2011 QCCQ 7025, 2011 QCCQ 7025

Boness c. 9090-3774 Québec inc. 2011 QCCQ 7025 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-114940-093 DATE: May 20, 2011 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ TAMARA BONESS and MICHAEL COTTERELL, […], Saint-Lazare (Quebec) […] Plaintiffs v. 9090-3774 QUEBEC INC., 6803 Heywood Avenue, Suite 302, Côte St.

Luc (Quebec) H4W 3L6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] A sales contract intervened between the parties, on November 25, 2007 (exhibit P-2). [ 2 ] Defendant sold plaintiffs a leather furniture set, comprised of a sofa, love seat and armchair, for $1,907.00. [ 3 ] As stated in exhibit P-1, the parties agreed on a delivery date of January 17, 2008. [ 4 ] Plaintiffs were not satisfied with the furniture. [ 5 ] Their demand letter reads, in part, as follows: "On delivery, it was noted that:

i) There was no label on any item of furniture indicating 1. that it is made of leather or any indication of its composition 2. the country of origin or the name of the manufacturer 3. no instructions for the care of leather (as is normally supplied) 4. no indication that the Scotchgard protection was applied to the furniture ii) The packing labels on the wrapping indicate that the furniture was shipped from Shanghai and that it was made in China iii) And that the colour of the furniture is buff (fr. couleur chamois) and not beige as we had ordered We phoned many times to complaint about the furniture with no response from Meubles Authentika." (sic) (exhibit P-1) [ 6 ] Defendant's Katia Alexandre denied that plaintiffs were told that the furniture was made in France. [ 7 ] She also declared that plaintiffs saw an exact replica of the furniture in the store, and that the color of the delivered furniture was the same. [ 8 ] The evidence is inconclusive on these points. [ 9 ] Plaintiffs had the burden of proof, which they failed to meet, in these regards (arts. 2803 and 2804 of the Civil Code of Quebec ). [ 10 ] What is clear, however, is that the furniture which defendant delivered to plaintiffs was defective.

[ 11 ] One of the allegedly removable sofa pillows tore, on February 20, 2008 (exhibit P-5). [ 12 ] Defendant does not deny this, and offered to replace the pillow, with one which it received many months later. [ 13 ] In a letter dated December 3, 2008 (exhibit D-5) and then in another dated March 3, 2009 (exhibit D-6), defendant offered to send one Roger Côté, to plaintiffs' residence, to install the replacement pillow. [ 14 ] Defendant claims that plaintiffs purposely avoided Alexandre and Côté's calls, in an attempt to have the contract set aside. [ 15 ] Plaintiffs contend that defendant was hard to reach; that they were never contacted by Côté; and that they eventually lost all confidence in the merchant. [ 16 ] As above stated, the furniture is, in fact, defective. [ 17 ] This is contrary to art. 38 of the Consumer Protection Act (S.R.Q., c.

P-40.1). [ 18 ] What is more, defendant's email of September 23, 2008 (exhibit P-6) contradicts the contents of its exhibits D-5 and D-6. This evidence tends to support plaintiffs' position regarding defendant's very poor customer service.

Defendant contravened art. 42 of the Act. [ 19 ] The Court understands why, under the circumstances, plaintiffs lost confidence in defendant, and, why, in virtue of art. 272 of the Act , they are demanding that the contract be set aside. [ 20 ] While it is true that only the sofa is damaged, it is also true that plaintiffs did not use the other two pieces, for fear of damage. [ 21 ] Furthermore, the love seat and armchair are part of a set, and may very well have also torn if used.

This is, in fact, exactly what happened in another case concerning defendant's merchandise [1] . [ 22 ] However, the damages being claimed by plaintiffs are excessive and unreasonable. [ 23 ] The cancellation of the sale and the reimbursement of the purchase price of $1,907.00, plus $100.00 for their trouble and inconvenience, constitute sufficient remedy for the damages suffered by plaintiffs, as a direct result of defendant's faults and omissions.

WHEREFORE THE COURT HEREBY: GRANTS plaintiffs' action, in part; SETS ASIDE contract no 10926; ORDERS defendant to pay plaintiffs the sum of $2,007.00, plus legal interest at the annual rate of 5 % and the additional indemnity provided for in art. 1619 of the Civil Code of Quebec , from November 30, 2008, with costs; ORDERS defendant to retrieve the sofa, armchair and love seat, sold to plaintiffs on November 25, 2007, in their present condition, at plaintiffs' residence, at defendant's sole expense, upon 5 juridical days prior written notice. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: May 3, 2011