2013 QCCQ 60, 2013 QCCQ 60

Mohanarajah c. Patel 2013 QCCQ 60 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-126645-110 DATE: January 7, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ THURAIRAJAH MOHANARAJAH Plaintiff v.

MUKESH PATEL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Unsatisfied with the repairs made on his car, the Plaintiff claims from the Defendant $1,417.59. [ 2 ] In his contestation, the Defendant pleads that the work performed is satisfactory and that the Plaintiff never called him back to complain of any deficiency before having his car repaired by another garage. Question in dispute [ 3 ] Is the absence of a written notice of default from the Plaintiff to the Defendant fatal to his claim ?

The facts and analysis [ 4 ] In an attempted theft, one door of the Plaintiff's car is damaged. The Plaintiff is referred to the Defendant who operates a body shop. In order to repair the damaged door, the Defendant orders a used one from a scrap dealer. [ 5 ] The Plaintiff is unsatisfied with the used door's condition and asks the Defendant if he could repair his damaged door, which is done by the Defendant.

The Plaintiff's insurer duly pays the Defendant. [ 6 ] After the Plaintiff takes possession of his car, he notices several deficiencies related to the Defendant's repairs. [ 7 ] The Plaintiff does not send a written notice to the Defendant to complain about the work performed and has his door repaired by a Honda dealer for an amount of $1,197.59 claimed in the present file, to which the Plaintiff adds $220 as "car rental". [ 8 ] Articles 1590 and 1595 of the Civil Code of Québec provide: " 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. 1595.

The extrajudicial demand by which a creditor puts his debtor in default shall be made in writing .

If the demand does not allow the debtor sufficient time for performance, having regard to the nature of the obligation and the circumstances, the debtor may perform the obligation within a reasonable time after the demand." [Emphasis added] [ 9 ] In other words, if the Plaintiff claims that the Defendant did not perform his obligation "in full, properly and without delay", he must put him in default in writing.

If not, the Plaintiff's application cannot be granted. [ 10 ] Before having the door of his car repaired by a third party, the Plaintiff had the obligation to send a written and formal notice to the Defendant in order to put him in default, which was not the case. [ 11 ] Given all of the above, the Court concludes that the Plaintiff's claim is ill-founded in law because the Defendant was never put in default in writing. But, exercising its discretion, the Court does not impose any fees.

THEREFORE, the Court: DISMISSES Plaintiff's claim; THE WHOLE , each party paying its own costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: December 10, 2012