2021 QCCQ 4089, 2021 QCCQ 4089

He c. LMB Automobile inc. 2021 QCCQ 4089 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-245728-186 DATE: May 6, 2021 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ XIAO RU HE Plaintiff v. LMB AUTOMOBILE INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] In 2014, plaintiff bought a new luxury car, from defendant dealership. Plaintiff is seeking the annulment of the sale and $60,000.00 in damages. THE FACTS September, 2014 [ 2 ] On September 29, 2014, plaintiff purchases a new 2015 BMW “X5xDrive35i”, from defendant, for $73,324.00, plus tax (sales contract, exhibit P-1).

August, 2015 [ 3 ] On August 5, 2015, with an odometer-reading of 11,678 km, plaintiff takes the vehicle to defendant, for servicing. She complains that, inter alia , the steering-wheel is tighter, noisy and “shaky”. [ 4 ] Shop foreman, technical trainer and experienced master technician Craig Spiro meets with plaintiff and listens to her complaints. He then road-tests the vehicle, with plaintiff, but cannot find fault with it. He not only test-drives the vehicle, but he also checks its electronic system, and concludes that the vehicle is functioning perfectly.

This work is carried out at no charge to plaintiff (invoice, exhibit P-8). September, 2015 [ 5 ] With an odometer-reading of 13,906 km, the vehicle is taken to defendant, for bodywork, due to damage caused to its underbelly by a third party. Plaintiff’s insurer pays for the repairs (work order/invoice, exhibit P-9). October, 2015 [ 6 ] At the beginning of October, plaintiff returns to defendant’s premises, with the vehicle, which now has an odometer-reading of 14,458 km. Her complaints are essentially the same, namely a steering-wheel which is tight and noisy.

She also complains of a noisy fan and weak windshield wipers. [ 7 ] Spiro road-tests the vehicle with plaintiff, and, again, finds no fault with it.

There is no noise, nor is the steering-wheel tight. [ 8 ] Spiro also tests the blower-fan, “runs a whole series of diagnostics”, and concludes that the “very, very, very, slight sound” which plaintiff hears, is “the very light humming of a normally operating motor”. [ 9 ] As regards the windshield wipers, defendant uses a gauge to test their tension, and ascertains that the readings are normal. [ 10 ] Defendant further resets “the CBS”, as it was not reset when the oil change service was performed in August; and the integrated supply module is replaced, as per the manufacturer’s recall, which has absolutely nothing to do with plaintiff’s complaints. [ 11 ] As evidenced by work order and invoice, exhibit P-9, once again, nothing is billed to plaintiff. [ 12 ] Defendant supplies plaintiff with a courtesy car, while this work is being carried out.

January, 2016 [ 13 ] In January, 2016, plaintiff has a flat tire. The vehicle is taken to a different dealership, namely Park Avenue BMW, for the repairs (work order/invoice, exhibit P-10). [ 14 ] At the time, the vehicle has an odometer-reading of 16,589 km. September, 2016 [ 15 ] On September 13, 2016, plaintiff hears a “boom boom”, while she is driving. She turns the motor off, but claims that she is unable to restart it.

She has the vehicle towed to Park Avenue BMW. [ 16 ] Work order/invoice, exhibit D-3, states the following: « PLAINTE: SYSTEME ELECTRONIQUES VERIFIER A PLUSIEUR REPRISE LE VEHICULE SE MET A SHAKER ET NE ROULE PAS BIEN DU TOUT LUMIERE ALLUME ET ETEINT CORRECTION : DEARER VEHICULE, FOCTIONNE TRES BIEN,SHORT TEST, PAS DE FAUTE RELIE, PRINT. » (emphasis added) [ 17 ] Plaintiff “has no idea” what transpired. At trial, she declares, “They said OK, you can drive. They didn’t explain. They changed a little bit piece for $23.00. I don’t know what it did.

It worked.” [ 18 ] There is therefore no explanation for the alleged malfunction which, moreover, is denied by Park Avenue BMW. [ 19 ] At this point, the odometer reads 24,296 km. March, 2017 [ 20 ] While plaintiff is driving, a message referring to the brakes appears on the dashboard. [ 21 ] Plaintiff calls “emergency”, and drives the car home, at “20 km per hour”. On the following Monday morning, the car is towed to Park Avenue BMW. [ 22 ] At trial, plaintiff describes the events as follows: “I don’t know what happened. They didn’t change the brakes.

Something happened, but I don’t understand”. [ 23 ] Work order/invoice, exhibit D-3, states: « PLAINTE: Service, rear brakes VERIFIER LUMIERE DE FREINS ALLUMER CAUSE: FREIN ARRIERE RESTE 2 MM D PEAISSEUR DE PLAQUETTE . INT PLAQUETTE EXTERIER 5 MM CORRECTION : JIA REMPLACE LES FREIN ARRIERES . JAI AJUSTER LE FREIN A MAIN . # ACT 2 TOTAL M-D’O & PCES 736.70 » [ 24 ] At trial, Spiro explains that brake pads should not be less than 3.7 mm. As stated above, at this time, they are at 2 mm. This would explain why the brake warning signal appeared on the dashboard.

