2017 QCCQ 5143, 2017 QCCQ 5143

9221-7835 Québec inc. (Vista Construction) c. Wieder 2017 QCCQ 5143 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-219759-159 DATE: May 5, 2017 ______________________________________________________________________ BY THE HONOURABLE MADAM JUSTICE MARIE MICHELLE LAVIGNE, J.C.Q. ______________________________________________________________________ 9221-7835 QUEBEC INC., doing business under the name of Vista Construction Plaintiff v.

ASHER WIEDER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 9221-7835 Quebec Inc., doing business under the name of Vista Construction (Quebec Inc.), is hereby represented by Salomon Ifergan (Mr. Ifergan), its sole administrator and shareholder. Quebec Inc. operates in the field of general construction and renovations. [ 2 ] Quebec Inc. is claiming from Asher Wieder (Mr. Wieder) the amount of $20,035.80 for construction and renovation work done at Mr. Wieder’s residence. [ 3 ] Mr.

Wieder contests this claim alleging that the work was not done according to the terms of the verbal agreements between the parties. Moreover, the work requested was not done properly and water is still leaking in Mr. Wieder’s house. [ 4 ] The facts are as follows. [ 5 ] In December 2012, Mr. Wieder commissioned Quebec Inc. to do work on the front balcony and exterior staircase of his residence. [ 6 ] Later on, Mr. Wieder also commissioned Quebec Inc. to do additional renovations in the back yard of the house. [ 7 ] All agreements between the parties were verbal.

However, during their meetings, some notes were taken which would help the Court to understand the verbal agreements between the parties and the scope of the work done. [ 8 ] The work started in December 2012 and went on intermittently until the fall of 2013. [ 9 ] According to Mr. Wieder, Mr. Ifergan had promised to charge him for the cost of the work only. There would be no charge for administration or profit. At the time, Mr. Ifergan and Quebec Inc. wanted to be considered for the construction of a synagogue and Mr. Ifergan understood that Mr.

Wieder was one of the members of the Board who would decide on this contract. [ 10 ] In February 2013, Mr. Wieder gave Mr. Ifergan an amount of $5,000.00 in cash. No invoice was issued. [ 11 ] Quebec Inc. was not chosen for the construction of the synagoque. Mr. Wieder says it is only after Mr. Ifergan realized that he would not build the synagogue that Quebec Inc. sent out invoices for the work. [ 12 ] The first invoice is dated August 22, 2013 [1] . It totals $15,837.80, including supervision ($1,800.00), 10% administration fees ($1,225.00) and taxes.

The amount of $5,000.00, paid on February 19, 2013, is deducted from the total, leaving a balance of $10,837.80. [ 13 ] The second invoice is dated November 18, 2013 [2] and includes supervision fees ($1,800.00), 10% administration fees ($730.00) and taxes for an amount totalling $9,198.00. Analysis [ 14 ] Each party has its own version of the terms of the contract and the extent of the work done. Both versions often show contradictions. [ 15 ] As previously mentioned, there is no written contract between the parties.

As evidence of the work done by Quebec Inc. and its cost, the Court is left with the following elements:

• Numerous pictures of the work done [3] ; • Two lists of work bearing hand written notes from Mr. Ifergan and a list of prices [4] ; • The invoices issued by Quebec Inc. [5] and some invoices for material [6] ; • A plan made by Mr. Ifergan [7] and a copy of a work permit from the City of Montreal dated November 12, 2012. [ 16 ] The contract agreed upon between the parties is a contract for work.

Article 2106 of the Civil Code of Quebec applies to this contract: 2106. 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. [ 17 ] The evidence produced in Court has to be analysed according to articles 2803 and 2804 of the Civil Code of Quebec : 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 18 ] Mr. Ifergan and Quebec Inc. have to prove that they are entitled to the payment of the work described in the two invoices. Mr.

Wieder has to prove that the work was inadequate according to his agreement with Quebec Inc. [ 19 ] The Court was submitted some pictures of the house before and after the work. [ 20 ] It is obvious that work was done on the front balcony of the house. [ 21 ] According to Quebec Inc.’s invoice of August 22, 2013 [8] , the work done in the front of the house totals an amount of $15,837.80, including supervision fees of 10%, administration fees and taxes. [ 22 ] An estimate of the work to be done by Quebec Inc. in the front of the house was discussed during a meeting between Mr. Ifergan and Mr. Wieder.

A document drafted prior to this meeting and bearing annotation from the parties [9] evaluates the work to be done at $9,000.00, plus taxes. [ 23 ] On this quotation, there is no charge for supervision of the work ($1,800.00) or administration costs ($1,225.00). In fact, the supervision and administration fees are written off. [ 24 ] The evidence shows that Quebec Inc. is entitled to be paid the sum of $9,000.00, for the work in front of the house since this was the agreement between the parties. This amount of $9,000.00 plus the taxes (GST and QST) totals $10,347.75.

