2022 QCCQ 2738, 2022 QCCQ 2738

Markou c. Azerrad 2022 QCCQ 2738 JG2338 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD « Civil Division » N° : 760-32-019004-201 DATE : February 25, 2022 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.C.Q. ______________________________________________________________________ NICKOLAS MARKOU Plaintiff c.

DAVID AZERRAD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Nickolas Markou claims from David Azerrad an amount of 1 500$ asserting that the two pairs of sunglasses he bought in 2017 were defective. [ 2 ] According to the defendant’s contestation, Mr. Markou bought a first pair of sunglasses (Dolce & Gabbana) for an amount of 375$ around August or September 2017. [ 3 ] In December 2017, Mr. Markou bought another pair (Tom Ford) for the price of 495$. [ 4 ] Mr.

Markou himself was unable to say precisely when he purchased the sunglasses. [ 5 ] According to his testimony, he came back to the store several months later because one of the lenses was flaking a little bit on the upper part, on the right side. As for the Tom Ford sunglasses, the problem was with the black metal frame which was scratched. [ 6 ] In his defence, Mr, Azerrad says that Mr. Markou came back to the store four or five times in September and October 2020. Mr.

Markou sent a letter of demand claiming 1 500$ on October 20, 2020 and opened his file in the Small Claims Court on November 24, 2020. [ 7 ] Considering himself wrongly sued, Mr. Azerrad filed a cross-demand claiming 1 000$ for his loss of time and the trouble and inconvenience due to Mr. Markou’s proceedings and attitude. ANALYSIS AND DECISION : [ 8 ] It is Mr. Markou who has the onus of proof to convince the Court that his claim should succeed. [ 9 ] Despite the fact that he sent a letter of demand to Optica Westmount, Mr. Markou sued Mr. Azerrad personally. Though Mr.

Azerrad was the salesperson, it is his company, 9005-2077 Quebec Inc., doing business under the name of Optica Westmount, that sold the sunglasses. [ 10 ] Being no lien de droit between Mr. Markou and Mr. Azerrad, his demand must fail, because he sued the wrong person. [ 11 ] Beyond that question, Mr. Markou did not establish his right of action. He did not file the invoices showing that he bought the sunglasses from Optica Westmount nor did he demonstrate the terms of the Conventional Warranty.

He reported some conversations he had with the manufacturer, but this testimony constitutes hearsay that is not admissible in Court.

[ 12 ] Mr. Markou’s testimony was not precise regarding the moment when he realized there was a problem affecting his sunglasses. [ 13 ] From what the Court could see by examining the sunglasses, the scratches that can be seen on the metal frames seem to be usual wear and tear rather than a default that should be covered by any warranty. [ 14 ] Mr. Markou’s claim was not seriously presented as he filed no evidence to support it, besides his own testimony. [ 15 ] Mr. Azerrad’s testimony was far more precise and credible. [ 16 ] Mr.

Markou’s claim was also grossly exaggerated as he was claiming the total reimbursement of both sunglasses (870$) plus damages for trouble and inconvenience. [ 17 ] He should then be condemned to compensate Mr. Azerrad for his unfounded action for a nominal amount of 250$ . FOR THESE REASONS, THE COURT : DISMISSES the plaintiff’s demand; GRANTS in part the cross-demand; CONDEMNS the plaintiff Nickolas Markou to pay the defendant David Azerrad an amount of 250$ with interests and the additional indemnity of

article 1619 of the Civil Code of Quebec as of December 15, 2020, the date of the cross-demand and the judicial cost of 208$, representing the fees for the filing of the contestation and the cross-demand. __________________________________ CÉLINE GERVAIS, J.C.Q.