This is most likely an indication of normal wear and tear, as the vehicle now has an odometer-reading of 29,300 km (testimony of customer service manager Terry Grant and key read information, exhibit D-7). April to June, 2017 [ 25 ] On April 20, 2017, plaintiff writes the following letter to defendant: “REGISTERED MAIL 20 April 2017 Mr. Buffone and Mr. Diaco, I wish to express my deep concern and overall disappointment with the car I bought at your dealership on September 29, 2014. It is a

2015 BMW X5 xDrive35i, VIN :5UXKRoC54FoK5224 8. I had to bring it back in September 2015 for some body work but more importantly for rusted rear brakes and a noisy fan. (Please check your records because I was not given copy of the work order.) It appears the brakes and fan were never fixed. Later during winter 2016, the car started to shake when backing up, and then refused to move. It had to be towed to the nearest dealership, Park Avenue BMW, where I had to spend 4 hours and I lost my entire work day. On March 6, 2017, the "back brake problem" sign lights up on a highway with no place to stop.

It’s a Saturday evening and I was forced to drive home a t a dangerous 20 km per hour pac e. The towing only came Monday morning, leaving me without a car for most of the weekend. BMW files will show that I drive about 10,000 km per year. Even though I keep my car in good order, I can no longer trust this car and its safety, always wondering what else is going to go wrong. It has had much too many problems for a vehicle purchased brand new at close to $ 80,000. I am extremely unhappy with the quality of the car and the way BMW treats its customers. Given al l that is mentioned above, I am requesting a new car.

Thanking you for looking into this matter, Xiao Ru He ” (letter, exhibit P-7) [ 26 ] Grant reaches out to plaintiff, by phone, on April 26, 2017. [ 27 ] Plaintiff returns the call, on April 27 th , at which time the parties discuss her complaints. [ 28 ] Although plaintiff alleges that defendant disregarded and ignored her complaints, evidence to the contrary is loud and clear. [ 29 ] In fact, Grant invites and encourages plaintiff to return to the dealership with her grievances; but it is plaintiff, herself, who chooses not to do so, despite Grant having left her another message on June 8 th .

This is evident, not only from Grant’s credible and convincing testimony, but also from plaintiff’s written admission, in her letter, dated June 27, 2017: “REGISTERED MAIL Montreal, 27 J une 2017 Mr. Buffone and Mr. Diaco, Please find herewith the letter I sent you on April 2017. It explains the different problems I have had with the car I purchased at your dealership. Ever since 21 June 2017, and every day now, the car shakes when backing up, which is part of the same problem described 2 months ago. Althoug h Mr.

Terry from your Service departme nt has called and offered to make an appointm ent, I must emphasize that I no longer trust this car and its safety. It has far too many problems. As a gesture of good faith, and at Mr. Terry's suggestion, I am willing to drive the car to your dealership and have it thoroughly inspected so as to fix its problems once and for all . Should problems reoccur in a near future, I expect a new car. I am waiting for your phone call. Please note that I will need a replacement car of the same size for the duration of the inspection.

Xiao Ru He” (letter, exhibit P-7) (emphasis added) July, 2017 [ 30 ] On July 3, 2017, plaintiff returns to the dealership, and meets with both Grant and Spiro. The vehicle now has an odometer- reading of 34,674 km. Here are her complaints: « #A 1 PLAINTE: AS PER CUSTOMER SHAKING FEELING WHEN BACKING UP AT COLD START INTERMITTENT, MAKES A BIG NOISE CAUSE: UNABLE TO REPRODUCE CONDITION AT TIME OF INSPECTION ALTHOUGH FRONT BRAKE REPLACED CORRECTION: ROADTEST OK.

#A 2 PLAINTE: AS PER CUSTOMER VIBRATION/SHAKE IN STEERING WHEN TURNING RIGHT AT COLD START LOW SPEED CAUSE: CONDITION NOT PRESENT AT TIME OF INSPECTION ALTHOUGH PERFORMED SOFTWARE UPDATE CORRECTION: ROADTEST OK AT TIME OF TEST WILL TRY WITH CUSTOMER #A 3 PLAINTE: VISUAL VEHICLE INSPECTION CAUSE: AS PER REQUEST. CORRECTION: FORNT TIRE 8/32, REAR 9/32. FRONT BRAKE PADS 8MM OUTER. 5MM INNER. DISCS RUSTED OVER 50% OF SURFACE.

REAR PADS 8MM. #A 4 PLAINTE: MOBILITY PROGRAM CORRECTION: VOITURE DE COURTOISIE – COURTESY VEHICLE #A 5 PLAINTE : AS PER CUSTOMER BLOWER FAN NOISY RIGHT SIDE OF CAR CAUSE: CHECKED BLOWER FAN OPERATION IS NORMAL CORRECTION: COMPARED TO 2 OTHER SAME VEHICLES, ALL PERFORMED IN SAME MANNER #A 6 PLAINTE: AS PER CUSTOMER FRONT BRAKES ARE RUSTY CAUSE: AS PER PLAINTE, FRONT DISCS RUSTED CORRECTION: REPLACED FRONT BRAKES COMPLETE, RESET CBS #A 7 PLAINTE: AS PER CUSTOMER ABNORMAL NOISE FROM ENGINE AT COLD START UP CAUSE: TESTED CAR, AT COLD START UP ON SEVERAL OCCASIONS CORRECTION: NORMAL NOISE HEARED DURING WARM UP PHASE » (work order/invoice, exhibit P-11) (emphasis added) [ 31 ] As above-noted, and according to Spiro, whose testimony was highly credible and convincing, he and Grant carefully listened to plaintiff’s complaints and did their utmost to investigate and resolve them. [ 32 ] Spiro explains that when he conducts a road-test, he drives the vehicle himself; but, if he himself cannot feel what the customer is reporting, he repeats the road-test, with the customer at the wheel, to further assess and evaluate the perceived problem. [ 33 ] In this case, Spiro could neither find nor reproduce the alleged problems; there was neither noise nor “banging”. [ 34 ] Spiro clearly remembers driving through the streets of Laval, with plaintiff, and being unable to reproduce the sound: “There was no noise or shaking”. [ 35 ] When Spiro checks the vehicle’s exterior, he notices that one of the front brakes is very rusty, and that the others are moderately rusty. [ 36 ] This is discussed with plaintiff, who reports that the vehicle is pressure-washed every time she parks in the building where she lives. [ 37 ] Spiro surmises that all this water might be the cause of the rust. [ 38 ] Upon full visual inspection and after determining that the brakes are “half-way done”, defendant decides to replace the front brake discs and all the pads, “under goodwill”, i.e. at no cost to plaintiff, this, although the brakes are no longer under warranty and their diminished condition is due to normal wear and tear. [ 39 ] As far as the alleged abnormal motor noise is concerned, Spiro is “unable to find a problem”. [ 40 ] Grant calls BMW Canada to obtain authorization to carry out all of the above work under goodwill, that which is immediately

