2012 QCCQ 5768, 2012 QCCQ 5768

Smint c. Mazda Gabriel 2012 QCCQ 5768 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-119314-096 DATE: June 26, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ ROBERT L. SMITH [...], Notre-Dame-de-Grâce, Montréal, Qc. [...] Plaintiff v. MAZDA GABRIEL 5333 St-Jacques ouest Notre-Dame-de-Grâce, Montréal, Qc.

H4B 1P8 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Robert Smith is suing Defendant Mazda Gabriel for $7,000, alleging that it failed to correct various problems associated with his vehicle, resulting in unnecessary expenses. Defendant denies the claim. The evidence : [ 2 ] Plaintiff purchased a Mazda Protégé 5 in 2002, for $28,332.03.

At the same time, he purchased the company’s “Protection Automax”, as an extended seven-year warranty, including the extra dealer applied anti-rust treatment. [ 3 ] Plaintiff declared that he suffered numerous problems, which were costing him close to $1,000 per year.

The problems included severe rusting, a remote starter that failed to work, an unnecessary spark plug repair, a defective bushing in the transmission, a defective air conditioning system, the cost of car rentals, etc.. [ 4 ] Plaintiff brought his problems to Defendant’s attention but according to Plaintiff, Defendant showed no interest in rectifying the issues. In particular, he claimed Defendant repaired the rust but four months later, the same problem re-occurred. He complained; Defendant said it was not covered by the warranty.

Finally, the rust became so bad that the car was unsafe to drive. [ 5 ] Defendant submits that some items constitute maintenance, other items are not covered by the warranty such car rentals; for other items, such as the problem related to the rust, the protection foreseen by Plaintiff’s plan had already expired. [ 6 ] In addition, Defendant admits the amount of rust was abnormal but speculated that Plaintiff must have kept his vehicle in an inappropriate place, a fact Plaintiff denied. Analysis: [ 7 ] Plaintiff claims his car was becoming unsafe to drive; he used duct tape to hold it together.

Mazda failed to cover the various problems that arose. Plaintiff, having spent thousands of dollars in repairs, is claiming the costs he incurred, detailed as follows:

Remote Starter/engine immobilizer: $126.16 [ 8 ] Plaintiff is claiming for the cost to repair the remote starter. When it broke, he was told that it was not covered under the warranty since it was not a Mazda sourced product. [ 9 ] However, when Plaintiff purchased the car, he was not told that such a part would not be covered. He claims had he been provided with this information, he would not have purchased a remote. He requests reimbursement of the cost of this item. [ 10 ]

Article 228 of the Consumer Protection Act [1] states that no merchant may fail to mention an important fact in any representation made to a consumer. [ 11 ] In this case, when Plaintiff decided to purchase a remote, no mention was made that that remote would not be covered under the guaranty. Unless this lack of coverage was specified, Plaintiff had no means of knowing this fact. [ 12 ] Plaintiff was most concerned in having as many aspects of his vehicle as possible covered by a warranty.

The failure to provide him with such important information constitutes a prohibited business practice under the Act, for which Mazda is responsible. [ 13 ] In these circumstances, the Court grants Plaintiff the sum of $126.16, representing the cost to repair the remote. Unnecessary spark plugs: $13.14 [ 14 ] Plaintiff considers he should be covered for the cost of the spark plugs, which he had to change, while Mazda maintains that this concerns a maintenance issue that is not covered by the warranty. [ 15 ] Spark plugs need to be replaced on a regular basis, in accordance with the maintenance

schedule provided by Mazda. Their wear is a normal element of vehicle maintenance and there is no basis for granting the amount claimed. Defective Bushing in transmission: $208.76 [ 16 ] Plaintiff is claiming the cost of repairing the bushing. He maintains it is a power train item, which broke in 2006, within the five-year warranty period. [ 17 ] Mazda claims the shifter bushing is on the exterior of the transmission. Since this

part is not covered in oil, its repair is not covered. [ 18 ] The Court does not agree with Mazda's position. This shifter bushing goes into the gear box and as such is covered by the warranty. Plaintiff is entitled to the cost of repairing the bushing, namely $208.76. Protection Automax Gabriel – paid for but not applied: $445.86 [ 19 ] Plaintiff maintains that this protection was never applied. He claims the Sales Manager at Mazda Fairview found no evidence of any protective metal treatment. Plaintiff alleges he was unable to obtain confirmation in writing from the Sales Manager.

