2017 QCCQ 1150, 2017 QCCQ 1150

Construction Gem c. BP Excavation 2017 QCCQ 1150 COURT OF QUEBEC (Civil Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL No: 500-22-221149-159 DATE: February 13, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI J.C.Q. ______________________________________________________________________ CONSTRUCTION GEM Plaintiff v.

BP EXCAVATION Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Construction GEM claims from BP Excavation $18,970.88 for injury it has suffered following the resiliation by BP Excavation of a snow removal contract (P-1) the parties had entered into. [ 2 ] BP Excavation contests the application and files a cross-application in which it claims $14,147.93 from Construction GEM, representing the value of the work performed by BP Excavation prior to the resiliation of the snow removal contract. [ 3 ] Construction GEM’s lawsuit was filed on May 4, 2015.

The trial was scheduled to proceed before the undersigned on January 25, 2017. [ 4 ] On December 2, 2016, the lawyer for BP Excavation obtained the court’s authorization to cease representing his client. On December 28, 2016 BP Excavation was put on notice to appoint a new lawyer, but it failed to do so.

No representative of BP Excavation appeared at the trial and thus, the trial proceeded ex parte and by default. [ 5 ] On January 27, 2017, with the authorization of the Court, Construction GEM filed a detailed affidavit and supporting exhibits in support of its application. [ 6 ] The snow removal contract (P-1) entered into between Construction Gem (the client) and BP Excavation (the contractor) is a contract of enterprise or for services governed by articles 2098 and following of the Civil Code of Québec (CCQ).

According to this contract, BP Excavation agreed to perform snow removal work for the benefit of Construction Gem for the time period January 1, 2015 to April 30, 2015 and for a price of $36,792 inclusive of taxes (P-1). The evidence reveals that on January 8, 2015, BP Excavation unilaterally resiliated this contract. [ 7 ] Under

article 2126 CCQ, a contractor who unilaterally resiliates a contract of enterprise, such as the snow removal contract (P- 1), without a serious reason and at an inopportune moment, is bound to make reparation for the injury caused to the client (Construction GEM) as a result of the resiliation. [ 8 ] After reviewing the evidence submitted by Construction GEM, the Court concludes that BP Excavation unilaterally resiliated the snow removal contract without a serious reason and at an inopportune time. Therefore, pursuant to

article 2126 CCQ it is liable towards Construction GEM for the injury the latter has suffered as a result of the resiliation. [ 9 ] Construction GEM has established that it suffered injury as a result of BP Excavation’s unilateral resiliation of the snow removal contract. Firstly, it incurred expenses of $4,024.13 for emergency work carried out following the resiliation (see P-3). Secondly, it had to find another snow removal contractor in replacement of BP Excavation, at a higher cost. BP Excavation had agreed to carry out the snow removal work for a price of $36,792 inclusive of taxes (see P-1).

The replacement snow removal contractor agreed to perform the same work for $50,589 inclusive of taxes (see P-2). Construction GEM is thus entitled to recover the difference in price, amounting to $13,797 ($50,589 - $36,792). [ 10 ] Accordingly, after reviewing the evidence submitted by Construction GEM, the Court concludes that its application is well founded in the amount of $17,821.13 ($4,024.13 + $13,797). [ 11 ] Moreover, considering that BP Excavation has submitted no evidence in support of its cross application, the Court dismisses the cross-application.

FOR THESE REASONS, THE COURT: [ 12 ] GRANTS Construction Gem’s Application in part; [ 13 ] DISMISSES BP Excavation’s Cross-Application; [ 14 ] CONDEMNS BP Excavation to pay to Construction GEM $17,821.13 with interest at the legal rate plus the additional indemnity provided for in

article 1619 CCQ from February 26, 2015; [ 15 ] THE WHOLE with legal costs. __________________________________ ENRICO FORLINI J.C.Q. Me Sara Lyna Julien Lombardo Maria R. Battaglia avocats Counsel for Construction GEM