2017 QCCQ 12804, 2017 QCCQ 12804

Arellano c. 9097-6713 Québec inc. (Elegance Leasing) 2017 QCCQ 12804 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152824-167 DATE: October 30, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ MARILYN ARELLANO Plaintiff/cross-defendant v. 9097-6713 QUÉBEC INC. doing business under the name of “ELEGANCE LEASING” Defendant/cross-plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff offered to buy a used 2007 Jeep Liberty vehicle from defendant (hereafter “the merchant”), based on an ad which merchant placed on an internet site in English and in French. [ 2 ] Both versions of the ad were false and misleading, as the vehicle did not have the cruise control feature, which plaintiff wanted and needed. [ 3 ] Furthermore, plaintiff’s offer to purchase was conditional upon road testing the vehicle. [ 4 ] Although the vehicle was not ready for a road test, when plaintiff first saw it, the merchant exacted a $500.00 deposit, from plaintiff, under false pretenses.

Merchant not only promised plaintiff that the vehicle would be inspected and ready for a road test in 3 days, but also promised plaintiff that said deposit would be returned, if she wasn’t fully satisfied with same.

It is under these conditions that the merchant had plaintiff sign exhibit P-2. [ 5 ] When plaintiff came back 3 days later to take the vehicle for a road test, it was in the same state. [ 6 ] In good faith, plaintiff nevertheless took the vehicle for a road test, at which time she discovered that it did not have the desired cruise control feature, contrary to what was falsely alleged in the internet advertisements. It is to be noted that the merchant never informed plaintiff of same. [ 7 ] Accordingly, plaintiff rescinded her promise, and asked that the merchant return her deposit.

The merchant acquiesced to the withdrawal of plaintiff’s promise, but refused to refund her deposit as promised. [ 8 ] Articles 40 , 41 , 42 , 219 and 228 and 272 of the Consumer Protection Act , [1] a law of public order, read as follows: “40. The goods or services provided must conform to the description made of them in the contract.

41. The goods or services provided must conform to the statements or advertisements regarding them made by the merchant or the manufacturer. The statements or advertisements are binding on that merchant or that manufacturer. 42. A written or verbal statement by the representative of a merchant or of a manufacturer respecting goods or services is binding on that merchant or manufacturer. 219. No merchant, manufacturer or advertiser may, by any means whatever, make false or misleading representations to a consumer. 228.

No merchant, manufacturer or advertiser may fail to mention an important fact in any representation made to a consumer. 272. If the merchant or the manufacturer fails to fulfil an obligation imposed on him by this Act, by the regulations or by a voluntary undertaking made under

section 314 or whose application has been extended by an order under

section 315.1, the consumer may demand, as the case may be, subject to the other recourses provided by this Act,(

a) the specific performance of the obligation;(

b) the authorization to execute it at the merchant’s or manufacturer’s expense;(

c) that his obligations be reduced;(

d) that the contract be rescinded;(

e) that the contract be set aside; or(

f) that the contract be annulled, without prejudice to his claim in damages, in all cases. He may also claim punitive damages.” [ 9 ] The merchant failed to abide by the above provisions, and is therefore liable for the reimbursement of the $500.00 deposit. WHEREFORE THE COURT HEREBY: GRANTS plaintiff's application; DISMISSES defendant’s cross-demand; CONDEMNS defendant to pay plaintiff the sum of $500.00, plus interest at the legal annual rate of 5% as of May 27, 2016, and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , as of May 27, 2016 and legal costs in the amount of $100.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: October 3 rd , 2017 [1] Consumer Protection Act , CQLR, c. P-40.1.