2018 QCCQ 3920, 2018 QCCQ 3920

Alzidani c. Auto Sounboul 2018 QCCQ 3920 COUR DU QUÉBEC « Division des petites créances » CANADA PROVINCE DE QUÉBEC DISTRICT DE MONTRÉAL LOCALITÉ DE MONTRÉAL « Chambre civile » N° : 500-32-701326-177 DATE : April 25, 2018 ______________________________________________________________________ BY THE HONOURABLE GENEVIÈVE COTNAM, J.C.Q. ______________________________________________________________________ MAGID ALZIDANI […], Montréal (Québec) […] Plaintiff vs.

AUTO SOUNBOUL […], Montréal (Québec) […] -and- OSAMA FAROUK […], Montréal (Québec) […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming $ 8 000 for damages sustained by his car following repairs carried out by Defendant. [ 2 ] Defendant denies any liability. He replaced the engine of the car without costs but considers he cannot be held liable for the additional damages claimed. QUESTION IN DISPUTE [ 3 ] Is defendant liable for the damages caused to Plaintiff’s car?

THE CONTEXT [ 4 ] Plaintiff, Mr. Magid Alzidani, is the owner of a Hyundai Tucson 2006, which he purchased for $ 5 000. [ 5 ] On July 27 th , 2016, following a friend’s recommendation, Plaintiff took his car to defendant’s garage (hereinafter: “the Garage”) in order to have the timing belt replaced. [ 6 ] Two days later, Plaintiff picked up his car and went for a test drive. He stopped for gas a few kilometers from the Garage. Afterward, the engine refused to start. He called the Garage who sent a tow truck. [ 7 ] The Garage agreed to replace the engine by a used one.

Defendant purchased an engine for $ 2 200, which he installed. The work was done without any charge and was guaranteed for six months. Plaintiff got his car back on September 8 th , 2016. [ 8 ] On November 28 th , Plaintiff returned to the Garage complaining about an engine noise. The owner of the Garage, Mr. Osama Farouk, promised to look into it as the engine was still under warranty. [ 9 ] On December 14 th , 2016, Plaintiff sent a letter to the Garage complaining about the fact that his car had yet to be repaired.

In his letter, he mentioned that he was leaving for an extended two months’ vacation and would therefore be leaving his car under the Garage’s care for that entire period. [ 10 ] Mr. Farouk repaired the car. He asked one of Plaintiff’s friend to come and get it but this friend refused to take responsibility for the car. [ 11 ] Therefore, during the next two months, Mr. Farouk took the car out of his garage every morning at 6:00 AM and parked it on the street. Every night, he shovelled the car, if needed, and brought it in his garage. He did not charge any storing fees to Plaintiff for this entire period.

Witnesses testified that they had seen the car parked on either side of the street during those two months. [ 12 ] On February 20 th , 2017, upon his return from vacation, Plaintiff went to get his car. It was parked on the street. He shovelled to

access the car but the engine refused to start. The next day, he jump-started the engine. This is when he noticed that there was a problem with the transmission as the car would go backward but refused to drive forward. [ 13 ] The Garage suspected an electrical problem. Mr. Farouk suggested that Plaintiff have the car checked by a specialist.

On Febuary 25 th , 2017, Plaintiff learned that the transmission of the car was finished. [ 14 ] On March 23 rd , 2017, he had the car inspected by a Hyundai dealer, which confirmed that the following repairs needed to be done: • Replacement of the transmission: $ 1 800; • Replacement of a flex pipe: $ 550; • Repair an oil leak: $ 260; • Change the hand break cable: $ 290; • Repair a cooling fluid leak: $ 171.19. [ 15 ] The inspection did not reveal any problem with the engine. It does not explain the cause of problem with the transmission.

When it was brought into the Hyundai dealership, the car had 204 29 Km. [ 16 ] Plaintiff did not to repair his car but chose to ship it to his family in Lybia.

The evidence revealed that he had purchased another car before leaving on vacation. [ 17 ] On February 27 th , 2017, Plaintiff sent a Demand letter requesting that the Garage proceed to repair his car. [ 18 ] The Garage refused to repair the car since the problems revealed during the inspection had nothing to do with the replacement of the engine. [ 19 ] The Garage considers having done more than his share as the timing belt and the engine were changed at no cost. The car was old.

It had more than 200 000 km and many things could go wrong without there being any negligence on behalf of the Garage. [ 20 ] Defendant also stresses that the car, being a 2006 Tucson, has little value on the market, even in good condition.

