2023 QCCQ 6967, 2023 QCCQ 6967

Soliman c. Best Buy Canada Ltd. 2023 QCCQ 6967 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-714159-219 DATE: October 12, 2023 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS ______________________________________________________________________ SAM SOLIMAN Plaintiff v. BEST BUY CANADA LTD.

Defendant and ASSURANT Intervening Party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On October 6, 2017, Plaintiff purchased a LG electrical range (the Range) from Best Buy for the price of $1,899.99 as well as a 5-year Geek Squad Protection (GSP) plan for the price of $310.99 plus taxes, for a total of $2,542.08. The Range was delivered on October 13, 2017. [ 2 ] Plaintiff claims that on September 27, 2020, almost three years after the Range was delivered, it stopped working altogether.

He also claims that Best Buy sent a technician to his home eight times to repair the Range without success. He is asking damages from Best Buy for the inconvenience he and his family suffered for having been without a Range for several months. The amount he claims includes the price of the Range he purchased to replace the broken one.

To justify having purchased a new Range, Plaintiff explained that Best Buy refused to honour the warranty contract that provides that the non-functioning Range would be replaced if it could not be repaired within 60 days of the initial call requesting the repair. [ 3 ] In the demand letter he addressed to Best Buy on January 8, 2021, Plaintiff asked for $6,000 in damages.

Twenty days later, when he filed his claim with the Court on January 28, 2021, his claim had increased to $9,710 detailed as follows: - $6,000 for all the costs linked to the defective range: new movable range, damages, stress, inconvenience, etc. - $1,900 for the defective electrical range. - $310 as reimbursement of the warranty he purchased with the defective range. - $1,500 for the expenses made because of the Range was not working: buying food, time to go cook somewhere else, other people having to cook for Plaintiff’s family and others. [ 4 ] Best Buy’s means of defence to Plaintiff’s claim are as follows: - After Plaintiff complained on September 27, 2020, that the switches of the Range were not working, on October 7, 2020, Best Buy assigned LG to service the Range and an appointment was made with Plaintiff for the service to take place on November 2, 2020. - On November 2, 2020, Plaintiff was not at home to allow LG to inspect and repair the Range. - On November 23, 2020, LG’s technician serviced the Range, however, was not able to complete the repair and required a follow- up appointment. - On the same day, Plaintiff called Best Buy to indicate that since the 60-day period within which the Range should have been repaired as provided by the warranty was not respected, he would not allow the repair to be completed and demanded that the Range be replaced. - On November 30, 2020, Plaintiff was not home to allow the LG technician to complete the repair of the Range. - A LG technician presented himself at Plaintiff’s residence on December 4, 2020, but the appointment would have had to be

rebooked for December 11, 2020. - Plaintiff called Best Buy on December 9, 2020, to reiterate that he wanted the Range to be replaced as per the warranty. - Best Buy was informed on February 25, 2021, that Plaintiff had purchased a new Range and disposed of the old one. [ 5 ] Best Buy considers that Plaintiff did not qualify for Replacement Benefit under the GSP plan because multiple appointments to repair the Range were delayed due to him not being at home as per the scheduled appointments or because he refused to receive the service.

Plaintiff is not entitled to Repair and Replacement Benefit because he made impossible to complete the repair when he disposed of the Range. [ 6 ] At the hearing, Plaintiff indicated that he had not disposed of the Range. [ 7 ] Assurant intervened voluntarily to the case to represent and substitute itself to Best Buy. It agrees that if the Court finds that Plaintiff was entitled to a replacing Range, it alone (and not Best Buy) is liable to pay the amount awarded to Plaintiff. I. QUESTIONS AT ISSUE [ 8 ] To decide the present case the Court will answer the following questions: 1.

When did Plaintiff’s Range stopped working? 2. Was Plaintiff entitled to a replacement Range in execution of the warranty? 3. Is Plaintiff entitled to the amounts he is claiming? II.

ANALYSIS [ 9 ] 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 [1] , to satisfy the test of balance of probabilities. [ 10 ] 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. [ 11 ] 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, in whole or in part [2] . [ 12 ] The warranty clauses relevant to the resolution of the dispute read as follows: “Manufacturer’s Warranty: This Plan complements but does not replace the manufacturer’s warranty or warranty obligations.

Parts and services covered by the manufacturer’s warranty and warranty obligations are the responsibility of the manufacturer only. During the manufacturer’s warranty and warranty obligations period, please contact the manufacturer directly for all such claims. Should you contact Assurant with respect to Services or American Bankers with respect to Benefits for a problem covered by the manufacturer’s warranty or warranty obligations, you will be referred to the applicable manufacturer.

During the term of the manufacturer’s warranty, the Plan provides certain additional Services and Benefits for which the manufacturer may not provide coverage.

These additional Services and Benefits are set out below in Parts 2 and 3, respectively.” […] “Replacement Benefit: if a repair through Assurant’s Certified Service Network takes longer than sixty (60) days to complete, American Bankers will cover the cost of replacing it with a new or refurbished product of similar features and functionality, though not necessarily of the same brand, or at American Bankers’ sole discretion, it may cover the cost of issuing you a store credit for the current replacement value, not to exceed the original purchase price.

