2013 QCCQ 4281, 2013 QCCQ 4281

3279987 Canada Inc. c. Scalera 2013 QCCQ 4281 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-22-195521-128 DATE: April 26, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ 3279987 CANADA INC. Plaintiff v.

DOMINIC SCALERA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 3279987 Canada inc. (« Canada inc. ») is claiming $24,800 from Dominic Scalera as the balance of its account for its floor installation services. Mr. Scalera disputes the claim, invoking that he has paid for the work done. QUESTIONS IN LITIGATION: 1 . Was the contract one of a fixed price for the entire job or did certain aspects of the work constitute extras? 2 . Were delays established for the services rendered? 3 .

Was the contract resiliated and what amount, if any, does Mr. Scalera owe Canada inc.? THE EVIDENCE: [ 2 ] Mr. Scalera purchased a home in Westmount in 2011 and wished to renovate it. Through a third party, he was introduced to Ahmad Jolani, President of Canada inc., a company that supplies, installs and finishes high end hardwood floors. [ 3 ] Initially, Mr. Scalera intended to have the existing floors sanded, stained and varnished. He obtained a quote from Canada inc. for this work. Mr. Scalera subsequently decided to replace the flooring. [ 4 ] Mr. Jolani provided a quote on which Mr. Scalera crossed out the

section entitled “main stairs” , since he planned carpeting for this area. Following negotiations, the parties concluded a contract “#685 revised” for the floor installation. Mr. Scalera selected white oak flooring, rift and quartered, select and better grade, with random lengths of two feet to ten feet long. [ 5 ] The contract price was $13.25 per square foot for a total of $44,069.50 plus tax, based on 3,023 square feet and grossed up by 10% to include waste. Mr. Scalera claimed Canada inc. charged a higher price than other companies since all costs were included, a fact Mr. Jolani denied.

The contract stipulates that any work not mentioned or any extra material or labour constitutes extras, charged at an hourly rate of $55.00. [ 6 ] The payment terms were 25% as a deposit, 30% payable on delivery of the material, 30% upon installation and the balance upon completion. No dates were specified for delivery, installation or completion of the work.

[ 7 ] An employee of Canada inc. took measurements of the premises. When Mr. Scalera questioned the figures, Mr. Jolani measured several rooms in his presence. On September 15, 2011, Mr. Scalera signed the contract and the attachment, containing the detailed measurements and which is an integral part of the contract. [ 8 ] Canada inc. ordered the wood and made arrangements for its delivery to Mr. Scalera’s home, first in November and then in December. However, on both occasions, the delivery order was cancelled since other trades were working in Mr.

Scalera’s residence and he was not prepared to receive the wood. [ 9 ] The wood was delivered on January 17 and 18, 2012. Before the installation, Mr. Jolani found the plywood base, which initially was clean, covered with plaster that stuck to the base. Mr. Jolani explained to Mr. Scalera the wood could not be glued to the plywood unless it was sanded.

They agreed on 90 cents per square foot, for a total of $2,993 to clean and sand the plywood throughout the house, with machinery. [ 10 ] The plywood, which had been put down by other contractors, was uneven in the hallway and in one of the second floor bedrooms and was levelled. Humidity levels were measured from January 23 rd to January 30 th to assure stability of the wood and the wood was given the time needed to acclimatize to the humidity levels. [ 11 ] The floor installation began on February 2, 2012. During the process, a large number of short lengths of wood were found. Mr.

Scalera refused the use of small pieces of wood and longer lengths were ordered. Mr. Scalera understood it would take two weeks to install the flooring and claims he raised the issue of delays at this time. The installation on the three floors and the landings was finished on February 24, 2012. The sanding began and by February 28th, the second and third floors were done. [ 12 ] Before completing the sanding and proceeding to stain and varnish the floors, Canada inc. submitted an invoice for work done. At that time, Mr. Scalera changed his mind and asked that the stairs be finished.

Canada inc. provided a submission for this work. Mr. Jolani claims Mr. Scalera said he would pay the invoice the following Monday but subsequently objected to paying extra for the steps. [ 13 ] Mr. Scalera testified he was in dire need to move into his house. His daughter was ill and his lease ended on March 30, 2012. He maintained he had informed Mr. Jolani of his time constraints. On February 24, 2012, Mr. Scalera pressured Mr. Jolani to ready the house for occupancy. [ 14 ] According to Mr. Scalera, Mr. Jolani wanted payment of the entire contract and the extras. Mr.

