2020 QCCQ 1307, 2020 QCCQ 1307

Moussaoui c. Ali Algenaidi 2020 QCCQ 1307 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-704025-172 DATE: February 28, 2020 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ HAMZA MOUSSAOUI Plaintiff v. ABDALLA ALI ALGENAIDI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff Mr.

Hamza Moussaoui purchased a 2012 Ford Fiesta from the Defendant Mr. Alballa Ali Algenaidi, on December 12, 2017, for a price of $ 3,700.00. [ 2 ] Mr. Moussaoui sues Mr. Algenaidi for a reduction of price of $ 2,200.00 and for damages alleging that Mr. Algenaidi wrongfully represented during the sale process that the vehicle had never been involved in an accident while, in fact, Mr.

Moussaoui learned when he registered the vehicle that it had been “gravement accidenté”. [ 3 ] He bases his claim for a reduction in price on the difference between his sale price of $ 3,700.00 and the reduce value of the vehicle of $ 1,500.00 equals $ 2,200.00. [ 4 ] He also claims compensation of $ 1,000.00 alleging that he could not work as an Uber driver because the vehicle sold to him had been reconstructed and this is not accepted by Uber. [ 5 ] Mr. Algenaidi denies that the Ford Fiesta had been seriously damaged and rebuilt.

He states that he acquired it as a vehicle that had been recovered after a theft and that it was in good condition. He denies that Mr. Moussaoui told him that he needed the car to drive for Uber and he asserts that he told Mr. Moussaoui that this car was a theft recovery. [ 6 ] To resolve this dispute the Court must consider the following issues: 1) was it a principal consideration to the Plaintiff, Mr. Moussaoui, that the car he was purchasing would be suitable to be driven for Uber and did he mention this to Mr.

Algenaidi at the time of the sale; 2) was the car in fact seriously damaged and rebuilt and was it, as a result, unsuitable as a Uber vehicle; 3) did Mr. Algenaidi mislead Mr. Moussaoui in that respect and 4) what prejudice did Mr. Moussaoui suffer as a consequence. Facts [ 7 ] When the vehicle was sold on December 10, 2017, it was not immatriculated in Quebec. A permit issued pursuant to the Ontario Highway Traffic Act ( D-1 ) designates the vehicle as “SALVAGE unplated”. The document provides no information as to the

circumstances of the salvage nor as to the condition of the vehicle. [ 8 ] After discussions and negotiation, the price of $ 3,700.00 was agreed to between the parties. Mr. Algenaidi said that he had acquired the car for his wife, but that he now wished to sell it. Although the car was not immatriculated and could therefore not be driven on the road, Mr. Moussaoui says that he test drove the car and that it had a Quebec licence plate. Mr. Algenaidi asserts that he told Mr. Moussaoui that he could drive the car with an old plate that was in the trunk and that he attached to the vehicle.

He, therefore, puts the responsibility for driving the vehicle without a plate on Mr. Moussaoui. [ 9 ] Mr. Moussaoui testifies that he required a car that had not been seriously damaged because this was a requirement of Uber. Mr. Algenaidi states that no mention of an intention to drive for Uber was made during the meeting. Mr. Algenaidi states that he mentioned that the front brake pads required replacement, but that apart from that, the car was in good working order. [ 10 ] In order for the car to be transferred, Mr. Algenaidi signed a power of attorney ( P-10 ) and gave this to Mr.

Moussaoui along with a “Certificat de verification mécanique” ( P-3 ). Mr. Moussaoui states that when he went to the office of the SAAQ, he was told that another document was required known as a “Rapport d’expertise technique”. He also testifies that he learned from the SAAQ clerk that the vehicle was “gravement accidenté en Ontario” and that he would have to provide the “Rapport d’expertise technique”, a document that Mr. Algenaidi had not given to him. On December 11, Mr. Moussaoui sent a text message to Mr.

Algenaidi claiming the return of his money because at the SAAQ: […] “they said that I can’t registered in QC because the car had a huge accident and was written off in Ontario.” ( P-4 ) [ 11 ] He threatened to inform the police and that he would have the car towed because it was still under the vendor’s name. Mr. Moussaoui, however, told the Court that he suspected he would not be able to recover the $ 3,700.00 he had given Mr. Algenaidi and that he decided to immatriculate the vehicle and that he, therefore, required the “Rapport d’expertise technique”.

In a text message exchange, he asked for the document and Mr. Algenaidi mailed it to him. He proceeded to immatriculate the car having on hand all the necessary documents. The receipt from the SAAQ ( P-11 ) is dated January 10, 2018. It shows the payment of $ 696.68 for taxes and fees. There had been another exchange on December 2017 concerning the need for a new Ontario registration document and a corrected version of the power of attorney. The details of the subsequent exchanges were not given, but Mr. Moussaoui did succeed in having the vehicle immatriculated in Quebec. [ 12 ] On December 17, Mr.

Moussaoui sent a letter of demand. This was a claim for the resolution of the sale and the restitution of the sale price to the purchaser and the vehicle to the vendor, but in the meantime Mr. Moussaoui, nevertheless, continued with the immatriculation of the vehicle which he obtained in January. [ 13 ] He initiated his claim in the Small Claims Division on December 28, 2017, initially claiming resolution of the sale and restitution plus damages. Mr.

