2017 QCCQ 80, 2017 QCCQ 80

Fedenko c. Prestige Gabriel Marcel Laurin 2017 QCCQ 80 C A N A D A COURT OF QUEBEC PROVINCE OF QUEBEC Civil division DISTRICT OF MONTREAL Small claims Division N o : 500-32-151997-162 Date: January 5 th , 2017 PRESENT: M e Vanessa O'Connell-Chrétien , special clerk NICK FEDENKO ANNA LICATA Plaintiffs vs. PRESTIGE GABRIEL MARCEL LAURIN L.P. Defendant JUDGMENT [ 1 ] The Plaintiffs bought a Volkswagen Passat 2014 from the Defendants which was delivered on October 27 th , 2014.

Since the delivery of the car, the Plaintiffs have brought their car to the dealership on several occasions due to a cracking noise coming from the dash. More specifically the car was in and out of the Defendant’s dealership for the following days: In Out Days June 3 rd , 2015 June 5 th , 2015 3 July 23 rd , 2015 July 30 th , 2015 8 September 3, 2015 September 4, 2015 2 September 15, 2015 October 30, 2015 46 January 1 st , 2016 February 3 rd , 2016 34 May 31 st , 2016 July 5 th 2016 36 Total: 129

[ 2 ] The Plaintiffs are seeking the sum of $2,111.23 from the Defendant who has sold him the car. This amount is broken down as follows: -Sirius Radio membership for 4.7 months at $15.54 per month: $73.03 -Gas expense for 4.7 months: $130.00 -Monthly payment reimbursement for 4.7 months: $1,908.20 [ 3 ] The Plaintiffs also asked at the hearing for the extension of the warranty of their car for a period of 4.7 months which was the time the car spent at the dealership for repairs. Their demand is based on

section 50 of the Consumer protection Law. As the undersigned mentioned at the hearing, the small claim division has no jurisdiction on such demand seeing

article 536 of the new Code of Civil Procedure. Although the law is undoubtedly clear that the warranty of a good should be extended by the number of days necessary for its repair, the undersigned has no jurisdiction to order such demand. [ 4 ] There is normally 365 days in a year.

The Plaintiffs car has spent 129 days at the dealership for repairs which represent 35% of a year. [ 5 ] Since the annual fee for the Sirius Radio is of $186.44 and that for 35% of the year the car was not available to them to use is they will be awarded the amount of $65.24 in compensation. [ 6 ] The amount of $1,908.20 for the “Monthly payment reimbursement for 4.7 months” cannot be granted. The Plaintiffs bought the car and they financed it through an installment sale. When they will be done paying the car they will own it.

I understand that the Plaintiffs want to be compensated for the issues they had to go through with the car. I would also understand if they had leased the car and could not have used it for all that time. But there again the evidence made is that the Defendant paid for a rental car while it was at the dealership. For those reason a lump sum of $500 seems appropriate in the circumstances of the file. [ 7 ] Due to lack of evidence, the claim for the “gas expense” will not be granted.

Indeed, the Plaintiff had the burden of the proof to evidence his reclamation, and he has not succeed to do so. [ 8 ] FOR THESE REASONS : [ 9 ] CONDEMNS the Defendant to pay the sum of $565.24 to the Plaintiff with interest at the legal rate of 5% and the additional indemnity provided by

article 1619 of the Civil Code of Que bec from February 26 th , 2016 and the court fees of $100.00. M e Vanessa O'Connell-Chrétien VOCC/ Special clerk JO 0333