2013 QCCQ 3082, 2013 QCCQ 3082

Fedenko c. Home Depot of Canada 2013 QCCQ 3082 COURT OF QUEBEC "Small Claims Division" CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-32-126435-108 DATE : April 9, 2013 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ NICK FEDENKO Plaintiff v. HOME DEPOT OF CANADA and VANITÉS B.F.

LTÉE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence; [ 2 ] WHEREAS plaintiff is suing defendants, in damages, alleging a "design flaw" of a bathroom vanity set, which he bought at one of defendant Home Depot's stores and which was manufactured by defendant Vanités B.F.

Ltée (hereafter "Vanités"); [ 3 ] WHEREAS defendant "Home Depot of Canada" failed to contest the action; [ 4 ] WHEREAS plaintiff purchased the bathroom vanity set, on November 3, 2009; [ 5 ] WHEREAS plaintiff claims that, in August, 2010, the said "design flaw (caused) the doors of the pharmacy to burn and catch on fire"; [ 6 ] WHEREAS plaintiff had the burden of proof ( articles 2803 and 2804 of the Civil Code of Quebec ); [ 7 ] WHEREAS plaintiff did not produce any technical evidence, written or otherwise, to support his allegations regarding the said "design flaw"; [ 8 ] WHEREAS there is no evidence that a "fire occurred"; [ 9 ] WHEREAS there is no technical evidence to show that the recommended "fluorescent compact bulb type per 20 of 9 watts" emitted enough heat to cause the damages seen in the photographs filed as exhibit P-6; [ 10 ] WHEREAS the same can be said of a 50 watt bulb of the same type; [ 11 ] WHEREAS, furthermore, plaintiff refused to meet with Vanités' insurance adjustor, to make a declaration and to allow the adjustor to examine the vanity set; [ 12 ] WHEREAS, moreover, Vanités asked plaintiff to supply photographs of the alleged damages, that which he refused to do; [ 13 ] WHEREAS , on August 19, 2010, Vanités offered to visit plaintiff in order to inspect the vanity set and the alleged damages, with a view to carry out the necessary repairs, that which plaintiff refused; [ 14 ] GIVEN the absence of preponderant evidence with regards to fault and liability on defendants' parts; [ 15 ] WHEREAS , finally, and notwithstanding the foregoing, the amount claimed by plaintiff is grossly exaggerated; [ 16 ] GIVEN the photographs filed into evidence as exhibits P-5 and P-6; [ 17 ] WHEREAS it is clear that plaintiff made no effort to mitigate his damages; WHEREFORE THE COURT HEREBY:

DISMISSES plaintiff's application, with costs in favour of defendant Vanités B.F. Ltée. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing : March 11, 2013