authorized. [ 41 ] On July 17, 2017, BMW Canada writes the following email to plaintiff: “Dear Dr. He: Thank you again for contacting BMW Canada. We have appreciated your patience while our office reviewed your vehicle repair concerns. Please be advised that we have thoroughly reviewed your concerns regarding the previous and recent repairs performed at BMW Laval. With that being said, we understand that your vehicle has recently been repaired and released to you by BMW Laval. Please note that we can confirm that your vehicle was tested among similar vehicles, and was found to be operating as it was designed.

We hope that your repair concerns have been fully resolved by the service team at BMW Laval. Please do not hesitate to contact us if you need further assistance. Should you require assistance in the interim, you are welcome to respond to this e-mail, or I can be reached at 1-800-567-2691, extension 8990. Again, thank you for contacting BMW Canada. Sincerely, Amber Hupp Case Manager BMW Canada” (email, exhibit P-3) [ 42 ] On July 24, 2017, plaintiff writes back to BMW Canada, alleging that the vehicle is “unsafe” and “dangerous”; that it has “serious problems; and that it is “a lemon”.

Moreover, she astonishingly requests that she be given “a new car”. Here is said letter, which according to the evidence, defies reality: “ REGISTERED MAIL Montreal, 24 July 2017 Ms. Amber Hupp Case Manager Customer Service BMW Canada Ms. Hupp, Than k you for your email of July 17, 2017. At your request, I am contacting you for further assistance. As stated in my second letter dated 27 June 2017, I brought my car to your Laval dealership for a thorough inspection July 3, 2017.1 got the car back July 7 and it seemed fine at first. But the same problems have reoccurred in the last few days.

The brakes are acting up again. This vehicle is unsafe, it has serious problems. Enough is enough. With all these recurring problems, I am hereby requesting a new car. This situation is unfair to me, the customer, and it does not speak well of BMW quality. Your records will show that I have taken good care of a car that has only given me one probl em after another. I am not looki ng for a bargain, I am not looking f or a deal. I am looking for fairn ess. If I were to rate this car on the internet, it would get an extremely bad review. It is by far the worst car I have ever owned. I have been through enough.

I was not expecting a lemon from BMW. But that is what I was handed. In closing, here are the hard facts: ˗ after numerous attempts, BMW cannot fix this car; ˗ I cannot sell it or even give it away for obvious reasons; ˗ it has brake problems, and therefore is dangerous. For all these reasons and with all the aggravations I have endured, I am expecting a response from you in the next few days and a new, problem-free car. Xiao Ru He ” (letter, exhibit P-7)

[ 43 ] BMW Canada responds as follows : “Dear Dr. He: Thank you for your response. We are very sorry to hear that your vehicle requires further servicing in regards to the braking system. We kindly request that you respond to this e-mail with the current location of your vehicle. We are more than happy to review your request, but we will need to confirm the recurring vehicle issue with the service team at BMW Laval. We look forward to your response so that we may better assist you.

Should you have additional questions or concerns, you are welcome to respond to this e-mail, or I can be reached at 1-800-567-2691, extension 8990. Again, thank you for contacting BMW Canada. Sincerely, Amber Hupp Case Manager BMW Canada” (email dated July 25, 2017, exhibit P-3) November, 2017 [ 44 ] On November 6, 2017, plaintiff presents herself, yet again, at defendant’s premises. The odometer-reading is now 39,171 km.

This time, plaintiff complains about a “squeak” when driving the car “at cold”: “#A 1 PLAINTE: CUSTOMER STATE SQUEAKK WHEN DRIVING THE CAR AT COLD WITHOUT APPLYING THE BRAKES SEE CRAG SEE HISTORY CAUSE: FRONT BRAKES SQUEAKING CORRECTION: REMOVED AND INSPECTED FRONT BRAKES. PERFORMED BRAKE SERVICE. CLEANED SURFACES. CLEANED AND LUBRICATED CONTACT POINTS. REINSTALLED” (work order/invoice, exhibit P-12) [ 45 ] Spiro does hear a squeak, for which there could be several reasons, such as:

a) light braking-practices, which may have created “glazing”, hence the harmonic squeak;

b) dusty or dry contact between the pads and/or another brake component; or

c) the lubricant being washed out by all the pressure-washing. [ 46 ] Again, in order to satisfy plaintiff, the above-described correction is carried out, free of charge. Defendant removes the whole brake-assembly, including carriers and discs; cleans everything up; applies grease to the surfaces; and reassembles. [ 47 ] At trial, Spiro is adamant: this car is not a lemon and does not have a manufacturing defect rendering it unsafe or dangerous, as suggested by plaintiff. “This vehicle was absolutely safe to drive. It was never a safety issue.

