2012 QCCQ 11039, 2012 QCCQ 11039

L. Royal Construction c. Aghtedari 2012 QCCQ 11039 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-119703-090 DATE: October 31, 2012 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ L. ROYAL CONSTRUCTION Plaintiff v.

SOHEILA AGHTEDARI and DANESH JAVESHGHANI Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] L. Royal Construction (Royal), is claiming that the sum of $3,700.00 pursuant to the renovation of Defendants' home. [ 2 ] Defendant, Mrs. Soheila Aghtedari, contests this claim alleging that the work was unfinished by Royal. She claims that she incurred disbursements for materials that should have been included in the initial contract. She also invested time and effort in order to complete the work.

She makes a cross-demand for the amount of $4,671.00. [ 3 ] Defendant, Mr. Javeshghani, alleges that he did not sign the contract and therefore Royal has no right against him. THE APPLICATION AGAINST MR. JAVESHGHANI [ 4 ] Mr. Javeshghani is correct in stating he did not sign the contract and therefore, Royal has no contractual right against him. Royal invokes the fact that Mr. Javeshghani is the co-owner of the property. The application in this matter is not based on a hypothecary right. Therefore, this argument cannot be accepted. The evidence shows that the contract was signed by Mrs.

Aghtedari and she was the only person involved. [ 5 ] The application against Mr. Javeshghani will be dismissed. THE CONSTRUCTION CONTRACT [ 6 ] On August 20, 2008, a fixed price construction contract was signed by Royal and Mrs. Aghtedari (exhibit D-2). [ 7 ] The project was to renovate the basement of Mrs. Aghtedari's home. She testified that the basement was to become a home daycare. This is contested by Royal, whose president Mohammed Ali Mohammadi states that it was to provide an apartment for Mrs. Aghtedari's daughter.

This debate is academic, since it has no bearing on the application, nor on the cross-demand. Mrs. Aghtedari has confirmed in her testimony that she is making no monetary claim concerning her home daycare project. [ 8 ] The contract states, in part: 20-All the material will be supply by L. ROYAL CONSTRUCTIOM 21-All debris will be removing by L.

ROYAL CONSTRUCTION Total cost of entire jobs is $ 25000,00 at singing we asking 30% when all the Partion Are installed and rough plumbing are completed we asking 25% 3rd payment will be 30% all the ceramic installed plastering completed walls are painted sub floor installed Stairs are installed

The remaing balance will be when the job completed . (Quotation of the original) (Emphasis added) [ 9 ] The work was supposed to be done between September 8 and October 8, 2008. The evidence shows that as of October 3 rd , 2008 (Exhibit D-7), the work was far from finished. [ 10 ] The parties agree that some work was done after October 3 rd . They do not agree however as to the extent of such work, save the fact that Royal did install the kitchen cabinets sometime after this date. All other work was done by Mrs. Aghtedari, her husband and a friend. [ 11 ] Mrs.

Aghtedari's attorney sent a letter dated January 5, 2009 (Exhibit D-6), demanding that Royal finish the agreed upon work. Royal did not do so. [ 12 ] When asked why Royal stopped work on this project, Mr. Ali Mohammadi states that Mrs. Aghtedari was constantly trying to renegotiate. He became tired of the constant discussions and refused to continue working if he was not paid certain extras first. ANALYSIS AND DECISION Royal's claim [ 13 ] Mr. Ali Mohammadi divides Royal's claim in to two parts. A sum of $3,000.00 is due as a contractual balance on the fixed price contract.

He refers the Court to the contract where its states that on conclusion of the work, the "remaining balance" (some 15%) must be paid. The other $700.00 is a fee due concerning the rebuilding of an arch between two rooms. [ 14 ] Mrs Aghtedari denies owing the balance of $3,000.00 on the contract since the work was not finished. She is correct. The contract specifically states that the balance of the fees is due on completion of the project. The work was never completed by Royal. Therefore, the balance of 15% is not due. [ 15 ] Royal attempted to prove that if its work was unfinished that it was Mrs.

