2017 QCCQ 14896, 2017 QCCQ 14896

Zumar c. Cusma (Hair Specialists) 2017 QCCQ 14896 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151130-160 DATE: December 21, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ MICAH ZUMAR Plaintiff v. ANTOINETTE CUSMA d.b.a.

ES HAIR SPECIALISTS or ESQUIRE SPECIALISTS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Micah Zumar claims damages of $7,080 from Antoinette Cusma, doing business under the name of ES Hair Specialists or Esquire Specialists (Esquire), on the grounds that the hair replacement unit which he purchased was defective and unfit for the purposes for which it was intended.

Moreover, he argues that Esquire breached the one year conventional warranty included with the sale. [ 2 ] Esquire contests the claim. It argues that Mr. Zumar is not entitled to a refund under the terms of the contract of sale. Questions in Dispute

a) Did Esquire breach the one year conventional warranty?

b) Was the hair replacement unit sold by Esquire afflicted with a latent defect? Is there a breach of sections 37 or 38 of the Consumer Protection Act (R.S.Q., ch. P-40.1)?

c) What damages is Mr. Zumar entitled to, if any? Context [ 3 ] On February 21, 2013, Mr. Zumar purchased from Esquire a hair replacement unit which he paid $1,080. [1] [ 4 ] On or about March 9, 2013, Esquire delivered the hair replacement unit to Mr. Zumar. Very shortly thereafter, Mr. Zumar complained about the poor performance of the product. The hair was falling out and the color was running. [ 5 ] Esquire agreed to replace the hair replacement unit, yet the replacement unit still did not deliver the results expected by Mr.

Zumar. [ 6 ] In June 2013, Esquire agreed to replace the hair replacement unit yet again. However, according to Mr. Zumar, this third hair replacement unit was still defective. [ 7 ] In July 2013, Mr. Zumar claims that Esquire agreed to cancel the sale and refund the purchase price. Mr. Zumar ordered a hair replacement unit from a third party and once this was received, he attended Esquire’s premises to secure his refund. Esquire refused to refund the purchase price. [ 8 ] In February 2016, Mr.

Zumar filed his Application with the Court of Québec, Small Claims Division, in which he claims $7,080 in damages which includes the reimbursement of the purchase price ($1,080) and $6,000 for pain, suffering, stress and inconvenience. Analysis and Decision

a) Did Esquire breach the one year conventional warranty? [ 9 ] The contract of sale between Mr. Zumar and Esquire contains the following conventional warranty : The REPLACEMENT HAIR which has been attached for the client by ES HAIR SPECIALISTS is guaranteed for a period of one year

against manufacturers defect, with the exception of normal hair colour oxidation. [2] [ 10 ] Did Esquire breach this conventional warranty? For the reasons that follow, the Court concludes that Esquire breached this warranty. [ 11 ] The one year warranty contained in the contract of sale is more advantageous than the legal warranty of quality contained in

article 1726 of the Civil Code of Québec (C.C.Q.) or the warranties of durability and fitness for purpose of sections 37 and 38 of the Consumer Protection Act since it guaranties to the consumer the proper functioning of the good sold and not only that it is free of latent defects. [ 12 ] A beneficiary of a conventional warranty such as the one stipulated in the contract of sale does not have the burden of proving that the good sold was afflicted with a latent defect at the time of the sale, nor must he prove the cause of the malfunction. [ 13 ] All that the consumer need prove to trigger such a conventional warranty is to establish that the good did not function during the period of warranty. [3] [ 14 ] In the present case, the following chronology establishes that Esquire breached the one year conventional warranty. [ 15 ] On March 9, 2013, Mr.

Zumar took delivery of the hair replacement unit. [ 16 ] The following day, he complained to Esquire that the unit was not functioning properly in that hair was falling out and it the colour was running. [4] [ 17 ] On March 16, 2013 Esquire agree to replace the unit. [5] [ 18 ] In late April 2013, Mr. Zumar received a new hair replacement unit. [ 19 ] In May 2013, Mr. Zumar experienced with the new unit the same problems as he had with the initial unit. He voiced his complaints to Esquire. [ 20 ] On June 13, 2013, Esquire once again agreed to replace the hair replacement unit. [6] [ 21 ] In mid-July 2013, Mr.

