Décision

[1]            The Plaintiff, Paolo Vincelli, sues LG Électroniques Canada Inc. (“LG”), manufacturer of a mobile phone that Mr. Vincelli received from his telephone service provider, Fido, at the time of the beginning of a new service agreement term of 24 months, effective July 2, 2015.

[2]           He asserts that the telephone became defective as early as August 14, 2015, less than one and one-half months after he began using it.

[3]           When LG was given an opportunity to examine the phone and refused to repair or replace it at its cost, Mr. Vincelli withdrew from his service contract with Fido and sought service with another company, purchasing a new smartphone at that time.

[4]            He claims the stated value of the telephone, $600.00 along with $1,850.00 of costs and moral damages alleged to have resulted from LG’s alleged default.

[5]           In a written contestation, LG’s attorney alleged that the damages alleged resulted from the Plaintiff’s failure to maintain the telephone in good condition and, more particularly, that the damages were caused by corrosion resulting from infiltration of water which would not be covered by the guarantee.

[6]           LG did not attend the hearing and the Court must consider the written contestation as an absolute nullity because it is signed by a member of the Quebec Bar.

[7]           It was decided in Gestion Olymbec Inc. v. Montréal (Ville de)[1], that legal proceedings brought before the Small Claims Division must be, in the case of moral persons, signed by a representative of the moral person who is not a member of the Quebec Bar.

[8]           Although the case proceeded by default, the Court considered the Plaintiff’s case critically in order to determine whether he had met the burden of proof.

[9]           The evidence establishes quite clearly that LG was in breach of its warranties, whether considered from the point of view of the sort of conventional warranty that LG and the commercial seller, Fido, would normally extend, or with respect to the legal warranties provided by the Consumer Protection Act[2].

[10]        In particular, the two warranties derived from the general warranty of quality particularly applicable in the Consumer Protection Act, provide that goods must be fit for the purposes for which they are ordinarily used and must be durable in normal use for a reasonable length of time:

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 of time, having regard to their price, the terms of the contract and the conditions of their use.

[11]        According to Mr. Vincelli’s sincere and uncontradicted testimony, the phone began overheating and shutting down as early as August 14, 2015.  He received advice either from Fido or LG that the problem could be remedied by a factory reset but, as the problem became more and more frequent, he eventually called upon Fido to have the phone repaired, as appears from a Repair Request issued by Fido on February 5, 2016 (P-3).

[12]        As appears from the “Fido Loaner Phone Service Terms and Conditions”, Mr. Vincelli was offered a “loaner telephone” to use during the repair but he had to acknowledge that the data stored on the phone to be repaired would not be secure and that SIM and SD cards would be discarded during the repair process.

[13]        Mr. Vincelli informed the Court that the loaner phone enabled him to get by but it was a less up-to-date and sophisticated phone than the one he had purchased.

[14]        The malfunctioning phone was remitted to a firm known as “FutureTel”, an LG authorized service center.

[15]        The Completion Report (P-8) states the complaint as follows:

#1[ ] MPGC-HEAT UP (BATTERY PROBLEM)

#2[ ] MDGA-NO POWER ON (PHONE/S PROBLEM)

#3[ ] MDGD-FREEZE (LOCK UP) (HANG)

OVERHEATS, GOOGLE MAPS ISSUES, KEEPS REBOOTING,

FREEZES EVEN AFTER FACTORY RESET

and, under work performed:

[P013]-RETURN WITHOUT REPAIR

CORROSION ON MAINBOARD, TOUCH SCREEN AND PHONE JACK ; BEYOND ECONOMICAL REPAIR; RETURN UNIT AS IS.

[16]        Unhappy with this result, Mr. Vincelli submitted the phone to a repair service known as “uBreakiFix Bonaventure” who gave him a report confirmed by a photograph stating that:

[...] nous avons fait le diagnostic de votre LG et nous avous pas trouver aucun sign the “liquid damage or motherboard corrosion” votre telephone et en A1 condition la seul choose sait vous avez besoin d’un autre battrie ,si vous avez des question sil vous plait ne hesite pas de nous qestioner merci! [sic] (P-4).

