2011 QCCQ 6465, 2011 QCCQ 6465

Herman c. Rosco Group (Firstonsite Restoration, l.p.) 2011 QCCQ 6465 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-116579-097 DATE: June 10, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ LILLIAN HERMAN and MURRAY HERMAN Plaintiffs v.

ROSCO GROUP (now known as "Firstonsite Restoration L.P.") Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Lillian and Murray Herman claim from Rosco Group (hereinafter " Rosco ") $6,904 following work performed by Rosco to rebuild their apartment destroyed by fire in May 2006, detailed as follows:

i) Inadequate allowance for cabinets; ii) Two doors charged $350 each, instead of $150 each; iii) $800 charge for tiling hallway entrance that was never done; iv) $1,152 inadequate demolition charge; v) $3,500 inadequate container charge; vi) For painting pantry door that was never done. [ 2 ] In its defence and at trial, Rosco pleads that all the relevant documentation was provided to Ms and Mr Herman prior to the final invoice dated January 31, 2007, that an agreement was reached related to all the financial aspects of this file, that a reimbursement of $14,182.35, payable in two separate cheques ($9,566.71 on February 22, 2007 and $4,615.64 on May 11, 2007) was received by Ms and Mr Herman and, finally and consequently, that their claim is ill-founded. [ 3 ] From the evidence adduced, the Court do not have to analyse all the facts surrounding the present file. [ 4 ] By cashing the two cheques of reimbursement respectively dated February 22, 2007 and May 11, 2007, without prejudice and protest, Ms and Mr Herman put an end to their contractual relationship with Rosco and to any eventual litigation. [ 5 ] The cashing of the two cheques in question by Ms and Mr Herman equals to a transaction, within the meaning of

Article 2631 of the Civil Code of Québec (« C.C.Q. »): " 2631. Transaction is a contract by which the parties prevent a future contestation, put an end to a lawsuit or settle difficulties arising in the execution of a judgment, by way of mutual concessions or reservations. A transaction is indivisible as to its object." [ 6 ] Also,

Article 2633 C.C.Q. provides that: " 2633. A transaction has, between the parties, the authority of a final judgment ( res judicata )." [ 7 ] Consequently, the Court has no choice but to conclude that a transaction was agreed upon by the parties after the work performed by Rosco for the benefit of Ms and Mrs Herman and the discussions related to the financial aspects of this work, which led to the final reimbursement of $14,182.35, duly cashed. [ 8 ] Given all of the above, the Court concludes that Ms and Mr Herman do not discharge their burden of establishing, through

preponderant evidence, the merit of their claim against Rosco. This being the case, the Court has no choice but to dismiss their application but, exercising its discretion, do not impose any fees. THEREFORE, the Court: DIMISSESS Lillian Herman and Murray Herman's claim against Rosco Group, without costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: June 3, 2011