2014 QCCQ 7267, 2014 QCCQ 7267

Nguyen c. Maçons Patrimoniaux inc. 2014 QCCQ 7267 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-129315-117 DATE: July 4, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ NGOC THUY NGUYEN -and- NOVA NGUYEN Plaintiffs v.

LES MAÇONS PATRIMONIAUX INC. -and- PAUL PIACENTE -and- ROY CAMPBELL Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Further to a contract of renovation regarding a bathroom at their residence, Plaintiffs request a refund of their deposit and claim damages against Defendants. Defendant Les Maçons Patrimoniaux Inc. denies any involvement and Defendant Roy Campbell denies any liability.

Context [ 2 ] Plaintiff Ngoc Thuy Nguyen is the owner of a residential multi-dwelling property located in Montreal. She and her family live on the main floor of the property while the remainder of the property is rented out. Both Plaintiffs were present at the hearing but the daughter of Ms. Ngoc Thuy Nguyen, Ms. Nova Nguyen spoke for the Plaintiffs and was duly authorized to speak for her mother. Equally, Ms. Nova Nguyen explained that she was authorized by her mother to act on behalf of her mother to manage the contract for the renovation work in question and for the Court hearing.

Plaintiffs’ position [ 3 ] Ms. Nova Nguyen explained in her testimony that the only bathroom in their premises had been outdated and was in need of renovation. To carry out the work, they gave the contract to Les Maçons Patrimoniaux Inc. since that is the company that they had previously used for balcony work for the property. In the late fall of 2010, Ms. Nova Nguyen met with Paul Piacente, the president of Les Maçons Patrimoniaux Inc. to explain the proposed contract and the scope of work. [ 4 ] On December 1, 2010, they agreed on the scope of the work, the price and the schedule. The

schedule of work was very important to the Plaintiffs since the bathroom to be renovated was the only bathroom in their living space. Four people lived there, the mother, two

daughters and a son. The renovations would prevent the use of the bathroom and basically prevent the use and functionality of the premises during the renovation work. Therefore, the Plaintiffs stipulated fixed start and termination dates. The work was to begin on January 8, 2011 and be completed on January 14, 2011. [ 5 ] Plaintiffs had in fact previously received an estimate from Les Maçons Patrimoniaux Inc. for the amount of $3,100 plus taxes (Exhibit P-1) and that was accepted on December 1, 2010. Under the agreed contract, the Plaintiffs would pay for the materials required.

On December 11, 2010, further to a request for a deposit, Plaintiffs gave $1,000. On January 8, 2011 at the beginning of the work, a further request of $700 was made and that was given by Plaintiffs. On January 10, 2011, further to discovery of some mold and additional work, a further amount of $650 was requested and also given by Plaintiffs. During the process, Plaintiffs insisted upon and received written confirmation and receipts from Defendants for amounts given (Exhibit P-2, En liasse ). [ 6 ] On January 8, 2011, the demolition work began. At this point, the Plaintiffs were dealing with Mr.

Roy Campbell who had been presented by Les Maçons Patrimoniaux Inc. as its foreman. After discovery of mold, the work stalled. On January 11 and January 12, 2011 no workers turned up and Plaintiffs were extremely worried. They had taken special measures to live elsewhere during the renovations but no work was being done. [ 7 ] Plaintiff Nova Nguyen then made calls, sent e-mails and even had her siblings go to the address given of the president of Les Maçons Patrimoniaux Inc. but there was no reply or follow-up.

On January 13, Plaintiff Nova Nguyen sent a detailed e-mail to the president of Les Maçons Patrimoniaux Inc. summarizing the events and complained that she and her family were being left in an impossible situation with the demolition of the bathroom effected, no usable bathroom on the premises, abandonment of the work site by Defendants, Plaintiffs having already paid a total of $2,350, total absence of communication or reply from Defendants, and the stipulated deadline for completion of the work being the next day, namely January 14, 2011. [ 8 ] Plaintiffs did not receive any immediate reply to the e-mail and were left to manage by themselves a situation that they describe as desperate.

