2015 QCCQ 1644, 2015 QCCQ 1644

Hawthorne c. Summit Air inc. 2015 QCCQ 1644 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-016366-140 DATE: March 2, 2015 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ HARRIET HAWTHORNE Plaintiff v. SUMMIT AIR INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Harriet Hawthorne claims an amount of $ 4911.76, representing damages that occurred due to the malfunctioning of an air conditioner she bought from Summit Air inc.

THE FACTS: [ 2 ] On March 17, 2012, Harriet Hawthorne buys from Summit Air a Goodman air conditioner 12 000 BTU for an amount of $ 1900 plus taxes ($ 2184.52), which is installed few days later. [ 3 ] One week after the installation, the air conditioner stops functioning, and Summit Air has to come back to adjust it. [ 4 ] One year later, in May 2013, the machine stops again; it generates no heat or cold. Another service call is made to Summit Air; they wanted to charge $ 160 to Mrs. Hawthorne, who refused to pay it, as the machine was only one year old.

According to Summit Air, a wire was disconnected in the exterior unit, which caused a freon leak; some welding had to be done. [ 5 ] One year later, on June 29, 2014, the air conditioner stops again. Mrs. Hawthorne called another company, Thermo Cyr, to obtain service. She was told that the compressor had to be changed, which would cost as much as the price of a new compressor. She was also told that this would not fall under the Goodman's warranty, as the wrong pieces had been put in place when it was installed. [ 6 ] Mrs. Hawthorne called Summit Air on July 4, 2014.

She also sent a Letter of Demand on July 10, 2014, in which she asked that the air conditioner be repaired or that a new one be provided to her. [ 7 ] According to the testimony of Summit Air's representative, Mr. Stanley Schneider, when he received the Letter of Demand, he called Thermo Cyr, and was told that the problem was only a freon leak. As such problem is not covered by the warranty, Summit Air concluded that they owed no warranty to Mrs. Hawthorne. No one from Summit Air thought it was necessary to go at Mrs. Hawthorne's house and examine the air conditioner. [ 8 ] Mrs.

Hawthorne claims the price of a new air conditioner, which would be, according to an estimate, $ 3213.55, together with the cost of an expertise that was made by Air-Sol ($ 178.21), $ 20 for register letter fees, as well as $ 1500 for trouble and inconvenience. ANALYSIS AND DECISION: [ 9 ] The conclusion of Ventilation Air-Sol regarding the air conditioner is written in a document dated August 21, 2014, as follows: "- Système de climatisation ne fonctionne pas;

- Pas de réfrigérant dans le système. Testé avec pression azote; - Trouvé fuite sur tuyau de haute pression à la sortie du compresseur; - Compresseur ne pompe plus; - Compresseur à changer;" [ 10 ] Mrs. Hawthorne testified that she had not touch the system since she bought it, and that no work were done by anybody else than Summit Air. [ 11 ] The Court understands from Mr. Schneider's testimony that Summit Air considers that they owe no warranty to Mrs. Hawthorne, as only the manufacturer Goodman could be responsible for any breach of the system.

They add that the compressor is under a five-year warranty. [ 12 ] Summit Air does not understand the extent of its obligations toward its clients, under the Quebec Civil Code , and under the Consumer Protection Act . [1] [ 13 ] It will be necessary to reproduce certain legislative dispositions that apply in this matter: 1726.

The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. 1728.

If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer. 1729. In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer. (Our emphasis) Q.C.C. 37 .

Goods forming the object of a contract must be fit for the purposes for which goods of that kind are ordinarily used. 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. C.P.A. [ 14 ] It is obvious that two years is a duration that is well under the reasonable length of time provided for by

Section 38 of the Consumer Protection Act . [ 15 ] As Summit Air is a professional seller, the existence of a latent defect is presumed, and it is responsible of all the damages suffered by Mrs. Hawthorne. [ 16 ] Mrs. Hawthorne can receive a compensation for damages, but she cannot be placed in a better condition, which would happen if the Court would allow her claim for the price of a new air conditioner, exceeding the price she paid for the Goodman air conditioner.

Considering the brief delay in which the machine failed, she can be reimbursed of the cost she paid for the air conditioner, which is $ 2184.52. [ 17 ] In according to her the reimbursement of the buying price, Summit Air can ask for the possession of the Goodman air conditioner, if they wish so. They will be able to take possession of the Goodman air conditioner upon payment of the total amount of the present judgment, within a delay of 30 days from said judgment, after a 48 hours notice is given to Mrs. Hawthorne. If Summit Air does not notify Mrs.

Hawthorne that they want to take back the air conditioner in that delay, she will be authorized to get rid of it. [ 18 ] Mrs. Hawthorne can also be reimbursed of the amount she paid Air-Sol for the expertise, as well as for the registered letter fees ($ 198.21).

[ 19 ] Considering the attitude of Summit Air and their refusal to fulfill their obligations, they will be condemned to pay another amount of $ 500 to Mrs. Hawthorne for all the trouble and inconvenience that they have caused her. FOR ALL THESE MOTIVES, THE COURT: GRANTS in part the Demand; CONDEMNS Defendant, SUMMIT AIR INC., to pay to Plaintiff, Harriet HAWTHORNE, the amount of $ 2882.73 with interest at the legal rate of 5 % plus the additional indemnity provided for by

Section 1619 of the Quebec Civil Code from July 16, 2014, date of receipt of the Letter of Demand; AUTHORIZES Defendant, SUMMIT AIR INC., to take possession of the Goodman air conditioner 12 000 BTU upon payment of the total amount of the present judgment, within a delay of thirty days from the judgment, with a 48 hours prior notice to Plaintiff Harriet HAWTHORNE; THE WHOLE with costs in the amount of $ 137. __________________________________ CÉLINE GERVAIS, J.Q.C.