2012 QCCQ 1471, 2012 QCCQ 1471

Hubbard c. Volkswagen Canada 2012 QCCQ 1471 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-117894-099 DATE: February 20, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ NORMA HUBBARD […] Hemmingford, Quebec […] Plaintiff v.

VOLKSWAGEN CANADA 777 Bayly Street West Ajax, Ontario L1S 7G7 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Norma Hubbard, the owner of a 1999 Volkswagen Jetta TDI sues Volkswagen Canada, as manufacturer according to the definition of that term in the Consumer Protection Act [1] (the CPA) for the costs of repairing an alleged defect that required the replacement of part of the electrical system known as the wire harnesses. [ 2 ] She sues as well for prejudice related to the loss of use of the vehicle, for a total $7,000, the limit in the Small Claims Division. [ 3 ] Volkswagen Canada contests, asserting that the Plaintiff should simply have replaced the parts with used or reconditioned parts available in the market.

Volkswagen Canada also denies responsibility for this repair given that it is outside the parameters of the manufacturer's express warranty. [ 4 ] It also asserts that the Plaintiff has not given Volkswagen Canada and its authorised dealers the opportunity to provide an estimate for the repair. [ 5 ] At the hearing, Volkswagen Canada also asserted that it did not have the benefit of a proper "mise en demeure" and was therefore deprived of the opportunity of conducting its own study of the alleged defect. ISSUES [ 6 ] The Court must resolve the following issues: 1.

Is the Plaintiff entitled to any recourse for the failure of the electrical system after approximately ten years and 271 411 km of use? 2. Is the recourse forfeited because of an insufficient putting in default of Volkswagen Canada?

3. In the event that Plaintiff's claim is valid, what is the proper quantification of the prejudice?

FACTS [ 7 ] Norma Hubbard purchased her 1999 Volkswagen Jetta from another individual in 2004 for approximately $7,000. [ 8 ] The vehicle was in good condition and was used by the Plaintiff with ordinary maintenance being carried out from time to time until the events of the early part of 2009, when, suddenly, smoke was seen emanating from the steering column during normal use of the vehicle. [ 9 ] The problem was diagnosed by a mechanic as requiring the replacement of the main wiring harness as well as the right-door harness and the left-side wire harness. [ 10 ] The Court was shown the parts that were replaced which consisted in an impressive mass of grouped electrical wires too numerous to count. [ 11 ] The problem for the Plaintiff arose because one of the three parts, the left-side wire harness, although listed by Volkswagen Canada, was completely out of stock and could not be located. [ 12 ] Mrs Hubbard originally communicated with Volkswagen Canada complaining about the unavailability of the part. [ 13 ] In an email from Volkswagen Canada's customer care department dated March 11, 2009 (P-4) Catherine Anderson confirms that she contacted a Volkswagen dealer who confirmed that the part she is looking for "is a rear harness that is currently obsolete in North America.

I learned that this

part is no longer available, and it has not been superseded by a different part number." [ 14 ] She goes on to say that the parts manager at the dealership asked to be contacted so that he could offer any assistance. [ 15 ] Mrs Hubbard reports however that she was told by this parts manager that he would not look at the car and that he resented that Volkswagen was dumping this problem on him. [ 16 ] On May 26, she sent a strongly-worded letter by email to Volkswagen Canada (P-7). [ 17 ] The position she takes is that without the part, which is indicated on the website, the car becomes obsolete and she claims the costs of rebuilding the part or, in the event that the mechanic cannot rebuild it, the value of the car as assessed before the malfunction as well as other costs such as storage and loss of registration and insurance. [ 18 ] Eventually, Mrs Hubbard found someone who could supply the part, a source in Atlantic Canada and, having had no favourable reply from Volkswagen, she proceeded to have the car repaired at a cost of $2,190.24 (P-11).

ANALYSIS The sufficiency of the notice [ 19 ] The Plaintiff initially stated her grievance towards Volkswagen Canada in terms of the difficulty of obtaining the replacement part she required to make her vehicle useful after the wiring system malfunctioned. [ 20 ] In fact, had Volkswagen Canada facilitated the process by coming up with the replacement part quickly, the matter may well have been settled. [ 21 ] The Plaintiff's formal letter of demand and the application brought in the Small Claims Division are not, however, limited to a claim based on the unavailability of the part. [ 22 ] The application reads as a claim for the consequences of the car breaking down without specifying whether the claim is brought on the basis of the contract of sale and the inherent legal warranty of quality detailed in

article 1736 and following of the Civil Code of Quebec , the warranties existing in the case of contracts of sale in the CPA notably those referred to as "goods must be fit for normal purpose" , "goods must be durable" and "replacement parts repair service" or, finally, the recourse under the CPA latent defect mentioned in

section 53 . [ 23 ] The Defendant's argument that it did not have the benefit of notice fails, because it is artificial. Volkswagen had a full awareness of the Plaintiff's complaint at an early stage and never availed itself of the opportunity to examine the vehicle. Once the application was filed, it continued to abstain from any technical analysis, which would have been possible on the parts that had been removed, which the Plaintiff eventually brought to Court. The recourses available [ 24 ] Because she did not acquire the car in a consumer sale, some of the recourses provided by the CPA are available to the Plaintiff, while others are not. [ 25 ] More particularly

