2024 QCCQ 114, 2024 QCCQ 114

McClintock c. Broccon Construction Inc. 2024 QCCQ 114 JG2338 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No. : 760-32-702248-214 DATE : JANUARY 7, 2024 BEFORE THE HONOURABLE PHILIPPE DE GRANDMONT, J.C.Q. SCOTT MCCLINTOCK Plaintiff v. BROCCON CONSTRUCTION INC. Defendant JUDGMENT [ 1 ] Mr. Scott McClintock carries on business in his own name, offering landscaping and excavation services. [ 2 ] Defendant, BROCCON CONSTRUCTION INC., offers construction management services. It is represented by Ms.

Jeannette Broccolini, one of its two directors. [ 3 ] The parties enter into a verbal agreement whereby Mr. McClintock provides three days’ worth of services in April 2019 for the excavation of drain. [ 4 ] The work performed by Mr. McClintock is planned in advance, and not of an urgent nature. [ 5 ] He hereby claims the value of his single invoice in the amount of $8,831.32, which remains fully unpaid, as is admitted by Defendant. [ 6 ] The quality of the work performed and the amount of the invoice are not in dispute. [ 7 ] Rather, Defendant pleads that Mr.

McClintock was obligated, as prior condition for payment, to provide it with five documents, namely: - an acquittance (“ quittance ”) by Mr.

McClintock; - a certificate of compliance from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”); - a letter describing the situation from the Commission de la construction du Québec (also called a “CCQ status letter”); - an attestation from Revenu Québec (the “ARQ”); - a one-year warranty certificate, dated May 31, 2019. [ 8 ] At the hearing, Defendant withdraws its request for the ARQ and the warranty certificate, but maintains that Mr.

McClintock is obligated to provide the other three documents. [ 9 ] It acknowledges that said documents were not specifically mentioned upon the conclusion of the contract, but that their requirement as prior condition to payment constitutes a customary practice in the construction industry. [ 10 ] The law provides that “ a contract validly formed binds the parties who have entered into it not only as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law”. [1] [ 11 ] A usage may be defined as follows: L'usage, coutume au sens strict, peut être défini de façon descriptive comme une règle qui s'est formée par une pratique constante, répétée, publique, uniforme et générale à laquelle les parties intéressées ont donné une force obligatoire.

Il comprend un élément matériel consistant principalement dans l'existence de la pratique constante et générale, et un élément intentionnel résultant de la conviction des personnes qu'elles sont obligées d'agir conformément à une règle de conduite non écrite. Son caractère obligatoire découle principalement de la croyance qu'il s'agit d'une règle juridique nécessaire . [2]

[ 12 ] The party alleging a usage, or customary practice, bears the burden of proving the existence of the same, as well as proving that it is ancient, frequent, generalized, public and uniform . [3] [ 13 ] In the case at hand, Defendant does not succeed in establishing such characteristics of the usage it invokes, nor does it demonstrate that Mr. McClintock expressed his belief that he was bound by such a unwritten usage. [ 14 ] Therefore, Mr.

McClintock is under no obligation to provide the three aforementioned documents by virtue of contract or usage. [ 15 ] The Court will now review each of the three alleged requirements to determine whether it constitutes an incidental obligation of Mr. McClintock pursuant to a statutory obligation. - Acquittance [ 16 ] The “ quittance ” invoked by Defendant (also called “final waiver” in its email to Mr.

McClintock dated October 2, 2019 [4] ) can refer to two kinds of acquittance: - an acquittance to which is entitled a debtor who pays his debt; [5] - an acquittance of a claim of a workman, or of another person who may enforce a legal hypothec on immovable work, in relation to work performed or materials or services supplied, given by said workman or other person to the contractor, and then by contractor to the client; [6] [ 17 ] The first case is not applicable, because the right to the acquittance arises once payment has been made. [7] As payment has not yet been made in the present case, the right to such an acquittance has not arisen. [ 18 ] The second case is also not applicable.

