2017 QCCQ 8786, 2017 QCCQ 8786

Brodeur c. Subaru Canada inc. 2017 QCCQ 8786 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-138268-133 DATE: July 19, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI J.C.Q. ______________________________________________________________________ MICHAEL BRODEUR Plaintiff v. SUBARU CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Michael Brodeur claims $6,590.51 from Subaru Canada Inc. (Subaru) on the grounds that his vehicle’s turbocharger component failure is covered under Subaru’s Major Component Warranty. [ 2 ] Subaru denies that coverage applies under the warranty on the grounds that Mr. Brodeur failed to maintain the vehicle as specified in the maintenance schedule. Questions in Issue

a) Has Mr. Brodeur proven that the Subaru Major Component Warranty applies and covers the cost to repair the turbocharger?

b) If so, what amount is Mr. Brodeur entitled to receive under the terms of the Subaru Major Component Warranty? Context [ 3 ] In February 2012, Mr. Brodeur, a resident of the province of Québec, purchased in Ontario from a resident of that province a Subaru Impreza WRX 2010 model year vehicle (Impreza) for $24,000 plus applicable taxes. Although the sale was witnessed by a written contract of sale, Mr. Brodeur did not enter into evidence the contract. The vehicle odometer registered approximately 76,000 kilometers at the time of the sale. [ 4 ] The previous owner had taken delivery of the Impreza in March 2010.

Approximately four months prior the sale, the vehicle odometer registered 69,631 kilometers. [1] [ 5 ] Upon purchase of the vehicle, Mr. Brodeur returned it to the province of Québec and registered it with the Société de l’assurance automobiles du Québec . [ 6 ] Mr. Brodeur confirms that the Subaru Warranty/Maintenance and Roadside Assistance Booklet (Warranty Booklet), which contains the details of the manufacturer’s warranty coverage and the maintenance schedule, was in the Vehicle’s glovebox when he purchased it. [ 7 ] On January 11, 2013, the turbocharger component of the Impreza failed. Mr.

Brodeur brought his vehicle to a Subaru dealer who confirmed the turbo component failure. [ 8 ] Initially, Subaru denied coverage under its Major Component Warranty on the grounds that Mr. Brodeur had not provided complete maintenance records. [2] Mr. Brodeur obtained the maintenance records from the previous owner and provided them to Subaru. Upon review of the additional records, Subaru maintained its denial of coverage position. [ 9 ] By letter dated March 6, 2013, Mr. Brodeur put Subaru in demand to honour its warranty. [3] Subaru reiterated its denial of coverage. [ 10 ] On March 27, 2013, Mr.

Brodeur paid paid $4130.43 to have the turbocharger component repaired. He also incurred towing expenses and expenses related to the vehicle inspection and failure diagnostic, for total expenses of $4590.51. [4] [ 11 ] April 30, 2013, Mr. Brodeur filed his claim with the Court of Québec, Small Claims Division and claims $6590.51 from Subaru,

which includes $4590.51 in expenses pertaining to the repair of the turbocharger component plus $2000 for loss of enjoyment of the vehicle, and trouble and inconvenience. Analysis and Decision

a) Has Mr. Brodeur proven that the Subaru Major Component Warranty applies and covers the cost to repair the turbocharger? Preliminary Comments [ 12 ] What law governs the contract of purchase of the Impreza as well as Mr. Brodeur’s claim against Subaru, the law of the Province of Ontario or of Québec? Indeed, this question is relevant in light of

article 3114 of the Civil Code of Québec (C.C.Q.) [5] and considering that Mr. Brodeur purchased the Impreza vehicle from an individual who resided in the province of Ontario at the time of the sale. Moreover, Subaru alleges in its Contestation that since the sale occurred in the Province of Ontario, neither the Civil Code of Québec nor the Québec Consumer Protection Act apply to the sale. [6] [ 13 ] However, although Subaru pleaded foreign law, its content was not established at trial.

Therefore, the Court will apply the law in force in the Province of Québec to the contract of purchase. [7] Subaru Major Component Warranty [ 14 ] Under the Civil Code of Québec , a vendor is bound to warrant to the buyer that the property is, at the time of the sale, free of latent defects which render it unfit for the use that was intended. [8] This warranty is often referred to as the legal warranty of quality. [ 15 ] The seller of a good may add to the legal warranty of quality by offering to its purchasers a conventional warranty, also called a manufacturer’s warranty. [9] The Subaru Impreza purchased by Mr.

