2019 QCCQ 4135, 2019 QCCQ 4135

Poon c. John Scotti Automotive Ltd. 2019 QCCQ 4135 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-157107-170 DATE: March 20, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ SUNMY POON Plaintiff v.

JOHN SCOTTI AUTOMOTIVE LTD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Parties and proceedings [ 1 ] The Plaintiff Sunmy Poon, who purchased a 2011 BMW X3 automobile from the Defendant John Scotti Automotive Ltd (“ Scotti ”), a professional sailor of automobiles, claims damages in connection with her discovery, after the sale, that there was a serious problem with areas of the car body that had been repaired and repainted.

She alleges that she purchased the car on the express representation of the vendor that it had never suffered damage and that it had never been repainted. [ 2 ] She claims damages of $3,431.00 for the repair cost, $2,000.00 for loss of use, depreciation of the vehicle and trouble and inconvenience $1,000.00 for legal fees and $1,000.00 of punitive damages for false and misleading representations, for or a total of $7,431.00. [ 3 ] John Scotti, in his written contestation, does not deny that corrective work including body work and were carried out on the vehicle prior to the sale, but that the problems complained of and the corrective work go far beyond the work done prior to the sale and that these problems are a result improper use or storage of the vehicle. [ 4 ] John Scotti denies being bound by a legal warranty, denies that there was any false representation, contests the quantum as being exaggerated and asserts that no claim can be made for legal costs.

Issues [ 5 ] To resolve this case the Court must answer the following questions: 1 . Is Scotti at fault as a professional vendor of automobiles and a merchant within the meaning of the Consumer Protection Act because of the non-disclosure at the time of sale of the true nature and quality of the vehicle, which was defective? 2 . Is so, what is the amount of compensation to which the Plaintiff is entitled? 3 . Can the Plaintiff include in her claim punitive damages and damages for legal fees?

Facts [ 6 ] Sunwy Poon and her husband, Timothy Shearer, took an interest in the BMW advertised by the Scotti used car division known as “Division exotiques et usagés” situated in Kirkland. [ 7 ] The couple reside in Ayer’s Cliff, a two-hour drive away from Montreal. Mr.

Shearer contacted a Scotti sales representative, Martin Généreux, on July 25 th to express their interest in the car, he asked if there was a CarProof and stated that they were not interested buying the car if it had been damaged in any way or had undergone any paint or bodywork. [ 8 ] Upon receiving assurances from Martin Généreux that the car was indeed undamaged and had undergone no repairs, Mr. Shearer and Mrs. Poon made the two-hour trip from Ayer’s Cliff to Kirkland, inspected the car and took a test drive. The odometer showed approximately 25,000 kilometres.

Again the sales rep said that all was well, that this was the original paint, that the car was “pristine”. He gave them a CarProof report [1] that showed no report of damage. They decided to buy, because this was, it seemed, precisely what

they were looking for. [ 9 ] The purchaser was Sunwy Poon who was to be the principal driver of the vehicle.

In her words: “I wanted this car”. [ 10 ] The parties signed the contract of sale that day, July 25, 2015, for a price, taxes included, of $29,825.00. [ 11 ] After the first winter and before a year had passed after the sale, the Plaintiff and her husband noticed “fish eyes” on the back right panel that the paint of the left back panel was fading, and that there were irregularities in the paint. [ 12 ] They also experienced a problem with the sunroof leaking but that matter was minor and they have not made an issue of it this case. [ 13 ] In the fall of 2016, Mrs.

Poon consulted a local mechanic who told her that the back

section of the vehicle showed signs of faulty repainting. She promptly contacted the people at Scotti. This led to a meeting in November 2016, with Scotti’s service director, Teddy Roy. He had asked to see the vehicle because of Mrs. Poon’s complaint. [ 14 ] Upon examination of the vehicle, Mr, Roy surmised that the sunroof was blocked with debris. He had the area cleaned and silicone applied to the seals.

As for the paint problem, he looked in his system and showed the Plaintiff, on his computer screen, that there had indeed been repairs to the body of the car, between the time Scotti acquired the car and the sale to the Plaintiff, at a cost of approximately $1,500.00. [ 15 ] After conferring with his repairs department, he extended to Mrs. Poon an offer on the part of Scotti to perform the necessaries repairs “at cost”. This would mean a payment by Mrs.

Poon of $2,500.00. [ 16 ] The email confirmation of November 22 nd [2] indicates the repairs that are included in his offer: the rear lh door and everything that has a reaction will sanded down, re primed and repainted all the rest will be re cleared to blend from the rear doors back. [ 17 ] Mrs. Poon replied [3] on January 13 th , 2017 indicating that she had been advised that the paint job on her car should be repaired not at her cost but at the cost of the seller. Her lawyer sent a formal letter of demand [4] on May 24 th , 2017.

The letter, setting out the facts completely and clearly, called upon Scotti to repair the faulty work, and gave a reasonable time in which to do it. It refers to an estimate from Avantage CARR-ESTRIE inc. detailing all the work to be done at a price of $3,127.23. [ 18 ] Scotti’s attorneys responded asserting the same defences that Scotti raises in the written proceedings, and refusing to carry out the repair work. Having given Scotti a reasonable opportunity to correct the defective work, Mrs. Poon decided to have the car repaired and to claim the cost from Scotti. [ 19 ] Mrs.

