2018 QCCQ 2159, 2018 QCCQ 2159

Filigno c. Andrade 2018 QCCQ 2159 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-154042-164 DATE: March 12, 2018 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ ANGELINA FILIGNO Plaintiff v.

STEVEN ANDRADE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant the sum of $15,000.00 in compensation for the damages that she says to have sustained resulting from the alleged substandard landscaping work performed by said Defendant pursuant to the execution of a landscaping contract. [ 2 ] In the demand that she has filed into the Court record, amongst other allegations, Plaintiff states the following: “4.

The Plaintiff makes the following clarifications to the facts set out above: On April 28, 2014, Plaintiffs signed a contract with Defendant to repair and/or to complete the work that was done by his brother, Philip (Filipe) Andrade. Plaintiffs paid an amount of $9,772.88 to Defendant. In addition to the contract, Plaintiffs had to pay an supplementary amount of $924.26 for the debris removal and the demolition of the shed. Defendant equally requested an additional amount of $1,800.00 for the excavation of the drain and Defendant refused to provide a receipt.

On August 7, 2014, Plaintiff had to mandate an attorney in order to outline all the problems affecting their premises due to work that was improperly performed and had to be redone. To this date, Defendant refused to complete and/or correct the work as outlined in the demand letter of August 7, 2014. On July 31, 2015, Plaintiff had to once again mandate an attorney to request a reimbursement of the amount of $12,787.84 and requested $10,000.00 in punitive and exemplary damages. After Steven performed the landscaping, Plaintiff had water damage as water was coming into their canteen.

They had never experienced this in the past 25 years. The land is too high and slopes towards the house rather than away from it….” (sic) [ 3 ] Defendant contests Plaintiff’s demand. In this regard, in the contestation he has filed into the Court record, amongst other allegations, he alleges the following: “The Defendant denies the fourth allegation of the Plaintiff because. (

a) the Defendant was not hired to repair and complete the work on the French drain installed by the Defendant’s brother, as clearly indicated in the contract attached as exhibit D-1 and exhibit P-1 (

b) the report in exhibit P-5 concludes that the French drain work, for which the Defendant was not responsible does not seem complete (

c) the Defendant provided the Plaintiff with an estimate of $1,800 to perform plumbing work, the Plaintiff refused to pay, as such no plumbing work was performed by the Defendant. (

d) the Plaintiff requested the Defendant removes the woodshed debris. Instead, the Plaintiff hired and paid $924.26 (as indicated in exhibit P-2) 1-800-GOT-JUNK? To remove the woodshed debris caused by the removal of the woodshed.

Despite the recommendation of the Defendant to install grass rather than tiles for filtration purposes, the Plaintiff insisted that tiles be installed next to the basement windows as indicated in exhibit D-3.

The photographs in exhibit D-4 demonstrate that following the completion of the work by the Defendant, a slope going in opposite direction of the house allowed rain water not to flow towards the foundations of the house.” [ 4 ] From the evidence adduced at trial, the Court retains, amongst other facts, the following ones. [ 5 ] Before concluding the landscaping contract with Defendant (Exhibit P-1), Plaintiff had previously retained the services of Philip Andrade, Defendant’s brother, in order to perform various renovation work including the installation of a French drain. [ 6 ] Being totally unsatisfied with the work performed by Philip Andrade, Plaintiff subsequently retained the services of Defendant in order to perform other unrelated work and more particularly landscaping work. [ 7 ] In this regard, on April 28, 2014, Plaintiff and Defendant concluded a contract (Exhibit P-1) in the amount of $8,500.00 + taxes ($9,772.88).

The work to be performed by Defendant is described in the contract as follows: “Level Land Back & Front walkway 18 X 18 Cement Stairs Box Landing Level Away from House place in Basement Windows Sewer window wells all Around hose flowers and trees Step in Front of Door fix brokin Windows French Drain away Fence from Balcony” (sic) [ 8 ] According to Plaintiff, as the installation of the French drain by Defendant’s brother was unsatisfactory, it was agreed with Defendant that he would dig a hole in order to allow a plumber to proceed to the connection of the said drain.

This contract was a verbal one in the amount of $1,800.00, taxes includes. [ 9 ] According to Plaintiff, she paid Defendant a sum of $1,800.00 but the latter refused to give her a receipt. [ 10 ] In addition, Plaintiff testified that the work performed by Defendant regarding the digging of the hole was unsatisfactory as the said hole was not deep enough and did not allow the plumber to finish the job. [ 11 ] As concerns the landscaping work performed by Defendant, Plaintiff stated that it was not done properly inasmuch as the slope of the land was inclined towards the building and not away from it and more particularly, around the “cold storage room”.

According to Plaintiff, the landscaping had to be redone. [ 12 ] At the hearing, Plaintiff stated that the details of the repairs to be performed following Defendant’s unsatisfactory work are described in the bill dated July 15, 2015 issued by Restauration Gata (Exhibit P-6-B). [ 13 ] These repairs are detailed as follows: “New drain box side of tenants entrance $472.05 Installation & Modification of existing window wells $375.00 Install window well system in front of cold room door with blocks $592.33 Repair concrete landing for balcony stairs $380.52 Grass $2,747.59 Relevel and adjust blocks $3,761.38 Concrete block retaining wall $4,988.24 Sous Total $13,317.11 TPS/GST 5.0% $ 665.86 TVQ/PST 9.975% $ 1,328.38 TOTAL $15,311.35 [ 14 ] At the hearing, Mr.

