2018 QCCQ 8456, 2018 QCCQ 8456

9284-5577 Québec inc. (Consspen Inc.) c. Nassif 2018 QCCQ 8456 COURT OF QUÉBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No: 500-32-150385-153 DATE: November 19, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-JULIE CROTEAU, J.C.Q. ______________________________________________________________________ 9284-5577 QUÉBEC INC. (CONSSPEC INC.) Plaintiff v.

JAKO NASSIF -and- NAORAS HAMMOUD Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 9284-5577 Québec inc. ( Consspec ) is claiming $14,200.00 to Mrs. Jako Nassif and Mr. Naoras Hammoud (collectively the Owners ) for the construction work it carried out on their house and garage, and $700.00 in reimbursement of the fees it paid for legal services relating to this matter. [ 2 ] The Owners allege having paid the $14,200.00 in cash to Consspec.

As for the legal fees claimed by Consspec, they refuse to repay them claiming to have no responsibility in this regard. [ 3 ] In their counter-claim, the Owners claim $15,000.00 [1] alleging that Consspec’s work was deficient and did not meet the applicable standards. [ 4 ] Consspec argues that the work it carried out was properly done, thus preventing the Owners from obtaining any compensation. QUESTIONS IN ISSUE [ 5 ]

a) Have the Owners demonstrated, by preponderance of evidence, that they paid Consspec for the work it carried out?

b) Have the Owners demonstrated, by preponderance of evidence, that the work carried out by Consspec was poorly executed and did not meet the applicable standards, thus giving rise to their counter-claim of $15,000.00? CONTEXT [ 6 ] Consspec is a company specialized in the fields of renovation and construction. [ 7 ] On August 3, 2015, a verbal contract was entered into between Mr.

Ghasoub Samaan, Consspec’s President, and the Owners ( Contract ). [ 8 ] More precisely, it was agreed that the Owners would pay $14,200.00 to Consspec for different construction services, including the renovation of their garage and landscaping of their front yard entrance. It was also agreed that Consspec would bill the Owners after the completion of the work. [ 9 ] Mr. Samaan started to work a few days later. During the construction work, the parties agreed on different extras that are not the object of this litigation. [ 10 ] On September 10, 2015, Mr.

Samaan submitted Consspec’s invoice for the work performed [2] . [ 11 ] In September 2015, Mrs. Nassif noticed a number of defects in the work performed by Consspec, such as the ground level in the garage being too high and the presence of unlevelled paving stones [3] . She then asked Mr. Samaan to provide her with a detailed

summary of the work he had performed and the prices for each of the items ( Detailed

Summary ) [4] . [ 12 ] A few weeks later, Mr. Samaan and Mr. Hammoud’s met at a coffee shop and they completed a document mostly related to the extras and the alleged defects ( Coffee Shop Note ). Their meeting did not lead to an agreement. [ 13 ] On November 23, 2015, the Owners sent a Letter of Demand to Mr. Samaan describing the deficiencies in the work he

performed and also stating that Mrs. Nassif had already paid the full sum of $14,200.00 [5] . [ 14 ] On November 26, 2015, Mr. Samaan sent a second Letter of Demand to the Owners for the unpaid invoice of $14,200.00 [6] . ANALYSIS [ 15 ] Before analyzing the evidence, the Court must stress that in civil matters, any person wishing to assert a right must prove the facts on which their claim is based [7] . In the same way, any person cliaming that a right is extinguished must prove the facts supporting their contentions. [ 16 ] The evidence will be weighed on a balance of probabilities [8] .

However, where the evidence is contradictory or not sufficiently convincing and the Court is unable to determine where the truth lies, the party with whom the burden of proof lies loses its case. [ 17 ] In the present matter, the burden of proof rests on the Owners who must present compelling evidence to prove that they paid Consspec for the work it has done.

To convince the Court, they must demonstrate that the payment is more probable than its non- existence [9] . [ 18 ] Furthermore, since the Owners claim that Consspec’s professional services were poorly executed, they are bound to prove the facts on which their allegations are based.

a) Have the Owners demonstrated, by preponderance of evidence, that they paid Consspec for the work it carried out? [ 19 ] The Owners claim to have paid a total of $14,200.00 in cash, on three different occasions during the month of August 2015. They allege that the first and the second payments, each in the amount of $5,000, were made on August 11, and 18. The last payment in the amount of $4,200.00 was made on August 27. [ 20 ] The Court must point out that persons alleging cash payments are at a serious disadvantage when they have not obtained any receipt, as it is the case in this matter. Indeed, Mrs.

Nassif explained that she did not ask for receipts because she was friends with Mr. Samaan and they agreed that he would give her a receipt upon receiving the last payment. That being said, Mrs. Nassif claims that the Detailed

Summary and the Coffee Shop Note should be considered as receipts of the amount they paid. The Court is not of that opinion. Indeed, these documents do not contain any information indicating that the Owners have paid the sums owed to Consspec, nor do they contain any acknowledgment from the latter that any payment was received. [ 21 ] To show the origin of the funds, the Owners filed their bank account statements [10] . Although the statements demonstrate that Mrs.

