2018 QCCQ 1347, 2018 QCCQ 1347

Kaprielian c. Del Papa 2018 QCCQ 1347 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-153842-168 DATE: March 5, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ SEVAG KAPRIELIAN Plaintiff v.

ALESSIO DEL PAPA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Sevag Kaprielian, who obtained a BMW vehicle by transfer of a lease with BMW Financial Services Canada, sues the assignor of the lease, the Defendant, Alessio Del Papa, for damages equal to various costs associated with the transfer of the lease, service, repairs, and compensation for the loss of the use of the vehicle during times when it was not drivable for a total amount of $ 5,537.51. [ 2 ] Mr.

Del Papa denies any liability towards the Plaintiff, asserting that the car did not have any defects at the time of the lease transfer, that some of the damages claimed are for regular maintenance and normal repairs for a car of that age and that he cannot be held liable for the damages that occurred as a result of mishandling and abuse of the vehicle after the transfer of the lease. [ 3 ] Furthermore, Mr.

Del Papa asserts as a defence that the Plaintiff assumed all rights and obligations arising from the lease transfer of the vehicle which would include any requirement for repairs not covered by the manufacturer’s warranty and the extended warranty in effect at the time of the transfer. [ 4 ] The lease assignment documents indicate that both Sevag Kaprielian and his father Vatche Kaprielian are, together, the “assignee”. [ 5 ] It appears that the father’s involvement was for financial reasons, the car to be used exclusively by the son, Sevag. [ 6 ] Although the transaction took place between the parties on the premises of BMW Canbec, a commercial dealer in automobiles, the contractual relationship was clearly with Alessio Del Papa, as an individual, not with BMW Canbec. [ 7 ] The Plaintiff makes much of the fact that he and his father relied upon the fact that they were dealing with an employee of BMW Canbec as a sort of an assurance that the car was of good quality.

Issues [ 8 ] To resolve this conflict, the Court must answer the following questions: 1. At the time of the transfer of the lease, did Mr. Del Papa make promises as to the good quality of the car that were not respected because the car was in fact of poor quality? 2. Did Mr. Del Papa fail to respect a warranty concerning the quality of the vehicle that was breeched in light of its poor quality at the time of the transfer? 3. If the answer to either of the questions above is in the affirmative, are the claims associated with costs incurred by the Plaintiff admissible in whole or in part?

Facts [ 9 ] On February 5, 2016 the Plaintiff and his father went to the place of business of BMW Canbec intending to trade an existing lease of a 2012 BMW 320i for a new car.

[ 10 ] They were met by Mr. Del Papa in his capacity as a Canbec employee and representative. The discussion led to an offer by Mr. Del Papa to transfer the lease of his own car, a BMW 335i. [ 11 ] The lease had a very attractive price because it was based on a highly discounted capital value for the car available to Mr. Del Papa, because of his relationship with Canbec as an employee. [ 12 ] The transfer included an extra set of tires and Mr. Del Papa agreed to post the Plaintiff’s 320i on the “lease busters” website at his expense.

The Plaintiff did not test-drive the car nor did he avail himself of the opportunity of having it submitted to a pre-transfer inspection. [ 13 ] He only drove it around slowly in the BMW Canbec parking lot. Apparently he couldn’t drive it on the road because of limitations associated with Mr. Del Papa’s insurance. [ 14 ] After the lease assignment was executed (D-1 and D-3) on February 8, 2016, the Plaintiff drove off from the premises of BMW Canbec discovering immediately that the car shaked when braking. As well, the “check-engine” light came on.

The Plaintiff requested the cancellation of the lease transfer but an agreement was quickly reached that Mr. Del Papa would contribute $ 250.00 for a change of the rear brakes. The brakes were changed at a garage recommended by Mr. Del Papa, not at BMW Canbec. These repairs were carried out on February 10 th ; the Plaintiff contributed the cost of $ 100.00 for labour. [ 15 ] Later, on February 26 th , he also changed the front discs and pads incurring a cost of $ 241.58. At the same time, he changed the windshield wipers and replaced a brake sensor for a total of $ 294.10.

He incurred a cost of $ 100.00 for the installation of the front discs and pads then, on March 2 nd , he had the car serviced because it was driving in “limb” mode with half-engine power. The services were covered on the warranty but he incurred a cost of $ 19.95 for a courtesy location.

The DMTL pump was replaced along with its connector, under the warranty, at no cost. [ 16 ] On March 14 th , he had other repairs carried out, by the namely replacement of a pressure pump tube and the replacement of front suspension arms with an alignment, all under warranty. [ 17 ] On April 4 th , he carried out an oil change for $ 79.14. [ 18 ] On April 8 th , he purchased new rotors for the rear brakes on the basis that the rotors that had been installed in February were “too cheap and noisy”. [ 19 ] On April 15 th , he purchased new mags for $ 999.13, alleging that the ones that had accompanied the assignment provided by Mr.

Del Papa were damaged. He occurred a cost of $ 45.99 for the installation of rear tires. [ 20 ] A further repair on May 31 st was carried out to replace the alternator, again under warranty. [ 21 ] On June 8 th , the car was not turning on; a repair was carried out to replace the alternator power cable, at the cost of $ 146.01. [ 22 ] A much more significant repair was carried out in late June and mid-July: the replacement of the clutch and the flywheel.

