2015 QCCA 961, 2015 QCCA 961

A & S Tuckpointing Enterprise Inc. c. Szalavetz 2015 QCCA 961 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022101-117 (500-17-017825-038) MINUTES OF THE HEARING DATE: June 2, 2015 CORAM: THE HONOURABLE FRANCE THIBAULT , J.A. MARTIN VAUCLAIR , J.A. MARK SCHRAGER , J.A. APPELLANT COUNSEL A & S TUCKPOINTING ENTERPRISE INC. Mtre DOMINIQUE ZAURRINI Mrs EMILIE DUQUETTE, student-at-law (Zaurrini Avocats) RESPONDENTS COUNSEL HOWARD SZALAVETZ DAVE SZALAVETZ Mtre MARVIN ALLAN SEGAL M tre PIERRE FRANÇOIS MCNICOLLS (Pinsky, Zelman, Segal, Santillo) IMPLEADED PARTY COUNSEL THE LAND REGISTRY OFFICE FOR THE DISTRICT OF MONTREAL

On appeal from a judgment rendered on September 15, 2011 by the Honourable Mr. Justice Jean-Pierre Sénécal of the Superior Court District of Montreal NATURE OF THE APPEAL : Enterprise contract Clerk: Julie B. Gravel Courtroom: Pierre-Basile-Mignault HEARING 9:30 Commencement of the hearing. Comments by the Court. 9:35 Submission by Mtre Zaurrini. Mtre Zaurrini submits a copy of the text of conference’s summit of construction lawyer’s. Comments by the Court. 10:37 Mtre Zaurrini submits a copy of his pleading’s outline. 11:04 Suspension of the hearing. 11:32 Resumption of the hearing.

The Court submits that it will not be necessary to hear Respondents’ counsel and that the reasons will be added to the minutes of the hearing. Judgment – See page 3. 11:33 Conclusion of the hearing. (

s) Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Jean-Pierre Senécal), of September 15, 2011, condemning Appellant to pay to Respondents $ 105 462.97 with interest and special indemnity and ordering the discharge of the legal hypothec (construction) registered by Appellant against the Respondents’ immoveable property. [ 2 ] On March 27, 2002, Respondents entered into a fixed price contract with Appellant for the latter to repair the concrete on the exterior columns and balconies of Respondents’ high-rise apartment building for a total price of $ 130 725.91. [ 3 ] Respondents claimed in first instance the sum of $ 209 007.52 in damages caused by Appellant’s faulty workmanship in

executing the contract.

Appellant counterclaimed for the sum of $ 105 158.72 representing the balance unpaid of the contract price and extras ($ 55 212) for work beyond the scope of the contract and not included in the fixed price to which Respondents allegedly agreed. [ 4 ] After a lengthy detailed analysis of the evidence and consideration of the issues, the judge concluded that Appellant owed Respondents $ 138 144.44 in damages caused by the faulty execution of the contract from which the judge deducted $ 32 681.47 being the balance unpaid on the original contract price to arrive at the amount of the condemnation.

Aside from interest and special indemnity, the judge also awarded experts’ costs to Respondents of $ 20 179.34. [ 5 ] In dismissing the cross-demand, the judge concluded that no agreement to modify the contract price had been proved so that applying

Article 2109 C.C.Q. , the “extras” claimed by Appellant were not due by Respondents. [ 6 ] The first ground raised by Appellant does not resist analysis. Appellant asserts two errors on the part of the judge in refusing the claim for extra work not included in the fixed price.

Firstly, Appellant argued that Respondents’ failure to disclose the pre-purchase building inspection report constituted a breach of Respondents’ obligation to inform their co-contracting party of relevant information resulting in liability to compensate Appellant for the additional cost occasioned by such failure to inform. [ 7 ] In fact, the report which was filed in evidence at trial reveals the inspector’s observation that : (…) Repairs are required to extensive cracking and delaminated parging on the surface of the structural columns (…). The report also makes reference to the condition of the balconies.

