2019 QCCQ 4127, 2019 QCCQ 4127

Nguyen c. Honda Centre-Ville 2019 QCCQ 4127 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-704404-187 DATE: April 8, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ TOAN NGUYEN Plaintiff v.

HONDA CENTRE-VILLE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr. Toan Nguyen, enterred into an agreement with the Defendant, Honda Centre-Ville, for the purchase of a 2015 Honda Fit LX AUT showing 33 000 km on the odometer for a price, taxes included, of $ 16,800.00. The contract [1] is dated November 15, 2017. [ 2 ] Mr. Nguyen gave a deposit of $500.00 toward the sale price at the time of signing the Offre d’achat.

Under the heading “Véhicule de base et options” the contract reads “Pneu d’hiver 15 pouces sous sol reparer bumper et scrach" [sic]. [ 3 ] Mr. Nguyen sues Honda Centre-Ville in this case for $15,000.00, which is the upper limit of claims in the Small Claims Division. He alleges that he was ready and willing to complete the sale but Honda Centre-Ville failed to carry out completely the repairs mentioned in the contract, of the bumper and scratches.

He was willing to give Honda Centre-Ville more time to complete the work but, rather than doing so, Honda Centre Ville unilaterally took the decision to sell the vehicle to another purchaser and to reimburse the deposit. [ 4 ] Mr.

Nguyen claims the difference between the price of a similar car that he bought instead of the one promised by Honda Centre- Ville, a difference of $5,620.00 as well as for three months of car rental, $1,295.00 in addition to damages for time and stress, abuse and insult and other consequential damages. [ 5 ] He alleges a total of 34,800.40 bur reduces his claim to the maximum of $15,000.00. [ 6 ] Honda Centre-Ville asserts in its contestation that it was entitled to reimburse the deposit and sell the vehicle to another customer when Mr. Nguyen refused to take delivery [2] .

Issues [ 7 ] The Court must answer the following questions to resolve this dispute: 1. Did Honda Centre-Ville fail to deliver the car in the stipulated condition or was it Mr. Nguyen who wrongfully refused to accept delivery? 2. In the event that Honda Centre-Ville wrongly sold the car to another customer rather than completing the repairs, what is the amount of the prejudice suffered by Mr. Nguyen? Facts [ 8 ] The photos that Mr.

Nguyen took at the time he promised to purchase the vehicle show a significant dent on the tailgate and several places on various doors and panels of the car where there are noticeable scratches in the gray metallic paint. [ 9 ] The Court was able to scrutinise the photographs on a high definition computer screen.

The scratches are quite noticeable and not merely superficial but they do not appear to have damaged the body nor do they seem to have cut all the way to the metal. [ 10 ] Honda Centre-Ville argues that the damage to the tail gate required work in the body shop, which included repainting that panel, but that the other scratches were superficial, that it was not economically feasible to have them repainted and that the appropriate

treatment was to repolish the vehicle using a “compound”. [ 11 ] Mr. Nguyen was supposed to receive the car on November 22 nd but on that day, when he arrived at the Honda Centre-Ville premises, he was told that the repairs had not yet been carried out. Honda Centre-Ville had tried to reach Mr. Nguyen to postpone the appointment without success. [ 12 ] The delivery of the vehicle was rescheduled to November 28 th . On that day Mr. Nguyen stayed home waiting for a message that the car was ready.

The sales rep texted him “ let me confirm later i have to see the car before to be shure [sic] the car is good ” [3] . [ 13 ] Later that afternoon he texted “ le véhicule n’est pas parfais mais il est quand même améliorer voulez vous le voir. Il y a encore quelques truc à des endroits mais il est mieu ” [sic]. [ 14 ] Mr. Nguyen wrote back “ bonjour, je vais attendre jusquand il est parfait. Svp me confirmer aussitôt qu’il est prêt pour prendre un rendez-vous. Pour ce temps d’attend, svp me confirmer si vous me fournir une voiture courtesy ou je vais la louer. Merci beaucoup.

En tout cas, svp noter que je vais partir en vacances pour 2 semaines (nov. 30- Déc. 13), je ne serai pas disponible pendant cette période et je crois la voiture doit être prête le où avant le Dec 13. 2017.

Merci beaucoup” [ sic]. [ 15 ] The dealer wrote back “ Bon je viens me faire dire que le vehicule est présentement au mieux de ce qu’on peu faire il est vraiment améliorer mais il y a toujours un petite boss sur la valise ” [sic]. [ 16 ] At that point, given that the sales rep confirmed that the car was not yet “perfect” and that it had been brought to the best it could be, the sales rep received instructions from his manager, Steve Méthé, to deliver the car quickly to Mr.

Nguyen if he would accept it, failing which he should reimburse the deposit, cancel the contract and sell the car to another customer, this type of car being in high demand. [ 17 ] Mr. Nguyen however could not take delivery, after the 28 th , for two weeks because of his trip. He did not have time to deal with the problem before his departure and he expected to deal with it when he returned. [ 18 ] When he got back from his travels, he learned that the car had been sold to someone else. [ 19 ] He texted to the sales rep “ We had an agreement (a contract called an offer) signed with a deposit.

