2020 QCCQ 7925, 2020 QCCQ 7925

Venditti c. Eastern Transmission Inc. 2020 QCCQ 7925 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL "Civil Division" No: 500-32-158415-184 DATE: November 19, 2020 BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. JOHN VENDITTI Plaintiff v.

EASTERN TRANSMISSION INC. and MARCELLO SVETIZIA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims from the Defendants the cost of replacing a rebuilt transmission installed on June 10, 2016 by the corporate Defendant in Plaintiff’s automobile. [ 2 ] The Defendants deny any responsibility in this matter. [ 3 ] The Plaintiff admits that the contract was concluded with Eastern Transmission Inc. and it was a mistake to include Mr. Svetizia as Defendant.

THE CONTEXT [ 4 ] The Plaintiff owns a 1997 Volvo Model S 90, which at the time of the repairs had 307,000 km. [ 5 ] The Plaintiff states that Eastern Transmission Inc. installed a rebuilt transmission in June 2016, although the Plaintiff was unable to provide an invoice or other document confirming this. [ 6 ] For a period of approximately 6 months, the Plaintiff experienced no problems with the transmission.

However, at the end of January 2017, the Plaintiff noticed a clunking noise when he put the car in drive. [ 7 ] In April 2017, when the Plaintiff reported the problem to Defendant, the latter suggested he let the car warm-up before putting it in drive. [ 8 ] During the winter 2018 the same problem occurred when, on February 16, 2018, the car no longer moved. The car was towed to Defendant’s premises who concluded that the cooling piping had perforated because of the rust and the age of the car.

It refused to replace the transmission according to the Plaintiff. [ 9 ] The Plaintiff brought the car to Trans-Mico Automotive Inc. who replaced the transmission and the Plaintiff claims the cost of $3,206.40 from the Defendant [1] . A review of the invoice reveals that the actual cost of replacing the transmission was only $1,395 plus tax, the rest of the amount is for other repairs. THE ANALYSIS [ 10 ] The Plaintiff’s claim is governed by the Consumer Protection Act [2] , which provides at

Article 38 that goods forming the object of a contract must be durable in normal use for a reasonable length of time. [ 11 ] As the Plaintiff did not provide any evidence confirming that Eastern Transmission Inc. had in fact installed a rebuilt transmission in the Plaintiff’s car, the Plaintiff was unable to prove that an extended warranty applies to the labour and parts provided by the Defendant. [ 12 ] Therefore it is the legal warranty provided at

Article 176 of the C onsumer Protection Act which applies. This

article states that repairs are guaranteed for 3 months or 5,000 km whichever occurs first. This warranty includes parts and labour [3] . [ 13 ] Clearly the Plaintiff’s claim falls outside of the legal warranty. [ 14 ] Moreover, the Defendant Svetizia has convinced the Court that the probable cause of the problem with the transmission is the leaking cooling piping caused by rust.

FOR THESE REASONS, THE COURT : DISMISSES Plaintiff’s action; WITH COSTS in the amount of $151 representing the judicial stamp of the contestation. __________________________________ DIANE QUENNEVILLE, J.C.Q . Date of hearing: November 2, 2020