2014 QCCQ 7271, 2014 QCCQ 7271

Tibilla c. Plaza Chevrolet Buick GMC Cadillac inc. 2014 QCCQ 7271 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-130430-111 DATE: July 4, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ MOHAMMED TIBILLA Plaintiff v. PLAZA CHEVROLET BUICK GMC CADILLAC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is the owner of a Nissan Murano car, model 2006. He had several incidents with his vehicle and his insurer recommended that the repairs be carried out by Defendant. Plaintiff makes various complaints about the quality of the repairs and work not properly completed. He claims $7,000 as compensation.

Defendant pleads that it carried out all repairs in accordance with the rules of the trade and denies all liability. [ 2 ] Plaintiff purchased the vehicle second hand in 2009 from an authorized dealership. At the time, the car was fully inspected and certified by the Nissan dealership (Exhibit P-1 and P-2). The events in issue took place between October 2010 and April 2011, so the car had an approximate age of between 4 and 4 1/2 years during the period in issue. Context [ 3 ] In October 3, 2010, Plaintiff was a victim of a hit and run and was referred by his insurer to the Defendant for damages to his vehicle.

The repairs were completed around October 15, 2010. At the time of pick up of the vehicle, the Plaintiff noticed the colour of paint on the replaced doors was different from the original paint colour elsewhere on the car. Defendant’s representative assured Plaintiff that the difference would disappear if he did compounding and simonized the vehicle. On the basis of the accuracy of such a representation, Plaintiff accepted to take delivery of the car and to carry out such work later. Broken Suspension Link [ 4 ] Upon driving home, Plaintiff detected a noise coming from the side of the vehicle.

Defendant was contacted and a new visit was scheduled only in January 2011. But the repair was unsuccessful and the noise persisted. Again Plaintiff complained and a new appointment was scheduled for April 2011. Still, the noise problem was not resolved. Another appointment was scheduled for May 2011. This time, a full inspection was made and the problem was discovered, namely that a suspension link was broken. Defendant pleads that this is a question of wear and tear.

Plaintiff states that it resulted from the original accident and should have been repaired initially or was caused by the repairs undertaken and should have been fixed. [ 5 ] Based upon the proof, and the obligation of result owed by the Defendant to carry out a repair which resolves the problems resulting from the accident ( Article 2100 (2) of the Civil Code of Quebec ), the Court finds in favour of the Plaintiff on this point. According to the preponderance of the proof, the problem of the broken link was caused when the car was damaged as a result of the

accident and should have been ascertained and repaired at that time. Defendant declared to Plaintiff that all the damages resulting from the accident had been repaired when that was not the case. [ 6 ] The Court arbitrates that the costs corresponding to repair the broken suspended link is $500. That amount will be granted by the Court. Broken Driver’s Seat [ 7 ] The Plaintiff also complains of the broken driver’s seat. This was discovered by Plaintiff immediately after the car was given back to him. The same analysis applies.

This problem, perhaps in a nascent state, resulted either from the accident or from deficient corrective work carried out by Defendant. The latter had an obligation of result to correctly eliminate the problems caused by the accident and it cannot shirk or avoid its responsibility by stating that the insurer did not authorize this as a repair. The Defendant’s duty of information and loyalty was owed to Plaintiff alone (

Article 2102 of the Civil Code of Quebec ) irrespective of who was paying for the repairs. The Court arbitrates an amount of $1,200 for compensation in that regard. Scratches on Paint and Cost of Compounding [ 8 ] With regard to the scratches on the car and the inadequate paint work, Plaintiff requests a refund of the amount paid by him for simonizing and compounding. [ 9 ] The Court has heard Plaintiff and Defendant’s evidence and examined the photos. The Court is of the view that the Plaintiff was misled by Defendant that the simonizing and compound would eliminate the difference in colours and scratches.

The Court is of the view that the paint work was not satisfactory in the first place and did not respect the rules of the trade. In this day and age, the match of colour should have been carried out without difficulty. [ 10 ] The Court finds that there was inadequate repair work and false representations to Plaintiff as to the effect of the proposed cosmetic work. Plaintiff is entitled to a refund for the amount paid for invoice GMCB476176 (Exhibit P-5). The Court will grant damages equivalent to a refund for the amount paid ( Article 1590 (1) of the Civil Code of Quebec ,

Article 272 of the Consumer Protection Act , CQLR c. P-40.1), namely $501.51. Alleged Excessive and Abusive Use of Vehicle and Fuel by Garage [ 11 ] Plaintiff claims that Defendant and its employees used excessively and for their own purposes his car while it was in their custody and asks for compensation in that regard. There is insufficient proof that such unacceptable use of the car occurred and Plaintiff’s claim in that regard is rejected.

Damaged Control Panel and Driving Mirrors [ 12 ] The Plaintiff alleges that the driving mirror controls were damaged by Defendant and that, after the mirrors were replaced, they did not respond to the controls on the control panel. According to the uncontested evidence, Plaintiff never advised Defendant of the alleged problem. That allegation was not mentioned in Plaintiff’s demand letter (Exhibit P-8).

This claim will therefore be dismissed. [ 13 ] For the reasons stated, certain of the amounts claimed by Plaintiff are justified in fact and in law and the Court will condemn Defendant to pay the total of those amounts to Plaintiff, namely $2,201.51. FOR THESE REASONS, THE COURT:

GRANTS in part Plaintiff’s motion; CONDEMNS Defendant to pay Plaintiff the amount of $2,201.51, plus legal interest of 5% per year plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec starting from the date of the demand letter May 16, 2011; WITH JUDICIAL COSTS of $159 in favour of Plaintiff. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: April 8, 2014