2023 QCCQ 1936, 2023 QCCQ 1936

Security Electricity Services Inc. c. Innovative Composite Products Inc. 2023 QCCQ 1936 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No: 500-32-711886-202 DATE: April 25, 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MÉLANIE DUGRÉ, J.C.Q. ______________________________________________________________________ SECURITY ELECTRICITY SERVICES INC. Plaintiff v. INNOVATIVE COMPOSITE PRODUCTS INC.

Defendant __________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Security Electricity Services Inc. ( SES ) claims $10,584.51 from Innovative Composite Products Inc. ( ICP ) for unpaid electrical work performed between May and September 2019 on ICP’s premises. [ 2 ] ICP denies owing any further amount to SES, because ICP was charged for electrical material that it was supposed to provide itself and because the work performed did not meet the industry standards. [ 3 ] ICP also filed a cross-application against SES, claiming $12,000 on the basis that the work performed is of poor quality and will need to be redone by another electrical contractor.

ISSUES [ 4 ]

a) Did SES correctly perform its contractual obligations to support its claim for unpaid work?

b) To support its cross-application, did ICP establish that SES’ work was below standards and that it is entitled to be compensated for corrective work? [ 5 ] For the reasons explained below, the Court concludes that SES correctly performed its contractual obligations and that ICP did not establish that SES’ work was below standards. CONTEXT AND ANALYSIS

a) Did SES correctly perform its contractual obligations to support its claim for unpaid work? [ 6 ] In civil matters, the burden of proof is on Plaintiff’s shoulders in accordance with the principle provided in

article 2803 of the Civil Code of Québec ( C.C.Q. ), which states that “A person seeking to assert a right shall prove the facts on which his claim is based.” [ 7 ] The Court decides on the balance of probabilities, [1] which means that the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 8 ] In addition, when the evidence adduced is not sufficiently convincing, or if the evidence is contradictory and it is impossible for the judge to identify the truth, the party upon whom the burden of proof lies will lose. [2] [ 9 ] SES is a company which has been operating in the field of electricity since 2016. [ 10 ] In May 2019, ICP retained SES’ services because it was moving its operations from one location to another, and various electrical work had to be performed. [ 11 ] Relationships between the parties went well for a while and most invoices issued by SES between May and September 2019 [3] were paid through ICP’s cheques, [4] except for a balance of $2,727.69. [ 12 ] As additional work still had to be performed, SES issued a new quote on September 18, 2019, at an hourly rate of $166.58. [5] [ 13 ] SES’ representative, Ms.

Arezoo Zadehmorshedbeik, testified that she reported to ICP on a daily basis about the time spent and the work performed by SES’ technicians in order to obtain IPC’s approval.

[ 14 ] Ms.

Zadehmorshedbeik also explained that there would be a delay of approximately one month between the date where the work was performed and the date where the invoice was issued. [ 15 ] This additional work performed by SES in September 2019 therefore led to a new invoice dated October 27, 2019 for an amount of $6,883.72, [6] which remains unpaid by ICP. [ 16 ] To support its position that it is justified not to pay this invoice, ICP alleges that SES sent unexperienced technicians to perform the work, that the quality of the work was below standards and that ICP was charged for material that it was supposed to provide. [ 17 ] In an attempt to address ICP’s concerns, SES provided distinct invoices to isolate material from the technicians’ work.

The October 27, 2019 invoice was therefore split in two, with one invoice reflecting the work performed ($3,324.73) and the other the price of the material ($3,558.99). [7] [ 18 ] SES explained that it was agreed with ICP that the September 18, 2019 quote [8] included the material because SES could not simply provide all invoices from its various manufacturers. [ 19 ] SES also offered to ICP to send an inspector from the Régie du Bâtiment du Québec ( RBQ ) to verify the quality of the work performed. [9] ICP did not follow up on this invitation, alleging that too much delay had elapsed since completion of the work. [ 20 ] Furthermore, SES provided the competency certificates for the technicians who worked on ICP’s premises, [10] which confirm that they are duly licenced. [ 21 ] Despite these explanations, ICP nonetheless maintained its position and has refused to pay the balance still owed to SES. [ 22 ] While the Civil Code of Québec does allow a client to withhold from the price, until corrections are made, a sufficient amount to meet the reservations which he made as to the apparent defects or poor workmanship that existed when he accepted the work, [11] ICP nonetheless had the burden to prove that such defects actually existed. [ 23 ] The Court finds that beyond a general complaint that the work was below standards, ICP did not, until the filing of Vision NL Inc.’s report in May 2021, [12] provide any details as to what the defects were. [ 24 ] Moreover, ICP did not request corrections from SES nor did it require the involvement of RBQ. [ 25 ] ICP filed a complaint with the Corporation des maîtres électriciens du Québec ( CMEQ ), [13] but no conclusion has yet been reached.

