Small Claims Sunday #5

Apologies for the hiatus. I have been unusually busy the last month due to starting an internship. I might only have time to cover one decision every Sunday for now.

Membrane de PVC Duradek Québec inc. c. Lévesque, 2012 QCCQ 12094 (payment for construction work)
Plaintiff is suing for payment of the balance on a sales & installation contract of membranes to cover 3 “galeries”. The contract was concluded in May 2011, and Defendant paid $2015,90 deposit. However, by July 2011, only 2 of the 3 “galeries” were completed. Plaintiff refused to finish the work until a second instalment was paid. Defendant contests the amount, and claims Plaintiff did not have the proper construction registrations.
Result: The Court had to answer many questions before reaching a verdict:
Is the contract valid?
Articles 46 and 50 of the Loi sur le bâtiment state that constructors must be registered, and a contract with a non-registered constructor may be nullified.

46. Nul ne peut exercer les fonctions d’entrepreneur de construction, en prendre le titre, ni donner lieu de croire qu’il est entrepreneur de construction, s’il n’est titulaire d’une licence en vigueur à cette fin.

Aucun entrepreneur ne peut utiliser, pour l’exécution de travaux de construction, les services d’un autre entrepreneur qui n’est pas titulaire d’une licence à cette fin.

50. La personne qui n’est pas elle-même un entrepreneur qui a conclu un contrat pour l’exécution de travaux de construction avec un entrepreneur qui n’est pas titulaire de la licence appropriée peut en demander l’annulation. […]

However, the court did not consider the installation of the membrane to be “construction work”, and declined to apply the principles above.

When does the work have to be paid?
2111 CCQ states the client does not have to pay until the work is delivered; so did the Defendant’s contract. Plaintiff was wrong in asking Defendant to pay before the work was completed.

Given the behaviour of the parties, should the contract be terminated (résilié)?

1604. Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance. […]

Yes. The Court will not order the complete cancellation of the contract, as substantial work has been done, but only resiliation, which is valid for the future.

Amount owed to Plaintiff
Duradek claims: $4 064.51
Court deducts: $750 for corrective work defendant will have to have done.
Court deducts: $2 015.90 for the deposit
Court adds: $604.20 for the third membrane specifically ordered for the job.

Amount owed to Defendant
Court awarded $500 to compensate for loss of profit from the sale of the building.
Court also awarded $600 for inconveniences to Defendant, including having to find a new contractor to correct the work, having to answer to the buyer about the work, and hassles dealing with Plaintiff.

Since when are interests owed?
For Plaintiffs, from the date the action was filed at court, given the lack of formal notice.
For Defendants, from the date the counter-claim was filed.

Small Claims Sunday #4

Lots of new decisions this week, but not a lot of interesting ones, so I’ve only picked 4.

Legault c. Opris (insurance, car repairs)
Plaintiff is suing for damages from the repairs (or lack thereof) to his vehicle, and cost of car rental during the time of the repairs. Plaintiff brought the vehicle to Defendant’s garage for repairs after an accident. Plaintiff’s insurance company sent an agent to the garage to assess damages, after which the agent issued a check to Defendant to cover repair costs. The car was only given back to Plaintiff over a month later, with some repairs omitted. Defendant claims the insurance company signed off on the repairs, so Plaintiff should complain to his insurer.
Result: The judge rejected the damages regarding rental of a car during the repairs. The document used to prove the costs has been drafted by a friend of Plaintiff. However, testimony showed the car had been lent to Plaintiff in exchange of services rendered. Moreover, the receipt said taxes were included, thought the friend had no authorisation to levy taxes. The Court concluded the deal was against tax laws, and Courts will not honour such agreements.
As for the damages regarding repairs, Plantiff should have sued his insurer, as it was the insurance company who had the obligation to return the car in the state it was before the accident.

