2018 QCCQ 2332, 2018 QCCQ 2332

Eslami c. Deboer (Deboer Auto) 2018 QCCQ 2332 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-700021-167 DATE: February 5, 2018 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Mahmoud ESLAMI Plaintiff v.

Hugh DEBOER, doing business under the name of DEBOER AUTO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Eslami claims from Mr. Deboer an amount of $ 3,194.18, representing the reimbursement of the cost of an engine ($ 850), the sum paid to Mr. Deboer to install it ($ 500), $ 830.16 for different vehicle parts, $ 14.02 for registered mail fees, and $ 1,000 for psychological damages. THE FACTS: [ 2 ] On October 18, 2016, Mr.

Eslami brings his car, a Pontiac Wave 2009, to Deboer Auto because the engine has overheated. Mr. Deboer tells him that the engine needs to be replaced, so Mr. Eslami bought a used engine at Asselin Used Auto Part on October 27, 2016. [ 3 ] According to exhibit P-2, this engine was guaranteed for six months. The engine was installed by Mr. Deboer on October 30, 2016, according to his bill, that only indicates the cost of $ 500 and the fact that the job is guaranteed. [ 4 ] Afterwards, Mr. Eslami had problems with the new engine, and brought it back to Mr.

Deboer, who told him that the problem was due to the thermostat in the engine. He told him that, as he had not opened the engine, his work was not in default, and that he should contact Asselin Auto Parts. He offered Mr. Eslami to install a new thermostat free of charge if he would buy the parts. [ 5 ] Mr. Eslami refused and sent a Letter of Demand to Mr. Deboer, which is not dated, but appears to have been sent on November 8, 2016, according to Canada Post receipt. He claims $ 2,500. It should be noted that in this letter, Mr. Eslami says: “malfunction electrical and engine sign on!

Cooling and warning system of engine malfunctioning. First dim but alter bold letter of hold”. [ 6 ] It appears that Mr. Eslami continued driving his car until November 18, 2016, where the engine overheated while he was on Boulevard de la Gare in Vaudreuil-Dorion. He opened the hood and saw antifreeze liquid flying out of the engine. As appears from Mr. Eslami’s resume of that day, exhibit P-5, he called a friend whose hobby is repairing cars. [ 7 ] The engine had overheated and needed to be changed again. [ 8 ] In his contestation, Mr. Deboer says that the engine was supplied by Mr.

Eslami and that his job was only to install it. He pleads that the warranty on the parts is the responsibility of the vendor of the engine. ANALYSIS AND DECISION:

[ 9 ]

Section 2803 of the Quebec Civil Code should first be reminded: 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. [ 10 ] This means that it was Mr. Eslami who had the burden of proving to the Court that the overheating of the engine was due to Mr. Deboer’s faulty workmanship. Of course, the short delay between the problem and the installation of the new engine pleads in his favour. But the only proof that Mr.

Eslami brought at the hearing was his testimony, which was much unclear, and his daughter’s. He did not call as a witness his friend who repaired the car; instead he brought with him the thermostat and a hose with a hole in it, which he says was due to Mr. Deboer’s work. Mr. Deboer, on the contrary, says that the hose is in such state as a consequence of the overheating of the engine. [ 11 ] It was extremely difficult to understand why Mr. Eslami was claiming from Mr. Deboer the reimbursement of invoices by L.S. Auto Parts dated from December 2015 until November 2016, though Mr.

Eslami, at the hearing, said that he would not claim a few of those invoices. [ 12 ] He also explained at the hearing that according to him, Mr. Deboer had installed the shocks upside-down, which had an effect on the engine. To prove it, he asked permission to file an invoice by Cadillac Ile-Perrot, dated February 15, 2017, where it is said that “Repair both front shocks stop plates installed upside-down by local garage.” This bill also shows that it cost $ 64.98 plus taxes to write the report, as it is said that “client will take car and call back to order parts”.

It is also noted that “client refused alignment which was suggested by the garage as he was going to take care of it on his own.” [ 13 ] This bill proves absolutely nothing. [ 14 ] Mr. Eslami and his daughter explained that Mr. Deboer should have checked the engine before and after installing it to make sure that it was functioning properly, and that he should have done so with a machine instead of doing only a road test. [ 15 ] The Court accepts Mr. Deboer’s testimony that this is a standard way to proceed. [ 16 ] Mr. Eslami’s action should be dismissed.

First of all, he did not prove that the overheating of his engine was due to Mr. Deboer’s faulty workmanship instead of a defect in the engine itself especially the thermostat. Secondly, he should have brought back the vehicle to Mr. Deboer instead of sending it to a friend to have it repaired, as the Quebec Civil Code requires him to send a Letter of Demand to Mr. Deboer before the repairs are done. Finally, it can be possible that he contributed to the damage that occurred on November 18, 2016, by continuing to drive his car with all the warning signs that appeared on the dashboard.

FOR ALL THESE REASONS, THE COURT: DISMISSES the action; EACH PARTY paying its own costs. __________________________________ CÉLINE GERVAIS, J.Q.C.