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Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.

Maritime Law Book Ltd. Summary

This case arose out of the plaintiff purchaser's action for the return of the purchase price of a used car. The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.

Sale of Goods -- Topic 6646 

Breach -- Duties of buyer -- Seller's reasonable opportunity to rectify -- The New Brunswick Court of Queen's Bench, Trial Division, dismissed an action by the purchaser of a used car for a return of the purchase price, because the purchaser refused to give the seller an opportunity to rectify a warranted minor defect as required by s. 1(1) [sic] of the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1.

Statutes Judicially Noticed:

Consumer Warranty and Liability Act, S.N.B. 1978, c. C-18.1, ss. 1(1), 17(1) [para. 6].

Counsel:

JOHN D. LARLEE, for the plaintiff;
J. DAVID HUMPHREY, for the defendant.

This case was heard on May 27, 1981, at Campbellton, N.B., before STEVENSON, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Campbellton, who delivered the following judgment on June 22, 1981:

[1] STEVENSON, J: In the summer of 1980 the plaintiff wished to purchase a car. Her son, Gaetan Audet, saw a used 1980 Chevrolet Citation on the defendant's lot at Darlington. On the morning of Friday, August 1, he took his mother to see the car and they took it for a short test drive. There was an oil leak on the motor, the paint was scratched near the gas tank filler cap and there were some minor faults with the dashboard. When the plaintiff and her son returned to the defendant's garage she struck a deal to purchase the car for $6,375.00 and the defendant agreed to make good the defects that were pointed out It was indicated that a gasket might

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have to be replaced to eliminate the oil leak. A work order was made out for repair of the oil leak, fixing of wires hanging down from the dashboard and for repair of the scratched finish. The defendant cleaned the motor, but the cause of the oil leak was not immediately established. The work on the exterior finish could not be completed before the weekend. On the morning of Saturday August 2 Mrs. Audet took delivery of the car and gave the defendant her cheque for the purchase price. She drove the car to her home a few miles away. She says the motor overheated and there was oil all around the motor. A short time later she returned the car to the defendant's garage and asked that her cheque be returned. The only employee then present did not have authority to agree to cancel the sale and could not return the cheque, which was then locked in the defendant's safe. He endeavoured to assure the plaintiff that the defendant would make good on its promise to correct the oil leak.

[2] Later the same day Mrs. Audet went to another dealer and purchased a new car of the same make and model.

[3] Monday, August 4 was a holiday. At the opening of business on August 5 the defendant presented the plaintiff's cheque at her bank and had it certified. The plaintiff later that day attended on Mr. Nadeau, manager of the defendant. He refused to cancel the sale, but stood by the defendant's original promise to remedy the defects mentioned when the sale had been made. The defendant in fact did later remedy the defects and has been prepared to have the plaintiff take the car away at any time.

[4] The oil leak was found to be a very minor problem, which was repaired at a cost of only $2.40.

[5] The plaintiff pleads and relies on the provisions of the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, and claims return of the purchase price of $6,375.00 plus interest.

[6] The relevant provisions of the statute on which the plaintiff relies are as follows:

1(1) In this Act

"warranty" means a term of the contract that is a promise.

14(1) Where the seller is in breach of a warranty

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provided by this Act, the buyer shall give him a reasonable opportunity to rectify the breach, unless

(a) the buyer is unable to do so, or is unable to do so without significant inconvenience; or

(b) the breach is a major breach.

14(2) Subject to subsection (3), where the seller has a right to rectify the breach pursuant to subsection (1) and requests the buyer to return the product, the buyer shall return the product to the seller or to any repair facility or service outlet that is operated and authorized by the seller, and the seller shall return the product to the buyer after he rectifies the breach, or may supply a replacement if he is entitled by law to do so.

16(1) Where the seller is in breach of a warranty provided by this Act and does not rectify the breach pursuant to any opportunity that the buyer gives him under section 14 or otherwise, the buyer may reject the product if he does so within a reasonable time after he discovers the breach and he discovers the breach not later than sixty days after delivery of the product.

17(1) Subject to subsections (2) and (3), where the buyer rejects the product pursuant to section 16, he is released from his obligations under the contract and may recover from the seller any payments that he has made on the price and damages for any other loss that he has suffered because of the breach and that was reasonably foreseeable at the time of the contract as liable to result from the breach.

[7] The defects in the car were not so serious that failure to remedy them would be a major breach within the meaning of the Act nor would they justify, quite apart from the Act, rescission of the sale.

[8] Clearly the defendant promised to remedy the oil leak and that promise was a warranty. But before a buyer is entitled to reject a product under s. 16(1) or to recover any payments or damages under s. 17(1) he or she must give the seller a reasonable opportunity to rectify the breach. Mrs. Audet did not give the defendant such an opportunity. When she returned the car to the garage on August 2nd, the salesman attempted to assure her that the defendant would honour its

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promise and Mr. Nadeau gave the same assurances on August 5. But the plaintiff was unwilling to allow the defendant a reasonable or any opportunity to remedy the defect and insisted on repudiating the sale on August 2. She thereby deprived herself of the benefit of the statute, her claim must fail and it is dismissed with costs.

Judgment for defendant.

Editor: David C.R. Olmstead