2016 QCCQ 2673, 2016 QCCQ 2673

Vardaro c. Battaglia 2016 QCCQ 2673 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142432-147 DATE: March 30, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ ENzo vardaro -and- ARTITALIA GROUP INC. Plaintiffs v.

Sandro Battaglia Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs claim from Mr. Sandro Battaglia an amount of $5,748.88 representing the price of an interior design contract that Mr. Battaglia terminated prior to its completion. [ 2 ] Mr. Battaglia refuses to pay because he claims that Plaintiffs’ design work was of so little use to him that he had to retain another designer to start over.

By way of a counterclaim, he seeks damages of $7,000 on the basis that the opening of his men’s tailoring shop was delayed as a result of Plaintiffs’ fault. FACTUAL CONTEXT [ 3 ] In the fall of 2012, Mr. Battaglia retained Mr. Enzo Vardaro of Artitalia Group inc. (« Artitalia ») to complete the interior design of the new premises into which he was preparing to move his men’s custom tailoring business (the « Premises »). [ 4 ] On December 14, 2012, Mr. Vardaro and Mr. Battaglia reached a verbal agreement (the « Contract ») as to the terms of the retainer.

For a fee of $5,000 (plus applicable taxes), Plaintiffs would provide the following design services: “- Mood Ideation (Initial Concept) - Weekly Site Visits - Site Survey (To measure out the existing space) - Floor plans of new build out - Elevations plans of new build out - Reflected Ceiling/Lighting Plan of new build out - Electrical Plan of new build out - Interior Design Concept - Materials and Finishes Samples (Wall, Ceilings, etc.) - Company Logo” [1] [ 5 ] The Contract was for design only and Mr.

Battaglia was responsible for hiring a general contractor and any other suppliers needed to realize the design. [ 6 ] Design work had to get under way quickly, as Mr. Battaglia wanted to move his office and production activities into the Premises as soon as possible, with the retail shop opening in the spring of 2013. [ 7 ] Mr. Battaglia’s total budget for refurbishing the Premises, including design, was $30,000 to $40,000. He claims that he advised Mr. Vardaro of this budget, but Mr. Vardaro denies this. [ 8 ] As soon as the Contract was in place, Mr.

Vardaro visited the Premises to obtain exact measurements and discussions began regarding the general direction of the design. Work was then suspended for the Christmas holidays.

[ 9 ] On January 18, 2013, the design plans and drawings were ready and they were presented to Mr. Battaglia. [2] Mr. Vardaro also provided him with the coordinates of a general contractor, as he had not yet hired one. [ 10 ] On January 26, 2013, the interior design concept was also complete and 3D designs showing materials and finishes for the display fixtures in the retail shop were presented to Mr. Battaglia, along with proposed logos. [3] He appeared satisfied and asked for sketches to be prepared to get a clearer view of what the Premises would look like, while Mr.

Vardaro and his team continued to gather materials and finishes (wallpaper, ceiling tiles, finishing for the wood floors, etc.) for the Premises. [ 11 ] At the end of January 2013, Mr. Battaglia advised Mr. Vardaro that he had decided to act as general contractor and to carry out some of the construction work himself with friends and family. He had not yet hired a supplier to build the display units and furniture and Mr. Vardaro put him in contact with a supplier of Artitalia. A few days later, the supplier provided an estimate of over $86,000 to build the display fixtures, [4] which was too expensive for Mr.

Battaglia’s budget. [ 12 ] On March 4, 2013, Mr. Battaglia asked Mr. Vardaro to meet with him. He admits today that he had decided that the design was not working and that he wanted to terminate the Contract. The meeting only took place on March 26, 2013, however, at which time Mr. Battaglia told Mr. Vardaro that he was unhappy with the design. He offered to pay $2,000 which represented, in his opinion, the value of Plaintiff’s work and when Mr. Vardaro refused, he advised him that the Contract was terminated. [ 13 ] Unbeknownst to Mr. Vardaro, Mr.

Battaglia had already hired another design team and construction plans with a different design concept had been issued on March 5, 2013. The Premises were refurnished in accordance with the new design concept and the retail shop finally opened at the end of July 2013. [ 14 ] On February 19, 2014, Mr. Vardaro sent Mr.

