2011 QCCQ 8278, 2011 QCCQ 8278

Frank c. Fitch 2011 QCCQ 8278 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-122200-100 DATE: July 22, 2011 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ SHARON FRANK [...] Montréal, Québec, [...] Plaintiff v. RAFAËLLA FITCH, D.B.A.

RAFAËLLA FITCH DESIGN [...] Montréal, Québec, [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff requests the reimbursement of the price of a blind purchased from the Defendant, a designer.

THE FACTS [ 2 ] Defendant suggested to Plaintiff, as window treatment, a Vienna blackout blind with coordinating heading and cord control, at a cost of $950 plus taxes, installation and delivery included, which Plaintiff purchased in October 2006. [1] [ 3 ] Defendant had represented to Plaintiff that the Vienna blind was of equal quality to a blind manufactured by Hunter Douglas sold at a much higher price. [ 4 ] In October 2006, the blind was delivered and installed, however it was defective.

There was a problem with the drawing mechanism, the veins did not close properly and it did not filter out the light as effectively. [ 5 ] Shortly after installation, it crashed to the floor.

The blind was sent back to the manufacturer for repairs. [ 6 ] Sometime, thereafter, the blind was returned by Defendant to Plaintiff but this blind was also defective. [ 7 ] For reasons that are unexplained, it is only in May 2009 that the parties discussed the replacement of this defective blind. [ 8 ] In June 2009, the Defendant picked up this blind to have it repaired. [ 9 ] For some months, the parties continued to communicate regarding a replacement blind and other options for the window treatment for some months. [ 10 ] Although the Plaintiff states that as early as October 2006 she asked the Defendant for a refund of the purchase price, the

only evidence of a request for refund is Plaintiff's email of February 17, 2010. [2] [ 11 ] Defendant offered to the Plaintiff to give her a credit of $500, to be applied to the purchase of another blind, which Plaintiff refused. At Court, the Defendant reiterated this offer.

THE ANALYSIS [ 12 ] Acting as vendor, the Defendant has an obligation to deliver the good exempt of any defect. [ 13 ] If, shortly after the delivery, the Plaintiff had returned the blind to the Defendant and had requested a full refund, the Court would have granted this request. [ 14 ] However, the request for refund came three and a half years after the blind was purchased. [ 15 ] Even though the Defendant picked up the blind in June 2009, the Plaintiff had possession of this blind from October 2006 to June 2009. [ 16 ] The Court, in its assessment of the award must consider this period during which the Plaintiff had possession of the blind. [ 17 ] The Court considers that the sum of $500 is reasonable in the circumstances. [ 18 ] As the Defendant offered this amount prior to the action being instituted, the Court will not grant the interests or the cost.

FOR THESE REASONS, THE COURT: GRANTS in part Plaintiff's action; PRAYS ACTE of Defendant's offer to pay to Plaintiff the sum of $500; CONDEMNS the Defendant to pay to Plaintiff the sum of $500 in capital, interest and cost. __________________________________ DIANE QUENNEVILLE, J.C.Q. Date of hearing: March 22, 2011