2017 QCCQ 1831, 2017 QCCQ 1831

El-Masri c. Tecnic Aluminium Reg 2017 QCCQ 1831 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148178-157 DATE: February 9, 2017 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ KARIM-ABDUL EL-MASRI Plaintiff vs.

TECNIC ALUMINIUM REG, represented by ZALAC TOMO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] WHEREAS Plaintiff retained the services for the Defendant to install three windows and two patio doors; [ 2 ] WHEREAS the Plaintiff accepted to pay $5,645.27 for Defendants services ( P-1 ), including parts and labor; [ 3 ] WHEREAS the Defendant proceeded with the installation of the windows and doors in April of 2015 and that the installation of the patio doors was completed to Plaintiff’s satisfaction on May 14, 2015 ( D-4 ) by the manufacturer of said doors after the Defendant noticed that the doors were defective. [ 4 ] WHEREAS Plaintiff claimed that the contract signed with the Defendant provided that one of the patio doors had to have an integrated blind. [ 5 ] WHEREAS however the contract only provides that the glass of the patio doors be “Low-E and Argongas” for which he agreed to pay an extra $240 but does not mention that one of the doors should have an integrated blind. [ 6 ] WHEREAS Plaintiff has failed to establish according to the balance of probabilities that the mention “Low-E and Argongas” in the contract included an integrated blind. [ 7 ] WHEREAS Plaintiff is claiming reimbursement of the partial payment of $3,000 he made to the Defendant out of the $5,645.27 he had agreed to pay for the installation of the new windows and doors on his property. [ 8 ] WHEREAS Plaintiff waited until the Defendant formally demanded payment of the balance owed to him to complain about the material the Defendant installed at his home and the quality of the installation. [ 9 ] WHEREAS Plaintiff claimed that Defendant’s installation is so deficient that it caused a substantial increase of his heating bill, without filing his electricity bill to support his contention. [ 10 ] WHEREAS Plaintiff has admitted that he has not required an estimate of the potential costs he may incur to have Defendant’s alleged faulty installation of the windows and patio doors repaired. [ 11 ] WHEREAS Plaintiff filed only partial photographs of his home as well as a partial video of Tomo Zalac installing one of the windows he had ordered, but chose not to provide a video or a photograph of the final installation. [ 12 ] WHEREAS Plaintiff has failed to establish according to the balance of probabilities that Defendant’s installation was deficient and caused him damages, his claim must be dismissed. [ 13 ] WHEREAS the Defendant is claiming from Plaintiff payment of the balance of $2,645.27 owed on the contract entered into by

the parties, as well as $540.38 for material and installation of a membrane and a blind that it had originally agreed to provide free of charge to the Plaintiff. [ 14 ] WHEREAS the Defendant amended its cross claim at the hearing to claim reimbursement of fees he paid to his lawyer for sending a demand letter to Plaintiff and of the plane ticket he purchased to travel to attend the hearing from where he was in vacation, to claim a total amount of $8,350 as cross-Plaintiff. [ 15 ] WHEREAS Plaintiff has received the Defendant’s demand letter on July 18, 2015. [ 16 ] WHEREAS the Defendant cannot unilaterally renege on its initial offer to Plaintiff to install a membrane below one of the patio doors and provide him with a blind, the whole free of charge. [ 17 ] WHEREAS Defendant’s cross-claim is well founded for the amount of $2,645.27 and that it is entitled to the judicial fees it paid to serve Plaintiff with a demand letter and the amount of the stamp it paid to file its contestation to the claim and cross claim for a total of $245.75. [ 18 ] WHEREAS the parties are responsible to support their respective expenses to attend Court and that the Defendant could have asked for a postponement of the hearing if his travel plan had been made prior to him receiving the notice of hearing. [ 19 ] WHEREFORE, THE COURT : [ 20 ] DISMISSES Plaintiff’s claim; [ 21 ] GRANTS Defendant’s cross-claim in part; [ 22 ] CONDEMNS Karim-Abdul El-Masri to pay $2,645.27 to Tecnic Aluminium Reg and/or Tomo Zalac with the legal interest and the additional indemnity provided for by

article 1619 of the Civil Code of Québec from July 18, 2015, with the judicial costs of $245.75. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: February 6, 2017 Une

partie peut obtenir la traduction française du présent jugement en adressant une demande écrite à la Directrice du secteur civil du Palais de justice de Montréal.