2018 QCCQ 7481, 2018 QCCQ 7481

Gutin c. Ly Construction Inc. 2018 QCCQ 7481 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-155498-175 DATE: October 16, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ ANATOLI GUTIN Plaintiff v. LY CONSTRUCTION INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Anatoli Gutin claims from Ly Construction Inc. (‘’Ly Construction’’) $8,087 for damages allegedly resulting from poor workmanship in the installation of ceramic tiles in the kitchen of Mr. Gutin’s residence. [ 2 ] Ly Construction argues that the complaints raised by M. Gutin have already been claimed and addressed in another legal proceeding which resulted in a judgment dated September 20, 2016.

Subsidiarily, it argues that there is no proof that its work was deficient and if it was, the damages claimed are grossly exaggerated. Issues

a) Is Mr. Gutin’s claim barred by the application of the rule of res judicata in that it has already been claimed and dismissed in another legal proceeding?

b) Did LY Construction properly install the ceramic tiles in Mr. Gutin’s kitchen?

c) If not, what are the damages suffered by Mr. Gutin, if any? Context [ 3 ] In June 2014, Mr. Gutin and Ly Construction entered into a contract whereby Ly Construction agreed, among other things, to install ceramic tiles in the kitchen of Mr. Gutin’s residence for a price of $4,300 (“ Construction Agreement” ). [1] This price includes labor only, as all the materials were to be paid for and supplied by M. Gutin.

The contract also provided for the renovation of the bathroom, but this aspect of the agreement is not at issue in the present litigation. [ 4 ] Ly Construction started the work near the end of the month of June 2014. The ceramic tile installation in the kitchen was completed by the beginning of September 2014. [ 5 ] Ly Construction admits that at the time the contract was entered into and throughout the period during which it was executed, it did not hold a license issued by the Régie du bâtiment du Québec as required by

section 46 of the Building Act (R.S.Q. chap. B-1.1). Ly Construction finally obtained its license on May 22, 2015. [2] [ 6 ] In the fall 2014, Ly Construction filed a lawsuit against Mr. Gutin claiming payment of the price of the Construction Agreement (“ 2014 Ly Construction Lawsuit” ). Mr.

Gutin contested this lawsuit and filed a cross-claim in which he claimed $6,500 in damages for poor workmanship and delay. [3] [ 7 ] The trial in the 2014 Ly Construction Lawsuit was held on January 7 and April 25, 2016. [ 8 ] On September 20, 2016, Justice Suzanne Vadboncoeur of the Court of Québec issued her ruling in the Ly Construction Lawsuit (“ Vadboncoeur Judgement” ). [4] She granted in part the 2014 Ly Construction Lawsuit and ordered Mr. Gutin to pay $5,000. Mr. Gutin’s cross-claim was partially granted and the Court ordered Ly Construction to pay $2,000. Applying the rules of compensation, the

Court ordered Mr. Gutin to pay $3,000 to Ly Construction. [ 9 ] In May 2016, some of the tiles installed in Mr. Gutin’s kitchen became loose and cracked as they were walked on. The problem became progressively worse throughout the summer of 2016. [ 10 ] By demand letter dated November 18, 2016, Mr. Gutin enjoined Ly Construction to pay him $6,087 for the cost of installing new kitchen tiles. [5] Analysis and Decision

a) Is Mr. Gutin’s claim barred by the rule of res judicata in that it has already been claimed and dismissed in another legal proceeding? [ 11 ] Ly Construction argued in its contestation that Mr. Gutin’s claim is barred because the Vadboncoeur Judgement already addressed and dismissed this claim. [ 12 ] This grounds of defense raises the applicability of the res judicata rule which is codified at

article 2848 of Civil Code of Québec ( C.C.Q. ) and which provides as follow: 2848. The authority of res judicata is an absolute presumption; it applies only to the object of the judgment when the demand is based on the same cause and is between the same parties acting in the same qualities and the thing applied for is the same.

However, a judgment deciding a class action has the authority of res judicata with respect to the parties and the members of the group who have not excluded themselves therefrom. [ 13 ] A defense of res judicata will apply when the party invoking it satisfies the following three conditions: 1) The demand is between the same parties acting in the same qualities; 2) The demand is based on the same cause; 3) The thing applied for is the same as the object of the first judgment. [ 14 ] The first condition and second conditions are fulfilled as the parties to the Vadboncoeur Judgement are the same as in the present lawsuit and because the Construction Agreement is the cause of the 2014 Ly Construction Lawsuit and the present one. [ 15 ] However, the third condition is not fulfilled.

Indeed, the thing applied for in the present lawsuit is distinct from the object of the 2014 Ly Construction Lawsuit. [ 16 ] While Mr. Gutin did raise deficiencies in his cross-claim filed in the 2014 Ly Construction Lawsuit, none of the deficiencies he raised relate to the poor workmanship of the ceramic tile installation. Mr. Gutin could not have raised this defect in that lawsuit because the hearings took place in January and April 2016 whereas he only discovered the defective tile work in May 2016. [ 17 ] Mr. Desalot, Ly Construction’s principal, admits that Mr.

Gutin did not raise the issue of the alleged defective tile installation before Justice Vadboncoeur. [ 18 ] Accordingly, the grounds of defense based on the res judicata rule fails.

b) Did LY Construction properly install the ceramic tiles in Mr. Gutin’s kitchen? [ 19 ] The Construction Agreement is a contract of enterprise which is governed by articles 2098 C.C.Q. and ff . Ly Construction was obligated to carry out the tile installation work in accordance with usage and good practice. [6] [ 20 ] The contract includes a one year warranty against poor workmanship. [7] [ 21 ] However, Mr.