Brodeur was sold with a conventional warranty that is described in detail in the Warranty Booklet. [10] [ 16 ] The Warranty Booklet contains a New Vehicle (36 months or 60,000 km) Limited Warranty, the Major Component Warranty (60 months or 100,000 km) and other conventional warranties. Mr. Brodeur’s claim is based on the Major Component Warranty, which reads as follows: MAJOR COMPONENT WARRANTY Free to the original owner and transferable to subsequent owners upon registration with Subaru Canada, Inc.

That upon expiry of the New Vehicle Limited Warranty, and under normal use and maintenance, the following major components will continue to be free from defects in material and workmanship up to a total of sixty (60) months from the date of first registration or 100,000 km, whichever occurs first. If any defect would be found in these components within the periods stated herein, necessary repairs and replacements will be made at no cost to you for parts and/or labour when Subaru Canada. Inc. acknowledges that such defects are caused by faulty material or workmanship at the time of manufacture.

Any replacement of a major component due to normal wear and tear, abuse, negligence or failure caused by resultant damage by a non-covered component will not be covered under this warranty. [11] [ 17 ] The turbocharger component that failed in Mr. Brodeur’s Impreza is a major component covered by this conventional warranty. [ 18 ] Mr. Brodeur argues that the failure of the turbocharger is covered under the Major Component Warranty and therefore he is entitled to be reimbursed for the cost of the replacement of the component as well as for other expenses. [ 19 ] Subaru opposes his claim on the grounds that Mr.

Brodeur did not properly maintain the Impreza as per the maintenance

schedule contained in the Warranty Booklet. [ 20 ] In the Court’s opinion, and based on a plain reading of the Major Component Warranty, an owner who invokes this conventional warranty has the burden of proving ‘‘normal use and maintenance’’ of the vehicle as a condition of coverage. In other words, according to the terms of the conventional warranty, coverage under the Major Component Warranty is only triggered if the owner proves that he/she operated the vehicle under normal use and maintenance. The burden to prove normal use and maintenance lies with the owner.

Proof of normal use and maintenance is a condition precedent to coverage under the Major Component Warranty, as opposed to an exclusion of coverage. [12] [ 21 ] What is ‘‘normal use and maintenance’’ of a vehicle? Mr. Brodeur argues that the Warranty Booklet is ambiguous as to the meaning of this term and thus should be interpreted in his favour. [13] [ 22 ] The Court disagrees. A consumer that takes the time to read the Warranty Booklet should know and understand what is meant by “normal use and maintenance”. [ 23 ] Page 20 of the Warranty Booklet bears the title ‘‘

SCHEDULE OF INSPECTION AND MAINTENANCE SERVICES ’’. [14] On this same page, under the heading “ MAINTENANCE” , the booklet contains the following: Vehicle maintenance is an important factor for proper vehicle operation. The vehicle’s driver should ensure that fluid levels (engine, oil, coolant, etc.) are checked frequently, i.e. each time you add fuel, in accordance with the instructions in the owner’s manual. [ 24 ] Moreover, page 23 of the Warranty Booklet contains the title “ SUBARU MAINTENANCE

SCHEDULE AND RECORD ”. This is followed by the following warning: “The following maintenance

schedule reflects services required under normal driving conditions”. [15] [ 25 ] Page 27 of the Warranty Booklet contains the following title: “ SUBARU MAINTENANCE GUIDE – TURBO ENGINES” . Below the title the owner is informed that every 6,000 kilometers or 6 months, he/she must replace the engine oil and filter, inspect and

adjust all fluid levels including both differentials, etc. [16] [ 26 ] The Warranty Booklet is clear as to the meaning of “normal use and maintenance”. [ 27 ] Did Mr. Brodeur and the prior owner operate the Impreza under “normal use and maintenance.” In other words, did they follow the maintenance

schedule as contained in the Warranty Booklet? [ 28 ] Firstly, Subaru correctly argues that the “normal use and maintenance” requirement obliges Mr. Brodeur to prove that both he and the previous owner followed the maintenance

schedule found in the Warranty Booklet. Indeed, since the Consumer Protection Act (CPA) does not apply to Mr. Brodeur’s claim against Subaru, Mr. Brodeur cannot rely on

section 52.1 of the Act to argue that Subaru cannot require him to prove that the previous owner complied with the maintenance schedule. [17] [ 29 ] The CPA does not apply because (

i) Mr. Brodeur did not purchase the vehicle from a merchant (he purchased it from an individual residing in Ontario), and (ii) the contract between the previous owner and the original seller (the original contract) is not itself governed by the CPA. [18] [ 30 ] There is no provision in the C.C.Q. that is equivalent to

