2011 QCCQ 11160, 2011 QCCQ 11160

Gut c. Zach 2011 QCCQ 11160 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-115772-099 DATE: August 29, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ RICHARD GUT […], D.D.O., Québec, […] Plaintiff v.

WIESLAW ZACH […], D.D.O., Québec, […] Defendant/Plaintiff in warranty ALUMINIUM ATLANTA INC. 8330 Pascal Gagnon, St-Léonard, Québec, H1P 1X4 Defendant in warranty ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Richard Gut has sued Wieslaw Zach for $1,850, alleging that the patio doors he purchased from Mr. Zach were improperly installed. Mr. Zach denied the claim and called Aluminium Atlanta inc. in warranty. The evidence: [ 2 ] Mr. Gut contacted Mr. Zach to have patio doors installed in his house. Mr.

Zach installed the doors at the end of November 2007 for $1,850. [ 3 ] Mr. Gut complained the doors arrived without argon gas; the panels of his doors were replaced, after the purchase. However, the argon gas had been injected into the panels three years before, such that the panels were already three years old, when delivered to Mr. Gut. [ 4 ] The problem regarding the argon gas and others were ultimately resolved, except for the issue relating to the door closing. When the outside panels of the doors were pushed together to close them, the aluminium edge of each door banged against the other. [ 5 ] Mr.

Zach tried to fix the doors on two occasions but was unsuccessful. A representative of the manufacturer, Aluminium Atlanta inc., inspected the doors and tried to adjust them. Mr. Gut claimed the representative could not resolve the issue and had concluded that the problem stemmed from the installation. [ 6 ] Mr. Gut asked Mr. Zach to deal with the problem. Mr. Zach was to return at the beginning of July but did not do so. In August, Mr. Gut advised Mr. Zach that if he did not repair the doors, Mr. Gut would purchase others from another company. Mr. Zach

failed to adjust the doors and in October 2008, Mr. Gut bought new ones. He still has the original doors. [ 7 ] Mr. Zach maintained that after removing the aluminum from the top of the panel, the doors were working properly. He claimed Aluminium Atlantic's representative also considered this the case. Mr. Zach added that he had not finished the job, intending to return to replace the aluminum but Mr. Gut had already bought new doors. [ 8 ] Mr. Zach contended that the new doors Mr. Gut bought had wood finishing inside. Mr. Zach believed Mr. Gut simply did not like the original doors and wanted ones with wood. Mr.

Zach also contented Mr. Gut contracted with Atlantic Aluminium and that there was no lien de droit between Mr. Gut and himself. Analysis: [ 9 ] Mr. Zach claims he told Mr. Gut to deal directly with Aluminium Atlanta. Mr. Zach contends that Mr. Gut bought the doors from that company and not from himself. As for the price, Mr. Zach submits that it came to $1,650 including tax, rather than $1,700 plus tax. Since Mr. Gut subsequently wanted argon gas installed, he paid another $200. [ 10 ] The evidence indicates that Mr. Gut had no contact with Aluminium Atlanta at the time of sale. Mr.

Zach contacted Atlanta to obtain the doors; he obtained the money from Mr. Gut and remitted the funds to Aluminium Atlanta. [ 11 ] Furthermore, Mr. Zach lists the sum of $1,650 plus tax in his documents entitled “2007 – Income”. Had Mr. Gut purchased the doors directly from Atlanta, there would have been some documentation emanating from that company, either in the form of a contract or an invoice. However, no documentation was presented in this regard. Therefore, the Court concludes that Mr. Gut purchased the doors, which were manufactured by Aluminium Atlanta, from Mr. Zach. [ 12 ] As for the merits, Mr.

Zach claims that the issue relating to the door closing was resolved after the visit from an Aluminium Atlanta representative. However, both the documentary and testimonial evidence fail to support his position. [ 13 ] Given the evidence, including the explanation of how the doors are attached and how they close, the Court concludes that the doors Mr. Gut had purchased from Mr. Zach were improperly installed and failed to close properly. In addition, the glass panels Mr. Gut received, which housed the argon gas, were not new, which shortens their effective duration. In light of the foregoing, Mr.

Gut is entitled to be reimbursed the money he paid for the doors. [ 14 ] Mr. Zach instituted an action in warranty against Aluminium Atlanta. Having instituted this action, Mr. Zach has the burden of proving the responsibility of Aluminium Atlanta for the problems encountered. However, Mr. Zach did not raise any failings on the part of the company and accordingly, the Court cannot find Aluminium Atlanta liable for the present award.

FOR THESE REASONS, THE COURT: GRANTS Plaintiff's action; CONDEMNS Wieslaw Zach to pay Richard Gut the sum of $1,850 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since December 29, 2008 plus judicial fees of $98. PERMITS Wieslaw Zach to retrieve the doors, within 45 days from the date of this judgment, after giving Richard Gut ten (10) days notice, failing which Richard Gut may dispose of the doors. DISMISSES the action in warranty, without costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Dates of hearing: April 20, 2010 and June 14, 2011