Zumar received a second replacement hair replacement unit. Once again, the product failed to perform as promised. [ 22 ] On July 16, 2013, Mr. Zumar wrote to Esquire to voice his complaint and asked for a refund as this was the last straw. [7] [ 23 ] On the following day, Esquire agreed to refund Mr. Zumar and return him the purchase price. [8] [ 24 ] Later on the same day (July 17, 2013), Mr.

Zumar wrote to Esquire to thank it for accepting to refund and added: [H]owever you know full well I cannot give you back the system [hair replacement unit] so quickly, without 1 st making alternate arrangements with another company. This will take 6-8 weeks. [9] [ 25 ] Esquire did not respond to this email. [ 26 ] In October 2013, Mr. Zumar received the new hair replacement unit which he had ordered from a third party. He went to Esquire’s premises to claim his refund. Again Esquire agreed to the refund and completed a credit card credit slip indicating that Mr.

Zumar would receive a refund of $1,080 through his credit card. [10] Esquire promised it would process the slip shortly. [ 27 ] Esquire never processed the credit card credit slip and thus Mr. Zumar never obtained his refund. [ 28 ] The repeated failures of the hair replacement unit establish that there has been a breach of the conventional warranty which justifies the resiliation of the contract of sale. [11] Moreover, Esquire reneged on its promise to refund the purchase price. [ 29 ] Esquire argues that it is impossible for it to refund Mr.

Zumar because it purchases hair replacement units from a supplier, and under the terms of sale of its supplier, it must return defective units to the supplier within a specified time frame, otherwise it does not receive from its supplier a credit for defective units. [ 30 ] When Mr. Zumar returned the second replacement unit in October 2013, Esquire claims that its supplier would not agree to refund Esquire as it was too late. [ 31 ] This argument does not hold water.

Whatever may be the contractual terms between Esquire and its supplier, these cannot trump the promises and conventional warranty Esquire offers its own clients. Moreover, when Esquire agreed in mid-July to refund Mr. Zumar, it knew he could only return the unit after receiving the unit he had ordered from a third party, which would not happen until after mid-September.

b) Was the hair replacement unit sold by Esquire afflicted with a latent defect? Is there a breach of sections 37 and 38 Consumer Protection Act (RSQ,

chapter P-40.1)? [ 32 ] Considering the Court’s conclusion with respect to the first question in dispute, there is no need to address this question.

c) What damages is Mr. Zumar entitled to, if any? [ 33 ] Since Esquire breached its obligations under the conventional warranty and reneged on its promise to refund, Mr. Zumar is

entitled to a refund of the purchase price of $1,080. [ 34 ] Mr. Zumar also claims $6,000 for pain and suffering, loss of enjoyment of life, stress and inconvenience caused by Esquire’s breach. [ 35 ] Mr. Zumar is a performer in the entertainment industry. He explains that image is everything in this field of work. [ 36 ] He claims that because of Esquire’s breach, he lost revenue since he had to turn down performance contracts during the months of March and October 2013. He offered no documentary proof or evidence of these lost revenues. [ 37 ] That said, because of the nature of Mr.

Zumar’s work, it is understandable that Esquire’s breach caused him inconvenience, stress and loss of enjoyment. [ 38 ] The Court believes that it is fair and reasonable to award him $2,000 in non-pecuniary damages given Esquire’s fault.

FOR THESE REASONS, THE COURT: [ 39 ] GRANTS in part Micah Zumar’s Application against Antoinette Cusma, doing business under the names of ES Hair Specialists or Esquire Specialists; [ 40 ] RESILIATES the contract of sale (P-1) entered into on February 21, 2013 between Micah Zumar and Antoinette Cusma, doing business under the names of ES Hair Specialists or Esquire Specialists; [ 41 ] CONDEMNS Antoinette Cusma, doing business under the names of ES Hair Specialists or Esquire Specialists, to pay to Micah Zumar $3,080 with interest at the legal rate and the additional indemnity provided for by

article 1619 of the Civil Code of Québec , calculated as of October 10, 2013; [ 42 ] WITH COSTS of 185 $ representing the Court fees paid by Micah Zumar on the Application. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: February 6, 2017 and August 21, 2017