2018 QCCQ 7517, 2018 QCCQ 7517

Kilpatrick c. Ady Renovation JL3728 2018 QCCQ 7517 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-700665-179 DATE: November 1 st , 2018 ______________________________________________________________________ BY THE HONOURABLE SYLVIE LACHAPELLE, J.C.Q. ______________________________________________________________________ JOHN KILPATRICK -and- ELIZABETH BRUINEMAN Plaintiffs v.

ADY RENOVATION Defendant ______________________________________________________________________ JUDGMENT BY DEFAULT ______________________________________________________________________ [ 1 ] In the absence of the Defendant, the Court proceeds by default. [ 2 ] The Court is seized with a demand initiated by Plaintiffs John Kilpatrick and Elizabeth Bruineman pursuant to which Plaintiffs allege that the windows installed were not what they bought from Defendant as appears from contract P-1 dated March 30, 2016. [ 3 ] Plaintiffs paid $8,000.00 on a total amount of $9,320.00 to buy tilt windows whereas they received lift and pull-out windows which they are not able to lift due to back pain. [ 4 ] Plaintiffs alleged that although they asked Defendant numerous time to replace the windows installed for those they ordered, Defendant refused to do so. [ 5 ] Plaintiffs also testified that they retained services of window cleaners as they are not able to lift the windows which is the reason why they bought tilt windows.

They had to pay for these services. [ 6 ] Although, Plaintiffs sent a letter of demand asking for the payment of the amount of $10,000.00 the Defendant refuses or neglects to do so. [ 7 ] Provision 40 of the Consumer Protection Act prevails that : 40.

The goods or services provided must conform to the description made of them in the contract. [ 8 ] Given that the proof reveals that Defendant failed to deliver the windows bought by Plaintiffs, Plaintiffs are well-founded to ask that the contract be set aside and consequently are entitled to be reimbursed of the price paid of $8,000.00, in application of provision 272 CPA which reads as follows: 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 ] Considering that Plaintiffs have established on the balance of probability that they incurred costs and experienced trouble and inconveniences due to Defendant’s refusal to execute their contractual obligations.

FOR THESE REASONS, THE COURT: [ 10 ] GRANTS Plaintiff’s demand; [ 11 ] CONDEMNS Defendant to pay to Plaintiffs the amount of $10,000.00 with interests and the additional indemnity provided by provision 1619 C.c.Q. as of the letter of demand dated November 15, 2016; [ 12 ] PLUS ADDITIONAL FEES OF $100. __________________________________ SYLVIE LACHAPELLE, J.C.Q. Date of hearing: May 14, 2018