2022 QCCQ 184, 2022 QCCQ 184

Mazraani c. Lallier Kia de Laval 2022 QCCQ 184 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-159563-198 DATE: January 19, 2022 ______________________________________________________________________ BEFORE THE HONOURABLE DIANE QUENNEVILLE J.C.Q. ______________________________________________________________________ ihsan khazem mazraani -and- khazem mazraani Plaintiffs v.

LALLIER KIA DE LAVAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In January 2018, Plaintiffs purchased from Lallier Kia de Laval (“ Kia ”) a 2013 Dodge Grand Caravan with 159,000 km on the odometer. The purchase price of $9,439.40 [1] was financed by BMO through Kia. [2] [ 2 ] In the weeks that followed, Mr. Mazraani took the car back to Kia twice complaining that the transmission was not smooth.

On both occasions, Kia's road-tested the car but found no anomaly with the transmission. [3] [ 3 ] On June 1, 2018, the car would not shift properly. Mr. Mazraani took it to a local mechanic who told him that the transmission was finished. The parties disagree on what followed. [ 4 ] According to Mr. Mazraani, he took the car back to Kia on June 4, 2018, and was told by the service manager that Kia was not responsible and that nothing could be done.

He then had the transmission refurbished by a third party at a cost of $2,069.55 [4] and claimed said costs from Kia on June 13, 2018. [5] [ 5 ] According to Kia, it learned of the repairs after the fact when it received Plaintiffs’ letter of demand. [6] [ 6 ] In July 2018, the transmission malfunctioned again. Having obtained a report allegedly proving that the transmission had not been properly refurbished, [7] Mr. Mazraani was reimbursed for the initial work and had it refurbished again at a cost of $3,238.89. [8] [ 7 ] Plaintiffs filed suit in January 2019.

They claim that the transmission was defective at the time of the sale and that this is a latent defect for which Kia is liable. They also claim that the odometer of the car was reduced sometime before the sale and that Kia is responsible.

They seek the cancellation of the sale, in addition to the reimbursement of all payments made to BMO and the costs incurred to refurbish the transmission. [9] [ 8 ] Kia argues that the claim relating to the transmission is inadmissible because Plaintiffs did not send a letter of demand prior to getting it repaired and, in any event, denies that the transmission was defective at the time of the sale. It also denies any tampering with the odometer. questionS in issue [ 9 ] The case calls for the resolution of the following questions:

a) Is Plaintiffs’ claim regarding the transmission admissible given that no letter of demand was sent prior to the repairs?

b) If so, have Plaintiffs proven that the transmission was defective at the time of the sale and that Kia breached its warranty obligations?

c) Have Plaintiffs proven that the odometer of the car was reduced and, if so, is Kia liable? ANALYSIS

a) Is Plaintiffs’ claim regarding the transmission admissible given that no letter of demand was sent prior to the repairs? [ 10 ] According to Kia, Plaintiffs’ claim regarding the transmission is inadmissible because Plaintiffs did not, prior to having the transmission refurbished, send Kia a letter demanding that it proceed to the needed repairs. Kia argues that it was not given the opportunity to verify and remedy the alleged defect.

[ 11 ] The Court disagrees for the following reasons. [ 12 ] Kia is correct that a purchaser who claims that the purchased good is defective must formally demand from the seller that he honours his obligations of warranty – the law refers to this as “putting in default” – before having the good repaired. [10] The objective of this requirement is to give the seller the chance to see for himself if the good is defective and to remedy the situation if such is the case. [ 13 ] There is no need to do so, however, if the purchaser can prove that the seller was in default by the sole effect of the law, [11] which is the case where a seller has made it clear to the purchaser that he does not intend to perform his warranty obligations. [12] [ 14 ] On the facts, Mr.

Mazraani testified that immediately after being advised that the transmission needed to be refurbished on Friday, June 1, 2018, he called Kia and was given an appointment at the first available time on the following Monday. He affirms that he met with Mr. Daniel Brunet, Kia’s service director, who told him that Kia considered that it was not responsible and that nothing could be done. [ 15 ] Although Kia denies that this conversation took place, Mr. Brunet was not called as a witness. The Court sees no reason to set aside Mr. Mazraani’s testimony on this point.

The Court therefore concludes, on the facts, that Kia was in default by the sole effect of the law when Plaintiffs had the transmission repaired on June 8, 2018. Their claim is therefore admissible.

b) Have Plaintiffs proven that the transmission was defective at the time of the sale and that Kia breached its warranty obligations? [ 16 ] Plaintiffs claim that the failure of the transmission after only 4 months is proof that the transmission was defective at the time of the sale. They argue that Kia sold them the car knowing of this latent defect and hid it from them afterwards when Mr. Mazraani brought the car back complaining that it was not shifting smoothly.