The clutch component of the repair cost $ 2,250.00. [ 23 ] All of the repairs, together with the lease transfer fee of $ 580.00, total $ 4,306.51. [ 24 ] The Plaintiff adds a claim for a total of 21 days when the car was in the garage for service and because he could only be driven in “limb” mode. He claims $ 1,231.00 reckoning that the car was either in service or driven in “limb” mode for a total of 64 days out of the 164 days that he used the car from the lease transfer until his letter of demand of August 15, 2016 (P3).

His claim is based on a pro- rata daily lease cost. [ 25 ] While his claim, initially, as set out in the letter of demand, was for financial compensation and for the cancellation of the lease, the application in the small claims division is for the monetary claims only, a total of $ 5,537.51. Analysis [ 26 ] One of the themes explored in the trial was the nature of this vehicle as a high-performance sports car of the type often used off- road and driven aggressively on the highways and byways of cities and in the countryside for such activities as “drifting”.

Because it is a rear-wheel propulsion vehicle, spinning the back wheels, drifting or other similar sport-like uses of the vehicle are popular among drivers of these cars. These practices also lead to unusual wear and tear. [ 27 ] The parties’ assertions went in both directions. The Plaintiff alleges that the car had been modified and misused by Mr. Del Papa who denies that he sold the car with modifications and alleges that Mr. Kaprielian in fact purchased the vehicle expressly with the idea to drive it in a sporty, therefore in an abusive fashion. [ 28 ] Mr.

Kaprielian maintains that the car was in poor condition when he purchased it, especially in relation to the clutch, while Mr. Del Papa brought a witness who claimed he saw the car being driven in an abusive fashion in a parking lot in Laval, shortly after the transfer. [ 29 ] This witness was, however, unable to identify the car, nor the driver. He assumed that it must have been Mr. Del Papa’s vehicle because these vehicles are rather rare. Mr. Kaprielian denies having driven the car in an abusive fashion whether on-road or off-road.

He admitted that he attended sporting events at race tracks but only as a spectator not as a competitor. [ 30 ] Dealing with the Plaintiff’s claims in turn, with respects to brakes, brakes are a component of motor vehicles that are subject to

wear and it is quite easy to have brakes checked before acquiring a vehicle. The need for replacement is immediately detectable by a visual inspection. [ 31 ] The same can be said for tires and wheels. [ 32 ] Mister Kaprelian forwent an inspection and also did not insist upon test-driving the vehicle. If there was a concern about insurance, he could have done so as a passenger, with Mr Del Papa driving. [ 33 ] Also, he makes much of the fact that Mr. Del Papa was associated with BMW Canbec and therefore could be relied upon as though he were a commercial vendor.

Ordinary prudence requires that an acquirer of a vehicle carry out a road test and some basic inspection. This is the case, in any sale a transfer of a use car. [ 34 ] The various inconveniences and minor costs associated with work done under warranty are not recoverable against the assignor of the lease. A car that has close to 100,000 km of use is normally susceptible to various repairs and the fact that most are covered under the manufacturer’s warranty or an extended warranty is protection enough. Also, Mr.

Del Papa may have expressly or implicitly represented that the car was in good condition at the time it was sold, but this would not mean he warranted that it could not break down and be subject to the need for repairs. That is precisely why warranties are in place: the manufacturer’s warranty and, in this case, the extended warranty. [ 35 ] Driving the car in the protective “limb” mode, with half engine power, is a safeguard built into the car. The car is nevertheless usable although not as a performance vehicle when it is in this mode.

The Court does not consider that to be a prejudice but rather a benefit to the owner, to protect the car when there could be a need. [ 36 ] We come to the most important repair, the clutch kit, for $ 2,250.00. This repair occurred in July, approximately five months after the assignment of the lease for service or repair. [ 37 ] There is no evidence, whatsoever, that the clutch or any component associated with it was in a bad condition at the time of the transfer.

Wear and tear on a clutch depends upon the manner in which a car is driven. [ 38 ] In this case, the Plaintiff has the burden of proof and the evidence is not conclusive in any way as to which of the drivers of the car, including the Plaintiff, may have caused the clutch to wear out prematurely. [ 39 ] The replacement of new back rotors to replace the ones that had been agreed upon on February 10 th is an upgrade as opposed to a repair required because of any defect.

Damage to mag wheels are not claimable as they were visible at the time of the transfer, and of a purely aesthetic character. [ 40 ] On the whole, the Plaintiff’s claim is without merit.

He acquired a car without properly inspecting it from a private party. [ 41 ] He has not fulfilled the burden of proving that, at the time of the transfer, there was any defect that could not be detected from an ordinary or even casual inspection nor is there any evidence that the car required more than scheduled maintenance or warranty- protected maintenance or wear and tear that was normal for a car that was five years old and had 92,450 km at the time of transfer. For these reasons, the Court: Dismisses the Plaintiff’s claim; WITH legal costs against the Plaintiff. __________________________________ David L.

Cameron , J.C.Q. Date of hearing: December 18 th , 2017