2019 QCCQ 6199, 2019 QCCQ 6199

Tavoukdjian c. Lemay 2019 QCCQ 6199 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-157553-183 DATE: September 4, 2019 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ HARRY TAVOUKDJIAN Plaintiff v.

JEAN-DANIEL LEMAY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence and, more particularly, the testimony of plaintiff, defendant, Jean-Luc Contant and Jose Lucas Vazquez, as well as exhibits P-1 to P-6 and D-1 to D-2; [ 2 ] WHEREAS , on June 25, 2017, defendant sold a used 2011 “Sea-Doo” (“the vehicle”), to plaintiff, for the negotiated price of $8,800.00 (the asking price was $10,000.00), without legal warranty; [ 3 ] WHEREAS the contract stated the following: « Acte de vente d’un See-Doo Moi, Jean Daniel Lemay vend a M.

Harry Tavoukdjian mon Sea-Doo immatriculé QC2802765 et son numero de serie YDV03816A111. Ainsi que la remorque ayant comme numero de série 2MXBA3A359D037535 immatriculé RF2688V.

Vendu sans guaranti, tel que vu. » (sic) (contract, exhibit P-1) [ 4 ] WHEREAS , prior to the sale, defendant strongly and repeatedly encouraged plaintiff to contact Groupe Contant Inc. (“Contant”), regarding the maintenance and repair history of the vehicle, from 2011 to 2017: « appel la cie content st-agathe il peuvent te dire ton (tout) sur le seedoo de jean-daniel lemay » (sic) « Moi je pense ces mieux que tu vienne vendredi prochain et que la.semaine tu appel chez content pour savoir les informations sa va etre plus simple » (sic) « Mais je n’ai pas tout les informations » (sic) « J’ai rien garder tout les ancienne factures sont chez mon concessionnaire content mais le seedoo fonctionnent tres bien si ta des doutes et tu prefere attendre pour appeler cette semaine ces comme tu veux » (sic) (phone texts, exhibit P-2)

[ 5 ] WHEREAS , despite the fact that defendant did not have all the required information on the vehicle and despite the fact that he was willing to wait until he had consulted with Contant to obtain the history of the vehicle, plaintiff insisted on meeting with defendant the very next day, to look at the vehicle; [ 6 ] WHEREAS plaintiff bought the vehicle, without legal warranty and without having it inspected; [ 7 ] WHEREAS plaintiff, who is a mechanic, noticed that the vehicle was not working properly, when he took it out on the water, for the second time; [ 8 ] WHEREAS it was only then that plaintiff took the vehicle to Contant to have it inspected (invoice, dated July 7, 2017, exhibit P-3); [ 9 ] WHEREAS , at that time, Contant made some minor adjustments and restarted the engine; [ 10 ] WHEREAS , on July 17, 2017, the same problem occurred; [ 11 ] WHEREAS , this time, Contant discovered that the « supercharger était défectueux – un engrenage était brisé » (testimony of Jean-Luc Contant); [ 12 ] WHEREAS , however, Contant stated to the Court that it was impossible to determine when the break had occurred, stating: « Ça peut lâcher dans une minute », and also stated that the “supercharger” had almost reached its normal lifespan (89 hours vs 100 hours); [ 13 ] WHEREAS Contant added that, had plaintiff brought the vehicle to him for inspection, before buying it, he would have tested it thoroughly, as these “superchargers” were known to be problematic; [ 14 ] WHEREAS , as can be deduced from his texts and questions to defendant, before the sale, and from his testimony, plaintiff, who is a mechanic, was most probably aware of this common problem with “superchargers”; [ 15 ] WHEREAS , as above stated, plaintiff nonetheless insisted on seeing and buying the vehicle, without legal warranty, as soon as possible, without consulting Contant beforehand, as had been strongly suggested by defendant, and without having it inspected; [ 16 ] WHEREAS , in so doing, plaintiff did not act as a prudent and diligent buyer ( art. 1726 Civil Code of Québec ); [ 17 ] WHEREAS defendant denies that the vehicle was defective at the time of sale; [ 18 ] WHEREAS plaintiff had the burden of proof (arts. 2803 and 2804 C.C.Q .); [ 19 ] WHEREAS good faith is presumed (art. 2805 C.C.Q .); [ 20 ] WHEREAS plaintiff did not convince the Court that defendant acted in bad faith, either by withholding information or misleading him when he said that the vehicle was in good condition and that the “supercharger” had been « refaite » (phone text P-2): « 14.

Par ailleurs, même si le défendeur a représenté verbalement au demandeur, au moment de l'achat, que l'automobile était en "parfaite condition", un acheteur prudent et diligent doit néanmoins faire preuve de prudence élémentaire. Un véhicule usagé de 194 000 kilomètres peut difficilement être décrit comme étant en parfait état.

Les "exagérations normales d'un vendeur vantant les qualités de sa marchandise" sont tolérées dans notre droit. » [1] [ 21 ] WHEREAS , in fact, as can be seen from invoice exhibit P-5, dated May 22, 2012, the “supercharger” had indeed been replaced with a new one; [ 22 ] WHEREAS , furthermore, as can be seen from invoices dated May 1, 2015, May 26, 2016 and October 14, 2016 (exhibits D-2, en liasse , and P-7), defendant had the vehicle expertly maintained on a regular basis; [ 23 ] WHEREAS the Court does not believe that defendant, who is not a professional seller, was aware of any defects affecting the quality of the vehicle (art. 1733 C.C.Q .); [2] [ 24 ] WHEREAS , furthermore, plaintiff failed to advise defendant, ahead of time, that the engine was being taken apart by a third party, namely Vazquez, with a view to have his own expert present, if desired; [3] [ 25 ] WHEREAS , finally, Vazquez did not convince the Court that the work carried out by Contant, in 2012, was defective; [ 26 ] WHEREAS , however, defendant did fail to provide plaintiff with the trailor (“remorque”) registration documents, which he had undertaken to provide (contract P-1 and phone texts, P-2); [ 27 ] WHEREAS , in its discretion, the Court establishes the damages related to this breach of contract, at $1,000.00, given the trouble and inconvenience caused to plaintiff due to defendant’s omission and cavalier attitude in this regard; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's claim, in part; CONDEMNS defendant to pay plaintiff the sum of $1,000.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , from September 21, 2017, and legal costs in the amount of $187.00.

__________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: May 28, 2019