2012 QCCQ 6579, 2012 QCCQ 6579

Evduomwan c. Accès électronique DDO inc. 2012 QCCQ 6579 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-126532-102 DATE: JULY 29, 2012 ______________________________________________________________________ BY THE HONOURABLE JULIE VEILLEUX J.C.Q. ______________________________________________________________________ BLESSING EVBUOMWAN Plaintiff v. ACCÈS ÉLECTRONIQUE D.D.O. INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims an amount of $2,526.14 for the reimbursement of an amount paid to Defendant for the purchase of electronic equipment. THE CONTEXT [ 2 ] In the spring of 2010, Plaintiff, who is a professional D.J., went to Defendant to look at the equipment for sale. After a few visits, Plaintiff requested information from salesman Mikael Labrèche with respect to specific speakers and subwoofers.

Plaintiff was at the time looking for four high-powered pieces of electronic equipment and specifically discussed the power of the speakers and subwoofers with salesman Labrèche. He wanted two 1,000-watt speakers and two 500-watt subwoofers. Mr. Labrèche asked Plaintiff if he wanted and amplifier and Plaintiff answered that he would buy it somewhere else. Mr.

Labrèche finally sold the following equipment to Plaintiff on May 29, 2010: − 2 caisses 2XHP-15" 3 voies 1000WRMS at $769 each; − 2 caisses SUB-HP-15" 500WRMS at $350 each. [ 3 ] Plaintiff made a few deposits and paid a total amount of $2,526.14 for the equipment. Mr. Labrèche also explains that the boxes in which the equipment was delivered to Plaintiff clearly indicated the power of the equipment. Pictures are filed to support his testimony. [ 4 ] On the other hand, Plaintiff testifies that he relied on the information given by Mr.

Labrèche and did not check the information on the boxes. [ 5 ] According to Plaintiff, he used the equipment in August 2010, at an event where his services had been retained. He saw smoke coming out of the speakers and decided to take the equipment back to Defendant. He alleges that he was told by Defendant’s sales representative that the equipment was fine. [ 6 ] Plaintiff used the equipment again and had to shut it down quickly because he saw smoke coming out of the equipment again.

At that point, he took the equipment back to Defendant who tested it and informed him that everything was fine. [ 7 ] On his part, Mr. Labrèche rather testifies that Plaintiff took only the top speakers back, and not the subwoofers, and that he checked both of them, which were working properly. [ 8 ] A few days later, Plaintiff came back with the subwoofers and Mr. Labrèche checked both of them and noticed that one did not work. [ 9 ] A picture filed into the Court record shows the inside of the subwoofer which is completely cracked. When Mr.

Labrèche noticed these cracks, he was under the impression that either the subwoofer had been physically damaged or used with too powerful amplifiers. [ 10 ] Anyhow, Defendant’s representative, Mr. Bryan Green, offered Plaintiff to replace the subwoofer at the “cost price” but the Plaintiff refused. [ 11 ] Plaintiff denies said offer and blames Defendant and its sales representative for not informing him properly of the power of the speakers and the subwoofers. He explains that he bought an amplifier at Solotech and that Solotech checked with Defendant the power of

the equipment prior to selling him the amplifier. [ 12 ] Plaintiff wants to be reimbursed the total amount paid for the equipment as he took it back to Defendant prior to taking proceedings. ANALYSIS [ 13 ] The contract between the parties is subject to

section 34 and following of the Consumer Protection Act ( C.P.A. ) [1] and therefore, the equipment sold by Defendant to Plaintiff must be fit for the purpose for which the equipment of that kind is ordinarily used and must be durable. [ 14 ] In addition,

section 1729 of the C.C.Q . reads as follows: 1729.

A defect is presumed to have existed at the time of a sale by a professional seller if the property malfunctions or deteriorates prematurely in comparison with identical items of property or items of the same type; such a presumption is not made, however, where the defect is due to improper use of the property by the buyer. (The Court’s underlining) [ 15 ] In the present case, the preponderant proof is to the effect that the 1,000-watt speakers and the 500-watt subwoofers sold by Defendant to Plaintiff had such power which was explained to Plaintiff, a professional D.J.

The power of the equipment also appeared on the boxes in which it was delivered, but Plaintiff neglected to read them. [ 16 ] It is the Court’s conclusion that the use of the equipment by Plaintiff was improper as the equipment was either damaged physically or by the use of a too powerful amplifier. In any event, Defendant cannot be held liable for such an improper use. FOR THOSE REASONS,THE COURT: DISMISSES Blessing Evbuomwan’s claim against Accès électronique D.D.O. inc.; THE WHOLE, without costs. __________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: July 10, 2012