2011 QCCQ 7300, 2011 QCCQ 7300

Bou-Hamad c. Sears Canada inc. (Carrefour Laval) 2011 QCCQ 7300 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL TOWN OF LAVAL Civil Division No: 540-32-023707-118 DATE: July 6, 2011 ______________________________________________________________________ BY THE HONOURABLE JEAN PIERRE ARCHAMBAULT, J.C.Q. ______________________________________________________________________ MARIO BOU-HAMAD Plaintiff v.

SEARS CANADA INC (Carrefour Laval) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Mario Bou-Hamad, claims an amount of $ 2 999,99 from Defendant, Sears Canada Inc. (Carrefour Laval) (hereto addressed as “Sears”) pursuant to the purchase of two bed units consisting of two mattresses, two box springs and two bed bases from the “Sears” store located in Carrefour Laval, on February 16, 2011; [ 2 ] The action was served to “Sears” by certified mail on March 29 2011, as more fully appears from the report of Canada Post; [ 3 ] The Court notices that “Sears” did not deposit an appearance, nor file any contestation to said action; [ 4 ] As appears from Invoice P-1, the delivery date was February 22, 2011; [ 5 ] Plaintiff declares that he is handicapped and that, consequently, Defendant’s sales person, Marc Perron, informed him that the purchase price included the installation of both beds and the pick-up of his two old mattresses; [ 6 ] Perron had also indicated to Plaintiff that said purchase was covered by “Sears” Politique de retour de satisfaction entière de 60 jours” (P-7) and by “Sears Guardsman 5 year Bedding Protection Plan” (P-4); [ 7 ] Plaintiff produced Marc Perron’s business card (P-5) which contained various inscriptions of his representations to Plaintiff; [ 8 ] Plaintiff declared that on February 22, at the time of delivery, the driver of the truck refused to install the two bed units and that he finally did by kicking the boxes which damaged said boxes; [ 9 ] He explains that around 17hr15., after the driver left the premises, he called “Sears Service à la clientele” claiming is dissatisfaction concerning the attitude and the acts of said driver and also concerning the damages done by the driver to said boxes; [ 10 ] He later on called “Sears Service à la clientèle” at 19Hr45, 20Hr15 and 20Hr35 .

He was told that it was too late and to call back the next day; [ 11 ] He was also told that there would be a delay because it was the “Service à la clientele” that dealt with this kind of problem; [ 12 ] On February 23, he again called “Sears Service à la clientele” around 10Hr35; [ 13 ] He finally decided to go to the “Sears” store where he met Dany, the Manager, who told him to go back home to wait for a call from the “Service à la clientèle”; [ 14 ] He adds that he again called the “Service à la clientele” around 11Hr45 and that he was asked to send a letter to the store

requesting the change of the two spring box mattresses.

He was told to sleep directly on the mattresses, in the meanwhile; [ 15 ] He was told to call the “Service de la compensation” and he then would be compensated; [ 16 ] On February 23 2011, he sent a Letter of Demand to “Sears” asking to correct the situation within 48 hours, pursuant to which he would institute legal proceedings against “Sears” in the Small Claims division (P-2A); [ 17 ] On February 26 2011, “Sears” replaced the two box spring bases with the same model that where delivered on February 22 2011; [ 18 ] Following this new installation, Plaintiff declares that he is unsatisfied with the quality of the two mattresses.

He adds that the spring coils hurt his back and that that they are “noisy”; [ 19 ] On March 4 2011, he again called “Sears Service à la clientèle” to complain of said problem and then he went directly to the “Sears” store at Carrefour Laval; [ 20 ] He indicates that he met another sales person called “Madame Giovanna” who proposed to replace said mattresses by mattresses of the same model but of the new version; [ 21 ] He then met the Manager who offered to change his mattresses for a more expensive model but only if he agreed to pay an additional amount of $ 400 plus taxes; [ 22 ] He refused said offer asking that his two mattresses be replaced “because they were defective”; [ 23 ] On March 4 2011, he sent a second Letter of Demand to “Sears” complaining of the situation and asking for the replacement of his mattresses pursuant to “Sears Garantie de satisfaction entière de 60 jours”; [ 24 ] He indicates that “Sears” never answered his letter and is therefore not respecting its guarantee; [ 25 ] On April 5 2011, Plaintiff amended his claim from 979,76 $ to 2 999,99 $; [ 26 ] Interrogated by the Court concerning the increase of 2 202,35 $ in his claim, Plaintiff declared that the difference constitutes damages for trouble and inconveniences caused to both him and his mother by this situation; [ 27 ] He indicates that he does not sleep on said mattresses and adds that they are unusable; RULES OF LAW [ 28 ]

Article 2803 of the C.C.Q. states: "A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation." [ 29 ] This

article imposes on Plaintiff's shoulders the burden to prove the allegations contained in his claim by preponderance of proof; [ 30 ] The contract entered into by Plainfiff and Defendant “Sears” is a consumer contract pursuant to

Article 1384 of the Civil Code of Quebec and the Consumer Protection Act (L.R.Q. c.

P-40.1) ANALYSIS and DECISION Considering the testimonial and documentary proof presented by both parties; [ 31 ] Considering that Defendant “Sears” did not produced a Contestation and was not present at the hearing; [ 32 ] The “5 year Guardsman Warranty” (P-4) and the “Garantie de 60 jours d’entière satisfaction” (P-7) are clear, Defendant “Sears” should have replaced Plaintiff’s mattresses pursuant to said Warranties; [ 33 ] Notwithstanding Plaintiff’s numerous demands, “Sears” did not answer him and did not even send a representative to Plaintiff’s home to verify his allegations; [ 34 ] The proof heard reveals that he was offered an exchange of mattresses but was suggested to pay an additional amount of $ 400 plus taxes for same; [ 35 ] This is not what the Warranties mention; [ 36 ] Considering Articles 45 and following of the Consumer Protection Act that mentions that the merchant must honour his conventional warranties; [ 37 ] Considering that under said circumstances, Plaintiff is well founded in asking for the cancellation of the purchase contract for two bed units pursuant to

Article 272 of the Consumer Protection Act without prejudice to his recourse in claiming damages; [ 38 ] The Court arbitrates said damages at $200 for the troubles and inconveniences suffered by Plaintiff; FOR THESE REASONS, THE COURT:

GRANTS partially Plaintiff’s action; ORDERS the cancellation of the sales contract for the purchase of two bed units consisting of two mattresses, two box spring mattresses and two basis, dated February 16 2001, for the amount of $979,76 $; CONDEMNS Sears Canada Inc. to pay Plaintiff, Mario Bou-Hamad, the amount of $ 1 179,76 ($ 979,76 $ plus $200) with interest at the rate of 5 % per annum, starting on February 28, 2011; ORDERS Defendant, Sears Canada Inc. to deliver said cheque. by truck. to Plaintiff’s home after having made an appointment with Plaintiff; ORDERS Plaintiff to remit the two bed units, consisting of two mattresses, two box spring mattresses and two bases, to the Representative of Sears Canada Inc. upon delivery of said cheque; CONDEMNS Defendant to pay to Plaintiff an amount of $100, representing judicial costs. __________________________________ HON.

JEAN PIERRE ARCHAMBAULT, J.C.Q. Date of hearing: June 27, 2011