2018 QCCQ 6825, 2018 QCCQ 6825

Brother Tom Construction Inc. c. 152479 Canada inc. 2018 QCCQ 6825 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-701505-176 DATE: August 30, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ BROTHER TOM CONSTRUCTION INC. Plaintiff v. 152479 CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Brother Tom Construction Inc. (“ Brother Tom ”) claims $8,071.37 from 152479 Canada Inc. (“ 152479 ”) as payment for the construction work carried out on the property situated at 2431 A Street, Montreal, owned by 152479. [ 2 ] At the hearing, Brother Tom reduced its claim by $2,747.25 because it had received a cheque dated February 6, 2018 [1] for this amount from 152479. [ 3 ] 152479 disputes the claim on two grounds. [ 4 ] It claims that it is justified in deducting the amount of $900 from the payment agreed by contract because Brother Tom failed to replace the glass blocks as it was supposed to do. [ 5 ] As for the balance of the claim ($4,424.13) for the extra work performed, it alleges that it does not owe Brother Tom anything because it never required or authorized such work, which in any case was not performed.

ISSUES [ 6 ] (

a) Was the replacement of the glass blocks stipulated in the construction contract agreed upon between the parties? (

b) Did Brother Tom perform extra construction work, and if so, was it authorized by 152479 to do so? (

c) If the answer to either of these questions is yes, to what amounts is Brother Tom entitled?

BACKGROUND [ 7 ] On October 4, 2016, 152479 received a notice from the Permits and inspections division of the Ville de Montréal, informing it that its property at 2431 A Street was in breach of the By-law concerning building maintenance (07-034) and the Urban planning by-law for Ville-Marie borough (01-282). [2] [ 8 ] Inspector Lussier wrote that the stone and brick cladding of the facades on A Street and Hochelaga Street was in poor condition, as was the sign, which showed several signs of deterioration. [ 9 ] 152479 was asked to quickly take the measures required to rectify this situation considered unsafe by the inspector. [ 10 ] On October 7, 2016, Constantinos Kouvertaris, the sole proprietor of 152479, forwarded the notice of offence from the Ville de Montréal to Brother Tom to obtain its estimate of the cost of the corrective work. [3] [ 11 ] Since Mr.

Kouvertaris was in Greece, they exchanged emails. [ 12 ] On October 8, 2016, Brother Tom and 152479 agreed on a renovation contract for the amount of $8,048.25, taxes included. [4] [ 13 ] On October 14, 2016, Brother Tom notified 152479 that the bricks were in such bad condition that they could not be used again. An additional sum of $4,000 was requested from 152479 [5] for the purchase of new bricks. [ 14 ] On October 14, 2016, the contract was amended to take this new expense into account. [6]

[ 15 ] On November 4, 2016, Brother Tom wrote Mr. Kouvertaris that given the state of disrepair of the building, it suggested certain work, including the replacement of the glass blocks that were broken in the facade on Hochelaga Street, where the sign was located. The cost of this work was estimated at $3,500 before taxes. [7] [ 16 ] On the afternoon of November 4, 2016, Mr. Kouvertaris notified Brother Tom that 152479 would definitely not disburse any further sums of money, except for what was required to respond to the notice of offence from the Ville de Montréal.

He also added that he was of the opinion that the repair of the glass blocks formed part of the original contract. [8] [ 17 ] On November 5, 2016, Brother Tom became aware of 152479’s refusal to pay for the additional work and announced that it would not perform such work.

It told 152479 that it was of the view that the replacement of the glass blocks was not part of the original contract, and informed 152479 that it would not replace them unless it was paid to do so. [9] [ 18 ] On November 6, 2016, 152479 demanded that Brother Tom complete its renovation contract and replace the glass blocks in the facade on 2431 A Street, without further delay. [10] [ 19 ] After further discussions, [11] during which Mr.

Kouvertaris and Brother Tom maintained their respective positions concerning their understanding of the contract, on November 13, 2016, Brother Tom wrote the following: Now you have push me to the wall that these three things I did brought to your attentions were included the city demand. These things I will be finishing them even including the glass blocks.

Now, if I am able to proof that these things I pointed you is not included in the city demand, then you will pay me the price I did presented to you . [12] (Reproduced in full; emphasis added.) [ 20 ] Despite this commitment, Brother Tom admitted to the Court that it did not replace the glass blocks.

In fact, the evidence of 152479 shows that this repair was assigned to Construction Corfu Inc. in June 2017 for the amount of $900. [13] [ 21 ] As for the other extras, Brother Tom explained that it had redone a small surface of the exterior cladding of the entrance on A Street and had patched a hole near the door, as shown in its photographs. [14] [ 22 ] On March 7, 2017, Brother Tom demanded that 152479 pay it the balance due on the contract ($3,647.25) plus the cost of the extras amounting to $4,024.13 [15] for the exterior cladding of the entrance on A Street. [16] [ 23 ] On April 20, 2017, given 152479’s refusal to pay, Brother Tom brought its application before the Court.

ANALYSIS AND DECISION Applicable law [ 24 ] First, it is appropriate to recall the civil law rules of evidence. [ 25 ] In civil matters, the burden of proof lies with the plaintiff under the principle set out in art. 2803 of the Civil Code of Québec (“ C.C.Q. ”), which states that “a person seeking to assert a right shall prove the facts on which his claim is based.” [ 26 ] The Court renders its decision in accordance with the balance of probabilities, as stipulated in art. 2804, C.C.Q. , which states that “evidence is sufficient if it renders the existence of a fact more probable than its non-existence.” In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 27 ] If the evidence is not sufficiently convincing or if it is contradictory and the judge cannot determine where the truth lies, the party that has the obligation to convince the Court of the merits of his or her claim will lose, in whole or in part. [ 28 ] Let us consider the merits of this case.

