2019 QCCQ 4125, 2019 QCCQ 4125

Teimoori c. Hussain 2019 QCCQ 4125 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-703342-172 DATE: July 5, 2019 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MEHDI TEIMOORI Plaintiff v.

SAQUIB HUSSAIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mehdi Teimoori, purchased a 2012 Nissan Sentra from the Defendant, Saquib Hussain, on October 5, 2017. [ 2 ] He sues for the return of the sale price of the vehicle, $4,600.00 plus the price he paid to have the car inspected, $40.00, and $115.00 that he spent for an air-conditioning repair after the sale. [ 3 ] He alleges that Mr.

Hussain failed to inform him, in reply to specific questions, that the car was not a used car but rather a rebuilt car. [ 4 ] He asserts as well that Mr. Hussain, in response to specific questions prior to the sale, confirmed that the air conditioning was in good working order, while in fact it required a repair for which Mr. Teimoori alleges having spent $115.00. [ 5 ] The Letter of Demand [1] gave the option to Mr.

Hussain to pay the amount of $1,000.00 or take the car back and refund the total amount paid of $4,715.00 plus taxes, within five days. [ 6 ] A judgment was rendered by default by the special clerk on December 6, 2018, condemning Mr. Hussain to pay the amount of $1,000.00 by way of reduction of sale price, together with interest and legal costs. [ 7 ] Mr.

Hussain, when he became aware of the judgment, made an application for revocation of judgment on December 27, 2018. [ 8 ] A Judge of this Court decided that the grounds alleged in support of the application for revocation appeared sufficient and the case was scheduled for a hearing on the revocation, and, depending on the outcome, on the merits. [ 9 ] The Court presently seized granted the revocation and proceeded to re-hear the case and now renders judgment on the merits. [ 10 ] There is no written contract for the sale of the vehicle; the parties simply proceeded to a transfer at the office at the SAAQ, upon payment of the sale price and the applicable taxes. [ 11 ] The parties’ version of the discussion that led to the sale are contradictory in some aspects. [ 12 ] It is not contested that Mr.

Hussain referred Mr. Teimoori to a mechanic that he knew and that Mr. Teimoori paid to have this mechanic inspect the vehicle. Mr. Teimoori was satisfied with the results of the inspection before agreeing to the sale. [ 13 ] Both parties admitted that there was some discussion about the nature and quality of the vehicle. Mr. Teimoori says he asked him for the history, whether there had been any major problems, accidents or any rebuilding to which Mr. Hussain replied no, that there was no issue. [ 14 ] Mr. Teimoori insists as well that he asked about the air conditioning, to which Mr.

Hussain replied that he should not be worried, the air conditioning worked well. [ 15 ] After the transfer took place at the SAAQ, Mr. Teimoori received a registration card on which it is clearly written, in French, “ reconstruit ” below the identification number (serial number). [ 16 ] Mr. Teimoori states that when he noticed this, after completing the sale, he immediately confronted Mr. Hussain about it, to which Mr. Hussain replied that no, the car was not rebuilt. Mr. Teimoori, soon after using the car noticed that the air conditioning did not provide any cooling and he also confronted Mr. Hussain about this.

[ 17 ] He states that he brought the car to a mechanic who, for $115.00, made a repair that was effective for the air-conditionning problem. [ 18 ] Mr. Hussain does not deny that there was discussion preceding the sale, as to whether the car was in good condition; to which he replied, according to his own knowledge and belief, that there was no major problem with the car. [ 19 ] He had purchased it a few month earlier for approximately $5,200.00 in a private sale and had driven it approximately for 5,000 km before he decided to sell it.

He sold the car not because he was not satisfied with it, but simply because he was experiencing financial difficulty and needed to raise some money. [ 20 ] He states that he did not use the air conditioning himself because of allergies. He suggests that the repair that Mr. Teimoori, apparently, carried out was probably limited to the replacement of cooling fluid, and that there was therefore no serious problem with the air conditioning.

Analysis [ 21 ] The question of a reduction of price would depend upon the Plaintiff fulfilling the burden of proving that the rebuild vehicle had significantly less utility and value as compared to an identical vehicle that had never undergone any repairs required because of an accident. [ 22 ] Mr. Teimoori admitted that he could not establish such a difference in value, but that his case was more a question of non- pecuniary prejudice resulting from the dishonesty of the Defendant who knew that the car was not simply a used car but rather a rebuilt vehicle. [ 23 ] Mr.

