2016 QCCQ 10492, 2016 QCCQ 10492

Ebrahimi c. Takhar 2016 QCCQ 10492 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-148299-151 DATE: July 12, 2016 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ SHAHRYAR EBRAHIMI Plaintiff vs.

SANDIP KAUR TAKHAR Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Alleging that the Defendant sold him a car that presented a latent defect, Plaintiff is claiming $2,000 from the Defendant representing the amount he paid to have the car repaired. [ 2 ] The Defendant contests the claim. QUESTIONS AT ISSUE [ 3 ] To decide this case, the Court will determine if the car that the Defendant sold to Plaintiff presented a latent defect that rendered it unfit for the use Plaintiff intended to make of it.

CONTEXT [ 4 ] On July 4th, 2015, Plaintiff went to Defendant’s residence to look at the car she had advertised for sale, a Honda Civic 2007, the odometer indicating approximately 118 000km. [ 5 ] He drove the car in Defendant’s neighbourhood for 10 minutes according to him or 20 minutes according to the Defendant. [ 6 ] Interested in buying the car, Plaintiff left a $100 deposit so the Defendant would keep the car for him until he could come back to pay the balance of the price. [ 7 ] Plaintiff returned to Defendant’s residence on July 8, 2015 to pay the balance of the price and take possession of the car. [ 8 ] The parties do not agree on how much Plaintiff paid for the car: $6,500 according to Plaintiff, $3,000 according to the Defendant.

Although the parties declared at the Société de l’assurance automobile du Québec that Plaintiff paid $ 3,000 for the car [1] , he did withdraw $6,400 from his bank account on the day he paid the Defendant the balance of price [2] . [ 9 ] The Defendant owned the car for four months before she sold it to Plaintiff.

She sold it because she purchased a car of the year 2012. [ 10 ] According to Plaintiff he drove the car for one hour on the day that he purchased it before the engine burned due to a leakage from the oil tank. [ 11 ] The Defendant explained that the first time the Plaintiff looked at the car he inspected the bottom of it by lying down under it. [ 12 ] He asked the Defendant to have the remote start fixed, which she did.

[ 13 ] On the same day that he purchased the car, Plaintiff called the Defendant to complain about a problem with the key. She told him what he was doing wrong and the problem was solved. [ 14 ] The following day, July 9, 2015, Plaintiff called to ask the Defendant the name of the insurance company she used to insure the car. At the end of the afternoon he called to complain about an oil leak. Defendant’s husband who is a mechanic, told Plaintiff not to drive the car. [ 15 ] Plaintiff called the Defendant again in the afternoon of July 10, 2015 complaining about the service light being on.

Later that day the engine of the car burned due to a lack of oil. [ 16 ] Below is what Plaintiff wrote to the Defendant on July 10, 2015: (…) on July 08, 2015 afternoon I told you by phone, there is oil leakage from the oil pan and I saw welded line just next to the oil filter in the oil pan, but you refused it and mentioned that the material of oil pas in Aluminum and cannot be welded.

Today of this letter date, I called you again and described you the oil alarm is flashing, you told me it should be reset because of the new oil and after 10 minutes of that, I heard a huge sound from engine and no choice just inspection by the mechanic in the Atlas Garage and he pointed out by the oil leakage from the welded line of the oil pan, the engine was damaged and must be fully changed which is mentioned in the attached report. [3] [ 17 ] In the text message Plaintiff sent to the Defendant, he wrote the following: U received the registered letter your husband exactly knows u sold me fully damaged engine car, after 2 km driving, engine is dead , it was closed that I had an huge accident in the highway because the car stopped in the middle of highway (…) [4] [ 18 ] Plaintiff is claiming reimbursement of the following amounts: a) $34.49 that he paid to have the car inspected b) $1,241.73 that he paid to have the engine of the car replaced [5] ; c) $100 paid to A-Z Atlas on July 30, 2015 [6] ANALYSIS [ 19 ] Anyone who wants to assert a right shall prove the facts that sustain his claim with clear and convincing evidence that makes the existence of the facts he wishes to establish more probable than there nonexistence [7] , to satisfy the test of balance of probabilities [ 20 ] The evidence does not have to lead to an absolute certainty, scientific or mathematical.

It is sufficient that it make probable the disputed facts [8] . [ 21 ] Whether she knew of its existence, the seller of a good is responsible for the latent defect of the good. The relevant applicable disposition reads as follows : 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.

The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. [ 22 ] A property is presumed to have been sold without any latent defect until the buyer establishes otherwise.

For the buyer to obtain that the sale to be cancelled or the sale’s price reduced further to him having discovered a defect in the good, he must establish that the defect is serious, was hidden at the time he purchased the good and unknown to him. [ 23 ] For the Court to grant Plaintiff’s claim, it must be satisfied according to the balance of probabilities that the car the Defendant sold him was affected by a defect that he could not have detected by a reasonable inspection of the good. [ 24 ] Plaintiff wrote to the Defendant that on July 8, 2015 he saw that the oil pan had been welded and that it was leaking. [ 25 ] The Court consequently concludes that Plaintiff could have and must have seen that the oil pan had been welded when he went under the car prior to purchasing it.

He therefore should have asked questions to the Defendant about the situation and make sure that the pan was not leaking. [ 26 ] In addition, when he saw the leakage on July 8, 2015, instead for driving the car around waiting for the leakage to damage the engine, he should have had the pan inspected and the leak repaired. [ 27 ] Not only has Plaintiff failed to establish the oil leakage constituted a hidden defect, but has demonstrated that he did not act diligently to prevent the damage to the engine of the car by driving it for tow days although he had found an oil leak and the oil alarm was flashing. [ 28 ] His claim is therefore dismissed. [ 29 ] WHEREFORE, THE COURT:

[ 30 ] DISMISSES the claim; [ 31 ] CONDEMNS Plaintiff to pay to the Defendant the judicial costs of $95. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: June 20, 2016 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.