2015 QCCQ 2069, 2015 QCCQ 2069

Hess c. 9149-7263 Québec inc. (CSI Cabinets) 2015 QCCQ 2069 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-136609-122 DATE: March 17, 2015 ______________________________________________________________________ BEFORE THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ ROLAND HESS Plaintiff v. 9149-7263 QUÉBEC INC. (doing business as CSI CABINETS) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Roland Hess, represented by his wife Monica Stof Hess (referred to as Mr. or Mrs.

Hess) claims damages, for inconvenience suffered, during the installation of new kitchen cabinets in his home by Defendant 9149-7263 Québec Inc. (doing business as CSI Cabinets). Mr Hess claims, in particular, that the process took considerably longer than it was supposed to (11 months in total); the work was not done professionally; unauthorized payments were taken on his credit card. These alleged faults caused him considerable damages that he has reduced to $7 000.00 in order to respect the jurisdiction of the Small Claims Division. [ 2 ] CSI Cabinets denies any fault.

In its view, the delays were caused by Mr and Mrs Hess; it did its work in a professional manner; and in any case, Mrs Hess signed a release (Exhibit D-6). ANALYSIS i. Burden of proof [ 3 ] Mr Hess has to prove the facts on which he bases his claim [1] . The evidence must be such that it renders the existence of the alleged facts more probable than their inexistence [2] . This probability is assessed using direct and circumstantial evidence, inferences and presumptions [3] . ii. Consumers Protection Act [4] [ 4 ] The Court will also take into account the provisions of

article 9 C.P.A . when it considers the probative value of the release (Exhibit D-6): 9. Where the court must determine whether a consumer consented to a contract, it shall consider the condition of the parties, the circumstances in which the contract was entered into and the benefits arising from the contract for the consumer. iii. Relevant facts proven at trial [ 5 ] The Hess’ renovated their kitchen for a total cost in excess of $25 000.00. [ 6 ] The scheduling was far from perfect. Delivery of the cabinets did not coincide with the date of demolition of the old cabinets.

Some pieces of cabinetry were late and others were badly measured. The granite countertops were installed late and work that was supposed to be done prior to delivery was done on site. The cabinets were finally installed correctly on May 26, 2012, except as for the

section of cabinetry covering the stove fan. [ 7 ] This

section of cabinetry was a particular issue at trial. Although CSI Cabinets alleges that the design problem of this cabinet was caused by Mrs Hess changing her mind, the Court concludes that the first version of the cabinet was clearly badly designed and the second version was initially the wrong colour.

[ 8 ] Ultimately, the final cabinet was installed correctly, with the right colour, in June 2012. [ 9 ] The Court concludes that the delay and difficulties involved in the installation of the cabinetry are CSI Cabinets’ fault. Mrs Hess’ testimony is detailed and clear. The correct and complete installation of the cabinets required constant pressure on her part, including numerous demand letters. [ 10 ] On the other hand, Mr Shant Papazian’s testimony for CSI Cabinets is largely based on hearsay.

He was onsite at times but most of his testimony is an attempt to replace other representatives who were much more frequently present than himself. This evidence is not admissible. Mr Papazian’s testimony is also not convincing. v.

The Receipt, Release and Discharge [ 11 ] On May 28, when the cabinets, with the exception of the hood cabinet, were finally finished and installed, Mrs Hess signed a document entitled “ Receipt, Release and Discharge ”: […] I, the undersigned, Monica Stof Hess, herby acknowledge that the work in my kitchen has been duly completed and I grant to you a full, final and absolute discharge for any further obligations save and except that the work to complete the hood in the kitchen will be completed in the following manner : […] (Emphasis added) [ 12 ] A reserve was added concerning the further work require on the hood cabinet.

Ultimately, on June 19, 2012, Mrs Hess added: The hod ( sic ) “Fan” Has been Completed [ 13 ] The parties contradict each other as to the meaning of this document. No common intention of the parties has been established [5] . Therefore, it must be construed against the merchant who stipulated this clause [6] . [ 14 ] The release is far from clear.

Although it releases CSI Cabinets from its obligation to complete further work “save and except the kitchen hood cabinet”, it does not state that Mr Hess renounces to his claims for damages. [ 15 ] Also, the evidence is blatant that Mrs Hess never consented to renounce her claim for inconvenience by signing this document. The circumstances of the signature of this document as well as her previous demand letters are clear as to this.

Article 9 C.P.A also dictates that the court take into account the advantages for Mr Hess. There are obviously no advantages for him whereas CSI Cabinets is simply executing its contract. [ 16 ] Therefore, the Court concludes that Plaintiff did not consent to relinquish his rights to claim damages. v. Evaluation of damages [ 17 ] The Court of appeal has stated that evaluation of damages, in particular for inconvenience, is not an exercise in mathematics [7] . [ 18 ] The Court is satisfied that damages were suffered. However, Mrs Hess’ version overstates the delays involved.

She claims that the project required 11 months (June 2011 to May 2012). In fact, the work did not begin until October, thus shortening the period by at least three months. Also, the kitchen was functional as of December 19, 2011 as she stated at trial. The period during which the kitchen was entirely unusable was therefore only two months (November and December 2011) and partially unusable for five months (January to May 2012). Although Mrs Hess states that at least one of the cabinets and certain drawers are not functioning as expected, the evidence is not preponderant.

As well, the gist of the claim is for delays and inconvenience. [ 19 ] The Court evaluates damages at $500.00 per month for November and December 2011 and $100.00 per month for the five months during which the kitchen was partially usable. This represents a total of $1 500.00 for inconvenience. FOR THESE REASONS, THE COURT : GRANTS the claim, in part; CONDEMNS 9149-7263 Québec Inc. (doing business under the name of CSI Cabinets) to pay Roland Hess the sum of $1 500.00 with interest at the legal rate, plus the additional indemnity provided for in

article 1619 of the Civil Code of Québec , as of the date of service of the claim, January 9, 2013; CONDEMNS 9149-7263 Québec Inc. (doing business under the name of CSI Cabinets) to pay the judicial fees of $163.00. __________________________________ SCOTT HUGHES, J.C.Q.

Date of hearing: February 17, 2015