2017 QCCQ 9574, 2017 QCCQ 9574

Daianska c. 9208-0750 Québec inc. (Gentile Construction inc.) 2017 QCCQ 9574 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149651-152 DATE: June 15, 2017 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ TANIA DAIANSKA Plaintiff v. 9208-0750 QUÉBEC INC. d.b.u.n.

GENTILE CONSTRUCTION INC. and ROBERT GENTILE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming from Defendants the sum of $11,800.00 in damages following the execution of a contract for the renovation and repairs of her residence situated […], Cote St-Luc, Montreal, Quebec. [ 2 ] The contract binding the parties was concluded on or around January 25 th , 2015. [ 3 ] The parties agree that the contract concluded between them is verbal and the details of this contract are enunciated in the e-mails exchanged between the parties beginning on November 6th, 2014 and ending on January 25th, 2015 (Exhibit P-1). [ 4 ] The specific damages claimed as compensation by Plaintiff are described in Exhibit P-22 and relate to the following: A.

Fixing cracks on the foundation $ 1,200.00 B. Retaining wall $ 1,000.00 C. Driveway $ 5,500.00 D. Removal of the hump in front of the house, leveling and fixing of the lawn $ 2,200.00 E. Cost of new bushes $ 400.00 F. Lost work $ 720.00 G.

Various expenses (Lawyer fees, city permit and court fees) $ 785,00 Total $11,805,00 [ 5 ] Defendants contest Plaintiff’s demand. [ 6 ] More particularly, as concerns Defendant, Robert Gentile (Gentile), his contestation is to the effect that there exists no legal link between him, acting as president and principal shareholder of Defendant, 9208-0750 Québec Inc. (Gentile Construction), and Plaintiff. He also pleads that there exists no valid cause to enable the Court to lift the corporate veil. [ 7 ] As concerns Defendant, Gentile Construction Inc., in substance, its contestation is to the effect that : A.

The work performed was completed according to the highest standards of the trade and was approved by Plaintiff’s engineer; B. Plaintiff precluded its employees from completing the final stage of the work.

[ 8 ] In addition to its contestation, Defendant Gentile Construction, has filed a cross-demand against Plaintiff in the amount of $14,979.02 detailed as follows: A. GST and PST (taxes) owed on the amount of $12,500.00 paid by Plaintiff; (invoice 346055 dated March 3 rd , 2016 (Exhibit D-3) - $1,871,88 ; B. Extra work performed by Plaintiff ($4,750.00 and $3,900.00 + taxes – undated (Exhibit D-3) – Total 9,945.33; C.

Extra work in the amount of 2 750.00 $ + taxes for a total of $3,161,81 (invoice 346063 dated march 3 rd , 2006) (Exhibit D-3). [ 9 ] At trial, Plaintiff testified that she was unsatisfied with the work performed by Defendant, Construction Gentile, in that the said work was not executed according to the standards of the trade and was furthermore incomplete. [ 10 ] Plaintiff also alleges that Defendant, Gentile Construction, unduly put pressure on her in order to obtain unjustified money advances although the work progress was unsatisfactory.

In this regard, according to her, Defendant Gentile threatened that he would not finish the job if the said advances were not remitted to him. [ 11 ] Regarding the undue pressure allegedly applied to Plaintiff by Defendant Gentile, although said Defendant totally denies having acted in the manner described by Plaintiff, her testimony on this issue was corroborated by the testimony of her daughter Alyssa Daianska who was personally witness to a conversation that occurred between Plaintiff and Defendant Gentile in early summer 2015. [ 12 ] Furthermore, Plaintiff’s testimony on this issue was corroborated by the testimony of Mr.

Allan Flegg, a client of Plaintiff, who declared that he was a witness to a conversation that Defendant Gentile had with Plaintiff in July 2015. [ 13 ] According to Mr. Flegg, at this time, Defendant Gentile was verbally aggressive with Plaintiff with the obvious intent of intimidating her in order to obtain more advance money on the work to be performed. In fact, according to him, Defendant Gentile requested the money, amongst other reasons, in order to fill up a hole that had been dug up on the lawn in front of Plaintiff’s house. [ 14 ] Mr.

Flegg further testified that, at that time, Plaintiff accepted to give, Defendant Construction Gentile, an advance of $2,000.00 for the purchase of the plain cobblestone to be installed on her driveway. [ 15 ] In this regard, the evidence has revealed that the plain cobblestone was not delivered and was not installed although Defendant, Construction Gentile, did receive a cheque in the amount of $2,000.00 dated July 11 th , 2015 (Exhibit P-12).

