2018 QCCQ 4702, 2018 QCCQ 4702

Saklatvala c. Callocchia 2018 QCCQ 4702 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-154607-164 DATE: May 29, 2018 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ JIMMY SAKLATVALA Plaintiff v. MASSIMO CALLOCCHIA AND LES COUVERTURES M.C.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants the sum of $6,123.00 representing the amount that he will allegedly have to pay to have the roof of his immovable property redone as a result of the alleged deficient work performed by Defendants. [ 2 ] In the demand filed by him before the Court, Plaintiff alleges the following : 1.

The Plaintiff is suing the Defendant for the following reasons: The plaintiff hired the defendant to do work on his roof (replacement of lifetime shingles, installment of a new ice shield (membrane), 15 pounds of felt on the balance of the roof and the replacement of the plywood sheets). Following the completion of the job, the plaintiff was dissatisfied with the installations and wants to be compensated what it will cost him to redo the roof. 2. The facts occurred on or around October 21, 2015, at Montreal (Quebec). 3. The amount of the claim is $6,123.00. 4.

The total amount claimed by the Plaintiff is broken down as follows: ($6100.00) to redo the roof in accordance to the estimations done. ($11.50) for first registered letter sent; ($11.50) for second registered letter that will be sent out with the amount the plaintiff is claiming. 5.

The Plaintiff makes the following clarifications to the facts set out above: Moreover, the plaintiff had two separate professional roofers inspect the roof in which both stated that the underlayment material used was of very cheap quality and the ice shield not correctly installed which could cause humidity and condensation and result in future leakage. [ 3 ] Defendants contest Plaintiff’s demand.

In this regard, in the contestation filed by them into the Court record, they allege the following : “I haven’t received any (photo proof) of wrong doing due to the quality of membrane used or of it’s installation” [ 4 ] From the evidence adduced at trial, the Court retains, amongst other facts, the following. [ 5 ] Plaintiff is the owner of an immoveable property (a bungalow) situated in Dollard-des-Ormeaux.

As the roof of his property had to be redone, in September 2015, he contacted Defendant Callocchia and requested to be supplied with a quote. [ 6 ] After having examined the roof and after discussion with Plaintiff, Defendant Callocchia submitted a quote in the amount of $5,000.00 plus taxes (Exhibit P-1 A). [ 7 ] Pursuant to this quote, in substance, Defendants were to :

a) Remove and dispose of the old roofing material ;

b) Furnish and install the required shingles ;

c) Furnish and install a self-adhesive membrane along the eves at a width of nine feet ;

d) Replace up to 100 sq. ft. of the roof panels with panels of 5/8” plywood. [ 8 ] Subsequently, after further discussion, the parties agreed on a definitive contract the details of which are enunciated in invoice 282506 dated October 21, 2015 (Exhibit P-1

B) issued by Defendants. This invoice is in the amount of $5,000.00 plus taxes for a total of $5,748.75. [ 9 ] Moreover, according to the testimony of Defendant Callocchia, it was further agreed between the parties that the panels covering the roof would be replaced with 5/8” plywood panels in addition to some accessory material as described in invoice 282506 dated October 21, 2015 (Exhibit D-1) in the amount of $5,000.00 plus taxes. [ 10 ] The evidence has revealed that Defendant paid in full invoice 282506 with a cheque in the amount of $5,748.75.

As for invoice no. 282505, Plaintiff paid it by remitting $5,000.00 in cash to Defendant Callocchia. [ 11 ] According to the evidence, the contract was executed by Defendant Callocchia and his employees between October 13, 2015 and October 23, 2015. [ 12 ] Testifying at the hearing, Plaintiff declared that he was present at his property when the work was performed.

No work supervisor acting on his behalf was present on the site during the execution of the contract. [ 13 ] The evidence has revealed that Defendant Callochia tore out the existing roof panels of the Plaintiff’s property down to the trusts on which he subsequently installed new plywood panels.

The evidence has also revealed that said Defendant supplied and installed the membrane and shingles described in invoices (Exhibit P-1 A and Exhibit P-1 B). [ 14 ] According to Plaintiff, when the work was completed by Defendant, he declared himself satisfied with it only because, according to him, he did not know any better. However, after having discussed the matter with an employee of a “Reno Depot” store, he was allegedly informed that the techniques used by Defendants to perform the work were inadequate.

It must be stated that the “Reno Depot” employee in question did not examine the roof nor did he testify at the hearing. [ 15 ] Plaintiff declared that he contacted Defendant Callocchia to inform him of his discussion with the “Reno Depot’ employee. In this regard, said Defendant declared that, as a result of Plaintiff’s inquiry regarding the quality of the work performed, he examined the roof and found no existing problems whatsoever. [ 16 ] On June 9, 2016, Plaintiff sent Defendants a letter (Exhibit P-2) advising them of his complaints in regard to the work performed.

In this letter, he states that he had two roofers inspect the work and “both commented on it being an unsatisfactory job”. [ 17 ] However, on this issue, at the hearing, Plaintiff acknowledged that only one roofer did in fact inspect the roof namely Mr. Brad Topping of Couverture Kokandel Roofing.

Regarding the second roofer, Couvreurs Dorval Roofing, Plaintiff acknowledged that he was just given an estimate as to the cost of replacing the shingles without any comments as to the quality of the work performed by Defendants (Exhibit P-10). [ 18 ] As concerns Couverture Kokandel, Plaintiff filed into the record a quote dated June 27, 2016 (Exhibit P-9-

A) in the amount of $6,150.00. This quote concerns the cost of redoing the roof in its entirety. [ 19 ] Regarding the comments of Brad Topping as to the quality of the work performed by Defendants, it must be noted that he did not testify at the hearing. Consequently, his opinion is expressed solely in a report dated June 27, 2016 filed into the record as Exhibit P- 9 B).

After having examined this report, the Court is of the opinion that its contents is not conclusive as concerns the existence of the deficiencies alleged by Plaintiff. [ 20 ] In fact, after consideration of all the evidence adduced at trial, testimonial and documentary, the Court cannot conclude that the work executed by Defendants was not performed in accordance with the rules of the trade or in conformity with the terms of the contract binding the parties. [ 21 ] Furthermore, as to the possible consequences of the deficiencies described by Mr.

Topping in his report, they are of a hypothetical nature and are unsubstantiated. No proof was made that the alleged deficiencies were of a nature requiring that the roof be redone in its entirety. [ 22 ] Finally, at the hearing, Plaintiff acknowledged that he has encountered no specific problems with the roof since its installation and it has yet to be replaced by Couvertures Kokandel. [ 23 ] As for defendant Callocchia, in substance, his testimony is to the effect that he supplied all the materials stipulated in the contract and that the work was performed in conformity with the rules of the trade.

No conclusive evidence to contradict Mr. Callocchia’s testimony was submitted to the Court by Plaintiff. [ 24 ] Consequently, as Plaintiff has not met his burden of proof in that he has not established the existence of the alleged deficiencies in the work performed by Defendants, the Court dismisses his demand. WHEREFORE, FOR THE FOREGOING REASONS, THE COURT :

DISMISSES Plaintiff’s demand with judicial costs in the amount of $250.00. __________________________________ ARMANDO AZNAR, J.C.Q. Date of hearing: May 22, 2018