2023 QCCQ 5863, 2023 QCCQ 5863

Arcobelli c. Bell 2023 QCCQ 5863 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-711881-203 DATE: August 31, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ VINCENT ARCOBELLI Plaintiff v.

KENNETH BELL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence, namely the testimony of plaintiff, of defendant and of Theresa Girouard, as well as exhibits P-1 to P-10; [ 2 ] WHEREAS plaintiff, an engineer, is suing defendant, on account, for professional services rendered; [ 3 ] WHEREAS a contract for professional services intervened between the parties, on October 24, 2017 (hereafter « the contract », exhibit P-1); [ 4 ] WHEREAS the contract reads as follows: I, (we) hereby retain your consulting services as a structural engineer and building inspector for the property mentioned above.

Your services are required to provide consulting services for some water infiltration issues with our home, including preparation of plans and specs as required as well as site directives to our contractors. I, (we) understand that remuneration for your services including all future consultations in regards to the present file, will be billed at the rate of $160.00 per hour plus expenses, taxes extra. Payment for said services is due and payable on presentation of progressive invoices. 2% monthly fee on overdue accounts.

Furthermore, I, (we) understand that any and all additional work requested by myself will also form part of the present mandate and it will be billed accordingly.

I hereby aknowledge that no other agreement exists between the parties. [ 5 ] WHEREAS plaintiff contends that defendant owes him $2,422.58 for “additional work”, expenses and interest at a rate of 24% per annum ; [ 6 ] WHEREAS defendant contends that plaintiff was paid in full, and denies owing him any money; [ 7 ] WHEREAS it appears from the preponderance of evidence that plaintiff was, in fact, paid in full (invoice P-2, dated January 31, 2019, $6,795.02); [ 8 ] WHEREAS plaintiff would have defendant and the Court believe that the work described in invoice P-4, dated August 27, 2019, constituted “additional work”; [ 9 ] WHEREAS , in fact, the work described therein is work which plaintiff failed to complete, in a timely fashion, and for which he was paid;

[ 10 ] WHEREAS the contract provided for “the preparation of plans and specs as required as well as site directives to our contractors”; [ 11 ] WHEREAS plaintiff failed to provide said plans and specs before August, 2019, and only did so at defendant’s insistence; [ 12 ] WHEREAS invoice, exhibit P-2, already included “technical calculations” and “preparation of letters for the insurance company”; [ 13 ] WHEREAS plaintiff is attempting to double-bill defendant for the same work; [ 14 ] WHEREAS , furthermore, with respect to invoice P-2, plaintiff admitted that the “Partial inspection of work” and “Water testing of masonry wall in the presence of contractors” were included in the “11 site visits” entry; [ 15 ] WHEREAS , in addition to the foregoing, according to the credible testimony of defendant and his witness, on April 27, 2019, plaintiff verbally committed to prepare documents P-3 and P-4, at no charge to defendant; [ 16 ] WHEREAS plaintiff denies this, but the Court does not believe him, as his testimony was rife with contradictions and inconsistencies; [ 17 ] WHEREAS , what is more, plaintiff was unable to provide the Court with basic information, at the hearing; [ 18 ] WHEREAS , simply stated, plaintiff was not credible; [ 19 ] WHEREAS , moreover, plaintiff billed defendant for his assistant’s clerical work, for administrative tasks, for travel time to and from his office, whilst overstating the time and distance, and did so at his hourly rate of $160.00, and also charged for his mileage; [ 20 ] WHEREAS , additionally, plaintiff invoiced his time in exhibit P-4, at $170.00, although the contract stated a different rate ($160.00); and he is claiming interest at an annual rate of 24%, as the contract states “2% monthly fee on overdue accounts”, that which is illegal [1] and is also usurious and contrary to the Code of ethics of engineers ; [2] [ 21 ] WHEREAS , furthermore, plaintiff did not send defendant progressive invoices, contrary to the terms of the contract; [ 22 ] WHEREAS plaintiff never explained to defendant which expenses could potentially be charged to him; [ 23 ] WHEREAS plaintiff failed to abide by the following sections of the Code of ethics of engineers : [3] 3.02.03.

An engineer must, as soon as possible, inform his client of the extent and the terms and conditions of the mandate entrusted to him by the latter and obtain his agreement in that respect. 3.03.02. In addition to opinion and counsel, the engineer must furnish his client with any explanations necessary to the understanding and appreciation of the services he is providing him. 3.03.03. An engineer must give an accounting to his client when so requested by the latter. 3.08.01. An engineer must charge and accept fair and reasonable fees. 3.08.02.

Fees are considered fair and reasonable when they are justified by the circumstances and correspond to the services rendered. In determining his fees, the engineer must, in particular, take the following factors into account: (

a) the time devoted to the carrying out of the mandate; (

b) the difficulty and magnitude of the mandate; (

c) the performance of unusual services or services requiring exceptional competence or speed; (

d) the responsibility assumed. 3.08.03. An engineer must inform his client of the approximate cost of his services and of the terms and conditions of payment. He must refrain from demanding advance payment of his fees; he may, however, request a deposit. 3.08.04.

An engineer must give his client all the necessary explanations for the understanding of his statement of fees and the terms and conditions of its payment. [ 24 ] WHEREAS defendant and his wife were dissatisfied with plaintiff’s services; [ 25 ] WHEREAS they were also shocked and bewildered when they received invoice P-4; [ 26 ] WHEREAS , under the circumstances, plaintiff’s fees are neither fair nor reasonable (s. 3.08.01 and 3.08.02 of the Code ); [ 27 ] WHEREAS plaintiff contravened sections 2100 and 2102 of the Civil Code of Quebec and the above-mentioned sections of the Code of ethics of engineers ; [ 28 ] WHEREAS plaintiff is not entitled to the amount claimed; WHEREFORE THE COURT HEREBY: DISMISSES the claim, with legal costs in the amount of $104.00.

__________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: June 16, 2023 [2] Code of ethics of engineers , CQLR, c. I-9, r. 6, s. 3.08.01 .