2017 QCCQ 1832, 2017 QCCQ 1832

Fard c. Isbir 2017 QCCQ 1832 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-150697-169 DATE: January 27, 2017 ______________________________________________________________________ BY THE HONOURABLE MAGALI LEWIS, J.C.Q. ______________________________________________________________________ FARHAD AMIR FARD Plaintiff vs.

UMIT ISBIR Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Alleging that the Defendant, Umit Isbir, hid from him the fact that the car he sold him had been rebuilt, Plaintiff, Farhad Amir Fard, asks the Court to cancel the sale and condemn the Defendant to pay him $8,090.06, i.e., reimburse him the sale’s price and the amounts he paid to have the car inspected and repaired after he purchased it. [ 2 ] The Defendant contests the claim, alleging that Plaintiff was notified that the car had been rebuilt prior to purchasing it, and claims that the purchase price was adjusted in consequence, having sold the car for less than its black book value.

QUESTIONS AT ISSUE [ 3 ] To decide this matter, the Court will answer the following questions:

a) Has the Defendant hid from Plaintiff the fact that the car has been rebuilt?

b) In the affirmative, are Plaintiff’s claims for cancellation of the sale, reimbursement of the sale’s price and moneys he spent on the car well founded? CONTEXT [ 4 ] In the spring of 2015, the Defendant advertised his car for sale on kijiji, a 2010 Mazda 3 with 98,000km. He claims that the ad indicated that the car was “VGA”. He does not have a copy of the French written ad but states that other potential buyers declined to purchase the car because of that. [ 5 ] Plaintiff, a foreign Concordia University PhD student arrived in Canada a few years ago, claimed that he does not speak a word of French.

He refuted Defendant’s contention that the kijiji ad mentioned that the vehicle had been rebuilt. If it did indicate that the vehicle is VGA, which he does not remember, he would not have known what the acronym stands for.

When asked whether he asked what the mention “reconstruit” that appears on the car’s registrations means he explained that since he does not speak nor read French he did not pay attention to the mention and did not ask what it meant. [ 6 ] In a text message he sent to the Defendant on November 9, 2015 Plaintiff wrote that he had a screen shot of the kijiji ad, to which the Defendant answered by pointing out that the ad mentions that the car is VGA [1] .

Plaintiff did not file the screen shot of the ad in support of his claim. [ 7 ] In support of his contention that the Defendant hid from him the fact that the car had been rebuilt, Plaintiff filed the text messages the parties exchanged prior to reaching an agreement and meeting for Plaintiff to test drive the car and have it inspected by a mechanic of his choice. None of the numerous message makes mention of the fact that the car was rebuilt. The Defendant explained that there was no reason for him to mention that fact again in the messages if Plaintiff did not have questions on the matter since he indicated

in the ad that the car is VGA. The car had already been rebuilt when he himself purchased it. [ 8 ] The parties exchanged quite a number of text messages before they reached an agreement regarding the sale’s price, after which they met. Plaintiff explained that the Defendant set the meeting in a lost area and refused to give him his name. He drove the car for a few minutes and the parties then went to the garage where the Plaintiff had the car inspected. [ 9 ] It is difficult to understand why someone agrees to pay an important some of money to someone who he claims refused to identify himself.

In one of the text messages he sent to Plaintiff, the Defendant gave him his address [2] . The Court does not accept Plaintiff’s contention that the Defendant refused to identify himself. [ 10 ] Plaintiff claims that the Defendant did not have the registrations of the car with him to show to the mechanic that inspected the car. He also claims that the mechanic told him that although he did not find anything wrong with the car he needed to inspect it further after seeing the registrations.

It is not clear what one thing has to do with the other. [ 11 ] The Defendant, who speaks better French than English, contends that it is not in the middle of nowhere that the parties met but rather at his school during his lunch break. He also stated that he had the car’s registrations with him at the garage, that he spoke French to the mechanic and told him about the car having been rebuilt. He then heard the mechanic speak with Plaintiff in his native language and figured the mechanic would have discussed with him the fact that the car was rebuilt.

He could not understand what Plaintiff and his mechanic where discussing. [ 12 ] The Defendant claims having left in the car when he sold it to Plaintiff copies of the mechanical and technical reports provided to the SAAQ after the car had been rebuilt for it to allow the car to be put back on the road and issue registrations. Plaintiff denied ever having seen the documents or that there were in the car when he took possession of it. [ 13 ] Plaintiff decided to go ahead with the purchase even though his mechanic told him he could not give him a final opinion about the car without seeing the registrations.

He claims he did not get a written report of the inspection because the mechanic did not complete it. The mechanic did not testify at the hearing. [ 14 ] According to Plaintiff the parties met at the office of the SAAQ, where according to the Defendant they drove together to the office to proceed with the transaction.

Plaintiff was accompanied by his father that was visiting the country at the time, who was also present at the inspection. [ 15 ] According to the Defendant, the SAAQ agent that proceeded to the transaction asked Plaintiff whether he was aware that the car had been rebuilt, to which question he would have answered by the affirmative. Plaintiff denied that this ever happened. [ 16 ] He purchased Defendant’s car on May 11, 2015 for $5,000 [3] . On the SAAQ Service receipt the value of the car is indicated as being $6,400. [ 17 ] On November 6, 2011, the engine light lit on the dashboard.

Plaintiff had driven the car for about 3,400km since the purchase. He took the car to Mazda Gabriel (“ Mazda ”) that proceeded with some cleaning. [ 18 ] On November 11, 2015, Plaintiff took the car to a garage to have several repairs made: front left lower control arm, rear linkage, horn, and purchased four winter tires, for a total cost of $841.39. He claimed that the winter tires that he purchased from the Defendant where not appropriate for the car and that they needed to be changed. [ 19 ] Plaintiff took the car back to Mazda on November 12, 2015 because the engine light came on again.

