2022 QCCQ 2325, 2022 QCCQ 2325

Martinez c. Sztuka 2022 QCCQ 2325 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL "Civil Division" N° : 500-32-709492-195 500-32-709511-192 DATE : April 28, 2022 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. 500-32-709492-195 APRIL MARTINEZ and GLEEN GILBERT Plaintiffs c. GERALD SZTUKA and CONSULTANT S. LEO, INC. Defendants et 500-32-709511-192 APRIL MARTINEZ Plaintiff c. CONSULTANT S. LEO INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ THE OUTLINE [ 1 ] The Court was seized of two claims by the Plaintiffs in two separate Court cases, which were subsequently joined, and proceeded on the same evidence. [ 2 ] The Plaintiffs claim from the Defendants the fees paid to the Defendant Sztuka totalling $14,360.88, plus the amount of $1,325.66 paid to the expert, Les Expertises Latulippe et Associés Inc. and $919.80 paid to the Defendant Consultant S.

Leo, Inc., amounts that the Plaintiffs have reduce to $15,000 renouncing to claim the difference. [ 3 ] The Defendant Mr. Sztuka failed to appear at Court to contest the Plaintiffs’ claim. [ 4 ] Mr. Sam Leo, engineer, is deceased. He was the only administrator and representative of the corporate Defendant, Consultant S. Leo, Inc.

THE CONTEXT [ 5 ] In the Fall 2018, after purchasing their residence, the Plaintiffs had pluming issues in their basement. [ 6 ] The basement is divided between an unfinished portion and a finished portion with laminated flooring. [ 7 ] The pluming issue, which is at the source of the flooding in the finished

section of the basement, forced the Plaintiffs to remove their laminated flooring, thereby discovering that the concrete slab underneath was uneven. [ 8 ] The architect suggested that a structural engineer be retained and in December 2018, the Plaintiffs retained the services of the Defendant Consultant S.

Leo, Inc. represented by Sam Leo. [ 9 ] As appears from the text messages exchanged between the Plaintiff Martinez and the Defendants, as of December 1 , 2018 [1] , the Plaintiff Martinez informed Sam Leo that a quote has been obtained from Akton Injection to redo the concrete slab. [ 10 ] As explained by the Plaintiff Martinez, as of the quote by Akton Injection was high, she asked Mr. Leo if he could recommend someone else. [ 11 ] As appear from the text messages of December 16, 2018, Sam Leo referred the Plaintiffs to Defendant Sztuka.

[ 12 ] On January 1 , 2019, the Plaintiff Martinez texted Mr. Leo that the Defendant Sztuka will start the work the next day, January 2 nd , 2019. [ 13 ] Prior to the work beginning, the Defendant Sztuka provided his quote on December 20, 2018, at $12,000 plus taxes [2] . [ 14 ] The Defendant Sztuka worked at the Plaintiffs’ residence between January 2 to 7, 2019, to replace the existing concrete slab by a new slab.

As appears from the Defendant’s two cause bid, the work included removing the old concrete floor, and 8 to 10 inches of clay, install an interior French drain connected to the sump pump, add three-quarter inch gravel, plastic vapour barrier and a 5 ½ inch concrete floor. [ 15 ] The Plaintiffs had requested from the Defendant Consultant S. Leo, Inc., to provide a description of the work to be carried out.

As appears from the inspection report dated December 18, 2018 [3] , Defendant Sam Leo did recommend that the concrete slab be replaced by a new slab of at least five inches with reinforcement, two layers of polyurethane and two layers of 15 Mils polyethene [ 16 ] The diagram accompanying the inspection report was drafted on January 10, 2019, and the diagram and report were sent by the Defendant Leo on January 22, 2019. [ 17 ] Shortly thereafter the work was completed by Defendant Sztuka, water started to infiltrate in the basement as of February 9, 2018. [ 18 ] On May 8, 2019, Claude Latulippe of Les Expertises Latulippe et Associés Inc. [4] provided to the Plaintiff Martinez his expert report, recommending that the concrete slab installed by the Defendant Sztuka be replaced. [ 19 ] On July 10, 2019, a contract was concluded between Plaintiff Martinez and Akton Injection [5] to replace the concrete slab installed by the Defendant Sztuka. [ 20 ] Prior to this, on May 30, 2019, Demands Letters were sent by the Plaintiff Martinez to Defendants Leo and Sztuka [6] .

THE ANALYSIS [ 21 ] The question in issue involves the liability of the Defendants Sztuka and Leo and to determine amount of damages awarded to the Plaintiffs. [ 22 ] Mr. Michael Moore, representative of Akton Injection, stated in Court that the concrete slab poured by the Defendant Sztuka was not done properly. [ 23 ] The fill underneath the concrete slab was still in clay, no French drain was installed and no access was provided to the wheel where the sump pump was located. [ 24 ] In light of the testimony of Mr.

Moore and considering that the Defendant Sztuka did not appear to contest the Plaintiffs’ claim, the Court has no hesitation in concluding that the Defendant Sztuka did not perform the work in accordance with the state of the art and the Plaintiffs were justified in having the concrete slab replaced by Akton Injection. [ 25 ] However, the Court cannot conclude that the Defendant Leo is liable. [ 26 ] Although Sam Leo was to supervise the work done by Mr. Sztuka, In fact, throughout the time that he worked at the residence of the Plaintiffs Mr. Leo was not present. [ 27 ] In addition, Mr.

Richard Landriault representative of LandEx Expertise, provided his report [7] in which he concludes that the opinion provided by the Defendant Leo on the scope of the work to be done, exceeded what is recommended by the Building Code. [ 28 ] In any event, the Defendant Leo’s recommendations were sent to the Plaintiffs after the work had been completed by Defendant Sztuka.

FOR THESE REASONS, THE COURT: GRANTS in part the Plaintiffs’ claim; CONDEMS the Defendant Gerald Sztuka to pay to the Plaintiff April Martinez et Gleen Gilbert the sum of $15,000 plus interest at the legal rate and the additional indemnity provided at

article 1619 of the Civil Code of Québec as of July 8, 2019; WITH COSTS in the amount of $205 representing the judicial stamp of the Demand; DISSMISSES the Plaintiffs claim against Consultant S. Leo, Inc. WITHOUT COST .

________________________ DIANE QUENNEVILLE, J.C.Q. Date of hearing: April 11, 2022