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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 98048
Experience:  Lawyer
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I would like advice on whether I have a likely case on my

Customer Question

Hi, I would like advice on whether I have a likely case on my side. I am in the stone countertops business and a client had come in searching through our leftover materials stock to purchase something for her bathroom countertop. She signed an invoice where it clearly states that all remnant materials are sold as-is and no warranty is provided for the material itself. We installed it in October and over a month after the installation, she then reports that there's an issue with the material colouring. We also had an installation guide where she signed that "After the countertop has been installed, the customer (or designated decision-maker over the age of 18) MUST be present to inspect the
countertop. Any inquiries should be directed immediately to the installers, before they leave the location." Immediately after installation, she also signed a simple form that states that the installation has been completed. She's now claiming that the stone was sun-damaged from being left outside (even though we have never had this issue before). Having said that, we still decided to go ahead and offer her to replace the material for free using any of our other remnants, or pay the difference it would cost to purchase a new slab of the same material she currently has (but we wouldn't charge her any labour). She said if she pays the difference, she'll want us to pay for all other trades that needs to be involved with having the stone replace (ie. the plumber, the mirror person and the glass doors person). Otherwise we have to refund her everything she paid for. I have tried to work with her and questioned why it took her over a month to report any issues, when if she had reported prior to any other trades finishing the bathroom, this would have been so much more easier to resolve. She says she will sue us if we don't give her what she wants but we believe we are in the right since we have 3 documents she signed acknowledging the responsibilities she must accept. What are the chances of us (the company) winning if she does sue us? She's also threatening to give us a bad review on all media platforms.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.

You are in in the right because you told her that these were remnants and that you could not and did not warranty them. You made it clear that it was an as is sale and you did not misrepresent or hide anything from her.

You have gone beyond what you need to do because you are not obligated to state that you would change the material to new material for her when she agreed to take the product as is.

The other documents also help.

Customer: replied 1 year ago.
Thank you for your reply. The client in question has said her lawyer told her that it is our duty as a bailee to hold the property after purchase in a reasonable fashion, and ensure from the time of purchase to installation that there are no damages to the product that would devalue it, this cause of action is INDEPENDENT of a contract of sale. Does this relinquish her responsibility as a consumer for not doing her due diligence in checking the counter over immediately after installation? She didn't report and issues with it until a month after.
Expert:  Debra replied 1 year ago.

The lawyer is not correct.

She bought remnants that were not perfect but that is what you were selling. You were not selling perfect new countertops. Had you been the cost would have bee more and you would have been liable.

You didn't do anything after she bought the materials to allow them to come to harm so this is not your fault.

Customer: replied 1 year ago.
I am also wondering about the fact that because we're selling remnant stones, are we supposed to go over every stone and clearly mark any deficiencies on each product? Thank you
Expert:  Debra replied 1 year ago.

No you are not. You were upfront with them and told them they were remnants and they had the right to look at the piece and decide what to do.

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