Poon’s attorney replied [5] on September 6 th , attaching the bill from Avantage CARR-ESTRIE inc. for the repairs performed at a cost of $3,431.00, claiming this amount as well as damages of $1,000.00. [ 20 ] The attorneys for Scotti wrote back [6] on September 6 th , reiterating their denial. [ 21 ] A technical report submitted to the Court by way of Déclaration pour valoir témoignage of Yves Dussault, the estimator with Avantage CARR-ESTRIE inc. explains his inspection of the vehicle on January 31 st , 2017 as follows: 4.

J’ai constaté selon mes 35 ans d’expérience en carrosserie et peinture automobile, et mon expertise comme estimateur, entre autre, pour les fins d’assurances que: les portes arrières gauche et droite, panneaux latéral gauche et droit ainsi que le hayon avaient été repeints; les grafignes de ponçages et les endroits réparés sur les panneaux mentionnés ci-dessus sont facilement visibles, probablement dû au rétrécissement des couches de fond qui n’avait pas eu un temps de séchage adéquat avant l’application des couches de finition; [ 22 ] Scotti brought no evidence to contradict this clear evidence of fault resulting from the technicians not allowing sufficient time for drying between coats of paint.

The suggestion of Scotti’s representative at the hearing that the repairs carried out by the purchaser were the result of improper use or storage of the vehicle is untenable. Analysis [ 23 ] The Plaintiff’s claim is well founded. A purchaser of a quality automobile, which appears perfect in every aspect and has low mileage, benefits from the warranty of quality. In this case, the defect of the paint was not apparent on an ordinary examination by the purchaser. It substantially lowers the value of the vehicle. Obviously, a purchaser such as Mrs.

Poon would not have agreed to purchase it if she had known of the defects. [ 24 ] In this case, the liability of Scotti is also a result of the inaccurate information given by the sales rep to the direct and clear questions by the purchaser and her husband concerning the history of the vehicle. Scotti, through its employees, failed to mention that before putting the car on the market, Scotti sent the car out to shop for body work, including painting. The Court accepts the testimony of the Plaintiff and Mr Shearer on their intention and on the questions they raised and the answers given to these questions.

Scotti did not attempt to bring any evidence that would contradict this testimony. [ 25 ] The Scotti organisation indicated in their internal invoice [7] that the repair included “body shop repairs rear right corner and door and tailgate”. These repairs, invoiced by an outside body shop, Carrosserie Roxboro for 1,000.00 plus taxes, were and indicated in the internal bill, with a markup, at $1,250.00.

[ 26 ] It would have been a simple matter for the sails rep to check the system and to say in answer to Mrs. Poon’s question that the system indicated these repairs. [ 27 ] The defense made by Scotti, that the repairs carried out to the car by Mrs. Poon exceed those of Carrosserie Roxboro is of no effect. [ 28 ] The Court is convinced, by the written testimony of the estimator and the attached photos, that the repairs carried out by Carrosserie Roxboro were not of good quality and were not sufficient to correct the damages that had been caused to the vehicle by the previous owner.

They constituted a latent defect for which the vendor is responsible and of which he has presumed knowledge. [ 29 ] It was quite clear in the discussions between the purchaser and the vendor that the sale would only be concluded if the car truly had never been damaged and repaired. [ 30 ] By not disclosing this information, Scotti, as professional seller, committed a contractual fault which led directly to the financial and moral loss suffered by the Plaintiff. [ 31 ] The cost of the repairs carried out is reasonable in light of the fact that Scotti had quoted a cost-price estimate of $2,500.00 in comparison with the retail price of $2,984.12 plus taxes. [ 32 ] The Plaintiff claims damages for inconvenience and loss of time as well as the depreciation of the vehicle.

In the Court’s view, there must be a reduction of price because the vehicle, even as repaired, has a lower value as compared to a similar vehicle that is in perfect condition. [ 33 ] This, together with the time and energy to bring the car from Ayer’s Cliff for an examination by Scotti and the trouble of bringing it to a body shop for repairs as well as the loss of use during the time of the repairs amply justify the amount of $2,000.00 claimed. [ 34 ] The Consumer Protection Act [8] provides for punitive damages to a consumer when the merchant has not fulfilled its contractual obligations.

Scotti failed in its obligation to provide full and accurate information about the vehicle before selling it to a consumer who specifically stipulated that the vehicle must have never undergone repairs to the body and paint. Scotti would have the same obligation of disclosure to any consumer wishing to buy the car, because it is a fact relevant to the nature and the value of the object for sale.

The failure to respect that obligation is much more reprehensible because the consumer specifically and repeatedly asked for the information. [ 35 ] The amount of $1,000.00 claimed is very reasonable, appropriate to deter such conduct and, obviously, well within the means of the merchant to pay. [ 36 ] It is hoped that the award of punitive damages will cause Scotti to correct its practices and procedures and that it will serve to deter other professional vendors in the market from engaging in similar conduct. [ 37 ] The claim for legal fees cannot be successful as legal fees are part of the Plaintiff’s involvement in a judicial process to inforce rights, not part of the damages per se that pertain to those rights.

As well, extrajudicial fees to help the Plaintiff prepare the case are not included in the legal costs. FOR THE REASONS, THE COURT: GRANTS, in part, the Plaintiff claims; CONDEMS the Defendant to pay the Plaintiff the sum of $6,431.00 together with interest at the legal rate together with the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from May 24 th , 2017; THE WHOLE with costs. __________________________________ David L. Cameron, J.C.Q. Date of hearing: March 12, 2019