Dominic Gaetano, president of Restauration Gata, testified affirming that he is a technologist in Civil Engineering and a specialist in landscaping. His services were retained by Plaintiff after Defendant had executed the work described in the contract concluded between them (Exhibit P-1). [ 15 ] In fact, Mr. Gaetano was contacted by Plaintiff following the visit of a City inspector who, apparently, was of the opinion that

the plumbing work done previously by Philip Andrade was inadequate. This inspector did not testify at the hearing. [ 16 ] Having inspected the work performed by Defendant, Mr. Gaetano testified that he noticed that the slope of the land was negative and not limited to the area of the cold storage room. Because of this, water was accumulating in the windows wells and therefore infiltrating into the said cold storage room. [ 17 ] On this issue, Mr.

Gaetano testified reiterating the contents of his report (Exhibit P-6) dealing with Defendant’s work as detailed in the second paragraph of page 1 of the report which reads as follows: “… Land height was improperly sloped. There is a discrepancy between the east south corner of the yard and northwest corner of 23”. The problem arises that the 23” is along the axis parallel with house. There is not slope in the back of home and an actual negative slope towards the home in the backs exists.” [ 18 ] Furthermore, Mr.

Gaetano testified that, in his opinion, the landscaping work performed by Defendant was of sub-standard quality. [ 19 ] As for Defendant, at the hearing, he testified that he has 14 years of experience in landscaping (grass and tiles – pavé-uni installation). According to him, he executed the work described in the contract concluded between the parties in a satisfactory fashion. [ 20 ] Defendant testified that he refused to do any plumbing work for Plaintiff as this was not his specialty or trade.

This allegation is not contested by Plaintiff. [ 21 ] According to Defendant, the landscaping work performed by him was of acceptable quality.

He stated that he made sure that the slope went away from the house however, no corroborating independent evidence was produced by him in support of his testimony. [ 22 ] Defendant did admit that if water penetrated into the cold storage room, it was only because Plaintiff had requested the installation of tiles around the house rather than the laying out of grass thereby hindering the absorption of water. [ 23 ] On this issue, it was Defendant’s opinion that the installation of the tiles was not the proper thing to do.

This being so, as he was the professional, he should have refused to do the job as requested by Plaintiff. Unfortunately for him, as he accepted to install the tiles instead of the grass, he must now bear responsibility for the resulting problems. [ 24 ] Regarding the contract relating to the digging of the hole (verbal contract in the amount of $1,800.00), Defendant denies having concluded such a contract and having received any money.

He reiterated that he did not do any plumbing related work whatsoever on the job. [ 25 ] Finally, Defendant denies having agreed to remove the debris resulting from the demolition of a “shed” but he admits having demolished it at Plaintiff’s request. [ 26 ] In the present case, considering the testimony rendered by Plaintiff and the testimonies rendered by Defendant and Mr.

Gaetano, the Court concludes that, the preponderance of the evidence is to the effect that the landscaping job done by Defendant was, of sub-standard quality and more particularly as concerns the improper slope as described in paragraph 2 of Page 1 of Mr.

Gaetano’s report (Exhibit P-6). [ 27 ] Consequently, the Court considers that Plaintiff has established her right to claim from Defendant the reimbursement of the amount of $3,159.04 ($2,747.59 + taxes) paid by her to Restauration Gatta to redo the landscaping work (Exhibit P6 B). [ 28 ] The Court also grants Plaintiff an amount of $437.51 ($380.52 + taxes) in regard to the repairing of the concrete for the landing of the balcony stairs which work, according to the preponderance of the evidence and more particularly Mr.

Gaetano’s testimony, was improperly executed by Defendant (Exhibit P-6 B). [ 29 ] The evidence has also established conclusively that Defendant did not properly install the windows wells and the window well system in front of the cold storage room.

For this, the Court grants Plaintiff the amounts of $431.16 ($375 + taxes) and $680.65 ($592.00 + taxes) (Exhibit P-6 B). [ 30 ] Regarding the additional amounts claimed by Plaintiff as detailed in Exhibit P-6 B), the evidence adduced at trial has not established conclusively that the damages claimed are a direct result of Defendant’s alleged sub-standard landscaping work.

Consequently, this part of Plaintiff’s demand is dismissed. [ 31 ] Finally, as concerns the punitive damages claimed by Plaintiff, in view of the evidence adduced at trial and considering the law applicable in such matters, these damages cannot be awarded in the present case. WHEREFORE, FOR THE FOREGOING REASONS, THE COURT : GRANTS Plaintiff’s demand in part ; CONDEMNS Defendant to pay Plaintiff the amount of $4,708.36 with interest at the rate of 5% per annum and the additional indemnity pursuant to the provisions of

article C.C.Q. 1619 as of 4,708.36 as of September 12, 2016 plus the judicial fees in the amount of $100.00. __________________________________ ARMANDO AZNAR, J.C.Q.

Date of hearing: February 19, 2018