2017 QCCQ 81, 2017 QCCQ 81

D'Onofrio (D'Onofrio architecture + design) c. 9205-3925 Québec inc. 2017 QCCQ 81 C A N A D A COURT OF QUÉBEC PROVINCE OF QUEBEC Civil division DISTRICT OF MONTREAL Small claims Division N o : 500-32-152534-162 DATE: January 5 th , 2017 PRESENT: M e Vanessa O'Connell-Chrétien , special clerk WILLIAM (GUGLIELMO) D’ONOFRIO doing business under the name of D’ONOFRIO architecture + design Plaintiff vs. 9205-3925 QUÉBEC INC.

Defendant JUDGMENT [ 1 ] An agreement intervened between the Plaintiff and the Defendant in May 2015 regarding a first project regarding a synagogue which was revised in June 2015. [ 2 ] A second agreement for another project intervened between the Plaintiff and the Defendant. The Plaintiff states in his application that “given the condition of having obtained a larger mandate”, the first project, he offered his services for the second project at a reduced rate. [ 3 ] The first contract was ended prematurely by the Defendant shortly after it began.

An invoice left unpaid totaling $3,167.15 is claimed regarding this first project. [ 4 ] An invoice of $2,961.61 is also claimed regarding the second project. [ 5 ] Charges of interests totaling $624.08 are also adding up to the claim for a grand total of $6,752.84 at a rate of 12% per year since May 17, 2016.

[ 6 ] The amount claimed of $3,167.15 as an unpaid invoice will be granted. This invoice is date July 27 th of 2015 and the evidence allows the Court to grant this part of the application. [ 7 ] Regarding the second invoice claimed, which is for the second project, my understanding of the evidence is that there was an agreement between the Plaintiff and the Defendant for an amount of $1,100.00 for the services required for the second project. According to the Plaintiff the Defendant would have had to pay $2,800.00 plus expenses for those services if it wasn’t for the mandate received on the first project.

It was in consideration of the first project that the price was reduced in the second project. [ 8 ] How can an agreement for $1,100.00 plus expenses justify an invoice of $2,961.61?

The Plaintiff explains that when the first project was abruptly cancelled, “the services rendered were charged by the hour plus expenses” instead of the flat rate agreed. [ 9 ] Regarding the agreement on the price of the second project, the email sent on June 22 nd , 2015 from the Plaintiff to the Defendant indicates that : “In the recent jobs we had regarding certificates of occupation, the prices went from 1300$ (a commercial space) to 2800$ (a restaurant) for spaces such as yours, which will be used for your synagogue.

But, in your case we will offer his service for only 1100$, given that it is part of our larger project for the new synagogue. (…)” [ 10 ] Nothing was mentioned in this email about the eventuality that the first project was ended or the possibility to be charged by the hour instead of a flat rate. No agreement was ever made that this second project was to be paid at an hourly rate. Moreover, the email sent with the invoice by email on July 27 th , 2015 indicates that the Plaintiff changed his mandate by himself after a visit made on June 23 of the premises.

According to this email, the fact that there was already construction going on changed his obligations regarding the services required. Extra services were required which are included in the invoice claimed. [ 11 ] This way to proceed is not the way to do. The Plaintiff, after his visit of the premises on June 23 should have inform the Defendant that the mandate could not be performed as agreed because there was construction already going on.

It makes no sense that the Plaintiff waited more than a month to inform the Defendant that extra services were required after having authorized himself to proceed to those extra services, having changed the billing agreement and then to claim the payment of the invoice. [ 12 ] Therefore, only the amount agreed on will be granted with taxes and expenses for a total of $1,269.35. [ 13 ] An amount of $624.08 is also asked by the Plaintiff as charges for interest on the unpaid invoices.

Section 1617 of the Civil Code of Québec stipulates that: “Damages which results from delay in the performance of an obligation to pay a sum of money consist of interest at the agreed rate or, in the absence of any agreement, at the legal rate. The creditor is entitled to the damages from the date of default without having to prove that he has suffered any injury”. [ 14 ] The Plaintiff was asked at the hearing if there was any agreement on the interest of 12% per year claimed.

It was argued that such interest was requested because of the indication at the bottom of the invoices sent. [ 15 ] Such indication on an invoice does not constitutes an agreement. Therefore, only legal interest, as of the date of the reception of the registered claim letter, will be granted on the amounts awarded. [ 16 ] Moreover, the $624.08 could not have been granted even if there would have had an agreement on the interest between the parties

since

article 1620 from the Civil code prevent to grant interest on interest if there is not a specific agreement between the parties to do so, which is not the case in this file. [ 17 ] FOR THESE REASONS : [ 18 ] CONDEMNS the Defendant to pay the sum of $4,436.50 to the Plaintiff with interest at the legal rate of 5% and the additional indemnity provided by

article 1619 of the Civil Code of Que bec from December 17th, 2015 and the court fees of $185. M e Vanessa O'Connell-Chrétien VOCC/ Special clerk JO 0333