2023 QCCQ 3655, 2023 QCCQ 3655

Tony General Renovation c. Herrera 2023 QCCQ 3655 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-714224-211 DATE: June 1, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ TONY GENERAL RENOVATION Plaintiff v.

ARIS HERRERA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Tony General Renovation (“Tony”), a sole proprietorship operated by Tony Danzil, is claiming $15,000 from Aris Herrera for the unpaid balance of the invoice for renovation work done on his residential building located at 5040 De La Peltrie, in Montreal. [ 2 ] Mr. Herrera disputes the claim. [ 3 ] He argues that Tony is relying on a sham contract that must be set aside.

He alleges that he paid all the amounts he owed under the one true contract binding the parties, namely the contract of March 29, 2018. [ 4 ] He added that the renovation work had been so poorly done that he would have to pay $25,000 to correct it. Finally, he criticized Tony for coming to his home to threaten him and for breaking down his front door so that he had to call the police to protect himself. [ 5 ] Thus, by way of a counterclaim, Mr.

Herrera is claiming $15,000 from Tony, after voluntarily reducing the value of his damages in order to respect the jurisdiction of the Small Claims Division. [ 6 ] Tony disputes the counterclaim. He explained that if he had been unable to finish the renovation work, the fault laid with Mr. Herrera, who had refused him access to his property. As for his attempt to get paid, he denied any bad behavior on his part. ISSUES [ 7 ] The Tribunal must answer the following questions: (

a) Which contract is binding on the parties? That of 8 February 2018 as Tony claims or that of 29 March 2018 as Mr. Herrera maintains? (

b) On the basis of the answer to the first question, does Tony prove that a balance is owed to him? (

c) Is Mr. Herrera proving that the renovation work was carried out incorrectly, and if so, what damages is he entitled to? (

d) Does Mr. Herrera prove malicious, arbitrary or extremely reprehensible conduct on the part of Tony, justifying an award of punitive damages in the amount of $5,000? BACKGROUND [8] At the outset, it should be noted that the parties are contradictory on every aspect of this case. [9] For the purposes of this case, the Court sets out the parties’ versions. [10] According to Tony Danzil, a renovation contract in the amount of $42,655.72 was entered into and signed with Mr. Herrera on February 8, 2018.

[11] The plan was to redo the entire kitchen, renovate the bathroom, build a powder room, change the wood floor in the kitchen, do the necessary electrical work, touch up the plumbing, and plaster and paint in a few places. The contract also stipulates that Mr. Herrera must pay for the materials (Exhibit P-2). [11] The work began on February 9, 2018. [12] Again according to Mr. Danzil, during the performance of the contract, Mr. Herrera asked him to do a series of additional jobs. [13] In support of his assertion, Mr.

Danzil produced two invoices, one dated March 14, 2018, in the amount of $7,502.11 (Exhibit P-6) and another dated March 29, 2018, in the amount of $8,623.12 (Exhibit P-3). [14] Although they are not exactly alike, the descriptions of the two invoices are similar. Among other things, both documents mention the demolition of all the ceilings in the basement, the installation of an exhaust fan in the bathroom and repairs to the skylight. [15] At the hearing, Mr. Danzill suggested that he was not claiming from Mr. Herrera the $8,623.12 invoice (Exhibit P-3) and that Mr.

Herrera had paid the March 14, 2018, invoice (Exhibit P-6) in full. [16] He stated that he had performed the work provided for in the contract of February 8, 2018, for which he had received the sum of $17,000. There was therefore a balance receivable of $25,655.72, which he reduced to $15,000 in order to comply with the Small Claims Division’s jurisdiction. [17] In closing, Mr. Danzil states that the parties’ dispute is with respect to the main contract. He asked the Court to set aside the renovation contract of March 29, 2018, and rely on the contract of February 8, 2018.

He maintains that he drafted the contract of March 29, 2018, for the sole purpose of obtaining a permit from the City (Exhibit P-4). [18] According to Mr. Herrera and his wife, Mr. Danzil is not telling the truth. [19] Ms. Herrera said that she and her husband had only asked for renovations to the kitchen and bathroom and for a powder room to be built. A budget of $20,000 had been set aside for this purpose and mentioned to Tony. [20] Mr. Herrera explained that Tony had not respected the contract by unilaterally undertaking work that was not required.

Every time he went to the site to see how the work was progressing, he was amazed at the scope of the work and worried about the situation. He claims that he never requested any new work and blames Mr. Danzil for presenting him with a fait accompli. He suggested that this was Mr. Danzil’s way of getting more money out of him. [21] He placed no value on the invoices dated March 14 and 29, 2018 (Exhibits P-6 and P-3) describing the additional work. He asserts that he was never consulted nor did he agree to any such work.

