2016 QCCQ 1895, 2016 QCCQ 1895

Pilling c. Berriman 2016 QCCQ 1895 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-133353-120 DATE: January 4, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Wayne Pilling Plaintiff v.

Melanie berriman Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Wayne Pilling claims $682.38 from Melanie Berriman. This represents the balance due for construction work carried out in her home. [ 2 ] Ms. Berriman refuses to pay because she claims that the total amount charged is excessive and the work was not fully and correctly executed. By way of a cross-demand, she also claims damages of $2,129.62. FACTUAL CONTEXT [ 3 ] In December 2011, Ms. Berriman retained Mr.

Pilling to build and finish certain walls in the semi-finished basement of her home. This involved building framing for the walls and installing a vapour-barrier and drywall. Electrical work was also involved. [ 4 ] Mr. Pilling had carried out work for Ms. Berriman previously and she was familiar with his work. [ 5 ] Prior to beginning the work, Mr. Pilling met with Ms. Berriman and her husband, Mr. Robert Dipilla, to discuss costs. Mr. Pilling indicated that the work would take 3 to 5 days to complete and an amount of $1,800 was mentioned. Mr.

Pilling claims that this was not a fixed price for the work and that he was to be paid on an hourly basis for time spent and for the cost of materials, as had been the case with the previous work carried out for Ms. Berriman. [ 6 ] The work was carried out on December 22, 23, 26 and 27, 2011, when Mr. Pilling was instructed to stop work and leave because Mr. Dipilla intended to finish the installation of the drywall himself.

At this point, the framing for the walls, installation of the vapour-barrier and electrical work were essentially completed and the installation of the drywall had just started. [ 7 ] On January 18, 2012, Mr. Pilling issued an invoice of $1,882.38 for the work, which included labour, materials and applicable taxes [1] . The same day, he accepted the client’s request to pay by way of three instalments and $600 was immediately paid. A further $600 was paid on February 1, 2012. [ 8 ] On February 26, 2012, Mr. Dipilla asked Mr.

Pilling to waive payment of the balance of $682.38, claiming that the amount charged was excessive, as Mr. Pilling could have worked more quickly and efficiently and the work had not been executed correctly. Mr. Pilling refused. [ 9 ] On March 28, 2012, Mr. Pilling formally demanded payment of the amount due. [2] He did so again on April 27, 2012, [3] and filed his Application on May 1, 2012. [ 10 ] In her written contestation, Ms.

Berriman claims that the work was not fully or correctly executed and that the amount charged is twice the amount quoted. [ 11 ] By way of a cross-demand, she also claims damages to compensate for the costs and time needed to contest Mr. Pilling’s claim ($279.62), for food lost after a breaker was turned off by Mr. Pilling ($250), for the cost of corrective work needed ($600) and for mental pain and suffering ($1,000). ANALYSIS

a) Mr. Pilling’s claim [ 12 ] The contract between the parties (the “ Contract ”) is a verbal contract of enterprise governed by articles 2098 and following of the Civil Code of Québec (the “ C.C.Q. ”). Mr. Pilling undertook to carry out the work for an agreed price that Ms. Berriman undertook to

pay. [ 13 ] Contracts of enterprise are governed by certain particular rules. Notably, a client can terminate such a contract unilaterally at any time, at its own discretion, even if the work has been partially executed. [4] This is what Ms. Berriman did on December 27, 2011 when her husband, acting on her behalf, instructed Mr.

Pilling to stop the work and leave. [ 14 ] When a client unilaterally terminates a contract of enterprise, he or she must pay the contractor the value of the work executed up to the termination. [5] As a corollary, the contractor must reimburse to the client any advances made in excess of the value of the work. [6] [ 15 ] To determine the value of the work completed, the Court must take into account the quality of the work; the contractor is only entitled to be paid for work carried out in conformity with the contract and in accordance with usage and good practice. [7] [ 16 ] Thus, the value of proven deficiencies or faulty workmanship and the value of uncompleted work must be subtracted from the price that the contractor would have received if the work had been carried out fully and correctly. [8] [ 17 ] To succeed in his claim, Mr.

