2015 QCCQ 6957, 2015 QCCQ 6957

Di Meglio c. Marbre Carrara inc. 2015 QCCQ 6957 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-139401-139 DATE: August 6, 2015 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ Frank DI Meglio Plaintiff v. Marbre CarrAra Inc.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims the sum of $6,186.82, representing the value of two new sinks he had to purchase and the damages suffered because he was delayed in moving into his new house. [ 2 ] The Defendant contests the claim on the basis that the Plaintiff delayed in signing the Contract, resulting in an increase in price and in the cancellation of the Contract. The Plaintiff failed to retrieve his sinks, notwithstanding Defendant’s offer.

THE FACTS [ 3 ] In May 2012, a Contract was concluded between the parties by which the Defendant undertook to supply and install quartz counters in Plaintiff’s kitchen. [ 4 ] The Plaintiff supplied two sinks to the Defendant to be used as a template to cut the quartz counter to the appropriate size. [ 5 ] On July 25, 2012, the Defendant sent an email to the Plaintiff to let him know that the price had been revised from $6,200 to $8,120 [1] . [ 6 ] The Plaintiff refused this increase in price and cancelled the Contract. [ 7 ] On August 16, 2012, the Plaintiff purchased from Matériaux de plomberie PMF Inc., two new sinks for $2,186.82 [2] , which he claims from the Defendant. [ 8 ] On the same day, the Plaintiff sent a Demand letter to the Defendant requesting that he returns the sinks, failing which the Plaintiff would purchase new sinks and claims the cost to the Defendant [3] . [ 9 ] On August 23, 2012, the Plaintiff sent a second Demand letter to the Defendant claiming damages of $6,186.82, representing the cost of two new sinks and $4,000 in general damages [4] .

THE ANALYSIS [ 10 ] The Contract concluded between the parties is a contract of enterprise governed by Articles 2098 of the Civil Code of Québec . As provided by

Article 2125 CCQ, a client may unilaterally resiliate the Contract. [ 11 ] The Plaintiff owes nothing to the Defendant as no work was done by him, the Plaintiff owed it nothing. [ 12 ] The sole question remains the damages claimed by the Plaintiff. [ 13 ] In his Demand letter dated August 16, 2012, the Plaintiff states he requested on several occasions that the Defendant return the sinks, failing which he would purchase new sinks and claims the cost of these new sinks to the Defendant. [ 14 ] A person seeking to assert a right shall, on the balance of probabilities, prove the facts on which his claim is based [5] . [ 15 ] The Court prefers the testimony of Walter Menghi, Defendant’s representative, when he states that the Defendant offered to return the sinks to the Plaintiff and the latter did not accept. [ 16 ] The only evidence that the Plaintiff requested the return of his sinks was on August 16, 2012, the same day he purchased two

new sinks. [ 17 ] Not only did the Plaintiff have the obligation of sending a prior Demand letter to the Defendant, prior to purchasing new sinks, he had the obligation of proving the value of the sinks he had handed over to the Defendant and not only the value of the two new sinks. FOR THESE REASONS, THE COURT: Dismisses Plaintiff’s action; with costs in the amount of $204, representing the judicial stamp of the contestation. __________________________________ DIANE QUENNEVILLE, J.C.Q . Date of hearing: May 15, 2015