2010 QCCQ 10856, 2010 QCCQ 10856

Lamoureux (R. & J. Membrane liquide) c. Andrusiak 2010 QCCQ 10856 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Civil Division No: 455-32-002998-093 DATE: November 25 th , 2010 ______________________________________________________________________ BY THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ JAMES LAMOUREUX, carrying on business under the name of : R & J MEMBRANE LIQUIDE Plaintiff v.

GÉRALD ANDRUSIAK Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff is claiming 587.81$ from the defendant for work performed at the latter's residence. The defendant files a cross-demand for reimbursement of an amount of 870,73$ that he says he paid in excess to what he should have. RELEVANT FACTS [ 2 ] The plaintiff operates along with his father-in-law, a small business specialized in waterproofing basements.

He knows the defendant and is asked by him to give a price for the waterproofing of one wall of his residence. [ 3 ] An estimate is given. The total amount involved is a little bit over 1 500$. Gerald Andrusiak accepts it. James Lamoureux undertakes to do the work shortly thereafter. [ 4 ] Gerald Andrusiak has seen that there is a crack in the foundation of his house. The work he wants to have done is first to fill that crack with epoxy and second, to apply a liquid membrane on the affected wall as well as the corners of the adjoining walls. In order to do it, the foundations have to be dug out.

Arrangements are made to ensure that the excavation is made for James Lamoureux to do his work. [ 5 ] Before the work starts, Gerald Andrusiak changes his mind and indicates that since the work involved is quite extensive, he might as well have the entire perimeter of the house done. A new estimate, verbal this time, is made at 3 400$ plus taxes. James Lamoureux claims that during the work, Gerald Andrusiak asks for the application of more material than needed on several occasions. He tells him that this extra material as well as the work needed to install it would be an extra and will be charged accordingly.

Gerald Andrusiak, according to him, tells him to "put it on the bill". [ 6 ] At the end of the job, James Lamoureux can feel that his client is not happy with the work, on several levels. He hands his invoice and Gerald Andrusiak is surprised and upset. There are some minor items to finish and he intends to come back to finish them. Finally, he never does, for reasons that do not really appear relevant. In any event, nobody is claiming that the unfinished work is worth any significant amount. [ 7 ] Gerald Andrusiak and his wife admit that they agreed to the estimate of 3 400$ plus taxes, for the entire work.

This is the amount they claim they paid. They strongly denied having accepted any increase in price, or having insisted that James Lamoureux put more product than needed. As well, they strongly deny having told him to "put it on the bill". [ 8 ] They also calculate that the plaintiff Lamoureux charged exaggerated amounts for some of the items sold. For that reason, they ask a reimbursement of 870,73$. DISCUSSION [ 9 ] Both parties agree that the contact entered between them was a contract for services, as defined by

section 2098 and following of the Civil Code of Quebec .

[ 10 ] Both parties agree that this was a fixed price contract, and not a contract payable by the hours or otherwise. The Civil Code of Quebec says the following in regard to price changes in such contract: 2107. Where the price of the work or services is estimated at the time the contract is entered into, the contractor or the provider of the services shall give the reasons for any increase of the price.

The client is bound to pay such increase only to the extent that it results from work, services or expenses that the contractor or the provider of services could not foresee at the time the contract was entered into. 1991, c. 64, a. 2107. 2109. Where the price is fixed by the contract, the client shall pay the price agreed, and may not claim a reduction of the price on the ground that the work or service required less effort or cost less than had been foreseen. Similarly, the contractor or the provider of services may not claim an increase of the price for the opposite reason.

Unless otherwise agreed by the parties, the price fixed by the contract remains unchanged notwithstanding any modification of the original terms and conditions of performance. 1991, c. 64, a. 2109. [ 11 ] That being established, the burden of proof rests on the plaintiff to prove the increase from the agreed price to the claimed price. [ 12 ] Again, the notion of burden of proof is described in the Civil Code of Quebec , in

section 2803 and 2804 that reads as follows: 2803. A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. 1991, c. 64, a. 2803. 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. 1991, c. 64, a. 2804. [ 13 ] The proof tendered by James Lamoureux as to an agreement by the defendant Andrusiak is strongly contradicted by him.

In fact, the entire sequence of event, showing the discomfort of Gerald Andrusiak throughout the performance of the contract makes it hard to imagine that he would agree to "put on the bill" anything over the agreed price.

The fact that the invoice was remitted immediately after the work and immediately opposed by the defendant also adds to the proof that he never agreed to any increase in price. [ 14 ] The claim of the plaintiff must therefore be dismissed. [ 15 ] What about the cross-demand? [ 16 ] As stated before, when the contract was for a fixed price, the client must pay the agreed amount, and cannot diminish that amount by saying, for instance, that the work was easier or shorter than expected (Section 2109, alinea 1 Civil code of Quebec ). [ 17 ] The fact that the defendant Andrusiak disagrees on the mark up that the plaintiff took, is not a reason not to pay the agreed amount.

But that agreed amount with taxes is 3 837,75$, while the defendant had paid 3 910,85$. He is therefore entitled to a reimbursement of 73,10$.

FOR THESE REASONS, THE COURT : [ 18 ] DISMISS the action of the plaintiff. [ 19 ] GRANT in part the cross-demand of the defendant. [ 20 ] ORDER James Lamoureux carrying on business under the name of R & J Membrane Liquide to pay to the defendant the sum of 73,10$ with interest at the annual rate of 5%, and the additional indemnity provided for by articles 1619 of the Civil Code of Quebec , as of August August 19, 2009, with judicial fees. __________________________________ Serge Champoux, J.C.Q.

Date of hearing: November 16 th 2010