffs, Ryan Lewis, Elanna Aaron and Les Courtiers en douane Arrivage Ltée, the sum of $36,964.09 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec , from the date of judgment. THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Me Sylvain Schneider Schneider et Associés Attorney for Plaintiffs and for Plaintiff/Cross Defendant Me Serge Abud Papineau Avocats Attorney for Defendant/Cross Plaintiff Dates of hearing: January 25, 26, 27 and 28, 2011 Plaintiffs' notes and authorities: February 7, 2011. Defendants' notes and authorities: February 18, 2011. Plaintiffs' response: February 23, 2011.