2018 QCCQ 5011, 2018 QCCQ 5011

Société immobilière Black Lion inc. c. Carmichael ltée 2018 QCCQ 5011 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-156547-178 DATE: June 12, 2018 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ SOCIÉTÉ IMMOBILIÈRE BLACK LION INC. Plaintiff v.

CARMICHAEL LTÉE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] After six (6) announcements, four (4) of them throughout the entire Courthouse by the Court Clerk, no representative of the Defendant Carmichael Ltée ( Carmichael ) appeared. [ 2 ] The Plaintiff, Société immobilière Black Lion Inc. (hereafter « Black Lion »), appeared through its representative, Robert Simatos. [ 3 ] Given the failure of Carmichael to appear, the Court proceeds by default. [ 4 ] On or around June 2, 2016, Black Lion contracted with Carmichael to carry out an upgrade to the refrigeration/air conditioning system of the building owned by Black Lion. [ 5 ] According to the representative of Black Lion, as part of the contract, Carmichael, acting through Mr.

Mitchell Gitelman, specifically agreed to bring down the existing four air conditioning units on the roof of the building. [ 6 ] The lowering of the old units was to have been effected at the time of the work, by using the same on-site crane employed to lift the new refrigeration unit to the roof. Unfortunately, at the time of the work, Carmichael forgot to remove the old units. Carmichael acknowledged that it had the responsibility to do so under the contract and agreed to send persons later to carry out that work [1] . [ 7 ] On January 18, 2017, a representative of Carmichael, Mr.

Benoit Fievet, attended at Black Lion’s building in order to effect the work. Unfortunately, Mr. Fievet was alone and the work involved required several people, or at least some equipment, in order to properly lower the old units to the ground, without damaging them. [ 8 ] Mr. Fievet had no idea what to do, alone, to remove them. Without the consent of the representative of Black Lion on site at the time, Mr. Robert Simatos, Mr. Fievet threw one of the four units from the roof of the building to the ground.

This broke the unit and released Freon, which appears to contravene applicable environmental legislation, as well as having the result of irremediably breaking and damaging the unit [2] . [ 9 ] According to the evidence, these units were only six (6) years old at the time. They had an initial cost of $2,800 each, including

taxes. The Court arbitrates that after six (6) years, they had a remaining value of $1,200 each. [ 10 ] Mr. Simatos was shocked by this act and told Mr. Fievet that he needed to lower the units without damaging them. As Mr. Fievet had no idea how to do that, he left the premises. [ 11 ] On June 6, 2007, Black Lion wrote to Carmichael, requesting that this and other work to complete the contract be done [3] .

That request was ignored by Carmichael. [ 12 ] Furthermore, the contract states that acoustic insulation was to be supplied in each supply air for the first ten (10) feet in all directions, as well as in all return air duct work. According to the evidence, this work was also not effected by Carmichael. [ 13 ] Black Lion wrote to Carmichael, requesting completion of that work, but again, its request was ignored. [ 14 ] Black Lion also claims for damages resulting from the non-receipt of a grant mentioned by Carmichael in the contract.

However, according to the contract, Carmichael is obliged to only “assist” Black Lion in obtaining the grant. If Black Lion does obtain the forms and requests Carmichael to complete them and provide confirmation of work, Carmichael would be obliged to comply. At this point, Black Lion has not sent the required forms to Carmichael. [ 15 ] Finally, Black Lion claims damages for an abuse of right committed by Carmichael in registering a construction hypothec on the property when the contract was still not fully performed by Carmichael.

According to the evidence, Carmichael acted aggressively but there is no proof of abuse or fault giving rise to civil liability in that regard. [ 16 ] The damages of Black Lion are therefore : 1) Lost air conditioning unit ($1,200); 2) Costs to lower to the ground the three other air conditioning units ($500); 3) Loss of value of units resulting from the omission of Carmichael to lower the units in a reasonable time from execution of the work ($100 each, totalling $300); and 4) Cost to carry out work to install acoustic insulation as stipulated and in accordance with the contract ($1,200); Total: $3,200.

FOR THESE REASONS, THE COURT: CONDEMNS Carmichael Ltée to pay to Société immobilière Black Lion Inc. the amount of $3,200, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the date of the Demand Letter (Exhibit P-4), June 6, 2017; CONDEMNS Carmichael Ltée to pay to Société immobilière Black Lion Inc. $300 as legal costs (court stamp fee).

__________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: June 12, 2018