Gutin cannot avail himself of the warranty against poor workmanship because this warranty is only applicable if the poor workmanship is discovered during the one year period following the acceptance of the work. [ 22 ] In the present case, the alleged defective tile installation was discovered in May 2016, roughly 20 months after the reception of the work, and therefore the one year warranty against poor workmanship is not applicable. [ 23 ] Notwithstanding the expiry of the one year warranty against poor workmanship, a client may nonetheless have a claim against a contractor, but the claim is then governed by the general contractual liability rules.

These require the client to prove poor workmanship and that this results from a fault committed by the contractor in the execution of the work. [8] [ 24 ] According to

article 2100 C.C.Q. , Ly Construction had the obligation to carry out the tile installation work in accordance with usage and good practice. [ 25 ] Given the nature of the work that was to be carried out as well as the circumstances under which the Construction Agreement was entered into, the Court concludes that Ly Construction had an obligation of result for the tile installation work. [9] [ 26 ] Mr. Gutin and his spouse retained Ly Construction’s services based on the representations of its representative, Mr.

Desalot, who told them that he had significant experience in tile installation work and held all the necessary licenses. Mr. Gutin’s and his spouse’s testimony on this issue is clear, convincing and credible and there is no reason to set it aside.

[ 27 ] Contrary to its representations, Ly Construction did not hold a license issued by the Régie du bâtiment du Québec as required by the Building Act . [ 28 ] Mr. Gutin’s and his spouse’s testimony establishes that the tiles were not correctly installed in their kitchen. This testimony is corroborated by the pictures which show the cracked and loose tiles. [10] [ 29 ] Ly Construction had an obligation of result in the installation of the tiles.

It did not meet this result because the tiles became loose and cracked 18 months after their installation. [ 30 ] Ly Construction could only exonerate itself if it proved that the tiles became loose and cracked because of force majeure or because of Mr. Gutin’s fault. [11] [ 31 ] Ly Construction did not meet this burden of proof. It argues that the tiles loosened and cracked because a flood occurred in the kitchen when a pipe burst. However, this evidence is hypothetical and is based on inadmissible hearsay evidence which the Court dismissed at the trial. [ 32 ] Ly Construction argues that Mr.

Gutin was driven to file this lawsuit in retaliation to the 2014 Ly Construction Lawsuit. Again, this is simply a theory and is not supported by the evidence. [ 33 ] Finally, Ly Construction argues that Mr. Gutin’s claim should be dismissed because Mr. Gutin did not properly put him in default since he sent his demand letter on November 18, 2016 after the new tiles were installed. [12] [ 34 ] Mr. Gutin argues that he was not obliged to put Ly Construction in default.

He adds that since the contractor did not have a license as required under the Building Act , and considering the past history of defective work which the Vadboncoeur Judgement confirmed, he was justified in believing that Ly Construction was not qualified to remedy the defective work. [ 35 ] The Court agrees with Mr. Gutin and believes that this is a case where he was dispensed with the obligation to put Ly Construction in default. [13] [ 36 ] Mr.

Gutin’s reasonable belief that Ly Construction lacked a license [14] , combined with the finding in the Vadboncoeur Judgement [15] that Ly Construction’s work was defective, establishes that this is a case where Mr. Gutin was dispensed from putting in default Ly Construction because of the latter’s incompetence and inability to perform the work properly. [16] [ 37 ] In conclusion, the evidence establishes that Ly Construction did not properly install the ceramic tiles in Mr. Gutin’s kitchen and therefore breached its obligation under the Construction Agreement.

c) What are the damages suffered by Mr. Gutin, if any? [ 38 ] Mr. Gutin claims $8,087 in damages, which includes $6,087 for the cost of installing new ceramic tiles in the kitchen plus $2,000 for the loss of use of the kitchen. Cost to Install New Tiles [ 39 ] The Iarcar Québec Inc. proposal and invoice [17] establishes that Mr. Gutin paid $5,587.79 to remove the defective tiles, remove the kitchen cupboards and install new ceramic tiles in the kitchen. This amount is reasonable and is a direct consequence of Ly Construction’s breach. [ 40 ] Mr.

Gutin claims he incurred an additional $500 in damages because he used a number of tiles from the batch of tiles he had purchased when Ly Construction initially installed the tiles in the kitchen. Mr. Gutin filed no invoice in support of this portion of the claim. His evidence is not clear and convincing and the Court will not award him this head of damages. Loss of Use [ 41 ] Finally, Mr. Gutin claims $2000 for the loss of use of the kitchen (one week) while Iarcar Québec Inc. carried out the remedial work.

During that period, he argues his family had to eat out at restaurants and incurred expenses they would not have incurred had they been able to use the kitchen. [ 42 ] No invoices were submitted by Mr. Gutin for these alleged extra restaurant expenses. That said, it cannot be denied that the kitchen could not be used while the tiles were being replaced. This loss of use caused prejudice to Mr. Gutin. An award of $250 for the loss of use is fair and reasonable in the Court’s opinion. [ 43 ] In conclusion the Court will award Mr.

Gutin $5,837.79 for the prejudice suffered as a result of Ly Construction’s breach of the Construction Agreement. FOR THESE REASONS, THE COURT: [ 44 ] GRANTS the Application in part; [ 45 ] ORDERS Ly Construction Inc. to pay Mr. Anatoli Gutin $5,837.79 with interest at the legal rate plus the additional indemnity provided for by

article 1619 of the Civil Code of Québec , from December 1, 2016;

[ 46 ] WITH COSTS of $185 representing the judicial fees paid on the Application. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: August 22, 2018