2015 QCCQ 6503, 2015 QCCQ 6503

Aghdam c. 166606 Canada Inc. (Toyota Grabriel (Gabriel Prestige Métropolitain, s.e.c.)) 2015 QCCQ 6503 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-140300-130 DATE: July 23, 2015 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ SAID GHOLIZADEH AGHDAM Plaintiff vs. 166606 CANADA INC., d.b.u.n. of TOYOTA GABRIEL, maintenant connu sous la dénomination sociale GABRIEL PRESTIGE MÉTROPOLITAIN S.E.C.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming $7,000 in damages from the Defendant from which he purchased a Toyota Prius in April of 2013. [ 2 ] In the Claim he filed with the Court, the reason he gave for claiming financial compensation was that the Defendant held his car for seven days to repair it but did not fix the car properly. [ 3 ] At the hearing however, Plaintiff explained that in his opinion the Defendant must have sold him a used car and so, he claims a reduction of the price of the car. [ 4 ] The Defendant contested the claim arguing that it repaired the braking system of Plaintiff’s car free of charge as the repair was covered by the guaranty, after which Plaintiff did not complain to any Toyota dealer of a recurrence of the problem with the brakes. [ 5 ] In response to Plaintiff’s new contention raised at the hearing regarding the presence of scratches on the car, the Defendant argued that that issue had been settled on the day the car was delivered.

As for the issue regarding a problem with the antifreeze, the Defendant declared that it heard about the problem for the first time at the hearing and does not know what the problem is if there is a problem. QUESTIONS AT ISSUE [ 6 ] The Tribunal will answer the following questions:

a) Is Plaintiff entitled to financial compensation in relation with the problems he experienced with the car?

b) In the affirmative, has Plaintiff established the value of the compensation he is entitled to? CONTEXT [ 7 ] On April 17, 2013, Plaintiff purchased a new Toyota Prius from the Defendant. The final price of purchase agreed upon by the parties was $32,553.77.

With a down payment of $6,000, Plaintiff’s bi-weekly payments are $219.55 [1] . [ 8 ] Although Plaintiff did not address the issue of the purchase price when he presented his case, the documentary evidence the Defendant filed at the hearing to respond to Plaintiff’s unannounced motive to contestation revealed that the final purchase price was agreed upon by the parties at the time of the delivery of the car. [ 9 ] The parties had initially agreed on a price of $33,066.97 which included, as appears from the signed sale contract, the purchase of a set of new winter tires and which, with a down payment of $6,000, would have required Plaintiff to make bi-weekly payments of $223.79 [2] . [ 10 ] That price was changed on the Retail instalment sale contract that the parties signed on the day Plaintiff took delivery of the car, Defendant explaining that the new price was agreed upon by the parties after Plaintiff noticed two scratches on the car.

Delivery of the car [ 11 ] The Defendant explained that when Plaintiff noticed two scratches on the car at the delivery, it offered to buff the scratches or paint over them. Since Plaintiff did not want the Defendant to fix the car, it offered to give him the winter tires that he was purchasing with the car for free as well as free storage until the fall, when Plaintiff would need to get them installed on his vehicle. That is when the purchase price was reduced to $32,553.77, reducing Plaintiff’s by-weekly payments to $219.55. [ 12 ] Plaintiff denied having purchased winter tires with the car.

Yet, the Purchase Contract that he signed and that the Defendant filed in support of its contestation clearly indicate a taxable charge of $446.36 for the purchase of four tires [3] . [ 13 ] The Defendant did specify that Plaintiff never came to claim his tires that are still waiting for him at the dealership. [ 14 ] Plaintiff’s version of the events regarding the delivery of the car is quite different than Defendant’s. As stated earlier, he denied having purchased the car with snow tires.

When he testified initially, he did not mention that fact but when confronted with the issue of whether the Defendant had offered a set of new tires for free to compensate him for the scratches on the car, he admitted that the offer had been made to him, but said he declined it.

According to Plaintiff, he was granted a price reduction when he took delivery of the car because he is a taxi driver and a friend of his also purchased a car from the Defendant. [ 15 ] According to Plaintiff, when he noticed the scratches on the car on the day of its delivery, he was told that they would disappear with a simple buffing and was asked to come back some other day to have them fixed. [ 16 ] He testified that he went back to the dealership several times to have the scratches on his car fixed but the person that was supposed to do the work was never available.

According to him, on one occasion when he called at the dealership to speak to the person responsible for fixing his car, he heard that person say to the receptionist to tell him that he was not there. [ 17 ] Two weeks after he took delivery of the car, Plaintiff went back to the dealership demanding that either the scratches be fixed or that the car be changed. He was then told that the scratches could not be buffed and that the car needed to be repainted, which he categorically refused.