Moreover, he did not sign these documents either. [22] According to what he reported, the work described in the contract of March 29, 2018, was to be completed on April 30, 2018, the date he moved into his new property. [23] As a result of Tony’s unfortunate initiatives, the work could not be completed by April 30, so he had to give him an additional 21 days. [24] Despite this new deadline of May 21, 2018, the plaintiff and his wife explained their desolation and anger when they arrived at their property. Everything was in disarray and, above all, unfinished.

More than 70 photographs illustrate the state of the premises (Exhibit D-2). [25] Among other things, all the ceilings in the basement that had been removed without their permission had not been replaced. Ceramic tiles are cracked and have not been leveled. The baseboards have not been installed at the bottom of counters and around cabinets, doors, etc. The sealant has not been applied everywhere, and where it has been applied, it is uneven and unsightly. Construction debris has been left to clutter up the garage and the entrance to the yard (Exhibit D-2). [26] Mr.

Herrera produced three double-sided checks in Tony’s name showing payment of $24,500 (Exhibit D-7). He also provided evidence of a cash rebate in the amount of $545.17 via the check in the amount of $2,760.68 dated February 16, 2018 (Exhibit D-2) in the name of Tony Danzil as reimbursement for materials. [27] In total, therefore, $25,045.17 was paid to Tony, covering the entire renovation contract of March 29, 2018 (Exhibit P-6). [28] According to Mr.

Herrera, this is the only valid contract between the parties and the Court must set aside the contract of February 8, 2018, which, he says, he signed at Tony’s request, for administrative reasons. [29] With respect to his counterclaim, Mr. Herrera estimates that he will have to pay approximately $25,000 to correct everything that Tony did wrong. [30] After taking possession of his residence, the plaintiff admits that he refused Tony any access. For him, it was out of the question for Mr. Danzil to return to the premises.

He had been given the chance to do so by being granted an additional 21 days and had not taken it. [31] In addition, Mr. Herrera no longer wanted to do business with Tony, because he no longer trusted him, having realized that he had not respected their agreement and was taking advantage of him. [32] On September 22, 2018, he recounted having had an unpleasant visit from Mr. Danzil. Mr. Danzil wanted money and, when he refused, he claimed that Mr. Danzil forced open the front door, forcing him to call 911. Police officers had to intervene to calm things down (Exhibit D-3).

[33] Mr. Herrara felt that Mr. Danzil had exceeded his rights by forcing open his door. Citing the fact that his “home is inviolable” [1] and that “no one may enter another’s home or take anything from it without his express or tacit consent” [2] , he claimed punitive damages of $5,000. [34] On January 12, 2021, after 27 months of calm between the parties, Tony gave Mr. Herrera formal notice to pay him $15,000 within 10 days, failing which legal proceedings would be instituted (Exhibit P-1). [35] Faced with Mr.

Herrera’s inaction or lack of response, Tony brought his claim before the Small Claims Division of the Court of Québec on February 5, 2021.

DECISION Applicable law [36] First, it is appropriate to recall the civil law rules of evidence. [37] In civil matters, the burden of proof lies with the plaintiff under the principle set out in art. 2803 of the Civil Code of Québec (“ C.C.Q. ”) [3] , which states that “a person seeking to assert a right shall prove the facts on which his claim is based.” [38] The Court renders its decision in accordance with the balance of probabilities, as stipulated in art. 2804, C.C.Q., which states that “evidence is sufficient if it renders the existence of a fact more probable than its non-existence.” In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [39] If the evidence is not sufficiently convincing or if it is contradictory and the judge cannot determine where the truth lies, the party that has the obligation to convince the Court of the merits of his or her claim will lose, in whole or in part. [40] On the merits, the contracts of February 8 and of March 29, 2088 (Exhibits P-6 and P-3) are governed by the Consumer Protection Act [4] (“ C.P.A. ”) and the Civil Code . [41] A contract between a consumer and a commercial enterprise is subject to the rules governing consumer contracts (art. 1384 C.C.Q. and art. 2 C.P.A.). [42] The merchant’s principal obligation is to provide the service provided for in the contract (art. 16 C.P.A.), which must conform to the description given (art. 40 C.P.A.).

In case of doubt or ambiguity, the contract must be interpreted in favor of the consumer (s. 17 C.P.A.). [43] Under the Civil Code , the parties’ contracts are a contract of enterprise as defined in

article 2098 C.C.Q. [5] : 2098 .

