2015 QCCQ 5613, 2015 QCCQ 5613

Tibilla c. Nissan Canada Inc. 2015 QCCQ 5613 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-136913-136 DATE: APRIL 7, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ MOHAMMED RIMFA TIBILLA […] Montréal, Québec […] Plaintiff vs.

NISSAN CANADA INC. 2 Hunter Valley Orillia, Ontario L3V 6H2 Defendant ______________________________________________________________________ JUDGMENT (Rendered from the bench) ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant an amount of $7,000.00 following the purchase of a Nissan Murano 2006 (the car) and the discovery of a latent defect. THE CONTEXT [ 2 ] Plaintiff purchased the car from Park Avenue Nissan in August of 2009.

At the time, the car's odometer showed approximately 50,000 km. [ 3 ] Plaintiff has used the car between the time of purchase and November of 2012 without any problem. At the time, the odometer showed approximately 60,000 km. [ 4 ] In November of 2012, Plaintiff explained that he had a problem with "the engine" and had the car towed. He informed Park Avenue Nissan of the problem and was referred to Defendant, Nissan Canada who holds the warranty. [ 5 ] Plaintiff contacted Nissan Canada and spoke to a few of his representatives namely Renee, Jean-Claude and Stephanie.

Plaintiff understood from his first conversation with one of Defendant's representatives that the repairs would be paid by Defendant. [ 6 ] However, a few days later, Nissan Canada's representative rather informed Plaintiff that the general warranty of the car had expired in July 2009 and that the Powertrain Warranty has also expired, in July 2011. [ 7 ] Therefore, according to Defendant, the car's warranty had expired when the problem with the car occurred in November of 2012. Defendant then declined liability. ANALYSIS [ 8 ] According to

Section 2803 of the Civil Code of Quebec , Plaintiff has the onus of demonstrating that his claim is well-founded : 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. [ 9 ] The Consumer Protection Act [1] also applies to the present litigation, more specifically

Section 34 and following. [ 10 ] The Court finds that Plaintiff failed to demonstrate that there was a latent defect with the car he bought from Park Avenue Nissan

three years earlier. In fact, no proof was offered except that "there was a problem with the engine". [ 11 ] Also, the proof shows there was no warranty available for the car in November of 2012. Maybe there was a misunderstanding between Plaintiff and Defendant's representative in November of 2012 when there were discussions about the car but there is no demonstration whatsoever of bad faith on the part of Defendant. FOR THESE REASONS, THE COURT: DISMISSES Mohammed Rimfa Tibilla's claim against Nissan Canada Inc.; THE WHOLE without costs. __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: April 7, 2015