2018 QCCQ 4000, 2018 QCCQ 4000

Wong c. Lu 2018 QCCQ 4000 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-155771-175 DATE: June 12, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JASON WONG Plaintiff v.

PEIFENG LU Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Jason Wong, an architect, sues his former client, the Defendant, Mr. Peifeng Lu on a balance of account for services rendered in connection with a building project at Mr.

Lu’s home, in Dollard-Des-Ormeaux, in June 2015. [ 2 ] The invoice, dated August 27, 2015 makes reference to a “plan d’architecte”, states a fee of $ 1,750 plus applicable taxes for a total of $ 2,012.06, less a payment on account of $ 800.00 for a balance of $ 1,212.06. [ 3 ] Mr. Lu contests the claim stating that Mr. Wong failed to deliver the architectural design and refused to “deliver” his professional services. He states that “I will accept his plan with other third party, Ville de Dollard-Des-Ormeaux” [1] . Issues [ 4 ] The court must determine: 1. Did Mr. Wong compete the required work?

Is he entitled to payment in whole or in part? 2. Was Mr. Lu entitled not to pay because of incomplete work or a failure to deliver services? Facts [ 5 ] The relationship began with a visit to the site, where an excavation was already under way, in late May 2015. A price of $ 1,750.00 was discussed for “permit drawings”. [ 6 ] Mr. Peifung Lu delegated to his son Mike Ju, the signature of the contract on June 1, 2015. Mr. Wong met Mr. Mike Ju at the residence. Mr.

Ju reached his father by phone and explained the contract to him before signing it, with his father’s approval [2] . [ 7 ] On the contract form [3] , a manuscript annotation after the heading “Mandat” reads as follows: “Plan ARCH Renovation AS Per ENG Plan”. [ 8 ] A cheque for $ 800.00 drawn on the bank account of a business in which the family is involved, “Garderie la petite maison rouge” was remitted to Mr.

Wong as an initial payment. [ 9 ] The phrase “ENG PLAN” refers to the drawings of an Engineer, Muxin Li [4] . [ 10 ] The city of Dollars-des-Ormeaux had received a request for a building permit on the basis of these plans and had written to Mr. Lu advising him of other documents required to process the request, including: “Architectural plans including a site plan showing the location of existing and proposed construction as well as elevation plans” [5] . [ 11 ] Mr.

Wong prepared preliminary plans which included a plan of the existing building and the addition, showing its location on the lot, a second plan showing three elevations and one typical

section as well as a number of specifications and a plan of the basement of the extension. [ 12 ] The plans are duly stamped and dated June 1, 2015 [6] . [ 13 ] Mr. Wong explains that the work involved was more than he had expected, because it became necessary to depart from the

geometry of the engineering drawing because of non-conformities and because of changes to the design desired by the client. [ 14 ] He estimates that the work should have been charged for twice the amount of the agreed price.

He issued an account for “SERVICES PROFESSIONEL: TRAVAIL SUPPLEMENTAIRE” dated February 27, 2018 [7] ., but this was an afterthought, because he kept with the contractual price in his letter of demand of August 27, 2015 [8] and in the amount claimed in the proceedings, based on this demand. [ 15 ] Upon completion of the drawings, he contacted his client on Wednesday June 1, 2015 urging him to come to pick up the drawings and to remit the payment of the balance. Mr.

Lu proposed in a text message the following Sunday that his wife would go to pick up the drawings on Monday, June 6. [ 16 ] In these electronic exchanges, Mr. Lu asked to know the price.

This was not an inappropriate request, because he had already provided a deposit and the contract mentioned percentages, not precise amounts. [ 17 ] He then proposed a payment of $ 600 immediately, $ 300 upon city approval of the project and the balance (another $ 312.06. according to the Court’s calculations) after construction. [ 18 ] He explains to the Court that he believed it would be reasonable to hold back a balance until the city had approved the plans. [ 19 ] Mr. Wong replied that the contract is “paid in full upon delivery” a laconic reference to a stipulation in the written agreement [9] . [ 20 ] Mr.

Wong also understood Mr. Lu’s request to pay part of the price after the completion of the construction to be a request to carry out supervision, which was not part of the agreement. Analysis [ 21 ] Mr. Wong carried out the contract to a substantial degree by preparing the plans that were ready for submission to the city of Dollard-des-Ormeaux. The plans [10] are marked: PRELIMINAIRE PAS POUR CONSTRUCTION soumis pour approbation de la ville seulement [Text reproduced as written] [ 22 ] The contract, preprinted on a form used by Mr.