The squeaky brakes may (have been) annoying, but they (were) definitely not unsafe,” declared Spiro. December, 2017 [ 48 ] Finally, on December 21, 2017, plaintiff goes to defendant dealership once more, this time complaining about a “squeak coming from the back”: « #A 1 PLAINTE: CUSTOMER STATE NOISE IN BRAKE ARE STILL THERE SEE CRAIG SEE HISTORY REPORT AND ESTIMATE

CAUSE: FREINS ARRIERE BRUYANTS REAR BRAKE PAD CARRIERS HAVE EXCESSIVE PLAY REAR BRAKE PADS AND DISCS DEFECTIVE CORRECTION: FAIT SERVICE DE FREINS ARRIERE PERFORMED VEHICLE TEST. PERFORMED TEST PLAN. REPLACED REAR BRAKE PAD CARRIERS. CLEANED PADS. CLEANED AND LUBRICATED CONTACT POINTS. CLEANED HUBS AND TORQUED WHEELS. REPLACED REAR COMPLETE BRAKES. CLEANED HUBS AND TORQUED WHEELS. ROAD TEST. » (work order/invoice, exhibit P-13) [ 49 ] Spiro determines that there is “slight excessive free play”, meaning that “the caliber retainer is slightly loose”.

Defendant decides to replace the caliber retainer and, as a consequence thereof, replaces the pads and the discs. All this is done free of charge to plaintiff. [ 50 ] However, it is important to note that the “squeaking” and “excessive free play” alluded to above, occurred after Park Avenue BMW (and not the defendant) worked on the rear brakes, in March, 2017 (invoice, exhibit P-2). [ 51 ] This is the last time plaintiff attends defendant’s place of business. January, 2018 [ 52 ] On January 15, 2018, plaintiff’s lawyer sends the following demand letter to defendant: “ BMW LAVAL Att: Claims Department 2450 Boul.

Comedey Laval, Quebec, H2T 2X3 Re: Xiao Ru He vs yourself We have been mandated by our client, Mrs. He, to write the present letter in the above captioned file, the whole to attempt to resolve the present matter in an amicable fashion. First and foremost, let us summarize the facts that have given rise to the present litigation. Our client as you know purchased on September 29, 2014 from your location a new 2015 BMW X5 for a purchase price of $76, 273.73. She dealt at your location with your sales representative Mr. Loffreda.

To our client’s surprise she started to experience problems with the said car as early the beginning of September 2015 for she had to bring in the car for some body work, but more importantly she was experiencing problems with the rear brakes that were rusted as well as the fan that was noisy. To our client’s surprise the said problems were never fixed. Later in the winter of 2016, our client experienced more problems with the said car, more specifically the car started to shake when backing up and then refused to move.

The car had to be towed to the nearest dealership, Park Avenue BMW, where our client spent 4 hours of her time and thus was unable to go to work for the whole day. Furthermore, on March 6th 2017, our client informed us that once again a problem arose with the brakes, that is, as she was driving on the highway the lights came on signaling that there was a problem with the back brakes. This occurred on a Saturday night, and thus our client was forced to drive home at a 20km per hour pace, situation that was very dangerous.

Following this the car was towed to Park Avenue BMW dealership where the back brakes were changed and our client was billed the sum of $840.00 for this. A few months later, the car began to shake again, and thus our client called your dealership and she was told to bring in the car for inspection. It was without say that a problem was once again detected and the front brakes were changed at no cost. Our client has relayed to us that the car today still shakes, and this despite the fact that the brakes were changed.

In the last months of 2017, that is from October until December) our client has had to bring the car three (3) times to the dealer to fix the problem arising from the breaks. As you are aware our client has sent to your attention various e-mails regarding the present matter, however despite the said e-mails nothing was done by BMW to rectify the matter In the light of the foregoing, and based on the above-mentioned facts we demand that you immediately reimburse our client the full purchase price of the vehicle and /or remit to our client a brand-new vehicle of this year.

Furthermore, we ask that you pay to our client the sum of $2500.00 as damages resulting from all the stress and inconvenience that the said situation has caused. In default of which, we have been mandated by our client, to institute all the necessary legal proceedings all this with no further delay or notice. It is without say that your actions has caused our client tremendous stress. Our client is justified in claiming the said damages, in

the event of a lawsuit. PLEASE GOVERN YOURSELF ACCORDINGLY. Alan Stein Attorney” (demand letter, exhibit P-5) [ 53 ] Given the outrageous nature of the demand to “immediately reimburse… the full purchase price of the vehicle and/or remit… a brand new vehicle of (the year)” to plaintiff, on January 25, 2018, defendant’s lawyer responds as follows: “Dear colleague, We represent the interests of LMB Automobile Inc, doing business under BMW Laval, whom has remitted to us your letter dated January 15, 2018 for review and response.

On a first note, please note that our client is mindful of its clientele's satisfaction and regrets that your client has experienced dissatisfaction with respect to her 2015 BMW X5 vehicle, bearing identification number 5UXKR0C54F0K52248. This being said, we have thoroughly revised the file and, with all due respect, we must conclude that at all times relevant, our client has fulfilled all of its legal and contractual obligations and the vehicle in question is not affected by a defect whatsoever. A mere review of the facts confirms same.

