2015 QCCQ 6940, 2015 QCCQ 6940

SM Gestion Projet inc. c. Lappas 2015 QCCQ 6940 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL No: 500-22-203380-137 DATE: August 6, 2015 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ SM GESTION PROJET INC. Plaintiff/Cross-Defendant v. ANNE LAPASSE and CARLOS DESOUSA and CHAZ DESOUSA and 9037-7987 QUÉBEC INC.

Defendants/Cross-Plaintiffs ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims from the Defendants solidarily, $46,053.34, representing the outstanding amount owed following the construction work done at two locations, namely on Wilfrid-Lazure Avenue and on St-Denis Street, in Montreal. [ 2 ] The Defendants contest Plaintiff’s claim on the basis that part of the work done was not approved. Moreover, the Defendants complain that many deficiencies were discovered and not corrected.

Furthermore, the Defendants suffered damages do to the faulty work done by the Plaintiff for loss of goods, time spent supervising and cleaning, for a total amount of $90,178 that they claim by their Cross- Claim. THE FACTS [ 3 ] The Plaintiff specializes in commercial, residential and institutional construction work. The work is done by the Plaintiff’s employees and sub-contractors he hires.

Sylvain Michaud, the President of Plaintiff, acts as Project Manager. [ 4 ] Prior to the contract concluded in the present matter, Sylvain Michaud worked on two projects with the co-defendant Chaz Desousa, the son of Anne Lapasse and Carlos Desousa.

These projects were done on a cost, plus basis, that is the time, the material plus profit and administration are charged. [ 5 ] In November 2011, Anne Lapasse and Carlos Desouza, the owners of the residence located at 12,325 Wilfrid-Lazure Avenue, obtained a permit from the City of Montréal to do major renovations to their house, in accordance with architectural plans [1] .

More precisely, the roof is to be elevated, a family room is to be built over the garage and a balcony added on the second level, in the front. [ 6 ] Sometime at the end of January, beginning of February 2012, Chaz Desousa sends to the Plaintiff the architectural plans asking for a quote. [ 7 ] The first quote issued by Plaintiff is dated February 7, 2012 [2] , for an amount of $58,667.49, plus tax and is limited to the modifications to the roof. [ 8 ] Following a meeting between the parties, the scope of the work is amended to add the renovations to be done to the first floor and to a bathroom, for a total cost of $103,906.11, plus tax [3] . [ 9 ] On April 4, 2012, the quote is again modified, following minor adjustments to the work and now totals $113,127.63, plus tax [4] . [ 10 ] This quote is accepted by Anne Lapasse and Carlos Desousa who sign a letter of intention dated April 12, 2012 [5] .

At the request of Chaz Desousa, the Plaintiff immediately issued an invoice dated May 3 rd , 2012, to 9037-7987 Québec Inc., for $130,068.49, tax included [6] . [ 11 ] On May 1, 2012, a sub-contract is issued by the Plaintiff to Stéphane Ménard who is to act as Superintendent at the Wilfrid- Lazure property and execute part of the work [7] .

[ 12 ] On May 3 rd , 2012, a meeting is held between the parties to discuss the price of several items to be delivered, including the amount of the sub-contract to Stéphane Ménard [8] .

At this meeting, the Plaintiff also confirms that the profit and administration charges will be limited to a fix price of $15,000. [ 13 ] On May 10, 2012, a $10,000 advance is paid to the Plaintiff [9] . [ 14 ] As the work progresses, the Plaintiff provide updates to the Defendants on the work done and to be done and the cost thereof, as appears from the update dated May 31, 2012 [10] . [ 15 ] On June 1 st , 2012, Chaz Desousa emails to Sylvain Michaud complaining of the increase in the price of the windows and requests that any change order must be signed off [11] .

On June 8, 2012, a new update was provided by the Plaintiff to the Defendants, confirming the cancellation order of the windows [12] . [ 16 ] On June 25, 2012, a

summary of the work completed and to be completed is provided by the Plaintiff, with the accompanying invoices and working sheets [13] . [ 17 ] On July 5, 2012, the Plaintiff sends to the Defendants the list of the work done to date and to be completed, as of June 25, 2012 [14] .

The Plaintiff also confirms that the value of the work done to date is $78,420.45, of which $68,171.17 has been paid, leaving an outstanding balance of $10,249.28. [ 18 ] By this date, Chaz Desousa has retained the services of Stéphane Ménard to do the work on a building located at […] . [ 19 ] However, the Defendants are dissatisfied with the work done by Stéphane Ménard and refuse to pay his last invoice, prompting Mr. Ménard to abandon the work.