They submit that by doing so, Kia breached the warranty against latent defects and the warranty of durability to which it is held by law. [ 17 ] The Court cannot conclude to Kia’s liability regarding the transmission for the following reasons. [ 18 ] In civil matters, the person who seeks to assert a right bears the burden of proving, on a balance of probabilities, the facts upon which its claim is based. [13] To meet this burden, the evidence offered must be clear and convincing [14] ; the alleged facts must not only be possible, but probable. [15] The Court must determine liability on the basis of the most probable facts. [ 19 ] Here, Plaintiffs’ burden of proof must be considered in light of the legal principles governing the warranty of quality (warranty against latent defects) and durability imposed on a seller by law. [ 20 ] The sale contract at issue is a consumer contract subject to the Civil Code of Québec (the “ CCQ ”) and the Consumer Protection Act [16] (“ CPA ”), pursuant to which a seller is bound to warrant that a good sold is, at the time of the sale, free of latent defects that render it unfit for its intended use or diminishes its use significantly. [17] The CPA also provides, more specifically, that a seller must warrant that the good sold is “ durable in normal use for a reasonable length of time, having regard to [its] price, the terms of the contract and the conditions of [its] use ”. [18] [ 21 ] To succeed on a latent defect claim, a purchaser must prove the existence of a defect that is serious, hidden, and unknown to him and that it existed at the time of the sale. [ 22 ] When a product is sold by a professional seller or merchant, however, certain presumptions facilitate the purchaser’s burden of proof.

If the purchaser proves on a balance of probabilities that the good malfunctioned or deteriorated prematurely in comparison to the same or similar products, it will be presumed that (

a) a defect exists; (

b) that it existed at the time of the sale; and (

c) that it caused the malfunction or deterioration at issue. [19] This is akin to a presumption of liability of the seller or merchant. To avoid liability, the seller or merchant must prove that the malfunction or deterioration was caused by a fault of the purchaser or a third party or because of a force majeur . [ 23 ] In the instant case, Plaintiffs purchased the car from a professional seller and merchant.

To benefit from the above-mentioned presumptions, they had to prove, on a balance of probabilities, [20] that the car – and more specifically the transmission – malfunctioned or deteriorated prematurely as compared to similar cars. [ 24 ] Plaintiffs did not meet this burden of proof. [ 25 ] It must be underscored at the outset that no direct evidence – such as the testimony of a mechanic – was offered to establish the nature of the problem that occurred with the transmission or whether the problem was premature as compared to cars of similar age and mileage. Plaintiffs’ whole case hinges on the testimony of Mr.

Mazraani. [ 26 ] Mr. Mazraani testified that the car was not shifting smoothly from the beginning – suggesting that this proves the existence of a defect at the time of the sale. The evidence shows, however, that Kia road tested the car in February and again in March 2018 and found no anomaly with the transmission. [21] Moreover, nothing suggests that Mr.

Mazraani was unable to make use of the car because of this alleged problem so that the Court cannot infer the existence of a premature deterioration or malfunction. [ 27 ] Nor have Plaintiffs convinced the Court that the need to refurbish the transmission in early June 2018 was the result of a premature malfunction or deterioration as compared to similar products. [ 28 ] Plaintiffs chose to purchase a 5-year-old car having travelled 159 000 km at the time of purchase for which they paid $9,439.40.

By the beginning of June 2018, the odometer was up to 175 000 km. [22] Was it premature for the transmission to need refurbishment at this stage? Had the transmission simply come to the end of its useful life?

[ 29 ] The Court does not know, as Plaintiffs provided no evidence of what is the “normal” or “expected” service life of a car transmission. This was essential to Plaintiffs’ case. [ 30 ] Plaintiffs’ claim regarding the transmission must therefore be dismissed.

c) Have Plaintiffs proven that the odometer of the car was reduced and, if so, is Kia liable? [ 31 ] Plaintiffs also claim that Kia tampered with the odometer of the car by reducing it by more than 50 000 km prior to selling it to them. [ 32 ] They rely solely on a Carproof Report that they obtained after purchasing the car. More specifically, they brought the Court’s attention to two entries made on March 21 and 30, 2016 showing readings of 147 000 km and 96 369 km respectively. The next odometer reading on the report (159 000 km) was taken on the date of purchase.

Plaintiffs argue from these entries that the odometer was reduced in March 2016 by 50 631 km [23] and that Kia is responsible. [ 33 ] Kia denies that there was any tampering with the odometer. It submits that the March 30, 2016, reading of 96 369 km was erroneous and produced a corrected Carfax report in which this reading has been removed. [24] [ 34 ] The Court cannot, on the basis of the Carproof report alone, infer that there was any tampering of the odometer. The entry of 93 639 km appears to be a simple error.

Apart from this one, the odometer readings from 2014 to 2018 show a logical and consistent progression. In any event, even if the odometer had been reduced in 2016, it would have been long before Kia came into possession of the car in 2018 and nothing suggests that Kia was aware or should have been aware of this. [ 35 ] Plaintiffs’ claim in regard to the odometer must therefore also be dismissed. FOR THESE REASONS, THE COURT: DISMISSES the action; WITH LEGAL COSTS of $154 representing the judicial stamp of the Contestation. __________________________________ DIANE QUENNEVILLE, J.C.Q.

Date of hearing: October 22, 2021