2013 QCCQ 11588, 2013 QCCQ 11588

Floyd c. Azouz 2013 QCCQ 11588 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-127247-114 DATE: September 19, 2013 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ NEIL FLOYD , […], Montreal (Quebec) […] Plaintiff v.

GABRIEL AZOUZ , […], St-Laurent (Quebec) […] and AUDI PRESTIGE, 5905 Trans-Canada Hwy, St-Laurent (Quebec) H4T 1A1 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Neil Floyd is claiming the sum of $7,000 for the replacement of the transmission of his automobile. He alleges that Audi Prestige was negligent in repairs it had done over two (2) years earlier. [ 2 ] Audi Prestige denies liability arguing that Mr. Floyd has not proven such a fault. Gabriel Azouz is the president of Audi Prestige.

He denies having committed any fault that would render him personally liable. The facts [ 3 ] Mr. Floyd is the owner of a 2004 Audi. In March 2010, after the expiry of the manufacturer's warranty, he discovered that the transmission of his car was "burned-out". The transmission was lacking approximately two-thirds (2/3) of the required transmission fluid. This caused excessive and premature wear of the metal parts in the transmission, which in turn required replacement. [ 4 ] This type of transmission is sealed, which means that there is no need to verify the oil level at any time. [ 5 ] According to Mr.

Floyd, therefore, the problem discovered in March 2010 was necessarily caused by a repair that was done at Audi Prestige in October 2007. He states that the transmission was never touched apart from that one time. The repair done required removing part of the transmission fluid. It is Mr. Floyd's allegation that when this repair was done, the technician neglected to replenish the transmission fluid. Therefore, Mr. Floyd's car was lacking fluid for some twenty-eight (28) months. It is this lack of fluid that caused the damage. [ 6 ] After discovering the problem in March 2010, Mr.

Floyd topped-up the transmission with fluid and continued to use his car (at least, for the following winter season). The transmission was in fact, replaced only in February 2011. Analysis [ 7 ] Mr. Floyd had the burden of proving that the repairs done in October 2007 were the cause of the damages to the transmission (article 2803 C.C.Q.). This must be shown according to the preponderance of evidence (article 2804 C.C.Q.). [ 8 ] There is no direct evidence of what Mr. Floyd is alleging. The technician who did the repair in 2007 did not testify at trial. [ 9 ] However,

article 2849 C.C.Q. states: 2849. Presumptions which are not established by law are left to the discretion of the court which shall take only serious, precise and concordant presumptions into consideration. [Emphasis added] [ 10 ] An experienced Audi technician testified at the request of Audi Prestige. After confirming that in fact, the repair in October 2007 does require removing some of the transmission fluid, he is adamant that no technician would "forget" to replenish the oil after the repairs. Also, he adds that it would be highly unlikely that the transmission would have worked for some twenty-eight (28) months (in

fact, between 10,000 and 15,000 km) before "burning-out". Audi Prestige also points out that Mr. Floyd did not have repairs done for another twelve (12) months after learning of the problem. [ 11 ] Mr. Floyd further argues that the October 2007 bill does not contain a charge for the added transmission oil. This would constitute proof of the technician's negligence. Audi Prestige has established that the work done at this time was under the manufacturer's warranty. In such cases, it cannot charge Audi for the transmission oil. This explains why no such oil indicated in the bill.

Has a serious, precise and concordant presumption been established? [ 12 ] It was Mr. Floyd's burden to establish such a factual presumption. When taking into account all of the evidence, including the testimony of the Audi Prestige technician, the Court is not convinced that Mr. Floyd has succeeded for these reasons: a. It is improbable that the technician would forget to add transmission oil after the repairs in 2007; b. It is improbable that the transmission would have lasted twenty-eight (28) months before "burning-out"; c.

The age of the car and the expiry of the manufacturer's warranty render it impossible for the Court to exclude simple wear and tear. [ 13 ] It was not the burden of Audi Prestige to prove another cause, but only to rebut Mr. Floyd's attempt to prove a presumption. [ 14 ] For these reasons, the Court concludes that Mr. Floyd has not respected his burden of proof and his claim cannot succeed. Is Gabriel Azouz liable? [ 15 ] As for the claim against Mr. Azouz, it cannot be entertained since the claim against Audi Prestige is dismissed. However, the Court will point out that Mr.

Floyd presented no evidence of any personal implication on the part of Mr. Azouz that could justify his being held personally liable with or in lieu of the company he administers. FOR THESE REASONS, THE COURT : GRANTS the contestations; DISMISSES Neil Floyd's application with costs in favour of Audi Prestige in the amount of $194 and in favour of Gabriel Azouz in the amount of $148. __________________________________ SCOTT HUGHES, J.C.Q. Date of audience: June 11, 2013