Was the replacement of the glass blocks stipulated in the construction contract agreed upon between the parties? [ 29 ] As stipulated in art. 1434 C.C.Q. : “A contract validly formed binds the parties who have entered into it not only as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law.” [ 30 ] Moreover, art. 1435 C.C.Q. provides that an external clause referred to in a contract is binding upon the parties. [ 31 ] Here, even though the parties are bound by a construction contract, they propose a different

interpretation. [ 32 ] According to Brother Tom, nowhere in the contract signed by the parties does it stipulate the replacement of the glass blocks and nowhere in the notice of offence from the Ville de Montréal does it mention a problem with any broken glass blocks. [ 33 ] Consequently, Brother Tom considers that it is entitled to the full amount stipulated in the contract or alternatively, that the deduction of $899.99 made by 152479 to replace the glass blocks cannot be set up against it. [ 34 ] After reviewing the description of the work in the original contract signed on October 8, 2016, [17] and in the amended contract dated October 14, 2016, [18] the Court agrees with Brother Tom that there is reference only to the stones and bricks in the facades of the property that had to be supplied, repaired or installed. [ 35 ] Furthermore, the Court notes that the

interpretation proposed by 152479 is not so much based on the description in the

contracts, but rather on the notice from the Ville de Montréal to which the contract refers. [ 36 ] According to Mr. Kouvertaris, given the nature of the work required by the Ville de Montréal, the glass blocks behind the sign were supposed to be replaced. [19] [ 37 ] After analysis, the Court does not accept the

interpretation proposed by 152479. [ 38 ] As the evidence shows, the intention of 152479 was to meet the requirements of the Ville de Montréal, without doing anything more.

Brother Tom was aware of this intention and when preparing its estimate, it confined itself to describing only the work identified by Inspector Lussier. [ 39 ] This description of the work to be performed is also in line with the notice from the Ville de Montréal because it never mentioned anything about the replacement of the glass blocks. [ 40 ] Moreover, it is clear that the work performed by Brother Tom, without replacing the glass blocks, met the requirements of the Ville de Montréal because on November 23, 2016, Inspector Lussier confirmed the following to Mr.

Kouvertaris: [ translation] “ All the work performed corrects the problems noted in notice 3001202126. A report from a professional is not required because you had the work done. I am closing the file for the City.” [20] [ 41 ] Accordingly, the Court finds that the replacement of the glass blocks was not part of the contract entered into between the parties and that 152479 must pay Brother Tom the balance owing under the contract in the amount of $899.99.

Did Brother Tom perform extra construction work, and if so, was it authorized by 152479 to do so? [ 42 ] Even though presented in two parts, the answer to this question boils down to knowing whether or not Brother Tom was authorized to do the extra work it claims. [ 43 ] In the Court’s view, Brother Tom was not successful in proving this because it clearly agreed to do certain work knowing full well that according to Mr.

Kouvertaris, this work was not included in the extras. [ 44 ] Brother Tom’s email dated November 13, 2016, could not be clearer on the risk assumed: “Now, if I am able to proof that these things I pointed you is not included in the city demand, then you will pay me the price I did presented to you” (sic). [21] [ 45 ] When confronted by the Court with this email, Brother Tom candidly implied that it had forgotten about it.

Realizing his faux pas , Brother Tom’s representative then told the Court that he had received authorization from the superintendent of 152479 to perform this work given the urgency of the situation. [ 46 ] The Court does not believe this version because the evidence clearly shows that Mr. Kouvertaris was the sole decision-maker in this matter. [ 47 ] Moreover, Mr.

Kouvertaris confirmed that he was the only person empowered to make decisions for 152479, and that neither his superintendent, nor he, in fact, ever required or authorized the work claimed by Brother Tom. [ 48 ] Finally, apart from Brother Tom’s testimony, there is nothing that supports its statement to the effect that this work had to be done urgently. [ 49 ] In light of the inadequate evidence adduced by Brother Tom, the Court dismisses its claim for to $4,024.13.

If the answer to either of these questions is yes, to what amounts is Brother Tom entitled? [ 50 ] The Court therefore awards Brother Tom the amount of $899.99 for the unpaid balance on this renovation work. [ 51 ] As for the amount of $400 claimed for the loss of time and for parking, Brother Tom explained that it wanted to be compensated for the hours it spent preparing its case for Court. [ 52 ] Although the Court acknowledges that the preparation of a file requires litigants’ time and energy, this does not constitute foreseeable damage that may be compensated. [22] [ 53 ] Brother Tom chose to file proceedings, and given the outcome of its action, it is clear that 152479 had valid grounds of contestation.

FOR THESE REASONS, the Court: ALLOWS the plaintiff’s action in part; ORDERS the defendant to pay the plaintiff the sum of $899.99, with interest at the legal rate, plus the additional indemnity provided under art. 1619 of the Civil Code of Québec , as of March 7, 2017, the date of the formal demand; THE WHOLE , with legal costs.

__________________________________ JO ANN ZAOR, J.C.Q. Date of hearing: June 27, 2018