2011 QCCQ 4236, 2011 QCCQ 4236

D'Silva c. Thermopompes N. & R. sol inc. 2011 QCCQ 4236 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-121147-104 DATE: March 25, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JOHN D’SILVA […] Beaconsfield Québec […] Plaintiff v.

THERMOPOMPES N & R SOL INC. 2325 boulevard Ford Châteauguay Québec J6J 4Z2 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] John D'Silva is suing Defendant Thermopompes N & R Sol inc. for $600 after he learned that the heat pump it had installed was not eligible for a government subsidy. Defendant claims that Mr. D'Silva had not made such a request. The evidence: [ 2 ] Mr.

D'Silva learned that the government was granting a total subsidy of $600 as an incentive to install an energy effective heat pump, namely an Energy Star qualified air-source heat pump . He contacted Defendant with the sole purpose of changing his system to one that was energy effective. [ 3 ] Mr. D'Silva claimed he advised Defendant's representative, Laurier Touchette, of his requirements. He also claimed that, in his presence and that of his wife, Mr. Touchette contacted Defendant to assure the model to be installed would meet the government's criteria for a subsidy. Ms.

Hamel, an employee of Defendant, confirmed the model in question would conform to the criteria. Mr. Touchette, who makes 200 sales per year, has no recollection of the telephone call. [ 4 ] Mr. Touchette provided Mr. D'Silva with a pamphlet concerning the heat pump. The model was a Lennox XP15 Energy Star , which would permit Mr. D'Silva to benefit from the government subsidy. [ 5 ] However, after the heat pump had been installed, Mr.

D'Silva was informed by government authorities that it did not meet the requisite specifications and therefore he was not eligible for the subsidy. [ 6 ] Defendant's director general, who represented Defendant at trial, was unaware of Mr. D'Silva's request. Defendant denies it had advised Mr. D'Silva the model sold would meet government specifications and maintains that neither the contract nor the parties' exchange of letters specifies that the model must meet the government criteria.

Defendant added that even if a model is listed as Energy Star , it does not necessarily comply with the government's requirements. Analysis:

[ 7 ] Mr. D'Silva wished to purchase a heat pump that was energy efficient to obtain a government grant. It was his sole reason for changing his system. [ 8 ] Defendant submits the contract does not specify that the heat pump must meet government specifications and be eligible for a subsidy. However, Mr. D'Silva's testimony is admissible to contradict the contract, in light of the Consumer Protection Act [1] . [ 9 ]

Article 219 of the Act states that: No merchant, manufacturer or advertiser may by any means whatever, make false or misleading representations to a consumer. [ 10 ]

Article 221 of the Act deals with the prohibited practices respecting quality of goods or services and states that: No merchant, manufacturer or advertiser may, falsely, by any means whatever,

c) hold out that goods are of a specified standard. [ 11 ]

Article 263 of the Act stipulates that: Notwithstanding

article 2863 of the Civil code , a consumer, when exercising a right provided by this Act, may make proof by testimony, even to contradict or vary the terms of a writing, to establish that this Act has not been complied with. [ 12 ] Mr. D'Silva discussed his needs with Mr. Touchette. Both Mr. D'Silva and his wife recall the conversation Mr. Touchette had with Ms. Hamel, employed by Defendant, as well as Mr. Touchette’s response, assuring them the model installed would meet the government's criteria. [ 13 ] Moreover, Mr. Touchette provided Mr.

D'Silva with a brochure, which showed the model Lennox XP that Mr. d'Silva was buying was an Energy Star , namely a qualified heat pump. This evidence, constituting a commencement of proof, coming from Defendant renders probable Mr. D'Silva's allegations. [ 14 ] For Mr. D'Silva, the brochure together with the assurance from Mr. Touchette were sufficient for him to believe an energy efficient system would be installed and, therefore, he concluded the contract. [ 15 ] Mr.

D'Silva has satisfied the Court, by preponderant evidence, that he had requested and had been assured that the heat pump purchased and installed by Defendant would correspond to that required by the government, to be eligible for the $600 subsidy. Accordingly, the Court grants him the amount claimed. FOR THESE REASONS THE COURT: GRANTS Plaintiff's action; CONDEMNS Thermopompes N & R Sol inc. to pay John D'Silva the sum of $600 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since December 29, 2009, plus judicial fees of $69. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: February 8, 2011