That is when he says he learned that the car had been rebuilt. He was also told that the harness connectors were damaged and needed to be changed. The car dealer gave him a quote of $2,500 for the work. [ 20 ] According to the document Plaintiff filed at trial, the text messages the parties exchanged on the matter are dated November 9, 2015. This leads the Court to doubt the reliability of Plaintiff’s exhibit. [ 21 ] Plaintiff took the car back to Mazda on November 23, 2015 in relations again with the engine light that came on.

It is not clear from the invoice what was wrong with the car then. [ 22 ] On December 8, 2015, Plaintiff sent a demand letter to the Defendant, claiming that the later had hid from him the fact that the car had been rebuilt, demanding payment of $7,830.06 [4] . He claimed that he would not have purchased the car had he known that it had been rebuilt because he does not want to endanger his wife and baby.

He claimed that he has not driven the car since. [ 23 ] The Defendant stated without being contradicted that Plaintiff did not pay for the winter tires, that he gave them to him, the same tires that he himself used when he owned the car.

ANALYSIS [ 24 ] Anyone who wants to assert a right shall prove the facts that sustain his claim with clear and convincing evidence that makes the existence of the facts he wishes to establish more probable than there nonexistence [5] to satisfy the test of balance of probabilities [6] . [ 25 ] The evidence does not have to lead to an absolute certainty, scientific or mathematical. It is sufficient that it make probable the disputed facts [7] .

However, if it is not compelling enough, or if it is contradictory and the judge is unable to determine where the truth lies, the one upon whom falls the burden of persuading the court of the merits of the claim or contention loses, in part or in total [8] .

a) Has the Defendant hid from Plaintiff the fact that the car has been rebuilt? [ 26 ] Plaintiff failed to establish according to the balance of probabilities that the Defendant hid from him that the car was rebuilt.

[ 27 ] The Defendant could not in fact hide that fact because the information is in the SAAQ records and noted in capital letters on the registrations of the car. For that reason, it is more probable than not that the Defendant indicated on his kijiji ad, as he so stated, that the car was VGA. [ 28 ] VGA stands for “véhicule gravement accidenté” which means that the car had been seriously or heavily damaged. A vehicle that is declared VGA has been so badly damaged that it needed to be rebuilt. The reconstruction of a vehicle classified VGA has to be approved by the insurer that covers the cost of the repairs.

T he Société d’assurance automobile du Québec (“ SAAQ ”) must prohibit a vehicle from being put back into operation if it has been identified as unrebuildable by the owner of the vehicle, the insurer who compensated the owner, another administrative authority or a third person [9] . [ 29 ] Any insurer that compensates the owner of a vehicle so seriously damaged that it cannot be rebuilt or must be rebuilt before being driven again shall, upon payment of the indemnity to the owner, notify the SAAQ and indicate whether or not the vehicle may be rebuilt [10] . [ 30 ] While it is possible that Plaintiff did not know what the acronym stood for, it was his responsibility to enquire about it. [ 31 ] It is not enough for one to state that he does not speak one of the official languages of the province to establish that someone tried to hide information from him, when he did not take the necessary steps to understand the information or documents given to him. [ 32 ] One also has the responsibility to make sure he understands the documents that he signs or have them translated before signing. [ 33 ] Since his mechanic told him that it was necessary, thus important to see the registrations of the car, in light of the fact that the parties initially met “in the middle of nowhere and the Defendant refused to identify himself” as per Plaintiff’s testimony, he was negligent in not demanding to see them before agreeing to purchase the car.

The Defendant could have fetch for them to show the mechanic before the parties met at the SAAQ office. [ 34 ] This leads the Court to conclude that either the Defendant did have the car’s registrations with him at the inspection or he showed them to Plaintiff before they finalised the transaction. [ 35 ] The mention “ reconstruit ” appears on the car’s registrations, a French word very close to its English equivalent “reconstructed”.

Plaintiff admits not having paid attention to that mention and thus not having asked questions about its meaning. [ 36 ] Not only was it his decision not to follow his mechanic’s advice to have him inspect the car after he would have seen its registrations, but it seems quite improbable that the mechanic that inspected the car would have missed the fact that the car had been rebuilt and that, has Plaintiff claims, inappropriate parts had been used to replace the damaged ones. [ 37 ] Plaintiff alleged that Defendant’s car had been badly rebuilt, using improper parts.

Other than testifying about what he was told, Plaintiff administered no evidence to sustain his contention: no pictures of the car, no expert evaluation. He therefore failed to establish the fact that the harness connector needed to be repaired constituted a hidden defect. [ 38 ] Plaintiff claims that it is illegal to sale a reconstructed car. It is not.

As seen above, the Highway Safety Code [11] sets the conditions under which a car severely damaged can be rebuilt and authorised to be put back on the road. [ 39 ] As for the winter tires he got from the Defendant, Plaintiff did not pay for them and his sole testimony is insufficient to establish that they were not appropriate for the car.

b) In the affirmative, are Plaintiff’s claims for cancellation of the sale, reimbursement of the sale’s price and moneys he spent on the car well founded? [ 40 ] In light of the answer to the first question, the Court concludes that Plaintiff claim should be dismissed. [ 41 ] WHEREFORE, THE COURT: [ 42 ] REJECTS the claim; [ 43 ] CONDEMNS Farhad Amir Fard to pay $185 to Umit Isbir judicial costs. __________________________________ MAGALI LEWIS, J.C.Q. Date of hearing: January 9, 2017 Une

partie peut obtenir la traduction française du présent jugement en adressant une demande écrite à la Directrice du secteur civil du Palais de justice de Montréal.