2015 QCCQ 7121, 2015 QCCQ 7121

Ruditch c. Entrepôt The Brick, s.e.c. 2015 QCCQ 7121 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREL TOWN OF MONTREAL Civil Division No: 500-32-144041-144 DATE: July 3, 2015 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ GENE RUDITCH Plaintiff v. ENTREPÔT THE BRICK S.E.C. Defendant -and- L.G. CANADA INC.

Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Gene Ruditch claims, in virtue of an “Additional Replacement Obligation” clause, the reimbursement of a defective refrigerator he purchased from Entrepôt the Brick S.E.C. (“Brick”) for the price of $1,667.74. He also claims reimbursement of the cost of this additional warranty, delivery and taxes. [ 2 ] Brick pleads that the additional warranty does not apply. It also calls into warranty the manufacturer of the refrigerator, L.G.

Electronics Canada Inc. (“L.G.”). Although L.G. did file a contestation, no one appeared for it at trial, notwithstanding having been advised of the date of the hearing. [ 3 ] The chronology of the case is not contested. [ 4 ] The refrigerator was purchased on September 2, 2011. It was repaired by Brick’s technician on: 1. May 18, 2012, broken door clip; 2. March 15, 2013, broken door clip; 3. May 11, 2013, adjust compressor (noise and ice build-up in freezer); 4. March 11, 2014, broken gasket and door clip [ 5 ] Mr. Ruditch is not contradicted when he testifies that the door clasp is still defective.

The refrigerator door does not close correctly.

He also states that the technician told him, during one of his visits, that this specific model of refrigerator is frequently affected by this defect. [ 6 ] The Additional Replacement Obligation clause reads in part [1] : Additional Replacement Obligation If, within the Additional Replacement Obligation Period (as hereinafter defined), the Product requires repairs more than 3 times and the product then requires a fourth repair as a result of actual defects in materials or workmanship of the Product’s working components (excluding any cabinet, trim, knob, remote control, rechargeable battery, element, vacuum, belt or consumable items such as bulbs, lamps used in optical units and fuses), at your request, TGW will instruct The Brick to exchange the Product at no charge .

Should an identical model be unavailable for exchange TGW shall substitute a comparable Product with, similar features and functionality, though not necessarily of the same brand or at our sole discretion may issue a store credit fore the current replacement value . The total replacement value shall not exceed the original purchase price. Replacement Products may have a lower selling price than the Product because of technological advances. TGW must receive your request within the Additional Replacement Obligation Period (as hereinafter defined) and in no event later than 10 days from the expiration thereof. […]

(Emphasis added) [ 7 ] Brick argues: […] 9. The Brick does not dispute that the Plaintiff required service on his Fridge, however, the Extended Warranty specifically says that there needs to be three service calls addressing a major fault before the lemon pledge warranty would be effective. In this instance, none of the services related to major fault. [ 8 ] This proposed

interpretation is not founded. It constitutes an addition to the text of the Additional Replacement Obligation. Nowhere in this contractual undertaking have the parties chosen to use the word “ major repair ”. In fact, according to the evidence, each of the repairs were in fact on “working components”. As well, none of the exclusions named in the clause can apply here. [ 9 ] In any case, the facts required in order that Brick be able to plead this point, have not been put into evidence.

Brick provided no technical testimony at trial. [ 10 ] Lastly, the door clasp is obviously an essential part of the normal functioning of a refrigerator. [ 11 ] Brick is wrong in refusing to honour its warranty. [ 12 ] Since Brick refuses to replace the refrigerator, Mr. Ruditch is well founded in claiming execution by equivalent [2] . He has also offered to allow Brick to remove the defective refrigerator from his premises, if it so wishes. [ 13 ] The parties have presented no detailed evidence as to the depreciated value of the refrigerator.

In these circumstances, the Court will arbitrate the same and condemn Brick to pay a sum of $1 500.00. The others sums claimed by Mr. Ruditch do not constitute direct damages and will not be allowed. [ 14 ] Since L.G. has not appeared at trial to defend itself, it will be condemned to reimburse in capital, interest and costs all sums paid by Brick to Mr. Ruditch.

FOR THESE REASONS, THE COURT: GRANTS the claim, in part; TAKES ACT of Gene Ruditch’s offer to allow Entrepôt the Brick S.E.C. to retrieve the defective refrigerator, at its costs; CONDEMNS Entrepôt the Brick S.E.C. to pay to Gene Ruditch the sum of $1, 500.00, plus interest at the legal rate as well as the additional indemnity provided for in

article 1619 of the Civil Code of Québec , since the institution of the claim on September 17, 2014; CONDEMNS Entrepôt the Brick SEC to pay to Gene Ruditch his Court disbursements of $106; ON THE CLAIM IN WARRANTY : CONDEMNS L.G. Canada Inc. to pay to Entrepôt the Brick S.E.C. a sum equivalent to the indemnity paid to Gene Ruditch by Entrepôt the Brick S.E.C. in virtue of this judgment in capital, interest and costs; WITHOUT COSTS. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: June 2, 2015