2011 QCCQ 15778, 2011 QCCQ 15778

Nnadozie c. Construction Pointe Sud Île-des-Soeurs 2011 QCCQ 15778 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-117757-098 DATE: December 22, 2011 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ KENT NNADOZIE UGOCHI NNADOZIE [...] Île-des-Soeurs, Quebec [...] Plaintiffs v.

CONSTRUCTION POINTE SUD ÎLE-DES-SOEURS 450 André-Prévost Verdun, Quebec H3E 0A5 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs, Kent and Ugochi Nnadozie, purchasers of a townhouse from the Defendant, Construction Pointe Sud Île-des- Soeurs inc. ("Construction Pointe Sud") seek to cover the amount of $6,895, the amount by which they feel they were overcharged in the sale of the townhouse in June 2008. [ 2 ] The Defendant denies the claim, asserting that the immovable was delivered at the price agreed to according to the contract documents, including the preliminary contract with its schedules and modifications and the notarised deed of sale. [ 3 ] The Plaintiffs refer to a meeting between Ugochi Nnadozie and one of the Defendant's representatives, Benoît Fortier, occurring after the transfer of title and possession. [ 4 ] They assert, that their dispute was settled by Mr Fortier, but that the Defendant never acknowledged this settlement.

ISSUE [ 5 ] The Court must determine whether the Plaintiffs are entitled to a reduction of their sale price and, therefore, a reimbursement either pursuant to the contract of sale or a subsequent contract of transaction. FACTS [ 6 ] The initial document entitled "PRELIMINARY CONTRACT AND MANDATORY GUARANTEE NEW RESIDENTIAL BUILDING" refers to the immovable to be built and sets out the price including taxes and the modalities of payments to be made progressively throughout the project. [ 7 ] The total price inclusive of taxes is $615,776 (P-2).

The document refers to annexes 1 through 22, which include plans and specifications and various contractual documents referring to the immovable to be built more specifically. [ 8 ] At one point, Ugochi Nnadozie met with the project's designer, Nathalie Harvey, to speak about adding a second bathroom and other changes, including a bedroom and walk-in closet in the loft.

[ 9 ] These discussions, led to the signature of document entitled « Modifications après remise du dossier » it is signed by Mrs Nnadozie but not by the Defendant. [ 10 ] The document (D-1) shows extras to the initial contract price for the creation of a bedroom and a walk-in closet in the loft and unfinished bathroom in the loft including only rough plumbing and gyproc walls, plus electricity, ventilation and other miscellaneous items that are not important for this discussion. [ 11 ] The modifications add up to $14,255 plus taxes. [ 12 ] Mrs Nnadozie explained that the reason she opted for an unfinished bathroom is that she had been told by Nathalie Harvey that it would cost between $13,000 and $14,000 whereas the inclusion of the rough plumbing only would cost $2,645. [ 13 ] Mrs Nnadozie speaks of pressure throughout the process by the lender and the Defendant.

Failure to meet certain timeframes for the signature of documents could result in construction delays. Throughout part of this time, Mrs Nnadozie was alone; her husband being oversees because of professional commitments. [ 14 ] The deed of sale notarised June 9, 2008 declares the sale price at $560,838,40 plus GST and QST for a total of $639,075.35. The difference, $20,447, is detailed in a list of credits and extras annexed to the contract of sale by the notary. The most important item, referred to as

annexe 3 corresponding to exhibit D-1, is the list of modifications totalling $14,255 plus taxes. [ 15 ] After the sale, when the purchasers took possession, Mrs Nnadozie assessed the situation and informed herself as to the usual prices for the extras she had bargained for.

She became convinced that she had been overcharged. [ 16 ] One of her neighbours had obtained an extra bathroom for roughly $11,000, based on some of the figures they had received from Nathalie Harvey and from other sources. [ 17 ] Rightly or wrongly, she came to the conclusion that she should have been charged $7,250 rather than $13,735 for this specific extra she had negotiated, a bedroom and walk-in closet. [ 18 ] She obtained a meeting with Benoit Fortier whom she had known as the person in charge of the construction for the Defendant.

