2011 QCCQ 11492, 2011 QCCQ 11492

Klan c. Grant P. Mcdonald Holding Inc. (Bean's Service Station) 2011 QCCQ 11492 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL LOCALITY OF GATINEAU Civil Division No. 550-32-018100-096 DATE: October 5, 2011 ______________________________________________________________________ PRESENT: THE HONOURABLE RICHARD LAFLAMME J.C.Q. ______________________________________________________________________ KATRINA KLAN [...] Gatineau (Québec) [...] Plaintiff v. GRANT P.

MCDONALD HOLDING INC. operating as Bean's Service Station 355, Route 148 Shawville (Québec) J0X 2Y0 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff (hereinafter "Klan") is claiming $6769.75 from the defendant (hereinafter “Bean’s”) as reimbursement of the sale price of a personal watercraft (PWC), a 2004 Bombardier Sea-Doo, which she claims is not in working order. The plaintiff was absent, but represented by her spouse Salah El Ahmal (hereinafter "El Ahmal").

Bean's contests the claim and maintains that the recreational vehicle worked very well. It added that the problem was due to improper use of the PWC. Furthermore, it presented a cross demand for $2100. The defendant is claiming this sum for repeated service calls, and the expenses and inconvenience sustained because of the plaintiff's action. I. THE FACTS [ 2 ] On June 11, 2008, Klan went to Bean's to buy a PWC. Bean's owns a Bombardier recreational products dealership and has worked in this field for many years. Klan chose a used 2004 Sea-Doo PWC, for which she paid $6769.75.

The parties agreed on a 30-day conventional warranty. Bean's president, Adam McDonald (hereinafter "McDonald"), testified that all vehicle trade-ins undergo a mechanical inspection before a transaction is concluded. He stated that motor compression is systematically checked. It appears that the PWC Klan bought had been checked and was in excellent condition. In accordance with Bean's policy, the PWC was delivered free of charge to Klan's cottage. [ 3 ] In the following days, Klan contacted Bean's to say that her PWC would not start. Bean's immediately dispatched an employee who lived nearby.

That employee has since died. However, the testimonies of McDonald and El Ahmal converge on the probable causes of the defect noted by the employee. It appears that the motor had been flooded by water. The employee changed the spark plugs and the PWC started. According to McDonald, the only way to flood a PWC is to flip it. Bean's did not charge Klan anything for the service call or the spark plugs. In the following weeks, Klan called several times to complain that the PWC was not working. Each time, a technician was sent to check it.

In late July or early August, Bean's brought the PWC back to the workshop to check everything out. McDonald's testimony was convincing: once again, water had flooded the spark plugs. The engine was started without difficulty. Bean's changed the spark plugs for free. To make sure that was indeed the problem, McDonald decided to take the PWC out on the river for five or six hours. He started and stopped it many times without difficulty and it worked very well. During the summer of 2009, it was again brought back to the workshop. Klan again complained that she could not start it.

The PWC was checked by Todd Lance, a certified mechanic. He testified that the PWC did not start because it had been flooded again. Nonetheless, he managed to restart it without difficulty. He also took the PWC out for testing, navigating more than seven miles. He stopped and started the engine several times, without difficulty. He did not have to change the spark plugs. [ 4 ] According to El Ahmal, the PWC was never in working order. After its last delivery to the cottage, in the summer of 2009, it was never used again and has not been moved from where it was left.

The plaintiff never asked a third party for a mechanical inspection

to confirm or invalidate Bean's mechanical diagnosis, which she qualifies as wrong. She did not request an estimate for the repair of the mechanical problem and/or the bumper, which she claimed was damaged by Bean's. She did not winterize the craft for the winters of 2009-2010 and 2010-2011. After inadequate storage of the craft for two winters, the condition of the craft is not known. II. THE LAW [ 5 ] The Consumer Protection Act [1] is of public order. It seeks to strike a fair balance between the consumer and the merchant. The merchant has certain obligations, some of which are reproduced here: 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 time, having regard to their price, the terms of the contract and the conditions of their use. [ 6 ] The general principles of the Civil Code of Québec also apply, particularly those set forth in articles 1726, 1728 and 1729 of the Code: 1726 .

