2015 QCCQ 4876, 2015 QCCQ 4876

Mian c. Brault & Martineau inc. 2015 QCCQ 4876 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-129383-115 DATE: May 7, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JALAL GUL MIAN […] Montréal (Québec) […] Plaintiff v.

BRAULT & MARTINEAU INC. 8500, Place Marien Montréal-Est (Québec) H1B 5W8 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr.

Jalal Gul Mian, sues Brault & Martineau Inc., from whom he purchased a mattress on May 7, 2011, for the price of $ 443.16. [ 2 ] He alleges that the mattress was defective giving him back pain and he seeks resolution of the sale and the reimbursement of the sale price, offering to return the mattress to Brault & Martineau Inc. [ 3 ] Brault & Martineau Inc. contested the claim on the basis that it would be willing to solve any problem required through a repair, an exchange or a reimbursement if a defect of fabrication truly exists, but it contests the fact that it was not given access to the mattress to examine it with the assistance of its technician. [ 4 ] In the event that it is not given such access, it requests the dismissal of the proceeding. [ 5 ] At the hearing held September 3, 2013, Jean-Sébastien Courbron, who represented Brault & Martineau Inc., established that, despite having made both formal and in formal requests to the Plaintiff, Brault & Martineau Inc. had not been given access to the mattress, as required in order to carry out their study. [ 6 ] Brault & Martineau Inc. had written August 11, 2011 to Mr Mian stating that they had been unable to reach him by phone, asking him to contact their representative to

schedule an appointment. [ 7 ] The Court adjourned the case so that Brault & Martineau Inc. would be given this opportunity and the parties were to be reconvened for a continuation of the hearing. [ 8 ] After the postponement, they were in fact able to send their technician, who gave a written report (D-2). [ 9 ] The report states that there is no objective defect in the mattress that could be observed by the technician. [ 10 ] The Court heard the testimony of Mr Michel Grenier at the hearing of April 14, 2015.

The Plaintiff was duly summoned, but did not appear. [ 11 ] Mr Grenier’s testimony was very clear and convincing, that he had done both the visual examination and had inspected the mattress as well as having manipulated it and that he wasn’t able to detect anything that would suggest the presence of a defect.

[ 12 ] The mattress was in a very good condition, had no hollowness and he reports that the client, Mr Mian, complains that the mattress does not give him equivalent comfort to another one that he one owned that was harder. [ 13 ] In a case such as this one, the Plaintiff must convince the Court of the existence of a defect and not simply express his dissatisfaction with the product that, subjectively, he does not accept. [ 14 ] It was difficult to the Court to communicate with Mr Mian, because he has hearing problems.

His son, Rustam Mian, informed the Court that essentially his father does not find the mattress to be appropriate for himself, but he was unable to present any objective evidence that there is something wrong with the mattress or that it does not comply in some way with the contractual obligation of Brault & Martineau Inc. [ 15 ] In this case, there was nothing that could be objectively demonstrated to the Court as showing the existence of a defect, of a lack of quality, or of any damage prior to delivery, and therefore, the Plaintiff’s claim must fail. [ 16 ] Brault & Martineau Inc. does not insist upon costs.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff’s action; THE WHOLE , without costs. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: September 3, 2013 and April 14, 2015