2018 QCCQ 10847, 2018 QCCQ 10847

Badalzadeh Kabdany c. Kakoie 2018 QCCQ 10847 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-703363-178 DATE: December 19, 2018 ______________________________________________________________________ BY THE HONOURABLE GATIEN FOURNIER, J.C.Q. ______________________________________________________________________ SOMAYEH BADALZADEH KABDANY Plaintiff v.

ALIREZA KAKOIE doing business under the style and trade name of AUTO CASPIAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Somayeh Badalzadeh Kabdany (“SBK”), claims from Defendant, Alireza Kakoie (“AK”), $8,973.42 in reimbursement of the sales price of a car she purchased from AK, in May 2017. [ 2 ] In Spring 2017, SBK was looking for a used German car. [ 3 ] AK operates a used car dealership, since 2015, under the name of Auto Caspian.

SBK saw, on Facebook, an advertisement from Auto Caspian. She called the dealer and spoke with AK. [ 4 ] AK invited her to visit the dealership to see the cars in inventory. On May 17, 2017, SBK met AK at Auto Caspian, which had 2 used German cars on its lot. [ 5 ] SBK was interested in a beige 2008 BMW 3 series with 144,053 kilometers on the odometer (the “Vehicle”). [ 6 ] According to SBK, AK had used the Vehicle personally. Some of his personal belongings were in the car when she first saw it.

She also mentioned that the Vehicle had no label affixed in the car window, as required by the Consumer Protection Act . [ 7 ] On May 18, 2017, SBK goes back to Auto Caspian, does a few minutes test drive, which she deems sufficient. AK, however, estimates the test drive lasted 10 minutes. [ 8 ] AK informed her that the Vehicle had not been damaged, nor had any mechanical problems. [ 9 ] SBK asked for the Vehicle history report (“Carproof”).

SBK states that AK showed her a Carproof indicating that the Vehicle had $500.00 in damages. [ 10 ] AK denies showing SBK a Carproof and declared that the sales contract (exhibit P-1) clearly indicates that Auto Caspian had no Carproof available concerning the Vehicle.

[ 11 ] SBK decided to purchase the Vehicle without having it inspected by a mechanic. She says that she had total trust in AK. They are both Iranian. The agreed selling price was $7,800.00 plus taxes. SBK paid cash. [ 12 ] The sales contract was signed on May 18, 2017. SBK says she asked for an English version of the sales contract.

AK replied having no English version available. [ 13 ] SBK filed the sales contract including the label, both signed by her, as exhibit P-1. [ 14 ] Both the sales contract and the label indicate, in English, the following comment: “REPAINTED CAR NO CP”. [ 15 ] Less than 30 hours after the purchase of the Vehicle, the air conditioning fan allegedly started to make a loud noise. [ 16 ] SBK called AK and met with him on May 19, 2017. According to SBK, AK said the noise was normal for a BMW. [ 17 ] However, the noise persisted.

SBK tried on several occasions to get in touch with AK, but to no avail. [ 18 ] AK finally responded. SBK requested a complete refund, which was refused. [ 19 ] On August 8, 2017, SBK and a friend showed up at Auto Caspian. According to SBK, AK agreed to fully reimburse her and asked her to come back the following Friday. [ 20 ] She went back on set date with her friend, but AK refused to reimburse her. According to Plaintiff, a fight started between AK and her friend. AK left the premises.

SBK and her friend went directly to the police station to report the incident. [ 21 ] A couple of days later, SBK, her friend and 2 police officers went back to Auto Caspian. SBK wanted to get the Carproof document.

One of the police officers informed her that she could, on her own, obtain the Vehicle history report. [ 22 ] She finally obtained the Carproof report which was filed as exhibit P-4. [ 23 ] On August 21, 2017, SBK and her friend went to Canadian Tire on Jean-Talon to have the Vehicle inspected. [ 24 ] The inspection report was not admitted as evidence since no witness was called by SBK to testify on said report. However, according to SBK and her friend’s testimony, the deficiencies noted concern the air conditioning and the brakes.

The cost of the repairs were less than $1,800.00 before taxes. [ 25 ] On September 27, 2017, SBK sent a letter of demand to AK which reads as follows: “I would like to inform you regarding to official verifications and existing evidences, the conditions of BMW 328 xi 2008 which you sold me on 17.05.2017 according to contract No. V202804-00000024, both Technical and body are completely very different from the presentation and information that you gave me at the time of sale! I would like to ask you to refund my money which I paid and retake the car back for maximum 10 days from the date of this letter.

