2016 QCCQ 13269, 2016 QCCQ 13269

Fleisher c. Gimple 2016 QCCQ 13269 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148773-155 DATE: November 16, 2016 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ LEONARD FLEISHER Plaintiff v.

IRVING GIMPLE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] WHEREAS , on October 30, 2014, defendant, a television merchant, sold a Samsung television to plaintiff, an 82 year old consumer, for $920.00; [ 2 ] WHEREAS defendant admitted that, although plaintiff asked him for a new television, he sold him a refurbished one, which he himself had bought at J.

Sonic Services; [ 3 ] WHEREAS defendant admitted that he did not disclose this fact to plaintiff, nor did he indicate it on the sales receipt (exhibit D-1); on the contrary, when plaintiff asked him if the television was new (because the box was not sealed), defendant misrepresented the truth and told him it was; [ 4 ] WHEREAS , in so doing, defendant contravened the Consumer Protection Act [1] , which is a law of public order ; [ 5 ] GIVEN articles 40, 41, 42, 219, 228 and 272 of the Act ; [ 6 ] GIVEN defendant’s failure to fulfil his obligations under the Act ; [ 7 ] WHEREAS plaintiff is justified in asking that the contract be rescinded and that he be reimbursed the full price of the television; [ 8 ] WHEREAS defendant acted in a misleading fashion, which is tantamount to bad faith and contrary to art. 1375 of the Civil Code of Quebec as well; [ 9 ] WHEREAS , under the circumstances, the fact that the plaintiff has used the television, is irrelevant; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's claim; DECLARES the sales contract entered into between the parties, on October 30, 2014, rescinded; ORDERS defendant to pay plaintiff $920.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , from September 3, 2015, plus legal costs in the amount of $75.25; AUTHORIZES defendant to retrieve the television, which he sold to plaintiff on October 30, 2014, at his place of residence, upon full payment of the amounts owed in virtue of this judgement and with a prior written 10 day notice to plaintiff.

__________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: November 1, 2016