The photographs filed into evidence by Plaintiffs (Exhibit P-5) do in fact show the premises were in a state of complete disorder, as a result of the disruption and the moving of many objects, furniture throughout the halls and working areas to permit the work. The premises were not in a liveable state. [ 9 ] Plaintiffs immediately started to search for another contractor to do the work. After two days, they hired Ioan-Robert Rus, of Robert Construction and Renovation (“Robert Construction”).

Robert Construction said that the work done up to that date was deficient and that the new dry wall was wrongly installed and that the new plumbing pipe was wrongly installed. To correct these problems, Robert Construction charged an additional $300. Work proceeded on an emergency basis and was started on January 18, 2011 for a period of two weeks.

Plaintiffs claim the following amounts (see details in evaluation sheet filed by Plaintiffs as Exhibit P-6): Refund of deposits: $2,350.00 Costs of correction of deficient work: $300.00 Cost of report of Robert Construction documenting state of work and deficiencies: $284.81 Costs of relocation for three (3) weeks (January 15 to February 4, 2011) of $100 per day X 21 days: $2,100.00 Rental of van to transport material: $27.90 Disposal of construction debris from demolition: $90.00 Lost days of work of sister Stella Nguyen: $432.75 Lost day of work of Nova Nguyen: $197.75

Parking charges: $78.00 Bailiff charges for service: $211.22 Total: $6,072.43 Defendants’ positions Les Maçons Patrimoniaux Inc. and Paul Piacente [ 10 ] On January 23, 2011, after the work was already commenced by Robert Construction, Les Maçons Patrimoniaux Inc. and Paul Piacente replied to the demand letter sent by the Plaintiffs on January 13, 2011 by e-mail (Exhibit P-4). [ 11 ] The reply of these Defendants was to completely dissociate themselves from the work and contract and to deny any involvement in the work done. Mr. Piacente wrote that Roy Campbell was merely his “former subcontractor”. Mr.

Piacente claimed that he only introduced Mr. Campbell as someone who could do the work but would be independent of Les Maçons Patrimoniaux Inc. He says that he made that clear with the Plaintiff from the beginning. However, the Court notes that there is nothing in writing to support that ground of defence. Plaintiffs, in particular Ms. Nova Nguyen completely deny that anything to that effect was said by Mr. Piacente and state that it is completely false. Ms. Nova Nguyen states instead that Mr.

Roy Campbell was presented by Les Maçons Patrimoniaux Inc. at all times as its foreman and employee. [ 12 ] This ground of defence of Les Maçons Patrimoniaux appears without merit. First, the only quote for work given is on the letterhead of Les Maçons Patrimoniaux Inc. (Exhibit P-1).

At least two e-mails filed into the Court record and sent by Les Maçons Patrimoniaux inc. by Paul Piacente expressly refer to Roy Campbell as its “foreman”. [ 13 ] Plaintiff Nova Nguyen also files into evidence a business card given by Roy Campbell which is an official business card of Les Maçons Patrimoniaux Inc. (Exhibit P-2, En liasse ) with Mr. Campbell’s name and telephone number handwritten on the back. Mr. Roy Campbell [ 14 ] Mr. Campbell is unclear himself on the nature of the business relationship with Plaintiffs. He states that he was working on his own behalf.

He also acknowledges that he was introduced by Mr. Piacente as his foreman and he has worked in that capacity from time to time for Mr. Piacente and Les Maçons Patrimoniaux Inc. Mr. Campbell remembers that Mr. Piacente said to him and to the Plaintiffs that they should work out themselves the details of the transaction. [ 15 ] Mr.

Campbell testified that at the beginning it was agreed with the Plaintiffs that he would work under the table but that after the mold was discovered and a possible claim for insurance purposes was envisaged by the Plaintiffs, the latter wanted receipts and that he was unable to provide receipts so he abandoned the job. However, Mr. Campbell also states that he requested more money and that was refused. [ 16 ] Plaintiffs vehemently deny that version of events. Plaintiff Nova Nguyen states that she works in the law enforcement area.

