2020 QCCQ 1119, 2020 QCCQ 1119

Y & Y Distribution inc. c. Cité Nissan-Gabriel 2020 QCCQ 1119 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-32-704633-181 DATE: March 12, 2020 ______________________________________________________________________ BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ Y & Y DISTRIBUTION INC. Plaintiff v. CITÉ NISSAN-GABRIEL, S.E.C.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On October 28, 2019, a default judgment was rendered against the defendant, given the absence of one of its representatives. The defendant filed an application for revocation of judgment. At trial, the parties accepted to proceed on the merits, such that the plaintiff, acting through its principal representative, Mr.

Joseph Farkas, did not contest the application for revocation of judgment. [ 2 ] The parties are bound by a long-term contract of lease of a 2015 Pathfinder vehicle. [ 3 ] The plaintiff claims $6,500 from the defendant for the multiple damages it suffered resulting from the poor condition of the vehicle. [ 4 ] In defence, the defendant argued that all of the repairs covered by the manufacturer’s warranty were duly carried out and that it cannot be held liable for repairs not covered by that warranty.

ISSUE [ 5 ] Is the defendant liable for the major repairs not covered by the manufacturer’s warranty and the resulting damages? CONTEXT AND ANALYSIS [ 6 ]

Section 12 of the contract of lease between the parties states: 12. OPERATION, MAINTENANCE AND REPAIR. You will require approval from us for any repair to the vehicle in excess of $4,000.00. Repairs must be completed as not to void the manufacturer’s warranty. You will maintain the Vehicle in good operating condition and working order, properly serviced and will make all necessary repairs and replacement of parts to the Vehicle using the maintenance program prescribed by the manufacturer.

Subject to any restriction imposed by law, defects in, damage to, destruction of, or loss of the Vehicle shall not terminate this Lease nor reduce your obligations under this Lease. [ 7 ] This clause does not contradict the legal obligations of the lessor, the defendant in this case, set out in articles 1854 and 1864 of the Civil Code of Québec ( C.C.Q. ): 1854. The lessor is bound to deliver the leased property to the lessee in a good state of repair in all respects and to provide him with peaceable enjoyment of the property throughout the term of the lease.

He is also bound to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease. 1864. The lessor is bound, during the term of the lease, to make all necessary repairs to the leased property other than minor maintenance repairs, which are assumed by the lessee unless they result from the age of the property or superior force. [ 8 ] The evidence establishes that the plaintiff paid for the maintenance repairs.

However, the plaintiff complained about two major problems with the vehicle: the radiator fan and the transmission.

[ 9 ] On May 7, 2015, some time after the plaintiff took possession of the vehicle, the defendant changed the fan in question at no cost to the plaintiff because it was covered by the manufacturer’s warranty. [ 10 ] The transmission was changed between October 23 and December 21, 2018, at no cost to the plaintiff because it was also covered by the manufacturer’s warranty. [ 11 ] The plaintiff noticed new problems with the fan, even after it had been repaired. The defendant refused to assume the cost because the repair was then not covered by the manufacturer’s warranty.

The plaintiff is thus claiming this second repair. [ 12 ] In accordance with the lessor’s obligations set out in articles 1854 and 1864 C.C.Q., the Court concludes that the defendant must assume the costs because the repairs in question do not fall under the category of “minor maintenance repairs”. [ 13 ] In addition to the repair costs for the fan, the plaintiff also claims car rental expenses, the unnecessary lease payments given the numerous repairs to the vehicle, Uber transport services costs, excess fuel consumption costs, and the cost of repairing the battery. [ 14 ] After analysis, the Court finds that the plaintiff’s claim is well founded with respect to the following items: - Repair costs related to the radiator fan (P-4): $1,317.18 - Car rental during the repairs (P-1 and P-3): $875.00 - Refund of monthly payments while the vehicle was not being used, the equivalent of three months: (3 X $561.08) $1,683.24 TOTAL : $3,875.42 [ 15 ] As for the claim concerning excess fuel consumption costs and Uber transport, the Court concludes that these claims are unfounded because the plaintiff did not present any evidence to support it.

The same applies to the battery repair, which constitutes a normal vehicle maintenance repair. FOR THESE REASONS, THE COURT: GRANTS the application for revocation of judgment; ANNULS , for all legal purposes, the judgment rendered on October 28, 2019 in these proceedings; CONDEMNS the defendant to pay the plaintiff $3,875.42 with interest at the legal rate and the additional indemnity provided in

article 1619 of the C.C.Q., as of January 22, 2018; CONDEMNS the defendant to pay the plaintiff of $252 in legal costs; __________________________________ Henri Richard, J.C.Q. Date of hearing: February 10, 2020