2017 QCCQ 13752, 2017 QCCQ 13752

Dobson c. Caza 2017 QCCQ 13752 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF BONAVENTURE TOWN OF NEW CARLISLE « Civil Division » N o : 105-32-700010-176 DATE : October 4, 2017 ______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.C.Q. ______________________________________________________________________ JEAN DOBSON Plaintiff v.

PIERRE CAZA DIANE LAROCQUE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff Jean Dobson (Mrs. Dobson) claims from the defendants Pierre Caza (Mr. Caza) and Diane Larocque (Mrs. Larocque) an amount of $ 4 000. representing the cost of repairs to the car sold, because of latent defects affecting it. [ 2 ] The amount of reimbursement is detailed as follows: • Cost for the replacement of the motor $ 3 157.13 • Taxi fees $ 842.87 [ 3 ] Mrs.

Larocque contests the claim alleging the car was in good condition. She also had notified Mrs. Dobson about the minor defects the car had. Furthermore, she had the opportunity to make a road test on more than one occasion before the trade took place. As for Mr. Caza, he is absent. CONTEXT [ 4 ] Mrs. Dobson is the owner of a Nissan X-Trail 2005. Mrs. Larocque owns a Subaru Forester 2005 with 245 535 kilometers. [ 5 ] Some discussions occur between the parties in order to exchange their cars. [ 6 ] Mrs. Dobson proceeded to a visual inspection of the interior and the exterior of the car.

She checked some components of the car namely, the dashboard, seats, heater, floor mats, sunroof and the power locks. [ 7 ] At that time Mr. Caza gave her a document representing an inspection sheet [1] done on the car by Garage E.P Poirier, on August 9, 2016, at 9:32 am. The document reveals some minor defects affecting the car. [ 8 ] In the afternoon of August 9, 2016, Mrs. Dobson went with Mrs. Larocque, Leonard Whalen and Blair Gallon to the “Société de l’assurance automobile du Québec” (SAAQ) to proceed with the transfer of the cars. [ 9 ] The following days, Mrs. Dobson noticed some issues with the car.

At one point, all the lights in the dashboard come on, while she was on her way to Campbellton. When returning home, the car suddenly stopped in Caplan. She let it cool down and it took at least five hours to get back home when normally, it takes around twenty minutes. Afterwards, she did not went to a garage to verify the origin of the problem. In fact, she continues to use the car. [ 10 ] On or about August 26, 2016, the car stopped for good.

The motor has to be completely replaced. analysis [ 11 ] Anyone who wants to assert a right shall prove the facts that sustain his claim with clear and convincing evidence that makes the existence of the facts he wishes to establish more probable than their nonexistence [2] , to satisfy the test of balance of probabilities. The evidence does not have to lead to an absolute certainty, scientific or mathematical. It is sufficient that it makes probable the disputed facts. [3]

[ 12 ] First of all, the fact that Mr. Caza is the common-law spouse of Mrs. Larocque does not make him the owner or co-owner of the vehicle. There is absence of a legal link between him and Mrs. Dobson. Only Mrs. Larocque, the owner of the car has a legal link with Mrs. Dobson, because it is her car. Moreover the vehicle is duly registered in her name at the SAAQ. Considering this, Mrs. Dobson cannot claim any amount from Mr. Caza, subsequently her claim against him has to be dismissed. [ 13 ] Mrs. Dobson’s action is based on

article 1726 Code civil du Québec (C.C.Q.) : “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”. [ 14 ] 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 any need of expert assistance. [ 15 ] For the Court to grant the plaintiff’s claim, it must be satisfied according to the balance of probabilities that the car the defendant sold her was affected by a defect that she could not have detected by a reasonable inspection of the goods. [ 16 ] Before purchasing a car, a prudent and diligent buyer must examine it.

If he does not have the proper qualifications to do it, he must have recourse to a competent person. If a buyer fails to execute this imperative obligation of examining the object of sale, he is in a fragile legal position. [ 17 ] In the present case, Mrs. Dobson admits not having proceeded to any mechanical inspection of the vehicle sold, before she made her purchase. Even knowing it was an old car with a lot of mileage. This non-execution is fatal to the recourse based on the legal warranty of quality. [ 18 ] Moreover, when Mrs. Dobson received the inspection sheet from Mr.

Caza she did not take knowledge of it, because it was written in French. She did not ask any questions to the owner or to anyone else about its content. [ 19 ] Furthermore, while they were heading to the SAAQ to proceed with the exchange, the driver at the time, Leonard Whalen, observed some anomalies with the vehicle. He told Mrs. Dobson but she disregard it.

At the time, it should have made her doubt or give a clue about the condition of the car. [ 20 ] In addition, when she noticed the car stopping repetitively because it was over heating, instead of driving the car around waiting for the heat to damage the engine, she should have had the car inspected and repaired. [ 21 ] Not only has the plaintiff failed to establish the motor damage constituting a hidden defect, but has demonstrated that she did not act diligently to prevent the damage to the engine of the car by driving it for many days although she had found a problem with the car.

Concerning taxi costs, no evidence was submitted to the Court. [ 22 ] Given all of the above, the Court concludes that Ms. Dobson’s application is not founded, both in fact and in law, her claim is therefore dismissed . Exercising its judicial discretion, the Court decides that each party pays its own costs. THEREFORE, the Court: [ 23 ] DISMISSES the plaintiff’s application; [ 24 ] THE WHOLE , each party paying its own costs. __________________________________ CELESTINA ALMEIDA, J.C.Q. Date of hearing: June 13, 2017