2017 QCCQ 3286, 2017 QCCQ 3286

3038203 Canada inc. c. Garage Auto Shaltas inc. 2017 QCCQ 3286 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-145938-157 DATE: April 10, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ 3038203 CANADA INC. Plaintiff/cross-defendant v. GARAGE AUTO SHALTAS INC.

Defendant/cross-plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant, on account, for services rendered. [ 2 ] The Court heard several witnesses (Salim Velji, Nick Martoccia, Patrick Gattermann, Feroze Mohamed, Mario Brouillard, Mustapha Nabih), and examined exhibits P-1 to P -5 and D-1 to D-18. [ 3 ] Plaintiff is a general contractor. [ 4 ] Defendant retained plaintiff’s services, in the month of September, 2013, to “frame wall in wood to install metal siding and all flashing around roof flashing–windows and bottom brick wall – all material and sky jack supplied by client” (contract, exhibit P-1). [ 5 ] The price of the work was fixed by the contract at $12,000.00 plus the applicable taxes. [ 6 ] Plaintiff worked on the site for 3 to 4 weeks. [ 7 ] On October 4, 2013, defendant’s representative, Mohamed, who was on the site regularly, remitted plaintiff’s representative, Velji, a cheque in the amount of $4,000.00, on account, for its services (exhibit P-2). [ 8 ] Subsequently thereto, defendant stopped payment on the cheque and unilaterally resiliated the contract while the work was in progress, citing dissatisfaction with the work. [ 9 ] Accordingly, on November 15, 2013, plaintiff issued invoice no. 96 (exhibit P-3), in the amount of $6,500.00 plus the applicable taxes, for a grand total of $7,473.38, which defendant refused to pay. [ 10 ] Plaintiff sent defendant a demand letter, on February 22, 2014, claiming an amount of $7,473.38 plus interest at the contractual annual rate of 24%, for a grand total of $10,381.54 (exhibit P-4). [ 11 ] On June 14, 2014, defendant sent plaintiff a demand letter of its own, alleging that plaintiff’s work was poorly executed, and claiming $25,126.00 for damages allegedly incurred as a result thereof. [ 12 ] On February 18, 2015, plaintiff instituted its recourse against defendant for $10,381.54 plus interest at an annual contractual rate of 24%. [ 13 ] On March 30, 2015, defendant filed a counter-claim for $15,000.00. [ 14 ] At trial, Velji admitted that the work executed contained certain imperfections, which plaintiff would have gladly corrected had it been informed thereof and had it been given the chance to do so. [ 15 ] Velji added that defendant has a history of hiring and firing contractors and not paying them. [ 16 ] After resiliating plaintiff’s contract, defendant hired Construction Martoccia Inc. (contract, exhibit D-9), in or around the month of October 2013, and then resiliated its contract on November 25, 2013.

[ 17 ] Martoccia, of Construction Martoccia Inc., testified in a credible fashion.

He, too, stated that defendant has a history of hiring, firing, and then not paying its contractors, and declared that defendant was a demanding and difficult client. [ 18 ] Martoccia is presently involved in litigation with defendant in a similar matter. [ 19 ] Be that as it may, defendant presented 3 witnesses to testify on the alleged deficiencies of plaintiff’s work. [ 20 ] Roofing contractor, Patrick Gattermann, stated that the “side work” contained some wood that was “not properly fastened or framed”, but was unable to identify who, in fact, did the work. [ 21 ] Defendant retained the services of Mario Brouillard, of “Mario B.

Aluminium”, on January 6, 2014 (contract, exhibit D-4). [ 22 ] Brouillard worked on the exterior of the building, and stated that he noticed “plusieurs imperfections au niveau des alignements et de la solidité”; but he, too, was unable to identify who was responsible for the alleged imperfections. [ 23 ] Technician Nabih inspected the building, on November 14, 2013 (report, exhibit D-16).

While testifying on the deficiencies which he observed on the “parement extérieur […] en cours”, he clearly stated to the Court that he did not know who was to blame for the deficiencies, as several contractors had worked on the building over a period of time (“Je ne sais pas qui blâmer.

Il y a eu plusieurs étapes avec plusieurs entrepreneurs.”). [ 24 ] In the end, by hiring and firing (and sometimes suing) a series of contractors in succession, defendant has become unable to prove the deficiencies which he is alleging, according to a preponderance of evidence. [ 25 ] Plaintiff, on the other hand, proved that it executed the work described in invoice P-3. [ 26 ] However, plaintiff also admitted being responsible for certain deficiencies, which it was not given the opportunity to correct. [ 27 ]

Article 2129 of the Civil Code of Quebec states: 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. [ 28 ] The Court shall use its judicial discretion to determine the value of the work performed, as there is no evidence in this regard in the record. [ 29 ] With a view to adjust and lower the amount of plaintiff’s claim to reflect the deficiencies which it admitted to, the Court shall not grant the interest claimed at the conventional annual rate of 24%, nor the additional indemnity provided for in

article 1619 C.C.Q . [ 30 ] With regards to the cross-demand, it is without basis, for both the foregoing and the following reasons. [ 31 ] The Court wishes to underline that the deposit of $5,000.00 referenced in demand letter D-1 and claimed in the cross-demand, was for another contract and another building located at 190 Victoria, in Lachine (exhibit D-3), and is not relevant to the present matter. [ 32 ] With respect to the alleged infractions imposed by the City of Montreal, they are attributable to the defendant, not the plaintiff. [ 33 ] Furthermore, Nabi-Tek’s representative Nabih stated that its fees were $500.00, not $2,500.00, as falsely stated in the cross- demand. [ 34 ] With regards to the cost of the “Skyjack” rental claimed in the cross-demand, not only did plaintiff use the equipment, but the amount of the invoice was $2,000.00, not $2,500.00 as alleged (exhibit D-17). [ 35 ] Lastly, defendant had no invoices to support items 3 and 4 of its demand letter and cross-demand, namely the alleged expenses of $400.00 for gas and $4,500.00 for “materials purchased and wasted”.

WHEREFORE THE COURT HEREBY: GRANTS plaintiff's application in part; SENTENCES defendant to pay plaintiff the sum of $7,473.88, with interest at the annual legal rate of 5%, the whole from February 22, 2014, and court fees in the amount of $250.00; DISMISSES defendant’s cross-demand. __________________________________ ELIANA MARENGO, J.C.Q.

Dates of hearings: February 8, 2016 and February 28, 2017