2023 QCCQ 4818, 2023 QCCQ 4818

Avila c. Laser Whisperer 2023 QCCQ 4818 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS N°: 760-32-702651-227 DATE : July 13, 2023 ______________________________________________________________________ BY: M tre VASIL PETRISHKI, Spécial clerk ______________________________________________________________________ DIANA AVILA APPLICANT vs.

THE LASER WHISPERER DEFENDANT ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] THE COURT , after reviewing the proceedings and the proof, renders the present Judgment. [ 2 ] WHEREAS Applicant seeks a Judgment against Defendant for a sum of $13,500.00 on the grounds that the laser device unit which she purchased was defective and unfit for the purposes for which it was intended, that Defendant breached the conventional warranty included with the sale, that Defendant took possession of the device in order to repair it and never returned it to Plaintiff ; [ 3 ] CONSIDERING that the Application was served upon Defendant on January 10, 2023; [ 4 ] CONSIDERING the default of Defendant to answer the Application within 20 days after the notification [1] ; [ 5 ] CONSIDERING the above default of the Defendant and the necessity for the Court to hear the Applicant’s evidence as provided in art. 552 in fine of the Code of Civil Procedure of Quebec ; [ 6 ] CONSIDERING that the hearing was scheduled on July 10, 2023; [ 7 ] CONSIDERING the Application, the statement deemed to be an affidavit (art. 544 (1) of the Code of Civil Procedure ) and exhibits P-1 to P-5 [2] and the testimony of Ms.

Diana Avila; [ 8 ] CONSIDERING that the contract between Applicant and Defendant is a contract of sale; [ 9 ] CONSIDERING that the Consumer Protection Act P-40.1 does not apply to the contract between Plaintiff and Defendant; [ 10 ] CONSIDERING articles 1458, 1611 and following and 1708 and following of the Civil code of Quebec ; [ 11 ] CONSIDERING that he contract of sale between Plaintiff and Defendant, Exhibit P-5 contains a conventional warranty; [ 12 ] CONSIDERING that Plaintiff being a beneficiary of a conventional warranty such as the one stipulated in the contract of sale does not have the burden of proving that the good sold was afflicted with a latent defect at the time of the sale, nor must she prove the cause of the malfunction; [ 13 ] CONSIDERING that all Plaintiff needs to prove to trigger such a conventional warranty is to establish that the good did not function during the period of warranty; [ 14 ] CONSIDERING that Defendant never returned the laser device to Plaintiff; [ 15 ] CONSIDERING the legal principles applicable: in contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted; in case of intention or gross fault of the debtor, the damages may

include only what is an immediate and direct consequence of the non-performance [3] ; [ 16 ] CONSIDERING that Applicant has proven her action against Defendant pursuant to Articles 2803 and 2804 of the Civil Code of Quebec for $13,500.00 for the price of the device sold by Defendant, the shipping fees paid by Applicant and the contractual damages suffered by Plaintiff; [ 17 ] CONSIDERING that the Plaintiff is entitled to interest at the legal rate from the date of default [4] ; [ 18 ] CONSIDERING that a creditor must put his debtor in default in writing to perform the obligation within a reasonable time after the demand except when the debtor is in default by the terms of the contract itself as stipulated in

Article 1594 of the Civil Code of Quebec or by the sole operation of the law as stipulated in

Article 1597 of the Civil Code of Quebec . [ 19 ] CONSIDERING the evidence provided, Applicant is entitled to interest at the legal rate from the date of default, being January 10, 2023; [ 20 ] CONSIDERING that the additional indemnity contemplated by

Article 1619 of the Civil Code of Quebec should be awarded; FOR THESE REASONS, THE COURT: [ 21 ] GRANTS the Application; [ 22 ] CONDEMNS Defendant to pay to Applicant the sum of $13,500.00 with interest at the legal rate of 5.00% and the additional indemnity provided for in

Article 1619 of the Civil Code of Quebec as of January 10, 2023, being the date of default; [ 23 ] CONDEMNS Defendant to pay to Applicant the legal costs of $217.00. __________________________________ M tre Vasil Petrishki, Special clerk Ms. Diana Avila, [...], Beaconsfield, Québec, [...] Applicant The Laser Whisperer, 9617, Joanne Avenue, Grand Bend, Ontario, N0M 1T0 Defendant Hearing date : July 10, 2023