2011 QCCQ 15681, 2011 QCCQ 15681

Golan c. Iordan (MCAI Rénovation) 2011 QCCQ 15681 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-126582-107 DATE: November 30, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ NOYA GOLAN [...], Pointe-Claire, QC., [...] Plaintiff v. VASILE HORATIU IORDAN doing business as M.C.A.I.

Rénovation 4476, 3e rue, Laval, QC., H7W 2M4 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Noya Golan is suing Vasile Horatiu Iordan (Mr. Iordan), doing business as M.C.A.I. Rénovation, for $7,000 claiming that he failed to complete his contract and damaged her floors, resulting in a loss of rent, aggravation and stress. Mr. Iordan alleges the parties had settled their dispute. [ 2 ] Judgment was rendered in favour of Ms. Golan on August 25, 2010. Mr.

Iordan requested a retraction of the judgment alleging he had mandated an attorney to submit a contestation but it was not done and he was not notified of the hearing. While jurisprudence on this subject is not uniform, the negligence and lack of diligence of an attorney have been accepted as a sufficient reason to retract a judgment. Given the evidence and adopting the liberal approach of the case law on this issue, the Court grants the motion for retraction of the judgment. The evidence: [ 3 ] Ms. Golan hired Mr.

Iordan to sand and varnish the hardwood floors in a rental apartment she owned in Pointe-Claire as well as paint the walls and baseboards. The price set was $2,217; the work was to be completed before August 1, 2010. [ 4 ] Ms. Golan claims Mr. Iordan failed to redo the floors properly. After sanding and varnishing, the varnish did not adhere to the floors and the job had to be redone. Mr. Iordan sanded the floors again but ultimately they were bumpy and rough. [ 5 ] After three attempts by Mr. Iordan to sand and varnish the floors, Ms. Golan hired another contractor to redo the floors, on August 1 st .

She claims there is little wood left for future sanding and because so much wood was removed, it is necessary to change the hardwood floors. [ 6 ] Mr. Iordan also painted the walls before doing the floors, such that the walls were damaged from the sanding process. According to Ms. Golan, the paint job was unsatisfactory and the ¼ inch moulding was not installed. [ 7 ] Ms. Golan submits that the work was to be completed before August 1, 2010, but, because it was finished two weeks later, she lost the rent for the month of August. ********

[ 8 ] Mr. Iordan painted the apartment, except for the kitchen and bathroom. He declared that after he had painted the premises, Ms. Golan put a stop payment on the cheque in order to force him to re-do the floors. He sanded and varnished the floors. She was not satisfied since there remained glue on the wood boards. He removed the varnish and redid the sanding but did not apply more varnish. [ 9 ] Mr. Iordan claimed that Mrs. Golan wanted to have someone else apply the varnish, which could cost $750. He said Mrs. Golan then asked him for a reimbursement of $350, as a final settlement. [ 10 ] Mr.

Iordan remitted this sum and claims this settled the file; he also maintains the work was well done, in accordance with the rules of the trade. He therefore denies owing any more money. Ms. Golan says the payment was to reimburse her for the cost of paint and varnish that was to be included in the contract price. The Analysis: [ 11 ] Ms. Golan hired Mr. Iordan to do renovation work for a rental apartment. In carrying out his services as a contractor, Mr. Iordan was obliged to act in the best interests of his client, with prudence and diligence and in accordance with usual practice and the rules of the trade (

article 2100 Civil code of Quebec ). Ms. Golan has the right to expect that the work be done properly and in a timely manner. The evidence indicates that neither obligation was met. [ 12 ] Although another contractor finished the job by applying the varnish, it was Mr. Iordan who had sanded the floors. A report submitted by Ms.

Golan from a building inspector indicates that the thickness of the wood was reduced, the slats of wood had not been protected and there are signs of warping. [ 13 ] As for the paint job, the inspector's report shows several photographs where the walls, baseboards and “corderons” were painted but had not been prepared properly. Mr. Iordan claims the other contractor was responsible for the preparation work. However, a contractor must respect the rules of his trade and if the preparation was not adequate, he should have refused to paint the premises, since the outcome necessarily will be unacceptable. [ 14 ] Ms.

Golan is claiming the following amounts: $1,417 for the floors, $3,000 for the floor replacement, $200 for the unfinished paint job, $1,200 for loss of rent; $1,180 for aggravation and stress, for a total of $6,997. [ 15 ] Ms. Golan established that the work done by Mr. Iordan was not acceptable and that the floors were damaged. Since her cost to redo the floors comes to $1,217, Ms. Golan is entitled to this amount. Given the unacceptable appearance of the walls and ceiling, she would be entitled to a refund of her painting costs.

However, since she only requested $200, the Court awards her this amount but cannot award her more than her claim for this item. [ 16 ] Ms. Golan is seeking $3,000 to replace her floors. It is clear that her floors have been damaged but Ms. Golan did not submit any estimate regarding the cost to replace the hardwood. Although the evidence is deficient as to what the actual cost would be to replace the flooring, the evidence has established that they have been damaged. Ms. Golan has also suffered aggravation and loss of time.

In such circumstances, the Court, in an arbitrary manner, limits the amount payable for a new floor to $1,000 and grants $700 as damages for trouble and inconvenience. [ 17 ] In the absence of any evidence as to the rental cost of the apartment, the date of the last lease and the date of a new lease, the Court cannot award any amount for the alleged loss of rent. [ 18 ] The total amount of the award therefore comes to $3,117. [ 19 ] Finally, although Mr. Iordan testified that he had paid Ms. Golan $350 and had received a receipt indicating “money back for completing the contract” , Ms.

Golan denies signing such a receipt. Considering her signature on the proceedings to institute the action and as well as her signature that was produced in Court, it is evident that she did not sign the receipt. Accordingly, the Court does not consider that this receipt constitutes a settlement of her claim. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Vasile Horatiu Iordan, doing business as M.C.A.I. Rénovation, to pay to Noya Golan the sum of $3,117, plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since April 22, 2010; THE WHOLE with costs, namely the judicial fees of $159 and the inspector’s fees of $350. __________________________________ SUZANNE HANDMAN, J.C.Q.

Date of hearing: September 26, 2011