2011 QCCQ 4838, 2011 QCCQ 4838

Popliger c. Centre-ville Volkswagen 2011 QCCQ 4838 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-121630-109 DATE: May 10, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ MINA POPLIGER […] Montréal Québec […] Plaintiff v.

CENTRE-VILLE VOLKSWAGEN 324 Peell Montréal Québec H3C 2G2 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Mina Poplinger, is suing Defendant, Centre-Ville Volkswagen Service, for $1,850, claiming Defendant failed to properly repair her car following an accident. Defendant denies the claim. The evidence: [ 2 ] Plaintiff had a car accident on August 3, 2009. Her leased Volkswagen was then two months old. She brought her vehicle to Defendant for repair.

When she returned on September 7, 2009, several items had not been properly done. [ 3 ] Plaintiff brought her car back to Defendant in December. After the repairs were carried out, Plaintiff obtained the car on December 15th. She noted some items were still unsatisfactory but since they were minor, she did not complain. [ 4 ] Defendant claimed Plaintiff's insurance adjuster verified the car and was satisfied.

On December 18, 2009, Plaintiff gave Defendant the insurer's cheque. [ 5 ] Plaintiff subsequently put the drivers' seat into a reclining position and, for the first time, she noted there was a gash at the bottom of the leather seat cover. On December 22, 2009, she informed Defendant of this damage. [ 6 ] Defendant advised Plaintiff it was not accepting responsibility for the damaged seat covers. The sales director claimed Plaintiff had damaged the seat. [ 7 ] On January 18, 2010, Plaintiff wrote to Defendant in a final attempt to resolve the seat cover issue.

She also listed several other items that she considered defective, including the torn rubber lining, bubbly paint and the badly aligned hood. [ 8 ] Plaintiff brought her vehicle to Volkswagen Prestige, which estimated the cost to repair and paint the door, fix the hood and align the panel, fix the rubber lining and change the seat cover to come to $1,127.51. Plaintiff is claiming this sum as well as damages for the time spent to deal with these problems. [ 9 ] Defendant denied responsibility. It considers Plaintiff would have noted any damage had it been present when she came for the car.

As for the other items, Defendant did not see any bubbles in the paint and had adjusted the car's hood.

Analysis: [ 10 ] Defendant, having provided the repair services to Plaintiff's vehicle, was bound to act in accordance with the rules of the trade. It had an obligation of result. [ 11 ] Following the repair, Plaintiff complained of the following defects: torn rubber insulation on the front passenger side door, the existence of paint bubbles inside the rear passenger door, the lack of adjustment of the back hood and the sides of the vehicle and a scratch on the bumper.

Plaintiff also complained the car was returned with a tear in the crease of leather cover on the drivers' side. [ 12 ] At the hearing, the Court examined the car and found the alleged scratch and lack of alignment to be imperceptible. Defendant had repaired the rubber trim and if the tear in the rubber was present after the repairs, the Court considers it would have been noted by the claims adjuster.

With respect to the paint bubbles, Defendant undertook to repair the affected area inside the rear passenger door. [ 13 ] As for the torn seat, the tear was not visible when the seat was in an upright position but only when it was reclined. While Defendant maintains Plaintiff caused the tear, it appears that it would be difficult to create such damage by sitting in the driver's seat. [ 14 ] Defendant had replaced the front seat covers as part of its overall repairs.

In light of where the tear is situated and given that Defendant had replaced the bottom seat cover, the Court considers that the preponderant evidence is that the seat was damaged during the repairs. [ 15 ] Accordingly, the Court grants the estimated cost of the seat replacement ($499) plus 1.8 hours of labour ($73.50) for a total of $572.50 plus tax. As for the damages requested for trouble and inconvenience, the Court, in its discretion, grants $100.

FOR THESE REASONS, THE COURT: TAKES COGNIZANCE of Defendant Centre-Ville Volkswagen Service's undertaking to repair the bubbled paint inside the rear passenger door; ORDERS Defendant Centre-Ville Volkswagen Service to respect its undertaking; GRANTS , in part, Plaintiff Mina Poplinger's action; CONDEMNS Defendant, Centre-Ville Volkswagen, to pay Plaintiff, Mina Poplinger, $672.50, plus tax, plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since January 18, 2010, plus judicial fees of $99. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: March 8, 2011