section 52.1 of the Québec CPA. Therefore, a conventional warranty governed solely by the C.C.Q. which requires a purchaser to prove that the previous owner of the good complied with the conditions of the conventional warranty is not contrary to the Code . [ 31 ] That being said, has Mr. Brodeur proven that he and the previous owner operated the Impreza under normal use and maintenance, in other words, that the engine oil was replaced according to the maintenance

schedule (6,000 kilometers or 6 months)? [ 32 ] The evidence adduced at trial reveals that the engine oil was replaced at the following intervals : [19] Owner Garage Date Interval date Mileage Mileage interval A. Trussler Budd's Subaru 05/26/10 —- 8259 8259 A. Trussler Budd's Subaru 08/24/10 3 months 16 504 8245 A. Trussler Budd's Subaru 10/21/10 2 months 22 733 6229 A. Trussler Budd's Subaru 01/27/11 3 months 36 972 13 839 A. Trussler Budd's Subaru 03/21/11 2 months 42 980 6 408 A. Trussler Budd's Subaru 05/05/11 1 ½ months 49 400 6 420 A. Trussler Budd's Subaru 06/30/11 2 months 56 612 7 212 A.

Trussler Budd's Subaru 08/23/11 2 months 63 772 7 160 A. Trussler Subaru of Brampton 10/28/11 2 months 69 631 5 859 M. Brodeur Mr Motorworx 02/20/12 4 months 78 000 8 369 M. Brodeur Mr Motorworx 09/27/12 7 months 83 000 5 000 M. Brodeur Turbocharger failure 01/14/13 3 ½ months 91 915 8 915 Average 7 659.6 [ 33 ] The evidence reveals that only 2 of the 12 engine oil replacements were carried out in compliance with the maintenance schedule.

The average mileage interval between engine oil replacements was 7,659 kilometers, or 1,659 kilometers or 28% greater than the required schedule. [ 34 ] Over the time period during which he was the owner, Mr. Brodeur made 3 engine oil replacements. Only one of these was carried out according to the maintenance

schedule whereas the 2 others were carried out beyond the maintenance schedule. [ 35 ] Accordingly, the Court concludes that Mr. Brodeur has failed to prove that the Impreza vehicle was operated under “normal use and maintenance” because both he and the previous owner failed to comply with the maintenance

schedule as it pertains to engine oil replacement. [ 36 ] While the Court has reached this conclusion based on the operation of the vehicle of Mr. Brodeur and the previous owner, it would have reached the same conclusion even if

section 52.1 CPA was applicable. Indeed,

section 52.1 CPA does not preclude a merchant or manufacturer from adducing evidence to prove that the prior owner has not complied with the maintenance schedule. [20] [ 37 ] While it was not its burden to do so, Subaru proved on a balance of probabilities that the previous owner of the Impreza did not operate the vehicle under normal use and maintenance since he did not replace the engine oil according to the maintenance schedule. [ 38 ] Mr. Brodeur has failed to prove that the Subaru Major Component Warranty applies. Legal Warranty of Quality and

Article 1729 C.C.Q. [ 39 ] While Mr. Brodeur does not raise

article 1729 C.C.Q. in his claim, the Court will nonetheless address this argument. Articles 1729 and 1730 C.C.Q. read as follows: 1729. In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer. 1730. The manufacturer, any person who distributes the property under his name or as his own, and any supplier of the property, in particular the wholesaler and the importer, are also bound to a seller’s warranty.

[ 40 ]

Article 1729 C.C.Q. gives rise to a presumption of liability if the purchaser proves (

i) that he purchased the good from a professional vendor, and (ii) that the good malfunctioned or deteriorated prematurely in comparison with identical property or property of the same type. [21] If the purchaser proves these two conditions, there is a presumption of liability of the professional vendor, which can only be rebutted if the professional vendor proves that the defect is due to improper use of the good by the buyer. [ 41 ] In the present case, the presumption of liability of

article 1729 C.C.Q is not triggered because the first condition is not met: Mr. Brodeur did not purchase the Impreza from a professional seller, but rather from an individual. [ 42 ] In conclusion, the replacement of the turbocharger component is neither covered by the Subaru Major Component Warranty nor by the legal warranty of quality provided by the C.C.Q. FOR THESE REASONS, THE COURT: DISMISSES Michael Brodeur’s claim; WITH COSTS in the amount of $204. __________________________________ ENRICO FORLINI J.C.Q. Date of hearing: March 20, 2017