2014 QCCQ 6537, 2014 QCCQ 6537

Mastrocola c. Guaiani 2014 QCCQ 6537 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-131520-118 DATE: May 29, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON J.C.Q. ______________________________________________________________________ MARC MASTROCOLA […] Pierrefonds, Qc, […] Plaintiff v.

FRANK GUAIANI […] Saint-Lazare, Qc, […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff Marc Mastrocola sues Defendant Frank Guaiani for a contractual balance on a service agreement dated July 9, 2001 for the painting of Mr Guaiani’s new home. The total contract price, taxes included, was $17,160.90. [ 2 ] Mr Guainani made partial payments totalling $7,300.00 leaving a balance of $9,860.90. Because the work was not terminated, however, Mr.

Mastrocola only claimed $8,700.00, a claim which he now reduces to $7,000.00, the monetary limit of the Small Claims Division. [ 3 ] Mr Mastrocola admits that the work was not completed and alleges that the amount of his claim represents a quantum meruit , that is to say, the value of the work completed to date. [ 4 ] Mr Guaiani refused to pay the amount claimed alleging in his written contestation that the work was not completed, that it took too long to finish and that he is not satisfied because the work was done improperly, with too many mistakes. [ 5 ] The defence, therefore, that the Plaintiff’s obligation has not been performed adequately and completely.

Issues [ 6 ] The Court must resolve the following questions: 1. Has Mr Mastrocola fulfilled his burden of proving that the work was substantially complete and of a quality such that the amount claimed as the value of the work completed to date has been established? 2. If not, is there some amount less than $7,000.00 owing? Facts [ 7 ] Marc Mastrocola operates his business to perform painting contracts including domestic contracts such as this one in the client’s home.

He is not licensed as a builder under the Quebec Law as administered by the Régie du Bâtiment du Québec nor is he a recognized tradesman. [ 8 ] He does however have experience painting and carries out business in a way that he describes as a "franchise" with a company called Scholars at your service Inc. domiciled in Ontario. He uses the name "Scholars at your service" as his business designation. [ 9 ] Ms Sheri Chiprout testified that her employer, Scholars at your service Inc., which she describes as the "head office" provides a

management service to independent franchisees such as Mr Mastrocola. The head office acts as the provider of materials and administrative services such as billing. Regional managers provide assistance, though she admitted that there is no one on site or aware of the project that has any recognized qualifications in the field of painting. [ 10 ] She provided the Court with a copy of the “Licence d’entrepreneur” no 5593-7411-01 issued in 2009 to Scholars at your service Inc.

The category of which the licence was issued are as follows: 4.2 Travaux de maçonnerie non structurale marbre et céramique 6.2 Travaux de bois et plastique 8 Portes et fenêtres 9 Travaux de finition [ 11 ] Presumably painting would fall under the category “ Travaux de finition ”. [ 12 ] Despite holding this licence, however, Scholars at your service Inc. does not perform painting work.

It merely administers the work done by unlicensed and un-qualified workers through a relationship described as a "franchise". [ 13 ] Mr Mastrocola entered into his contract with Mr Guaiani on July 9, 2011, the day on which the work began. The work is described in terms of the number of coats and the type of paint, and certain other specifics.

Notably, under "project notes" one reads "professional electric sanding equipment, top quality trained student technicians, vacuum daily and daily progress reports satisfaction guaranteed". [ 14 ] Below, several items are ticked off namely, " 3 year painter labour warranty (painting), 3 year calking and ceiling warranty (windows), customer satisfaction guaranteed (all projects )". The payments terms are left in blank but the evidence reveals that a deposit of $3,300.00 was given and a progress payment of $4,000.00 paid in mid-August.

There was also a payment of $5,000.00 that had been made to him by cheque dated October 18, 2011, that was returned NSF. [ 15 ] When the work began, the interior finishing of the house was not complete and another contractor, Mr François Lehoux, was present completing drywall and other finishing work. [ 16 ] Mr Mastrocola testifies that his work was 85% complete when he stopped the work. [ 17 ] The contract contains no written stipulation as to the timetable. Mr Mastrocola testifies that he estimated 30 days from July 9 for the completion of the work. In fact, he worked until October 9.

His reasons for stopping the work are mixed. [ 18 ] On the one hand, because of the beginning of the school year, his workers and he were expected to go back to school. There was also the conflict about payment. [ 19 ] The Letter of Demand dated November 1, 2011, states that work was completed on October 13, 2011. Payment on the cheque for $5,000.00 failed when the cheque was returned NSF on October 20, 2011. [ 20 ] Mr Guaiani, for his part, states that he was unsatisfied with the work in August and brought this to Mr Mastrocola’s attention.

He testifies that Mr Mastrocola asked to be allowed to complete the work and reminded him that the work was guaranteed. [ 21 ] He testifies that he gave the cheque dated October 18, 2011, two months prior to that date, on the basis that Mr Mastrocola would return to complete certain corrections to the work. When the work came to an end, he decided to withdraw funds from the account so that the cheque would not be honoured.