The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without any need of expert assistance. 1728 .

If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but to pay all damages suffered by the buyer. 1729 . A defect is presumed to have existed at the time of a sale by a professional seller if the property malfunctions or deteriorates prematurely in comparison with identical items of property or items of the same type; such a presumption is not made, however, where the defect is due to improper use of the property by the buyer. [ 7 ] The latent defects referred to in

article 1726 are imperfections, anomalies that are prejudicial to the purpose or use of the property. [2] The defect must be serious and render the property unfit for use to the point where the buyer would not have bought it or paid so high a price. A defect is presumed to have existed at the time of a sale by a professional seller unless it is proven that the defect is due to improper use by the buyer.

Therefore, the seller is bound to very high standards with regard to the legal warranty it must provide. [3] [ 8 ] The Consumer Protection Act provides that, if a merchant or manufacturer fails to fulfil an obligation, the consumer may, among other things, demand that the sale be cancelled under

section 272 thereof, which lists several other possible recourses. The choice of recourse is up to the consumer. [4] However, it is worth mentioning the nuance made by professor L'Heureux, [5] which has met with the approval of our Court of Appeal several times: [6] [TRANSLATION] The consumer may choose a sanction from a range of recourses. The remedy sought must be appropriate, i.e. it must be subject to the rules governing non-performance of the obligations of the Civil Code , such as the person who seeks to annul the contract must offer to return that which was received.

If the consumer is unable to do so, he or she must opt for another sanction. If the consumer does not make an appropriate choice, the court has the discretion to grant another remedy implicitly included in that requested by the consumer ( Ameublement Bari Inc. v. Romano , [1988] 1448 (P.C.)). Non-performance of legal obligations may lead to a reduction in the consumer's contractual obligations ( Benoît v. Centre de voitures européennes Inc. , [1980] P.C. 401), the setting-aside of the contract, its rescission or annulment (s. 272, art. 1590 C.C.Q.). The court has broad discretionary powers.

If it grants an annulment (the principles of civil law do not change), it must try to restore the parties to their former state, and the consumer must return the property received, unless he or she is unable to do so because of the merchant's fault . [Emphasis added.] [ 9 ] The court must have proof that the parties can be restored to their pre-contract state. The obligation to restore the parties to their former state also arises from

article 1702 of the Civil Code of Québec . The property must be returned in the condition it was in at the time of sale, unless its deterioration is the seller's fault. Restoration to the pre-contract state implies an obligation to safekeep the property. It is clear from the jurisprudence that, as soon as fraud is discovered, the buyer is authorized to return the property unless it has deteriorated through the seller's fault. As soon as fraud is discovered, the buyer must cease using the property.

In that regard, the Court of Appeal had the following to say: [TRANSLATION] That means that the person applying for annulment will, if he or she chooses to delay safekeeping, be obliged to demonstrate that the property, now in safekeeping, is in the state it was in, and, if it is not, to demonstrate that he or she is not responsible therefore .

If the judge were to conclude that the deterioration of the property was the buyer's fault, the judge may nonetheless be able to order that the sale be annulled and the reimbursement reduced if, clear evidence to that effect were submitted . [7] [Emphasis added.] [ 10 ] In the above case, the Court of Appeal concluded that the plaintiff had not complied with her safekeeping obligation. By continuing to use the vehicle for 28 months, the car depreciated to the point where it could no longer be returned in exchange for full reimbursement of the price paid.

In order to consider an alternative other than annulment, the judge must base himself or herself on the evidence. Exemplary damages were granted after the trial judge authorized an amendment to the declaration during the trial.

