2011 QCCQ 1294, 2011 QCCQ 1294

Jabarian c. Auto Clef d'or/Roupen Manoushakian 2011 QCCQ 1294 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-117431-090 DATE: February 1, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ANTOINE JABARIAN […] Montreal, Quebec […] Plaintiff vs.

AUTO CLEF D'OR / ROUPEN MANOUSHAKIAN 11781 James Morrice Montreal, Quebec H3M 2G3 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Antoine Jabarian, who acquired a 2006 Cadillac CTS for $13,400 plus taxes on January 21, 2009, sues the dealer, who sold him the vehicle, Mr Roupen Manoushakian doing business under the name Auto Clef D'Or, for $2,749.89 based on the cost of installing missing ballast for the headlights and repairing a defective horn, defects that he discovered after taking possession of the vehicle. [ 2 ] In some respects, this is a very standard case: a consumer purchases an automobile from a dealer subject to the warranty of

section 159 of the Consumer Protection Act [1] : 159. The sale or long-term lease of a used automobile carries with it a warranty that the automobile will remain in good working order (

a) for a period of six months or 10 000 kilometres, whichever occurs first, in the case of a class A automobile; (

b) for a period of three months or 5 000 kilometres, whichever occurs first, in the case of a class B automobile; (

c) for a period of one month or 1 700 kilometres, whichever occurs first, in the case of a class C automobile. [ 3 ] Class C automobiles are defined as follows: 160. […] […] (

c) class C automobiles, namely, where they are not contemplated in paragraph a or b and not more than five years have elapsed between the date the manufacturer put his automobiles of the same model and of the same model year on the market and the date of the sale or long-term lease contemplated in the said section, provided that the automobile has not covered more than 80,000 kilometres; [ 4 ] The vehicle in question having 78,103 kilometres and being only three years old falls under Class C and is subject to a warranty of one month or 1,700 kilometres, which ever occurs first.

[ 5 ] A car cannot be considered in good working order if it has headlights that do not function because of a missing piece of equipment and a horn that doesn't sound because the wire supplying it with electricity has been cut.

These are essential items which should have been checked by the dealer before the car was delivered, repaired and mentioned on the label fixed on the used automobile pursuant to sections 155 and 156 of the Consumer Protection Act . [ 6 ] In the present case, however, the dealer refuses to honour the warranty provided by the Consumer Protection Act , because he asserts that the Plaintiff was the buyer of the vehicle at an auction and that he therefore accepted the car without any legal warranty. [ 7 ] The facts are surprising but simple. [ 8 ] The dealer, known as Auto Clef D'Or, purchased a permit from the ADESA Auction, permitting Mr Jabarian, as a "Purchaser" to attend at the auction with Mr Manoushakian.

It was if he was a representative of the dealer attending the auction to buy vehicles on the dealer's behalf. [ 9 ] Initially, Mr Manoushakian states that they were looking for a BMW.

In fact, Mr Jabarian picked up a Jeep with which he is satisfied and the Cadillac which, apart from the specific problems he mentions, has been satisfactory for his personal use. [ 10 ] According to Mr Manoushakian, it was Mr Jabarian who not only picked out the car but bid on it by raising his hand in front of the auctioneer. [ 11 ] Mr Manoushakian was surprised because he had not himself selected vehicle. [ 12 ] Because one of his buyers made the bid, Auto Clef D'Or had to go through with the sale which it did issuing a cheque that was later covered by Mr Jabarian's cheque in the amount of the sale price, taxes and fees. [ 13 ] Mr Jabarian also testifies that he gave another amount to Mr Manoushakian, a certain amount of cash for each car purchased.

Mr Manoushakian denies this stating that he provided the possibility to acquire these vehicles as a favour, gratuitously. [ 14 ] Mr Jabarian was referred by his brother in law, a person close to the family of Mr Manoushakian. [ 15 ] Once acquired by Auto Clef D'Or Enr., the car was transferred to Mr Jabarian. Auto Clef D'Or documented the sale with the usual type of sale contract used by dealers entitled "CONTRAT DE VENTE D'AUTOMOBILE" .

A manuscript addition to the pre- printed form reads: ACHETER TEL QUELLE AUCUNE GARANTIE DE VENDEUR L'ACHETEUR S'ENGAGE À FAIRE LES RÉPARATION LUI-MÊME [sic] [ 16 ] There is no description of what repairs are needed and the boxes under the guarantee clause where the car would have been designated as falling under Class A, B, C or D are crossed out. [ 17 ] The Court must decide whether this is a sale covered by the Consumer Protection Act , in which case the legal warranty applies, or something else, excluded from that particular legal regime. [ 18 ] In the Court's view, the fact that the consumer went with the dealer to the auction to pick out the car and even the fact that he participated in the bidding process pretending to be one of the dealer's employees doesn't change the fact that the relationship is that of a dealer contracting with a consumer. [ 19 ] The Court finds it unlikely that the dealer provided the service free of charge but even if he did, the sale falls under the Consumer Protection Act and the consumer, Mr Jabarian is entitled to the protection provided by that law. [ 20 ] While it was imprudent for him to pretend to be a dealer or someone working for dealer, this did not change the fact that he was a mere consumer, not a person having an expertise in automobiles. [ 21 ] The result is unfortunate for Mr Manoushakian, but he voluntarily assumed a certain risk when he facilitated Mr Jabarian's clandestine entry into the auction. [ 22 ] The amounts claimed are adequately established by invoices from a reputable GM dealer.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 2,749.89, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec, calculated from February 21, 2009; CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $ 99.

__________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: December 6, 2010