On a first note, please note that the very first time that your client attended our client’s service center it was in August 2015 and same was to proceed with standard maintenance under the warranty. Subsequently, in September 2015, she further attended the service center and this exclusively to conduct body work. No complaint with respect to the vehicle was made at this time.

Thereafter, your client attended the service center of our client in October 2015, at which time she formulated several complaints, namely with respect to noise emanating from the steering wheel and the fan, the malfunction of the windshield wipers and stiffness of the steering wheel. Our client proceeded to examine the vehicle and sought to reproduce each of your client’s concerns. However, to no avail given that the vehicle and its components were perfectly functional.

Following your client’s above visit at our client’s service center, your client attended BMW Park Avenue in January 2016 to proceed with the replacement of a flat tire and then in September 2016 to proceed with the standard maintenance under the warranty. In March 2017, your client further attended BMW Park Avenue to replace the rear brakes of the vehicle. Same resulted in a charge to your client given that such work is not covered under the warranty.

Thus far, your client has only sought our client's intervention with respect to alleged issues on one occasion and that is in October 2015, at which time, we reiterate, our client diligently conducted an examination of the vehicle which confirmed that the latter was not affected by any defect whatsoever. This being said, in July 2017, your client brought to our client’s attention the fact that she experienced a certain "shaking feeling" when backing up the vehicle. Our client attempted to reproduce said issue, yet was unable to do so as no defect was detected.

Notwithstanding same, our client proceeded to replace the front brakes of the vehicle, at no charge for your client, the whole as a goodwill gesture. Subsequently, in November 2017, your client complained to our client that, at times, a squeaking noise emerged from the front brakes. Our client examined said brakes and further proceeded with their cleaning as well as the replacement of the brake fluid, all at no charge for your client.

It must be noted that at this time, your client informed our client that the indoor parking at her condominium provides for a pressure wash of the tires of all vehicles entering same. Our client explained to yours that this, in all likelihood, is causing for the discs and pads of the brakes to stick together, which results in squeaking and rusting of the brakes, given that the vehicle is in movement while the discs and pads are still wet. Your client appeared to acknowledge the issue and appreciated our client’s expertise.

This being said, most recently, in December 2017, your client raised concern with respect to noise from the rear brakes of the vehicle. Once again, our client examined said brakes and, though the above described pressure wash conducted at your client’s condominium was most likely the cause of same, in good faith and to please your client, our client proceeded with the replacement of the rear brakes in their entirety, including its carriers, the whole at no charge for your client. This, without a doubt, confirms our client’s devotion to keep its clientele happy and the extent to which same is its mission.

Furthermore, please note that at the times when your client required our client’s intervention, our client repeatedly provided for transportation arrangements and courtesy vehicles to meet with your client’s special needs. In light of the foregoing, we must advise you that our client cannot grant your client’s request to reimburse her the full purchase price of the vehicle or to remit to her a brand-new vehicle of this year.

With all due respect colleague, your client has had the use of a perfectly functional vehicle for almost 3 years now and not only are there no factual grounds for your clients demand, but also, same is rather futile and abusive in law. As for your client’s claim for damages, as mentioned above, our client has not only always acted in conformity with its legal and contractual obligations, but also, has showed immense good faith, having proceeded with several works without cost to your client and having always accommodated the letter in doing so .

As such, please note that our client vehemently denies your clients allegations and claim and should legal proceedings be instituted, we have already been mandated to contest same and exercise all recourses available to our client should need be. Trusting that you will advise your client accordingly, please accept our sincerest regards.

DPG AVOCATS / LAWYERS” (letter, exhibit P-6) [ 54 ] Between December, 2017, and the trial in 2021, plaintiff will drive this vehicle without any problem whatsoever, other than regular maintenance and a flat tire (invoices, exhibits P-15 and D-5). [ 55 ] Nevertheless, on March 14, 2018, plaintiff institutes proceedings and alleges “problems with the said car” (par. 3 of the application); “rear brakes that were rusted, as well as the fan that was noisy” (par. 5); “car started to shake when backing up and then refused to move” (par. 6); more brake “problems” (par. 8); and car-“shaking” (par. 12).

The remedies sought are : “ GRANT the present Application to for partial reimbursement of the purchase price of a vehicle and damages with interest at the legal rate as well as the as well as the additional indemnity; ORDER that the Defendant pay to the Plaintiff the sum of $50,000 with interest at the legal rate as well as the additional indemnity provided for in Sections 1617 and the following of the Civil Code of Quebec ; CONDEMN the Defendant to pay the Plaintiff the sum of $10,000 for additional stress, aggravation and inconvenience that he has suffered due to the Defendant’s actions plus the interest at the legal rate as well as the additional indemnity provided for in Sections 1617 and the following of the Civil Code of Quebec ; PRAY ACT of the Plaintiff’s tender herein -above made; RESERVE for the Plaintiff the right to claim additional damages should any material or other facts come to light; THE WHOLE WITH COSTS against the Defendant; […]” (application, dated March 14, 2018) [ 56 ] On August 20, 2018, plaintiff amends defendant’s name in the originating application. [ 57 ] On March 3, 2021, she re-amends her application, as follows: “11.

That the Plaintiff incurred a fee of $854.81 for this, copy of the said invoice is herein annexed to the present as EXHIBIT P-2 ; […] 18. That in the light of the forgoing. Plaintiff has a right to request from the Defendant the sum of $50,000, or such lesser sum this honorable court sees fit to fix , that consists of the replacement value of the said vehicle at the present date, the whole as appears from a document from the Canadian Black Bookherein annexed to the present as EXHIBIT P-4 ; […] 24.

