2015 QCCQ 10498, 2015 QCCQ 10498

Agelopoulos c. Brick Warehouse Corporation 2015 QCCQ 10498 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-143836-148 DATE: July 14, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ NICK AGELOPOULOS […] Montréal, Qc […] Plaintiff v. THE BRICK WAREHOUSE CORPORATION 6867, boul. Newman La Salle, Qc H8N 3E4 and THE BRICK GP LTD. 6867, boul.

Newman La Salle, Qc H8N 3E4 and ENTREPÔT THE BRICK SEC Address for service : 16930, 114 Avenue Gowling Lafleur Henderson S.R.L . Edmonton, Alberta T5M 3S2 1, Place Ville-Marie, 37 ième étage Montréal, Qc H3B 3P4 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Nick Agelopoulos, purchased, on January 13, 2012, a brown sofa and loveseat set from The Brick (P-1).

The sale price of $ 2,645.53 included various warranties described in the sale document as “Full 5yr blanket coverage, bonus carekit, construction wty, master surface coverage”. [ 2 ] Mr Agelopoulos complains that as of August 2013, the sofa and loveseat started discolouring and the leather started turning rust-

orange in the seams. [ 3 ] The loveseat and sofa were re-stained by a technician performing the work under the warranties, but the problem reoccurred in May 2014, at which time Mr Angelopoulos was told by The Brick that his warranty had expired. [ 4 ] The Defendants declare in their contestation that the proper Defendant is Entrepôt The Brick SEC, a limited partnership formed under the laws of Manitoba (“The Brick”).

That party will be added to the list of Defendants. [ 5 ] The Brick alleges that it relies upon the warranty that was provided at the time of the sale which excludes “normal fading and discoloration, howsoever caused including without limitation fading and discoloration from sunlight”. [ 6 ] To resolve this action, the Court must determine: 1) Is The Brick in breach of its contract? 2) If so, what is the appropriate remedy?

FACTS [ 7 ] The bill describes the sofa as a “brown leather sofa” and the loveseat as a “brown loveseat”. [ 8 ] The representative of The Brick present at the trial, when he was shown the photographs showing material becoming unstuck along the seems of the leather fabric, showing a rust coloured base that this was not 100% leather, admitted that there are parts of the furniture that are made with a synthetic product, which is actually a material that appears to be leather that is applied to a synthetic surface. [ 9 ] Mr Agelopoulos states that he purchased the set based on the stipulation that is was to be leather.

He also states the obvious when he asserts that the un-sticking of the dark brown leather-like material from the surface of the furniture is not acceptable. [ 10 ] The Brick offered a $ 750 value in a settlement of the matter, persisting however in its defence, that the warranties are limited and that they were fulfilled when a technician re-coloured areas that had be come exposed.

ANALYSIS [ 11 ] On the Court’s understanding of the facts, Mr Agelopoulos purchased this set on the belief that he was buying a 100% leather sofa and loveseat set. [ 12 ] This was a reasonable belief because the person who sold him the set did not tell him otherwise.

The couch is described in the bill as a leather couch and since this was a matching set, there would be no reason to believe that the loveseat was not also leather nor that the backs of the furniture, nor any other part of them, would not be made from genuine leather. [ 13 ] On that basis alone, his misunderstanding as to the nature of the property he was buying is sufficient grounds to annul the sale.

His mistake was induced by the failure on the part of The Brick’s sale person to explain exactly what materials, if not leather, were use in the fabrication of these items. [ 14 ] This is a sale covered by the Consumer Protection Act (“CPA”) [1] . [ 15 ]

Article 38 of that law provides as follows: 38.

Goods forming the object of a contract must be durable in normal use for a reasonable length of time, having regard to their price, the terms of the contract and the conditions of their use. [ 16 ] The Brick makes much of the fact that these were items sold at a low price, lower than the regular price, and that genuine leather couches are much more expensive. [ 17 ] The Court rejects these arguments: if something is sold at a sale price, it must be of equal quality to an item that is sold at full price. [ 18 ] Despite the fact that these were pieces of furniture of a modest price, there were nevertheless sold as being leather, and a durability of less than a year and a half, for something that is supposedly covered by a 5-year blanket coverage, is certainly not a reasonable length of time. [ 19 ] If, after several years and the expiry of the warranties, the couch were to fade in colour or show signs of wear, this would certainly not be unreasonable.

But when a consumer spends a significant amount of money on a piece of furniture, he expects it to last at least as long as the warranties that he is induced to pay for. [ 20 ] Mr Agelopoulos gave The Brick the opportunity to correct the problem and even agreed to have the furniture submitted to repairs but, when the problem persisted, he was entitled to seek the resolution of the contract. [ 21 ] The CPA provides a full range of remedies where a merchant or manufacturer is at fault, including the resolution of the contract. [ 22 ] In awarding restitution, the Court will, however, take into account the fact that the Plaintiff used the furniture for around two years and, during most of this time, without taking the position that the sale should be cancelled.

Considering a probable life span of 10

years, the sale price to be restituted to Mr Agelopoulos should be reduced by 20%, equal to the portion of the use of the furniture that he had.

FOR THESE REASONS, THE COURT: PRONOUNCES the resolution of the contract of sale of a sofa and loveseat set formed between the parties on January 13, 2012 detailed in bill no: 01132390606001; GIVES EFFECT to the Plaintiff’s offer to allow the Defendants to obtain restitution of the property sold; PERMITS the Defendants to take possession of the property at the Plaintiff’s address, as long as 15 days written notice of the date and time, during business hours, they will do so, is provided to the Plaintiff; CONDEMS the Defendants solidarily to pay to the Plaintiff, as restitution of sale price, the amount of $ 2,116.42, together with interest at the legal rate and the additional indemnity provided by

article 1619 of the Civil Code of Québec , as of June 18, 2014; CONDEMS the Defendants solidarily to pay the Plaintiff’s judicial disbursement of $ 106. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: April 1, 2015