2018 QCCQ 10054, 2018 QCCQ 10054

Marcozzi c. Tabor 2018 QCCQ 10054 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-702601-172 DATE: December 5, 2018 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ ELIO MARCOZZI Plaintiff and cross-defendant v.

STEVEN TABOR STEVEN SHANE TABOR Defendants and cross-plaintiffs ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants an amount of $3 245.24 in damages as a result of the alleged incomplete and deficient execution of a residential renovation contract concluded between the parties on or around November 28, 2016. [ 2 ] More particularly, in the demand filed into the Court record, Plaintiff alleges the following : “1.

The Plaintiff is suing the Defendant for the following reasons: 1. Defendants were hired to complete the upstairs bathroom and kitchen following a verbal quotation of $2,000.00. 2. An amount of $1,500.00 was already paid, and then a subsequent amount $1,300.00 was given, which was $800.00 above the quotation. 3. Despite this additional amount, the work was never completed, and therefore Plaintiff is requesting the refund of the extra $800.00. 4. Plaintiff was required to hire a plumber to fix the work deficiencies caused by Defendants, for a total of $171.30. 5.

Due to Defendant’s actions, Plaintiff suffered loss of rental income for a period of 1 month at a total of $700.00. 6. In addition, and to complete the remaining work which was suppose to be completed by Defendants, Plaintiff paid an amount of $1,275.00 to have the said work completed. 2. The facts occurred on or around November 28, 2016, at MONTREAL (Quebec). 3. The amount of the claim is $3,245.24. 4.

The total amount claimed by the Plaintiff is broken down as follows: Amount paid to complete job: $1275.00 amount given as deposit $800.00 Amount paid to plumber to rectify deficiency: $171.30 Loss of rental revenue: $700.00 Legal fees and disbursements: $298.94. 5.

The Plaintiff makes the following clarifications to the facts set out above: Defendant was hired for various work relating to an upstairs bathroom and kitchen, which was not completed, contrary to the agreement between the parties.” (sic) [ 3 ] Defendant contests Plaintiff’s demand alleging that they fully executed the renovation contract concluded between the parties. More particularly, in the contestation filed into the Court record, they allege: “1.

The Defendant contests the following facts: 1.1 The defendants were only hired to complete the upstairs bathroom and no other parts of the apartment were discussed. 1.2 An initial verbal contract of 2000.00$ for labor and 300.00$ for materials. Making the total initial contract of 2300.00$ and not 2000.00$. Near the completion of the work, a second verbal contract was made and agreed upon for additional work to come to the amount of 500.00$. 1.3 All work that was agreed upon for 2300.00$ was completed along with the addition work for 500.00$ 1.4 No plumbing work was ever discussed to be done by the defendants.

All plumbing work was done by those who initiated the work as well as the plaintiff’s personal plumber. 1.5 The plaintiff was initially asked if there was a tenant for the apartment. Which the plaintiff made clear that they did not have one,

there for not making it the responsibility of the defendants for a loss of revenue. 1.6 The verbal contracts were respected and completion of additional work that had to be done to other parts of the apartment had no relevance to the verbal contracts made with the defendants. 2. The Defendant contests the claim and would like it to be dismissed on the following grounds: suit unfounded in law – The Plaintiff’s accusations against the defendants are inaccurate.

The verbal contract was honored in full by the defendants, who carrying out all work as promised to the plaintiff.” [ 4 ] In addition to their contestation, Defendants have filed a cross-demand claiming an amount of $1,204.75 for unpaid labour, material and additional work.

This cross-demand is contested by Plaintiff who alleges that they never did any additional work at his request. [ 5 ] The evidence adduced at trial has revealed that before retaining the services of Defendants, in September and October 2016, Plaintiff had given to Groupe BLR a contract to perform the renovation of the bathroom of his residence as well as the installation of a counter and sink in the kitchen of the said residence (exhibits P-5). [ 6 ] As Plaintiff was unsatisfied with the work being performed by Groupe BLR, he terminated the contract before its completion. [ 7 ] Subsequently in November 2016, Plaintiff contacted Defendant, Steven Tabor, in order to request a quote for the termination of the work that had not been completed by Groupe BLR in relation to the kitchen and upstairs bathroom of his residence.