In addition, the Plaintiff has a right to ask for punitive damages in the sum of $20,000.00 under the Consumer Protection Act

article 272 . […] THEREFORE, MAY IT PLEASE THE COURT FOR THE INTRODUCTORY MOTION: GRANT the present Application to for partial reimbursement of the purchaseprice of a vehicle and damages with interest at the legal rate as well as the as well as the additional indemnity; ORDER that the Defendant pay to the Plaintiff the sum of $50,000, or such lesser sum this honorable court sees fit to fix with interest at the legal rate as well as the additional indemnity provided for in Sections 1617and the following of the Civil Code of Quebec ; ORDER the that the Defendant pay to the Plaintiff the sum of $854,81 CONDEMN the Defendant to pay the Plaintiff the sum of $10,000 for additionalstress, aggravation and inconvenience that he has suffered due to the Defendant's actions plus the interest at the legal rate as well as the additional indemnity provided for in Sections 1617 and the following of the Civil Code of Quebec ; ORDER the Defendant to pay the Plaintiff punitive damages in the sum of $20,000.00 under the Consumer Protection Act ; PRAY ACT of the Plaintiffs tender herein -above made; RESERVE for the Plaintiff the right to claim additional damages should anymaterial or other fact s come to light: THE WHOLE WITH COSTS against the Defendant;”

[ 58 ] And, finally, during his rebuttal arguments no less, plaintiff’s lawyer verbally re-re-amends plaintiff’s application, to ask for “the annulment of the sale, if necessary”. DISCUSSION AND ANALYSIS [ 59 ] It is mind-boggling how far-removed from reality plaintiff’s allegations are. [ 60 ]

Section 1729 of the Civil Code of Québec states: 729. In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer. [ 61 ] Sections 37 and 38 of the Consumer Protection Act [1] read as follows: 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. [ 62 ] It was therefore incumbent upon plaintiff to prove that the vehicle malfunctioned or deteriorated prematurely in comparison with identical property or property of the same type; that it was not fit for the purposes for which it is ordinarily used, or that it was not durable in normal use for a reasonable length of time, having regard to price, terms of the contract and the conditions of its use. [ 63 ] There is no such evidence in the present case.

In fact, the evidence proved the contrary. [2] [ 64 ] Plaintiff’s principal complaints were related to the steering-wheel and the brakes. [ 65 ] The evidence overwhelmingly showed that there were no latent defects related to either the steering-wheel or the brakes.

The operation of the steering-wheel was perfectly normal (as was that of the windshield wipers, etc.), and the brakes did not malfunction or deteriorate prematurely in comparison with identical property or property of the same type. [ 66 ] A purely subjective perception of steering-wheel manoeuverability and the normal wear and tear of the brakes do not constitute latent defects. [3] [ 67 ] Let us remember that neither defendant nor Park Avenue BMW found fault with the vehicle unrelated to normal wear and tear. [ 68 ] The evidence also overwhelming showed that defendant did everything it possibly could to

a) listen to and understand plaintiff’s complaints;

b) investigate and treat said complaints in an expeditious and professional manner;

c) satisfy plaintiff’s every whim; and

d) service the vehicle in the best interests of plaintiff, with prudence and diligence and in accordance with usage and good practice. [ 69 ] Most of plaintiff’s remarks at trial, as well as those of her lawyer, were gratuitous and inflammatory and unsubstantiated by the evidence. [ 70 ] This case is based on nothing more than innuendo. [ 71 ] It is all about posturing and grand-standing, and not at all about substance. [ 72 ] Plaintiff’s lawyer’s egregious comments to the effect that defendant “harassed” his client and treated her badly, appear to stem from some alternate reality, rather than what actually transpired. [ 73 ] The evidence clearly demonstrated that, on the contrary, defendant treated plaintiff with the utmost courtesy and respect, at all times. [ 74 ] No, defendant did not ignore plaintiff or her complaints. [ 75 ] No, defendant did not harass plaintiff. [ 76 ] No, at no time did defendant act in bad faith ( art. 2805 C.c.Q . ). [ 77 ] What is more, not only did plaintiff’s lawyer appear for trial without exhibits (it was defendant’s lawyer who offered to supply them to the opposing party and to the Court); but plaintiff’s only witness (her daughter) answered, “I don’t know,” to most of the questions posed to her by the lawyers and the Court. [ 78 ] Moreover, plaintiff herself answered, “I don’t know,” to many of the questions posed. [ 79 ] Furthermore, no expert witness was presented, by plaintiff, to support her allegations. [4] One can only surmise that no expert would support plaintiff’s baseless claims. [ 80 ] Plaintiff alleged that the brakes were defective and prematurely worn, but was unable to prove this.

This was also the case in Gendreau c. Chrysler Canada Inc ., [5] where the Court decided as follows: [19] En l'espèce, le 23 août 2012, le concessionnaire constate que les freins sont rouillés à un point tel qu'il recommande de changer

les disques et les plaquettes de freins aux quatre roues. [20] À cette date, la garantie conventionnelle de Chrysler est largement expirée. En effet, la garantie d'un an sur les freins arrière est expirée depuis le 24 mars 2010. Celle de deux ans sur les freins avant est expirée depuis le 24 mars 2011. [21] M. Gendreau prétend toutefois que l'état des freins en août 2012 est anormal et constitue une usure prématurée qui lui donne droit à l'application de la garantie contre l'usure prématurée. [22] M.

