2017 QCCQ 6211, 2017 QCCQ 6211

Gough c. Raviv 2017 QCCQ 6211 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-150738-161 DATE: May 15, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ SHIRLEY M. GOUGH Plaintiff/Cross-Defendant v. DR. ELI RAVIV Defendant/Cross-Applicant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Context [ 1 ] Shirley M.

Gough is suing Dr. Eli Raviv, dentist and prosthodontist, for $15,000 regarding various dental and prosthodontal services rendered by him. [ 2 ] Dr. Raviv has made a Cross-Application against Ms. Gough claiming $9,400 for unpaid services rendered. [ 3 ] Ms. Gough claims the two following amounts: 1) an alleged overpayment of $8,355; 2) a refund of $7,500 for work allegedly never performed. [ 4 ] These amounts total $15,855. Ms.

Gough has reduced her claim to $15,000 in order to institute her claim before the Small Claims Division of the Court of Quebec. [ 5 ] The parties have had a dentist (prosthodontist)-patient relationship since 2010. [ 6 ] Prosthodontics is a dental speciality that focuses on dental prostheses and pertains to the treatment and rehabilitation of the oral function associated with missing or deficient teeth.

[ 7 ] Ms. Gough required treatment on both the upper and lower jaw. The priority of Ms. Gough was to first obtain treatment for the upper jaw. On October 6, 2011, a contract for such treatment was signed [1] . The work for the upper jaw was subsequently completed by Dr. Raviv and paid for by Ms. Gough. [ 8 ] On October 23, 2013, the parties signed a contract for a treatment plan for the lower jaw [2] . On January 13, 2015, and before the treatment for the lower jaw was completed, Ms. Gough terminated that contract and her relationship with Dr. Raviv [3] . Questions in Issue 1. Was there an overpayment of Ms.

Gough and if so, for what amount? 2. Is a contract for dental and prosthodontal services a service contract which may be unilaterally resiliated by the patient pursuant to

Article 2125 of the Civil Code of Quebec ? Analysis and Decision Overpayment of Ms. Gough and if so, for what amount? [ 9 ] From 2010 to 2013, Dr. Raviv performed various dental and prosthodontic treatments on the upper jaw of Ms. Gough. According to Ms. Gough, the total cost paid for these services was $25,855. She says that the accepted quote for such treatment was $17,500, resulting in an overpayment by her of $8,355. [ 10 ] However, the evidence indicates different numbers. The signed contract of October 6, 2011 in the patient file [4] for that work indicates an initial cost of $22,100.

This contract was approved and signed by Ms. Gough. [ 11 ] Furthermore, Exhibits D-1 and D-5 also show that other work and costs were approved by Ms. Gough, including: Consultations ($125 + $55) $180 Device for surgery (Radiologic stent) $250 Radiograph (Panoramic) $70 Removal of implant $280 Additional implants (3 x $450) $1,350 Bone grafting (regeneration and graft) treatment $1,500 Total: $3,630 [ 12 ] The validated charges therefore total $25,730 ($22,100 + $3,630). [ 13 ] That leaves an unaccounted amount of $125. As this amount is not explained and as Dr.

Raviv consents, for reasons of expediency, to acknowledge overpayment for that amount, the Court will grant Ms. Gough $125 under the first part of her claim. Is a contract for dental and prosthodontal services a service contract which may be unilaterally resiliated by the patient pursuant to

Article 2125 of the Civil Code of

Quebec? [ 14 ] The second part of Ms. Gough’s claim is for refund of $7,500 relating to the second treatment plan involving the lower jaw. Both parties acknowledge that they had an agreement regarding treatment of the lower jaw and that the agreed cost was $28,600 [5] . [ 15 ] The treatment plan for the lower jaw included two (2) phases. [ 16 ] The treatment cost for the first phase was $11,600. The services required under this phase of the treatment plan were performed and the amount owed was paid by Ms.

Gough. [ 17 ] The present dispute involves the services to be rendered pursuant to the second phase of the treatment plan for the lower jaw. [ 18 ] For this phase, the parties had agreed to a cost of $17,000. Ms. Gough paid $7,500 by way of two payments [6] . Receipt of this amount is not contested by Dr. Raviv. These payments were made in August and October 2014. [ 19 ] Ms. Gough requests a refund of these amounts.

