2016 QCCQ 11568, 2016 QCCQ 11568

Pagé c. W. Gordon inc. 2016 QCCQ 11568 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N°: 500-32-148180-153 DATE: October 7, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ RICHARD PAGÉ Plaintiff v. W. GORDON INC. Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Pagé claims damages in the amount of $825.82 from W. Gordon Inc. (“Gordon”) following the faulty performance of an oil change on his car. He says that Gordon’s mechanic, Alex Senecal, over-tightened the drain plug at the bottom of the oil pan. This stripped the threads at the connection of the plug and oil pan and caused the oil to slowly leak from the engine. [ 2 ] Mr. Pagé attended Gordon’s garage to get the oil change on Friday, August 17, 2012. During the weekend, he drove from Montreal to Ottawa and back.

On Monday morning, August 20, he went to a Volkswagen dealership in Brossard where he had been offered a free inspection of his car. As his car was on the lift, Volkswagen’s serviceman told him that the oil pan was leaking from the drain plug. [ 3 ] Mr. Pagé testifies that he immediately called Gordon to inform them of the problem and to demand that they fix it. He states that the person with whom he spoke told him that only the owner could authorize that the repair be carried out by Gordon at its cost, but that he was not in that day. Mr. Pagé says that he was told to call the next day [1] . [ 4 ] Mr.

Pagé explains that he works on the road and could not wait for an eventual discussion with Gordon’s owner to get his car fixed. He thus decided to have it repaired by Volkswagen forthwith and rented a car to attend to his business of the day. His claim is comprised of the reimbursement of what he paid Gordon for the oil change ($97.72), Volkswagen’s invoice ($666.42) and the car rental for August 20 ($61.68). [ 5 ] Mr. Pagé brought the old oil pan he had replaced by Volkswagen with him at trial and the Court observed firsthand that the threads were indeed stripped. [ 6 ] Mr.

Pagé explains that his vehicle requires an oil change only every 15,000 kilometres. He had taken his car to Volkswagen, to address a non-related problem, a month before taking it to Gordon, and there was no oil leak then. Therefore, he concludes that the oil leak can only be the result of Gordon’s intervention, as no one else touched the oil pan or drain plug since that last visit to Volkswagen. [ 7 ] Bruce Gordon is Gordon’s president and sole shareholder. He recognizes that he was not at work on August 20, 2012.

However, he is adamant that it is Gordon’s policy to take all customer complaints seriously and that the person with whom Mr. Pagé spoke that day, Patrick Duchemin, did have the authority to decide to tow his car in and fix it, at Gordon’s cost. His understanding is that Mr. Pagé was interested in no solution short of having his car fixed immediately by Volkswagen , and Gordon pay for the repair and his car rental. Mr. Duchemin did not testify at trial. [ 8 ] Gordon also denies that it over-tightened the plug and caused the oil to leak. According to Mr. Gordon and Mr.

Senecal, when an oil drain plug is over-tightened, it causes it to become loose. If this had happened on Mr. Pagé’s car, they are certain Mr. Senecal would have noticed it. [ 9 ] Understandably, Mr. Senecal has no specific recollection of the job he did on Mr. Pagé’s car on August 17, 2012, nor does Mr. Gordon. [ 10 ] Finally, Gordon considers that Mr. Pagé’s claim is exaggerated, as it would have cost it only $222.01 to replace the oil pan and the drain plug [2] . ANALYSIS [ 11 ] According to

article 2849 of the Civil Code of Quebec (“CCQ”), presumptions which are not established by law are left to the discretion of the Court. Only serious, precise and concordant presumptions are to be taken into consideration. [ 12 ] In the Court’s view, the sudden appearance of an oil leak from a stripped drain plug, two days after an oil change, constitutes such a presumption that the plug was over-tightened when it was screwed back into the pan in the course of the oil change.

[ 13 ] As regards Mr. Pagé’s phone calls to Gordon on the morning of August 20, Mr. Gordon’s comprehension of what Mr. Duchemin told Mr. Pagé is only a supposition. Therefore, Mr. Pagé’s account of what Mr. Duchemin told him is predominant. [ 14 ] However, the fact that he was told to call back the next morning did not justify Mr. Pagé to proceed with the repairs without first sending a demand letter. Here is why. [ 15 ]

Article 1590 CCQ states that an obligation confers on the creditor (here, Mr. Pagé) the right to demand that the obligation be performed in full, properly and without delay.

Where the debtor (here, Gordon) fails to perform his obligation without justification on his part and he is in default , the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence: (1) force specific performance of the obligation; (2) obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or the reduction of his own correlative obligation; (3) take any other measure provided by law to enforce his right to the performance of the obligation. [ 16 ] Gordon was not in default ( “en demeure” ) within the meaning of the Code.

Article 1595 CCQ provides that an extrajudicial demand by which a creditor puts his debtor in default must be made in writing and allow the debtor sufficient time for performance, having regard to the nature of the obligation and the circumstances. [ 17 ] There are exceptions to this rule [3] , but none applies here. Gordon did not clearly tell Mr. Pagé that it would not fix the problem. Also, there was no urgency, objectively speaking, to get the car fixed by Volkswagen that very morning.

The mere inconvenience or economic consequences of an otherwise reasonable delay are not, in themselves, sufficient to conclude to urgency [4] . The fact that Mr. Pagé, as many other citizens, works with his vehicle does not exempt him from the obligations arising from articles 1590 and 1595 CCQ. FOR THESE REASONS, THE COURT: DISMISSES the action; WITH COSTS in the amount of $113.00. __________________________________ VINCENZO PIAZZA, j.c.q. Date of hearing: June 20, 2016