Teimoori alleges that “… the deal was not based on truth and this is cause my family and I to suffer emotional consequences from it. Since then I founded difficult to trust anybody here in my new country”. [sic] [ 24 ] Mr.

Teimoori reiterated to the Court that the case was not a question of money, but rather of his deception and moral indignation at having been misled, and disappointment because he came to Canada from another country, hoping that Canada would be a place where there would be respect and trust. [ 25 ] In order to establish the case against the Defendant, the Plaintiff has the burden of proving that Mr. Hussain knew that the car was rebuilt, that this was a principal consideration on his part as purchaser and that Mr. Hussain deliberately misled him in this regard. [ 26 ] The Court accepts the sincerity of Mr.

Hussain who states that he purchased the car, which was in good condition at the time, and did not become aware of the fact that it had been “rebuilt” until after the sale, when Mr. Teimoori raised the issue. [ 27 ] When contracts are not written, each party may have different recollections of the discussions leading to the contractual consent. [ 28 ] The probative value of testimony is inherently weak, in such contractual circumstances, when the testimony is contradictory. Here, the Court does not find one witness to be more credible than the other.

Thus, the Plaintiff does not discharge his burden of proof. [ 29 ] Mr. Hussain spoke English very poorly and it is not altogether clear that he would have understood all the subtleties of Mr. Teimoori’s questions. [ 30 ] From Mr. Hussain’s point of view, he was asked whether the car had any major issues: as far as he knew it, it did not. [ 31 ] Mr. Hussain points out that Mr. Teimoori could have obtained a Carproof report before agreeing to purchase the car. The Carproof that Mr.

Teimoori produces in the case, that he obtained after the sale, shows that there was an inscription dated August 25, 2017 mentioning “rebuilt / rebuildable”. [ 32 ] The Carproof refers to the Canadian registration, under the jurisdiction of Quebec, as rebuilt / rebuildable, salvage vehicle which had been repaired, it must have past inspection to be registered. [ 33 ] The Carproof report simply points out that, according to the SAAQ registration, the car was rebuilt, meaning that it had past the SAAQ inspection as such. [ 34 ] The evidence does not establish that a vehicle that has been rebuilt is of less quality and utility as a used car that has a similar odometer reading.

It may in fact be of equal or better value and fiability. [ 35 ] In this case, at the time of the rebuilding, August 25, 2017, the odometer reading was 112,221 km.

Is a rebuild car that is certified by the SAAQ of less value than a car of the same number of kilometres, that has not been rebuilt, because it has not undergone an accident? [ 36 ] It is impossible to answer such a question because it would depend upon the degree to which the hypothetical used car has been maintained and serviced, and the manner in which it has been driven. [ 37 ] The Court cannot consider that the Plaintiff has established that the car he purchased was of less value and utility than the car he expected to purchase. [ 38 ] As well, the fact that Mr.

Teimoori learned only after the sale that the car was considered by the SAAQ as being “ reconstruit ” is a fact that he could have learned by making the inquiry in the SAAQ registry or by simply by asking Mr. Hussain to show him his registration card.

[ 39 ] Apparently, Mr. Teimoori did not carry out this simple verification, presumably because he did not know how the SAAQ registration works. [ 40 ] It may well be that Mr. Hussain was also unaware of this registration system, since he is also a recent immigrant to Quebec. [ 41 ] While the Court is sympathic to Mr. Teimoori’s disappointment in experiencing what he feels is an incident of lack of respect, or lack of trust, the Court is of the view that he did not establish, on the balance of probabilities, his allegation that Mr.

Hussain deliberately misled him in the dealings that led to the purchase. [ 42 ] The claim for $115.00 for the air conditioning repair, for which no specifics or documentation is provided, is more probably routine maintenance, which solved the problem, whatever it was. [ 43 ] The Court feels however that this is a circumstance where each party should pay his own costs. BY THESE REASONS, THE COURT: DISMISSES the Plaintiff’s Claim; EACH PARTY paying its own costs. __________________________ David L. Cameron, J.C.Q. Date of hearing: May 9, 2019