Scalera asked for a firm termination date and refused to pay for the extras. In addition, he considered the contract covered the stairs. [ 15 ] Mr. Jolani maintained his position. He explained the stairs are not measured in square feet and they were not included in the contract. He informed Mr. Scalera the job would be finished at the end of March. He changed the date to March 15 th when Mr. Scalera said he had someone who could do the remaining work by March 5 th . [ 16 ] On February 28, 2012, the argument concerning these issues escalated. According to Mr. Jolani, Mr. Scalera told him to leave. Mr.

Scalera claims he begged Mr. Jolani to stay but if he wanted to leave it was his prerogative. Mr. Scalera hired another contractor, who finished the job in 3 days. [ 17 ] As of February 28, 2012, the sanding and cleaning of the plywood, the levelling and the installation of the hardwood on all three floors and the landings was complete. The second and third floors had been sanded. All that remained was the sanding of the first floor plus the process of staining and varnishing. [ 18 ] Canada inc. received three cheques, totalling $27,000.

It seeks the balance payable, in accordance with the terms of its contract, plus its extras. [ 19 ] Mr. Scalera contests the charge for extras. He maintains he did not receive a quote for such work and he was unaware he would be billed separately for any work. Mr. Scalera understood the stairs were included in the contract price. He also contends that since the finishing was not done, its cost should be removed from the total price. THE APPLICABLE LEGAL PRINCIPLES: [ 20 ] The contract concluded by the parties is a contract of enterprise within the meaning of

article 2098 of the Civil code of Quebec (C.C.Q.). [ 21 ] The contractor chooses the method of executing the work (article 2099 C.C.Q.) but, as a counterpart, he assumes responsibility for the work done. He must act in his client's best interests, with diligence and care. [ 22 ] The contractor has an obligation of information and must provide the client with any useful information with respect to the task he has undertaken to do (article 2102 C.C.Q.). [ 23 ] Where there is an obligation of result, as in the present case, a contractor must provide the expected result (article 2100 C.C.Q.).

To exonerate himself, he must show that his failure to execute his obligations stems from a superior force, namely an unforeseeable event (article 1470 C.C.Q.) or the client’s actions. [ 24 ] The contractor is obliged to act according to the rules of the trade and to assure that the work performed is in conformity with the contract. He must respect the techniques and approved construction practices of his trade that assure quality work.

Where it is not acceptable, the client has recourse against his contractor for defects in the work done (article 2120 C.C.Q.). [ 25 ] When the client notes the contractor's failure to execute his obligations, the client must put the contractor in default, requiring

him to respect his contractual obligations and carry out the work in question, before having it done by another (article 1590 C.C.Q.). A demand letter is not required where the contractor clearly indicates he does not intend to execute his obligation or where there is urgency and he fails to immediately perform his obligation (article 1597 C.C.Q.). [ 26 ]

Article 1590 C.C.Q. stipulates that the obligation must be performed in full, properly and without delay. In the absence of any delay stipulated in the contract, the contractor must carry out the work with reasonable diligence. [ 27 ] The client's obligation is to pay the price agreed upon by the parties. The price is fixed by the contract, by usage or by law or on the basis of the value of the work carried out or the services rendered (article 2106 C.C.Q.).

Article 2109 C.C.Q. stipulates that where the price is fixed by the contract, it cannot be increased or decreased unless the parties agree to such a change in price. [ 28 ] However, extras or additional work, which was not initially foreseen nor part of the cost of the contract, results in supplementary costs. The same occurs when there are modifications in the conditions originally foreseen [1] . [ 29 ] The client or the contractor can resiliate the contract.

However, in so doing the client must pay the contractor, in proportion to the agreed price, the actual costs and expenses and the value of the work performed before the end of the contract. The contractor, for his part, must repay any advances he has received in excess of what he has earned (article 2129 C.C.Q.). [ 30 ] These principles are applicable in the present case. ANALYSIS: [ 31 ] In contrast to the majority of construction cases, Canada inc.’s workmanship is not in issue in this instance. The work it carried out was well done, as admitted by Mr. Scalera’s witness, Mr.

