2014 QCCQ 6541, 2014 QCCQ 6541

Gouda c. Abdulrazik 2014 QCCQ 6541 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-133754-129 DATE: June 17, 2014 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ADEL GOUDA […] St-Leonard, Quebec, […] Plaintiff v.

IBRAHIM ABDULRAZIK […] St-Leonard, Quebec, […] and 9000-0316 QUEBEC INC. 8050 Comtois Street St-Leonard, Quebec, H1P 2N7 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Abdel Gouda, owner of a property located at 5360 Jean Talon East, sues the Defendant 9000-0316 Québec Inc., a contractor, alleging that works that Quebec Inc. undertook involving the repair of a balcony and stairs as well as the installation of a French drain around the building were never completed and were faultily performed. [ 2 ] He claims damages, including lost rentals, for the maximum amount permitted in the Small-Claims Division, $ 7,000. [ 3 ] His claim against Ibrahim Abdulrazik, the principal of 9000-0316 Québec Inc. was withdrawn by way of a discontinuance. [ 4 ] 9000-0316 Québec Inc. contests, asserting that all works were completed and were of good quality.

It amended its contestation at the hearing, in the presence of Mr Gouda, to add a cross-demand for a balance owing on the contract of $ 1,000 plus the taxes collectible on the contract price for a total of $ 3,750. The contract price and payments [ 5 ] The contract, dated March 31, 2011 (P-1) provided for a fixed price of $ 11,500 plus taxes. At the applicable rates at that time GST 5% and QST 8.5%, the price, taxes included was $ 13,101.38.

Mr Gouda testifies that he paid a total of $ 10,500 and, although he was not able to prove all of these payments through written evidence, 9000-0316 Québec Inc. admits having received these amounts.

[ 6 ] Hence the claim for the balance, of $ 3,750 based on the rates in effect in 2012, would have to be reduced to $ 2,601.38. The French-drain works [ 7 ] The Plaintiff asserts that this part of the contract was incomplete because the excavation once backfilled, is not finished with asphalt. On one side of the building is an asphalted driveway. In fact, the contract did not provide for finishing of the back fill with a coat of asphalt, only to "fill back and do the cleaning".

The assertion that the contract included paving is not proved, and this aspect of the claim in therefore not supported. [ 8 ] The assertion is also made that the French drain was not property installed, but no evidence was made to prove this. [ 9 ] Finally, though it is not mentioned in the written application, Mr Gouda complains that 9000-0316 Québec Inc. did not use the right type of membrane on the foundation or that it was not property installed. There is no evidence to support these allegations.

Repairs to the balcony and stairs [ 10 ] A less substantial part of the contract was to carry out certain repairs to a concrete balcony and stairs. The contract reads: For the stairs, and balcony close the ceramic joints where needed. Change front of staires-ciramic and do the joints. Repair the side of staires with epoxy insid and outside [sic] [ 11 ] Mr Gouda stated in his testimony that, after these repairs were completed, water continued to infiltrate into areas located below the balcony.

He claims that he lost substantial amounts of rent because he could not lease commercial premises situated in the areas affected. [ 12 ] Mr Abdulrazik explains that he carried out the minor repairs to the tiles and joints that cover the structure. Mr Gouda worked with him.

He told Mr Gouda that the drainage problem could not be solved unless the slope of the surface was corrected and that, without these works, which were not part of the contract, the esthetic repairs would not have any lasting effects. [ 13 ] In the Court's view, the contract is clear that these are only minor cosmetic repairs consisting in the filling of cracks and closing open joints with finishing materials. How could it be otherwise: the contract included the installation of a complete French-drain system ? The lion's share of the rather modest contract price would have been consumed by the French-drain works.

The esthetic repairs to the balcony and stairs were only a small part of the price.

It is, at the least, very unlikely that the contract included major work to correct a problem of water infiltration, when the only work stipulated in the written agreement consists of minor repairs. [ 14 ] As well, the claim for lost rentals is altogether remote from the claim, and has not been proved to have a causal relationship with the alleged fault, the only evidence being the production of various lease documents. [ 15 ] The plaintiff's claim fails, and the cross demand for the balance of payment is well founded BY THESE REASONS, THE COURT: DISMISSES the Plaintiffs’ Demand; GRANTS, in part, the Cross-Demand of the Defendant 9000-0316 Québec Inc.; CONDEMNS the Plaintiff to pay to the Defendant, 9000-0316 Québec Inc., the amount of $ 2,601.38, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of the judgment. CONDEMNS the Plaintiff to pay, to the Defendant 9000-0316 Québec Inc., judicial costs of $ 199. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 15, 2014