2014 QCCQ 7285, 2014 QCCQ 7285

G. Vok inc. c. Kyres 2014 QCCQ 7285 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division DATE: July 9, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ 500-32-136365-121 G. VOK INC. Plaintiff v. BILL KYRES Defendant ______________________________________________________________________ 500-32-137409-134 BILL KYRES Plaintiff v.

GEORGE VOK Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The present judgment disposes of two cases joined for common hearing. In his legal proceeding (500-32-137409-134), Mr. Bill Kyres claims against George Vok a refund of the amount of $4,134.36 for a custom made television stand that he says he never received. In its legal proceeding (500-32-136365-121), G. Vok inc. claims against Bill Kyres for services rendered and material purchased for the amount of $1,881.62. Mr.

Kyres denies that anything is owed. Context [ 2 ] Mr. Bill Kyres did business with George Vok as a contractor/handyman both for Mr. Kyres’ business and for his personal condo. This has resulted in the two legal proceedings before the Court. Unfortunately, the proof showed irreconcilable factual differences between the versions presented by each of the parties. Both parties allege certain meetings and events took place, which are vehemently denied by the other. Also, each party has conducted itself in a way that was casual, lackadaisical and sloppy with regard to details, paperwork and accounting.

The result is often diametrically opposed factual versions where each party states that the other is fabricating or misrepresentating the facts. Equally, payments by Mr. Kyres were applied by Mr. Vok in a half-hazard way to amounts verbally claimed but not invoiced. For Mr. Vok, this was also done after the fact in order to justify the allocation of certain payment amounts by him.

The parties appear to have serious problems of communication. [ 3 ] Given the risk of contradictory judgments, on Febryary 11, 2013, my colleague Judge Celine Gervais, J.C.Q. ordered that the two cases be joined for common hearing before a judge of our Court in the District of Montreal. At the same time, she ordered that the custom television stand made by a supplier of Mr. Vok be delivered to Mr. Kyres and payment of which was to be assessed and allocated by the judge hearing both cases on the merits. Mr. Kyres’ claim

[ 4 ] Further to a demand letter of Mr. Kyres dated May 9, 2012 (Exhibit P-1), on May 25, 2012, Mr. Kyres instituted a legal claim for $2,134.36 on the basis that he made monetary advances to Mr. Vok for that amount in order to build a custom made TV stand for the bathroom of his condo. He says that he gave payments as follows: August 2, 2011 $1,085.62 October 10, 2011 $398.74 January 28, 2012 $200.00 February 2, 2012 $150.00 Total: $1,834.36 [ 5 ] Mr. Vok testifies that Mr. Kyres is in error. For Mr. Vok, only the payment of $398.74 was for the TV stand and this amount paid C.

Vok inc.’s invoice of D-2 for the same amount. Mr. Vok says all the other amounts were to be used to pay for other work requested by Mr. Kyres, namely the bathroom ($1,085.62) and the window sills (Exhibit P-4, $200 and Exhibit P-5, $150$). [ 6 ] The Court finds it unlikely that an amount such as $1,085.62 was given as a deposit. It is far too specific. There would be no point in adding such dollars and cents to such a deposit since it was simply an advance. The Court concludes that the amount of $1,085.62 was applied to the bathroom contract. Whether it was properly applied will be discussed in the next section.

So the basic amount for the TV stand was the amount invoiced ($398.74), plus the two additional amounts requested ($200 + $150) for a total of $748.74. [ 7 ] According to Mr. Kyres, the TV stand was never delivered until after Judge Celine Gervais’ judgment of February 11, 2013 and pursuant to said judgment. According to Mr. Vok, the stand was previously delivered by himself and his work associate Mr. Sedlack (who stayed in the car) and Mr. Kyres rejected it.