Gendreau a le fardeau de prouver, par prépondérance de preuve, que les freins, en août 2012, sont usés de façon prématurée. M. Gendreau n'a pas fait entendre de professionnel du domaine de l'automobile à l'appui de sa prétention. 23] M. Gendreau invite plutôt le Tribunal à tirer une conséquence d'un fait connu à un fait inconnu. C'est le moyen de preuve de la présomptio n . Ainsi, M. Gendreau s'appuie sur le fait que Chrysler a prolongé sa garantie conventionnelle, ce qui démontre, à son avis, que les freins avant des Dodge Caravan s'usent prématurément.

Il invoque également le fait qu'en mai 2011 les freins avant du Caravan ne sont usés qu'à 20% alors qu'en août 2012, ils doivent être changés. 24] Le Tribunal peut conclure à une usure prématurée des freins si les éléments connus mis en preuve le laissent présumer d'une façon grave, précise et concordante: 2849.

Les présomptions qui ne sont pas établies par la loi sont laissées à l'appréciation du tribunal qui ne doit prendre en considération que celles qui sont graves, précises et concordantes. 25] Le Tribunal ne peut conclure que les freins du Caravan ont un vice caché ou encore qu'ils n'ont pas servi à un usage normal pendant une durée raisonnable. [26] D'abord, comme l'explique Chrysler, les freins sont une pièce qui s'use selon l'utilisation qui en est faite.

Cette usure peut varier considérablement selon le type de conduite, l'usage qui en est fait et l'entretien qui y est apporté. [27] Ensuite, la facture du concessionnaire démontre que c'est la rouille qui est à l'origine de la recommandation de changer les freins. Or, la preuve ne permet pas au Tribunal de conclure que cette rouille est apparue prématurément ou en raison d'un vice caché. [28] Enfin, l'extension de la garantie conventionnelle sur les freins avant ne vise pas un problème de rouille.

De plus, c'est un fait neutre qui peut aussi signifier que Chrysler assume volontairement sa responsabilité de fabricant. [29] Bref, la preuve est insuffisante pour permettre au Tribunal de conclure que le changement des freins du Caravan en août 2012 était nécessaire en raison d'un vice caché ou d'une usure prématurée. [ 81 ] Also relevant to this case is the matter of Hodgson c. 9048-3538 Québec inc. (Matane Honda) , [6] where the Court decided as follows: La demanderesse démontre-t-elle à la satisfaction du Tribunal que le véhicule est affecté d’un déficit d’usage sérieux? [11] Les garanties offertes au consommateur en semblable matière sont prévues à la

Loi sur la protection du consommateur ( L.p.c. ) : 37. Un bien qui fait l’objet d’un contrat doit être tel qu’il puisse servir à l’usage auquel il est normalement destiné. 38. Un bien qui fait l’objet d’un contrat doit être tel qu’il puisse servir à un usage normal pendant une durée raisonnable, eu égard à son prix, aux dispositions du contrat et aux conditions d’utilisation du bien. [12] Avant de discuter de l’application de ces garanties, la demanderesse doit faire la preuve d’un déficit d’usage sérieux et celle de l’ignorance de cette condition au moment de la vente. [13] La Cour d’appel dans l’arrêt Fortin c.

Mazda Canada inc . nous enseigne que la gravité du déficit d’usage réside dans la diminution importante de l’utilité du bien au point où le consommateur ne l’aurait pas acheté ou n’aurait pas payé ainsi au prix s’il avait connu l’usage réduit de ce bien. [14] Ainsi, seule la preuve d’une gravité suffisante au point de jouer un rôle déterminant sur la décision du consommateur s’avère nécessaire. [15] D’ailleurs, le bilan d’inspection par un tiers, alors que le véhicule affiche 60 670 km est le suivant : tout est vérifié et en règle sauf « disque frein avant se défait par la rouille, côté droit » et « un sillage au niveau de la transmission ».

Ce même bilan ne précise pour ces deux points aucune « attention immédiate requise ». [16] Rappelons aussi que la demanderesse a parcouru près de 4000 km depuis son achat. De plus, Rémi St-Laurent, mécanicien et directeur des opérations fixes chez Honda Matane , rappelle que les deux disques avant ont été remplacés et assumés par paiement interne. En ce qui concerne les amortisseurs, un seul est changé puisqu’il présente une fuite d’huile.

Il n’est pas nécessaire de changer les deux puisque le ressort n’est pas affecté. [17] En l’espèce, le véhicule ne présente aucun déficit sérieux d’usage. [18] Le Tribunal est d’avis que malgré les problématiques rencontrées avec le véhicule depuis son achat, celles-ci ne peuvent se qualifier de vices cachés. De plus, la défenderesse a honoré ses obligations contractuelles découlant de la garantie conventionnelle et même plus. Les réclamations pour des réparations ou changements de pièces sont-elles recevables?

[19] Les changements d'essuie-glaces et de batterie sont des dépenses d’entretien d’un véhicule automobile et non des vices cachés. Ces postes de réclamation sont également rejetés. [20] Le Tribunal conclut que la demanderesse faillit dans la démonstration du bien-fondé de sa réclamation. Toutefois, usant de son pouvoir discrétionnaire, la demande est rejetée, mais chaque

partie assumera ses frais de justice. [ 82 ] Plaintiff’s lawyer bandied about words such as « bad faith » and « harassment »; but there was no evidence to support any such thing. Indeed, insinuation is insufficient to prove one’s point, as is petulantly throwing one’s hands up in the air, in frustration and defeat, during closing arguments. [ 83 ] Also, other than invoking art. 272 of the CPA , there was no attempt on plaintiff’s lawyer’s part to explain to the Court why it should apply said

article to the present case, based on the evidence adduced. [ 84 ] In the end, plaintiff did not even come close to proving her sweeping statements about the car being “dangerous” and a “lemon”. [ 85 ] Plaintiff simply threw everything she could at defendant, hoping that something would stick, all the while intending to get a new car to replace the 7-year old vehicle. [ 86 ] In addition to the foregoing, the case law submitted by plaintiff, is not applicable to this case. [ 87 ] In Hébert c.

