2018 QCCQ 50, 2018 QCCQ 50

Bulgakov c. Location Claireview 2018 QCCQ 50 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-148622-154 DATE: January 5, 2018 ______________________________________________________________________ BY THE HONOURABLE Catherine pilon, J.C.Q. ______________________________________________________________________ Alexey bulgakov Plaintiff v. location claireview s.e.n.c.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Alexey Bulgakov claims $7,217.82 from Location Claireview S.E.N.C. (“Claireview”) where he purchased a motor vehicle. He claims that the vehicle was affected by a latent defect at the time of purchase, and that it was later improperly repaired by Claireview.

The claim is itemized as follows: • Refund of faulty repairs $ 1,211.10 ; • Repair costs to remedy the latent defect $4,741.69 ; • Stress, inconvenience, and loss of enjoyment of the vehicle $5,000 . [ 2 ] Claireview contests the claim. In its view, Mr. Bulgakov was aware of a potential issue with the vehicle prior to purchase, the repairs performed by Claireview were adequate, and the repairs undertaken by Mr Bulgakov to remedy the latent defect were performed without prior notice. [ 3 ] The case was first scheduled for hearing on January 23, 2017. Although he was duly notified of the hearing date, Mr.

Bulgakov was absent on said date, and a judgment by default was rendered. Mr. Bulgakov has filed an application to revoke this judgment. Claireview contests this application. [ 4 ] The Court will first address the application for revocation of the judgment, and then, as the case may be, the original proceeding on the merits. The Application for Revocation [ 5 ] Mr. Bulgakov is a software developer employed by a software development company.

He recently immigrated to Canada and is not yet familiar or comfortable with the ramifications of the justice system. [ 6 ] He admits that he was aware that this case was scheduled for hearing on January 23, 2017 at 1:30 pm. However, he was advised by his employer late during the day on January 22, 2017, that he was required to travel to Toronto the next day on urgent business. [ 7 ] Mr. Bulgakov advised his brother, a witness he had called, in the evening, that he would not be able to attend the hearing, but he did not advise the Court the next morning, either by phone or email.

He testifies that he was unaware of the procedure to request a postponement. [ 8 ] Judgment by default dismissing the claim was rendered in his absence at the January 23, 2017 hearing. Mr. Bulgakov became aware of the judgment on March 3, 2017 and filed his application for revocation on April 3, 2017. [ 9 ] Claireview contests the application and argues that Mr. Bulgakov should have advised the Court that he could not be present and request a postponement.

This would have prevented Claireview representatives and witnesses to travel to Court and saved them the waiting time for the judgment by default to be rendered. [ 10 ] The criteria for an application in revocation of a judgment are contained in

article 345 of the Code of Civil Procedure (“CCP”): 345. A judgment may, on a party’s application, be revoked by the court that rendered it if letting the judgment stand would tend to bring the administration of justice into disrepute. The judgment may be revoked, for instance, if fraud was committed by another party, if the

judgment was based on false exhibits or if the production of decisive exhibits was prevented by superior force or by the act or omission of another party. (… ) [ 11 ]

Article 347 CCP further provides that the application for revocation must be served to all the parties to the proceedings within 30 days of knowledge of the judgment, and presented within six months of this judgment: 347. An application for revocation must be served on all parties to the proceeding within 30 days after the day on which the cause preventing the party from filing a defence ceased to exist, or after the day on which the party became aware of the judgment, evidence or fact that constitutes grounds for the revocation.

In the case of a minor, the 30-day period only begins to run as of notification of the judgment after the person reaches full age. The application for revocation must be presented before the court within 30 days after service, as if it were an application in the course of a proceeding. It cannot be presented if more than six months have elapsed since the judgment. These are strict time limits. [ 12 ] Pursuant to

article 345 CCP, the concept of bringing “the administration of justice into disrepute” forms an integral part of the assessment of the application for revocation. It grants the judge a broad discretion. This discretion must nevertheless be exercised in a context where revocation is an exception to the rule that judgments are final and binding. Serious grounds are, as a result, required to justify revocation of a judgment. [ 13 ] Additionally, the Court must determine if the allegations of the original proceeding are on their face valid. [ 14 ] Mr.

Bulgakov had a justified and unforeseen reason which explains why he was unable to be present at the hearing. While he would have been better advised to inform the Court of his absence and request a postponement, which likely would have been granted, the Court cannot find that Mr. Bulgakov was grossly negligent or that he acted in bad faith. [ 15 ] Moreover, the allegations of the claim are serious. The Court must also consider this fact in its assessment of the merits of the application for revocation. [ 16 ] According to

article 347 CCP, Mr. Bulgakov had 30 days from becoming aware of the judgment, on March 3, 2017, to file his application for revocation. This 30-day delay expired on April 2, 2017, a Sunday, thus extending the delay to the next day, i.e. April 3, 2017, when Mr. Bulgakov filed his application. The application for revocation was therefore filed within the delays of

article 347 CCP. [ 17 ] In the Court’s view, given that Mr. Bulgakov could not attend the hearing for valid professional reasons, and that on its face the claim is serious, maintaining the judgment rendered by default would tend to bring the administration of justice into disrepute. The application for revocation is granted. The Original Application Questions at issue A. Was the Vehicle affected by a latent defect at the time of purchase? B. Were the repairs performed by Claireview faulty? C. Was prior notice of the defect required before the repairs were performed? D. What are the damages suffered by Mr.