Therefore, she states that it would be out of the question for her to accept to pay illegal amounts under the table. She points to the fact that she insisted on signed written receipts for all amounts paid to Defendants, even the cash amounts. Analysis and Decision

[ 17 ] On the balance of probabilities, the Court considers that the version of events of Plaintiffs is far more credible and coherent than that of either of the Defendants. [ 18 ] Plaintiffs contracted with Les Maçons Patrimoniaux Inc. All the objective proof indicates that that is the company that quoted for the renovation project and was awarded the renovation contract. [ 19 ] If Les Maçons Patrimoniaux Inc. wanted to exclude its liability, it should have done so expressly and in writing, which it did not do.

Any confusion in that regard results from the lack of clarity of Les Maçons Patrimoniaux Inc. and for which it should be responsible. [ 20 ] Mr. Roy Campbell was either the mandatary of Les Maçons Patrimoniaux Inc. or its apparent mandatary (Article 1759 C.C.Q.). In either case, Les Maçons Patrimoniaux Inc. is the party that entered into the contract with Plaintiffs. [ 21 ] Les Maçons Patrimoniaux Inc. abandoned the work site. It repudiated its obligations under the contract and was in default of right (Article 1597 C.C.Q.).

Furthermore, even after the demand letter sent by e-mail by Plaintiffs on January 13, 2011, Les Maçons Patrimoniaux Inc. omitted to reply or react within a reasonable time, especially given the urgent and difficult situation in which it had placed the Plaintiffs by abandoning the work site in a state of disrepair and being unfit for habitation due to the absence of a functioning bathroom. [ 22 ] However, as Defendant Roy Campbell acknowledges and states that he is also personally liable, and since both he and Les Maçons Patrimoniaux Inc. contracted obligations for the service of an enterprise (1525

(3) C.C.Q.), the Court will order that both parties pay solidarily the damages suffered by Plaintiffs. There is no proof to support a personal condemnation of Mr. Paul Piacente. Damages suffered by Plaintiffs [ 23 ] In light of the proof, the Court will arbitrate and grant the following amounts as damages: Refund of deposits: Reduced: original amount $2,350. The Court considers that the value of the demolition and partial renovation work of Defendants had a value of $650 and has deducted that amount. $1,700.00 Costs of correction of deficient work: Reduced.

Amount claimed appears excessive. $200.00 Cost of report of Robert Construction documenting state of work and deficiencies: $284.81 Costs of relocation for three (3) weeks (January 15 to February 4, 2011) of $100 per day X 21 days: Reduced: Plaintiffs claim was supported only in part by the proof. $1,000.00

Rental of van to transport material: $27.90 Disposal of construction debris from demolition: $90.00 Days of work lost by sister Stella Nguyen: Refused: This amount is not given as Stella was not a Plaintiff in the proceedings $0.00 Day of work lost by Nova Nguyen: $197.75 Parking charges: Refused: There is insufficient proof on this item. $0.00 Bailiff charges for service: $211.22 Total: $3,711.68 [ 24 ] The Court will order Defendants to pay the amount of $3,711.68. The Defendant Les Maçons Patrimoniaux Inc. has made a Cross-Demand and claims legal fees on the basis that Plaintiffs’ claim is abusive.

As the Court has decided that Plaintiffs’ case is in part well founded in law and in fact, the Cross-Demand is dismissed. FOR THESE REASONS, THE COURT: GRANTS in part Plaintiffs’ motion; CONDEMNS Defendants Les Maçons Patrimoniaux Inc. and Roy Campbell solidarily to pay Plaintiffs the amount of $3,711.68 with legal interest of 5% and the special indemnity provided under

Article 1619 of the Civil Code of Quebec from the date of the demand letter being January 13, 2011; WITH JUDICIAL COSTS in favour of Plaintiffs of $159. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: April 22, 2014