2014 QCCQ 3963, 2014 QCCQ 3963

Auto Rajcan c. 6807453 Canada inc. 2014 QCCQ 3963 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-127753-111 DATE: April 25, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ AUTO RAJCAN 2605 Deminiac Ville Saint-Laurent, Québec H4S 1E5 Plaintiff-Cross Defendant vs. 6807453 CANADA INC. 12133 boul.Gouin Ouest Pierrefonds, Québec H8Z 1V9 Defendant-Cross Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $2,317.96 for the repairs he made on Defendant's vehicle, a Freestar 2004 and other expenses.

Defendant denies owing the amount claimed by Plaintiff and files a cross-demand in the amount of $2,932.47 for the reimbursement of his partial payment ($1,400.00) and damages. THE CONTEXT [ 2 ] In November of 2011, Defendant's representative, Mr. Kumar, towed his Freestar 2004 (the vehicle) to Plaintiff. At the time, the odometer showed 210 500 km. Plaintiff provides Defendant with a price for the rebuilding of the transmission together with the replacement of the radiator and antifreeze, totalling an amount of $2,962.96. Mr.

Kumar agrees to the repairs which are done immediately. [ 3 ] Defendant paid an amount of $1,400.00 and provided Plaintiff with a postdated cheque of $1,617.76 for the balance. [ 4 ] Mr. Kumar got his vehicle back and drove it for approximately 10 days at which point he encountered the same problems. He then decided to stop the cheque given to Plaintiff for the balance. [ 5 ] Mr. Kumar explains that he called Plaintiff's representative, Mr. Singit, several times but had difficulty reaching him. Finally, Mr. Singit and Mr. Kumar spoke and their versions are contradictory. [ 6 ] According to Mr. Singit, he told Mr.

Kumar he had a one year warranty on the repairs and that he should take the vehicle back so that it would be checked by Plaintiff. According to Mr. Kumar, Mr. Singit rather wanted the balance of the repairs paid before executing his one year guarantee. [ 7 ] According to Mr. Kumar, he did not take the vehicle back to Plaintiff who insisted to be paid in full. He rather decided to keep his vehicle parked at his home several months. It is only in October of 2011 that he had the transmission rebuilt by RTA. [ 8 ] RTA's representative, Mr. Ouellette testified that on October 26, 2001, Mr.

Kumar paid $1,708.88 to have the transmission rebuilt. There is no indication of the odometer at the time the repairs were done by RTA nor the condition of the vehicle at the time of these repairs. [ 9 ] Defendant claims in his cross-demand the reimbursement of the partial payment he gave Plaintiff, an amount of $1,400.00, together with legal fees, towing, scan test and inconveniences, totalling $2,932.47. According to Defendant, the repairs done by Plaintiff had to be redone by RTA and Plaintiff should be held liable for all the damages he sustained.

ANALYSIS [ 10 ] The following sections of Civil Code of Quebec are relevant to the present case : 2098: A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay. 2100: The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence.

Depending on the nature of the work to be carried out or the service to be provided, they are also bound to act in accordance with usual practice and the rules of art, and, where applicable, to ensure that the work done or service provided is in conformity with the contract. Where they are bound to produce results, they may not be relieved from liability except by proving superior force. 2111: The client is not bound to pay the price before the work is accepted.

At the time of payment, the client may deduct from the price, until the repairs or corrections are made to the work, a sufficient amount to meet the reservations which he made as to the apparent defects or poor workmanship that existed when he accepted the work.

The client may not exercise this right if the contractor furnishes him with sufficient security to guarantee the performance of his obligations. [ 11 ] The contract between the parties is a contract for services, namely repairs to Defendant's vehicle. [ 12 ] Firstly, there is a presumption that the repairs done by Plaintiff were not acceptable considering that Defendant encountered the same problems he had with the vehicle prior to the repairs [1] .

Secondly, Defendant had the right to deduct from the price owed to Plaintiff a sufficient amount to meet the reservations with respect the poor workmanship at the time he took possession of his vehicle. Thirdly, Plaintiff had toward Defendant an obligation of result. In other words, Plaintiff had to repair the vehicle and solve the problems encountered by Defendant.

Considering the above, the Court finds that Defendant had the right to stop the cheque of $1,617.16 for the balance of the payment of the repairs, Plaintiff is not entitled to said amount. [ 13 ] Consequently, Plaintiff is not entitled either to the other expenses claimed which total 700 $. [ 14 ] As far as Defendant's cross-demand is concerned, no proof was offered regarding the odometer and⁄or the condition of the vehicle in October of 2011, at the time of the additional repairs.

There is no proof that the repairs made by RTA at that time are in anyway linked to the poor workmanship on the part of Plaintiff. [ 15 ] Finally, Defendant neglected to inform Plaintiff of this intention to have the repairs done by RTA, depriving Plaintiff of his right to examine the vehicle prior to said repairs. [ 16 ] Considering the above, the Court must dismiss Defendant's Cross-Demand. FOR THESE REASONS, THE COURT: DISMISSES Auto Rajcan's claim against 6807453 Canada Inc.

DISMISSES 6807453 Canada Inc.'s claim against Auto Rajcan; EACH PARTY assuming their costs. __________________________________ JULIE VEILLEUX, J.C.Q. Dates of hearing: November 4, 2013 and March 25, 2014