2014 QCCQ 3130, 2014 QCCQ 3130

King c. Corbeil Électrique inc. 2014 QCCQ 3130 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-132153-125 DATE: April 8, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JUDY KING […] Lasalle, Quebec, […] PLAINTIFF v.

CORBEIL ÉLECTRIQUE INC. 6783 Léger Boulevard Montréal Nord, Quebec, H1G 6H8 DEFENDANTS ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Judy King, sues the Defendant, Corbeil Electique Inc. (“Corbeil"), a retailer of appliances, for the cancellation of the sale of a Maytag clothes dryer she purchased on November 16, 2011. [ 2 ] She complains that the dryer delivered, which was part of a washer/dryer set, was a different model than the one she purchased.

When she brought the matter up with Corbeil, it denied that there was any difference between the model purchased and the one delivered. Corbeil adds that the model Mrs. King claims she purchased was not carried in Corbeil's inventory at the time, and that she therefore could not have purchased it. Issues The Court must resolve the following issues: 1) Was the dryer delivered in conformity with the contract? 2) If it is not, is the appropriate remedy a cancellation of the sale, or a reduction in price? Facts [ 3 ] Mrs. King purchased the washer/Dryer set on sale for a total of $782.53.

There was a cash rebate and a rebate equal to the taxes on both items. [ 4 ] She paid a deposit of $ 100 at the store on October 31, 2011, the balance of $ 682.53 was payable cash on delivery.

[ 5 ] When the appliances arrived at her home, the paint on the dryer was scratched by the delivery man. She paid the balance of the contract price and the dryer was returned by the transporter and replaced a few days later. [ 6 ] Mrs. King believes that the replacement model delivered is different from the one she saw in the store in that there are only two control dials on the face of the dryer instead of three. The control panel is illustrated in the Maytag manual, at page 5. One model illustrated has a large dial with the inscriptions "timed dry" and "sensor dry" and two smaller dials.

The other model shown below it has a large dial with the inscriptions "automatic dry high heat", "timed dry high heat", "automatic dry low heat" and "air fluff no heat". It has only one smaller dial. [ 7 ] Her assertion is that the model first delivered that got scratched was the one having the inscription "sensor dry" and two smaller dials, and that it corresponded to what she saw in Corbeil’s showroom. [ 8 ] The model having the "sensor dry" feature is more sophisticated, having a sensor that measures the moisture in the clothing and shuts off the dryer when the clothes are sufficiently dry.

It is a more expensive model. [ 9 ] This is the essence of the claim made in her letter of demand of November 30, 2011 and the application before the Court. [ 10 ] In her testimony Mrs. King also complains that the dryer is a slightly different white than the washer, but this assertion was never made in the previous communications with Corbeil. [ 11 ] Corbeil took the position that the dryer delivered is precisely what was ordered, adding that models with the "sensor dry" feature were not available in the store on Boulevard Newman in Lasalle.

This is Corbeil’s explanation for refusing to replace the dryer despite the many requests made by Mrs. King. [ 12 ] Mrs. King testifies that she did not use the washer and dryer at first, hoping that she would succeed in her claim for cancellation of the contract. She states that she washed her laundry by hand and hung it to dry.

At one point, at the end of September 2013, she started using the washer and dryer because she suffered an injury and could not manage the process manually. [ 13 ] Dominic Lambert, representing Corbeil, testified that the model number appearing on the invoice is YMEDC200XW, which is virtually the same as the model number that Mrs. King wrote in her letter of demand, YMEDC200XWI. Mrs. King showed the Court an envelope on which she wrote the number YMEDC400VWO.

She states that this was the number given to her over the phone as the model she had ordered when she dialled a 1 800 number, presumably a Maytag service-after-sale number. [ 14 ] At the hearing, during a break Mr. Lambert checked with his employer and confirmed that the YMEDC400VWO model is indeed a Maytag dryer in the same series of models. It is part of the 300 and 400 series that have higher functions, such as the "sensor dry" feature. Corbeil currently offers a 300-series model having the sensor dry feature. It is sold for $579, in comparison with the regular price of $389 for the 200-series model.

At present, Corbeil does not carry this model at the LaSalle location. He could not say whether or not the item was in stock or on the floor in November 2011. [ 15 ] He also disclosed that Corbeil offered to take back the dryer, crediting 90% of the sale price to a new purchase, at full price of the high model. Mrs. King refused. Analysis [ 16 ] On the first question, the Court concludes that the dryer delivered was not in conformity with the contract. Mrs. King expected a dryer having the features she saw on the floor model. This included the presence of three dials, like the model she saw in the manual.

The complaint about the colour cannot be retained however: it was not part of her original claim and only came up at trial. Mr. Lambert confirmed that Maytag only has one white colour in these models, and only slight variations are possible because of production differences. At any rate, Mrs. King raised the issued tardily. [ 17 ] On the second question, the Court is of the view that the appropriate remedy is to reduce the price, not to annul or resolve the sale. The appliances are almost new and have a good resale value if Mrs. King decides not to keep them.

She has been using them since September 2013, so that if she had to return them to Corbeil, there would be a significant reduction in the amount credited to her as a reimbursement of the sale price because of depreciation. [ 18 ] The appropriate remedy is an adjustment of price, to take into account the value difference between the model she expected and the one she purchased. [ 19 ] At full price, a 300 or 400-series model would cost $579 plus taxes [1] , approximately $660. Mrs. King paid $333, taxes included for the dryer portion of the invoice, when the rebates are taken into account.

She bought the item on sale, but, if she was to replace it with the higher model, she would have to pay full price. This is a difference of $327. BY THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $327, plus interest at the annual rate of 5% and the additional indemnity provided for by articles 1619 of the Civil Code of Québec , as of the demand of November 30, 2011. CONDEMNS the Defendant to pay the judicial fees of $71.75 to the Plaintiff.

__________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 23, 2013