2011 QCCQ 8384, 2011 QCCQ 8384

Salter c. Piscine Caravelle inc. (Serrurier) 2011 QCCQ 8384 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-116621-097 DATE: July 7, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ LISA SALTER DOODY TRAVIS [...], Montréal, Québec [...] Plaintiffs v. PISCINE CARAVELLE INC.

A/S GILLES SERRURIER GILLES SERRURIER 43, Veronneau, St-Constant, Québec, J5C 2K4 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Lisa Salter and Doody Travis are claiming $3,433.84 from Piscine Caravelle inc. and Gilles Serrurier, alleging the thermo pump they bought from Defendants was defective. Defendants maintain the problem stemmed from improper care. The evidence: [ 2 ] In April 27, 2004, Plaintiffs bought a thermo pump for their swimming pool, at a cost of $2,126.81.

Initially, the PH was either too high or too low. Plaintiffs tested the water regularly and had it tested by Piscine Caravelle, if they had a problem. [ 3 ] Towards the end of the summer, the pool was not heating well. Ms. Salter attempted to speak with Gilles Serrurier, Piscine Caravelle's owner. He was continually unavailable and failed to return her calls. [ 4 ] The next summer, Plaintiffs allege they found oil in their pool. According to Ms. Slater, in response to her complaints, Mr. Serrurier blamed the manufacturer, Waterco and suggested she called the company. [ 5 ] Ms.

Salter contacted a Waterco customer relations representative who offered her a refurbished heater. Ms. Salter refused. Waterco then sent a technician who noted the heater was flooded. Ms. Salter tried to obtain further information about a repair but since the summer was ending, the technician told her she would have to wait until the next year. Ms. Salter maintained Plaintiffs did not use their heater after finding oil in their pool. [ 6 ] According to Ms. Salter, the next summer, she unsuccessfully attempted to have Mr. Serrurier resolve the issue.

Finally, Waterco picked up the heater in August and determined that it could not be repaired. The heater was returned to Plaintiffs in October. Ms. Salter claims Waterco and Piscine Caravelle pointed to each other, as the source of the problem. [ 7 ] Mr. Serrurier testified that he never received any complaint from Plaintiffs until 2007. He submits the problem stems from

the water not having been tested. [ 8 ] Mr. Denis Ellefsen, Waterco's representative, stated that the heater is delivered with a maintenance manual that stipulates the pool's water must respect certain quality levels with respect to the PH, chlorine, alkalinity and TDS. [ 9 ] Failure to maintain levels and particularly inadequate levels of alkalinity will lead to the corrosion of the tube in the heater; once a hole develops, the oil contained in the tube will come into contact with the pool water that circulates in and out of the heater.

The time it takes for the corrosion to occur varies; the average time is 2 years. An improper PH level indicates that the alkalinity is not at a proper level. [ 10 ] Mr. Ellefsen explained that the situation it found corresponds to an improper use of the thermo pump. Waterco's records, which only back to August 2007, show Plaintiffs' file was opened on August 14, 2007. According to the information on file, the unit was flooded. [ 11 ] Waterco offered to replace the heat exchanger with a heater made from titanium; the cost of a refurbished heater would be $1,500.

Alternatively, it would repair the heater for $800 to $900. However, Plaintiffs wanted a new heater at no cost. Analysis: [ 12 ] Ms. Salter situated Plaintiff's purchase of the thermo pump in 2005; the contract shows it was purchased in 2004. Plaintiffs maintain the thermo pump was defective. [ 13 ] Defendants submit Plaintiffs are responsible for the problem since they failed to maintain the various chemicals in the pool at proper levels; as a result, the corrosion occurred with the ensuing problems. They also submit that the problem was reported only in 2007. [ 14 ]

Article 38 of the Consumer Protection Act [1] stipulates that “Goods forming the object of a contract must be durable in normal use for a reasonable length of time, having regard to their price, the terms of the contract and the conditions of their use.” [ 15 ] According to the evidence, the heater was mal functioning during the first summer of its use. Plaintiffs attempted to contact Piscine Caravelle on several occasions but were unable to do so. Oil was found in the pool the following summer and Plaintiffs stopped using the heater. Again, Plaintiffs tried to have the problem resolved by Piscine Caravelle.

They were unable to contact the company and received no support from Piscine Caravelle or Mr. Serrurier. When they finally spoke to Mr. Serrurier, he blamed the supplier, Waterco. [ 16 ] While corrosion results from an improper chemical levels in a pool, it is not normal for a thermo pump to become corroded during its first year of use. In addition, when the pump was not working properly during the summer it was purchased, Plaintiffs were unable to reach Mr. Serrurier. On one occasion, Mrs. Salter testified that Mr.

Serrurier was avoiding her telephone calls since she was told that he was not present but he answered her husband's call. [ 17 ] In light of the evidence, the Court finds that Defendant Piscine Caravelle inc. sold Plaintiffs a thermo pump, which did not meet the criteria of 38 of the Act and accordingly is responsible for damages suffered by Plaintiffs. Given that the contract was with Piscine Caravelle inc., there is no lien de droit with Gilles Serrurier. [ 18 ] Plaintiffs are entitled to be compensated for the cost of repair, which was established at $900.

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiffs' action; CONDEMNS Piscine Caravelle inc., now operating under the name of 9243-7714 Québec inc. (since April 20, 2011), to pay Lisa Salter and Doody Travis the sum of $900 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since April 15, 2009, plus judicial costs of $127. DISMISSES the action against Gilles Serrurier. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: June 14, 2011