2017 QCCQ 7253, 2017 QCCQ 7253

Gill Moteur inc. (Autoville LaSalle) c. 6467679 Canada inc. 2017 QCCQ 7253 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151295-161 DATE: May 11 th , 2017 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ GILL MOTEUR INC. d.b.u.n.

AUTOVILLE LASALLE Plaintiff v. 6467679 CANADA INC. and JAMIL MOHAMMAD Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff seeks from Defendants a sum of $4 800.00 in damages resulting from what it alleges to be the illegal purchase and resale by Defendants of a vehicle which it claims to be the owner of. [ 2 ] In fact, Plaintiff, through the testimony of its president, Mohammad Khalid, alleges that it is owed an amount of $3 847.00 representing the balance to be paid under the terms of a “long-term lease agreement” or under a “contract of sale” of the said vehicle (exhibit P-3) namely an Infinity 2003. [ 3 ] Defendants contest Plaintiff’s demand alleging that, acting in good faith, Defendant 6467679 Canada Inc. purchased the vehicle from Akhtar Kinza Butt who, at the time of the sale, claims that she was the rightful owner of the vehicle. [ 4 ] The evidence adduced at trial has revealed that Plaintiff is a used car dealer.

In this capacity, on May 17 th , 2014, it entered into a contract with Mrs. Butt regarding the said vehicle. The contract (exhibit P-3) used by Plaintiff is written in French and has the heading “Contrat de vente d’un véhicule d’occasion”. However, across the contract, in handwriting, it is written “Location Seulement Financement par Mois”. [ 5 ] The value of the lease or of the sale was set at $9,000.00 and an amount of $1,500.00 cash was paid to Plaintiff by Mrs.

Butt. [ 6 ] The contract does not stipulate the number of monthly installments or rent payments to be made nor does it stipulate the amount of the installments or of the rent nor when the payments are to commence. [ 7 ] The contract does however state the following: “Miss Kiza Akhtqrbut if refuse to pay monthly payement we will stop license plats by the SAAQ”. (sic) [ 8 ] Testifying at the hearing, Mrs. Butt affirms that, in her mind, she was buying the vehicle and not leasing it from Plaintiff.

Furthermore, according to her, she was to be paying monthly installments of $500.00 until final payment. [ 9 ] Finally, at trial, Mrs. Butt stated that she had paid the vehicle in full with cheques and cash when she sold it to Defendant 6467679 Canada Inc. on May 25 th , 2015 (exhibit P-5). [ 10 ] In this regard, the evidence has revealed that Mrs. Butt did pay a total amount of $3,847.00 by cheques. However, as to the balance of $3,153.00 allegedly paid in cash, she has no receipts and Mr.

Mohammad Khalid, president of Plaintiff, denies having received the said cash payments. [ 11 ] If the contract (exhibit P-3) concluded between Plaintiff and Mrs. Butt is a conditional sales contract, the contents of the said contract does not respect the requirements stipulated in articles 132 to 135 of the Consumer Protection Act [1] . Consequently, Mrs. Butt was the owner of the vehicle.

[ 12 ] In this regard,

article 135 of the Consumer Protection Act stipulates the following: “Every instalment sale not conformable to the requirements of Division III of this

chapter is a sale with a term which transfers to the consumer the ownership of the goods sold.” [ 13 ] Notwithstanding the testimony of Mr. Mohammad Khalid to the effect that the vehicle was leased to Mrs. Butt, in a letter dated April 28 th , 2015 (exhibit P-5), Plaintiff states that the vehicle was sold to Mrs. Butt and not leased. [ 14 ] This being said, as the contract concluded between Plaintiff and Mrs. Butt was most probably a conditional sales contract, in view of

article 135 of the Consumer Protection Act , when Mrs. Butt sold the vehicle to Defendant 6467679 Canada Inc., she was its legal owner. Consequently, Plaintiff’s case against said Defendant as well as against Defendant Jamil Mohammad is ill-founded in fact and in law. [ 15 ] Furthermore, for discussion purposes only, if the contract concluded between Plaintiff and Mrs. Butt (exhibit P-3) was to be considered as being a long-term lease, as alleged by Mr. Khalid, then the said contract would be governed by articles 150.1 and 150.17 of the Consumer Protection Act .

In such a case, in view of its contents, the said contract would not respect the requirements stipulated in articles 150.5, 150.6 and 150.7 of the said Act . [ 16 ] Finally, testifying before the Court, Defendant Jamil Mohammad, president of Defendant 6467679 Canada Inc., testified that he was in good faith when he purchased the vehicle and that Mrs. Butt did represent to him that she was its rightful owner stating furthermore to have paid it in full. To this effect, Mrs. Butt gave him a letter (exhibit D-1). [ 17 ] The preponderance of the evidence does not allow the Court to doubt the credibility of Mr.

Mohammad on this issue. [ 18 ] In view of the preceding, as Defendants have committed no wrongdoing when purchasing the vehicle and as there exists no “lien de droit” (legal link) between the parties, the Court concludes that Plaintiff’s demand against said Defendants is ill-founded in fact and in law and must be dismissed. FOR THE FOREGOING REASONS, THE COURT: DISMISSES Plaintiff’s demand with judicial costs in the amount of $150.00 as concerns Defendant 6467679 Canada Inc. and $100.00 as concerns Defendant Jamil Mohammad. __________________________________ ARMANDO AZNAR, J.C.Q. Date of hearing: May 3 rd , 2017