Cooptel Coop de télécommunications , [7] the Court discusses art. 272 of the CPA and the question of punitive damages; but, without fault or omission, there can be no such liability. [ 88 ] The same applies to Tancrède c. 9263-5531 Québec inc. (Portes et fenêtres Doco ). [8] It is not relevant to the present case. If anything, it is in defendant’s favor, more particularly at paragraph 23, which reads as follows: [23] Au sujet des dommages-intérêts punitifs en vertu de la Loi , Me Emmanuelle Faulkner, avocate, écrit ce qui suit: « [1] En vertu de l’

article 272 de la

Loi sur la protection du consommateur , si un commerçant manque à une obligation que lui impose la loi, le consommateur peut demander des dommages-intérêts punitifs. Cet

article ne prévoyant aucun critère concernant l’attribution de ces dommages-intérêts, ceux-ci doivent être alloués en conformité avec l’

article 1621 du Code civil du Québec . Ainsi, le juge doit tenir compte de toutes les circonstances appropriées, notamment :

a) de la gravité de la faute du débiteur;

b) de la situation patrimoniale de celui-ci;

c) de l’étendue de la réparation à laquelle il est déjà tenu envers le créancier; et

d) du fait que la prise en charge du paiement réparateur est assumée par un tiers, en tout ou en partie. [2] Il ne s’agit pas d’une liste exhaustive et, tel que l’a mentionné la Cour suprême dans Richard c.

Time Inc ., d’autres critères peuvent également être pris en considération, dont le fait que l’auteur de l’atteinte soit une personne physique, une personne morale ou une personne morale de droit public, les profits réalisés par l’auteur de la faute, les antécédents civils, disciplinaires ou criminels de celui-ci ainsi que les sanctions qui lui ont déjà été imposées pour sanctionner le comportement reproché. [3} Dans cet arrêt, la Cour suprême a conclu que Time inc. et Time Consumer Marketing avaient contrevenu à la

Loi sur la protection du consommateur en transmettant par courrier des documents relatifs à une loterie promotionnelle truffés d’affirmations trompeuses faisant faussement croire à l’appelant qu’il gagnait près d’un million de dollars américains. [4] Après avoir rappelé les objectifs de cette loi d’ordre public, soit de rétablir l’équilibre dans les relations contractuelles entre les commerçants et le consommateur ainsi que d’éliminer les pratiques déloyales et trompeuses, la Cour a rappelé que la simple violation d’une disposition de la loi ne suffit pas à justifier une condamnation à des dommages-intérêts punitifs.

Les violations intentionnelles, malveillantes ou vexatoires ainsi que la conduite marquée d’ignorance, d’insouciance ou de négligence sérieuse de la part du commerçant à l’égard de ses obligations et des droits du consommateur peuvent entraîner l’attribution de dommages-intérêts punitifs. [5] Toutefois, le tribunal doit étudier l’ensemble du comportement du commerçant au moment de la violation et après celle-ci avant d’accorder des dommages-intérêts punitifs.

Il doit notamment examiner si le commerçant a tenté avec diligence de régler les problèmes causés au consommateur. […] » [ 89 ] Evidently, plaintiff’s lawyer made little effort to find and submit relevant case law. [ 90 ] To be sure, defendant did not violate the provisions of the CPA . Au contraire , the evidence showed that defendant acted diligently and professionally with regards to plaintiff’s numerous complaints, and that the vehicle did not malfunction or deteriorate prematurely. [ 91 ] Finally, as regards Waltzing c.

Chicoutimi Chrysler Dodge Jeep inc ., [9] also of no relevance hereto, judgment was rendered by default, and concerned a matter where the parties had agreed to annul the sale. [ 92 ] In

summary, plaintiff’s application and allegations are altogether capricious, vacuous and unsubstantiated, and, more particularly, the allegation of “harassment” is frankly preposterous. [ 93 ] There are no breaches to the CPA , and the damages claimed by plaintiff are simply inexplicable.

[ 94 ] In fact, plaintiff’s application smacks of abuse (s. 51 ff. C.C.Q .). However, the Court will not reopen the hearing with a view to hear the parties on this issue. Suffice it to say that litigants should think twice before alleging bad faith, “harassment” and “poor treatment”, when there is absolutely no basis or reason for doing so. [ 95 ] Let it be a reminder to both plaintiff and her lawyer that it is against the law and contrary to the requirements of good faith, to exercise a right in an excessive and unreasonable manner (art. 7 C.C.Q .).

False accusations, vapid allegations and histrionic behaviour have no place in the courtroom; and unsubstantiated theories, which are not even remotely based on reality, never justify instituting judicial proceedings and abusing the precious resources of the legal system. WHEREFORE THE COURT HEREBY: DISMISSES the application as re-re-amended; THE WHOLE , with costs. __________________________________ ELIANA MARENGO, J.C.Q. Me Alan M. Stein Lawyer for Plaintiff Me Roberto T. De Minico Me Émilien Miron DPG AVOCATS Lawyers for Defendant Dates of hearings : March 3 and 4, 2021