2011 QCCQ 1124, 2011 QCCQ 1124

Balakine c. Koganitsky 2011 QCCQ 1124 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-119615-096 DATE: January 7, 2011 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ Alexei BALAKINE […] Senneville (Québec) […] Plaintiff v.

Grigory KOGANITSKY […] Pierrefonds (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming from defendant a sum of 2 667 $ in reimbursement of the amounts of money that he has paid in order to repair a heat pump that was sold to him and installed by defendant in September 2006. [ 2 ] The heat pump was installed in a house situated at 102 Chestnut, Baie d'Urfe, province of Quebec.

The house was then occupied by plaintiff's former wife. [ 3 ] Plaintiff, who was not present at the hearing, was represented by Mr. Victor Platonov, one of his employees. [ 4 ] According to Mr. Platonov, the heat pump installed by defendant broke down in the month of January 2009. At that time, he declares that he called defendant on the telephone to ask him to repair the said pump but the latter refused to do so, without reason. [ 5 ] As a result, Mr. Platonov declares that he then contacted A1 Agences Techniques Inc. in order to perform the necessary repairs.

However, before doing so, plaintiff did not send defendant a letter of demand requesting that he honour the warranty given by him and that he perform the necessary repairs. [ 6 ] Mr. Tiger Clark, an employee of A1 Agences Techniques Inc., examined the heat pump on January 15, 2009 as appears from bill number 61026 in the amount of 244,25$. This bill reveals that no repairs were performed on that day. [ 7 ] As appears from bill number 61107, on January 16, 2009, Mr. Clark performed some repair work on the heat pump. However, it is to be noted that Mr. Clark was not present at the hearing.

Consequently, he did not testify before the Court in order to give an explanation regarding the contents of the bills and the nature of the repairs performed by him. [ 8 ] Subsequently, as appears from bills 61598 and 61600, on April 16, 2009 and on April 28, 2009, Mr. Clark performed additional work to the heat pump. These bills total the sum of 1 468,66$. [ 9 ] Regarding bills 61598 et 61600, as Mr.

Clark did not testify before the Court and as no detailed written statement signed by him was filled in Court, the proper explanations concerning the extent of the work done by him and the responsibility of defendant in regard to this work were not introduced in evidence by plaintiff. [ 10 ] Defendant contests plaintiff's action alleging that he installed the heat pump in September 2006 according the applicable standards of the trade. [ 11 ] According to defendant, at all times pertinent to the present matter, he was a qualified ''frigoriste'' in possession of a competency certificate issued in 2004 by La Commission de la Construction du Québec . [ 12 ] Defendant also testified that he was a authorised installer of heat pumps manufactured by Keeprite, manufacturer of the pump that was installed at plaintiff's house.

[ 13 ] As mentioned previously, before having the repairs performed on the heat pump installed by defendant in September 2006, plaintiff did not send him a letter of demand requesting that he honour the warranty issued by him. Furthermore, according to defendant, when Mr. Platonov called him in January 2009 regarding the heat pump, the alleged repairs had already been performed. [ 14 ] At the hearing, Mr. Platonov filed a report dated February 12, 2009, which appears to have been written by Mr. Robert Lapolice. This report, which relates the installation of the heat pump at plaintiff's house, is not signed by Mr.

Lapolice who, furthermore, was not present in Court to testify. [ 15 ] Consequently, in the absence of the testimony of Mr. Lapolice, the Court is on the opinion that the report dated February 12, 2009, is not conclusive of defendant's liability. [ 16 ] In the present case, the burden of proof lies with plaintiff. In this regard,

article 2803 of the Civil Code stipulates the following: « 2803. A person wishing to assert a right shall prove the facts on which his claim is based.

A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. » [ 17 ] After examination of all the evidence, testimonial and documentary, the Court concludes that plaintiff has not established, in a conclusive manner, that the repairs that were performed by A1 Agences Techniques Inc. were necessary and covered by defendant's warranty. [ 18 ] Moreover, as plaintiff did not formally put defendant on notice to perform the repairs on the heat pump before having them performed by A1 Agences Techniques Inc., this, in itself, voids the warranty given to plaintiff by defendant in regard to these repairs. [ 19 ] Consequently, the Court concludes that plaintiff's action must be dismissed.

FOR THE FOREGOING REASONS, THE COURT: DISMISSES Plaintiff's action, with costs in the amount of 88,00$. __________________________________ ARMANDO AZNAR, J.Q.C. Date of hearing: December 20, 2010