Alder v Defazio Autobody Ltd
New Brunswick Court of Queen's Bench, Trial Division
Judicial District of Saint John
McLellan, J
April 9, 1992
S/SC/598/91
McLellan, J:
This case raises the question of how long is the "reasonable period of time" that a paint job of a ten year old car should be durable within the meaning of s. 12 (1) of the Consumer Product Warranty and Liability Act as well as other related points.
About January 1990 the plaintiff Ray Alder bought a 1980 Chevrolet Monza car from his sister for $1,000.00. The car had been driven about 140,000 kilometers. Since then Mr. Alder says he has spent about $5,000.00 on mechanical repairs and improvements to that car, not counting a paint job.
In March 1990 Mr. Alder had the car painted by the defendant Defazio Auto Body Ltd. in Saint John for $1,054.50. Defazio gave Mr. Alder a written "one year guarantee on paint, 6 months on rust". Issues in this case include whether the guarantee implied by the law is greater than that and if Defazio adequately honoured that guarantee during the year March 1990 to March 1991.
The day after the car was painted Mr. Alder washed the car. He says that about 15 blisters then appeared in the paint, some as large as a one dollar coin. In early April 1990 he took the car back to Defazio because of the blistering and Defazio repainted the entire car under the guarantee. Again the paint developed small blisters all over and it was taken back to Defazio. Defazio repainted the blisters in August, 1990. The car blistered again for the third time and the blistered area were again repainted. The fourth occurrence of blistering was in December 1990 and blistered areas were repainted again in about March 1991.
In April 1991 the fourth repainting of blisters was starting to peel and further blisters were appearing. Defazio refused to do any warranty work on the car because it was now past the agreed upon one year guarantee period. This claim for damages for breach of warranty was filed on May 2, 1991.
The series of photographs in evidence show that the car is now suffering some rust (especially low on the body and on the edges of doors and near wheels); that there are many examples of small areas of peeling of paint and there are a number of blisters. Some of those blisters appear to have been broken and do not show rust beneath them. Others do.
Mr. Alder sees the March 1990 paint job by Defazio as the cause and source of the problems with the body of this 1980 car. In particular Mr. Alder suggests that there may have been something wrong with Defazio's equipment when the car was painted and that perhaps extra oil was mixed with the paint causing the blistering. In general, Mr. Alder takes the view that the only cure is to have the paint stripped to the metal and properly repainted.
The president of Defazio Auto Body Ltd. is Mike Defazio. He denies there was anything wrong with their equipment. Mr. Defazio sees the problem very differently than Mr. Alder. According to Mr. Defazio the problems with blistering were caused by an adverse reaction between the first coat of paint applied by Defazio and excessive protective substances on the car such as "Dynacoat". As well Mr. Defazio says that many of the rust spots were low on the car and are consistent with damage from rock chips. Finally Mr. Defazio says that the fact that about $5,000.00 was spent on mechanical and other improvements to this 1980 car indicates that it had not been well taken care of before Mr. Alder bought it.
The Consumer Product Warranty and Liability Act includes the following:
12 (1) In every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer that the product and any components thereof will be durable for a reasonable period of time.
12 (2) In determining a reasonable period of time for the purpose of subsection (1) , regard shall be had to all relevant circumstances, including the nature of the product, whether it was new or used, its use as contemplated by the seller and buyer at the time of the contract, its actual use and whether it was properly maintained.
Defazio's quotation does not list any exceptions to the guarantee such as excessive use of a car finish preservative like Dynacoat. Accordingly in my view Defazio assumed that risk.
In my opinion in the circumstances of this case the time period of the warranty implied by section 12 (1) of the act for the paint job of a ten year old car is not for any longer than a one year guarantee on paint and a six month guarantee against rust. That is what Defazio gave Mr. Alder in writing.
As the problems of blistering and peeling had been brought to Defazio's attention several times during the guarantee period and only temporarily fixed on such occasions, I am not convinced that the passage of the one year is a bar to Mr. Alder's claim.
In my opinion Defazio made a good effort to honour the guarantee by repainting all or a portion of the car four times. Because of the inconvenience suffered by Mr. Alder on one occasion Defazio also gave him $175.00 worth of free car body repair of some other damage.
Most of the guarantee work done by Defazio on the car should not have been necessary. It seems to me that there must have been something wrong with the way the March 1990 paint was applied, the preparation of the car for that coat (possibly inadequate sanding), too much Dynacoat or some other problem.
In my view Mr. Alder is entitled to some damages from Defazio Auto Body Ltd. for breach of guarantee. But from the photographs of the car it seems to me that the most serious and unsightly problems are from rust. Most of the rust in my view is not the fault of Defazio. Most of it appears to have shown up long after the six month guarantee period against rust. In my opinion when a car is 12 years old quite a bit of rust is very predictable.
As the car is a 1980 now with 166,000 kilometers on it, the evidence does not convince me that it would make economic sense to strip the paint, fix all the rusty areas and repaint it at a price in the area of $2,000.00 or so. Nor am I convinced that Mr. Alder was right to invest about $5,000.00 in other repairs to the car.
In short in my view Mr. Alder has unreasonable expectations of the durability and life expectancy of his car. I am not convinced that he is realistic to think of a rusty 1980 Monza driven 166,000 kilometers on New Brunswick roads as a potentially valuable antique.
Although the car body is showing rust (generally not the fault of Defazio) and some peeling paint and blisters that are at least in part the responsibility of Defazio, in my view the portions of those problems that can be blamed on Defazio will have only a very modest impact on the overall value and very modest life expectancy of the car. In my opinion Mr. Alder's claim for $3,000.00 damages is not reasonable.
Considering all the evidence, (including the $175.00 free extra repair which offset the decals lost during repainting), I assess damages for 25% of the $1054.50 charged for the job, or $263.62 towards minor touch-ups. Thus for these reasons there will be judgment for the plaintiff Ray Alder against the defendant Defazio Auto Body Ltd. in the amount of $263.62 and the filing fee of $35.00 for a total of $298.62.
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