Such conclusions would not, in any event, bind a civil court. [ 26 ] The Court finds no evidence that the work performed in September 2019 was in any way different from the work performed between May and August 2019, for which ICP paid most invoices without expressing any concerns. [ 27 ] It rather appears that ICP tried to push back on the October 27, 2019 invoice, [14] because it was related to work billed on an hourly basis rather than based on a lump sum quote. [ 28 ] Despite the delay that elapsed between the work and the invoice, the fact remains that the work was duly performed, with no defects that would justify ICP’s refusal to pay. [ 29 ] The Court therefore concludes that SES has met its legal obligations to act in accordance with usage and good practice and that it ensured that the work supplied was in conformity with the contract. [15] [ 30 ] As a result, SES has met its burden of proof to show that it is entitled to payment of unpaid amounts. [ 31 ] SES claims $9,611.41 for work performed and this amount is supported by the invoices filed as exhibits.

SES also adds contractual interests of 10% provided for on the invoices. [ 32 ] However, a client’s consent is mandatory in order to bind him to an interest rate different from the legal rate. [ 33 ] The notion of consent implies that the client be duly informed of this interest rate and its consequences and that he expressly agrees to be bound by it. [ 34 ] It has been established that the mention of a contractual interest rate on an invoice does not create an obligation for the client to pay a contractual interest rate higher than the legal rate.

A unilateral mention about an interest rate on an invoice does not result in a specific commitment. [16] [ 35 ] Under these circumstances, the Court grants the interests at the legal rate since the December 12, 2019 demand letter.

b) To support its cross-application, did ICP establish that SES’ work was below standards and that it is entitled to be compensated for corrective work? [ 36 ] ICP’s witness, Mr. Octavio Ubaldo, testified that in March 2020, he noticed some problems with the lights on ICP’s premises. Some of them were simply not working while others were suddenly turning off by themselves. [ 37 ] To support its position that the problems were caused by SES’ work, ICP filed a report dated April 26, 2021 prepared by Vision N.L. Inc . [17] [ 38 ] While this report does confirm that some lights suddenly turn off periodically, it does not specifically conclude that SES’ work is the cause of the problem.

[ 39 ] The report however includes a list of suggested corrective work for a total amount of $12,000. [ 40 ] The Court finds the reliability of this report to be poor for several reasons. [ 41 ] First, it was drafted by a light manufacturer who is determined to show that the problem is not caused by the lights themselves, but by an external cause, such as the installation performed by an electrical technician. [ 42 ] Second, ICP’s cross-application for $12,000 was filed on December 3, 2020 while Vision N.L. Inc.’ s report is dated April, 26, 2021.

The Court finds it surprising that the amount claimed in the cross-application perfectly matches the amount of corrective work suggested by Vision N.L. Inc. more than four months later. [ 43 ] Third, SES’ representative, Mr.

Mehran Akbari, testified that on January 24, 2020, he conducted a final inspection of the work performed on ICP’s premises, which did not reveal any problems or defects. [ 44 ] SES further alleges that after they completed the work, ICP hired another electrical technician to perform additional work on its premises and that SES had no control over the nature of this work and its quality. [ 45 ] ICP admits this allegation and acknowledges that additional electrical work was performed on its premises after SES’ departure.

As a result, the Court cannot rely on a report that was drafted more than one year after SES had completed its work and after technicians unrelated to SES performed additional work. Such report simply does not support ICP’s position that SES’ work was below standards. [ 46 ] The Court therefore concludes that the allegations contained in ICP’s cross-application are not supported by the evidence and that ICP did not meet its burden of proof.

FOR THESE REASONS, THE COURT: GRANTS in part Security Electricity Services Inc.’s application; DISMISSES Innovative Composite Products Inc.’s cross-application; CONDEMNS Innovative Composite Products Inc. to pay $9,611.41 to Security Electricity Services Inc. with interests at the legal rate and the additional indemnity under

article 1619 C.C.Q since the demand letter of December 12, 2019; CONDEMNS Innovative Composite Products Inc. to pay to Security Electricity Services Inc. the legal costs of $313 for the application. __________________________________ MÉLANIE DUGRÉ, J.C.Q. Hearing date: April 5, 2023