2018 QCCQ 8350, 2018 QCCQ 8350

McKay c. Rafter 2018 QCCQ 8350 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-32-700637-186 DATE: August 27, 2018 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Steven McKAY Plaintiff v.

Valerie RAFTER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Steven McKay claims from Valerie Rafter an amount of $ 4,300, representing the value of a 2015 Polaris Sportsman ATV that he was supposed to buy from Mrs. Rafter for an amount of $ 3,700, as well as the reimbursement of his $ 100 deposit and some damages for travel expenses, lost time, etc. THE FACTS: [ 2 ] In February, 2018, Mrs. Rafter advertises for sale on Kijiji a 2015 Polaris Sportsman ETX. She is contacted by Mr.

McKay who is interested in buying it, and the parties agree for a sale price of $ 3,700. Mr. McKay sends a deposit of $ 100. It was understood that Mr. McKay would come on February 27, 2018 to pick it up and pay the balance. [ 3 ] On February 24, Mrs. Rafter sends a text message to Mr. McKay saying that the ATV belongs to her son who had changed his mind and decided he would not sell it. Mr. McKay insisted that the transaction be executed. [ 4 ] The transaction could not be done, as it appeared that Mrs. Rafter was not the owner of the ATV. At the hearing, Mrs. Rafter’s representative, her husband Mr.

Gaetan Lepage, confirmed that the bike was registered under the name of his daughter, but that it was used by his son. [ 5 ] Mr. McKay filed his Demand on March 1, 2018. [ 6 ] At the hearing, he explained that he bought a new ATV three weeks after, as he did not want to get involved again in buying a used one. [ 7 ] The Court asked him to describe what his damages were, and Mr. McKay explained that he figured they would be the equivalent of the value of the ATV, that he had to take steps to find a new one and had to travel from Ontario for the hearing. ANALYSIS AND DECISION: [ 8 ] As it was explained to Mr.

Lepage at the hearing, a valid contract had intervened between Mrs. Rafter and Mr. McKay, assuming that Mrs. Rafter had the authority to sell her daughter’s bike. She was then bound by the agreement, and the contract was complete when she agreed to sell the vehicle, Mr. McKay accepted to buy it and they agreed on the price. The fact that Mr. McKay had not seen the ATV did not change the situation that the contract was duly concluded, even if verbal.

Section 1385 of the Quebec Civil Code reads as follows:

1385. A contract is formed by the sole exchange of consents between persons having capacity to contract, unless, in addition, the law requires a particular form to be respected as a necessary condition of its formation, or unless the parties subject the formation of the contract to a solemn form. It is also of the essence of a contract that it have a cause and an object. [ 9 ] In consequence, Mrs. Rafter is obliged to reimburse Mr. McKay for the deposit he made ($ 100) , and also for the consequences of the fact that she did not respect her obligations. [ 10 ] The question is to determine how much Mr.

McKay’s trouble can be evaluated. [ 11 ] Sections 1607 and 1611 of the Quebec Civil Code are relevant to the assessment of damages. They read as follows: 1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and assessable is taken into account in awarding damages. [ 12 ] Mr.

McKay’s testimony shows that he lost a few weeks in the realization of his project of buying an ATV and that he was certainly very disappointed by Mrs. Rafter’s decision. [ 13 ] The Court, exercising its discretion, will allow an amount of $ 350 to compensate Mr. McKay’s damages. With the reimbursement of his deposit, the amount of the judgment will totalize $ 450.

FOR ALL THESE REASONS, THE COURT: GRANTS partially Plaintiff's claim; ORDERS Defendant, Valerie RAFTER, to pay to Plaintiff, Steven McKAY, the amount of $ 450 plus the legal interest at the annual rate of 5 % and the additional indemnity provided for by

Section 1619 of the Quebec Civil Code , from March 7, 2018; THE WHOLE with legal fees in the amount of $ 101. __________________________________ CÉLINE GERVAIS, J.Q.C.