Based upon the Court’s appreciation of the credibility of the witness, and the balance of probabilities with respect to the proof, the Court find partially in favour of Mr. Kyres on this point. [ 8 ] The Court considers that the TV stand was never delivered until and after Judge Céline Gervais’ judgment. That being the case, Mr. Kyres was charged $748.74 for the stand. The question is whether that amount can be claimed back by him. This turns on whether Mr. Kyres properly terminated the contract for the TV stand. He knew well that it was custom made for him. But Mr. Kyres never put Mr.

Vok or his company in default to deliver the stand failing which the contract would be cancelled. At most, he only requested to know when delivery would take place (Exhibit P-6). He should have ensured that the contract was cancelled before he got another contractor to resolve the issue, which he eventually did. Accordingly, Mr. Kyres has to accept delivery and pay an amount owed. As Mr. Kyres is not satisfied with the stand, his reasons are partially valid. So the Court will reduce the amount owed (which has already been advanced from $748.74 to $400, leaving an amount of $300 owing to Mr.

Kyres) there is a claim of Mr. Kyres for $200 in damages. That claim is dismissed as being without justification or proof. [ 9 ] At this point, there remains outstanding Mr. Kyres’ claim for the amount of $1,085.62 which is owed to him and will be dealt with in the review of Mr. Vok’s claim. G. Vok Inc. and George Vok claim [ 10 ] G. Vok Inc. and George Vok (hereafter collectively “Mr. Vok”) claim the amount of $1,881.62 from Mr. Kyres. Mr. Vok claims that such amount was due to him as a result of work carried out by him or his company for Mr. Kyres or Mr.

Kyres’ company. [ 11 ] Regarding the cheque of $1,085.62 of August 3, 2011, Mr. Vok allocated that to the bathroom contract at 1001 Mount-Royal (Exhibit P-2). The Court rules that such allocation was correct and that amount was due. [ 12 ] It was clear from the proof that Exhibit P-2 with regard to extra material and work was created by Mr. Vok because the situation had become litigious as a result of Mr. Kyres’ claim discussed above. Mr. Vok was careless with his paperwork on billing.

After the matter became litigious, on the recommendation of his attorney and accountant, he prepared invoice #301 dated August 23, 2011 (Exhibit P-2). [ 13 ] But beyond the timing or carelessness of Mr. Vok’s accounting, the question for the Court is to determine what amounts are truly owing to Mr. Vok by Mr. Kyres for work performed by Mr. Vok, including by his company.

[ 14 ] The proof is uncontradicted that the agreement was that Mr. Vok was working on the basis of labour only and that all materials were to be paid by Mr. Kyres. Therefore, in order to claim any amount for materials against Mr. Kyres, Mr. Vok must have an invoice for his purchase. Unfortunately, Mr. Vok does not have invoices for various materials that he claims to have purchased. For any additional amount of labour, Mr. Vok should have informed Mr. Kyres of the amount or method of determination of such amount (

Article 2102 of the Civil Code of Quebec ). As he did neither, no extra amounts for labour will be granted by the Court. However, the Court will apply to the claim of Mr. Kyres a credit for the amount of the August 3, 2011 cheque (or $1,085.62). Conclusion [ 15 ] Mr. Kyres’s claim will be granted for the amount of $300. Mr. Vok’s claim will be dismissed in its entirety. Mr. Kyres will be declared owner of the television stand which is presently in his possession. Mr. Kyres will be given his judicial costs (Plaintiff and contestation) for both claims.

FOR THESE REASONS, THE COURT: GRANTS partially Bill Kyres’s claim (500-32-137409-134); CONDEMNS George Vok and G. Vok Inc. to pay Bill Kyres the amount of $300 plus legal interest of 5% per year and the additional indemnity provided at

Article 1619 of the Civil Code of Quebec commencing from Bill Kyres’ Demand Letter (Exhibit P-1) dated May 9, 2012; WITH JUDICIAL COSTS of $103 in favour of Bill Kyres; DISMISSES the claim of G. Vok Inc. (500-32-136365-121); WITH JUDICIAL COSTS of $93.75 in favour of Bill Kyres. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: June 16, 2014