2023 QCCQ 584, 2023 QCCQ 584

Khedr c. Des Sources Dodge Chrysler ltée 2023 QCCQ 584 COURT OF QUÉBEC Small Claims Court CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No.: 500-32-712295-205 DATE: February 22, 2023 ______________________________________________________________________ PRESIDED BY THE HONORABLE MÉLANIE DUGRÉ, J.C.Q. ______________________________________________________________________ AHMED KHEDR Plaintiff v.

DES SOURCES DODGE CHRYSLER LTÉE Defendant __________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ahmed Khedr claims $9,848 from Des Sources Dodge Chrysler Ltée ( Dodge ) on the basis that Dodge proceeded with maintenance repairs on his car without first obtaining his approval, and for a cost that exceeded an estimate he had obtained elsewhere. [ 2 ] Mr. Khedr also alleges that the repairs were not adequate, and that Dodge retained his car unlawfully to force him to pay for the repairs. [ 3 ] Dodge denies Mr.

Khedr’s allegations and argues that the repairs performed on the car were authorized. They add that some repairs were subsequently corrected, and that Mr. Khedr did not come back to have the remaining repairs finished. QUESTIONS IN DISPUTE

a) Did Dodge commit a fault in the performance of maintenance repairs on Mr. Khedr’s car?

b) If so, what amount of damages is Mr. Khedr entitled to? CONTEXT AND ANALYSIS

a) Did Dodge commit a fault in the performance of the maintenance repairs on Mr. Khedr’s car ? [ 4 ] In civil matters, the burden of proof is on Plaintiff’s shoulders, in accordance with the principle provided in

article 2803 of the Civil Code of Québec ( C.C.Q. ), [1] which states that “A person seeking to assert a right shall prove the facts on which his claim is based.” [ 5 ] The Court decides on the balance of probabilities, pursuant to

article 2804 C.C.Q., which states that “Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, […].” In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 6 ] In addition, when the evidence adduced is not sufficiently convincing, or if the evidence is contradictory and it is impossible for the judge to identify the truth, the party upon whom the burden of proof lies will lose. [2] [ 7 ] In the present case, the burden of proof belongs to Mr.

Khedr, who must convince the Court that Dodge committed a fault within its contractual relationship with him. October 2019 repairs [ 8 ] Mr. Khedr is a Uber driver who needed to obtain an annual inspection on his car in order to renew his contract with Uber. [ 9 ] On October 22, 2019, Mr. Khedr obtained from Canadian Tire an estimate of $1,726.27 for maintenance repairs on his car. [3] [ 10 ] At trial, Mr. Khedr explained that his plan was to shop around and obtain several estimates before moving forward with any suggested repairs. [ 11 ] On October 29, 2019, Mr.

Khedr went to Dodge and asked the technician to prepare an estimate for any work or repair on his car. He testified that the technician told him they were busy, but that they would keep his car and call him with the estimate. In the meantime, Dodge lent him a curtesy car.

[ 12 ] On October 31, 2019, Mr. Khedr was surprised to get a call from Dodge, asking him to pick up his car because the repairs had been completed. Upon his arrival at Dodge, he learned that work and repairs had been performed and there was a $4,225.05 bill to pay. [4] [ 13 ] Mr. Khedr did not have the financial means to pay for this bill. He therefore applied for financing through AccèsD , which was refused. He left Dodge without his car and had to return the curtesy car.

It took him nine days to gather the funds to pay for the repairs and get his car back. [ 14 ] Dodge denies that the work and repairs performed on Mr. Khedr’s car were not authorized. Its representative explained that on October 29, 2019, Mr. Khedr brought his car to Dodge with specific requests. [ 15 ] The Bon de travail dated October 29, 2019 [5] shows, under items A to E, that Mr. Khedr asked for: an inspection in 85 points; a verification of the engine because of problems upon acceleration; replacement of the window regulator on the front driver door; and purchase and installation of new tires.

This document was signed by Mr. Khedr. [ 16 ] Mr. Khedr’s car was kept by Dodge to perform the work, and a curtesy car was lent to him. During the inspection, Dodge’s technicians identified additional problems on the car. Dodge contacted Mr. Khedr to obtain his approval, and then proceeded with the additional repairs. These additional repairs appear on the final invoice [6] as items F to K. [ 17 ] Dodge’s representative mentioned that no written trace of the phone call was found in Mr. Khedr’s file.