He spoke to the "head office" to express his dissatisfaction. [ 22 ] Mr Guiaiani's criticism of the work, which he believes was incorrectly performed from the very beginning, can be summarised as a failure to wash the walls before painting them resulting in “des picos”, a failure to properly sand before putting on finished coats and lines on the ceiling because of the failure to follow up with a roller after the paint was sprayed with the gun. [ 23 ] Mr Guiaiani also presented a detailed photographic study consisting in 62 shots taken by a professional photographer (D-1), Photos #1 to #53 were commented upon throughout his testimony. [ 24 ] In answer to this testimony, Mr Mastrocola stated that his contract does provide for the obligation to do touch-ups which he would have done if payment had not been suspended. [ 25 ] His defence also points to the presence of Mr Lehoux who he says damaged the work after it was done resulting in a need for many touch-ups.

He also asserts that he redid any work that was requested of him on a day-to-day basis, and he states that the work was accepted in stages as they were completed. [ 26 ] These assertions are not supported however in any documentation and no document was submitted to the Defendant for signature as the work proceeded. [ 27 ] Mr Lehoux testified effectively to refute the testimony of Mr Matrocola that he had damaged the work or interfered with its execution. His criticism of the work was similar to that explained by Mr Guaiani's version of the events.

Analysis [ 28 ] Actions for non-payment based on a contract of service are usually considered to be actions on account.

[ 29 ] When a qualified and presumably diligent provider of services states to the Court in its proceedings that it has executed the contract, has issued an account and the amount remains unpaid, it is a simple matter for the claimant to identify the exhibits and support them with sworn testimony from a person aware of the works completed, the pricing and the billing process.

When this is done, a very strong presumption is in play that the Plaintiff is entitled to payment. [ 30 ] In such cases, though technically the burden of proof is still with the Plaintiff, the tactical burden shifts to the Defendant who has a full opportunity to demonstrate that the work is either incomplete or of poor quality in order to avoid a condemnation for payment. [ 31 ] In the present case however, the normal process is turned on its head because the Court is presented with a Plaintiff whose qualifications can not be demonstrated by compliance with the regulatory requirements put in place for the construction industry in the Province of Quebec.

Neither the Plaintiff nor any of his workers were shown to have any credentials as tradesmen, so there could be no presumption of their competency. [ 32 ] They were subject to no supervision by the would-be franchisor under whose banner they operate. They have no relationship of employment with the franchisor and there was no one acting for the franchisor to supervise their work. [ 33 ] The franchisor has a licence to carry out building works in the Province of Quebec, but, in this case at least, it did nothing to exercise its rights and responsibilities under that licence.

It simply provided materials and administrative support to its franchisee who did not have a licence. [ 34 ] For Scholars at your service Inc. to obtain such a licence, it must have had persons with recognised qualifications connected to it, but that would not be enough.

The people who actually carry out the work should have qualifications themselves or be working directly under authority of persons who do have qualifications as permitted by the regulations, otherwise the purpose for which the construction licence is required is thwarted. [ 35 ] The Court therefore could not credit any probative value to the testimony of Mr Mastrocola as to the quality of the workmanship and value of the work actually completed. [ 36 ] The photographic record is quite eloquent, especially when supplemented with the testimony of Mr Guaiani.

The quality of the work is visibly quite poor in several respects. The surfaces are rough, sometimes wavy, often unfinished. The edges are poorly done; the texture of the painting is uneven; some surfaces are spotted; edges between the wall and mouldings overlap. In some cases the mouldings are marked with paint from the walls. Ceilings are very uneven, some walls are pock-marked with lines. [ 37 ] In general, the work is not of acceptable quality even to the untrained eye.

Despite the absence of an expert witness to point out how and why the painters failed, it is obvious that they did fail in producing work of reasonably quality in its appearance. [ 38 ] Painting is essentially an aesthetic aspect of the finishing of the interior of a residence. While it may be wrong to expect perfection, the painted surfaces should look normal to a casual observer and in this case, the pictures taken throughout the house show numerous examples of abnormal appearance. [ 39 ] A contract of construction is a contract of enterprise and carries with it an obligation of result.

The fact that Mr Mastrocola and his workers did work in the house for several months does not necessarily establish that they performed the work according to the rules of art and applicable standards. Because in this case, there is no presumption that their work was correct and the testimonial and photographic evidence indicate the contrary, the Court concludes that the Plaintiff did not fulfill his burden of proving that work of value was carried out under the contract. [ 40 ] The Defendant did not make a cross-demand.

Therefore, the Court’s decision will be limited to dismissing the claim for the monetary balance claimed by the Plaintiff. The Defendant’s answer to the effect that he would have carried out corrections and touch- ups if the Plaintiff had not suspended payment, would have been a valid answer if the touch-ups required were minor and could be carried out quickly without a major mobilisation of workers. [ 41 ] In this case however, the insufficiency of the work cannot be considered to be minor deficiencies nor could it be put under the heading of warranty work.

The work is, fundamentally, of unacceptably poor quality. [ 42 ] The fact that no one who worked on the job can be demonstrated to have had the proper credentials as a tradesman is itself a difficult obstacle for the Plaintiff to overcome in fulfilling his burden of proof. [ 43 ] It could also be said that bringing unqualified persons to do serious construction work that should normally be done by skilled tradesmen is itself a breach of contract. In this case, the result speaks for itself.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s action; CONDEMNS the Plaintiff to pay the Defendant’s judicial disbursements of $152.00. __________________________________ DAVID L. CAMERON J.C.Q . Date of hearing: February 3, 2014