2015 QCCQ 5703, 2015 QCCQ 5703

Sakaris c. 9158-3740 Québec inc. (Services Prime) 2015 QCCQ 5703 COURT OF QUEBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division» No: 500-32-142541-145 DATE: June 22, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DOMINIQUE VÉZINA, J.C.Q. ______________________________________________________________________ PETER SAKARIS Plaintiff v. 9158-3740 QUÉBEC INC. ( d.b.a.

LES SERVICES PRIME) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Peter Sakaris is claiming $ 7,000.00 from 9158-3740 Québec inc., (d.b.a. Les Services Prime ), based on an alleged faulty workmanship or faulty material for the pavement of his driveway, sidewalks and staircase. [ 2 ] Les Services Prime denies owing such amount, relying on the contractual documents including warranties and alleging their expiry. QUESTION IN ISSUE Has Mr.

Sakaris established his right to recover $7,000.00 as damages for the services rendered by Les Services Prime? CONTEXT AND ANALYSIS [ 3 ] In civil matters, a person wishing to assert a right shall prove the facts on which his claim is based [1] . In this regard, the burden of proof lies on the party presenting a demand. That party has to present evidence which will be weighed on the balance of probabilities which is also called preponderance of evidence .

This implies that the demand must demonstrate that the existence of a fact is more probable than its non-existence [2] to convince the Court. [ 4 ] All relevant elements of evidence are analysed by the Court. The probability is evaluated based on the direct evidence, the circumstances and the presumptions [3] . [ 5 ] The Court summarizes as follows the relevant facts from the evidence presented. [ 6 ] On June 21, 2011 [4] , Mr.

Sakaris entered into a contract with Les Services Prime for the installation of pavement, border walls in the driveway, sidewalks and staircase. [ 7 ] The work was completed in August 2011. [ 8 ] At the end of the work, on August 17, 2011, a certificate of warranty from APPQ was issued by Les Services Prime [5] . [ 9 ] Les Services Prime recommended that a sealer be applied over the pavement. However, in view of the necessary breathing time, such additional work was completed in May 2012. Mr Sakaris accepted this additional work and paid an extra $1,350.00 [6] . [ 10 ] Mr.

Sakaris then started complaining to Les Services Prime noticing efflorescence on the pavement. [ 11 ] Pictures [7] show the efflorescence and also the settling of the staircase. [ 12 ] Exchanges back and forth followed. The situation degenerated. [ 13 ] On August 30, 2013 [8] , Les Services Prime’s attorneys indicated to Mr. Sakaris : 1. Our client understands that you have been complaining that there has been efflorescence on the stairs.

This is a normal reaction from concrete products and in order to remove it, our client is prepared to perform an acid wash as it did last year and which will be done in order to try and minimize this efflorescence.

2. Our client is prepared to apply the sealer on the driveway, provided that you firstly remove all rust, oil and dirt stains because, otherwise, this procedure will not work. [ 14 ] Indeed, Les Services Prime were willing to redo the sealing of the pavement [9] and were prepared to look at the staircase. [ 15 ] Exchanges and phone calls followed. [ 16 ] In September 2013, Techo-Bloc [10] confirmed that the discoloration of the pavement was not linked to a manufacturer defect. [ 17 ] Mr. Sakaris decided to sue Les Services Prime in order to get the work redone properly. Has Mr.

Sakaris established his right to recover $7,000.00 as damages for the services rendered by Les Services Prime? [ 18 ] In his application as well as in his demand letter [11] , Mr. Sakaris put the emphasis on the efflorescence observed on the pavement, without referring to the settling of the staircase. [ 19 ] At trial, Mr. Sakaris amended his demand to include the settling of the staircase to justify his claim.

Les Services Prime replied by referring to the expiry of warranty. [ 20 ] Les Services Prime referred to various documents where efflorescence was indicated as being part of the process when pavement is installed [12] . [ 21 ] However, Mr. Sakaris knowledge or absence of knowledge regarding the possible efflorescence on the pavement becomes irrelevant as the Court finds that the settling of the staircase is the main problem. [ 22 ] The contractual warranty given by Les Services Prime after the completion of the work does not annul the legal applicable warranty.

The certificate of warranty itself indicates specifically that it does not restrict the general application of the Quebec laws. [ 23 ] Every person has a duty to honour his contractual undertakings [13] . [ 24 ] Mr. Sakaris concluded a contract for services [14] . Such contract is also regulated by the Consumer Protection Act [15] : 38. Goods forming the object of a contract must be durable in normal use for a reasonable length of time, having regard to their price, the terms of the contract and the conditions of their use. 40.

The goods or services provided must conform to the description made of them in the contract. [ 25 ] A settlement movement of the staircase of approximately two inches which occurred shortly after the completion of the work does not qualify as being durable in normal use for a reasonable length of time. [ 26 ] Les Services Prime explained the life expectancy of that type of structure. The settling is explained by the excavation work performed closeby.

As Les Services Prime were in charge of the excavation work, it has to be liable for it. [ 27 ] The defence of Les Services Prime with respect to the expiry of the warranty for the staircase work cannot stand with the applicable laws. [ 28 ] Les Services Prime testified that the staircase work represented approximately one third of the contract price. Therefore, Mr. Sakaris has established his right to recover $7 000,00 as damages for the work performed by Les Services Prime. FOR THOSE REASONS, THE COURT: GRANTS the action of Plaintiff Peter Sakaris against Defendant 9158-3740 Québec inc. (d.b.a.

Les Services Prime) ; CONDEMNS Defendant 9158-3740 Québec inc. (d.b.a. Les Services Prime) to pay $7 000,00 to Plaintiff Peter Sakaris with the interest at the rate of 5% per annum and the additional indemnity pursuant to

article 1619 Q.C.C., calculated as of March 28, 2014; CONDEMNS Defendant 9158-3740 Québec Inc. (d.b.a. Les Services Prime) to pay to Plaintiff Peter Sakaris the judicial fees of 169 $. __________________________________ DOMINIQUE VÉZINA, J.C.Q. Date of hearing: May 26, 2015