2023 QCCQ 10307, 2023 QCCQ 10307

Haddad c. Onsongo Omweri 2023 QCCQ 10307 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-162628-210 DATE: December 11, 2023 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ ABBY HADDAD [...] Gatineau, P.Q. [...] Plaintiff v.

EMMANUEL ONSONGO OMWERI [...] Toronto, Ontario [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant, in damages, for latent defects. [ 2 ] On October 24, 2020, plaintiff bought a used 2012 Mercedes Benz E300, with 168,000 kilometers, from defendant, for $9,500.00.

The asking price was $10,500.00. [ 3 ] Plaintiff did not have the car inspected by a mechanic, before buying it, despite its age and usage and despite having heard a “hissing” sound when he test-drove the vehicle around the block. [ 4 ] Plaintiff alleges that, as he was driving to Ottawa, on the highway, the vehicle began to vibrate.

He called defendant, the same day, to tell him that he would be taking the vehicle to a Mercedes dealership, in Ottawa, to have the car inspected. [ 5 ] According to Star Motors of Ottawa, the vehicle required a new transmission and torque converter, inter alia (estimate, exhibit P-2). [ 6 ] On or about November 9, 2020, defendant responded as follows, by phone message: “As I said earlier we didn’t know that defect and we didn’t try to hide if from you. I’m not sure what your intention is but if you’d rather not fix the car you can return it and I’ll give you back your money.

It makes no financial sense for me to sell you the car at 6,800 even with the defect you claim. That’s well below the market value for the car.

Furthermore, part of owning a luxury vehicle is the high maintenance cost.” (phone message, exhibit P-3) [ 7 ] Plaintiff did not accept defendant’s offer, preferring to proceed with the repairs without having the sale cancelled. [ 8 ] On November 13, 2020, plaintiff sent defendant demand letter, exhibit P-4, claiming the amount of the estimate, namely $2,673.25 (estimate, exhibit P-2). [ 9 ] The repairs were allegedly carried out, as per the estimate, in early December, 2020 (invoices, exhibit P-6).

[ 10 ] On December 10, 2020, defendant’s lawyer responded to plaintiff’s demand letter, denying liability. ANALYSIS AND CONCLUSION [ 11 ] The car was sold with legal warranty. [ 12 ] However, given the age of the vehicle, the odometer reading and the hissing sound which plaintiff admitted hearing while test- driving the car, plaintiff’s claim must be dismissed. [ 13 ]

Section 1726 of the Civil Code of Quebec states as follows: 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. [ 14 ] Under the circumstances, plaintiff did not act as a reasonable, prudent and diligent buyer should have, when he decided to proceed with the purchase of the vehicle without having the mechanical state of the car investigated further. [1] Given the precursory signs of trouble and given the age and odometer-reading of the car, calling a friend from the side of the road to establish the nature of the problem as plaintiff did, was not sufficient. [2] Under the circumstances, plaintiff’s examination of the vehicle was not reasonable, attentive nor was it sufficiently serious. [3] [ 15 ] Furthermore, plaintiff did not mitigate his damages, as he refused to have the sale annulled and to return the car to defendant in exchange for the reimbursement of the purchase price. [ 16 ] In addition to the foregoing, based on defendant’s credible testimony, the Court believes that he acted in good faith (s. 1375 C.C.Q.), and did not misrepresent the state of the car and its components to plaintiff.

Plaintiff had no reason to believe that he was buying a car with a new transmission, but rather a transmission that had reached the end of its normal lifespan due to normal wear and tear. Normal wear and tear does not, in fact, constitute a latent defect. [4] WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's application, with legal costs in the amount of $106.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: November 7, 2023