2016 QCCQ 1909, 2016 QCCQ 1909

Markose c. Baroudi 2016 QCCQ 1909 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142943-143 DATE: January 29, 2016 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Sanjay Markose Plaintiff v.

Jad Baroudi Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $4,950 from Defendant, who he retained to build stone walkways at his home. He claims that the work was stopped because it was not carried out as agreed and that he had to retain another contractor to redo it completely.

He seeks the reimbursement of the $2,000 advance paid to Defendant, as well as damages of $2,950. [ 2 ] Although Defendant filed a written contestation to the claim, he failed to appear at the hearing, despite having been duly convened and called. factual context [ 3 ] In September 2013, Plaintiff retained Defendant to build interlocking paving stone walkways in the front and sides of his home for a fixed price of $4,800, including all labour and materials except for the paving stones, which were to be furnished by Plaintiff.

Plaintiff advanced $2,000 towards the agreed price. [ 4 ] The work, which involved excavating the walkway areas to a depth of 18 inches, filling and compacting with crushed stones and laying the paving stones, began on October 3, 2013. It was interrupted the next day when Plaintiff complained that Defendant’s workers were filling areas excavated to a depth of less than 12 inches rather than the agreed 18 inches. [ 5 ] Although Defendant blamed his subcontractors and assured Plaintiff that he would complete the work as agreed, he did not do so.

Despite numerous requests by Plaintiff, the work had still not resumed by the third week of October 2013. [ 6 ] Plaintiff was forced to retain another contractor who had to redo the work completely. All compacting materials had to be removed and sent to the dump and the excavation had to be completely redone at a cost of $6,000. Plaintiff also incurred costs to remove the unusable materials from the site and repair a broken fence and damaged grass. [ 7 ] On April 24, 2014, Plaintiff demanded payment from Defendant of: (

a) the $2,000 advance; (b) $1,450 for the cost of repairing the fence and damaged grass and clean up; and (c) $1,500 for the trouble and inconvenience arising out of harassment charges brought against him by Defendant. He filed his claim on May 20, 2014.

ANALYSIS [ 8 ] Even in the absence of Defendant at the hearing, Plaintiff has the burden of proving, on a balance of probabilities, the facts on which his claim is based. [1] [ 9 ] Plaintiff has proven that the parties entered into a verbal contract of enterprise [2] in September 2013 (the « Contract »), pursuant to which Defendant undertook to build the subject walkways for $4,800. [ 10 ] Contracts of enterprise can be terminated at the discretion of the client, even if the work has been partially executed [3] and this is what Plaintiff did in October 2013 when he verbally advised Defendant that he was retaining another contractor to complete the work, given Defendant’s failure to do so. [ 11 ] When a client unilaterally terminates a contract of enterprise, he or she must pay the contractor for the value of the work executed up to the termination; as a corollary, the contractor must reimburse any advances paid in excess of the value of the work. [4] [ 12 ] To determine the value of the work completed, the Court must take into account the quality of the work; the contractor is not entitled to be paid for work that is not carried out in accordance with the contract or with usage and good practice. [ 13 ] Plaintiff has proven to the satisfaction of the Court that Defendant’s work prior to the termination of the Contract was of no

value to him, as the second contractor he retained could not use any of the work completed and had to redo everything. [ 14 ] Consequently, no amount is due to Defendant following the termination of the Contract and he must reimburse to Plaintiff the $2,000 advance received. [ 15 ] Plaintiff also claims a compensation of $1,450 for damages caused to his property by Defendant.

He has proven that his property was damaged by Defendant and that he incurred costs of $946.87 to clean up and repair the broken fence and damaged grassed areas. [5] He is therefore entitled to this amount of $946.87. [ 16 ] Finally, although Plaintiff claims $1,500 as compensation for the alleged trouble and inconvenience suffered as a result of Defendant’s behaviour, including the filing of harassment charges against him, Plaintiff has not proven, on a balance of probabilities, that he suffered the damages claimed in this respect.

FOR THESE REASONS, THE COURT: GRANTS the action in part; CONDEMNS Defendant Jad Baroudi to pay to Plaintiff Sanjay Markose the amount of $2,946.87, together with interest at the legal rate, plus the additional indemnity stipulated in

section 1619 of the Civil Code of Québec from May 5, 2014; WITH COSTS of $137 representing the judicial stamp on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: November 10, 2015