2010 QCCQ 11783, 2010 QCCQ 11783

Proulx c. Levesque-Bruvels 2010 QCCQ 11783 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF HULL TOWN OF GATINEAU Civil Division No: 550-32-016879-089 DATE: December 30 th , 2010 ______________________________________________________________________ BY THE HONOURABLE GATIEN FOURNIER, Q.C.J. ______________________________________________________________________ KEVIN PROULX, […], Gatineau, (Quebec) […] Plaintiff v.

DENISE LEVESQUE-BRUVELS, […], Ottawa, (Ontario) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Introduction [ 1 ] The Plaintiff claims from the Defendant an amount of $3,134.75 for construction services rendered that were allegedly unpaid. That amount allegedly owed is primarily for the construction of the Defendant's deck. [ 2 ] The Defendant states that the construction services were not properly rendered and that they are not in compliance with the building code.

The Defendant affirms that she does not owed the amount claimed by the Plaintiff. [ 3 ] The Defendant also claims from the Plaintiff an amount of $2,500.00 for various damages allegedly caused by the Plaintiff. Relevant facts Demand by the Plaintiff [ 4 ] On or about May 24, 2008 an agreement was reached between the Plaintiff and the Defendant for the construction of her deck. The agreement was for the resurface of the existent deck for an amount of $1,500.00.

The material was not included in that amount and it had to be provided by the Defendant. [ 5 ] On June 8, 2008 the Plaintiff and the Defendant went to Rona store in Gatineau to purchase the wood required to do the work. Once the purchase of the material was completed, the Defendant left the store leaving the Plaintiff with all the material. The Plaintiff had to borrow a truck from his father-in-law to carry the material. [ 6 ] The Plaintiff testifies that after the first day of work the Defendant was pleased with the services rendered.

She then asked him to build a platform on the ground, which would constitute an extension of the existent deck. [ 7 ] The Plaintiff states that the agreement with the Defendant was to the effect that she would pay for his services half of what would be paid to a contractor. The price was to be based on estimates obtained from contractors. It should be noted that it was understood between the parties that the Plaintiff was not a recognized contractor. However he had some experience since he had work for a builder in the past. [ 8 ] The Plaintiff filed numerous pictures (P-1) showing the services rendered.

The Plaintiff indicates that it took him about 100 hours to resurface the existent deck and to build the new platform on the ground. [ 9 ] The Plaintiff affirms that he has not been totally paid for the services rendered. He claims from the Defendant the following amounts: - $50.26 for rain gutters that were installed by the Plaintiff (P-2). The Defendant agreed in the course of the hearing that this amount is payable to the Plaintiff;

- $30 for the gas paid for the truck borrowed from his father-in-law on June 3 rd , 2008; - $89.51 for the disposal costs of construction debris on June 4 th , 2008 and June 18 th , 2008 (P-2); - $181.48 for the purchase on June 16 th , 2008 of additional construction material required for the work (P-2); - $1,500.00 to resurface the existent deck; and - $1,283.50 to build the new platform on the ground (approximately 14'x14') [ 10 ] The Defendant indicates that no evidence was provided by the Plaintiff to show that he effectively paid $30.00 for the gas for the truck borrowed from his father-in-law.

She also indicates that she gave the Plaintiff $100.00 for cash flow. This is admitted by the Plaintiff but he adds that the amount claimed was not covered by the advance of $100.00 made by the Defendant. The Plaintiff would have bought other material but he never confirmed the nature of such purchase. [ 11 ] She also questions the costs for the disposal of the construction debris. [ 12 ] With respect to the $181.48 for the purchase on June 16 th , 2008 of additional construction material required for the work, the Defendant affirms that she already paid for it.

She made a withdrawal (D-4) from her bank account in cash on that date in the amount of $200.00. That amount was remitted to the Plaintiff to reimburse him for that purchase. The Plaintiff denies that he was reimbursed. [ 13 ] Finally with respect to the work done on the deck and on the platform, the Defendant indicates that as per her own calculation the Plaintiff would not have spent more that 40 hours to do the work.

The work was completed on June 18 th , 2008. [ 14 ] On June 19 th , 2009, an invoice (D-2) from the Plaintiff was presented to the Defendant for the services rendered for a total amount of $1,550.00, which includes the rain gutters ($50.00). The Plaintiff indicates that this invoice does not include the work for the new 14' x 14' platform built on the ground. [ 15 ] The Defendant paid to the Plaintiff $600.00 by postal money order. The Defendant submits that the outstanding balance is not payable because the work was not properly done and it is not in compliance with the building code.