article 54 states: 54. A consumer having entered into a contract with a merchant may take action directly against the merchant or the manufacturer to

assert a claim based on an obligation resulting from

section 37, 38 or 39. Rights of action against the manufacturer based on an obligation resulting from

section 37 or 38 may be exercised by any consumer who is a subsequent purchaser of the goods. [ 26 ] In the present case, the Plaintiff is a subsequent purchaser: she did not acquire the goods in a sale with a merchant. [ 27 ] Therefore, articles 37 and 38 may be exercised by her, but not

article 39. [ 28 ] The same consideration applies to the action for latent defects: under

section 53: "The rights of action against the manufacturer may be exercised by any consumer who is a subsequent purchaser of the goods." The appropriate recourse-the warranty of durability [ 29 ] It is not likely that the problem that gave rise to the self-destruction of the electrical system was a latent defect.

If it were, it would be expected that the defect would surface much sooner than 10 years after the product was put into service. [ 30 ] On the other hand, the unexplained failure of the electrical system can be looked at from the point of view of the normal durability of the vehicle. [ 31 ] The applicable text of the CPA reads: 38.

Goods forming the object of a contract must be durable in normal use for a reasonable length time, having regard to their price, the terms of the contract and the conditions of their use. [ 32 ] While it may be said that 10 years is a long time for a car to be in service, common sense would indicate that if the motor, transmission, chassis and all of the essential moving parts of the vehicle are still functioning well after ten years, it would not be normal for its electrical system to fail in the meantime. [ 33 ] The mechanical systems of a car such as its motor and transmission, have parts the durability of which depends upon scheduled maintenance such as changing oil, oil filters, etc., There may be other repairs that become necessary from time to time in the normal course because of wear and tear, as is the case, for example, with brakes, a manual clutch, belts, etc. [ 34 ] If a transmission or motor fails, it is possible to imagine that failure to service the vehicle properly or improper use of the vehicle could be a possible cause.

In the case of the electrical system, however, the user remains completely passive and could not be expected to do anything to verify or maintain it. She simply expects it to last as long as the other major components of the car which, in the present case, were very functional even after 10 years of use. [ 35 ] There is no question of maintenance. If there were, the replacement of wires would be well known to the average person, as is the case with oil changes, and the Plaintiff would have simply proceeded to a routine change of the wiring.

Similarly, the defendant would have had an adequate supply in its parts department. [ 36 ] The Defence claims that the said electrical repairs do not fall under its express warranty. Yet it is well known that the legal guarantee articulated within

article 38 extends beyond the conventional warranty to cover situations expressly excluded from it or problems that arise after it has expired [ 37 ] In Leduc c. Honda Canada Inc., Justice Lavery noted that:

Malgré l'exclusion, par la garantie conventionnelle du fabricant, des réparations "suite à une collision" ou aux "garnitures extérieures dus aux risques routiers", les garanties des articles 37 et 38 de la

Loi sur la protection du consommateur ont préséance. [2] [ 38 ] Justice Buffoni in Rickbaby c.

Duval Volkswagen Inc. stated that: By law, no person may derogate from the [CPA] by private agreement and no consumer may waive the rights granted to him by the [CPA] unless otherwise provided therein. [3] [ 39 ] Despite these protections, the manufacturer or merchant cannot be held responsible for all necessary repairs within a reasonable time period, and any improper use of a product must be taken into account by the Court in its assessment of whether a guarantee of durability has been met. [4] [ 40 ] Since no evidence has been adduced demonstrating that the vehicle was used inappropriately, and given that, wiring harnesses aside, it functioned well after 10 years of use, the Court accepts that the electrical failure did not arise from any misuse on the part of the Plaintiff. [ 41 ] In the absence of improper use, and having regard to the specificity of the electrical malfunctioning, the repair of which does not form part of regular car maintenance, the Court finds that the vehicle was not durable for a reasonable length of time, contrary to s. 38 of the CPA.

Quantum considerations [ 42 ] The repair cost claimed includes seasonal and general maintenance that was required on the car including the replacement of fluids, checking tire pressure, repairing the brakes, etc.

[ 43 ] The part of the invoice that relates to the wiring problem amounts to $1,585.70, taxes included, and the Plaintiff also incurred an expense of $150 to acquire the used part from the source in Nova Scotia. [ 44 ] Once repaired, the car was back on the road after a seven-and-one-half month period.

During this time costs of insurance, registration, CAA membership and normal depreciation continued to accrue to the Plaintiff without any correlative benefit because of the loss of use. [ 45 ] The Plaintiff makes a reasonable assessment of these items of loss (P-10a) at $1,770.24; the Court excludes the claim for a hypothetical rental cost, which would have been redundant with the quantification of loss of use. [ 46 ] The Plaintiff certainly sustained a lot of trouble and inconvenience because of the difficulty in finding a solution to the problem caused by the failure of the Defendant to fulfill its warranty. [ 47 ] The Court awards an amount of $500.00. [ 48 ] The total quantum is $4,005.94.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay, to the Plaintiff the sum of $4,005.94 together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from May 26, 2009; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $157. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 6, 2011