Algenaidi’s written contestation points out that at the time of sale the Plaintiff had been given the Ontario document clearly indicating “SALVAGE” and he asserts that this was a private sale without guarantee nor warranty. He makes a cross- demand for $ 300.00 as compensation for moral damages, because of the unfair claim. [ 14 ] Mr. Moussaoui, believing that the car was not appropriate for use as a Uber vehicle, obtained an offer to purchase from H. Grégoire, a used car dealer, for $ 1,245.00 ( P-8 ). The document has a handwritten annotation “9760 $ Dossier de dommages trouvés”.

It is unclear who made that inscription. Mr. Moussaoui asserts that H. Grégoire informed him that this amount was the value of the cost of rebuilding the car after substantial damages in an accident. [ 15 ] Mr.

Algenaidi maintains his version that the car was salvaged, but as a stolen vehicle not as a damaged vehicle and he denies that there was any discussion at the time of sale about the requirement that the car not be damaged or salvaged, or that it be permissible to be used by a UBER driver. [ 16 ] At the hearing, the Court drew the parties’ attention to the fact that there was no evidence in the file coming from either province that the car had been seriously damaged nor was there any proof that a seriously damaged and rebuilt car would not be acceptable to Uber.

[ 17 ] The Court gave Mr. Moussaoui more time to give written evidence of these two allegations. He provided an advertisement ( P- 11 ) showing a car with the same VIN number on sale at an auction. It is a vehicle showing damage referred to in the ad as “vandalism” and “front end” A photo shows serious damage on the right front fender of the vehicle. [ 18 ] He also provided an extract from an internet document concerning the use of the UBER interface for providing taxi service ( P- 12 ). There are four categories of cars mentioned.

For the first three, called “UBER X”, “UBER XL”, and “Select”, reconstructed vehicles are not permitted. For the fourth category, “Taxi”, the only requirements are to use the “UBER Driver” application to connect to users of the application “UBER” who require a ride, and to have a taxi permit and a rental contract if the car is rented. There is no requirement, as a UBER driver in this category, to have a certain quality of vehicle.

Analysis [ 19 ] In a case where there is no written contract, it is always difficult for a party to prove what was mentioned at the time of the agreement. [ 20 ] In the Court’s view, the parties are equally credible in their testimony. [ 21 ] There was one element that affected negatively the credibility of both parties and that is the fact that the car was driven without proper immatriculation. Mr. Algenaidi should not have put an expired plate on the car and when Mr.

Moussaoui attempted to immatriculate the car and was told that this could not be done without additional documentation, he should not have driven the car back; he should have had it towed. Be that as it may, the burden of proving that specific mention was made of an Uber requirement that the car not be seriously damaged and rebuilt is the responsibility of the Plaintiff. [ 22 ] Since Mr. Algenaidi’s denial about the pre-sale discussion is as credible as Mr.

Moussaoui’s assertions, the Plaintiff fails in meeting his burden of proving that he stipulated, at the time of sale, that the vehicle not be rebuilt. [ 23 ] Even if Mr. Moussaoui had stated, at the time of sale, that the car had to be suitable to be driven for UBER, he has not proved that this was not the case. The fact that his car had been damaged and rebuilt would not preclude UBER service, under the category “Taxi” according to the Plaintiff’s evidence. The car had been damaged and rebuilt, but this was not, objectively, a reason to prevent the sale, as a difference in effective quality has not been proved.

Mr. Algenaidi was himself mistaken, but this did not affect the value of the car nor its usability. The difference in value as between a rebuilt car that has been repaired and a used car has not been proved. [ 24 ] A car that has been damaged and rebuilt may be in as good condition as a similar car from the same period depending on how well that other car has been maintained. The resale value of the car was allegedly $ 1,245.00 and Mr.

Moussaoui sold it for a declared amount of $ 1,500.00 according to the SAAQ receipt, but he has not actually proved that this was the sale price given that there was no written contract of sale and the purchaser was not asked to testify. [ 25 ] Finally, even if it were a requirement of Uber that the car be free from any history of accidents, the Plaintiff may have been mistaken in not reading the Ontario permit document adequately. The document clearly states in capital letters that the car was “SALVAGE”. Although Mr. Moussaoui masters French better than English, he dealt with Mr.

Algenaidi in English and he should have read the document and not proceeded with the sale if, in fact, a car that had been acquired as salvaged and was not plated was an obstacle to him as a purchaser. [ 26 ] In fact, the document produced, apparently from an UBER Website, shows that he could use a rebuilt car to take UBER customers using the “UBER DRIVER” application.

He would only be precluded from doing so if he wanted to fall within the categories “UBER X”, “UBER XL” and “Select”. [ 27 ] On the whole of the evidence, the Plaintiff has not fulfilled his burden of proof and the case, therefore, cannot succeed. [ 28 ] The Defendant’s cross-demand for $ 300.00 for the inconvenience of the lawsuit is not well-founded.

[ 29 ] Both parties participate in a lawsuit without hope of compensation for their loss time and there is no prejudice in the procedure itself when the claim is made in the normal manner, without abuse, as was the case here. Therefore, the cross-demand must also fail. FOR THESE REASONS, THE COURT : DISMISSES the Plaintiff’s demand; DISMISSES the Defendant’s counterclaim; EACH PARTY paying its own costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 10, 2019 Additional documents provided September 17, 2019