From this last amount, the sum of $5,000.00 paid by Mr. Wieder must be deducted leaving a balance of $5, 347.75 which Quebec Inc. can claim. [ 25 ] Mr. Wieder says that he is unhappy with the work done. He has the burden to prove that the work was deficient and that his requirements were not fulfilled. [ 26 ] Mr. Wieder’s allegations are not supported by documentation or written complaint and are contradicted by Mr. Ifergan’s testimony. Mr. Wieder has not discharged his burden to prove that the work done in front of the house was not satisfactory.

Therefore, Quebec Inc. is entitled to the payment of $5,347.75 for the work described on the invoice of August 22, 2013. [ 27 ] As for the work described on Quebec Inc.’s second invoice dated November 18, 2013, the proof shows that some work was done in the back yard of the residence. However, it is difficult to establish what was done and at what cost. [ 28 ] On this second invoice, the following items have been proven or are not contested: 1. Supply labor to dig window well. Supply and install corrugated metal around window well. Install caulking around plywood panel. $160 2. Dig walkway 4 feet by 25 feet.

Supply and install crushed stone base for new pavers 2 men 6 hrs. $480 3. Carry away excess earth truck and dump fees. This item has not been proven or is not supported by invoices for the fees claimed. ___ 4. Supply and install 18 X 18 concrete new pavers for new walkway 4ft wide by 25 feet long. $980 5. Supply labour and materials to build new treated wood stairs to balcony with railing. $220 6. Supply and install 3 inch concrete curb on each side of walkway. This item has not been proven or is not supported by invoices for the fees claimed. ___ 7. Supply labour and materials to build new fence and gate.

This item has not been proven or is not supported by invoices for the fees claimed. ___

8. Supply labor and lumber to change swing of gate as per clients instructions. $180 9. Supply and install new metal door with lock on shed. $200 [10] 10. Stairs and shed. Install 3 new steps. Install crushed stone and concrete pavers. $250 11. Install plywood against earth in shed. Install wood door to basement with lock. This item has not been proven or is not supported by invoices for the fees claimed. ___ 12. Dig back yard 10 inches as per clients instructions. Remove earth. Supply and install new crushed stone on back yard approx. 17ft by 22ft.

Hire machinery to install, spread crushed stone and slope to lane. This item has not been proven or is not supported by invoices for the fees claimed for more than $500. $500 13. Supervision two weeks. ___ 14. Miscellaneous work done as per clients instruction value of $800 at no charge (Client kept changing his mind). ___ 15. Supply labour and materials to do cement parging on north wall. This item has not been proven or is not supported by invoices for the fees claimed. ___ TOTAL: $2,970.00 (plus GST-QST) for a total of $3,414.76 [ 29 ] Mr.

Wieder claims that Quebec Inc. is responsible for the water leakage in his basement. Mr. Ifergan says that work to correct water drainage in Mr. Wieder’s basement was not part of his mandate. It is Mr. Wieder’s burden to prove an agreement concerning the work in the basement and the terms of this mandate. However, he has not proven that Quebec Inc. had such a mandate, nor that work in the basement had been done and at what cost. [ 30 ] Finally, Mr.

Wieder asked an expert to inspect the premises and the work done by Quebec Inc. in the back yard of his residence. [ 31 ] Stéphane Legault, engineer, produced the report and testified in Court. His opinion on the quality of the work done by Quebec Inc. is the following. 2.

Opinion As disclosed by the owner, the contractor scope of work shows: • Deficient backyard sloping water drainage effects; • Deficient wooden door anchorage system from its supporting post; • Deficient hinges connection of the basement entry door; • Deficient down stairs case from the above mentioned door that turns out to be a severe security hazard. [ 32 ] Stéphane Legault’s conclusion with regard to this work is that it should be corrected or redone. However, he did not evaluate the costs of correcting these deficiencies.

Using its discretion, the Court will reduce by 50% the amounts due under the second invoice, dated November 18, 2013, relating to these works ($3,414.76 divided by 2 = $1,707.38). A total amount of $1,707.38, including taxes, is due. [ 33 ] After a detailed analysis of the proof, the Court concludes that Mr.

Wieder owes $7,055.13 to Quebec Inc., detailed as follows: • For work relating to the first invoice of August 22, 2013 - $5,347.75 • For work relating to the second invoice of November 18, 2013 - $1,707.38 Total (including taxes): $7,055.13 FOR THESE REASONS, THE COURT: GRANTS the claim of Plaintiff 9221-7835 Quebec Inc.; CONDEMNS Defendant Asher Wieder to pay to Plaintiff 9221-7835 Quebec Inc. the sum of $7,055.13 with interest at the legal rate of 5% and the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of the date of the demand letter dated February 20, 2015; ORDERS Plaintiff 9221-7835 Quebec Inc. to remit the appropriate taxes on this amount to Revenu Quebec and to the Canada Revenue Agency; THE WHOLE, with costs.

__________________________________ MARIE MICHELLE LAVIGNE, J.C.Q Me Laurent Sabbah Sabbah Mergui Attorneys for Plaintiff Me Philip E. Fine Attorney for Defendant Date of hearing: December 22, 2016