2016 QCCQ 971, 2016 QCCQ 971

Qin c. China Theme Clun Inc. 2016 QCCQ 971 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL Civil Division No: 505-32-033517-153 DATE: January 22, 2016 ______________________________________________________________________ BY THE HONOURABLE CLAUDE LAPORTE, J.C.Q. ______________________________________________________________________ RONG RONG QIN Plaintiff v. CHINA THEME CLUB INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff sues the Defendant for damages relating to the work effected by the said Defendant in his house in September 2012. The Plaintiff also seeks to be reimbursed the amount already paid to the Defendant, that is to say, 9 300,00 $. The total claim amounts to 19 001,65 $ (reduced to 15 000,00 $). [ 2 ] On august 5 th 2012 the parties concluded a contract for the renovation of Plaintiff's house for 10,800,00 $.

Attached to this contract is a "Renovation Scheme and Pricing Budget List". [ 3 ] The work was to be completed at the latest by September 15 th . [ 4 ] According to the Plaintiff the work was not totally done by the said deadline.

Moreover, the Plaintiff alleges that there were numerous errors made by the Defendant, mostly with respect to the work concerning the staircase and the bathroom. [ 5 ] The pictures filed by the Plaintiff clearly attest to his complaints and to the fact that the work has to be redone almost completely as far as the staircase and the bathroom are concerned. [ 6 ] The Court accepts the following amounts : (a) 3 909,15 $ to redo the staircase and (b) 2 745,00 $ for the bathroom, for a total of 6 654,15 $. [ 7 ] As far as the reimbursement of the amount already paid to the Defendant is concerned, the Plaintiff claims that the Defendant, not being licensed, must return the money it has received. [ 8 ] The Bulding Act [1] provides as follows : 50.

A person not being a contractor who has entered into a contract for construction work with a contractor not holding the proper licence may apply for cancellation of the contract . The owner of an immovable charged with a legal hypothec referred to in paragraph 2 of

article 2724 of the Civil Code and registered on the application of a contractor who does not hold the proper licence may apply for the cancellation of the registration of the hypothec and for the cancellation of any related registration which the contractor may have applied for. No application for the cancellation of a contract or privilege will be granted where it is established that the applicant was aware that the contractor did not hold the proper licence.

(our underlining) [ 9 ] Since the Defendant did not possess a license at the time the contract was entered into – nor, for that matter, when it was carried on – the contract could be annulled at the Plaintiff's request. [ 10 ] The consequences of such nullity are enunciated at art. 1422 of the Civil Code : A contract that is null is deemed never to have existed. In such a case, each party is bound to restore to the other the prestations he has received . [ 11 ] The rules concerning restitution of prestations are found in

article 1699 and following of the Civil Code : 1699 C.c.Q. : Restitution of prestations takes place where a person is bound by law to return to another person the property he has received, either unlawfully or by error, or under a juridical act which is subsequently obligations become impossible to perform by reason of superior force.

The court may, exceptionally, refuse restitution where it would have the effect of according an undue advantage to one party, whether the debtor or the creditor, unless it deems it sufficient, in that case, to modify the scope or mode of the restitution instead. 1700 C.c.Q. : Restitution of prestations is made in kind, but, if this is impossible or cannot be done without serious inconvenience, it may be made by equivalence .

Equivalence is estimated at the time when the debtor received what he is liable to restore. (our underlining) [ 12 ] In the present case restitution of prestations is not possible because the work (or most of it) has already been carried on by the Defendant. [ 13 ] As established in

article 1700 C.c.Q. , such a restitution may thus be made by "equivalence". [ 14 ] In the present instance the Court must evaluate the value of the work done by the Defendant at the time the contract was terminated by the Plaintiff. [ 15 ] Given the absence of proof as to the value of the work, the Court has no other choice but to fix it, albeit on a somewhat arbitrary basis. The Renovation Scheme and Pricing Budget List shows that there was more to do than the bathroom and the staircase. The other items account for approximately 30% of the total price.

Using this figure the Court comes to the conclusion that the value of the work done (and paid) by the Defendant, apart form the staircase and the bathroom, amounts to 2 798,00 $ (9 300 X30%). [ 16 ] In

summary, Plaintiff shall receive an amount of 9 452,55 $ (3 909,15 $ + 2 745,40 $ + 2 798,00 $). WHEREFORE, THE COURT : [ 17 ] GRANTS in part Plaintiff's action; [ 18 ] ANNULLS the contract entered into between the parties on August 5, 2012; [ 19 ] CONDEMNS Defendant To pay Plaintiff the sum of 9 452,55 $ with interest at the legal rate and the additional indemnity provided for in

Article 1619 of the Civil Code of Québec since the date of the service of the proceedings, with costs (200,00 $). __________________________________ CLAUDE LAPORTE, J.C.Q.