He met with her with another individual, Christian Larose who was introduced to her as the person taking over Mr Fortier's functions, as he was leaving the project. [ 19 ] According to her testimony, Mr Fortier acknowledged that she should have been charged roughly the equivalent of three times $2,800, the price of constructing an office in the open mezzanine space. [ 20 ] According to her discussion with Mr Fortier, the changes she had obtained were the equivalent and would have been charged at roughly $7,250, according to the normal prices being negotiated at the time. [ 21 ] Having acknowledged this overcharge, Mr Fortier then asked her whether she would like a refund of $6,895 or the construction of a finish bathroom for which the rough plumbing had already been done. [ 22 ] The discussions proceeded to questions of scheduling and no date was set because Mrs Nnadozie was planning a trip; the work would be carried out after her return. [ 23 ] None of these discussions were put down in writing and, after Mr Fortier's departure from the employ of the Defendant, the latter refused to acknowledge that there was any agreement whatsoever and, as is the case in the contestation, referred to the notarised contract of sale and the preliminary documents.

ANALYSIS [ 24 ] From the documentary evidence preceding the deed of sale, it is not particularly easy for the proverbial bystander to understand how the parties arrived at the price for the modifications. [ 25 ] The deed of sale, however, and one must assume that the notary read and explained the deed to the parties, clarifies the price and incorporates the documents that are critical to establishing that price. [ 26 ] Mrs Nnadozie's testimony, when considered in conjunction with these documents, makes it clear that she did not think she was getting a finished bathroom for the price she had negotiated.

Her point, however, is the she was overcharged for the modifications she did receive, and that for the price, she should have had more. [ 27 ] From her point of view, she had been pressured into the agreements because of time constraints and she agreed so as not to delay the delivery.

She approached the Defendant after the delivery stating her dissatisfaction and referring to prices that had been negotiated with other purchasers in the same period and certain understandings she had gained about the applicable prices through her discussions with the designer. [ 28 ] Not being privy to the inside arrangements of the Defendant as a corporation, she could not know to what extent Mr Fortier was, in fact, authorised to deal with her in these matters. He certainly appeared to be a person of authority being in charge of the construction.

There was no reason for her to doubt both his sincerity and his authorisation to deal with her on what was, objectively, a fairly minor dispute representing approximately 1% of the total value of the transaction. [ 29 ] The Court is, therefore, inclined to treat the question of Mr Fortier's authority as being determined by the indoor management rule or the related principle of apparent mandate.

[ 30 ] A representative of the Defendant present at the hearing, Chantal Grenier, Comptroller, stated that she did not know what the tenor of Mr Fortier's discussions might have been.

He had the role of negotiating with customers, but solutions would have to be ratified by someone more senor in the organisation, a Mr Allard, to be considered binding. [ 31 ] While the Court is prepared to accept that this may be true as a question of internal management, the Plaintiffs could not have known what the actual lines of authority were and they were justified in relying upon the authority that they perceived Mr Fortier to have: he was sent by the Defendant to solve the issue. [ 32 ] Cases involving conflicting testimonial proof of contractual matters are often difficult.

In the present case, however, the Defendant provided no evidence to contradict the direct testimonial evidence given by Mrs Nnadozie to the effect that her dispute had been settled with an agreement. [ 33 ] The contract she describes is a contract of transaction. [ 34 ] The Court, therefore, refrains from any comment on the positions the parties might have had in their disagreement prior to this agreement, and considers that it is sufficient to simply state the tenor of the settlement agreement as demonstrated through the evidence. [ 35 ] Testimony is admissible because this is a contract carried out by the Defendant in the ordinary course of its business. [ 36 ] The Defendant chose not to call Mr Fortier or his successor, Christian Larose nor for that matter was Mr Allard present to contradict the testimony provided by the Plaintiffs. [ 37 ] That evidence, uncontradicted, is a sufficient basis for the Court to find that the contract of transaction exists.

The Plaintiffs seek a refund of $6,895 which is one of the options they were given by Mr Fortier and represents roughly the value of the construction that they had agreed could be carried out to resolve their dispute. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay, to the Plaintiffs the sum of $6,895, 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 April 9, 2009; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $157. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 5, 2011