And proof of full payment on the delivery date! You have no right to end the contract without my agreement ” the sales rep replied “ Yes I no but you whant car look like new so that why we choose tout give you Money back ”[sic]. [ 20 ] In other words, Honda Centre-Ville, being convinced that the customer would not accept the car in its imperfect condition, took the unilateral decision during Mr. Nguyen’s absence to end the contract, to return the deposit and to sell the car to another customer. [ 21 ] Mr. Méthé confirmed that the car was sold for the same price without any additional repairs. Mr.

Méthé explained that the profit margin on this type of car was very limited, that the car must be sold quickly, failing which the carrying costs would deplete the profit. It was not feasible, for economic reasons, to wait two weeks during Mr. Nguyen’s holidays and to risk the possibility that he would not accept the car. [ 22 ] In answer to a question asked by the Court, he estimated that the painting costs to repaint all the panels where scratches were visible would be approximately $400.00 per panel. [ 23 ] The scratches cannot be repaired unless the surfaces are repainted.

Depending on the number of panels, it would be approximately $800.00 or $1,200.00, a cost that was not warranted since another customer would accept the car, despite these minor scratches, at the price offered. [ 24 ] In the short term, Mr. Nguyen borrowed a car from his sister. He treats this as a rental and claims the monthly amount that his sister paid as rental for the car. [ 25 ] He also told the Court, that since he and his sister worked together in a sort of partnership, the costs of the rental during the period of time he used the car would be allocated to him when year-end adjustments were made.

The car that he wished to purchase and the one that he borrowed from his sister were for use by him in connection with his work as a building inspector. [ 26 ] Mr. Nguyen insists that whatever work was required to repair the scratches was not his concern: he had agreed to purchase the car under a bilateral promise based on the stipulation, upon which he insisted, that the scratches be corrected so that there would be no blemishes on the scratched surfaces. [ 27 ] In other words, he would not have purchased the car in its present condition.

He had bargained for the repairs and the vendor had an obligation to carry out the repairs so that the scratches would not be apparent. [ 28 ] He asserts various types of prejudice: the inconvenience of not having the car when he was ready to purchase it, a temporary rental cost, the trouble of purchasing a new car and the difference in the purchase price between the new vehicle and the vehicle he was supposed to purchase. Analysis [ 29 ] Honda Centre-Ville promised to repair the scratches and then decided not to do so, for economic reasons.

This was a failure to fulfill its obligations that caused prejudice to Mr. Nguyen.

[ 30 ] It goes without saying that Mr. Nguyen suffered an inconvenience because he was forced to find other arrangements in the short term and, in the medium term he had to acquire another car. [ 31 ] The claim for the cost of renting the car from his sister is not substantiated in full. [ 32 ] The claim for three months of rental is exorbitant: it does not take three months to purchase this type of vehicle which can be found regularly in other dealerships. [ 33 ] There is, however, tangibly a cost to Mr.

Nguyen in that he and his sister keep separate business identities and it would appropriate for him to pay something to his sister for the use of the vehicle. In the Court’s estimation, one month would be a reasonable period for him to acquire a replacement vehicle. [ 34 ] The Court allocates therefore $431.76 for the rental of his sister’s vehicle for one month.

The inconvenience of having to deal again for a replacement car, and the lost time and energy in being delayed from the intended time of delivery warrants moral damages of $5,000.00. [ 35 ] It has not been demonstrated that he incurred any financial loss in purchasing the replacement vehicle. It is a more expensive vehicle of the same type, a Honda Fit automatic. However, it was a 2017 model having only 2,331 km on the odometer. [ 36 ] He purchased it from another Honda dealership, Lombardi Honda. Mr.

Nguyen states that the body was in perfect condition as he had expected the car from Honda Centre-Ville to be. [ 37 ] The total sale price, with all the applicable taxes and charges, was $22,420.13. [ 38 ] This is significantly more than the price he had agreed to for the purchase of the similar car from Honda Centre-Ville, but the Court has no reason to believe that this higher price is not the consequence of the fact that the replacement car is significantly newer: a 2017 instead a 2015 and, because it has so few kilometers (2,331 instead of 33,000). [ 39 ] Through normal market forces, it is likely that, by paying more for a newer car, he got a better value.

He did not suffer a financial prejudice. [ 40 ] Mr. Nguyen, in making a claim for significant moral damages, mentions the lost time because he could not park his sister’s car in the vicinity of his home, because he did not have a sticker permitting parking in that area of the city, which is restricted to residents. [ 41 ] This particular item of damage is somewhat remote and indirect and not particularly foreseeable.

While Honda Centre-Ville should compensate him for having wrongfully put an end to the contract of sale rather than spending the extra money to deliver the car as promised, the direct damages consist in the rental, during a reasonable time, of a replacement vehicle and the inconvenience of having to go through a sale process twice. [ 42 ] In the Court’s estimation, the amount claimed in this case is somewhat exaggerated. The damages are reduced to $931.76.

FOR THESE REASONS, THE COURT: ALLOWS the Plaintiff’s claim in part; CONDEMS the Defendant to pay the Plaintiff $931.76 together with interest at the legal rate together with the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from November 28, 2017; WITH the judicial costs in favor of the Plaintiff. __________________________ David L. Cameron, J.C.Q. Date of hearing: March 25, 2019