Bulgakov? Context [ 18 ] On February 20 th , 2015 Mr. Bulgakov purchased, a 2008 Range Rover (the “Vehicle”) from Claireview for $27,562.50. The odometer was then at 65,758 km. [ 19 ] The Vehicle was inspected by Claireview before the purchase and was declared good mechanical condition. [ 20 ] Two days after the sale, on February 22, 2015, a yellow light appeared on the dashboard with the message “Suspension Fault” and “Pressure is not rising quick enough”. [ 21 ] At the same time, the front of the vehicle was lowered and it was impossible to continue driving. [ 22 ] The same day, Mr.

Bulgakov took a picture of the error message and sent it by email to Albert Bensimon, his sales representative at Claireview. Mr. Bulgakov wrote that he got “the dreaded suspension fault icon” on his dashboard. He asked for an appointment which was scheduled on February 24, 2015. [ 23 ] Mr. Bulgakov met with Mr.

Bensimon and Mark Hastie, the Service Manager, and explained that the suspension fault message was intermittent and appeared every time after 20-30 minutes of continuous driving. [ 24 ] He was advised that Claireview could not identify the issue unless the fault message on the dashboard was permanently lit. Mr. Bulgakov was further told that it was safe to continue driving the Vehicle, as long as the light did not become permanent.

[ 25 ] On May 13, 2015, while driving back to Montreal from Quebec City, at a speed of 100km/h, the suspension fault message appeared once again, this time with a red light, which meant a critical fault. The air suspension then automatically turned off, and the Vehicle started to bounce and became difficult to control. The computer set the speed limit to 45 km/h, the Vehicle adjusted itself and was driven back. [ 26 ] There was heavy traffic on the highway and Mr. Bulgakov and his passenger, his wife, were quite scared. [ 27 ] Mr.

Bulgakov brought the Vehicle to Claireview on June 1 st , 2015, for an inspection. [ 28 ] On June 9, 2015, Mr. Hastie informed Mr. Bulgakov that there were of a few minor mechanical issues to fix in relation to replacement of one bushing, and that they had determined that the suspension fault was caused by the compressor which needed replacement at a cost of $1,400. The parties agreed that they would split these costs. [ 29 ] On June 12, 2015, Mr.

Bulgakov recovered his Vehicle and paid $1,211.10 for the repairs, including the new compressor. [ 30 ] The next few days, the suspension fault message appeared once again. Mr. Bulgakov informed Claireview of this problem on June 15, 2015. [ 31 ] On June 22, 2015, Claireview conducted a new inspection. On June 30, 2015, Mr. Hastie wrote that they were not able to fix the suspension issue, and that Mr. Bulgakov needed to bring his vehicle to an official Land Rover dealership. [ 32 ] Mr.

Bulgakov then brought the Vehicle to Jaguar Land Rover Laval (“Laval”), a Land Rover dealership. [ 33 ] On July 15, 2015, following a thorough inspection, Laval determined that: - The new compressor installed by Claireview was in fact refurbished and incompatible with the Vehicle model and needed replacement at a cost of $1,211.10, before tax and labour; - All bushings required replacement to eliminate the noise coming from the suspension.

Laval also concluded that none of the four bushings had ever been replaced; - The front height adjustment sensors were defective and caused the suspension fault; - The Vehicle could not be driven until all repairs were performed. [ 34 ] Mr. Bulgakov was invoiced and paid Laval $4,741.69 for the repairs. The odometer indicated 69,619 km when the Vehicle was delivered back to him by Laval. [ 35 ] On July 22, 2015, Mr. Bulgakov sent Claireview a demand letter claiming all repair costs as well as $5,000 for moral damages. Analysis A.

Was the Vehicle affected by a latent defect at the time of purchase? [ 36 ] Pursuant to

article 1716 of the Civil Code of Quebec (the “CCQ”), the seller must deliver the property and warrant its quality [1] . [ 37 ] A claim for damages pursuant to the warranty of quality requires the buyer to prove a number of conditions contained in

article 1726 CCQ : 1. The existence of a hidden defect at the time of the sale; 2. The hidden aspect of the defect, i.e. that it is not apparent; 3. The ignorance of the defect by the buyer; 4. The importance of the defect such that the buyer would not have purchased the property or had paid so high a price had he been aware of it. [ 38 ] In respect of the existence of the defect at the time of the sale,

article 1729 CCQ provides: 1729. In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer. [ 39 ] The issue with the suspension manifested itself two days after the sale. This creates a strong presumption that the problem existed at the time of the sale.

