2019 QCCQ 7817, 2019 QCCQ 7817

Excavation Baie d'Urfé inc. c. Sharma 2019 QCCQ 7817 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-704644-188 DATE: December 19, 2019 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD ______________________________________________________________________ EXCAVATION BAIE D'URFÉ INC. Plaintiff v.

RASHTER SHARMA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Excavation Baie d’Urfé inc. ( Excavation ) claims $2,789.86 from Rashter Sharma as the balance on the sale of garden soil and excavation work. [ 2 ] In his defence, Mr. Sharma alleges that he paid Excavation $2,000 in June 2015 in full and final settlement of all amounts owing in respect of the 2015 work. [ 3 ] Mr.

Sharma brings a cross-application seeking $4,999, increased thereafter to $9,886.85, alleging overbilling and damages to his garage entrance, which Excavation, represented by its president, Mr. Brian Manning, vigorously denies. ISSUES [ 4 ] (

a) Was an agreement reached by the parties in June 2015 whereby Mr. Sharma would pay $2,000 to Excavation in full and final payment of all amounts owing? (

b) Is Excavation’s claim based on invoice number 2015-175, dated December 31, 2015, prescribed? (

c) Has Mr. Sharma established that Excavation overbilled and damaged his garage entrance? CONTEXT AND ANALYSIS [ 5 ] In 2014, Mr.

Sharma hired Excavation to install a septic tank and perform excavation work for a total cost of $38,446.75, which he paid in full. [ 6 ] In support of its claim, Excavation produced the following invoices: - Invoice 2015-015 dated December 20, 2015, for excavation work and delivery of rock dust, for the amount of $4,105.76; - Invoice 2015-175 dated December 31, 2015, for the sale and delivery of garden soil in May 2012 and May 2013, for the amount of $684.10. [ 7 ] Excavation acknowledges that it received $2,000 in partial payment, leaving a balance of $2,789.86, which is claimed in this case.

Final Payment [ 8 ] At trial, Mr. Sharma and his spouse testified that, in June 2015, a cheque for $2,000 was remitted to Excavation in full and final payment of all amounts owing in relation to the excavation work performed in 2015. [ 9 ] Mr. Manning, for his part, argues that the cheque for $2,000 was remitted in partial payment of the amounts owing. [ 10 ] Moreover, in support of invoice 2015-015, Mr. Manning adduced order forms duly signed by Mr.

Sharma for excavation work performed between April 20 and May 20, 2015. [ 11 ] In civil matters, the burden of proof lies with the plaintiff according to the principle set out 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.” [ 12 ] The Court renders its decision in accordance with the balance of probabilities, as stipulated in

article 2804 C.C.Q., which states that “[e]vidence is sufficient if it renders the existence of a fact more probable than its non-existence.” In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 13 ] Since Mr.

Sharma and his spouse affirm that the June 2015 cheque for $2,000 constitutes final payment of all amounts owing to Excavation, the best evidence in this respect would have been to file a copy of this cheque, which they have failed to do. [ 14 ] That being the case, in view of the contradictory evidence respecting this alleged final payment, the Court finds that Mr. Sharma has not discharged his burden of establishing that it was made. It will therefore analyze invoice 2015-015. [ 15 ] As stated, in support of this invoice, Mr. Manning adduced order forms duly signed by Mr.

Sharma that confirm the performance of the excavation work at his home in 2015. [ 16 ] In addition, Mr. Sharma acknowledges that he requested delivery of rock dust and the performance of some work in November 2015, as appears from the email that he sent to Mr. Manning on January 16, 2016. [ 17 ] This email therefore contradicts Mr.

Sharma’s version whereby the amount of $2,000 paid in June 2015 constitutes final payment, since he acknowledged owing these amounts for the delivery of material and the subsequent performance of some other work. [ 18 ] Accordingly, the Court finds that Excavation has discharged its burden of establishing, on a balance of probabilities, that invoice 2015-015 dated December 20, 2015, in the amount of $4,105.76, is valid. Prescription of the claim in respect of invoice 2015-175 [ 19 ] Invoice 2015-175 of December 31, 2015, is for the sale and delivery of garden soil on May 11, 2012, and May 9, 2013.

Excavation has produced no order forms or contract in respect of these sales, which Mr. Sharma contests because Excavation’s claim concerning them is prescribed. [ 20 ] Extinctive prescription is a means of extinguishing a right owing to its non-use or of pleading a peremptory exception to an action (art. 2921 C.C.Q.). [ 21 ]

Article 2880 C.C.Q. states that the day on which the right of action arises determines the beginning of the period of extinctive prescription. [ 22 ] Moreover,

article 2925 C.C.Q. establishes that an action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 23 ] The courts have established that the beginning of the period of extinctive prescription is the first time the holder of the right could have taken action to assert it and that its determination is a question of fact. [1] [ 24 ] Moreover, in Pellerin Savitz LLP v.

Guindon , [2] the Supreme Court stated that the notion of “the time that work is completed” or “termination of the mandate” to identify the beginning of the prescription period is inapplicable to a contract between a lawyer and his or her client and applies only in the context of a contract of enterprise. [ 25 ] In other words, it is important to distinguish the beginning of prescription in the context of a relationship between a professional and his or her client from that in a relationship between a contractor and his or her client. [ 26 ] As noted, invoice 2015-175 concerns the sale and delivery of garden soil in 2012 and 2013. [ 27 ] Applying the principles relating to extinctive prescription and the determination of its starting point, the Court finds that Excavation’s claim in respect of this invoice is prescribed. [ 28 ] The starting point of prescription cannot be December 31, 2015, the date of the invoice, but is rather the moment Excavation could have taken action to assert its right in respect of the soil it sold and delivered, therefore in May 2013, at the latest. [ 29 ] However, Excavation began its action against Mr.

Sharma in respect of this invoice in February 2018, contravening

article 2925 C.C.Q. The cross-application [ 30 ] In his cross-application, Mr. Sharma argues two points: Excavation’s overbilling for the work performed in 2014, and the damages caused to his garage entrance. [ 31 ] Regarding the overbilling, the Court cannot find in favour of Mr. Sharma’s arguments because he paid for all of the work performed in 2014 in its entirety, in the amount of $38,446.75, without contestation, reservation or protest. And from further evidence and representations adduced after the trial, Mr. Sharma shows that he was complaining about billing problems in 2014.

That being, he should have filed his claim against Excavation before the end of 2017. [ 32 ] In addition, his cross-application bears the date March 27, 2018, while the final payment for the work done in 2014 was made on December 22, 2014. [ 33 ] Consequently, Mr. Sharma’s claim in respect of the overbilling is prescribed.

[ 34 ] As for the damages to his garage entrance, the Court cannot grant Mr. Sharma’s claim because he has adduced no evidence establishing the cost of the damages actually suffered. FOR THESE REASONS, the Court: GRANTS in part the application of Excavation Baie d’Urfé inc. against Rashter Sharma; CONDEMNS Rashter Sharma to pay Excavation Baie d’Urfé inc. $2,105.76 with interest at the legal rate and the additional indemnity under

article 1619 of the Civil Code of Québec as of March 15, 2018; DISMISSES Rashter Sharma’s cross-application against Excavation Baie d’Urfé inc.; THE WHOLE , with each party paying its own costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: October 1, 2019