Chaz Desousa asked the Plaintiff to complete this work and on September 10, 2012, the Plaintiff sends its invoice to the Defendant 9037-7987 Québec Inc. for $9,844.63 [15] .

Chaz Desousa complains of the amount billed and the Plaintiff reduces its invoice to $4,952.70, which amount remains unpaid and is claimed by its action. [ 20 ] On September 11, 2012, the Plaintiff sends to the Defendants a list of work to be completed [16] . [ 21 ] On September 22, 2012, the Plaintiff sends a detailed list of the work completed after June 25, 2012, with the accompanying invoices, for a total amount of $41,100.64 [17] . [ 22 ] On October 12, 2012, the Plaintiff received payment from Carlos Desousa by cheque of $10,547.39 [18] , representing the outstanding amount owed on the invoice of July 5 th , 2012. [ 23 ] The Plaintiff requests that the outstanding amount of $41,100.64 be paid.

Chaz Desousa informs the Plaintiff that the payment will be withheld pending the Inspection report to be received from the engineer retained by him. [ 24 ] On November 9, 2012, Breault & Gosselin Conseils Inc. issues its Inspection report to Chaz Desousa, outlining the deficiencies found in the work executed at the Wilfrid-Lazure residence [19] . [ 25 ] On February 19, 2013, the Plaintiff’s attorney writes to the Defendants’ attorney requesting payment of the outstanding amount of $44,998.94, for the work completed at the two properties [20] . Plaintiff’s legal action is instituted thereafter.

THE QUESTIONS IN ISSUE [ 26 ] With respect to the principal action: 1. Is the Plaintiff justified in claiming the sum of $46,053.34? 2. Are the Defendants solidarily liable to pay to the Plaintiff the amount claimed? [ 27 ] With respect to the Cross-Claim: 1. Are the Cross-Plaintiffs justified in claiming the amounts to the Plaintiff? THE ANALYSIS The Principal action 1. Is the Plaintiff justified in claiming the sum of $46,053.34? [ 28 ] As appears from the several invoices issued by the Plaintiff and the

summary of the amounts paid by the Defendants, the Plaintiff has demonstrated that an amount of $41,100.64 is owed to it for the work done on the residence located at Wilfrid-Lazure. [ 29 ] Initially, the amount claimed was $40,064.24, due to an error in calculation, which amendment is authorized by the Court. [ 30 ] The Court does not accept Chaz Desousa’s argument that the work orders and additional work done were not authorized and signed off as requested. [ 31 ] He may have requested that the work orders be signed off, however, the evidence shows that the invoices were sent by the Plaintiff to Chaz Desousa and were accompanied by the invoices of the sub-contractors and suppliers.

Chaz Desousa admits having received these documents, but did not review them. [ 32 ] Moreover, throughout the work being performed by the Plaintiff, Chaz Desousa was present on a regular basis at his parents’

residence. In fact, by his Cross-Claim, he was claiming $15,000 for having supervised the work. [ 33 ] Also, throughout the period where the Plaintiff performed the work, the Defendants rarely complained about the amounts charged and when they did, the situation was immediately corrected. [ 34 ] As for the work done on the St-Denis property, the Plaintiff invoiced the Defendant $4,952.70, reduced from an initial amount of $9,844.63 [21] . [ 35 ] The Plaintiff had the burden of proving, on a balance of probabilities, the facts upon which its claim is based [22] , and it succeeded in this endeavour.

On the other hand, no evidence was presented at Trial by the Defendants demonstrating that the invoices sent by the Plaintiff were incorrect and that the work billed had not been executed. [ 36 ] The Plaintiff has established that the work was done for the value charged and the Court concludes that the Plaintiff is justified in claiming the amount of $46,053.34. 2.

Are the Defendants solidarily liable to pay this amount to the Plaintiff? [ 37 ] Asked by the Court why the invoice dated May 5, 2012 [23] was issued to 9037-7987 Québec Inc., Chaz Desousa states that Carlos Desousa has no accounting system. [ 38 ] Chaz Desousa has not convinced the Court and it finds his testimony not to be credible.