Nassif withdrew $6,000.00 on August 11, $5,000.00 on August 18, and $7,000.00 on August 27, this does not, in any manner, establish that the sums were then remitted to Mr. Samaan, Moreover, the Court stresses that the withdrawals exceed the $14,200.00 that the Owners allege having paid to Mr. Samaan. [ 22 ] Mrs. Nassif, Mr. Hammoud and Mrs. Ruba testified to establish the details surrounding the various payments made to Mr. Samaan. Their credible testimonies are countered by Mr.

Samaan’s testimony, equally credible, who confirmed having received $1,200.00 cash in payment of the extras, but categorically denies having received any other payment. [ 23 ] The evidence presented is completely contradictory and the position of the Owners and that of Mr. Samaan are drastically opposed. Each of them testified and their respective positions are based on facts that the others contest. Consequently, the Court is unable to determine where the truth lies. [ 24 ] The Owners had the burden of proof and they failed to prove, with compelling evidence, that they paid Consspec for the work executed.

For that reason, Consspec’s claim for the payment of its $14,200.00 fees must be granted. [ 25 ] However, Consspec’s claim for the reimbursement of its legal fees is dismissed. Indeed, Courts have repeatedly pointed out that damages or fees incurred to bring a claim or defending oneself are granted only in rare exceptions and only when several specific conditions are met, including abuse of process and reprehensible judicial conduct [11] . However, the evidence on file does not support any such conclusion.

b) Have the Owners demonstrated, by preponderance of evidence, that the work carried out by Consspec was poorly executed and did not meet the applicable standards, thus giving rise to their counter-claim of $15,000.00? [ 26 ] The Owners allege that Consspec’s work did not meet the applicable standards. Therefore, they are seeking $15,000.00 to carry out the corrective work. [ 27 ] According to the Owners, Consspec’s work was poorly executed, particularly in that: • The new concrete floor in the garage was poured about 3 inches higher than its original height.

It is now higher than the level of the floor basement, which can cause water from the garage infiltrating into the house. • There are three cracks on the concrete slab in the garage. • The control joints on the concrete slab are not effective in that their geometry and configuration are incorrect. • There are several subsidences in the paving stones of the front driveway, as well as two cracks. [ 28 ] To support their position, the Owners filed a report from Mr. John Delorme from Deltec [12] , as well as a report from Mr. Nassef Mikheil [13] , and a quotation from Kingsboro [14] .

[ 29 ] On July 26, 2018, at Mr. Samaan’s request, Mr. Nizar Nofal went to the Owners’ house and inspected Consspec’s work. In his report [15] , he concludes that the retaining walls are stable. Although he noticed a small shrinkage crack in the concrete slab, he explains that same does not affect its integrity. The same conclusion applies for the control joints. As for the paving stones, he did not see any ripples, but he remarked that sand was missing between some of the stones, that he attributes to a lack of maintenance. [ 30 ] Again, the evidence is completely contradictory.

The conclusions of the Owners' experts are diametrically opposed to those of Mr. Nofal. [ 31 ] That being said, the Court cannot ignore the fact that the garage floor is now visibly higher than the basement floor. It was established that, prior to Consspec’s work, the garage floor was leveled with the basement floor and a finishing baseboard was separating the two floors. The finishing baseboard separating the garage slab and the house could not be reinstalled by Consspec.

Therefore, the look is not aesthetically acceptable, besides there is now a difference in levels that was not expected, nor accepted, by the Owners. [ 32 ] Mr. Samaan claims that with regard to the flooring of the garage, he followed the instructions given to him by Mrs. Nassif to the effect that the garage floor was to be sturdy and resistant. For that reason, he added several inches of concrete. However, no evidence establishes that Mr. Samaan warned the Owners that the floors would end up unlevelled. As a professional, it was up to Mr.

Samaan to inform his clients of the consequences of their demand, so as to obtain informed consent from them, which he failed to do. Based on the Detailed

Summary, the Court arbitrates at $4,000.00 the amount of damages related to the floor of the garage being unleveled with the basement floor. [ 33 ] As concerns the other alleged deficiencies, the Court is of the opinion that the Owners failed to establish same with compelling evidence. FOR THESE REASONS, THE COURT: GRANTS in part the action of 9284-5577 Québec inc. (Consspec inc.) against Mrs. Jako Nassif and Mr. Naoras Hammoud; CONDEMNS Mrs. Jako Nassif and Mr. Naoras Hammoud to pay $ 14,200.00 to 9284-5577 Québec inc. (Consspec inc.); GRANTS in part the counter-claim of Mrs. Jako Nassif and Mr.

Naoras Hammoud against 9284-5577 Québec inc. (Consspec inc.); CONDEMNS 9284-5577 Québec inc. (Consspec inc.) to pay $ 4,000.00 to Mrs. Jako Nassif and Mr. Naoras Hammoud; Proceeding to operate compensation between the above condemnations, CONDEMS Mrs. Jako Nassif and Mr. Naoras Hammoud to pay $10,200.00 to 9284-5577 Québec inc. (Consspec inc.), with interest at the legal rate and the additional indemnity foreseen by

article 1619 of the Civil Code of Québec , calculated from November 26, 2015, without judicial fees. __________________________________ MARIE-JULIE CROTEAU, J.C.Q. Dates of trial: January 22, April 30 and June 26, 2018