Her position is that since these amounts were paid for the permanent prosthesis or bridge for the lower jaw that she never received, she is entitled to a full refund. [ 20 ] Under this phase of the treatment, Dr. Raviv was to provide, after a trial period, a permanent bridge or prosthesis made of zirconia for the lower jaw. During the trial period, Dr. Raviv made several temporary prosthetics to determine the comfort and esthetic adequacy of prototypes for the final prosthesis. [ 21 ] Ms. Gough describes that period as being very painful for her.

She states that the initial prototype was oversized, caused bleeding and hampered her breathing. The patient file shows that the prototype was modified on several occasions. It also indicates that the process was painful for the patient and she developed an ulcer on the floor of her mouth. [ 22 ] Despite the overall satisfaction of Ms. Gough at the time with the previous treatments provided by Dr. Raviv, in particular regarding the upper jaw, it is clear that she eventually lost confidence in Dr. Raviv. In January 2015, as stated, Ms. Gough terminated the relationship by sending Dr.

Raviv a formal letter [7] . [ 23 ] According to the expert evidence on behalf of Dr. Raviv, including the testimony of Dr. André Prévost, dentist, and the expertise filed by Dr. Pierre Boudrias, prosthodontist, there is no evidence of dental malpractice or professional fault of Dr. Raviv arising from Ms. Gough’s treatment. [ 24 ] During the trial period, the prototypes did not fit in an optimal way. But that was part of the process to arrive at the correct dimensions for the final prosthesis.

According to the evidence, it is precisely part of the treatment plan that the temporary prosthetics are tried and adjusted to ensure satisfactory comfort and esthetics for the patient. After approval by the patient, a final version of the prosthesis is ordered. That prosthesis is made of zirconia, which is an extremely hard and resistant material. [ 25 ] Ms. Gough complains that the prototypes broke, sometimes chipped and were uncomfortable. But there is no proof of derogatory practice or malpractice of Dr. Raviv in that regard. There is therefore no legal ground to award damages for such discomfort.

In fact, no financial damages are even claimed in that respect. [ 26 ] Ms. Gough testified that the duration of the trial process for the prototypes went on for far too long, namely about three (3) months. [ 27 ] Dr. Prévost testified that such a period is not abnormal since there is generally no going back from the final version of the prosthesis. Furthermore, it appears that part of the delay during the trial process was attributable to Ms. Gough who asked on several occasions for rescheduling and postponing of the revised prototype. Consequently, the order for the final prosthesis was also delayed. Ms.

Gough had the right to do so since the final prosthetic was for her mouth and she had to be comfortable with it. [ 28 ] Importantly, Dr. Raviv never told Ms. Gough that she would have to live with an inadequate or uncomfortable prosthetic. At all times he was ready and willing to modify the prototype prosthesis, including making it thinner [8] . [ 29 ] Pursuant to

Article 2125 of the Civil Code of Quebec (C.C.Q.), a service contract is subject to the exceptional right of unilateral cancellation by the client. That

article reads as follows: 2125. Le client peut, unilatéralement, résilier le contrat, quoique la réalisation de l’ouvrage ou la prestation du service ait déjà été entreprise. 2125. The client may unilaterally resiliate the contract even though the work or provision of service is already in progress. [ 30 ] The jurisprudence has applied this

article to mandates of professionals [9] including service providers in the medical field [10] . The jurisprudence has also applied this

article to dental services [11] , including orthodontic [12] and prosthodontic services [13] . The Court is therefore of the view that this rule applies to the contract for dental and prosthodontal services in the present case. [ 31 ] In order to terminate the contract, Ms. Gough does therefore not have to establish a fault on the part of Dr. Raviv. However, this unilateral right to terminate comes with an obligation for the client, specified at

Article 2129 C.C.Q. which reads as follows:

2129. Le client est tenu, lors de la résiliation du contrat, de payer à l’entrepreneur ou au prestataire de services, en proportion du prix convenu, les frais et dépenses actuelles, la valeur des travaux exécutés avant la fin du contrat ou avant la notification de la résiliation, ainsi que, le cas échéant, la valeur des biens fournis, lorsque ceux-ci peuvent lui être remis et qu’il peut les utiliser. L’entrepreneur ou le prestataire de services est tenu, pour sa part, de restituer les avances qu’il a reçues en excédent de ce qu’il a gagné. Dans l’un et l’autre cas, chacune des parties est aussi tenue de tout autre préjudice que l’autre

partie a pu subir. 2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property supplied, where it can be put into his hands and used by him. For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.