It is worth mentioning, if you don’t, I will use my legal rights to go to the court.” (exhibit P-3) [ 26 ] SBK confirms that the repairs have not been done yet and that she is still using the Vehicle on a daily basis.

She drove more than 5,000 kilometers between May 18, 2017 and August 21, 2017 when the Vehicle was inspected at Canadian Tire. [ 27 ] SBK finished her testimony by stating that AK had mentioned that should she not be satisfied with her purchase, she could ask for the cancellation of the sale providing a disbursement of $500 to $700. [ 28 ] AK specifies that the Vehicle had been completely repainted and adds that this information was reported on the mandatory label and in the sales contract (P-1).

He also confirms that Auto Caspian had no Carproof available concerning the Vehicle, which was also mentioned on the label and in the sales contract. [ 29 ] AK states that negotiations were in Persian and that he had an English version of the sales contract, but that it had not been requested by SBK. [ 30 ] AK denies a fight took place between him and SBK’s friend. In his opinion, Plaintiff was trying to set him up when she and her friend went to the police station. [ 31 ] It should be pointed out that no charges have been laid against AK with regards to the alleged altercation.

QUESTIONS AT ISSUE [ 32 ] Is SBK entitled to the cancellation of the sale of the Vehicle and its reimbursement from AK in the amount of $8,973.42? ANALYSIS AND DECISION [ 33 ] SBK alleges in her claim that : “The Plaintiff is suing the Defendant for the following reasons: The Plaintiff is asking for the cancellation of the contract, the reimbursement of the amounts paid for the vehicle, the carproof and the estimate because there are too many defects on the vehicle that

were not declared by the Defendant at the time of the sale.” [ 34 ] In accordance with

article 1716 of the Civil Code of Québec (“CCQ”), “the seller is bound to deliver the property and to warrant the ownership and quality of the property”. [ 35 ] Sections 37 and 38 of the Consumer Protection Act (“CPA”) [1] provide that: “ 37. Goods forming the object of a contract must be fit for the purposes for which goods of that kind are ordinarily used. 38.

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.” [ 36 ] The seller’s obligation to deliver the property and to warrant its quality confers on SBK the right to demand that it be performed in full, properly and without delay. [2] [ 37 ]

Article 1590 CCQ provides: “1590. An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and without delay.

Where the debtor 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.” [ 38 ] SBK asked for the cancellation of the sale of the Vehicle. [ 39 ] Pierre-Gabriel Jobin in his book Les Obligations [3] indicates how the non-fulfilment of the obligation has to be important in order for the debtor to obtain the cancellation (resolution) of a contract. “ 806 - Importance de l'inexécution - Pour donner ouverture à la résolution, il faut naturellement qu'il y ait eu inexécution caractérisée ou importante de l'obligation.

Une inexécution « de peu d'importance » ne permet pas de demander la résolution du contrat. Le problème ici concerne une obligation qui n'est pas exécutée « entièrement, correctement et sans retard », selon les termes de l'article 1590, alinéa 1. La formulation de l'article 1604, alinéa 2, semble bien exprimer la règle telle qu'elle était entendue avant la réforme du Code civil : le créancier peut obtenir la résolution lorsqu'il y a eu une inexécution totale, ou encore une inexécution partielle, aussi appelée inexécution substantielle, qui est sérieuse ou qui le frustre du bénéfice du contrat.

Inversement, par exemple, le refus d'un entrepreneur de fournir à son client son numéro d'agent percepteur de la TPS et de la TVQ ne constitue pas une faute assez importante pour justifier la résiliation. ” [ 40 ] The evidence presented by SBK does not show that we are in presence of such a non-fulfilment which would justify the cancellation of the sale of the Vehicle. [ 41 ] At best, it could be considered as a non-fulfilment of the obligation that could, with the appropriate evidence, justify a reduction of the sales price. [ 42 ] Pursuant to

article 2803 CCQ, “a person wishing to assert a right shall prove the facts on which his claim is based”. [ 43 ] SBK failed to meet her burden of proof. She did not show, with a preponderance of evidence, that she is within the conditions required for the cancellation of the sales contract of the Vehicle. FOR THESE REASONS, THE COURT: DENIES Plaintiff’s claim; CONDEMNS Plaintiff, Somayeh Badalzadeh Kabdany, to pay Defendant, Alireza Kakoie, legal costs in the amount of $185.00. __________________________________ GATIEN FOURNIER, J.C.Q.

Date of hearing: November 12, 2018