2010 QCCQ 4168, 2010 QCCQ 4168

Weakly c. Abittan 2010 QCCQ 4168 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-112275-088 DATE: May 3, 2010 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ THADDEUS WEAKLY [...] Montréal Québec [...] Plaintiff v.

MARCO ABITTAN [...] Montréal Québec [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Thaddeus Weakley is suing Marco Abittan for $7,000, alleging that he paid for renovations they were poorly done and incomplete. Mr. Abittan denies the claim. [ 2 ] For the reasons provided at the hearing, the Court granted Mr. Abittan's request for the retractation of judgment, rendered on September 18, 2009. The evidence : [ 3 ] Mr. Weakly hired Mr.

Abittan, in December 2007, to repair and clean an upper duplex and testified that he paid him a total of $7,300 for the following services: $2,300 for painting $1,300 to redo the kitchen floor $ 300 to paint the stairwell and place rubber mats on the stairs $ 900 to paint the bathroom and install a fan $1,000 to clean and do miscellaneous repairs $1,500 to refinish the hardwood floors. $1,500 as defendant's fees

[ 4 ] Mr. Weakley paid cash, as required by Mr. Abittan. He requested a receipt but failed to obtain it. According to Mr. Weakly, the work was to be completed by March 1, 2008, so that he could rent the premises for the month of March 2008. [ 5 ] Mr. Weakly complained that the work was still ongoing in May 2008 and the paint job was sloppy.

His examples include streaky paint, unpainted edges, an unpainted doorframe and cabinet interiors, paint covering switch plates, a wall painted without removing the mirror, surfaces not properly covered, etc.. [ 6 ] In addition, the ventilation was improperly installed and not sealed such that the condensed air went into the stairwell and the paint peeled. The kitchen cabinets needed to be cut but were not done and various cleaning work was not carried out. [ 7 ] Mr. Weakly is seeking the reimbursement of $7,349.28, which was reduced to $7,000 to meet the jurisdiction of the Small Claims Court.

This sum includes his payments for work inadequately done, lost rent, late fees and fees paid to an Investigator to find Mr. Abittan, who moved without providing a forwarding address. [ 8 ] Mr. Abittan acknowledged that he undertook to repair the upper duplex but denied the parties had agreed to a deadline.

He also denied having received money for cleaning or for his fees; he claimed his services are paid from what remains after he pays his employees. [ 9 ] He testified that he had charged and received payment for the following items: $1,500 for the paint job $1,300 to redo the kitchen floor $ 300 to paint the stairwell $ 150 to install the fan $ 500 to varnish the hardwood floors. The total is: $3,750 Analysis: [ 10 ] Mr. Weakly claims his loss amounts to $7,359.28. This amount includes $3,660 he is seeking as late fees, at $30 per day. However, Mr.

Abbitan denies he had undertaken to meet a deadline to complete the project. Given the contradictory evidence and the lack of a written contract to support Mr. Weakly's allegations, this aspect of his claim is not granted. [ 11 ] Mr. Weakly also included, in his claim, the sum of $745 for one month's lost rent since the work was not finished by the promised deadline but he presented no documentary evidence in support of this allegation. Therefore, this amount is not awarded. [ 12 ] As for the contradictions in testimony regarding the cost of the job, the differences for certain items are irrelevant since Mr.

Weakly is not complaining about the installation of the kitchen floor or the varnishing of the hardwood floors. [ 13 ] Mr. Weakly's complaints concern the remainder of the work to be done. The photographic and documentary evidence clearly show that the paint job was improperly done, the cupboards were not trimmed, the ventilation did not extend to the outside of the building and the cleaning was not effected. [ 14 ] Given the poor workmanship, Mr. Weakly is entitled to be reimbursed the amount he paid for this work. However, Mr.

Abittan admitted only to receipt of $1,800 for the paint job, including the stairwell, and $150 for installing the ventilation. He denied that he charged or received money for cleaning, repairs, or for his fees. [ 15 ] The agreement was verbal; there is no written evidence as to the cost of the services rendered. Mr. Weakly, as Plaintiff, has the burden of proof and must establish his allegations by preponderant evidence. He showed that he had withdrawn various amounts of cash from his bank account on different dates.

However, the cash withdrawals, without an indication as to whom the money was paid, do not constitute proof of payment. [ 16 ] Since Mr. Abittan has admitted to receipt of only $1,950 for both the paint job and the installation of the ventilator and given Mr. Weakly's lack of evidence as to the amount he allegedly paid, the Court establishes the reimbursement at $1,950. Mr. Weakly is also entitled to the reimbursement of the fees ($177) paid to an investigator to locate Mr. Abbitan for a total of $2,127. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's claim;

CONDEMNS Defendant, Marco Abittan, to pay Plaintiff, Thaddeus Weakley, the sum of $2,127 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since May 1, 2008, plus the judicial fees of $155. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: April 15, 2010