2019 QCCQ 8851, 2019 QCCQ 8851

Mladenov c. Tapis Décor Chantilly (162710 Canada inc.) 2019 QCCQ 8851 JC00G0 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL MONTREAL CIVILE No: 500-32-157619-182 DATE: December 11, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ KRASSIMIR MLADENOV Plaintiff v.

TAPIS DÉCOR CHANTILLY (162710 CANADA INC.) Defendant ______________________________________________________________________ CORRECTED JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Krassimir Mladenov, sues the Defendant, Tapis Décor Chantilly (162710 Canada Inc.), in connection with the supply of mechanised and manual blinds and draperies.

He asserts that several motorised blinds do not work properly, that they constantly become entangled, and that the Defendant has been unable to correct this issue. [ 2 ] In respect of the draperies, he asserts that the rails are not long enough to accommodate the whole drape fabric when drawn, such that more than third of the window surfaces are covered when the draperies are drawn opened. He claims $ 15,000, including $ 2,000 of moral damages for these problems. [ 3 ] At the hearing, Mr.

Mladenov sought to amend his claim to assert bodily injuries resulting from an accident he alleges occurred on September 26, 2018, when he fell from a ladder, when he was attempting, himself, to repair one of the blinds. This is a very new claim, although it had a connection to the claim for the inadequacy of the curtains and blinds. It would have fundamentally changed the nature of the proceedings and the Defendant was truly taken by surprise.

It would not have been feasible to postpone the case, which was prepared in relation to the functionality of the curtains and blinds, to permit medical evidence and the Defendant, having been given no notice of this claim, was unable to bring his insurers into the picture to assist the defence. [ 4 ] Therefore, the Court dismisses the oral motion for amendment, on the basis that the amendment would be contrary to the proper administration of justice. [ 5 ] On the issue of the case, the functioning of the blinds and the drapes, Mr. Mladenov testifies about several incidents since the installation in November 2017.

The blinds are six to seven metres above the floor level. Problems with the functioning of the mechanisms were reported to the Defendant’s owner, Mr. Taiger, who provided service after sale, at least three times. Mr. Mladenov became frustrated and states that he now has stopped using the blinds’ motorised mechanisms. His complaint about the draperies is that, even when fully drawn opened, one third of the windows’ surfaces are covered. [ 6 ] Mr. Irwin Taiger testifies that he received payment for this contract progressively, for a total of $ 25 000 [1] .

After he had been paid the final balance, he received a call from the Plaintiff, telling him that the payment on the cheque would be stopped, because he was not happy. Later, he paid most of the balance, leaving a small amount of $ 1,238.44 unpaid. [ 7 ] On the issue of the draperies, Mr. Taiger asserts that they are installed properly and that it is normal that they cover the edges of the windows.

As a courtesy, he provided, free of charge, tiebacks incompatible made of the same material, tiebacks being a normal feature of this type of drapery. [ 8 ] On the issue of the blinds, he asserts that the motorised blinds are covered by a five-year warranty provided by the manufacturer, which, to be honoured, simply requires that the problem be notified to a dealer, such as Tapis Décor Chantilly. [ 9 ] On each occasion that he was advised of a problem, he fixed it, including returning, when necessary, the equipment to the manufacturer to be replaced or repaired. Mr.

Taiger mentions that, on his last visit, the installer reported that the blind complained of

worked properly. [ 10 ] He suggests that the problem may be that the user is pulling on the blind on one side, so that it does not retract properly. On each occasion, he was asked to deal with the problem, the blinds were either repaired successively or there was, in fact, no problem. He ceased returning to the premises when the lawsuit was instituted, but he asserts that the warranty remains in place and that, in the future, Mr.

Mladenov can obtain service after sale, either from Tapis Décor Chantilly or another similar provider of these products that covers the warranty of the manufacturer in question. [ 11 ] As to the draperies, he asserts that they cover a maximum of 10% of the windows, which is within normal practice. [ 12 ] This perception is supported by the photos provided [2] . ANALYSIS [ 13 ] Having heard the testimony of both parties, the Court is satisfied that the Defendant installed and serviced the products responsibly. The Court accepts the sincerity of Mr.

Taiger’s testimony, when he states that all warranty problems were dealt promptly and efficiently and that his company continues to stand behind the warranty and will continue to make sure repairs are carried out, if and when necessary. [ 14 ] As for the esthetic effects of the curtains, the photos did not show anything that would appear to be unacceptable. [ 15 ] Esthetics are, to a certain extent, a question of personal opinion, but there are also industry standards in play. [ 16 ] For the Plaintiff to adequately demonstrate to the Court that there is a contractual fault, it would have to be shown, objectively, that industry standards have not been met.

The Plaintiff’s testimony, mostly subjective, does not fulfil the burden of proof. [ 17 ] As to the functionality of the blinds, the Court accepts the Defendant’s explanations and finds that, up until the period covered by this litigation, there is no valid claim. If, in the future, a problem should arise that it is not adequately dealt with through the warranty process, and Mr.

Mladenov can prove a defect or the failure on the part of the vendor and the manufacturer to provide proper warranty service, he would have a claim, but it would be necessary, for him, it that event, to prove it with proper evidence. [ 18 ] The Defendant made a Cross-claim for the resolution or resiliation of the contract of enterprise as well as September 11, 2017, and damages in the amount of $ 2,500, because of the multiplicity of service calls. [ 19 ] The Court will not pronounce the resolution of a contract having a value of more than $ 15,000 in the Small Claims Division, because the judgment would require the restitution of an amount beyond its jurisdiction, which is limited to $ 15,000. [ 20 ] As well, according to the evidence, there is no grounds for resolution of the contract, which has been properly performed and for which payment has been made substantially, although not entirely. [ 21 ] There is a balance remaining of $ 1,238.44, because, when Mr.

Mladenov stopped payment on the cheque of $ 16,238.44, he made a payment of $ 15,000 once he was satisfied with the repair that took place in November 2017. This amount with interest from the date of the institution of the Cross-claim, March 2, 2018. [ 22 ] Since the Cross-claim was only allowed in part, the Court will not award costs to either party. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s Demand; GRANTS the Defendant’s Cross-claim in part; CONDEMNS the Plaintiff to pay the Defendant the amount of $ 1,238.44, together with interest at the legal rate, and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from March 2, 2018; THE WHOLE without judicial costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: October 22, 2019.