Varizanakis, who is a floor installer. [ 32 ] The issue here concerns the amount payable. Canada inc. seeks the sums it claims are due, pursuant to its contract while according to Mr. Scalera, since the contract was resiliated, only the value of the work at the time of resiliation is payable. He blames Canada inc. for the delays and submits no extras are owed. The delays : [ 33 ] Mr. Scalera claims the delays involved in the project were unreasonable. He points to the short wood pieces which needed to be changed as a source of the delays.

He contends the contractor must act with diligence and in the interest of its client and since the contractor is responsible for any delays incurred, he must make up for them. [ 34 ] Firstly, the contract does not specify any termination date. In addition, only 2 to 3 weeks elapsed before receiving the planks that were re-ordered. More importantly, Canada inc. attempted to deliver the wood in November and again in December. On each occasion, Mr. Scalera was not ready to receive it and the order was cancelled. [ 35 ] Because Mr. Scalera’s refused to accept the deliveries, the wood arrived on January 17, 2012.

The delays involved because of Mr. Scalera’s refusal to receive the wood at an earlier date are far greater than the subsequent delay that arose to re-order and obtain some longer pieces of wood. In such circumstances, the Court does not consider that Canada inc. violated its obligations. The stairs : [ 36 ] One of the main issues that gave rise to the parties’ dispute, and ultimately to the end of the project, was Canada inc.’s submission to do the stairs. Mr.

Scalera contends the stairs were included in the total cost of the contract. [ 37 ] Stairs are not measured in square feet and do not normally form part of a floor installation contract, as confirmed by Mr. Scalera’s witness. More importantly, the contract clearly stipulates what is covered. The detailed list of the areas that were measured, which forms an integral part of the contract, does not include stairs.

The basis for determining the amount payable : [ 38 ] Canada inc. submits it is entitled to be paid in accordance with its contract, which foresees that once the wood is installed, 85% of the total price is payable, which comes to $42,812.19 including tax. It also is claiming the cost for cleaning the plywood, leveling the floors, sanding, installing hardwood on the landings, cleaning the premises and disposing material. Its total, after removing $27,000 already paid, comes to $25,078, which it reduced to $24,800. [ 39 ] Mr.

Scalera submits he is only obliged to pay the proportion of the agreed fixed price for work performed before the resiliation. Since the job was not completed, he maintains the cost of finishing must be removed from the total price. [ 40 ] The project ended on February 28, 2012, before it was finished. The job was completed by a third party. There was, in fact, a resiliation of the contract. [ 41 ] Each party blames the other for the termination of the contract. Mr.

Scalera maintained the stairs were included in the total cost and, because the proposed deadline to complete the job was unacceptable to him, he told Canada inc. to “consider your contract cancelled” . Mr. Scalera points to his offer to place funds in trust with his lawyer. However, no amounts were specified.

[ 42 ] Considering that a specific sum was payable once the floors had been installed and since the stairs were not included in the contract, the Court considers that Mr. Scalera’s refusal to pay any amount of money, at the end of February 2010 led to the end of the project, for which he is responsible [2] . [ 43 ] In the case of a client’s resiliation of a contract, the provisions of the Civil Code of Quebec stipulate: 2125. The client may unilaterally resiliate the contract even though the work or provision of service is already in progress. 2129.

Upon the resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property furnished, where it can be returned to him and used by him. (…) …each party is liable for any other injury that the other party have suffered. [ 44 ] Accordingly, the value of the work performed must be determined.

Canada inc. contends that as of February 28, 2012, 85% of the contract price was due, based on the payment

schedule foreseen by the contract. However, the amount payable according to a payment

schedule does not necessarily correspond to the actual value of the work done at a given date. [ 45 ] As indicated above, in virtue of

article 2129 C.C.Q., it is the value of the work completed when the contract ended that must be evaluated and not the amount that is to be paid at specific times during the progression of the job. The value of the work : [ 46 ] The contract was for $44,069.50 plus tax. As of February 28, 2012, the floors had been measured, the plywood cleaned and leveled and the wood had been installed on all three levels.