The defendant showed on the pictures some elements that could bring one to question the quality of the work done. However no expert or contractor came to testify at the hearing to enumerate the defects and to assess the value of the work necessary to correct these alleged defects. [ 16 ] The Defendant indicates that most of the defects were corrected by herself and relatives. However she was not able to quantify the amount spent to correct these defects. The Defendant also indicates that she sold the property afterward.

She made no mention that she had to reduce the price of her property because of the presence of defects on the deck Cross-demand by the Defendant [ 17 ] The Defendant claims $370.00 for materiel that was paid by her and that would have been returned to the lumber store by the Plaintiff. The Defendant filed 3 invoices from Lumber stores (D-6) which totalized $140.00. [ 18 ] The Defendant also claims $1,000.00 to $1,500.00 for the cost to repair the deck that was not properly done and not in compliance with the building code.

The Defendant had no evidence to provide to support that claim. [ 19 ] The Defendant claims $150.00 for alleged damages caused by the Plaintiff while working on the Defendant's deck. (D-7) [ 20 ] The Defendant claims $750.00 for three days off from work to resolve this matter quickly. The amount claimed is composed primarily of the time spent by the Defendant to defend her in the present action. No evidence of actual time spent and amounts associated with such time spent was presented by the defendant in the course of the hearing.

Reasons Demand by the Plaintiff [ 21 ] We are dealing here with the application of the rules of the contract of enterprise or for services. [ 22 ]

Section 2098 of the Civil code of Quebec states that: " A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay.

" [ 23 ] In the present matter, the Plaintiff submits that he has not been paid by the Defendant for the services rendered. [ 24 ] The evidence is to the effect that the Plaintiff only presented one invoice (D-2) for the work done on the Defendant's deck and platform. That invoice was presented on June 19 th , 2008 the day following the end of the work. The invoice D-2 was for a total amount of $1,550.00 including the rain gutters.

Despite the testimony of the Plaintiff to the effect that this invoice does not include the work done with respect to the platform on the ground, the invoice clearly includes the costs relating to the platform. Indeed, one of the items of the invoice is " Custom build bottom platform 13x12 for an amount of $250.00 ”.

[ 25 ] Thus, for the resurface of the existent deck and the construction of the bottom platform, the price for which the Plaintiff is entitled is $1,550.00 including the rain gutters. The Defendant only paid $600.00 for those services.

She did not provide any evidence that would support her position that construction defects were such that it would entitle her not to pay the outstanding balance of $950.00 or at least to reduce the price of the contract. [ 26 ] With respect to the other three items (gas; disposal of debris, purchase of additional material) claimed by the Plaintiff, the Tribunal concludes that those items are payable to the Plaintiff. They represent a total amount of $300.99. However, the Tribunal recognizes the advances made by the Defendant in the total amount of $300.00 for the payment of those items.

Consequently, nothing remains payable to the Plaintiff with respect to those items.

Cross-demand by the Defendant [ 27 ] The Tribunal will only allow $140.00 for the items purchased by the Defendant that were returned by the Plaintiff to the lumber store. [ 28 ] With respect to the costs for the repair of the deck and the platform, the Defendant admitted that she had no evidence to provide to justify her claim in the amount of $1,000.00 to $1,500.00. [ 29 ] With respect to the alleged damages in the amount of $150.00 caused by the Plaintiff while working on the Defendant's property, the Defendant did not prove, on a balance of probability, that she is entitled to such an amount. [ 30 ] Finally, the Defendant is not entitled to damages for the three days off from work.

The Defendant indicated that this claim in the amount of $750.00 is primarily associated with the preparation of her contestation and for the attendance at the hearing of the present application. The circumstances of the present matter do not allow the Defendant to claim such damages. Furthermore no evidence was adduced by the Defendant to establish the amount of damages claimed.

FOR THOSE REASONS, THE COURT: GRANTS , the application of the Plaintiff for an amount of $950.00; GRANTS , the cross-demand of the Defendant for an amount of $140.00; CONDEMNS the Defendant to pay to the Plaintiff the amount of $810.00 with interest at the legal rate of 5% plus the additional indemnity prescribed under

section 1619 of the Quebec Civil Code as of July 4 th , 2008. THE WHOLE , without costs. __________________________________ Gatien Fournier, Q.C.J. Date of hearing: November 22 nd , 2010