In short, there is nothing in the report that the Appellant’s representatives could not observe during their own inspection of the building giving rise to their determination of the work to be done and the fixed price for such work as reflected in a contract which they prepared and Respondents accepted. Moreover, no proof was offered to establish what effect, if any, the report would have had on the work.

Appellant’s legal argument has no basis in fact as Appellant was not deprived of any decisive information. [ 8 ] Secondly, Appellant argued that Respondents consented to a price increase through their consultant/expert, Mr. Carter, and tacitly by making partial payment, for extra work. [ 9 ] After a detailed analysis, the judge concluded that not only had Appellant failed to prove any agreement to increase the contract price, but the evidence disclosed the contrary.

It was Appellant from virtually the first day of work on the site, (without any discussion or advice to Respondents) who decided unilaterally to change the method of the work with a view to saving time and money. There was no proof of any acceptance of extras by Respondents or their representative. The progress payments that Respondents made did not in fact amount to acceptance of the extras. Moreover, the payments in question (being less than the amounts invoiced) were made by Respondents when the project was well behind

schedule and Respondents feared that Appellant would not return to the work site unless funds were received. No palpable error in the judge’s fact finding has been established. [ 10 ] Appellant submits that the judge erred in not applying any depreciation to the quantification of the damages awarded to Respondents to compensate for the damage caused to the awning roof and the balcony railings of the building. [ 11 ] The judge took note of the experts’ unanimous opinion that the normal life of the roof (installed in 1999) was 20 years.

The damage was caused by Appellant 3 years after the roof had been installed. [ 12 ] As for the balcony railings, approximately half (numbering 86) were damaged by Appellant necessitating their replacement. However, in order to conserve the appearance of the building, Respondents replaced all the railings. Nevertheless, Respondents only claimed compensation for the 86 railings damaged by Appellant.

Though the railings were approximately 6 years old, the judge did not include a factor for depreciation since, in his assessment of the quantum, Appellant’s fault had in effect necessitated the replacement of the undamaged railings as well.

This, in the judge’s view, cancelled out any consideration for depreciation on the cost of replacement of the damaged railings. [ 13 ] Quantification of damages is an exercise which requires deference; a court of appeal should not intervene unless the trial judge has committed an error of law or the compensation awarded is manifestly incorrect. [1] The application of a factor for depreciation to the calculation of damages is an exercise of judicial discretion and is not a science. [2] [ 14 ] In applying these principles, we discern no error that could warrant appellate intervention into the exercise of discretion by the judge not to include any consideration for depreciation of the 3 year-old roof.

Our comment is likewise regarding the judge’s reasoning not to include any depreciation in the award for the damaged balcony railings. His thought process was rational, logical and reasonable and based on evidence in the record. [ 15 ] The other grounds raised by Appellant are pure matters of fact: the judge’s alleged errors in concluding that Appellant had not applied 2 layers of paint to the columns as stipulated in the contract and that Appellant had in fact caused the damage to the awning roof and the balcony railings.

The judge’s analysis considered all of the evidence and assessed the credibility of all witnesses including experts. In the end, the judge preferred the evidence of Respondents’ experts and relied on one of Appellant’s former employees who was actually on site and observed the execution of the work ruled negligent by the judge.

The Appellant has not demonstrated any palpable error in the judge’s findings that could justify an intervention at the appellate level. [ 16 ] Lastly, the determination that Appellant’s legal hypothec was registered beyond 30 days after the end of the work is one of fact and again no palpable error has been demonstrated.

In any event, as the judge indicated, given the other findings, there was no plus value which had not been the subject of a payment by Respondents so that the order to radiate the legal hypothec could stand on this basis alone. [ 17 ] FOR THESE REASONS, THE COURT : [ 18 ] DISMISSES the appeal, with costs.

FRANCE THIBAULT, J.A. MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A.