The 60-day service period begins when the product arrives at a Best Buy store or an authorized service location and ends when the repaired product is made available to you for pick up.

The Plan will immediately be deemed fulfilled on the date of the replacement or issuance of a store credit and will not continue nor be applied to any replacement product provided by American Bankers to you or purchased by you with the store credit.” Limitations: 1. none of assurant, geek squad or american bankers are liable to you if they are unable to perform their obligations hereunder due to events they are not able to control. 1.

When did Plaintiff’s Range stopped working? [ 13 ] The evidence presented does not allow the Tribunal to answer the question. [ 14 ] Neither party presented convincing evidence on the issue. The parties contradict themselves when comparing their notes, emails and/or testimonies. [ 15 ] According to Plaintiff’s notes, his Range was serviced for the first time on September 12, 2019, because he complained that the top left back burner was not working properly.

It was serviced a second time on September 19, 2019, at his request because of the top burner faded colour. [ 16 ] Plaintiff’s notes do not indicate when, between October 9, 2019 and November 23, 2020, he would have called Best Buy to

complain that the Range did not work anymore. He has not established what the date of September 27, 2020, that he uses to calculate the 60-day delay within which the Range should have been repaired corresponds to.

His November 23, 2020, note indicates that a technician came to his home to change the back board, but he could not fix the Range. [ 17 ] After that date, it is not clear from Plaintiff’s evidence that he did not prevent LG’s technicians from repairing the Range by not opening the door when a technician would show up or by demanding that the Range be replaced. [ 18 ] Assurant’s representative confirmed at the hearing that they cancelled the order of the necessary part to repair the Range on February 11, 2021, when they were informed that Plaintiff had purchased a new Range, alleging that the 60-day policy delay stipulated in the warranty contract had expired. 2.

Was Plaintiff entitled to a replacement of the Range in execution of the warranty? [ 19 ] Assurant had not communicated in support of its contestation of the claim the notes taken by the various people who intervened in the file, whether the notes taken by the technicians who went to Plaintiff’s home or those taken by the customer service staff who spoke with him. During the trial, Assurant’s representative, who participated via Visio Conference, had access to the notes on her computer and referred to them.

She could not explain why a copy of the notes (either hard copy or on a USB key) had not been provided when she needed to refer to them in her testimony and they would have been of use to the Court. [ 20 ] She confirmed that by February 11, 2021, the piece necessary to fix Plaintiff’s Range that had been ordered more than 60-days prior was not yet available and that is when Assurant cancelled the order. [ 21 ] Sixty days prior to February 11, 2021, is Sunday, December 13, 2020. [ 22 ] Be that as it may, Plaintiff’s January 8, 2021, demand letter and the claim he filed with the Court attest to the fact that he had purchased a replacement Range before the expiry of the 60-day delay period provided by the warranty plan to allow the Range to be repaired. [ 23 ] In the demand letter he addressed to Best Buy on January 8, 2021, he asked for $6,000 in damages.

Twenty days later, when he filed his claim with the Court on January 28, 2021, his claim had increased to $9,710. [ 24 ] In his claim he explains that the initial $6,000 amount he claimed in his demand letter includes the cost of the replacement Range. Plaintiff did not file any invoices in support of his claim. Not even the receipt for the purchase of the replacement Range. [ 25 ] In his demand letter Plaintiff indicated that the Range was not working as of September 27, 2020, and on January 8, 2021, it had been three and a half months since the Range was not working.

As indicated above, the September 27, 2020, date does not coincide with either Plaintiff’s handwritten notes [3] nor Assurant’s as being the date the Range stopped working. [ 26 ] If Plaintiff’s Range stopped working altogether by September 27, 2020, the 60-day delay for Best Buy and/or Assurant to repair it would have expired on November 26, 2020. [ 27 ] According to Assurant, starting November 23, 2020, Plaintiff made numerous calls to make and cancel appointments with a LG technician, was not at home when the technician showed up for a scheduled appointment and, most importantly, started demanding that the Range be replaced. [ 28 ] The Court concludes that by January 8, 2021, Plaintiff had already purchased a replacement Range, before the 60-day delay after which he would have been allowed a replacement if Best Buy and/or Assurant would not have been able to repair the original Range. [ 29 ] This conclusion is consistent with Assurant’s contention that Plaintiff did not offer his full collaboration to allow LG technicians to repair the Range. 3.

Is Plaintiff entitled to the amounts he is claiming? [ 30 ] Plaintiff’s evidence is too incomplete to allow the Tribunal to establish that he suffered damages due to Best Buy and/or Assurant’s delay in repairing his stove. Legal fees [ 31 ]

Article 340 of the Code of Civil Procedure provides that the losing party is entitled to legal costs. In the present case, however, considering that neither party presented clear evidence of their respective contention, defendants will assume their legal costs. WHEREFORE, THE COURT: [ 32 ] REJECTS the claim. [ 33 ] WITHOUT the judicial costs.

__________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: June 20, 2023