In either case, each party is liable for any other injury that the other party may have suffered. [ 32 ] So the question is: At the time of the unilateral termination in January 2015 [14] , what was the total of actual costs, expenses and value of the work performed by Dr. Raviv in proportion to the agreed price? [ 33 ] Ms. Gough is fortunate that Dr. Raviv used his long-standing professional relationship with the laboratory making the final prosthetic to cancel the charges for the trial prototypes.

The laboratory normally sends an invoice on final completion for both the prototypes and the final prosthetic. [ 34 ] Dr. Raviv estimates that 1/3 of the charge of $17,000 for the second phase relates to material expenses including the prototypes and the prosthesis in final form, namely $5,610. The remaining amount of $11,390 relates to the time involved for the supply of professional dental and prosthodontal services to complete that phase of the treatment. This approximate division of expenses and value was validated by Dr.

Prévost in his testimony. [ 35 ] The Court must therefore determine, at the time of termination, the part of the amount of $11,390 under phase 2 of the treatment for the lower jaw that is attributable to the time for professional services already rendered. Dr. Raviv states that his work was at that stage almost completed in the range of 90% to 95%. Dr. Prévost says it was 98% completed. [ 36 ] These percentages may have been correct if Ms. Gough had, at that point in time, approved the prototype in order to proceed to order the final version of the prosthesis. But that was not the case. She was not satisfied. Dr.

Raviv knew that and he knew that he would have to rework the prototype. It is clear that considerably more time and adjustments were required at that point to complete the treatment. [ 37 ] Based upon the evidence, the Court arbitrates that only 80% of the total hours of services under phase 2 of the treatment were rendered at the time of termination. Accordingly, the remaining amount owed by Ms. Gough is $9,112 ($11,390 x 80%). [ 38 ] Ms. Gough is entitled to offset or credit in part that amount by her deposit of $7,500. That leaves a balance owing of $1,612. [ 39 ] Furthermore, according to Dr.

Raviv’s testimony, Ms. Gough had overpaid $100 already for a previous treatment and this should be credited against his claim for services for phase 2 of the treatment for the lower jaw. Accordingly, the amount owed by Ms. Gough is reduced to $1,512 (Article 1673 C.C.Q.). [ 40 ] Ms. Gough states that her decision to not continue with Dr. Raviv was in part based upon his request that she “sign off” on the final version of the prototype. She interpreted this as meaning that Dr. Raviv was attempting to absolve himself, after her approval, from liability or criticism of the final prosthesis.

[ 41 ] In Court, Dr. Raviv testified that the purpose of that statement by him was merely to ensure that Ms. Gough knew that she had to be fully satisfied with the final version of the prototype. He states that he never attempted to exempt himself from professional liability. He was not asking for any waiver of professional liability. [ 42 ] It is unfortunate that the dentist (prosthodontist)-patient relationship may have been saved if this point had been understood and clarified. It may have also avoided the present litigation. Both parties share responsibility for this confusion.

For this reason, the Court will not award legal costs to either party. FOR THESE REASONS, THE COURT: CONDEMNS Dr. Eli Raviv to pay $125 to Shirley M. Gough; CONDEMNS Shirley M. Gough to pay Dr. Eli Raviv $1,512; OPERATES COMPENSATION between these above amounts and CONDEMNS Shirley M. Gough to pay Dr. Eli Raviv the amount of $1,387, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the date of the demand letter of Dr. Raviv, namely January 15, 2015 [15] ; WITHOUT LEGAL COSTS. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: May 15, 2017