2011 QCCQ 7049, 2011 QCCQ 7049

Bye Alarms Inc. c. 9092-2568 Québec inc. 2011 QCCQ 7049 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-126728-114 DATE: April 20, 2011 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ BYE ALARMS INC., 156, Sommerhill Street, Dollard-des-Ormeaux (Quebec) H9A 1X1 Plaintiff v. 9092-2568 QUEBEC INC., 7131, Côte-des-Neiges Road, Montreal (Quebec) H3R 2M2 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence; [ 2 ] WHEREAS a sales and services contract intervened between the parties, for the installation of alarm components and wiring, as well as phone and network wiring; [ 3 ] WHEREAS the price was to be fixed on a "time and material basis"; [ 4 ] WHEREAS plaintiff alleges that it took two men, two days, at $125.00 per hour, to perform the services; [ 5 ] WHEREAS plaintiff issued an invoice in the amount of $2,511.47 (exhibit P-1); [ 6 ] WHEREAS defendant's Vikin Khajik stated that he was "in shock" when he received the invoice; [ 7 ] WHEREAS Khajik questioned plaintiff's Bernard Yunger, in this regard, and contested the invoice; [ 8 ] WHEREAS Khajik did not agree with the fact that Yunger used his young son as the second man on the job, and billed defendant $50.00 an hour for his work; [ 9 ] WHEREAS, according to defendant, Yunger and his son worked no more than 10 hours, on July 22 and 24, 2010; [ 10 ] WHEREAS defendant expected to pay between $60.00 and $80.00 an hour for Yunger's work; [ 11 ] WHEREAS, according to Khajik, Yunger's young son had no expertise or capabilities and could only do menial tasks to help his father; [ 12 ] WHEREAS, be that as it may, when Khajik asked Yunger to lower the amount of invoice P-1, Yunger, by his own admission, "got into a rage, grabbed the keypad off the wall and threw it outside on the ground", thereby rendering the alarm system non-functional; [ 13 ] WHEREAS, furthermore, according to defendant, plaintiff did not complete the work; [ 14 ] WHEREAS plaintiff had an obligation of result; [ 15 ] WHEREAS, in acting as it did, plaintiff did not act in the best interests of its client, with prudence and diligence, in accordance with usual practice and the rules of art and in conformity with the contract ( art. 2100 Civil Code of Quebec ); [ 16 ] WHEREAS, under the circumstances, defendant was obliged to hire a third party to redo plaintiff's work, at a cost $1,767.62 (exhibit D-1); [ 17 ] WHEREAS defendant was obliged to do so urgently, in order to protect its property; [ 18 ] WHEREAS plaintiff later removed and retrieved its property, namely the phone and alarm system components, from the

premises (exhibit D-2); [ 19 ] WHEREAS plaintiff's actions resulted in its services being of no use or value to defendant; [ 20 ] GIVEN arts. 6, 7, 1375, 1458, 2100 and 2108 of the Civil Code of Quebec ; [ 21 ] WHEREAS plaintiff failed to honour its contractual undertakings, and to prove the facts alleged in its application by a preponderant evidence (arts. 2803 and 2804 C.C.Q.); WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's action, with costs. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: April 4, 2011