This cheque mentions that it was to be used as an advance for the purchase of the plain cobblestone work and that the total amount paid at that time by Plaintiff was of $12,500.00. [ 16 ] Although Defendant Gentile denies that the said cheque was given to him for the purpose of purchasing the plain cobblestone and installing it, the Court states that it was favorably impressed by Mr. Flegg’s clear and precise testimony on this issue. [ 17 ] In view of the testimony rendered by Plaintiff and Mr.

Flegg and considering the details inscribed on the cheque cashed by Defendant, Gentile Construction, (Exhibit P-12), the Court concludes that Plaintiff did, in all probability, pay for the purchase of the plain cobblestone which was never delivered or installed by said Defendant.

Consequently, Plaintiff is entitled to claim from Defendant Construction Gentile the amount of $2,000.00. [ 18 ] Regarding Plaintiff’s claim for the repair of the cracks on the foundation of her house, the e-mails exchanged between the parties (Exhibit P-1) regarding the contents of the contract simply state the cost of $700.00 per crack. [ 19 ] Plaintiff testified that the cracks present above the level of the earth surrounding the foundations of the house were not repaired by Defendant, Construction Gentile.

This fact was acknowledged by Defendant Gentile who affirmed that only the cracks below the level of the earth were to be repaired. [ 20 ] The pictures filed by Plaintiff showing the foundations of the house reveal that the cracks present above the level of the earth are of such importance that the requested repairs should have been performed by Defendant, Construction Gentile. [ 21 ] In the opinion of the Court, it is highly unlikely that Defendant, Construction Gentile, was not expected to complete the repair of the cracks of the foundations above the level of the earth considering that such repairs were not specifically excluded in the contract (Exhibit P-1). [ 22 ] Consequently, regarding the repairs of the cracks of the foundations, the Court is of the opinion that Plaintiff is entitled to claim from Defendant, Gentile Construction, the amount of $1,259.45 (Exhibit P-22 -A). [ 23 ] As concerns the claim relating to the retaining wall, the evidence adduced at trial has revealed that Plaintiff paid Defendant, Gentile Construction, an amount of $3,350.00 and that the said work was not completed.

This fact is clearly illustrated in the pictures filed into evidence by Plaintiff. [ 24 ] More particularly, these pictures, as well of the testimony of Mr. Abner Abineralemayhuhen, employee of Defendant, Gentile Construction, have established, conclusively that the edge of the retaining wall was not completed in full and that the textile membrane mentioned in the contract was not installed. [ 25 ] As a result, the fact that Plaintiff is entitled to compensation is undisputable.

However, as the quantum has not been clearly established, arbitrarily [1] , the Court grants an amount of $1,000.00 to Plaintiff regarding the unsatisfactory work in relation to the retaining wall. [ 26 ] As concerns Plaintiff’s claim regarding the driveway, the testimony of Plaintiff and that of Defendant Gentile are

contradictory. However, according to the testimony of Mr.

Abner Abineralemayhuhen, employee of Defendant, Gentile Construction, who was present on the site, although the contract (Exhibit P-1) provided for an excavation of 18 inches in depth of the driveway, the excavation was not uniformally performed to the said depth. [ 27 ] In view of the preceding, it is undisputable that Plaintiff is entitled to compensation inasmuch as Defendant, Gentile Construction, did not respect the terms of the contract when it performed the work relating to the driveway. [ 28 ] Considering that Plaintiff has paid Defendant, Gentile Construction, an amount of $6,350.00 and that an important part of the work was not performed according to the terms of the contract, the Court grants her an amount of $1,500.00 in compensation. [ 29 ] Regarding the amount claimed by Plaintiff in relation to the removal of the hump, leveling and fixing of the lawn, the pictures filed into evidence reveal that the hump on the lawn in front of the house was not leveled.

As Plaintiff paid Defendant, Gentile Construction, an amount of $900.00 for this, she is entitled to reimbursement of the said amount. [ 30 ] Regarding the amount claimed by Plaintiff for the planting of new bushes ($400.00), the Court is of the opinion that she has not established that the initial contract provided for their replacement at the expense of Defendant, Gentile Construction. Consequently this part of her claim is dismissed. [ 31 ] As concerns Plaintiff’s claim for loss of work ($720.00), no conclusive evidence regarding such damages was adduced at trial.

Consequently, this part of her claim is dismissed. [ 32 ] As concerns the claim in the amount of $230.00 for lawyer’ fees, in view of the circumstances, the Court is of the opinion Plaintiff was entitled to seek counsel from her lawyer.

