2011 QCCQ 897, 2011 QCCQ 897

2425-3304 Québec inc. (PF Automatique transmission spécialistes enr.) c. Havlin 2011 QCCQ 897 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-114050-083 DATE: January 27, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ 2425-3304 QUÉBEC INC. doing business under the name P.F. AUTOMATIQUE TRANSMISSION SPÉCIALISTES ENR. 385, 6 e avenue, Lachine Québec H8S 2X9 Plaintiff v.

ROMAN HAVLIN […], Toronto Ontario […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] 2425-3304 Québec inc., doing business under the name P.F. Automatique transmission spécialistes enr. (“P.F. Automatique”) is claiming $2,858.56 from Roman Havlin for services rendered. Defendant denies the claim and presented a cross demand for $2,000, alleging that Plaintiff rendered his car unusable. The evidence: [ 2 ] Plaintiff owns a garage, specializing in transmission repairs.

Defendant brought his GM Chevrolet Venture to Plaintiff at the beginning of July 2008, for a transmission repair. Defendant claims he also asked for an overall check up to determine whether it was worthwhile fixing an old car, a fact Plaintiff denies. [ 3 ] While preparing to repair the transmission, Plaintiff noted a lack of antifreeze. Plaintiff repaired the transmission and added two liters of antifreeze. [ 4 ] Plaintiff test-drove the car in the city and on the highway. Defendant came to get his car on Friday afternoon, July 4, 2008, and paid for the repairs.

While driving towards the West Island, the temperature gauge rose and a light went on. [ 5 ] Defendant claims he immediately called Plaintiff about the problem. Plaintiff told him to return on Monday since it had no time to look at the car. Plaintiff denies this claim, maintaining it would have towed Defendant's car had he called. [ 6 ] Defendant stated that his car was parked all weekend; he only drove it to return to Plaintiff on Monday. Plaintiff denies this claim, based on the car's mileage. [ 7 ] When Defendant returned, Plaintiff found there was no more antifreeze in the reservoir.

On further inspection, it found that the lack of antifreeze caused the engine to overheat and burned the gasket, which allowed the antifreeze to get into the engine and mix

with oil. There was also no antifreeze left in the radiators. [ 8 ] Plaintiff informed Defendant the engine was burned. Defendant blamed Plaintiff for the problem and demanded his money back. Plaintiff denied responsibility. Defendant advised his credit card company, Desjardins, of his dissatisfaction. Desjardins subsequently removed Defendant's payment from Plaintiff's account. [ 9 ] Defendant contends it is not normal for the car to overheat.

There was nothing wrong with the engine when he brought his car to Plaintiff for the transmission repair; a reconditioned transmission had been installed in 2005 with 56,000 km and the car had been checked in February 2008. [ 10 ] Defendant's car and keys are still at Plaintiff's garage. It cannot be driven. Defendant does not consider the engine repair is worth the cost involved. He is claiming $2,000 for the loss of his car. He asked Plaintiff to sell it for him but the car never sold and has been sitting on Plaintiff's lot for the past two years.

Analysis: [ 11 ] Plaintiff contends it did the transmission job as requested and seeks payment. [ 12 ]

Article 1458 of the Civil Code of Quebec states that every person has a duty to honour his contractual undertakings. When he does not respect this obligation, he is liable for any material injury he causes to the other contracting party. [ 13 ] Defendant, having requested and obtained Plaintiff's services for a transmission repair, is responsible for paying Plaintiff's claim. [ 14 ] Defendant presented a cross demand for $2,000.

He alleges that when he brought his to car to Plaintiff for a transmission repair there was no problem with the engine but upon retrieving his car, it no longer runs and he cannot sell it. [ 15 ] Plaintiff explained there are several possible reasons for an engine to overheat; there may be a problem with the thermostat controls, the water pump driven by the engine belt, the fan, the relays and fuses which control power to the fan or a leak in the antifreeze reservoir. Any one of these could cause the problem. [ 16 ] Defendant has the burden of proof.

He failed to present any evidence to establish that the engine's overheating is a direct and immediate result of the work performed by Plaintiff. [ 17 ] However, Plaintiff has an obligation of information. It noted there was antifreeze missing when the car was brought in for repair. The lack of antifreeze indicates there is most likely a leakage in the cooling system and the loss of antifreeze will eventually cause the engine to overheat.

Plaintiff failed to advise Defendant of the implications of the problem or the need for further investigation and repair. [ 18 ] On the other hand, Defendant not only continued to drive his car when the light went on but drove it back to Plaintiff's garage on the following Monday. [ 19 ] Defendant claims he called the garage on his cell phone but Plaintiff told him it was too busy at that time.

Plaintiff denies this allegation, stating that it would have towed the car had it been advised of the problem. [ 20 ] Defendant, however, produced his phone records, which show that he, in fact, called Plaintiff at 2:13 p.m. on July 4, 2008. In addition, contrary to Plaintiff's allegations that Defendant left the car with Plaintiff and did not call for a couple of weeks, Defendant’s records show that Defendant called Plaintiff on Monday, July 6, 7, 9, and 10 to inquire as to the status of his car. [ 21 ]

Article 1478 of the Civil Code of Quebec states: Where an injury has been caused by several persons, liability is shared by them in proportion to the seriousness of the fault of each. The victim is included in the apportionment when the injury is partly the effect of his own fault. [ 22 ] In the Court's view, the parties share the responsibility for the engine having burned.

As indicated above, Plaintiff failed to advice Defendant of the implications that result from missing antifreeze; having failed to do so, it incurred its responsibility for the ensuing damages that subsequently occurred. [ 23 ] Defendant is also at fault. He contributed to the damage by continuing to drive his car to return home on Friday and to reach Plaintiff's garage on Monday, despite the gauge and engine light signaling that the engine was overheating. [ 24 ] The Court in its discretion attributes 60% of the responsibility to Plaintiff and 40% to Defendant.

Defendant, having claimed $2,000 is entitled to $1,200 in damages. FOR THESE REASONS, THE COURT:

GRANTS , in part, the principal action; CONDEMNS Defendant, Roman Havlin, to pay Plaintiff, 2425-3304 Québec Inc., doing business under the name P.F. Automatique transmissions spécialistes Enr., $2,858.56 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since the demand letter dated August, 25, 2008, for a total of $3,266.13. GRANTS , in part, Defendant's Cross demand; CONDEMNS Plaintiff, P.F. Automatique transmissions spécialistes Enr., to pay Defendant, Roman Havlin, $1,200 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since the institution of the cross demand dated March 2, 2009, for a total of $1,323.44. And effecting COMPENSATION ; CONDEMNS Defendant, Roman Havlin, to pay Plaintiff, P.F. Automatique transmissions spécialistes Enr., the sum of $1,942.69 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec since the demand letter dated August, 25, 2008, plus judicial fees of $144. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: September 28, 2010