2012 QCCQ 14873, 2012 QCCQ 14873

Attias (J. Attias - Réfrigération commercial) c. Quality Hotel Midtown 2012 QCCQ 14873 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-127583-112 DATE: December 18, 2012 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ Jacob ATTIAS (f.a.s.n. J. Attias – Réfrigération Commercial) Plaintiff v. QUALITY HOTEL MIDTOWN and Abraham BOYARSKY and TAV EDUCATIONAL PROGRAM INC. (f.a.s.n.

Quality Hotel Midtown) Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants the sum of $5,095.11 for services rendered at the request and for the benefit of said Defendants ($4,095.11) and for damages sustained ($1,000.00). [ 2 ] More particularly, according to Plaintiff's demand, on or around December 4, 2008, Defendant, Abraham Boyarsky, acting on behalf of Defendants Quality Hotel Midtown and TAV Educational Program Inc., contacted him and requested that he perform the necessary work to repair or install a compressor in the ''freezing room'' of said Defendant, Quality Hotel Midtown. [ 3 ] According to Plaintiff, after having examined the compressor in the said ''freezer room'' he came to the conclusion that it had to be replaced. [ 4 ] Plaintiff states that he informed Defendant Boyarsky of this and that he furthermore advised him that it would cost $2, 300.00 to buy a new compressor to which were to be added the costs of the additional parts and labour. [ 5 ] According to Plaintiff, he was verbally given the authorization to perform the work by Defendant Boyarsky. [ 6 ] On December 5, 2008, after having done the work, Plaintiff sent Defendants a bill (exhibit P-1) for a total amount of $4,095.11. [ 7 ] The evidence adduced at trial reveals that the work done by Plaintiff is satisfactory.

However, Defendants contest the action instituted against them alleging that they never agreed to pay $4,095.11 for the repairs. [ 8 ] Testifying in Court, Defendant Boyarsky affirmed that, on December 5, 2008, Plaintiff told him that the cost of the compressor would be around $1,000.00 to which were to be added the labour costs. [ 9 ] Defendant Boyarsky affirms that he would not have authorized Plaintiff to do the work if he had been advised that the cost of the repairs was to be of $4,095.11 as subsequently billed by Plaintiff. [ 10 ] After having received Plaintiff's bill, on December 10, 2008, Defendant Boyarsky sent Plaintiff a letter (exhibit D-4).

In this letter, he does recognize that Plaintiff did give Defendants a quote of $2,300.00 but adds that Plaintiff did not mention that the cost of the freon would be of $600.00 in extra. [ 11 ] With the letter of December 10, 2008, Defendant Boyarsky attached a quotation from Réfrigération Saroufim dated December 9, 2008 (exhibit P-3) where, it appears that the said company could have done the work for $2,116.41.

[ 12 ] For his part, Plaintiff filed a quotation from the same firm ( Réfrigératio Saroufim) dated January 27, 2010 (exhibit P-5) where it appears that the cost of the work was estimated at $4,200.00 plus taxes. [ 13 ] Unfortunately for both parties, as no representative of Réfrigération Saroufim testified in Court regarding the contents of both quotations, the Court cannot give any evidential value to the said quotations. [ 14 ] Defendant Boyarsky recognizes that the work described on Plaintiff's bill was performed at his request and that Defendants were, at that time, willing to pay him an amount of $2,821.88 in full and final payment of the bill.

Defendant Boyarsky even sent Plaintiff a cheque for this amount which was never cashed (exhibit P-2). [ 15 ] The evidence has revealed that no written and signed quotation was obtained by Plaintiff from Defendants before doing the work described in the invoice dated December 5, 2008 (exhibit P-1). [ 16 ] Plaintiff furthermore waited until February 13, 2011 to respond in writing to Defendant's letter of December 9, 2008 and his judicial proceedings were instituted only on March 10, 2011, 27 months after the performance of the work. [ 17 ] Defendant Boyarsky testified that the cost of the repairs charged by Plaintiff is exaggerated and excessive.

However, no independent witness testified on behalf of Defendants to corroborate Defendant's Boyarsky testimony in this regard. [ 18 ] Consequently, on the sole basis of Defendant Boyarsky's testimony, the Court cannot conclude that the cost of the repairs billed by Plaintiff was exaggerated and excessive to extent alleged by Defendants. [ 19 ] This being said, the necessary repairs were done at the request of Defendant Boyarsky but for the benefit of Defendants Quality Hotel Midtown and TAV Educational Program Inc. [ 20 ] As mentioned previously, in view of the evidence adduced at trial, for his part, Plaintiff has not established, in a conclusive manner, that there was a clear agreement or understanding between the parties on the total cost of the job to be done when he was given instructions to do the repairs. [ 21 ] The contract concluded between the parties is a contract of enterprise as defined by

article 2098 of the Civil Code of Quebec which stipulates the following: « A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay. » [ 22 ] Considering that the evidence does not allow the Court to conclude that the price of the work was agreed upon between the parties before the work was done, pursuant to

article 2106 of the Civil Code of Quebec , the price must then be fixed on the basis of the value of the work carried out. [ 23 ] More particularly,

article 2106 of the Civil Code of Quebec states the following: « The price of the work or services is fixed by the contract, by usage or by law or on the basis of the value of the work carried out or the services rendered. » [ 24 ] Plaintiff values the price of the work at $4,095.11 and Defendants value the work at $2,821.88. [ 25 ] Considering that no other evidence was adduced at trial regarding the value of the work but considering that the said work was done to the satisfaction of the Defendants, arbitrarily [1] , the Court determines it reasonable to fix the value of the work at $3,400.00. [ 26 ] Consequently, Defendants Quality Hotel Midtown and TAV Educational Program Inc. are solidarily condemned to pay Plaintiff the sum of $3,400.00$. [ 27 ] As for Defendant Abraham Boyarsky, as he was acting on behalf and for the sole benefit of Defendants Quality Hotel Midtown and TAV Educational Program Inc., his personal liability cannot be maintained by the Court. [ 28 ] Therefore, the action instituted against him personally is dismissed.

FOR THE FOREGOING REASONS, THE COURT: MAINTAINS in part Plaintiff's action. CONDEMNS Defendants, Quality Hotel Midtown and TAV Educational Program Inc., solidarily, to pay to Plaintiff the sum of $3,400.00 with interests at the legal rate plus the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of March 10, 2011, plus the judicial costs in the amount of 159,00$. DISMISSES the action instituted against Defendant Abraham Boyarsky, without costs. __________________________________ ARMANDO AZNAR, J.Q.C.

Date of hearing: December 11, 2012.