[ 11 ] Sénécal J., in Brideau v. Pneus Carignan , referred to previously, considered cessation of the use of the property an important factor to be taken into account, in addition to the actual possibility of repairing the defect. [ 12 ] In Landry v. Dominik Sports Ltée , [8] the judge concluded that a consumer who wishes to obtain annulment of a contract must offer compensation when the property cannot be returned in its former condition. Failing compensation, the residual value of the property should be proven. [9] This Court concurs with Judge Gagnon's comments: [TRANSLATION] At the risk of repeating myself,

article 1702 of the Civil Code of Québec always allows a contract to be annulled and property to be returned, even if that property lost some of its value after fraud was discovered. However, in such circumstances, if the seller is not responsible for the loss, then it is not obliged to take back the vehicle and reimburse the full sale price to the buyer. The seller is entitled to a reduction of its obligation that corresponds to the value of the deterioration of the vehicle after fraud was discovered, i.e. the kilometres travelled and repairs required.

In the present case, there is no evidence as to the value of the deterioration of the vehicle after fraud was discovered. Furthermore, the plaintiff did not offer to return the vehicle in exchange for compensation. In this situation, the Court cannot grant annulment of the sale. [ 13 ] In the above case, the judge opted for a reduction of the sale price, which he arbitrarily set at 10% of the sale price. He also granted $400 as compensation for the 17 days of loss of use of the vehicle. [ 14 ] In addition to these principles, it should be recalled that

article 2803 of the Civil Code of Québec provides that a person wishing to assert a right must prove the facts on which his or her claim is based, on a balance of probabilities. [ 15 ] Such are the general principles that must guide the Court in the present case. III. APPLICATION TO THE PRESENT CASE [ 16 ] The plaintiff is claiming the reimbursement of the purchase price paid for the PWC.

The Court interprets her request, in essence, as a request for rescission of the contract of sale and for the return of the parties to their pre-contract state. [ 17 ] The plaintiff alleged that she had problems starting the PWC. That fact appears to be undeniable, since the defendant was called six times in two seasons to provide service for that problem. Despite a 30-day limited warranty, the defendant took prompt action and always tried to diagnose the plaintiff's starting problems, free of charge. The only technical evidence presented is that of the defendant.

That evidence preponderantly shows that the problems were caused by waterlogged spark plugs. The defendant changed the spark plugs several times and the problem was immediately resolved. It is rather surprising that Klan and her spouse were never able to start it. Both McDonald and Lance used and tested the PWC for long periods of time without experiencing any problems. Lance is a qualified mechanic. Hence, McDonald's argument that the problem lay in the user's operation of the machine has been preponderantly established.

The Court considers that the defendant has successfully refuted the presumption provided for in

article 1729 of the Civil Code of Québec . There is more. The plaintiff never sought to establish the cause of her problems and preferred to leave the PWC on her property without taking any action whatsoever to determine the extent and nature of the problem. The plaintiff's spouse mentioned that the hull was damaged by the defendant. He was unable to submit preponderant evidence in this regard. [ 18 ] Even if the Court were to conclude that there was a latent defect, the plaintiff did not preponderantly establish that she could return the property in its former state.

The craft was left untended for two winters without appropriate fluids having been injected to protect the engine and piping. Common sense tells us that the components may have been damaged by freezing. At the very least, the lack of maintenance means that the plaintiff had to prove that the craft was still in good condition. Moreover, we cannot conclude that the hull was damaged by Bean's.

Given these facts, it would have been impossible for the parties to be restored to their former state. [ 19 ] Consequently, the Court concludes that the plaintiff did not prove the facts in support of her application, and that the defendant rebutted the presumption provided for in

article 1729 of the Civil Code of Québec and proved, by way of preponderant evidence, that the problems were due to improper use of the craft. [ 20 ] As concerns the cross demand, McDonald reluctantly admitted that, had it not been for the plaintiff's proceeding, he would not have billed her for the service calls and other items. The evidence even shows that he was committed to satisfying his client and that he responded to her calls for service free of charge. In addition, there was never any agreement to charge such expenses.

Therefore, his application is unfounded. [ 21 ] Given the conclusions regarding the principal demand and the cross demand, each party will assume their own court costs. THEREFORE, THE COURT: DISMISSES the plaintiff's application; DISMISSES the defendant's cross-demand; Each party paying their own court costs. __________________________________ RICHARD LAFLAMME J.C.Q.

Date of hearing: September 6, 2011