Arama c. Azoulay (copyright violation)
Plaintiff is asking for $5000 over damages after Defendant used a photo taken by Plaintiff, without compensation or attribution. Plaintiff had posted a low-resolution version of the photo to a website. Defendant used the photo on the cover of his book. Plaintiff attended the book’s launching and confronted Defendant. He claims having found the image on a website, with no source or attribution. He claims having used the image in good faith. He also demands $999 from Plaintiff for spoiling his book launch.
Result: The usage of the image infringes on Plaintiff’s copyright, and causes her prejudice as she is a professional photographer. The Court grants Plaintiff $2000 in damages.
On the other hand, The Court rejected the $999 counter-suit since Plaintiff’s behaviour was caused by Defendant’s infringement.
Note: the court didn’t consider being rude as illegal or, at least in this case, as warranting damages. We also note that the Court does sometimes “arbitrarily” set damages. In this case, we can’t tell if Plaintiff testified on the cost of a license for her pictures. One could imagine the defendant could have reduced his damages if he could prove Plaintiff usually licences her images at a lower rate.

Dumont c. Dépanneur Yun Wang (damages to car due to gas quality)
Plaintiff is asking for $1 240,73 over damages to his car caused by the poor quality of gas bought at Defendant’s gas station. Plaintiff filled up his car at defendant’s gas station, then notices his motor emitting smoke later that day. He decides to bring his car to the garage the next week, but the car does not even start. However, after replacing the diesel by new fuel, the car starts normally, and Plaintiff has not had a problem since.
Result: Claim is rejected. Plaintiff never formally notified Defendants as required by law (CCQ 1595, 1738). Moreover, Plaintiff has not proven that the gas was tainted or unfit for use (nobody kept a sample for analysis), and defendant never got any complaint from anyone else.

St-Pierre c. Bell Mobilité cellulaire inc. (damages from change in cell phone plan)
Plaintiff is suing Bell for $4950 worth of damages after Defendant made changes to Plaintiff’s cell phone plan. Plaintiff was a long term customer of Defendant’s. In 2010, Defendant offered Plaintiff a new cell phone should he sign up for a 3-year contract. Shortly thereafter, Plaintiff saw some of his services cut, and his voicemail erased. Defendant also charged him for more service fees. Being a consultant, Plaintiff claims the changes affected his business.
Result: The Court awarded Plaintiff $2000 for partial damages. Plaintiff claimed expenses to produce new supplies with a different phone number, but had no invoice to prove them. However, since Defendant was at fault for not disclosing the changes in their service plans, and Plaintiff did suffer damages, the Court decided on the amount of $2000.

Small Claims Sunday #3

Not a whole lot of interesting decisions this week; I only picked out 4.

First case is about revoking a previous small claims judgement.
Lauzon c. Lepage
Plaintiffs are asking for the judge to revoke a previous ruling. The original audition was held on Feb 20, but Plaintiffs were absent. The presiding judge rejected Plaintiffs’ claim due to their absence. Plaintiffs claim they made a mistake in the time, and thought the audition was set at 19:00 instead of 9:00.
Result: A small claims ruling may be revoked according to the code of civil procedure:

989. If a party against whom a judgment by default is rendered was unable to contest the action or attend the hearing owing to surprise, fraud or any other sufficient cause, the party may apply for the revocation of the judgment.

A party may also apply for the revocation of the judgment in any case described in article 483 that is not inconsistent with the provisions of this Book.

A party’s negligence is not sufficient to justify a revocation. Misreading the time indicated in the convocation papers constitutes a gross mistake that cannot be used to justify a revocation.
Note: In the decision below, the judge allowed a revocation for a Plaintiff who did not show up. The Plaintiff claimed he never received the convocation letter, and that he was given a wrong date when he called the courthouse.

