2016 QCCQ 2092, 2016 QCCQ 2092

Tran c. Autos Mondiales 2000 inc. 2016 QCCQ 2092 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-142765-140 DATE: February 12, 2016 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ VAN SANG TRAN Plaintiff vs. LES AUTOS MONDIALES 2000 INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Claiming that Les Autos Mondiales 2000 inc. misrepresented to him that the 2007 Mercedes GL 450 that it sold him had never been involved in an accident, Plaintiff claims $5,000 in damages from the Defendant as compensation for the fact that the vehicle had in fact been involved in accidents prior to him purchasing it on June 25, 2013. [ 2 ] In support of his allegation, Plaintiff filed a report printed on January 21, 2014 from the website https://reports.carproof.com .

The report indicates that the Mercedes was involved in various accidents between 2006 and 2008, and was reported at a car auction on April 14, 2013 as presenting structural damages. [ 3 ] Defendant contests the claim alleging that : - It acted in good faith in advertising the vehicle in question as never having been in an accident, as its understanding of the state of the car was based on a Carfax Vehicle History Report, that Plaintiff filed as exhibit P-2, report which indicates: No accident/damage reported to CARFAX; - Other than the Carproof report, Plaintiff did not provide any evidence to confirm that the vehicle had in fact been damaged, and as such, it categorically denies said allegation, having been denied the possibility to inspect the vehicle because Plaintiff sold it; - Plaintiff did not provide any evidence suggesting that he sold the vehicle at a loss, and as such, his claim for damages related to the alleged losses incurred is unfounded; - The servicing and repair fees related to the vehicle that Plaintiff paid while he owned it, for which he claims reimbursement, are normal wear and tear repairs for which the Defendant cannot be held responsible; - Plaintiff paid $15,000 plus taxes for the vehicle on June 25, 2013, $17,246 in total, he traded the car in on January 24, 2014 for $11,975 ($13,768.20 with applicable taxes), when he purchased a new 2008 Mercedes-Benz GL-Class that he paid $29,975, for a difference $3,477.80.

Before doing that he refused to sale the car back to the Defendant which, when informed of the situation, offered to take it back for $14,000. [ 4 ] In support of his claim for $5,000, Plaintiff filed invoices relating to regular maintenance of the car while he owned it.

He claims he would not have purchased the car had he known that it had been involved in accidents, and would not have spent money to maintain and repair it. [ 5 ] Plaintiff did not obtain an evaluation of the value of the car at the time he traded it in for $11,975. [ 6 ] It appears from the Carproof Claims Vehicle History Report filed by Plaintiff that Defendant purchased the vehicle in April of

2013 at the auction and therefore who ever purchased the car for the Defendant would have been made aware that the car sustained “major damages”. Defendant’s representative who testified at the hearing could not explain why this information was not related to him who sold the car to Plaintiff. [ 7 ] Plaintiff did not test drive the car prior to purchasing it. He saw that the car needed some maintenance and repairs: he could see rust on the car, dents that needed to be fixed, and knew that the battery needed to be changed as the engine did not start when he first tried to start the car.

The car was six years old when he purchased it and its odometer indicated 178,665 kilometres. [ 8 ] After he purchased it, Plaintiff did not drive the car much.

Close to Christmas of 2013, coming back from a party, Plaintiff found that the car was not stable on the snow and, right there and then, made the decision to get rid of it. [ 9 ] He went to a dealer with the intention of buying a used 2008 GL Class Mercedes-Benz, the odometer of which indicated 132,661 kilometres, and accepted to pay $29,975 for it, plus taxes, double what he paid for Defendant’s car. [ 10 ] He wanted to trade in Defendant’s car to purchase this other car.

According to him, the dealer initially offered him $14,000 for the car, but reduced its price to $11,000 after it printed the Carproof Claims Report that indicates that it had been involved in accidents. [ 11 ] Plaintiff did not provide any corroborating evidence that he had originally been offered $14 000 for Defendant’s vehicle. [ 12 ] When he found out about the Carproof Claim Report, Plaintiff called Wissan Khalil (hereafter “ Mr.

Khalil ”), the Defendant’s representative who sold him the car, to complain about the fact that he had sold him a damaged car without having told him. [ 13 ] Plaintiff claims that Mr. Khalil refused to take the car back and give him his money back. Mr.