Consequently, the sum of $230.00 is granted. [ 33 ] Finally, as concerns the sum of $155.00 requested for the new work permit, considering that no proof was made establishing the purchase of a new permit, this part of the claim is also dismissed. [ 34 ] In view of the preceding, the Court maintains Plaintiff’s demand, in part, for an amount of $6,889.45 as concerns Defendant, Gentile Construction, only. [ 35 ] Regarding Plaintiff’s demand against Defendant Gentile, the evidence adduced at trial has established, conclusively, that the contract was concluded with Defendant, Gentile Construction, only.

Consequently, there is no “legal link” between Plaintiff and Defendant Gentile personally. [ 36 ] Furthermore, the evidence has not established that Defendant Gentile acted in a manner such as to render him personally liable to Plaintiff or in a manner that would justify the lifting of the corporate veil.

Consequently, Plaintiff’s demand against Defendant Gentile, personally, is dismissed, without judicial costs. [ 37 ] As concerns the cross-demand of Defendant, Gentile Construction, the evidence adduced at trial has established that the contract concluded between the parties was a contract with a fixed price of $14,550.00 (Exhibit P-1). [ 38 ] This being said, the Court refers to

article 2109 C.c.Q. with states the following: 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. [ 39 ] Regarding the issue of the applicable taxes, the contents of the emails exchanged between the parties relating to the contract does not indicate whether or not the prices quoted include the applicable taxes. [ 40 ] Furthermore, it is only approximately six months after the contract had ended as a result of Plaintiff’s letter, dated October 21 st , 2015 (Exhibit P-20), that Defendant, Gentile Construction, billed her for the alleged extra work performed and for the alleged unpaid taxes. [ 41 ] At the hearing, Plaintiff categorically denied having requested from Defendant, Gentile Construction, that it perform extra work.

She also testified that the price quoted by Defendant Gentile, included the applicable taxes. [ 42 ] Defendant Gentile did acknowledge that, although Defendant, Gentile Construction, performed extra work, he never discussed the fixing of the price of the said extra work with Plaintiff nor did he request that she sign any acknowledgement as to the work requested. [ 43 ] This being said, in view of the evidence adduced at trial, documentary and testimonial, the Court concludes that Defendant, Gentile Construction, has not established, conclusively, that Plaintiff requested and accepted to pay for any extra work.

Consequently, this part of said Defendant’s cross-demand is dismissed. [ 44 ] Regarding the claim of Defendant, Gentile Construction, for the payment of the applicable taxes, as the said taxes were only billed to Plaintiff in March 2016 and considering that their payment, in addition to the cost of the contract, was never mentioned in the emails exchanged between the parties prior to the execution of the contract or during its execution, Defendant, Gentile Construction, has not established, conclusively, that the said taxes were not included in the quoted price.

[ 45 ] Consequently, the cross-demand filed by Defendant, Gentile Construction, is dismissed. [ 46 ] Finally, Abner Abineralemayhuhen testified at the hearing. As provided for by article 2(1) of the Regulation Respecting Indemnities and Allowances Payable to Witnesses Summoned Before Courts of Justice [2] , he is therefore entitled to receive the sum of $45.00 as an indemnity for his loss of time as well as a transportation allowance to be determined in accordance with the terms of

article 3 of the said regulation. [ 47 ] The above indemnity and allowance are to be paid to Mr. Abner Abineralemayhuhen by Defendant, Gentile Construction, at the request of whom, he was called to testify. FOR THE FOREGOING REASONS, THE COURT: MAINTAINS, in part, Plaintiff’s demand; CONDEMNS Defendant, 9208-0750 Québec Inc. d.b.u.n. Gentile Construction Inc. to pay Plaintiff the amount of $6,889.85 with interest at the rate of 5% per annum plus the additional indemnity provided for by

article 1619 C.C.Q. as of October 25 th , 2015. THE WHOLE with judicial costs in the amount of $200.00. DISMISSES Plaintiff’s demand against Defendant, Robert Gentile, without judicial costs. DISMISSES the cross-demand filed by Defendant 9208-0750 Québec Inc. d.b.u.n. of Gentile Construction Inc. with the judicial costs in the amount of $200.00; ORDERS Defendant 9208-0750 Québec Inc. d.b.u.n. Gentile Construction Inc. to pay to Mr. Abner Abineralemayhuhen the indemnity and transportation allowance detailed in paragraph 46 of this judgment. __________________________________ ARMANDO AZNAR, J.C.Q.

Date of hearing: May 25, 2017 [1] Jacob Pollack c. The Canadian Imperial Bank of Commerce C/A Montreal 500-09-000208-777 , 20 mai 1981 , J.J. Kaufman, L’Heureux, Dubé, Laflamme, pp. 4-5.