He also brings to the Court’s attention the fact that Plaintiff chose to ship the car to Lybia for the parts, including the engine installed by defendant. [ 21 ] Plaintiff is now claiming $ 8 000 from the Garage, which he details as follows: - Repair of engine: $ 3 000; - New transmission: $ 3 000; - Parking paid for his car while he was not using it: $ 1 470; - Loss of time and money for more than 5 months; - Bad use of his nervous system; - Sharp increase of his blood sugar. [ 22 ] Plaintiff claim was notified to Defendant on April 6 th , 2017. Defendant did not respond.

Judgment by default was rendered on December 20 th , 2017 granting $ 4 368.07 to repair the car and $ 500 in general damages. [ 23 ] Stating that he was made aware of the judgment rendered only on January 23 rd , 2018, the Garage filed an Application for revocation of judgment on February 26 th , 2018.

THE DECISION 1- The revocation of judgment: [ 24 ] The Court must, first of all, consider the Application for revocation of judgment. [ 25 ] The Code of Civil Procedure states that: 346 – A party against which a default judgment has been rendered following failure to answer the summons, attend the case management conference or defend on the merits but was prevented from doing so owing to fraud, surprise or any other cause considered sufficient may apply to the court that rendered the judgment for the revocation of the judgment and the dismissal of the demand.

The application for revocation must contain the reasons justifying the revocation as well as the grounds of defence raised against the demand. [ 26 ] Plaintiff argues that upon reception of the Application, he gives the file to a lawyer and understood that a plea was filed, but was apparently not received. The explanations given are not clear but, considering the seriousness of the defense offered, and the right of a party to be heard, the Court will grant the Application for revocation of judgment and will decide on the merits of the case.

2- Is the Garage liable for the damages claimed by Plaintiff? [ 27 ] Plaintiff considers that Defendant must be held liable for not properly repairing his car and further damaging the transmission. [ 28 ] The evidence shows that Plaintiff brought his car to the Garage to repair the timing belt. When he test-drove his car a few days later, the engine stopped working. Defendant took the car back and replaced the engine by a used one. He did not charge Plaintiff for the timing belt or for the new engine. The engine worked for some times.

However, a few months later, Plaintiff complained about a noise. [ 29 ] Since the motor was still under warranty, the Garage took the car back in order to fix it. Although the repairs were not done quickly enough, in Plaintiff opinion, Defendant states that he managed to solve the problem but Plaintiff had already left on vacation. There is no evidence that the engine was not repaired. There is no mention of a problem with the engine in Hyundai’s inspection report.

Therefore, there is no reason for Plaintiff to claim for the cost of a new engine. [ 30 ] The car was ready for pick-up but Plaintiff left it under Defendant’s care while he was away on vacation. Mr. Farouk took the car out of his garage every day to put it on the street and took it back at night. He had no problem moving the car. For an unknown reason, when Plaintiff came to pick–up his car, there was a problem with the transmission. The cause of this problem is unknown. [ 31 ] It was Plaintiff burden to prove that this situation was due to Defendant’s negligence, which he failed to do.

The car had more than 200 000 km. Several things can go wrong with an old car. [ 32 ] Furthermore, Plaintiff chose not to repair the car but to send it to his family in Lybia for the parts, which included the engine installed free of charge by Defendant. Therefore, there is no reason why he should be awarded the cost of repair of the transmission as he chose not to repair it.

The Court will, therefore, not grant the amount claimed for the transmission. [ 33 ] As for the parking expenses, Plaintiff argues that he paid extra to add a parking spot to his lease, but did not use it for almost five (5) months while the car was at the garage. The evidence does not support this claim. The car was at the Garage for about one month in September and from the end of November until end of February. In cross-examination Plaintiff admitted that he bought a new car. He is unable to give the date of this purchase, but it was before going on vacation.

He obviously used his parking space for his new car. [ 34 ] Furthermore, he chose to leave his car at the Garage for more than two months while the car was ready to be picked-up. The Garage did not charge any fees for keeping the car on its premises for that period of time. The Court does not consider that the claim for the rental of the parking spot is well founded. [ 35 ] Plaintiff admitted that he did not lose any income because of the events. As for the impact on his nervous system and his blood sugar, the evidence is scarce.

Furthermore there are not direct link between these damages and the delay in repairing the car. FOR THESE REASONS, THE COURT: GRANTS defendant’s application for revocation of judgment; ANNULS , for all legal purposes, the judgment rendered by default on December 20 th , 2017 in the present file; DISMISSES Mr. Magid Alzidani claim against Auto Sounboul and Osama Farouk Kebala; CONDEMNS Mr. Magid Alzidani to pay to Auto Sounboul and Osama Farouk Kebala the legal costs of $ 252. __________________________________ GENEVIÈVE COTNAM, J.C.Q. Date of hearing : April 17, 2018