2018 QCCQ 7984, 2018 QCCQ 7984

Siggia c. Abi-Najem (Roza Garage / Locations d'autos Platine inc.) 2018 QCCQ 7984 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-701182-174 DATE: October 17, 2018 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ NICO SIGGIA Plaintiff v. GEORGES ABI-NAJEM doing business under the style and trade name of ROZA GARAGE / LOCATION D’AUTOS PLATINE INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence, including the testimony of plaintiff, of defendant (represented by Georges Abi-Najem), of plaintiff’s expert, of mechanic Korey Johnston and of defendant’s employee Hani Fares, as well as exhibits P-1 to P-9 and D-1 to D-3; [ 2 ] WHEREAS , on December 19, 2016, plaintiff bought a 2005 S40 Volvo, with an odometer reading of 174,700 kilometers, from defendant; [ 3 ] WHEREAS the sales contract, exhibit P-6, indicates a sale price of $1,785.00; [ 4 ] WHEREAS plaintiff alleges that he paid more, in cash, but has no receipt or other proof of payment, in support of his allegation; [ 5 ] WHEREAS , furthermore, the evidence is contradictory in this regard (in par. 13 of his demand, plaintiff alleges that he paid $2,202.95; in his demand letter P-5, he alleges that he paid: “2400$”; and, at trial, plaintiff stated that he paid “$2,202.95 + tax”); [ 6 ] WHEREAS the Court will therefore apply the figure which appears in the contract, given the contradictions in plaintiff’s evidence and the absence of proof of payment; [ 7 ] WHEREAS , before buying the used vehicle, plaintiff test-drove it, and had it inspected by Johnston; [ 8 ] WHEREAS Johnston, who performed “a full inspection” of the vehicle, noticed, inter alia , that the wheels needed to be balanced; the tire bolts needed to be changed; and the exhaust flex pipe was cracked; [ 9 ] WHEREAS Johnston recommended to plaintiff that he proceed with the transaction, given the price and year of the car and given that there was only “a bunch of small things that needed be done”;

[ 10 ] WHEREAS , furthermore, defendant represented to plaintiff that the vehicle was in good working order; [ 11 ] WHEREAS , on February 10, 2017, plaintiff experienced problems with the car: “… vehicle started to act funny, engine wasn’t idling properly and a mass amount of white smoke came out of the exhaust” (demand letter, exhibit P-5); [ 12 ] WHEREAS plaintiff immediately took the vehicle to Johnston, who diagnosed a “blown gasket head”, which would cost at least $2,500.00 to repair; [ 13 ] WHEREAS plaintiff contacted the Consumer Protection Office, to inform himself of his rights; [ 14 ] WHEREAS plaintiff then called defendant’s representatives “Freddy” and “George”, to advise them of same; [ 15 ] WHEREAS defendant’s representatives refused to carry out the repairs themselves or to pay for the repairs to be carried out by a third party; [ 16 ] WHEREAS plaintiff followed-up with a demand letter to defendant, demanding that it: “[…] - … repair, exchange, or reimburse for vehicle 2400$ +tx($2817.95) plus repair cost i put in myself (timing belt kit, down pipe repair plus bracket, 20 bolts for wheels, 2 winter tires, coolant tank replacement) 1000$+tx (1150$) which comes to a total of 3967.95$ - Or to pay for parts and labour for repair of the blow head gasket which is 2200$+tx which comes out to a total of 2530$ If Freddy and George do not comply with this formal notice, I will proceed with the repairs myself and go forward with legal prosecution to acquire a full reimbursement for the repair of vehicle.” (sic) (demand letter, exhibit P-5, p.2) [ 17 ] WHEREAS plaintiff tried calling defendant again, but to no avail; [ 18 ] WHEREAS , accordingly, plaintiff had a third party carry out the repairs, as outlined in “estimate” exhibit P-1, for $4,477.64; [ 19 ] WHEREAS , based on Johnston’s testimony, there is preponderant evidence that the car had a pre-existing latent defect, which could only be seen by dismantling the motor; [ 20 ] WHEREAS Johnston opined that the motor sold to plaintiff was actually from a junkyard; [ 21 ] WHEREAS , furthermore, the car had been involved in 2 accidents, information which defendant did not disclose to plaintiff (vehicle history report, exhibit P-2); [ 22 ] WHEREAS , however, not all of the work carried out by Speedy Automotive, in February, 2017, is directly related to the defect; some of the work described in “estimate” P-1, is related to apparent defects detected before the purchase, and some charges are for normal maintenance; [ 23 ] WHEREAS , in its discretion, the Court establishes the cost of repairs related to the hidden defect at $1,500.00 (head gasket kit; head bolts; reface and pressure test head; labor; taxes); [ 24 ] WHEREAS , furthermore, some of the damages alleged in par. 15 of the demand are not an immediate and direct consequence of defendant’s default (ex: interest on debt) ( art. 1607 of the Civil Code of Québec ); [ 25 ] WHEREAS the Court will however grant plaintiff an indemnity of $300.00, for the trouble and inconvenience suffered as a direct result of defendant’s breach of contract and legal obligations and for punitive damages, as defendant misrepresented the true state of the vehicle (junkyard motor); [ 26 ] GIVEN articles 1726, 1729, 1458 and 1375 of the Civil Code of Québec and articles 37 , 38 , 219 , 228 and 272 of the Consumer Protection Act ; [1] [ 27 ] WHEREAS , as stated by plaintiff, had he been advised of the true state of the vehicle by defendant, he would have walked away from the transaction; WHEREFORE THE COURT HEREBY: [ 28 ] GRANTS plaintiff's claim in part; [ 29 ] 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 February 15, 2017 and legal costs in the amount of $185.00.

__________________________________ ELIANA MARENGO, J.C.Q. Dates of hearings: April 17 and September 17, 2018