2021 QCCQ 9837, 2021 QCCQ 9837

LCA Rentals c. Dedam 2021 QCCQ 9837 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BONAVENTURE TOWN OF NEW CARLISLE « Civil Division » N o : 145-32-700103-217 DATE : September 17, 2021 ______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.C.Q. ______________________________________________________________________ LCA RENTALS Applicant vs.

CONSTANCE DEDAM Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Applicant LCA rental (“LCA”) claims $2,703.75 from the defendant Constance Dedam (“Mrs. Dedam”) for work done in 2020, plus interest. Still unpaid to this date. Mister Llyod Alcon is acting as a representative for LCA. [ 2 ] The claim is detailed as follows: • Excavator equipment: $1,600.00; • Removal of asphalt, dirt and grade: $ 975.00; • Interest: $ 128.75. [ 3 ] In defence, Mrs.

Dedam alleges that some of the work agreed on their verbal agreement was not totally done and some she did not request. CONTEXT [ 4 ] In October 2020, Mrs. Dedam retains the services of LCA to perform some excavation work regarding a new building under construction she owns. [ 5 ] The services are provided between October 30, 2020, and November 3, 2020. [ 6 ] The excavation work done by LCA consists of the removal of the blacktop asphalt-cut, removal of the asphalt around the building, removal of dirt and grades.

Some heavy machine equipment was necessary in order to execute this work. [ 7 ] On October 30, 2020, LCA sends to Mrs. Dedam an invoice in the amount of $2,703.75 including interest of $128.75. This invoice includes an amount of $1,600.00 for the equipment and $975.00 for labour. [ 8 ] To date, no sum has been paid by Mrs. Dedam to settle LCA's invoice. ANALYSIS AND DECISION [ 9 ] The evidence produced in court must be analyzed 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. [ 10 ] In civil law, the burden of proof lies on the applicant’s shoulders in accordance with the principle provided in

article of the Civil Code of Quebec, by a preponderanceof evidence that the claim is justified. • Invoice [11] Mrs. Dedam points out that the rate for the LCA work was $80.00 per hour. According to her, there was never any question ofthe cost of the machinery. She was also present during a good part of the work carried out. She added that LCA representative Mr. Alcondid not go to work on some of the days he mentioned in his testimony. She admits that she owes him $800.00, no more.

She does not sayanything about the quality of the work done, which suggests that it was adequate. [12] For its part, LCA exhibits images in the courtroom, showing that it is carrying out work on Mrs. Dedam's property on the daysindicated. Work performed requiring specialized equipment and not just a simple shovel. In addition, he reduced his hourly rate to$65.00 per hour from the agreed $80.00. He said he had done 15 hours of work, which Mrs. Dedam partially recognized.

He explains indetail the work done on the latter’s property and the equipment used to do it. [13] Considering the documentary and the testimonial evidence adduced, the Court concludes that LCA has established throughpreponderant evidence that her claim is well-founded, regarding the services provided to Mrs. Dedam. • Interests [14] Now, can LCA claim an interest rate of 5% per month? [15] In the Interest Act[1], sections 2 and 3 indicate the following: 2.

Except as otherwise provided by this Act or any other Act of Parliament, any person may stipulate for, allow and exact, on anycontract or agreement whatever, any rate of interest or discount that is agreed on. 3. Whenever any interest is payable by the agreement of parties or by law, and no rate is fixed by the agreement or by law, the rate ofinterest shall be five per cent per annum. [16] In the case of Remax des Milles Îles inc. vs. Lise Tobin, our colleague Justice Jean-Pierre Archambault deals with the questionof interest in light of the Interest Act[2], as mentioned above: “50.

En ce qui concerne, la réclamation de la demanderesse pour intérêts et frais de retard, le Tribunal rappelle qu’en vertu desarticles 2 et 3 de la

Loi sur l’intérêt (L.R. 1985, CH.1-15), une personne peut stipuler le taux d’intérêt convenu dans tout contrat ouconvention. 51. Un tel contrat ou convention doit donc obligatoirement être signé par les deux parties, à défaut de quoi, c’est l’intérêt au taux légalde 5 %, l’an qui s’applique; 52. De plus, l’article 4 de la

Loi sur l’intérêt précise que le taux d’intérêt stipulé doit être payable à un pourcentage annuel, à défaut dequoi, c’est l’intérêt au taux légal de 5 % qui s’applique.” [Our emphasis] [17] In the present case Mrs. Dedam did not sign any document committing her to pay the interest rate indicated on the invoice. As aresult, LCA is only entitled to the legal rate provided by law, 5% per year. FOR THESE REASONS, THE COURT: [18] GRANTS partially the application; [19] CONDEMNS the defendant Constance Dedam to pay to the applicant LCA Rentals $2,575.00 plus interest at the legal rate of5% per year and the additional indemnity provided for by

article 1619 of the Civil Code of Québec, as of the date of the proceedings(claim) dated February 22, 2021; [20] THE WHOLE, with legal costs of $158.00. __________________________________ CELESTINA ALMEIDA, J.C.Q. Date of hearing: June 15, 2021