2016 QCCQ 8874, 2016 QCCQ 8874

Bitton c. Sukhoo 2016 QCCQ 8874 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148672-159 DATE: July 13, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ALBERT BITTON Plaintiff v. TAMESHWAR SUKHOO and AUTO SUKHOO INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Albert Bitton, alleges that he purchased a Honda Civic vehicle from the Defendants, Tameshwar Sukhoo and / or Auto Sukhoo Inc. (“Sukhoo”), on October 2, 2014, on the condition that the Defendants repair a faulty air-conditioning system. [ 2 ] He sues for the estimated costs of repairing the air-conditioning which the Defendants fail to do, and he also sues for the replacement of the faulty radiator by Auto Sukhoo Inc., and a repair to the exhaust system. [ 3 ] In the written Contestation, the Defendants deny having sold the car, which they allege was sold by “Mrs Lakshmi”, but Mr Sukhoo admits having promised to repair the air-conditioning, but only if it was defective at the time the sale. [ 4 ] He alleges that the air-conditioning was in fact damaged, because of an accident that occurred after the sale.

ISSUES [ 5 ] The Court must determine whether the Plaintiff has a valid claim: 1) for the estimated costs to repair the air-conditioning; 2) for the replacement of the radiator; 3) for a repair to the exhaust system. FACTS [ 6 ] In the evidence, it became clear that Mr Sukhoo was the owner of the car that was driven by his daughter.

It doesn’t really matter who the true beneficial owner was as between him and his daughter in that the vehicle was registered in the name of Sukhoo Tameshwar, and was transferred on the SAAQ’s registry to Mr Bitton on October 2, 2014 (P-9). [ 7 ] There is no legal relationship established in the evidence between the Plaintiff and Auto Sukhoo Inc. [ 8 ] Mr Sukhoo personally made the promise to repair the air-conditioning under a document dated October 2, 2014, signed at the time of the sale. [ 9 ] The document reads: “I T.

Sukhoo will repair A/C on a red Honda Civic, which I sold to Albert Bitton next spring”. [ 10 ] At a certain time after the sale, Mr Bitton went to the garage operated by Mr Sukhoo, Auto Sukhoo Inc., and had the radiator

replaced.

He alleges, however, that the radiator was an old used radiator that was in poor condition, and that when he noticed this, he had it replaced with a new radiator purchased from Larco Auto Plus for $ 85.40 (P-2). [ 11 ] Mr Sukhoo admits that the radiator was replaced by his garage on November 19, there is no bill for the work, but both parties agree it cost $ 130 cash. [ 12 ] Sukhoo Auto Inc. produced an invoice from Pièces d’Auto Sources Inc. (D-2) dated November 19, 2014 is a complete new radiator set for a total $ 75.22. [ 13 ] Mr Bitton provided photographs which he claims show the radiator installed by Sukhoo Auto, which appears to be affected by rust. [ 14 ] The invoice that Mr Bitton provides to prove that he purchased a new radiator from Larco is not particularly helpful, because it shows a sale to “Ordre des ingénieurs du Québec”. [ 15 ] The claim that is made for repairs to the muffler is somewhat impaired by the fact that there was no written letter of demand, as was the case as well for the radiator, before the work was done, and there is no invoice or other means of proof to show that the work was actually carried out. [ 16 ] The parties made an appointment to carry out the repairs to the air-conditioning after Mr Bitton sent a letter of demand dated July 3, 2015 (P-4). [ 17 ] His claim is for the amount he paid to purchase the car, and the allegation made is that Sukhoo has refused to set a date to have the work done. [ 18 ] A formal response dated July 19, 2015 (P-5), was a confirmation that Mr Sukhoo did promise to fix the air-conditioning and suggesting that an appointment be made. [ 19 ] Finally, in mid-august 2015, the car was brought in and Mr Sukhoo and a mechanic looked at it.

Mr Bitton was invited to wait in the waiting-room.

Mr Sukhoo testifies that the pressure of the cooling fluid reached the appropriate levels when the air-conditioning system was functioning but that the condenser could not carry out a proper cooling of the fluid, because a fan adjacent to the condenser was not functioning because it was blocked. [ 20 ] He provides photographs to show that there is curve to the condenser and asserts that when he examined it, he saw the fan placed along the side at the surface and the condenser was not in a position to operate because of this curve. [ 21 ] He asserts as well that the curve in the condenser must have been caused by an accident, and in fact, the car shows signs of an accident, namely the bumper had been replaced and brackets that hold the light fixtures in place were broken and the lights were held with makeshift tie raps. [ 22 ] A very heated discussion ensued that day between the parties with Mr Sukhoo insisting that the air-conditioning system required repairs because of damage, and Mr Bitton asserting that the damage already existed when he purchased the car. [ 23 ] At the hearing, Mr Bitton admitted that the car had been in a minor accident that had resulted in only certain minor damages.