Wong sets out the following financial terms: CONDITIONS: MODIFICATIONS pour toutes infranctions relier à la code du batiment inclus. CONCEPTION INTERIURS (finitions, couleurs, electricite/mecanique), PAYSAGE, SURVEILLANCE DE LA CHANTIER, INGENIEURIE, ILLUSTRATIONS exclus. EXPIRATION contrat valade pour 8 mois; apres cette date la contrat devient annuler, la client devient responsable pour %85 des honoraires. VERFICATION DU ZONAGE par la client. PAIEMENT : 30% depot, 40% preliminaires et 30% a la completion (paiement sur liviraison). [Text reproduced as written] [ 23 ] Mr. Wong’s

interpretation of this agreement is that payment of the full contract price would be due at the preliminary stage, prior to the submission of the plans to the city and before any changes that would be required to meet the city’s requirements as to building- code infractions. [ 24 ] That is not what the contract states. The contract speaks of architectural plans, not preliminary plans. This is consistent with the notion that any modifications required because of infractions to the building codes would be included (meaning, included in the work and in the price).

The contract was for plans, up to the construction stage, not just the permit stage. [ 25 ] The terms of payment provided for three payments: “30% depot, 40% preliminaires et 30% a la completion”. [ 26 ] Mr. Lu had paid more than 30% as a deposit, $ 800 rather than the amount of $ 603.61 that he should have paid. [ 27 ] At the delivery of the “preliminaires” meaning the preliminary drawings, for permit, not for construction, Mr.

Wong was entitled to have received 70% (30% plus 40%), leaving 30% upon completion, meaning the completion of the drawings, not the completion of the construction. [ 28 ] So he should have invoiced a total equal to 70%, $ 1,408.44, less the $ 800.00 received already, i.e. $ 608.44. [ 29 ] The balance of $ 603.61, the last 30%, would have been payable upon delivery of the final (construction) version of the plans. [ 30 ] Mr.

Lu was also wrong in part: not in offering $ 600.00 upon completion of the preliminary drawings which was substantially what he owed at that stage, but in suggesting a hold back of $ 312.06 until the end of work. [ 31 ] The plans were never submitted to the city and Mr. Lu did not tender the payment he owed in return for the delivery of the drawings. [ 32 ] Instead he wrote by email, on July 12 [11] :

We have to get the drawing before 14 th , July.2015. otherwise I can not submit to city for meeting on August. as you said your professional but i am not. i only can pay you in full until your drawing is accepted by city and constructor agree with the drawing. please do not waste our time and delivery your drawing by July. 14 th .2015. please consider: you loose nothing and make me no worry. [Text reproduced as written] [ 33 ] The email [12] states clearly that he wants the drawings, but it is not clear that he is still willing to pay according the terms of the agreement: he does not tender the payment of $ 608.44 and he adds a new requirement: the agreement of the contractor. [ 34 ] The answer to the questions posed at the beginning of the judgment is as follows: Question 1: Did Mr.

Wong compete the required work? Is he entitled to payment in whole or in part? Answer: He completed the work required to be paid 70% of the contract price. He is owed $ 608.44. Question 2: Was Mr. Lu entitled not to pay because of incomplete work or a failure to deliver services? Answer: No, he should have tendered the payment of $ 608.44 at the time he insisted upon delivery of the preliminary drawings. He was not entitled to propose a further holdback of $ 312.06 until the end of the construction work. [ 35 ] It follows, then, that upon the payment of the judgement, Mr.

Wong should deliver the plans of which copies were produced as the exhibit P-11, if Mr. Lu requests them. FOR THESE REASONS, THE COURT: [ 36 ] CONDEMNS the Defendant to pay the Plaintiff $ 608.44 together with interest at the legal rate of 5% per annum plus the additional indemnity provided at

article 1619 of the Civil Code of Québec , calculated from June 1, 2015; [ 37 ] WITH LEGAL COSTS ; [ 38 ] ORDERS the Plaintiff, upon satisfaction of judgment in capital interest and costs, to deliver the preliminary plans to the Defendant within five business days of receipt of a written request from the Defendant, at the address indicated in the request; [ 39 ] CONSERVES its jurisdiction to resolve any difficulty that could arise in the execution of the above-mentioned order, upon notice of presentation made presentable by either party before the undersigned judge. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: February 27, 2018