2011 QCCQ 898, 2011 QCCQ 898

Schecter c. Boca Rattan Inc. 2011 QCCQ 898 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-114278-080 500-32-114279-088 DATE: February 11, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ MARSHALL SCHECTER […] Dorval Québec […] Plaintiff v.

BOCA RATTAN INCORPORATED 200 Bantor Road Unit 3 Toronto Ontario M9M 2W6 -and- WILLIAMS & MAURICE INC. 3955 de Rouen Montréal Québec H1W 1N4 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Marshall Schecter is suing Williams and Maurice inc. and Boca Rattan each for $7,000 claiming that the chairs of the dinette set he purchased broke and are defective.

The two files were heard at the same time. [ 2 ] Williams & Maurice, the store which sold the product, claimed it was not provided with an opportunity to remedy the problem. As for Boca Rattan, no representative from this company was present at the hearing. The evidence: [ 3 ] Mr. Schecter purchased a dinette set from Williams & Maurice in March 2008. The set, manufactured by Boca Rattan, arrived only in July 2008. Within a short time, the cross bars of three chairs broke. Since Mr.

Schecter refused to have the furniture fixed, Williams & Maurice provided him with four new chairs. [ 4 ] In December 2008, the cross bar broke again, in the same way as had occurred before. Given the broken cross bar, he called both Williams & Maurice and Boca Rattan and demanded a full refund. Both refused, alleging there is no warranty. [ 5 ] Mr. Libstug, Williams and Maurice's representative, contends he offered to rectify the problem when Mr. Schecter called about his chairs in December. He asked that Mr. Schecter bring in the chairs or alternatively, he would sent a repairmen go

Mr. Schecter's house to fix the chairs. [ 6 ] However, Mr. Schecter would not bring the chairs to the store or allow them to be repaired at his home. Williams & Maurice claim and they were never able to see the chairs to verify and fix the problem. Moreover, they allege that Mr. Schecter did not specify what the issue was, a fact Mr. Schecter disputes. Analysis: [ 7 ] Mr. Schecter's claim for reimbursement of the sums paid for a dinette is based on the defective quality of the goods received.

He submits Boca's website advertising, which states it is committed to the highest standards and uses the finest materials, is not accurate. [ 8 ] The Consumer Protection Act [1] , at articles 37 and 38 , foresees that goods which form the object of a contract must be fit for the purpose for which such goods are used and be durable for a reasonable length of time: 37. Goods forming the object of a contract must be fit for the purposes for which goods of that kind are ordinarily used. 38.

Goods forming the object of a contract must be durable in normal use for a reasonable length of time, having regard to their price, the terms of the contract and the conditions of their use. [ 9 ]

Article 1726 of the Civil code of Quebec (C.C.Q.) also concerns the legal guarantee of quality and assures a purchaser that the goods sold will be free of latent defects: 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. [ 10 ] According to

article 1729 C.C.Q. a defect is presumed to have existed at the time of sale if the deterioration occurs prematurely: 1729. A defect is presumed to have existed at the time of a sale by a professional seller if the property malfunctions or deteriorates prematurely in comparison with identical items of property or items of the same type; such a presumption is not made, however, where the defect is due to improper use of the property by the buyer. [ 11 ]

Article 1730 C.C.Q. concerns the responsibility of the manufacturer, who is also bound to warrant the goods to the same extent as the seller: 1730. The manufacturer, any person who distributes the property under his name or as his own, and any supplier of the property, in particular the wholesaler and the importer, are also bound to warrant the buyer in the same manner as the seller. [ 12 ] Both articles 53 and 54 of the Consumer Protection Act provide that recourse may be taken by a consumer either against the merchant or against the manufacturer: 53.

A consumer who has entered into a contract with a merchant is entitled to exercise directly against the merchant or the manufacturer a recourse based on a latent defect in the goods forming the object of the contract, unless the consumer could have discovered the defect by ordinary examination. 54. A consumer having entered into a contract with a merchant may take action directly against the merchant or the manufacturer to asset a claim based on an obligation resulting from

section 37, 38 or 39. [ 13 ] In the present case, Mr. Schecter received merchandise that was defective upon its delivery. Defendants provided new chairs.

While Williams & Maurice claim that it had not verified the damage, it is unlikely that either the seller or the manufacturer would give the client new chairs if there was nothing wrong with the ones delivered. [ 14 ] A couple of months after the delivery of the replacement chairs, the same problem occurred; the cross bar situated under one of the chairs broke. [ 15 ] The evidence indicates that contrary to Boca Rattan's advertising, namely that it is committed to the highest quality construction possible and its furniture is durable and will last a lifetime, the chairs were not solid and could not be used. [ 16 ] The Court considers that the goods were defective and did not meet the legal guarantee of quality.

In light of

article 172 of the Consumer Protection Act , Mr. Schecter is entitled to have the contract set aside and be reimbursed the funds paid. [ 17 ] However, his claim for the sum of $5,375.66 as damages is completely unfounded. No evidence has been presented to substantiate this aspect of his claim. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; DECLARES that the sale of the Boca Rattan dining set is set aside;

PERMITS Defendants Williams and Maurice inc. and Boca Rattan to take possession of the dinette and chairs at Plaintiff's residence within a delay of 45 days of the present judgment by providing five (5) days prior notice of the repossession as to the date and time when the furniture will be picked up; CONDEMNS Williams and Maurice inc. and Boca Rattan solidarily to pay Schecter the sum of $1,624.34 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec since December 8, 2008 plus judicial fees of $155. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: December 20, 2010