The Court concludes that 9037-7987 Québec Inc. has no legal interest in the residence located on Wilfrid-Lazure Avenue, that is owned by the Defendants, Anne Lapasse and Carlos Desousa, nor in the St-Denis property that is owned by Carlos Desouza. [ 39 ] Therefore, the only logical conclusion is that 9037-7987 Québec Inc. requested that the invoice be issued in its name most probably to use it as a deductible expense, in contravention to fiscal laws. [ 40 ] Moreover, the only logical conclusion for an invoice of $130,068.49 to be issued to 9037-7987 Québec Inc., on May 5, 2012 [24] , prior to any work being done or paid for, is to allow 9037-7987 Québec Inc. to deduct this amount, again in contravention to fiscal laws. [ 41 ] As the Defendants, Anne Lapasse and Carlos Desousa are the owners of the residence on Wilfrid-Lazure Avenue, they are responsible to pay to the Plaintiff the sum of $41,100.64.

As the Defendant, Carlos Desouza, is the sole owner of the property located on St-Denis Street, he is liable to pay to the Plaintiff the sum of $4,952.70.

The Cross-Claim [ 42 ] At the hearing, through their attorney, 9037-7987 Québec Inc. and Chaz Desousa admit there is no lien de droit with the Plaintiff, therefore, they abandoning their Cross-Claim. [ 43 ] Also, Carlos Desouza, through his attorney, abandons his Cross-Claim for the work done on the St-Denis property. [ 44 ] The Defendants, Anne Lapasse and Carlos Desousa, also admit, through their attorney, that the work was done by the Plaintiff and that they benefit from it. [ 45 ] The only outstanding issue is the Cross-Claim by Anne Lapasse for the damage to several items stored in the garage and the damages sought to correct the deficiencies in the work. [ 46 ] Initially, she is claiming an amount of $11,528, which she reduces to $6,000. [ 47 ] She explains that, when the work had to be carried out in the garage, the objects stored there, such as sports equipment, clothes, etc., had to be removed.

Plaintiff’s employees put them in garbage bags and left them outside. [ 48 ] Anne Lapasse adds that the bags were not properly tied, allowing the rain to seep in. When she discovers this, she simply tries to cover the bags with a plastic. Later on, she discovers that all these items were covered with mold and must be thrown out. [ 49 ] The Court finds the testimony of Anne Lapasse not to be credible.

Moreover, no evidence was provided showing the damaged goods and no invoice was submitted proving the value of these items. [ 50 ] Therefore, Anne Lapasse’s Cross-Claim is dismissed. [ 51 ] The Defendants, Anne Lapasse and Carlos Desouza, claimed from the Plaintiff $15,000 representing the amount necessary to correct the deficiencies to the work done by the Plaintiff, which amount they reduce to $11,000. [ 52 ] The Plaintiff does not deny that part of the work had to be corrected; in fact it sent in September 2012, a list of deficiencies. [ 53 ] Following this, Sylvain Michaud contacted Chaz Desousa, who informs him that he retained an engineer to inspect the work.

Following the engineer’s Inspection report, dated November 9, 2012 [25] sent to the Plaintiff, Sylvain Michaud again contacts Chaz Desousa to obtain permission to inspect the deficiencies outlined in the engineer’s report. Chaz Desousa never replies to give access to the Plaintiff. [ 54 ] When the Plaintiff offers to proceed to the correction of the deficiencies, Chaz Desousa answers that he has to, previously obtain the approval of the engineer on the proposed solutions.

Chaz Desousa or the other Defendants never follow-up. [ 55 ] On February 19, 2013, the Plaintiff, through its attorney, sends a Demand letter requesting payment of the outstanding

amounts [26] . Again, the Plaintiff offers to correct the deficiencies. The Defendants never give the opportunity to the Plaintiff to do so. [ 56 ] A client who alleges deficiencies in the work, must give notice to the contractor and give him the opportunity to correct these deficiencies [27] . The Defendants failed in this regard. [ 57 ] As for the arguments raised by the Plaintiff with respect to the work done by its sub-contractor Stéphane Ménard, in light of the conclusions drawn by the Court, it is not necessary to examine these arguments.

FOR THESE REASONS, THE COURT: GRANTS Plaintiff’s action; CONDEMNS the Defendants, Anne Lapasse and Carlos Desousa, to pay to Plaintiff, SM Gestion Projet Inc., the sum of $41,100.64, with interest at the legal rate, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , as of February 19, 2013; CONDEMNS the Defendant, Carlos Desousa, to pay to Plaintiff, SM Gestion Projet Inc., the sum of $4,952.70, with interest at the legal rate, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , as of February 19, 2013; WITH COSTS. __________________________________ DIANE QUENNEVILLE, J.C.Q . Me Gian Michele Cerundolo CERUNDOLO & MAIORINO S.E.N.C. Attorney for the Plaintiff Me Christopher Atchison MUNICONSEIL AVOCATS INC. Attorney for the Defendants