2016 QCCQ 3741, 2016 QCCQ 3741

7632568 Canada inc. (CWT Consultant) c. Latvaitis 2016 QCCQ 3741 COUR DU QUÉBEC « Small Claims Division » CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL MUNICIPALITY OF LONGUEUIL « Civil Court » N° : 505-32-032712-144 DATE : April 13, 2016 ______________________________________________________________________ THE HONOURABLE VIRGILE BUFFONI, J.C.Q. ______________________________________________________________________ 7632568 CANADA INC. (CWT CONSULTANT) Plaintiff vs.

IRENE LATVAITIS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff, a structural engineer, claims $5,557.00 from the defendant for professional services rendered in October and November 2013. [ 2 ] The plaintiff testified that the defendant signed a contract with the plaintiff on October 30, 2013 for engineering services for the renovation of the kitchen and dining room of her residence and also the extention of the residence for the construction of a sunroom. [ 3 ] After submitting the preliminary drawings to the defendant, she cancelled the contract in writing on November 26, 2013, and refused to pay the plaintiff for the work done. [ 4 ] The defendant claims that said contract contravenes with various provisions of the Consumer and Protection Act [1] (CPA), since plaintiff acted as an itinerant merchant.

Therefore, the contract should be set aside. [ 5 ] Also, part of the services rendered were part of a promotional free consultation, as advertised by plaintiff in the local newspaper. [ 6 ] Finally, the defendant states that the plaintiff rendered services beyond the scope of the work mentioned in the contract.

ANALYSIS [ 7 ] An itinerant merchant is a merchant who, personally or through a representative, elsewhere than at his address, makes a contract with a consumer. [2] [ 8 ] However, and subject to the regulations, a contract entered into at the address of the consumer upon his express demand does not constitute a contract entered into by an itinerant merchant, provided such contract was not solicited elsewhere than at the merchant’s address. [3] [ 9 ]

Article 7.1 of the Regulations Respecting the Application of the Consumer Protection Act [4] provides : Notwithstanding

section 57 of the Act, a contract entered into at the address of the consumer upon the consumer’s express request, where that express request follows initial contact by the merchant with consumer, by telephone or otherwise, for the purpose of obtaining authorization or an invitation to call on the consumer in order to present a product or give an estimate, or for any other reason, constitutes a contract entered into by an itinerant merchant. [ 10 ] In this instance, there was no «initial contact by the merchant with the consumer» since the defendant responded to a general invitation to all consumers through an ad in the local newspaper. [ 11 ] The contract was signed at the defendant’s residence, at her request, but not after a direct contact made by the plaintiff to her.

Consequently, the contract entered into by the parties does not constitute a contract made by an itinerant merchant.

[ 12 ] However, the plaintiff acted as a provider of services within the meaning of

Article 2098 of the Civil Code of Quebec .

As a client of such a contract, defendant could unitalerally resiliate the contract even though the provision of services is already in progress. [5] [ 13 ] Upon resiliation of the contract, the client is bound to pay to the provider of services, in proportion to the agreed price, the actual cost and expenses, or the value of the work performed before the end of the contract or before the notice of resiliation [6] . [ 14 ] The only services to be evaluated at the time of the notice of resiliation, on November 26, 2013 [7] , shall consist of the services rendered for the kitchen and the dining room, in spite of the terms of the contract, since it is manifest from the defendant’s testimony that the sunroom project was not the main scope of work but only an eventual project requiring a preliminary quotation before rendering any services in this regard [8] . [ 15 ] The admissible portion of the invoice pertains to « Services de génie du 30 Octobre au 26 Novembre-23,5 heures, CAD et Graphiques- 34,5 Heures » for $1,920.59. [ 16 ] The Court excludes from the plaintiff’s invoice the services rendered in connection with the «Faisabilité Agrandissement » which pertains to the sunroom project. [ 17 ] The defendant is entitled to benefit from the credit of $400.00 for the free consultation, as per the ad in the local newspaper. [ 18 ] The charge for « Supplément 1 heure – revue et correspondance sur annulation » for $165.00 is not admissible since this is not a service rendered on the client’s benefit. [ 19 ] As a consequence, the admissible amount of the plaintiff’s invoice totals $1755.88 ($1,920.59 less $400.00, plus GST and PST).

The plaintiff’s claim will be allowed for said amount, detailed as follows : Engineering services from 30-10 to 26-11 for 23,5 hours $1,920.59 Less credit for free consultation (as per ad in newspaper) $ 400.00 Amount for supplement 1 hour, review and correspondance $165.00 N/A $ 0.00 $1,529.59+ Plus taxes $ 226.29 $1,755.88 [ 20 ] The defendant claims $2,500.00 for moral damages and $2,000.00 for punitive damages based on abuse of proceedings, bad faith, harrasment and exploitation of an elderly person. [ 21 ] The evidence does not support these allegations.

The single claim of an invoice, even though it may be erroneus or unfounded, does not per say constitute an abuse of right or process. [ 22 ] The defendant’s cross-claim is therefore dismissed, but without legal costs.

WHEREFORE, THE COURT : [25] CONDEMNS the defendant to pay to plaintiff the sum of $1,755.88, with the interest at the legal rate and the additional indemnity provided for in

Article 1619 of the Civil Code of Québec from July 9, 2014, date of the letter of demand, together with legal costs in the amount of $ 200.00; [26] DISMISSES defendant’s cross-claim, without legal costs. __________________________________ VIRGILE BUFFONI, J.C.Q.