[17]        He then decided to take LG to task, writing a formal letter of demand on May 6, 2016 (P-5).

[18]        He alleged in that letter, and his testimony confirms, that he was offered by LG, but would not accept, to have phone repaired at his own cost.

[19]        Given that the phone was returned without any repair and that no replacement was offered, he proceeded to terminate his service agreement with Fido which resulted in him being charged $354.96.  This amount was based on the unpaid portion of the price of the phone made through the regular monthly payments under the initial two-year contract.

[20]        He entered into a new service agreement contract with a competitor, Telus, acquiring a new telephone, an Apple 16S 64GB SPACE GREY LTE, valued at $1,055.00, with a portion of this price being rolled into the two-year service agreement commencing February 26, 2016, the balance of $436.91 being charged to him at the outset (P-13 & P-14).

[21]        In the Court’s opinion, the case against LG on breach of warranty is made out by the fact that LG has not demonstrated that the malfunctioning of the phone was the result of improper use by Mr. Vincelli.

[22]        Even if the Court considers the results of the investigation carried out by LG’s repair facility, the document provided by the repair facility simply confirms the malfunctioning and states that there is rust. 

[23]        This is not sufficient to establish that that rust was caused by an infiltration of water as opposed to simply being the result of moisture in the ambient air. Nor does it establish that that cause of the malfunction is the rust.

[24]        More complete and convincing evidence would be required for the Court to arrive at a finding of improper use.

[25]        In the absence of any other probative evidence, the Court simply applies the presumption of Article 1729 of the Civil Code of Québec[3]:

1729.    In a sale by a professional seller, a defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property or property of the same type; such a presumption is rebutted if the defect is due to improper use of the property by the buyer.

[26]        In the present case, it seems quite obvious a telephone that is provided under a service contract of two years ought to function properly during that two-year period and beyond as the consumer is entitled to enter into a new contract using the same telephone with a service provider of his choice.

[27]        LG should have accepted, either directly or through its relationship with Fido, to repair or replace the phone promptly upon it being remitted for service in February 2016.

[28]        In the Court’s assessment, the Plaintiff suffered a prejudice consisting in the loss of use of the phone, partially, during the period where he remained under the contract with Fido, and fully, once he terminated that contract.

[29]        The phone had a value of $600.00.  The amount of use he got out of it, the full use for approximately one and one-half months and a partial use for approximately six months is only roughly 20% of the value of the phone over a two-year period.

[30]        He was compelled to pay the entire value of the phone because of the cancellation charge which was equal to the unamortized value of the contract at the time of the cancellation.

[31]        Therefore, considering that he paid for the total value of the phone, he should be entitled to reparation equal to 80% of the price.

[32]        This amounts to $480.00.

[33]        The claim for the cancellation fee per se is not allowed as this simply represents his payment for the telephone that has been taken into account.

[34]        When he entered into a new service agreement contract with Telus, he assumed the cost of owning a phone from that point forward.  This does not constitute a prejudice because he is already being compensated for the value of the use of the LG phone of which he was deprived.

[35]        As well, he chose to acquire a phone of a higher value and this amount, roughly $436.91, does not represent a prejudice.

[36]        Finally, he should be entitled to compensation for inconvenience, loss of time and the frustration associated with not receiving the prompt service to which he was entitled in connection with his warranty claim.

[37]        In the circumstances, the Court assesses this prejudice, arbitrarily, in the amount of $250.00.

[38]        No claim was made for punitive damages.

FOR THESE REASONS, THE COURT:

GRANTS the claim in part;

CONDEMNS the Defendant to pay to the Plaintiff the sum of $730.00, together with interest at the legal rate of 5% per annum and the additional indemnity provided in Article 1619 of the Civil Code of Quebec, calculated from May 6, 2016;

THE WHOLE with judicial costs in the amount of $100.00 for the Court stamp.