A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to another person, the client, to carry out physical or intellectual work or to supply a service, for a price which the client binds himself to pay to him. [44] The contract of enterprise entails obligations for both parties. [45] As for the contractor, he must carry out the agreed work according to the rules of the trade and in the best interests of his client [6] . [46] This also includes the obligation to properly inform his client of the nature of the work and its price [7] . [47] The contractor must also respond to the client’s requests for information while the work is in progress [8] . [48] The customer’s main obligation is to pay the agreed price.

The customer must also cooperate in good faith with the contractor to ensure that the work is carried out under the best possible conditions and provide the contractor with all relevant information relating to the contract. [49] With these precepts in mind, let us turn to the issues in dispute. Which contract is binding on the parties? That of February 8, 2018 as Tony claims or that of March 29, 2018 as Mr.

Herrera maintains? [50] As stipulated in art. 1434 C.C.Q.: “A contract validly formed binds the parties who have entered into it not only as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law.” [51] It remains to be determined which of the contracts of February 8 or March 29, 2018, is binding on the parties. This is the dispute that the Court must resolve. [52] In this case, the Court holds that the contract that is binding on the parties is the contract of March 29, 2018.

Here is why. [53] Faced with two duly dated and signed renovation contracts, it was up to Tony to convince the Court to set aside the contract of March 29, 2018. Mr. Danzil’s explanation that this contract and the fictitious amount were only valid for the purpose of obtaining a permit from the City does not hold water.

[54] First, Mr. Danzil did not provide any explanation as to why the contract of February 8, 2018, could not be used to obtain a city permit. [55] Second, Mr. Danzil did not justify the advantages of drafting a new contract for a fictitious amount if such advantages exist. [56] Finally, as Exhibit P-4 shows, the City of Montréal issued a Transformation permit, not a Renovation permit.

The description of the work authorized by the city reads as follows: “Sur façade, au RDC, enlever la porte et fenêtres du balcon pour installer une nouvelle porte patio.” [57] However, this work bears no resemblance to the work done on the plaintiff’s property, and here again, nothing is said about this discrepancy. [58] The Court therefore concludes that the explanation given by Mr. Danzil is flawed, if not inaccurate, which has the effect of tainting its credibility. [59] In discussing Mr.

Danzil’s credibility, the Court was also struck by Tony’s almost identical invoices for additional work (Exhibits P-3 and P-6, page 2). The Tribunal was even more struck by Mr. Danzil’s statement that he was waving one of his invoices. This suggests that these documents have no value and were prepared after the fact. [60] Finally, the Court noted Mr. Danzil’s response to the effect that he denied Ms.

Herrera’s assertion that their budget was $20,000. [61] Without knowing whether this is true, the fact remains that it proves that Tony did not comply with his obligation to properly inform and advise his client of the nature of the work and its price [9] . [62] Having heard Mr. Herrera, the Court finds his version plausible. His testimony, although emotional, is sincere. [63] He relied on Mr. Danzil, believing that he could trust him because he was also a pastor. He believed that Mr.

Danzil would do the same good work for him as he had done for his sister. [64] He was quickly overwhelmed by the situation and felt taken hostage by Tony. This was his first experience and the Court understands that Tony did not take his requests into account. He was unable to deal with Mr. Danzil and was powerless in the face of the turn of events. [65] Bearing in mind the rules relating to the burden of persuasion and the principle that, in the event of doubt or ambiguity, a contract must be interpreted in favor of the consumer, in this case Mr.

Herrera, the Court determines that the parties were bound by the contract of March 29, 2018.

On the basis of the answer to the first question, does Tony prove that a balance is owed to him? [66] Having decided that the contract of March 29, 2018, was the contract that bound the parties, it must be noted that no balance is owed to Tony. [67] In fact, the defendant paid $25,045.17 (D-7), which covers more than the entire $24,719.62 renovation contract of March 29, 2018 (Exhibit P-6). [68] The plaintiff’s action will therefore be dismissed and an adjustment of $325.55 will be made in the conclusions. [69] This brings us to the next question. Is Mr.

Herrera proving that the renovation work was carried out incorrectly, and if so, what damages is he entitled to? [70] To engage Tony’s contractual civil liability, Mr. Herrera must prove that Tony did not comply with the obligations he was required to assume. [71] His evidence reveals three forms of non-performance of the contract. [72] First, Tony was late in providing the promised service.