Defendants had been recommended by a friend. [ 8 ] Defendant, Steven Tabor, visited Plaintiff’s residence and with his son, Defendant Steven Shane Tabor, they agreed to perform the work requested by Plaintiff for an amount of $2,000.00 taxes included.

However, Defendant was to furnish certain materials. [ 9 ] At the hearing, both Plaintiff and Defendants encountered serious problems establishing the contents of the contract concluded between them as said contract was verbal and no contemporaneous documentation was exchanged between the parties enunciating exactly what work was included and what materials were to be supplied by Plaintiff. [ 10 ] On this issue, Defendant Steven Shane Tabor, did testify that he gave Plaintiff an invoice dated December 6, 2016 (exhibit P-2) in the amount of $2,800.00 which describes, according to him, the extent of the work performed by Defendants.

Plaintiff denies having received this invoice. [ 11 ] At the hearing, Plaintiff testified that, during the execution of the renovation contract, he was requested by Defendants to pay an additional amount of $800.00 for extra labour. He accepted to pay this amount stating that he was doing so under protest. However, at this time, no written notice was sent by him to Defendants making it clear that the payment was made under protest.

Furthermore, Defendants denied Plaintiff’s allegation in this regard. [ 12 ] On the question of the additional $800.00 billed to Plaintiff, Defendant, Steven Shane Tabor, reiterated that Plaintiff agreed to pay the amount adding that this was evidenced by the invoice dated September 6, 2016 (exhibit P-2) in the amount of $2,800.00 ($2,000.00 for the original contract and $800.00 for additional labour) plus the fact that Plaintiff did pay it, without protest according to him, when asked to do so. [ 13 ] Plaintiff alleges that Defendant never completed the renovation contract and that, consequently, he was obliged to have it finished by another contractor (9301-9511 Québec Inc.) to whom he paid an amount of $1,275.00 $ (exhibits P-1 and P1 A). [ 14 ] On this issue, Defendant, Steven Shane Tabor, testified that the renovation contract was completed in its entirety and satisfactorily. [ 15 ] Although Plaintiff testified to this effect and filed the bill issued by 9301-9511 Québec Inc., no representative of this company testified in Court to explain the circumstances surrounding the conclusion of the contract nor to explain the condition of the work previously executed by Defendants. [ 16 ] The evidence has revealed that Plaintiff did send Defendants a letter dated January 9, 2017 (exhibit P-3) requesting payment of an amount of $2,996.51.

However, in this letter, he never requested from Defendants that they finish the work agreed to in the verbal contract concluded between the parties failing which, he would have the said work done by a third party contractor. [ 17 ] Furthermore, Plaintiff never sent notice to the Defendants advising them that he was terminating the contract. [ 18 ] As concerns the deficient plumbing work alleged by Plaintiff, although he testified that the plumbing was part of the contract to be performed by Defendants, they denied having done any work in this regard.

According to him, the plumbing was not included in the said contract. [ 19 ] Regarding the cross-demand filed by Defendants, the evidence has revealed that they never invoiced Plaintiff for the extra work allegedly done and no contemporaneous documentation was filed into evidence to establish what they exactly did, at the request of whom, nor the acceptance of Plaintiff to pay for the alleged “extras”. [ 20 ] In the present matter, Plaintiff and Defendants respectively had the burden of proof.

This being so, it was their obligation to establish, by preponderance of the evidence, the facts on which their respective claims were founded. [ 21 ] In this regard, articles 2803 and 2804 C.c.Q. stipulate the following : 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. [ 22 ] After having evaluated the testimonies rendered at the hearing by Plaintiff and by Defendants, the Court must say that it found neither of them to be convincing.

Nothing allows the Court to retain Plaintiff’s testimony over that of Defendants’ or vice versa. [ 23 ] This being said, considering that the contract concluded between the parties was verbal and as no independent witnesses did testify to corroborate the testimonies rendered at by the parties, the Court concludes that neither of them has established, by preponderance of the evidence, that their case is well founded in fact and in law. [ 24 ] Consequently, the Court must dismiss Plaintiff’s demand as well as Defendants’ cross-demand, without costs, considering the circumstances of the case.

WHEREFORE, FOR THE FOREGOING REASONS, THE COURT : DISMISSES Plaintiffs demand, without costs DISMISSES Defendants’ cross-demand, without costs. __________________________________ ARMANDO AZNAR, J.C.Q. Date of hearing: December 3, 2018