Recourse in damage of the syndicate – service contract - checking of a building safety system - failure of integral execution of the services agreed upon in the contract - interpretation of the contract - reclaim of the costs to have the obligations carried out by another company - sentencing of the defendant

•          The Syndicate claims 1 354,50$ from the defendant, a company specializing in the installation          of safety systems.

•          It pleads that the latter did not carry out all the services rising from the contract concurred between them.

•          For its part, the defendant disputes the complaint. She pleads that the agreement concluded between the parties did not include the services which the Syndicate claims.

•          To conform to regulations in similar matters the syndicate must have modified the network of fire warning signals of the building for which it has responsibility. The system must ensure a degree of acoustic pressure of 75 dBa in the rooms of the residences according to the City of Montreal.

•          The syndicate asks the defendant to prepare a tender for it so that all the correctives required by the City are carried out. A first tender produced by the defendant is unsatisfactory since it does not deal with the modification connected to the acoustic pressure. The syndicate reminds in writing to the defendant that she must ensure conformity to this requirement of the City.

•          The defendant commits herself in writing to carry out the verifications requested and to ensure herself of the conformity of the system as far as the criterion of audibility is concerned. The defendant carries out the work according to her last tender and forwards her invoice to the syndicate, which adds up to 1 455,53$ and indicates that the work required by the City was carried out.

•          However, after checking the premises, the syndicate notes that the audibility does not respect the standards of the City, and refuses to pay the amount of the invoice for the reason that the defendant did not carry out all the services to which she was held.

•          Following discussions between the parties, the syndicate agrees to pay the invoice on the promise of the defendant that work would be completed to its satisfaction. The defendant forwards to it a modified tender envisaging the addition of bells in the residences concerned to the expenses of the syndicate, which the syndicate refuses to do.

•          The syndicate forwards a subpoena to the defendant claiming the sum of 1 354,50$ from him, that is to say the cost of the necessary work so that the modifications required by the City of Montreal are completed.

•          For its part, the defendant pleads that she carried out all of the work envisaged in the agreement between the parties. She specifies that she had never been committed to bringing the audibility inside the rooms to the level of the standard of 75 dBa, but rather to simply check if the audibility respected or not the standard imposed by the City of Montreal.

The Court accommodates the request of the syndicate for the following reasons:

•          The agreement concurred between the parties is a company contract or a service contract within the meaning of articles 2098 and following of the Civil code of Quebec.

•          In this case, of all the proof presented, the Court estimates that the Syndicate has reason for complaining about the interpretation which the defendant of the obligations makes to which the latter was held according to its tender of February 2009.

•          As regards interpretation, one takes account of the nature of the contract, the circumstances in which it was concluded as well as uses (article 1426 C.c.Q.). The clauses must be interpreted the ones by the others, by giving to each one the meaning which results from the whole of the contract (article 1427 C.c.Q.). In case of doubt, the contract is interpreted in favour of the one who contracted the obligation and against the one which stipulated it (article 1432 C.c.Q.).

•          All the circumstances leading to the agreement agreed upon between the parties, it should be concluded that the services were logically to include those necessary to ensure the respect of the standard of audibility imposed by the City of Montreal. The obligation having been stipulated by the defendant, the agreement must on surplus be interpreted in favour of the Syndicate.

•          The defendant is a company specialized in the field and was to act in the best of interests of its customer, with prudence and diligence. It was, before the contract intervenes, also to provide it any useful information as for the nature of the tasks which it was committed to carry out.

•          It could not overlook the fact that their agreement did not include (according to it) work making it possible to ensure the audibility required by the City of Montreal. It could not leave the Syndicate under the false impression that the agreement occurred between them would enable it to satisfy the various standards imposed by the City of Montreal.

•          The amount claimed, which is based by the way on the proper evaluation of the defendant, was not the object as such of a dispute at the time of the lawsuit, it is necessary to completely accommodate the legal request of the Syndicate.

•          The defendant is condemned to pay to the applicant the sum of 1 354,50$, with interest at the rate of 5% per annum and the additional allowance envisaged in article 1619 of the C.c.Q., and the legal expenses.