The failure to meet the April 30, 2018, deadline was a serious inconvenience for the plaintiff because he did not have access to his home until the following May 21. [73] Second, Tony carried out only part of the work he had undertaken to do. The evidence shows that the work had still not been done after an additional 21 days had been granted. [74] Lastly, and thirdly, Mr. Herrera complained about the defective performance of the obligation, stating that the work promised did not comply with the standards of the profession. [75] This evidence gives rise to a remedy under

article 1590 C.C.Q., which provides as follows: 1590. An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and without delay . Where the debtor fails to perform his obligation without justification on his part and he is in default, the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence, (1) force specific performance of the obligation;

(2) obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or the reduction of his own correlative obligation; (3) take any other measure provided by law to enforce his right to the performance of the obligation . [76] In his written counterclaim, Mr. Herrera wants to obtain the resolution or resiliation of the contract of February 5 (sic), 2018. In fact, however, Mr. Herrera is seeking damages to compensate him for the amounts he will have to pay to correct Tony’s defective work. [77]

Article 1607 C.C.Q. provides for the possibility of claiming damages from a co-contractor in the event of contractual non- performance: 1607 . The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. [78] Three principles emerge from this article: - Damages aim at full reparation of the loss.

This implies that the compensation must seek to restore the victim as exactly as possible to the situation in which he would have been had he not been at fault, that is, the situation in which he would have been had the contract been properly performed. - Three types of damage may be claimed: bodily injury, non-material damage and material damage. - Only damages that are the immediate and direct result of the fault of the co-contractor may give rise to a claim for damages.

The plaintiff must therefore prove not only that the damage is the direct and immediate result of the contractual fault of the co-contractor, but also that the damage was foreseeable [10] when the contract was entered into. [79] While the Court does not question Tony’s failure to perform the contract, it must be admitted that the evidence on damages is deficient. [80] For example, with respect to the late performance of the contract, the plaintiff did not provide any information that would make it possible to assess the financial repercussions, if any, associated with the 21 days of delay.

All that remains is their legitimate frustration. [81] With respect to the partial performance of the contract, the plaintiff gave evidence only through its photographs (Exhibit D- 2). No contractor testified about the unfinished aspects of the contract and no estimate was provided to give an idea of the cost of the incomplete work. [82] Finally, with respect to the defective performance of the contract, the situation is the same.

Apart from the photographs, no expert was heard on either side to identify any breaches of the rules of the trade. [83] In these circumstances, where the damages are difficult to quantify but Tony’s fault is proven, it is necessary to give the trial judge “un assez large pouvoir d’appréciation” [11] in assessing the damages he is called upon to award. [84] Thus, using a certain degree of approximation, discretion and judgment, the Court awarded the plaintiff $5,000 to compensate him for all of his damages related to the non-performance of the renovation contract of March 29, 2018. [85] This brings us to the last question.

Does Mr. Herrera prove malicious, arbitrary or extremely reprehensible conduct on the part of Tony, justifying an award of punitive damages in the amount of $5,000? [86] Mr. Herrera maintains that on September 22, 2018, Mr. Danzil forced his way through his door and tried to enter his home despite his refusal to do so. He had to call the police for help. [87] He alleges that this behavior is reprehensible and constitutes an infringement of his rights guaranteed by the Charter of Human Rights and Freedoms (the “ Charter ”).

He is claiming punitive damages of $5,000. [88] The Charter provides for the awarding of punitive damages in

section 49 , which reads as follows: 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages. [89] For punitive damages to be awarded, the defendant must have engaged in malicious, arbitrary or extremely reprehensible conduct that is clearly contrary to ordinary standards of good conduct. [90] In the case of an infringement of a Charter rights or freedom, the criterion of intent is imperative for the award of such damages. In plain language, the perpetrator must have intended the consequences of his or her fault.

Evidence of a state of mind on the part of the wrongdoer must show a willingness to cause the infringement of the protected right or indifference to the infringement that the wrongdoer knows is most likely [12] . [91] Here, the Court cannot allow the application for an award of punitive damages. Mr. Herrera has not convinced the Court that the conditions giving rise to such damages have been met in this case.

[92] FOR THESE REASONS , the Court: [93] DISMISSES the plaintiff’s action; [94] GRANTS the counterclaim in part; [95] CONDEMNS Tony General Renovation, alias Tony Danzil, to pay the defendant Aris Herrera the amount of $5,325.55 with interest at the legal rate, as well as the additional indemnity provided for in

article 1619 of the Civil Code of Québec , from the date of judgment; [96] THE WHOLE with legal fees in the amount of $211, representing the cost of the court stamp for the counterclaim. __________________________________ JO ANN ZAOR, J.C.Q. Date of hearing: May 2, 2023