2012 QCCQ 3060, 2012 QCCQ 3060

Zafiris c. Dafniotis 2012 QCCQ 3060 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-123775-100 DATE: March 28, 2012 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ SPIROS ZAFIRIS Plaintiff v.

EVANGELIA DAFNIOTIS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims $1,950 representing the work done at defendant's building. [ 2 ] The Defendant refuses to pay the Plaintiff on the grounds that the work was poorly done and Plaintiff has already been paid. By her Cross-claim, the Defendant claims from the Plaintiff $4 979,14 representing the amount paid to another worker to repair the work done by the Plaintiff.

THE FACTS [ 3 ] The Plaintiff was hired by Defendant's husband John Rigopoulos to complete the work started by two other workmen in two of the apartments of Defendant's building. The work consisted mainly in repairs to the gyproc and painting. [ 4 ] On his agenda [1] , the plaintiff scribbles down the list of work that had to be performed for a total amount of $9,000.

John Rigopoulos said they agreed on a price $7,500. [ 5 ] After having started the work, the Plaintiff notices that water was seeping through the basement. [ 6 ] Plaintiff says he spoke to the Defendant who asked him to rip up the floor to replace it. The Plaintiff claims $1,950 for this work. [ 7 ] John Rigopoulos denies this, saying that the Plaintiff only dealt with him and not with the Defendant, and that no instructions were ever given to him to rip up the floor.

On the contrary, Plaintiff was supposed to take out approximately one feet of boards to locate where the water was coming from. [ 8 ] John Rigopoulos had to retain the services of another workman to install a new floor. The Defendant submits a series of invoices [2] totalling the amount of the Cross-claim of $4 979,14.

THE ANALYSIS [ 9 ] The Plaintiff made different scribbles in his agenda [3] and appears to have been paid in cash without providing any receipt. [ 10 ] Being unable to provide the contract, or receipts, or invoices, the Plaintiff is unable to prove that work has been done or the value of that work, in the case where his co contractor denies owing any money to the Plaintiff. [ 11 ]

Article 2803 C.c.Q. stipulates: 2803. A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. [ 12 ] The Plaintiff did not convince the Court that work was performed and the value of that work. [ 13 ] As for the Defendant's Cross-claim, prior to retaining the services of another workman, the Defendant had the obligation to inform the Plaintiff in writing that his work was unsatisfactory and that he had the obligation to repair this work, failing which, the

Defendant would retain someone else to complete the work and claim this amount from the Plaintiff. The Defendant neglected to send this demand letter prior to retaining the services of another workman. The Defendant cannot succeed in her Cross-claim. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff's Action; DISMISSES Defendant's Cross-claim; WITHOUT cost. __________________________________ DIANE QUENNEVILLE, J.C.Q. Date of hearing: February 10, 2012