2019 QCCQ 312, 2019 QCCQ 312

Sivo c. Hendrix Motors 2019 QCCQ 312 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-702713-175 DATE: January 29, 2019 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ GIUSEPPE SIVO Plaintiff v.

HENDRIX MOTORS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On June 2, 2017, plaintiff bought a used car, a 2004 BMW, from defendant, with an odometer reading of 184 kilometers, for $4,943.93 (contract, exhibit P-4). [ 2 ] Plaintiff did not have the car inspected, before buying it.

He had asked defendant if he could take it to his mechanic, in Montreal (defendant was located in St-Eustache); but defendant refused, suggesting that plaintiff take it to a local mechanic, that which plaintiff refused to do. [ 3 ] Nevertheless, defendant declared that the car was “in very good condition”; and plaintiff drove the car, around the lot, without noticing any evident problems. [ 4 ] However, plaintiff was unable to look under the hood, as the latch was broken.

Defendant undertook to have the “latch fixed”, and also agreed to have the “headlights buffed” (written undertaking, exhibit P-6). [ 5 ] On June 29, 2017, defendant delivered the car to plaintiff, at his home, at 9:30 P.M. Plaintiff was able to open the hood, but couldn’t see under the hood, as “it was dark”. [ 6 ] “A couple of days later”, while plaintiff was driving the car on Métropolitain Boulevard, with passengers, the hood suddenly popped open, thereby totally obstructing his view.

Luckily, plaintiff was able to pull over safely, without causing an accident, and avoid injury (or worse) to both himself and others. Plaintiff used a rope to secure the hood, and immediately drove the car to his mechanic. [ 7 ] As evidenced by Hyper Autoworks’ “quotation” (exhibit P-1), and as admitted by defendant’s witness Steven Makaeil, the hood had not been properly repaired. [ 8 ] Plaintiff stated that he paid $516.00, plus tax, to have the hood repaired.

However, he did not produce any proof of payment. [ 9 ] Plaintiff further stated that defendant had not “buffed the headlights”. [ 10 ] Plaintiff alleges that he had numerous other repairs carried out, at the same time. They are outlined in “quotation” (exhibit P-8). Plaintiff did not produce a witness in support of this allegation.

However, plaintiff stated that he was not seeking damages in relation to these repairs. [ 11 ] Plaintiff is suing defendant for the amount disbursed to have the hood fixed, as well as for the moral damages incurred as a direct result of defendant’s reckless and wanton behavior, which, he says, put his life and the lives of others at risk. [ 12 ] Defendant contends that the defective hood repairs were carried out by a third party, who is the only liable party. However, defendant did not call said third party into warranty. “We held our end of the deal”, purported Makaeil, at trial.

[ 13 ] GIVEN the evidence, including the testimony of plaintiff, Louisa Colombo and Makaeil, as well as exhibits P-1 to P-8; [ 14 ] GIVEN sections 16, 37, 38, 40, 42, 219, 228 and 272 of the Consumer Protection Act ; [1] [ 15 ] GIVEN sections 1458 and 2100 of the Civil Code of Québec ; [ 16 ] WHEREAS defendant had a duty to honour his contractual and legal undertakings towards plaintiff, that which it failed to do; [ 17 ] WHEREAS defendant’s obligation was one of result; [ 18 ] WHEREAS, furthermore, defendant acted negligently and recklessly in this matter; [ 19 ] WHEREAS plaintiff is therefore entitled to the following damages: $500.00 for the hood repairs (exhibit P-1); $25.00 for costs related to the “buffing” of the headlights; $275.00 for the trouble and inconvenience suffered by plaintiff and for the shock caused to plaintiff, when the hood flew open, while he was driving the vehicle, on a busy road; and $1,000.00, in punitive damages, as defendant sold him a car which was clearly dangerous to drive and a menace on the road; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's claim, in part; CONDEMNS defendant to pay plaintiff the sum of $1,800.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , from July 26, 2017 and legal costs in the amount of $100.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: November 26, 2018