2018 QCCQ 4568, 2018 QCCQ 4568

Yu c. 9248-4653 Québec inc. (De l’Église Auto Inc. and Xiong Di Garage) 2018 QCCQ 4568 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-151555-168 DATE: July 4, 2018 ______________________________________________________________________ BY THE HONOURABLE Catherine pilon, J.C.Q. ______________________________________________________________________ DAVID YU Plaintiff v. 9248-4653 Quebec Inc., doing business under the names De l’Église Auto Inc. and Xiong Di Garage Defendant JUDGMENT ______________________________________________________________________ [ 1 ] David Yu claims $3,601.60 from 9248-4653 Quebec Inc., doing business under the names De l’Église Auto Inc. and Xiong Di Garage (hereinafter “De l’Église”), for faulty repairs performed on his vehicle. [ 2 ] The damages are broken down as follows: • Oil filter and oil $50; • APA inspection fee $120; • CAA towing fee $40; • Replacement of engine and starter $3,217.69; • Remote key $150 [1] ; and • Registered mail $23.91. [ 3 ] De l’Église contests the claim and argues that the repairs were properly performed.

It cross-claims $120 from Mr. Yu for unpaid inspection fees. Questions at issue A. Can De l’Église be held liable to Mr. Yu for the repairs it performed on his vehicle? If so, what is the value of his claim? B. Is De l’Église entitled to claim its unpaid inspection fees? Context [ 4 ] On October 14, 2015, Mr. Yu noticed that the “check engine” light of his Dodge Grand Caravan came on while he was backing out of his driveway. He also noticed a significant oil stain underneath the area where his car had been parked. Mr.

Yu had the vehicle towed to De l’Église. [ 5 ] Once the vehicle arrived at De l’Église, it was examined by Xiong Di, mechanic and vice-president of De l’Église. Mr. Di looked under the car and noticed an oil leak. The oil filter was changed by an employee, and new oil was added. Mr. Yu then took the vehicle for a quick road test which led to the same issue. [ 6 ] Mr. Di then performed a more thorough investigation using the car lift, and once again changed the oil filter and added new oil. The vehicle was left running for ten minutes. Mr. Di informed Mr.

Yu that the problem had been fixed and that there was no longer any leakage. He also warned him not to drive the vehicle and have it towed to a garage if there was a further oil leak or if the “check engine” light came on. [ 7 ] Mr. Yu paid $ 50 for the work performed by De l’Église. [ 8 ] On October 16, 2015, Ms. Mei Li, Mr. Yu’s wife, drove the vehicle to take their children to school. She did not notice any

particular oil stain on the driveway as she pulled out. On her way back the “check engine” light turned on. She stopped immediately to park on the side of the road. The vehicle had not been driven between October 14 and that day. [ 9 ] The vehicle was towed once again to De L’Église. Attempts by Mr. Di to ignite it were unsuccessful. He asked Mr. Yu to leave the vehicle with him so that he could check it and determine the nature of the problem. [ 10 ] Mr. Di advised Mr.

Yu a few days later that both the starter and the engine were damaged beyond repair, and to leave the vehicle under his care for further investigation. However, he testified at trial that the starter was not damaged and that he never disclosed this information to Mr. Yu although he had informed him otherwise. [ 11 ] In Mr. Di’s opinion, the engine was damaged as a result of a significant oil leak which led to its improper lubrication. [ 12 ] Mr. Di and Mr. Yu met on October 19 at De l’Église in the company of the mechanic retained by Mr. Yu to inspect the vehicle. Mr. Yu indicated to Mr.

Di that he would have another garage also perform an inspection. Given this information, Mr. Di refused to hand over the vehicle unless he was paid $120 for his inspection. He admitted at trial that he had not previously informed Mr. Yu that there would be an inspection fee. He also admitted that he kept the key and the starter and never offered to give them back to Mr. Yu until the hearing of this case. [ 13 ] On October 26, 2015, Mr. Yu sent De l’Église a demand letter requesting that the engine and starter be restored back to their original condition at no cost.

De l’Église replied on November 1, 2015, requesting that the vehicle, that was kept on the street, be removed within three days upon payment of its $120 inspection fee. [ 14 ] Given Mr. Di’s refusal to return the car unless the inspection fee was paid, Mr. Yu had to have it towed from the street to another garage where the starter and engine, which were kept inside the premises of De l’Église, were replaced for an amount of $ 3,217.69. Analysis A. Can De l’Église be held liable to Mr. Yu for the repairs it performed on his vehicle?

If so, what is the value of his claim? [ 15 ] Pursuant to the Consumer Protection Act (the “CPA”), any repair costing more than $ 50 carried out on an automobile is guaranteed for three months or 5,000 km, whichever occurs first. [ 16 ] The initial repairs performed by De l’Église cost $ 50 and are not subject to the guarantee of the CPA. Notwithstanding the exclusion of this guarantee, De l’Église nonetheless has a duty of care in the performance of its work.

The Court must therefore determine whether the repairs at issue, i.e. changing the oil filter and adding new oil, were properly executed given the problem at hand. [ 17 ] By the own admission of Mr. Di, the engine was heavily damaged due to an oil leak which is precisely what he was meant to repair when the vehicle was first brought to De l’Église.

This problem occurred once again only two days later while the vehicle had not been used since it came back from the repairs. [ 18 ] These facts lead the Court to conclude that there exists a serious, precise, and concordant presumption that the work of October 14 was faulty and caused the damages to the vehicle. [ 19 ] With respect to the value of the damages, changing the engine was necessary and a direct result of the faulty work. As for the starter, although it was not damaged, De l’Église retained it and refused to return it to Mr. Yu unless the inspection fee was paid.

However, as discussed below, this fee could not be claimed from Mr. Yu and the starter was unduly retained by De l’Église. Mr. Yu was justified to replace it. De l’Église is liable to pay the amount of $3,217.69 for both the engine and the starter. [ 20 ] The October 14 work was not effective in resolving the issue of the oil leak. Mr. Yu is entitled to recover the $ 50 paid to De l’Église for this work. [ 21 ] The $120 inspection fee of Mr. Yu’s expert is also recoverable. [ 22 ] The October 14 towing fee of $ 40 would have necessarily been incurred and is not related to the faulty work.

This item of the claim is not granted. [ 23 ] The registered mail fee of $ 23.91 to send the demand letter is also granted. [ 24 ] In light of the above, De l’Église is liable to Mr. Yu for a total of $ 3,411.60. B. Is De l’Église entitled to claim its unpaid inspection fees? [ 25 ] According to

section 168 of the CPA, a merchant may not charge a price for an estimate unless the consumer is advised of this price before undertaking the estimate. De l’Église never informed Mr. Yu that it would charge a fee to inspect the vehicle and estimate the value of the work to be carried out. It is not entitled to its cross-claim. FOR THESE REASONS, THE COURT: GRANTS in part the Application of the Plaintiff; CONDEMNS the Defendant to pay the Plaintiff $ 3,411.60 with interest at the legal rate and the additional indemnity of

article 1619 of the Civil Code of Quebec since October 26, 2015; DISMISSES the cross-claim of the Defendant;

CONDEMNS the Defendant to pay the Plaintiff the Court costs of $ 100. __________________________________ CATHERINE PILON, j.c.q. Dates of hearing: June 26 and September 29, 2017; March 6, 2018