Battaglia an invoice of $5,748.88 ($5,000 plus applicable taxes), which was followed on March 18, 2014 by a letter of demand seeking payment within 10 days. [5] The claim was filed on April 14, 2014. questions in issue [ 15 ] These facts and the position of the parties call for the resolution of the following questions:

a) Was Mr. Battaglia entitled to terminate the Contract and can he refuse to pay the agreed fee?

b) Was the opening of the retail shop delayed as a result of Plaintiffs’ fault? ANALYSIS

a) Was Mr. Battaglia entitled to terminate the Contract and can he refuse to pay the agreed fee? [ 16 ] The Contract is a mixed contract of enterprise and for services governed by articles 2098 and following of the Civil Code of Québec (« C.C.Q. »).

Such contracts can be terminated unilaterally by the client, at its own discretion, even though the work or provision of services is already in progress. [6] [ 17 ] When a client unilaterally terminates such a contract, however, he or she is bound to pay the contractor or service provider, in proportion to the agreed price, the value of the work performed or services provided up to the date of termination. [7] [ 18 ] In light of these principles, Mr.

Battaglia was entitled to terminate the Contract unilaterally as he did on March 26, 2013, but he is bound to pay for the value of the design work completed up to that date. The Court must therefore determine what the value of the design work was at the time of termination. [ 19 ] Mr. Vardaro submits that all of the design services had been provided when the Contract was terminated and, consequently, that the full $5,000 fee must be paid by Mr. Battaglia. [ 20 ] Mr. Battaglia responds that the design work was incomplete and that it was not correctly executed. He submits, firstly, that Mr.

Vardaro and his team were to provide support until the opening of the retail shop. Secondly, he argues that the design concept developed by Mr. Vardaro was useless to him as it was much too expensive to be realized within his budget. [ 21 ] After considering all of the evidence, the Court concludes that although substantial work had been carried out, the design work was not complete when the Contract was terminated. Construction plans had been issued, the interior design concept had been developed and approved by Mr.

Battaglia and some of the materials and finishes had already been gathered and shown to him, but Mr. Vardaro and his team were expected to finalize the design and branding of the Premises once the construction work was complete. [ 22 ] All in all, the Court evaluates that 75% of the agreed design work had been completed at the time of termination on March 26, 2013. [ 23 ] Moreover, the Court cannot accept Mr. Battaglia’s argument that the design work was useless because it could not be realized within his budget of $30,000 to $40,000.

The Court comes to this conclusion for the following reasons. [ 24 ] Firstly, Mr. Battaglia has not provided conclusive evidence that Plaintiffs undertook to develop a design that could be realized within this budget. [ 25 ] Secondly, the evidence shows that Mr. Battaglia abandoned Plaintiffs’ design on the basis of a single estimate obtained from Artitalia’s supplier regarding the costs of the display fixtures. He made no inquiry to see if the fixtures could be built at a lower cost by another supplier. This is hardly conclusive evidence that the design could not be realized within Mr.

Battaglia’s budget and that it was therefore useless. [ 26 ] Thirdly, Mr. Battaglia position today is contradictory to the position he took during the March 26, 2013 meeting, when he

stated that the design work was worth $2,000. [ 27 ] Given the above, the Court is of the opinion that Plaintiffs are entitled to be paid 75% of the agreed fee, namely $3,750 ($4,311.56 with applicable taxes).

b) Was the opening of Mr. Battaglia’s retail shop delayed as a result of Plaintiffs’ fault? [ 28 ] To succeed in his counterclaim, Mr. Battaglia must prove, on a balance of probabilities, [8] that the opening of his retail shop was delayed to the end of July 2013 as a result of Plaintiffs’ fault, resulting in the damages claimed. [ 29 ] The Court finds that Mr. Battaglia has not satisfied this onus of proof. [ 30 ] Mr. Battaglia argues that the design was delayed because Mr.

Vardaro was frequently away and unavailable and that members of his team were difficult to reach. [ 31 ] The evidence shows, however, that construction plans were remitted to Mr. Battaglia on January 18, 2013 and that 3D designs with material finishes for the display fixtures were presented to him a week later. Construction work and the manufacturing of the display fixtures could have started immediately thereafter. [ 32 ] This suggests that it was Mr.

Battaglia’s decision to act as general contractor and his delay in securing a supplier to build the display fixtures that resulted in the delay. [ 33 ] Consequently, Mr. Battaglia’s counterclaim must fail. FOR THESE REASONS, THE COURT: GRANTS the action in part; CONDEMNS Defendant Sandro Battaglia to pay to Plaintiff Artitalia Group inc. the amount of $4,311.56 together with interest at the legal rate of 5% plus the additional indemnity stipulated in

article 1619 of the Civil Code of Québec from March 29, 2014; WITH COSTS of $169 representing the judicial stamp on the Application; Dismisses the counterclaim; Without costs . __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: November 23, 2015