Assuming that Defendant is the client and Mr. McClintock is the contractor, there is no evidence of any claim by a hypothetical workman, subcontractor or supplier reporting to Mr. McClintock, if any, nor of any notice to Defendant of a right to claim by any such workman, subcontractor or supplier. [ 19 ] In addition, no deficiency in Mr. McClintock’s work is alleged. [ 20 ] On the contrary, Defendant enters into evidence a copy of a cheque, in the full amount of Mr. McClintock’s invoice, that it signed on September 9, 2019. This cheque demonstrates Defendant’s intent to pay Mr.

McClintock in full, without any deduction or withholding. [ 21 ] In view of the above, there is no legal obligation on Mr. McClintock to provide Defendant with an acquittance of either kind. - CNESST Compliance Certificate [ 22 ] Although the provision of a compliance certificate by Mr. McClintock could be beneficial to the protection of Defendant’s legal interests, it is not an obligation imposed by law. [ 23 ] In fact, Defendant could itself request from the CNESST information as to whether an assessment is due by Mr.

McClintock, as the case may be . [8] [ 24 ] In the absence of evidence of a legal obligation resting on Mr.

McClintock, Defendant may not invoke a failure to provide a CNESST compliance certificate as grounds for refusing payment. - CCQ Status Letter [ 25 ] In similar fashion, the provision of a CCQ status letter could be protective of Defendant’s legal interests, as the law provides that wages due by a sub-contractor constitute a solidary obligation between the sub-contractor and the contractor with whom he has contracted. [9] [ 26 ] But the law also provides that such solidary obligation is extinguished six months after the end of the work carried out by the employer, unless the employee concerned filed a complaint with the CCQ concerning his wages, a civil action was brought, or a claim was sent by the CCQ before the expiry of the six-month period. [10] [ 27 ] Therefore, considering that work was completed by Mr.

McClintock on April 18, 2019, Defendant’s financial exposure, if any, has long ceased to be. [ 28 ] As this Court has previously found, where the record does not show a claim or complaint regarding unpaid wages within such six-month period , the absence of status letter does not justify failure to pay amounts due . [11] [ 29 ] Here again, in the absence of evidence of a legal obligation on Mr. McClintock, Defendant may not invoke a failure to provide a CCQ status letter for refusing to pay the invoice. [ 30 ] Overall, the Court does not find any contractual, statutory or customary obligation borne by Mr.

McClintock to provide the documents required by Defendant and that would justify the latter’s refusal to pay the invoice. [ 31 ] Consequently, Mr. McClintock is entitled to damages in the amount of the unpaid invoice. [ 32 ] Finally, Mr. McClintock also claims damages in an amount of $1,000 as interest on the unpaid contract price as well as compensation for legal fees he incurred.

[ 33 ] Under the Code of Civil Procedure [12] , lawyer’s fees do not constitute legal costs. Except in cases of abuse of procedure or exceptional circumstances, such fees may not be claimed from the unsuccessful party. [13] Generally, and as in the present case, the payment of such fees does not constitute an injury which may be indemnified through an award of damages. [ 34 ] As for the interest, in the absence of evidence that the parties agreed on a specific contractual interest rate, the damages hereby awarded shall carry interest at the legal rate of 5% per annum.

Such interest shall accrue from the date on which the delay for payment set in Mr. McClintock’s letter of demand expired, being September 4, 2020. WHEREFORE, THE COURT: GRANTS the claim in part; CONDEMNS the Defendant BROCCON CONSTRUCTION INC. to pay to the Plaintiff Scott McClintock the sum of $8,831.32 with interest at the rate of five percent (5%) per annum and the additional indemnity provided for by

Article 1619 of the Civil Code of Québec , as of September 4, 2020 ; WITH LEGAL COSTS awarded in favour of the Plaintiff. Philippe de Grandmont, J.C.Q. NOTICE TO THE PARTIES FILING OF PLEADINGS AND DOCUMENTS Code of Civil Procedure (CQLR, c. C-25.01 ), Art. 108 , 2 nd par.: Any document or real evidence that is filed in the record as an exhibit must remain in the record until the end of the proceeding, unless all the parties consent to its being removed.

Once the proceeding has ended, the parties must retrieve the exhibits they have filed; otherwise, the court clerk may destroy them one year after the date on which the judgment becomes final or the date of the pleading terminating the proceeding. In either case, the chief justice or chief judge, if of the opinion that the exhibits can still be useful, may stay their destruction .