He asserts that he changed the bumper himself, did not report the incident to his insurers, and that the bumper had already been damaged before the event anyway. [ 24 ] He also points out that on a picture (D-1) taken of the car before it was sold; the front-hood shows signs of being badly aligned, which suggest that the car had already been in an accident. ANALYSIS [ 25 ] Much of the evidence in the case is testimonial and is inconclusive, and the case must be decided according to principles that establish burdens of proof. 1.

The muffler [ 26 ] There is no invoice to establish a repair to the muffler and there was no written demand made to the Defendants to repair it, prior to Mr Bitton allegedly carrying out the work at another shop. [ 27 ] Mr Bitton says that a mechanic at Sukhoo tightened some bolts to hold the muffler in place and that this did not solve the problem. This claim, however, fails, because there is no evidence that is reliable of a putting in default. 2. The radiator [ 28 ] Mr Bitton alleges that he had to have the radiator fixed, and produces copies showing a very badly rusty radiator, allegedly taken July 31, 2015.

The invoice that Mr Bitton produces to prove that he purchased a radiator for $ 85.40 is, as was mentioned above, made out to Ordre des ingénieurs du Québec. [ 29 ] The testimony of Mr Bitton, as to the poor quality of the radiator installed, has no probative value, given that he is not a mechanic. 3. Air-conditioning

[ 30 ] Mr Sukhoo admits having promised to repair the air-conditioning unit as a condition of the sale of the vehicle, and he admits that he would have fixed it, if it were a problem that existed at the time of the sale. [ 31 ] He states that the air-conditioning functioned properly at the time of the sale, but that it was hard to demonstrate this fact, because it was the fall and the temperatures such that the system would not necessarily turn on. [ 32 ] He alleges that he kept the car in good condition for his daughter who was using it regularly. [ 33 ] This part of the testimony is not particularly convincing, because, if the air-conditioning worked well at the time of the sale, it would have been a simple matter to demonstrate this by running the air-conditioning at the highest setting, and measuring the temperature of the air or by verifying the pressure of the fluids and the functioning of the compressor and fan.

In that case, there would have been no reason for a promise to repair it. [ 34 ] It is more likely that there was something that needed repair. [ 35 ] The testimony of Mr Sukhoo’s former employee confirmed Mr Sukhoo’s testimony that the condenser fan was blocked because of a slight deformation. The deformation may have been caused by an accident, but the damages that are apparent from the photographs are very minor.

There was also a discrepancy between Mr Sukhoo’s testimony that the fan is behind the condenser and his former employee’s testimony that it is in front. [ 36 ] The damage that is visible on the car exterior is in the vicinity of the driver-side headlight, whereas the apparent curve in the condenser is not localized there. [ 37 ] The Defendants had the burden of proof on the issue. [ 38 ] In the Court’s view, it is more likely than not that the air-conditioning required some repair, otherwise Mr Sukhoo would not have made the promise and, the evidence that the air-conditioning didn’t work because of an accident, is inconclusive: there was inadequate explanation of how a minor bump to the car would result in the air-conditioning being inoperative. [ 39 ] The estimate produced (P-12) is plausible for an amount of $ 902.27. [ 40 ] This is, however, a new system, which would have added value to the car, as opposed to a repair to an existing system, which the evidence shows was necessary at the time of the sale. [ 41 ] The Court will therefore reduce it by a factor of 50%, using its discretion to arbitrate a fair amount. [ 42 ] Because each party was partly successful, there will be no award as to costs.

FOR THESE REASONS, THE COURT: GRANTS the Demand in part; CONDEMNS the Defendant Tameshwar Sukhoo, to pay the Plaintiff, the amount of $ 451.13, with interest at the legal rate, plus the additional indemnity stipulated in

section 1619 of the Civil Code of Quebec , calculated from July 13, 2015; DISMISSES the Demand against the Defendant Auto Sukhoo Inc.; Each party paying its costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: June 27, 2016