Executive Summary: Key Legal and Evidentiary Issues

• Ms. Guy had the burden under article 2803 C.C.Q. of proving, on a balance of probabilities, that she had been sold a used refrigerator.
   
• Hearsay and her own unsupported assertions were not enough, because she filed no manufacturer confirmation, expert report or repair history.
   
• The seller's representative relied on an internal database showing that the refrigerator was acquired directly from the manufacturer on April 18, 2023.
   
• Good-faith and cooperation duties under articles 6, 7 and 1375 C.C.Q. required the buyer to let the seller examine and repair the appliance before seeking annulment.
   
• Refusing to send photographs of the rust or to allow a technician back into her home raised a fin de non-recevoir that barred her claim.
   
• No receipts or other documents supported the claimed damages for lost food and time, and the Court described the claim as manifestly exaggerated.
   

Facts of the case

On June 8, 2023, Sherley Guy bought a refrigerator for $855 from 9189-6753 Québec inc., which does business as Électroménagers Gatineau. According to the seller's records, it bought the appliance directly from the manufacturer on April 18, 2023, and delivered it to Ms. Guy on June 21, 2023. She later alleged that she had unknowingly been sold a used unit, that the delivery staff had damaged the upper door, and that the lower door was rusting.

After she reported problems on September 13, 2023, the seller opened an after-sales service order. It sent a technician to her home on September 15 to replace the upper door, but she was not there. On September 28, 2023, she reported rust on the lower door. Customer service asked for photographs to decide how to treat it. She refused, barred any further technician visits, and demanded an immediate refund under threat of legal action.

In the Small Claims Division, she sought annulment of the sale and $4,145 in compensatory damages for lost food and for time spent dealing with the seller. The seller contested the claim. It maintained that the refrigerator was new and that it had repeatedly offered to inspect it, replace the damaged door and treat the surface rust.

Policy and legislative provisions at issue

Article 2803 of the Civil Code of Québec requires the party making a claim to prove the underlying facts on a balance of probabilities. Relying on F.H. v. McDougall, 2008 SCC 53, the Court added that a consumer who alleges that goods sold as new were used must offer clear and convincing evidence of that misrepresentation.

Articles 6, 7 and 1375 C.C.Q. require contracting parties to act in good faith and cooperatively. Citing two Court of Québec decisions, the Court held that a buyer must give notice of an alleged defect and allow the seller a reasonable opportunity to examine and repair the goods before seeking annulment. Drawing on the Lluelles and Moore treatise on the law of obligations, it then applied the fin de non-recevoir. This doctrine allows a court to dismiss a claim that might otherwise succeed when the claimant's own reprehensible conduct gave rise to the dispute.

No warranty terms or clauses of the sales contract are quoted in the decision.

Reasoning and analysis

On the first issue, Judge Stéphane D. Tremblay found that Ms. Guy's claim, namely that the manufacturer had told her the unit was used, rested only on her own unsupported word or on hearsay. Nothing in the record corroborated it. There was no written confirmation from the manufacturer, no expert report and no prior repair history. By contrast, the seller's representative gave a precise account, based on an internal database, of when the refrigerator was acquired, sold and delivered. The Court accepted that explanation as clear and consistent.

The second issue decided the case. An unjustified refusal to submit to inspection or allow correction of the problem breaches the buyer's duty to cooperate. Leaving aside the missed first appointment, whatever its cause, the Court focused on what happened next. Ms. Guy's refusal to send photographs or to let a technician return prevented the seller from performing a warranty obligation it was ready to fulfil. That refusal amounted to a fin de non-recevoir justifying dismissal.

Separately, the Court noted that she had produced no grocery bills, receipts or other proof of her incidental losses. It described a demand for $5,000 over an $855 appliance as manifestly exaggerated. [Note: Paragraph [2] of the decision gives the damages claim as $4,145, while paragraph [14] refers to $5,000. The decision does not explain the difference, although $4,145 plus the $855 purchase price equals $5,000.]

Ruling and overall outcome

The Court dismissed Ms. Guy's claim in full, making 9189-6753 Québec inc. the successful party. Her requests for annulment of the sale and for damages both failed. Costs were awarded to the seller, consisting of the $182 court filing fee for its Contestation. No other amount was ordered.