Pilling must therefore prove, on a balance of probabilities, [9] that the total amount charged to Ms. Berriman corresponds to the value of the work carried out up to the termination of the Contract, taking into account the agreed price and any proven deficiencies or uncompleted work. [ 18 ] Mr. Pilling provided the Court with a detailed and credible account of his discussions with Ms.

Berriman and her husband regarding the agreed price of the Contract and the execution of the work. [ 19 ] According to his testimony, it was agreed that he would be paid for labour on an hourly basis (at an hourly rate of $30) and for the cost of materials needed. He explained that the amount charged to Ms.

Berriman corresponds to the hours worked up to the termination on December 27, 2011 and to the cost of materials purchased for the work. [10] Consequently, he argues that no amount should be deducted for uncompleted work, nor for deficiencies or faulty workmanship, as none were raised at the time nor demonstrated before the Court. [ 20 ] Ms. Berriman has a different and somewhat contradictory position regarding the agreed price of the Contract. In her written contestation, she states that the total amount charged ($1,882.38) is twice what was allegedly quoted by Mr. Pilling at the outset.

At trial, however, she stated that the amount of $1,800 mentioned by Mr. Pilling was a fixed price for all of the work (including all labour and materials), while also admitting that an hourly wage was discussed. Mr. Dipilla’s testimony did not help to reconcile the contradictions in his wife’s position. [ 21 ] The Court prefers Mr. Pilling’s testimony to that of Ms. Berriman and Mr. Dipilla. [ 22 ] The Court is satisfied that the $1,800 mentioned by Mr. Pilling at the outset was not a fixed price nor a binding estimate, but rather a general evaluation of the potential cost of the work.

On a balance of probabilities, the Court concludes that Ms. Berriman undertook to pay Mr. Pilling’s labour on an hourly basis (at an hourly rate of $30) and to pay for all materials, which is precisely what Mr. Pilling has charged her for the work. [ 23 ] Ms. Berriman’s argument that she should not have to pay the full amount of $1,882.38 because the work was incomplete must therefore fail. The amount charged by Mr. Pilling is strictly limited to the work that was effectively carried out before the termination of the Contract. It does not include any uncompleted work. [ 24 ] Finally, Ms.

Berriman alleges faulty workmanship on the part of Mr. Pilling. Although this would, if proven, affect the amount due to him following the unilateral termination of the Contract, she has offered no evidence of this faulty workmanship other than her general statement and her argument must fail. [ 25 ] Ms. Berriman must therefore pay the balance of $682.38 due pursuant to the Contract.

b) Ms. Berriman’s cross-demand [ 26 ] In addition to her grounds of defense, Ms. Berriman claims compensation for the costs and time spent contesting Mr. Pilling’s claim ($279.62), for food lost after a breaker was turned off by Mr. Pilling ($250), for the cost of corrective work needed ($600) and for mental pain and suffering ($1,000). [ 27 ] Her claim in this regard must also fail because she has not met her burden of proof. [ 28 ] She has offered no conclusive evidence of a fault on the part of Mr. Pilling or of any prejudice suffered as a result of Mr.

Pilling’s work. [ 29 ] Although she claims that a breaker was turned off during the work and that this resulted in the loss of food in a freezer, she provided no evidence of the nature of the food allegedly lost or of its costs. She has provided no evidence of the need or cost of the alleged corrective work and her claim for mental pain and suffering is completely unsubstantiated, as is her claim for the costs and time spent contesting the action. [ 30 ] Ms. Berriman’s cross-demand must therefore be dismissed.

FOR THESE REASONS, THE COURT: GRANTS the principal action; CONDEMNS Defendant Melanie Berriman to pay to Plaintiff Wayne Pilling the amount of $682.38, together with interest at the legal

rate and the additional indemnity provided for in

article 1619 of the Civil Code of Québec from April 8, 2012; WITH COSTS of $71.75 representing the judicial stamp on the Application. DISMISSES the cross-demand; WITHOUT COSTS because no costs were incurred by Plaintiff as a result of the cross-demand. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: August 21, 2015