The Defendant refused to take the car back and the subject of the scratches was dropped until September 2013. [ 18 ] Plaintiff did not take pictures of the scratches on his car and the only pictures available to the Court are two small black and white pictures taken by the Defendant in September 2013, on which the Court cannot distinguish the scratches. [ 19 ] On September 23, 2013, Plaintiff paid the Defendant $35 [4] to obtain an estimate of the cost to repaint the

section of the car where the scratches were and then refused to have the job done. [ 20 ] The Court notes that it would have cost him $515.53 [5] , about the same price as the cost of the four tires mentioned on the purchase contract. Problem with the braking system [ 21 ] On June 11, 2013, Plaintiff took his car to the Defendant for an oil change.

At that occasion, he mentioned that occasionally the brakes did not work when he pressed the pedal and that sometimes the pedal would go to the floor without him pushing on it but the car would not stop. [ 22 ] Plaintiff was told that the car’s braking system needed to be fixed and that the part necessary to fix it needed to be ordered.

The Defendant offered him a car for the week specifying that he could not use it as a taxi: Plaintiff had no use for a car that he could not use to work. [ 23 ] When he learned that the Defendant would keep his car for approximately a week, Plaintiff became very upset with the situation and wanted to leave the dealership with his car: he is a taxi driver and he needed it to work.

The Defendant would not however let him leave with the vehicle that it considered unsafe due to a malfunctioning braking system. [ 24 ] Frustrated, Plaintiff called the police to complain that the Defendant would not allow him to leave with his car. When police officers arrived at the dealership, Defendant’s representative and Plaintiff were met separately by the officers. [ 25 ] According to Plaintiff both the police and the Defendant would not allow him to take his belongings from his car, including his taxi driver identification card, assertion that the Defendant denied.

Plaintiff did not explain why he did not leave the dealership with his car and denied that the police would have told him that his car could get seized if he was found to drive it with an unreliable braking system. [ 26 ] Plaintiff explained that during the six days [6] he did not have his car, he could not work and that caused him financial hardship.

In support of that contention, he filed his bank statement for the month of June 2013 and declared that during that month he could not make the $450 weekly payments relating to his taxi permit [7] . [ 27 ] When the Court indicated to the Plaintiff that the bank statement did not indicate that he could not make the weekly payments in question, his answer was that maybe the money that was deposited in the bank account to make the payments came from someone else . [ 28 ] According to Plaintiff the brakes on his car still do not work properly.

Yet, he never went back to the Defendant to complain about the situation, nor to any other Toyota dealer, as appears from the Toyota

Summary of Service of the vehicle [8] . [ 29 ] He did not file any invoice from an independent garage that would confirm his testimony nor establish what would be the problem. [ 30 ] When asked to explain his claim for $7,000, Plaintiff declared that the Defendant must have sold him a used care because there were two scratches on it at delivery. The amount he claims represents a reduction of the purchase price. He cannot justify how he came

up with that figure. Problem with the antifreeze [ 31 ] Finally, Plaintiff brought up an issue with the antifreeze in his car. [ 32 ] On May 21, 2014, after he filed his Claim against the Defendant [9] , Plaintiff went to Toyota Spinelli of Lachine, complaining of a problem with the level of antifreeze in his car.

The invoice he was given for the verification that was done indicates the following: Verified enigne (sic) – radiator – hoses – waterpump (sic) no leaks detected Engine is not burning antifreeze – no anti freeze detected in engine oil everything is OK [10] [ 33 ] According to Plaintiff, this invoice is the proof that the engine is burning antifreeze and he maintained that he always has a bottle of antifreeze in the trunk of his car to fill up the reservoir when needed.

ANALYSIS [ 34 ] Anyone who wants to assert a right shall prove the facts that sustain his claim and, safe exception, the clear and convincing evidence that makes the existence of a fact more probable than its nonexistence is sufficient [11] to satisfy the test of balance of probabilities [12] . [ 35 ] In the case of an action for damages, the Plaintiff must demonstrate, under the same rules of evidence, the fault of the party being sued, the damage suffered and the casual link between the fault and the damage. [ 36 ] In accordance with that principle, Plaintiff has the burden of proving the allegations of his claim by a preponderance of evidence.

If the evidence is not compelling enough, or if it is contradictory and the judge is unable to determine where the truth lies, the one upon whom falls the burden of persuading the court of the merits of the claim loses [13] . THE LAW: [ 37 ] The relevant dispositions of the Civil Code of Québec are the following: 1726.

The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. 1728.