Aghtedari's fault. The preponderant evidence does not allow this conclusion. The only renegotiation that Mr. Ali Mohammadi refers to in his testimony are discussions concerning the repairs to the arch. This does not constitute renegotiation. As for Mrs. Aghtedari being scrupulous about the quality of the work and the choice of materials, this does not constitute justification for Royal abandoning the job site. The claim for the $3,000.00 contractual balance is dismissed. [ 16 ] As for the $700.00 for an extra concerning the reconstruction of an arch, the evidence is conflicting. Mr.

Ali Mohammadi contends that this was a modification requested by Mrs. Aghtedari on the initial contract. No documentary evidence supports this. Mrs. Aghtedari, corroborated by her husband, states that the first arch way was built in front of a window. Therefore, the correction of this error was Royal's responsibility. [ 17 ]

Article 2109 of the Civil Code of Québec states: Where the price is fixed by the contract, the client shall pay the price agreed, and may not claim a reduction of the price on the ground that the work or service required less effort or cost less than had been foreseen. Similarly, the contractor or the provider of services may not claim an increase of the price for the opposite reason.

Unless otherwise agreed by the parties, the price fixed by the contract remains unchanged notwithstanding any modification of the original terms and conditions of performance . (Emphasis added) [ 18 ] To obtain the extra that Royal is claiming, it had the burden [1] of proving a specific agreement with Mrs. Aghtedari. It has not succeeded in proving any such agreement and therefore its claim must be dismissed. THE CROSS-DEMAND [ 19 ] Mrs. Aghtedari alleges that she had to purchase numerous materials that should have been provided by Royal in its fixed price contract.

Specifically, she claims that she disbursed $6,600.81 for the following: ▪ Shower taps:$123.03; ▪ Wood flooring: $1,683.13; ▪ Kitchen cabinets: $2,274.43; ▪ Bath furniture and equipment: $1,252.90;

▪ Kitchen countertop: $530.96; ▪ Kitchen sink: $ 337.50; ▪ Kitchen taps: $145.61. [ 20 ] Also, she alleges that she invested time and effort, along with a friend and her husband, in order to finish the work. For this, she has filed a letter describing the hours that all three people invested. She has calculated her claim at $15.00 an hour, which is her rate at her daycare job. [ 21 ] The evidence shows that Mrs. Aghtedari disbursed $18,000.00 of the $25,000.00 originally agreed upon in the contract between the parties. Therefore, an amount of $7,000.00 was never paid to Royal.

This amount is more or less the same amount that Mrs. Aghtedari has disbursed in order to obtain the lacking materials. The difference of $399.19 is in favour of Mrs. Aghtedari. Royal will be condemned to pay this amount. [ 22 ] Also, the evidence clearly shows that Mrs. Aghtedari participated in the completion of the renovations that Royal should have done under its contract. She spent an unspecified number of hours installing kitchen and bathroom cabinetry and equipment. She also suffered inconvenience. Mrs.

Aghtedari requests that the Court evaluate these damages using her hourly rate of $15.00. [ 23 ] The Court is convinced that Mrs. Aghtedari did invest a considerable amount of time finishing Royal's work. She also suffered inconvenience by Royal's contractual fault. The hourly rate suggested is reasonable. The Court therefore arbitrates the whole to an amount of $750,00. This sum will compensate Mrs. Aghtedari for both time invested, as well as inconvenience suffered. [ 24 ] The Court will condemn Royal to a total amount of $1,149.19. FOR THESE REASONS, THE COURT: DISSMISES the application of L.

Royal Construction; GRANTS , in part, the cross-demand; CONDEMNS L. Royal Construction to pay to Soheila Aghtedari the amount of $1,149.19 with interest at the legal rate plus the additional indemnity provided for by

article 1619 of the Civil Code of Quebec as of November 4, 2009. THE WHOLE with judicial costs against L. Royal Construction in the amount of $116,00. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: July 9, 2012.