The second and third floors had been sanded, the wood had been installed on the landings, the debris and equipment had been removed and the premises cleaned. [ 47 ] All that remained was the sanding of the first floor and the remainder of the finishing, namely the staining and varnishing. Since this final part of the job had not been completed, a price adjustment must be made. [ 48 ] Mr. Scalera estimates the finishing cost at $16,277.40, based on $4.90 per square foot, a figure provided by another installer, Mr. Varizanakis.

He submits that after removing this amount from the contract price of $44,069.50, $27,792.10 remains. Since he had paid $27,000, he contends the difference is only $792. He contests paying this amount, alleging that Canada inc. failed to deliver the work in a timely fashion. [ 49 ] The evidence shows that the job was finished by another contractor in three days. The Court is unaware of the cost. However, since Mr. Scalera chose not to produce his bill, the Court infers that the cost was less than $16,277.40. [ 50 ] Canada inc. had previously provided Mr.

Scalera with a submission [3] to finish the floors at $4.50 per square foot. Since this company was chosen to do the flooring installation, the Court considers it appropriate that Canada inc.’s cost be used to determine the value of the finishing. [ 51 ] Based on the actual square footage of 3023, the cost to finish the three floors comes to $13,603.50. However, two floors had been sanded; the sanding being one of the three steps involved in the finishing process.

Considering that an important part of the finishing had been done, the premises had been cleaned and the debris as well as all the equipment had been removed, the Court in its discretion reduces the remaining cost to complete the job by $2,600. In sum, the work left to do was minimal and as indicated above, took only three days to complete. [ 52 ] The value of the contract at the time of resiliation is therefore $44,069.50 less the cost to complete the job, established by the Court at $11,003.50, which comes to $33,066, plus tax, for a total of $ 38,015.98 [4] . Mr.

Scalera has paid $27,000, leaving a balance of $ 11,015. The extras : [ 53 ] Canada inc. is claiming an extra sum for work it claims was not part of the contract, namely the cost to clean, sand and level the plywood, supply and install the wood on the landings, remove the debris and equipment and clean the premises. The contract specifically stipulates that any work, time or material that is not listed will cost extra and labour is charged at an hourly rate of $55. [ 54 ] Mr.

Scalera maintains the extras were accessory to the work and unforeseeable circumstances do not modify the stipulated price of the contract. [ 55 ] The Court agrees with this position with respect to the cost to level the floors, since leveling is a necessary step in order for flooring to be properly installed. In addition, floors in older houses often are not level.

As for the cleaning of the premises and the removal of debris and equipment, the Court has already taken these aspects of the job into consideration in determining the value of the work that remained. [ 56 ] However, given the particular facts of this case, the same does not apply to the cleaning of the plywood. While Mr. Jolani

agreed it is usual to clean the plywood before the wood is laid, what was involved in this instance far exceeded a usual cleaning. [ 57 ] The floors were clean when Mr. Jolani first visited the premises. When the wood was delivered for installation, the base was covered with plaster which stuck to the plywood, such that it was impossible to glue the wood to the plywood base. It took 3 men two days to remove the plaster, using special equipment. This eventuality could not have been determined when the contract was concluded. [ 58 ] Mr. Jolani testified that he advised Mr.

Scalera the cost of removal would come to 90 cents per square foot and Mr. Scalera accepted this fee. Mr. Scalera denies having discussed any extras. The Court prefers Canada inc.’s version. It is unlikely it would bring specialized equipment to the site and have three persons do several days of extra work without reaching an agreement as to the cost for this work. Accordingly, the Court grants the amount sought of $2,993. [ 59 ] Mr. Jolani is also seeking $768 plus tax to supply and install wood on the landings. This aspect of the work was not included in the contract. Although Mr.

Scalera wanted the work done, the quote had not been submitted before the work was carried out. Given that there was no agreement as to the price to install the wood on the landings, Canada inc. bears the risk of doing this job before submitting a quote. Therefore, this cost is not granted. [ 60 ] Accordingly, the total amount that remains to be paid by Mr. Scalera comes to $14,008. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff’s action; CONDEMNS Dominic Scalera to pay 3279987 Canada inc. $14,008 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code since the service of the Motion to introduce proceedings; THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Me Sami L. Hawa Sami L. Hawa, avocat Attorney for Plaintiff Me Christina Carron Norton Rose Canada Attorney for Defendant Date of hearing: March 15 and 20, 2013