Khalil claims to the contrary that he offered to pay $14,000 for Plaintiff’s car, the price Plaintiff claimed the dealer was going to trade the car in for before it found out it had been involved in accidents, offer that Plaintiff refused. [ 14 ] Defendant is adamant that the car it sold to Plaintiff was worth a lot more than $11,975, the amount Plaintiff accepted to trade it in for on January 24, 2014, that is why it was willing to purchase it back for $14,000. [ 15 ] Defendant’s contention is sustained by : 1) The evaluation of the car Plaintiff obtained prior to purchasing it, which indicates that the wholesale price of the car was $22,100, reduced to $14,999 due to the condition of the car [1] . 2) At the hearing, Defendant’s representative filed ads he had printed earlier that day of cars of the same year and same model as the one he sold to Plaintiff in June of 2013, with similar millage.

In December of 2015, those vehicles that had sustained damages were being advertised for $16,400 and $14,300 [2] . ANALYSIS AND DECISION [ 16 ] Anyone who wants to assert a right shall prove the facts that sustain his claim and, safe exception, the clear and convincing evidence that makes the existence of a fact more probable than its nonexistence is sufficient [3] to satisfy the test of balance of probabilities [4] . [ 17 ] The evidence does not have to lead to an absolute certainty, scientific or mathematical.

It is sufficient that it make probable the disputed fact [5] . [ 18 ] In the case of an action for damages, the Plaintiff must demonstrate, under the same rules of evidence, the fault of the party being sued, the damage suffered and the casual link between the fault and the damage. [ 19 ] If the evidence is not compelling enough, or if it is contradictory and the judge is unable to determine where the truth lies, the one who had the burden of persuading the court of the merits of the claim loses. [ 20 ] Plaintiff is not claiming that the car he purchased from the Defendant was affected by a latent defect which rendered it unfit for the use he intended to make of it or which so diminished its usefulness that he would not have paid the price he agreed to. [ 21 ] Plaintiff alleges he would not have purchased the car had he known it had been involved in accidents and had sustained damages. [ 22 ] The evidence shows two things :

a) Plaintiff paid market value for the vehicle considering the damage it had sustained, as indicated by the professional evaluation he obtained on June 18, 2013 from Estimation D. Dupras & Associés inc.;

b) The evaluation report of Estimation D. Dupras & Associés inc. does mention that the car presents damages that have been caused by an accident. [ 23 ] With that evaluation in hand, Plaintiff could not have ignored that the vehicle the Defendant was selling him had been involved in accidents, whatever the Carproof report mentioned: the state of the car was apparent. [ 24 ] A prudent and diligent buyer would have concluded that the vehicle had been damaged in the past.

If the fact that the vehicle had not been involved in accidents was indeed an essential condition of his purchase, Plaintiff should have required a thorough inspection of the car to understand the extent of the damages the vehicle had sustained. [ 25 ] Plaintiff did not argue that the damages the car sustained in the accidents it had been involved in prior to June of 2013 had

reduced its utility and he has no proof that it reduced its value in comparison to the price he paid for it. [ 26 ] Had the Court concluded that the vehicle was affected by a defect, Plaintiff failed to establish the amount of the damages he sustained. [ 27 ] Furthermore, in light of the evidence presented, i.e. the evaluation of Estimation D.

Dupras & Associés inc., of the value of the car Plaintiff purchased in June of 2013 and the price asked for similar cars two years later, Defendant’s contention that it offered to buy back Plaintiff’s car for $14,000 is credible. [ 28 ] In refusing the offer, Plaintiff caused his loss of $3,477, representing the difference between the price he paid for the car and the price he exchanged it for. [ 29 ] Had he been successful in his claim, Plaintiff would not have gotten the full amount he was claiming as damages, for two reasons :

a) The amounts he paid to maintain and repair the car were not related to the damages the car had sustained in the accidents it had been involved in and;

b) He had normal use of the car for six months. [ 30 ] In light of the foregoing, Plaintiff’s claim is rejected. [ 31 ] WHEREFORE, THE COURT: [ 32 ] REJECTS the claim; [ 33 ] CONDEMNS Plaintiff to pay $206 to the Defendant as judicial cost. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: November 30, 2015 Une

partie peut obtenir la traduction française du présent jugement en adressant une demande écrite à la Directrice du secteur civil du Palais de justice de Montréal.