However, it is usual procedure to always obtain a client’s approval before performing work or repair on a customer’s car. [ 18 ] The absence of written trace of the phone call with Mr. Khedr is a contravention to

article 172 of the Consumer Protection Act : [7] 172. The merchant shall not carry out any repairs not provided for in the accepted estimate before obtaining the express authorization of the consumer. In the case where the merchant obtains a verbal authorization, he must record it in the estimate, indicating the date, the time, the name of the person who gave it and, where such is the case, the telephone number dialed. [ 19 ] However, the fact that Dodge could not find the written note confirming the phone call with Mr.

Khedr is not in itself evidence that the phone call did not take place, and it should not result in the consumer’s unjust enrichment; this is not the purpose of the Consumer Protection Act . [8] [ 20 ] The Court is satisfied with the testimony of Dodge’s representative who confirmed that no repair was performed on Mr. Khedr’s car without his authorization. [ 21 ] Dodge also indicated that Mr. Khedr did not have the financial means to pay the bill on October 31, 2019, that he was refused at financing, and that it took a few days before he could gather the funds to pay the bill and get his car back.

January 2020 and February 2021 events [ 22 ] Dodge’s representative explained that in January 2020, Mr. Khedr reached out to him to report that he was not satisfied with the work performed in October, and that he was still experiencing problems with the car. [ 23 ] On January 7, 2020, Dodge took the car back at its own cost, and proceeded with a new inspection. They fixed some problems that were identified, but a part had to be ordered for the mirror switch. The part was ordered, but Mr. Khedr never came back to have the repairs completed. [ 24 ] On January 14, 2021, one year and nearly 40,000 km later, Mr.

Khedr obtained an estimate from another Dodge dealer, Champlain Dodge Chrysler (Champlain), which identified some problems. [9] [ 25 ] Although there is no evidence that the problems identified by Champlain were related to the October 2019 repairs, Dodge agreed to take Mr. Khedr’s car back to proceed with repairs on the bearings, which were still under the two-year warranty. [ 26 ] On February 22, 2021, Mr.

Khedr went to Dodge but refused to leave his car unless a Dodge’s representative signed a letter, [10] acknowledging that Dodge was guilty of vandalism on his car, and that they would pay him $150 for each day they would keep his car. [ 27 ] Dodge obviously refused to sign this document. As a result, Dodge was unable to perform any additional inspection or repairs on Mr. Khedr’s car. [ 28 ] Based on the evidence offered at trial, Mr. Khedr was unsuccessful at convincing the Court that Dodge had performed unauthorized work and repairs on his car in October 2019. [ 29 ] Indeed, when Mr.

Khedr picked up his car on October 31, 2019, he did not mention anything about not having authorized the repairs, nor did he when he reached out to Dodge again at the beginning of January 2020, to complain about the qualify of the work. [ 30 ] Moreover, none of the two complaints filed with the Office de la protection du consommateur , on January 29 and August 26, 2020, [11] refer to the fact that Dodge would have performed work and repairs on Mr. Khedr’s car without his authorization. These complaints only raised Mr.

Khedr’s dissatisfaction towards the repairs performed in October 2019. [ 31 ] As for the allegations that the work and repairs were not correctly performed, the Court is satisfied with Dodge’s explanations that each time Mr. Khedr reached out, they tried to assist and find the cause of the problems without charging him.

[ 32 ] Furthermore, it was also unreasonable for Mr. Khedr to request, in February 2021, that Dodge undertook to pay him $150 per day for keeping his car for inspection and repairs. [ 33 ] Given the foregoing, the Court is therefore of the view that Mr. Khedr did authorize the repairs that were performed by Dodge in October 2019. While some mechanical problems remained unsolved, Dodge took the car back to perform additional repairs and continued to offer its collaboration to Mr. Khedr. [ 34 ] For all these reasons, the Court concludes that Mr. Khedr did not meet his burden of proof to show that Dodge committed a fault in the performance of maintenance repairs on his car.

b) If so, what amount of damages is Mr. Khedr entitled to ? [ 35 ] Given the Court’s answer to the first question, it is not relevant to comment on the amounts claimed by Mr. Khedr. FOR THESE REASONS, THE COURT: DISMISSES Ahmed Khedr’s application; THE WHOLE, without costs. __________________________________ MÉLANIE DUGRÉ, J.C.Q. Date of hearing: February 2 nd , 2023