He was told it is against Mazda policy to criticize another Mazda dealer. [ 20 ] Mazda maintains that the protection was in fact applied. [ 21 ] Plaintiff did not establish evidence to the contrary. He could have obtained an opinion from another dealer or another car manufacturer but he failed to do so. Plaintiff has the burden of proof. Given the contradictory testimony, he has not established to the satisfaction of the Court that this aspect of his claim is well founded.

Budget car rental for one month: $1151.36 and Enterprise car rental for the cost of $464.98 [ 22 ] Plaintiff maintains that during the repairs of his rust problem, he had to rent another car. Mazda kept his car for approximately a month to do body work, which resulted in an initial rental cost of $1,151.36 and an additional cost during the second repair of $484.98. Plaintiff claims Mazda said it would pay for the rental but did not do so. He is now claiming this cost.

[ 23 ] Mazda maintains it does not provide a courtesy car and it does not cover the cost of car rentals. [ 24 ] There is no basis for Plaintiff's claim for the reimbursement of his car rental costs. Mazda never undertook to provide such service. Therefore, Plaintiff is not entitled to the expense of renting a car during the time Mazda repaired his car. [ 25 ] However, his car was retained by Mazda for over a month, which is an exceptionally long period to leave a client without a vehicle. This fact has been taken into account with respect to Plaintiff's claim for damages for his inconvenience.

Air conditioning work not done properly on December 5, 2008: $545.63 and Air conditioning work to correct December 5, 2008 mistakes: $184.11 [ 26 ] Plaintiff contends that the air conditioning repair was not properly done and the air conditioning system still was defective after paying for the repair. He had to have the air conditioning repaired a second time. Mazda refused to pay for both costs. [ 27 ] Mazda admitted at the hearing that this problem should have been covered under the warranty and it agrees to pay for the air conditioning costs incurred.

Cost of fog light: $300 [ 28 ] Plaintiff complains that he had to change the fog light, which cost him $300. Mazda submits that the light was damaged and such damage is not covered under the warranty. Given the damage noted, it would be up to Plaintiff to establish that he was not responsible for the state of the light. He failed to do so and accordingly, compensation for this item is denied. Cost of bodywork and the cost to repair the rust: $4,000 [ 29 ] Plaintiff declares that within 4 years of his purchase, his car began to rust around the lift gate and rear wheels.

According to Plaintiff, Mazda installed putty and painted the car. However, four months later, it began to rust again and the putty fell off. The shock towers rotted and as well as parts under the hood. The rust was so extensive that the car could no longer be used. [ 30 ] Plaintiff claims that the cost to repair the body structure would amount to $4,000. [ 31 ] Mazda submits that the surface rust was repaired on two separate occasions, namely on May 20 th 2008 and in July, 2008.

The bill came to close to $3,000 and according to Plaintiff's warranty, Plaintiff was only covered for $1500 of the cost, which was paid by Mazda. According to Mazda, given the contract, Plaintiff is not entitled to any further payments for rust damage. [ 32 ] The photos presented by Plaintiff show extensive rusting throughout the car. The problem is serious. The rust is not simply on the surface; rather it is structural deep rust.