Gélinas c. Desjardins Assurances générales (insurance claim)
Plaintiff is suing his insurance company for the price of a stolen sound system. Plaintiff lives on the 4th floor of an apartment building, and the pieces of the sound system weighed up to 110lbs. Plaintiff has a history of misdemeanors, thefts, fraud, assault.
Result: Claim is rejected. Plaintiff never gave a plausible explanation of the theft, not an explanation on how people could have moved such heavy pieces out of his apartment. Plaintiff also had no proof of property (purchasing invoices) or possession of the goods.
Note: I’ve heard tips like “tape your invoices to the back of the items to have them handy if you need to return it or something”. Sounds like a really bad idea now. The Court did not find Plaintiff to be a particularly credible witness. I’m not quite sure what the judge wants as a “plausible explanation”, seems like most of the time the story is “I went out, I came back, my stuff was gone”. On the other hand, if you live on the 4th floor with narrow stairs, and get your stereo stolen, it might be good to have some explanation on why the crime could be so targeted.

Gaudreau c. Montréal (Ville de) (damage to car)
Plaintiff is suing the City of Montreal for damages to his car after he hit the “ring of a manhole cover”. The City claims the ring is usually welded to the manhole frame, and is not supposed to come off. The city employee testifies he has never seen such an incident in 9 years at the city.
Result: claim rejected. Plaintiff has not proven the City’s fault or negligence, The Court considers there was no way to prevent such an incident as the rings are welded tight and do not receive any special maintenance. It has always been this way, and no other such incident has ever happened.

Dahmane c. 2744-2169 Québec inc. (Groupe Verdun) (warranty)
Plaintiff demands reimbursement of purchase price of kitchen counters because of unusual deterioration after 3 months. Defendant claims the damage is due to Plaintiff’s defective dishwasher.
Result: Defendants condemned to reimburse price of counters. The proof did not establish the cause of the damage. Defendant did not prove the dishwasher was defective, so is liable for the quality of his product, as per the Consumer Protection Act.

Small Claims Sunday #2

A truckload of decisions this weeks, from which I’ve picked a few.

First, two decisions on latent defects on houses. Latent defects, or “vices cachés” are defects that were hidden and unknown by the buyer, until something breaks and people find out about them.

Tremblay c. Pilote (latent defects/vices cachés in house)
Plaintiffs bought a house from Defendant in 2001. In 2011, after water damage, they found out required drains were not installed in the foundations, as would’ve been mandatory from regulations. The house was built in 1989. Defendant himself bought the house in 1995 and did not know it was missing drains.
Result: The legal warranty in CCQ 1726 applies, and Defendant is liable for the damages since Plaintiffs were able to prove the latent defect, their ignorance of the defect, and that the defect was severe. Defendant was held liable for $7000 (maximum allowed in small claims).
Note that whether Defendant knew about the defects has no impact on his liability. He does potentially have a recourse against the people from whom he bought the house, and the builder, if he can find them.

Avenel c. Gauthier (latent defects in house)
Plaintiff bought house in 2010. 4 months later, sewer backup as they flush the toilet, due to the evacuation drain connecting the house to the city sewers having caved in.
Result: The judge rejected the claim, as Plaintiff’s proof did not establish that the damage existed before the sale, even though it has only been 4 months since they bought the house.

Next, 2 decisions involving cities. Suing a city is pretty hard in general due to many immunities different laws grant them, but not impossible.

Roberge c. Saguenay (Ville de) (water damage to property due to river)
Plaintiff is suing the city of Saguenay for water damage to basement caused by overflowing river.
Result: Claim rejected. The law making cities responsible for waterways on their territory (Loi sur les compétences municipales) states at §105 that municipalities must re-establish normal flow of a waterway when informed of an obstruction. In this case, the city has been regularly checking on the river, which is more than what the law requires, and has not detected any anomaly. Moreover, the city was never informed of any obstruction. Therefore, no fault has been committed by the city.
Note that in this case, the judge was still generous and did not condemn Plaintiff to costs, as she was unaware of the Loi sur les compétences municipales. The judge would probably not be as lenient if she were represented by a lawyer, at the Cour du Quebec.