If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer.

a) Is Plaintiff entitled to financial compensation in relation with the problems he experienced with the car?

Scratches on the car [ 38 ] The documentary evidence and the testimonies establish preponderantly that Plaintiff purchased his car with four winter tires, the price of which was credited to him on the day he took delivery of the car as compensation for the two scratches on the car that he did not want the Defendant to fix. [ 39 ] The arrangement he made with the Defendant to settle that issue prohibits him from claiming compensation from the Defendant in regards to those scratches. [ 40 ] Be that as it may, it should be clear that the mere presence of two scratches on the car is insufficient in the absence of any other convincing evidence for the Court to conclude that the car sold to Plaintiff was used. [ 41 ] Not only that but if Plaintiff thought that the car was used because of the presence of two scratches when he took possession of it, he accepted to receive it without any reserve and to pay the full price.

He cannot now claim damages for something that he had knowledge of and accepted. Malfunctioning of the brakes [ 42 ] The parts that were used to repair the brakes on Plaintiff’s car cost close to $3,000.

Clearly the malfunctioning of the brakes less than two months after Plaintiff took possession of the car could only have been caused by a latent defect in the braking system. [ 43 ] The Defendant took the situation very seriously when Plaintiff brought it to its attention and acted immediately, advising Toyota Canada of the safety hazard the situation represented. [ 44 ] Being a taxi driver, without his working tool for a few days must have been quite frustrating for the Plaintiff, to say the least. [ 45 ] Although understanding how frustrating the situation must have been, the Court was still a bit taken aback by both Plaintiff’s incomprehension or refusal to understand that for public safety reasons the Defendant was justified to keep his car in order to investigate, diagnose and fix immediately the problem with its brakes, on one hand, and his willingness to drive an unsafe car and take the risk of causing serious injuries and even death to him or others, on the other.

[ 46 ] Even though the evidence presented does not permit the Court to conclude that the new car sold to Plaintiff was in fact used, he should be compensated for the inconvenience the situation with the braking system caused him. [ 47 ] The Defendant is a professional vendor within the meaning of

article 1728 C.C.Q. cited above. The professional vendor is presumed to know the existence of the latent defect affecting a product that it sold.

This presumption of knowledge allows the purchaser to claim damages. [ 48 ] The professional vendor can rebut the presumption by showing that he was unaware of the defect and its ignorance was justified because he could not have detected the defect, even if it had taken all the precautions which the buyer is entitled to expect from a seller in the same circumstances [14] . [ 49 ] In the present instance, since the Defendant has not tried to rebut the presumption of knowledge of the latent defect, it is liable to compensate the Plaintiff for the damages he sustained from the fact that he was deprived of his car for a week.

b) In the affirmative, has Plaintiff established the value of the compensation he is entitled to? [ 50 ] That is where the Court needs to determine if the Plaintiff has established according to the balance of probabilities the damages he sustained, aside from the extreme frustration that he described and exhibited at the hearing. [ 51 ] The Court does not accept Plaintiff’s assertion that the Defendant refused to let him take possession of his taxi driver identification card and other things he had in his car.

The car was parked at the dealership and nothing would have stopped him to fetch for his personal belongings.

He could have asked the police officers that responded to his call to escort him to his car if the Defendant refused him access to it. [ 52 ] Although the evidence on the damage that the Plaintiff sustained is quite weak, the Court is satisfied that without his car Plaintiff could not work for at least four days and missed the June 17, 2013 $450 payment which caused him to have to pay $237.37 additional interest on a loan [15] . [ 53 ] With the inconvenience, the Court arbitrates Plaintiff’s damages to $1,000.

Problem with antifreeze levels [ 54 ] Although Plaintiff states that he has been experiencing problems with the antifreeze level in his car, the document he filed in support of his contention indicate that there is no leak and no sign of the engine burning antifreeze. If there is a problem, Plaintiff has not established it according to the balance of probabilities. [ 55 ] Adds to that the fact that this situation which Plaintiff started complaining about after he instituted his claim against the Defendant was not denounced to the Defendant until the hearing.

Absence of notification of a problem or a probable latent defect bars Plaintiff from claiming damages from the Defendant regarding that specific situation. [ 56 ] WHEREFORE, THE COURT: [ 57 ] GRANTS the claim in part; [ 58 ] CONDEMNS the Defendant to pay to the Plaintiff $1,000.00 with the legal interest and the additional indemnity provided for by

article 1619 of the Civil Code of Québec from the day of the assignation, with the judicial costs of $167. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: June 30, 2015 Une

partie peut obtenir la traduction française du présent jugement en adressant une demande écrite à cet effet à la Directrice du secteur civil du Palais de justice de Montréal.