The extent of it is shocking. [ 33 ] The warranty obtained by Plaintiff limits the amount provided for repairs of such a problem and is restricted to $1500: “Repairs under this warranty will have a maximum cumulative limit of $1,500 or the wholesale value of the vehicle at the time of claim…whichever is less…” [ 34 ] The warranty is exceptionally limited. However, the Consumer Protection Act is applicable in the present case. Given the extent and the quantity of rust that appeared prematurely, the Court considers that the vehicle is affected by a hidden defect. [ 35 ] In virtue of

article 53 of the Act, the consumer can take an action against either the vendor or the manufacturer: A consumer who has entered into a contract with a merchant is entitled to exercise directly against the merchant or the manufacturer a recourse based on a latent defect in the goods forming the object of the contract, unless the consumer could have discovered the defect by an ordinary examination. [ 36 ] There is a presumption that the defect, which renders the use of the vehicle difficult or impossible and which appeared after the purchase, existed at the time of sale. Moreover,

article 1729 of the Civil code of Quebec states: 1729. A defect is presumed to have existed at the time of a sale by a professional seller if the property malfunctions or deteriorates prematurely in comparison with identical items of property or items of the same type; such a presumption is not made, however, where the defect is due to improper use of the property by the buyer. [ 37 ] The vendor and manufacturer are also responsible for a good sold when it is not durable and suffers a premature deterioration or when it is unfit for the purpose for which it is ordinarily used. Articles 37 and 38 of the Consumer Protection Act cover the legal warranty regarding the durability of a good sold:

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. [ 38 ] The guarantee, set out above, is of public order and cannot be set aside by a lesser warranty or by an exclusion contained in an agreement [2] . Furthermore, in virtue of

article 54 of the Act, the recourse based on articles 37 and 38 can be exercised directly against the seller or against the manufacturer. [ 39 ] In sum, sellers and manufacturers are presumed to know the defects of the

article or good they are selling or manufacturing and cannot avoid the application of the legal guarantee [3] . [ 40 ] In addition, when a defect is continuous, the vendor and manufacturer cannot hide behind an expired conventional warranty, particularly when the defect was brought to their attention during the time the conventional warranty was in effect [4] . [ 41 ] In the present case, the evidence shows that the premature rust constitutes a latent defect. Neither the occurrence nor the extent of the rust stem from normal usage.

As already indicated, the rust penetrated a large part of the vehicle's structure and its occurrence is premature. [ 42 ] The problem was brought to the attention of Mazda while the conventional guarantee was in effect. Mazda repaired the rust on two occasions. However, that did not settle the issue.

The rust not only re-appeared but it also became so extensive that the car was no longer safe to drive. [ 43 ] The Court concludes that the conditions with respect to the guaranty of latent defects are present as well as the guaranty with respect to the durability of a good. [ 44 ] Accordingly, Mazda, as the seller, is liable for the defect affecting Plaintiff's vehicle. [ 45 ]

Article 272 of the Consumer Protection Act indicates the recourses available to a consumer: 272. If the merchant or the manufacturer fails to fulfil an obligation imposed on him by this Act, by the regulations, the consumer may demande, as the case may be, subject to the other recourses provided by this Act,

a) the specific performance of the obligation;

b) the authorization to execute it at the merchant's or manufacturer's expense;

c) that his obligations be reduced;

d) that the contract be rescinded;

e) that the contract be set aside; or

f) that the contract be annulled, without prejudice to his claim in damages, in all cases. He may also claim punitive damages. [ 46 ] In the circumstances of the present case, the Court considers it appropriate that Plaintiff's obligations be reduced, which amounts to a reduction in the sale price. In light of the fact that Plaintiff did not present an estimate of the cost to repair his vehicle nor its value at the time he sold it, the Court in its discretion grants Plaintiff the sum of $1,500 as compensation for the latent defect affecting his vehicle.

Damages and inconvenience: $2,000 [ 47 ] Plaintiff is claiming damages for the multiple repairs and the inconvenience he suffered. The Court considers that the problems suffered were numerous, and Plaintiff suffered a great deal of trouble. [ 48 ] In addition, the length of time that Plaintiff was deprived of his car during repairs was excessive. The Court considers that the sum of $500 is justified to compensate Plaintiff for his loss of time, trouble and inconvenience. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action;

CONDEMNS Defendant, Mazda Gabriel, to pay Plaintiff, Robert Smith, the sum of $3,064.66 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the civil code of Quebec since September 9, 2009, plus judicial fees of $157. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: April 17, 2012