Deschesnes c. Saguenay (Ville de) (car damage due to pothole)
Plaintiff is suing the city for damages to his car tire & rim after driving over a pothole.
Result: Court condemned the City to partial damages. §604.1 of the Loi sur les Cités et Villes states the City is not “responsable des dommages causés par l’état de la chaussée ou de la voie cyclable aux pneus ou au système de suspension d’un véhicule“. However, because of §1474 CCQ, the city “may not exclude or limit his liability for material injury caused to another through an intentional or gross fault”. It has been proven that the City knew about the pothole on May 30th, 2 days before the accident on June 1st, and had not taken measures to fix it or block it off. The pothole was still not fixed 2 days after the accident. The court considered this to be wanton or reckless negligence = gross fault.
However, the court only allowed part of the claim, as Plaintiff did not prove the rim (scratched) needed to be replaced. The court still allowed a certain amount, as it had indeed been damaged.
Note: The Court’s conclusion of wanton or reckless negligence was partly based on the City’s behaviour after the fact. The city official testified it takes about 2 days to fix a pothole, meaning it should’ve been fixed July 1st in the afternoon, or, considering the request to fix had been put out May 31, July 2nd, after the accident. On could argue that at the time of the accident, there hasn’t been wanton or reckless negligence yet, and the only fault was not putting signalling around the hole.

Finally, 2 cases about warranties.

Bois c. Gagnon Frères Immeubles inc. (Magasin d’Alma) (warranty on washing machine)
Plaintiff is suing for cost of repairs on a washer bought in 2005, invoking legal warranty. The timer on the washer had been fixed 3 times by the owner since the purchase, without having notified the seller. In 2011, the rince cycle stops working.
Result: Court rejected claim. Plaintiff needed to notify the seller when the timer broke.

Sukherman c. BMW Canada inc. (warranty on vehicle)
Plaintiff is suing for repairs on the motor of his BMW (bought in 2003, now shows 121,078 km).
Result: Plaintiff is a consumer and benefits from the Loi sur la protection du consommateur, whereby goods must be able to serve normal use for a reasonable amount of time. This warranty applies even if the contractual one expired. A normal motor should last hundreds of thousands of kilometers. Plaintiff was awarded $7000 (upper limit for small claims, price for fixing motor: $9,251.46).

Small Claims Sunday

I have to admit I have a strange fascination with small claims. The decisions are short and concise, and provide a very interesting look at the legal issues people run into. The judgements also provide very practical pointers regarding what needs to be done in a lawsuit, as even though it’s small claims, nobody is allowed to be sloppy.

I’m planning on making this a weekly instalment to be published on Sundays, although this week’s post is a little late. The only decision out this week is Zhang c. Liu.

The plaintiff claims $6 343,72 for renovation work on the defendant’s house. According to the plaintiff:
– The agreed price was $4000, a “friend’s price” since he knew the defendant
– The defendant has only paid $2000
– The market value of the work done is $8 343,72, which he is demanding (minus the $2000 paid)

The defendant claims:
– The agreed price was $2000, which she paid
– She later verbally informed the plaintiff of her dissatisfaction and demanded corrections
– Plaintiff then demanded $2000 for corrective work, which defendant refused to pay.
– Plaintiff demands the reimbursement of the $2000 she originally spent.

Result: the judge rejected both claims. Rules of proof requires a party to show their version is more likely than their opponent’s.
Problems with Plaintiff’s proof:
– No contract had been signed
– Contradictory proof on the nature, quality, extent, and price of the work.
– discrepancies in the Plaintiff’s version:
— the list of work done provided was inexact and some entries were doubled
— Plaintiff couldn’t explain how he came up with prices
— Plaintiff couldn’t tell when the work was done
— Plaintiff claimed price of materials, but had no receipts

Problems with Defendant’s proof:
– she testified and provided some photographs but no expert testimony.
– she had never notified plaintiff in writing about the poor job, or otherwise given him formal notice.