As a professional seller, Claireview had the onus to prove that the malfunction of the Vehicle was caused by something other than a defect, for instance an improper use by Mr. Bulgakov. No such evidence was adduced and the Court finds that a defect existed at the time of the sale. [ 40 ] In terms of the hidden nature of the defect, Claireview itself inspected the Vehicle prior to the sale and did not note an issue with the suspension. In addition, Mr.

Bulgakov brought the Vehicle to Claireview on three occasions, February 24, June 1, and June 30, 2015, for an inspection in relation to the suspension, and they were never in a position to identify the issue. This further supports that the defect with the suspension was hidden. [ 41 ] Claireview argues that Mr. Bulgakov was aware of the defect based on his February 22 email in which he mentions the “dreaded

suspension fault icon”. The use of the word dreaded leads Claireview to believe that Mr. Bulgakov knew that his Vehicle had the potential for a suspension problem. However, Mr. Bulgakov testified at the hearing that his use of this word meant that the suspension fault was unexpected. The Court does not consider that the use of the word dreaded is conclusive of knowledge, particularly in the context where English is not Mr. Bulgakov’s first language. [ 42 ] Finally, it is evident to the Court that the defect was important. The suspension of a vehicle is not an accessory, and the incidents that Mr.

Bulgakov suffered on the road because of the defective suspension could have led to serious accidents. [ 43 ] In light of the above, the Court finds that the Vehicle was affected by a hidden defect at the time of the Sale. B. Were the repairs performed by Claireview faulty? [ 44 ]

Section 176 of the CPA provides that automobile repairs are guaranteed by the merchant for a period of three months or 5,000 km, whichever occurs first: 176. Repairs are guaranteed for three months or 5 000 kilometres, whichever occurs first. The guarantee takes effect upon the delivery of the automobile. [ 45 ] Both case law and legal authors agree that this is a guarantee of result which triggers a presumption of faulty repairs for which the merchant is liable. [ 46 ] The Vehicle was brought to Claireview on three occasions after the sale for verifications.

Repairs were performed following the June 1 visit in an attempt to solve the suspension issue. The Vehicle was delivered to Mr. Bulgakov on June 12, and the suspension problem reoccurred a few days later, less than three months after the repairs. [ 47 ] The Vehicle was initially purchased from Claireview with an odometer at 65,758 km. The “kilometrage” of the Vehicle when it was delivered on June 12 following the repairs is not known, but the July 15 Laval invoice indicates 69,619 km, less than 5,000 km from purchase in February.

It is therefore obviously safe to conclude that less 5,000 km were driven since June 12. [ 48 ] As a result of the above, the guarantee of

section 176 of the CPA is applicable. Given that the Vehicle malfunctioned notwithstanding the repairs within the period covered by

section 176 of the CPA, the repairs are deemed faulty and Claireview is liable. It is not necessary to address whether the compressor that was installed by Claireview was new or refurbished since, in any event, it was not useful in resolving the suspension issue. C. Was prior notice of the defect required before the repairs were performed? [ 49 ] Claireview blames Mr. Bulgakov for having had the repairs performed without giving prior notice. This argument is unfounded for two reasons. First, the objective of the notice is to allow the seller to inspect a vehicle to determine what causes the malfunction.

In this case, Claireview had the Vehicle in its possession on three occasions before the Laval repairs. It had ample opportunity to inspect it and is not prejudiced by the absence of prior notice. Second, it is at the specific recommendation of Claireview that the Vehicle was taken to Laval to identify and resolve the suspension issue. D. What are the damages suffered by Mr. Bulgakov? [ 50 ] Mr. Bulgakov has proven that the amount of $4,741.69 to remedy the latent defect was justified.

Claireview is liable to him for this amount. [ 51 ] Claireview is also liable for the cost of the ineffective June repairs of $1,211.10. [ 52 ] Mr. Bulgakov also claims damages of $5,000 for stress, inconvenience, and loss of enjoyment of the Vehicle. [ 53 ]

Article 1728 CCQ provides that other than restoring the price or reducing it to take into account the impact of the latent defect on the value of the property, in this case the Laval repairs, the injury suffered by the buyer may also be repaired. Claireview, as a professional seller with deemed knowledge of the latent defect, is liable to Mr. Bulgakov for the injury he has suffered as a result of this defect. [ 54 ] Additionally, the failure to determine the issue with the suspension and the faulty repairs, which lasted close to five months, also caused injury to Mr. Bulgakov. [ 55 ] The Court finds that Mr.

Bulgakov suffered injury due to the stress related to the unreliability of the Vehicle, as well as a loss of enjoyment of his Vehicle which was kept at Claireview premises on three occasions for several days. The Court assesses these damages at $500. FOR THESE REASONS, THE COURT : GRANTS the Application for revocation of the Plaintiff; GRANTS in part the Application of the Plaintiff; CONDEMNS the Defendant to pay the Plaintiff $6,452.79 with interest at the legal rate and the additional indemnity of

article 1619 of the Civil Code of Quebe c since the demand letter of July 22, 2015; CONDEMNS the Defendant to pay the Plaintiff the Court costs of $200.

__________________________________ CATHERINE PILON, j.c.q. Date of hearing: September 18, 2017