Duplessis v MacKenney
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Saint John
Temp. Cite: [2005] N.B.R.(2d) TBEd. MR.002
Renvoi temp.: [2005] N.B.R.(2d) TBEd. MR.002
(S/C/730/04; 2004 NBQB 455; 2004 NBBR 455)
November 29, 2004
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary:
The plaintiff bought a six year old used vehicle from the defendant MacKenney. The vehicle soon required repairs. The plaintiff brought a small claims action against the defendant (the claim against the defendant Pine Crest Auto Sales Inc. was dismissed). The plaintiff pleaded ss. 10 and 12 of the Consumer Product Warranty and Liability Act (fitness for purpose and durability), s. 15 of the Sale of Goods Act (implied warranty of fitness) and the common law respecting misrepresentation, fraud, mistake, etc.
The New Brunswick Court of Queen's Bench, Trial Division, on an appeal by way of trial de novo, dismissed the claim. Sections 10 and 12 of the Consumer Product Warranty and Liability Act did not apply as the defendant was not a "distributor" of vehicles. Section 15 of the Sale of Goods Act did not apply where the defendant did not sell vehicles in the course of his business. The common law claims of misrepresentation, etc., were not established.
Sale of goods - General - Distributor - What constitutes - The plaintiff bought a six year old used vehicle from the defendant MacKenney - The vehicle soon required repairs - The plaintiff brought a small claims action against the defendant for the repair costs (the claim against the defendant Pine Crest Auto Sales Inc. was dismissed) - The plaintiff pleaded, inter alia, ss. 10 and 12 of theConsumer Product Warranty and Liability Act (fitness for purpose and durability) and s. 15 of the Sale of Goods Act (implied warranty of fitness) - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the claim - Sections 10 and 12 of the Consumer Product Warranty and Liability Act did not apply as the defendant was not a "distributor" of vehicles - Section 15 of the Sale of Goods Act did not apply where the defendant did not sell vehicles in the course of his business.
Conditions and warranties - Implied or statutory terms as to quality or fitness - Where applicable - [See Consumer Law - Topic 1608].
Conditions and warranties - Implied or statutory terms as to quality or fitness - Fitness or suitability of goods - [See Consumer Law - Topic 1608].
Droit du consommateur - Cote 1608
Vente d'objets - Généralités - Distributeur - Éléments constitutifs - [Voir Consumer Law - Topic 1608].
Vente d'objets - Cote 4103
Conditions et garanties - Conditions implicites ou légales quant à; la qualité ou à l'adaptation - Applicabilité - [Voir Sale of Goods - Topic 4103].
Vente d'objets - Cote 4106
Conditions et garanties - Conditions implicites ou légales quant à; la qualité ou à l'adaptation - Adaptation ou conformité des objets - [Voir Sale of Goods - Topic 4106].
Cases Noticed:
Bartlett v. Sydney Marcus Ltd. , [1965] All E.R. 753, refd to. [para. 25].
Peters v. Parkway Mercury Sales Ltd. (1975) , 10 N.B.R.(2d) 703 ; 2 A.P.R. 703 (C.A.), ref'd to. [para. 26].
Statutes Noticed:
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, sect. 1(1) [para. 11]; sect. 2(1) , 2(2) [para. 10].
Counsel:
Jonathan W. Duplessis, on his own behalf;
Kevin MacKenney, on behalf of the defendants.
This matter was heard on November 24, 2004, before Grant, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment orally on November 29, 2004.
[1] Grant, J. [orally]: This is an appeal by way of trial de novo under the Small Claims Act in which Jonathan Duplessis claims from the defendants Kevin MacKenney and Pine Crest Auto Sales Inc. for the cost of repairs to a car he bought from Mr. MacKenney on April 30 th , 2004.
Background
[2] In April, 2004 Mr. Duplessis called Mr. MacKenney about an ad he had placed in the Buyer Flyer for the sale of a 1998 Chev. Cavalier. Mr. MacKenney brought the car from his home in Passakeag to Mr. Duplessis' home in east Saint John and Mr. Duplessis showed a strong interest in buying it. There was some discussion about him having it inspected by a mechanic but in the end, he didn't do that.
[3] Mr. MacKenney put a price of $5,400.00 on the car and that's what Mr. Duplessis agreed to pay inclusive of taxes. A bill of sale was signed for $4,688.00 including H.S.T. and license. The remaining $800.00 was not included in the bill of sale, presumably so no H.S.T. would have to be paid on it.
[4] Mr. MacKenney took a deposit of $20.00 on the car while Mr. Duplessis arranged financing with his bank. The transaction was completed when Mr. Duplessis gave Mr. MacKenney a bank draft payable to him for the purchase price and Mr. MacKenney arranged for transfer of the registration to Mr. Duplessis.
[5] Mr. Duplessis took possession of the car on April 30 th , 2004 and it worked well until May 30 th , 2004 when he was driving it in Prince Edward Island along a remote stretch of road when he smelled something burning and the engine light came on. He pulled off the road and had it towed to Charlottetown and later to Saint John. He needed to buy a new engine and in total he spent $1,882.82 getting the car back in working condition. It has worked fine since it was repaired in June of 2004.
[6] In this action Mr. Duplessis sues Mr. MacKenney and Pine Crest for reimbursement of those repair costs as well as his court filing fee of $125.00 for a total of $1,943.82.
Liability of Pine Crest
[7] Terry Lamb owns Pine Crest Auto Sales. He is a friend of Mr. MacKenney whom he allowed to purchase the '98 Cavalier at an auction through Pine Crest as only car dealers can buy at car auctions. Mr. MacKenney initially bought the car for his daughter but her circumstances changed so he decided to sell it.
[8] In order to avoid paying the H.S.T. twice Mr. MacKenney left the car registered in Pine Crest's name until he sold it so the registration was transferred from Pine Crest to Mr. Duplessis. Mr. Duplessis knew he was dealing with Mr. MacKenney when he bought the car and only added Pine Crest as a party to this action because he knew Pine Crest was a dealer and therefore subject to the provisions of the Consumer Product Warranty and Liability Act , while he was not sure if Mr. MacKenney was in business as a car dealer and thereby subject to the provisions of the Act (section 2(2) infra.). The action against Pine Crest is dismissed with costs payable by Mr. Duplessis to Pine Crest in the amount of $325.00 inclusive of disbursements.
Liability of Kevin MacKenney
(i) Consumer Product Warranty and Liability Act
[9] Mr. Duplessis bases his claim against Mr. MacKenney on the implied warranties in sections 10 and 12 of the Consumer Product Warranty and Liability Act as to fitness for the purpose and durability for a reasonable period of time respectively.
[10] The first hurdle Mr. Duplessis must overcome is to satisfy the Court, on a balance of probabilities, that Mr. MacKenney, in selling him the vehicle, was subject to the provisions of the Act . Section 2 of the Act states in part:
"2(1) Subject to subsection (2), this Act applies to every sale or supply of a consumer product.
"2(2) This Act does not apply to the sale or supply of a consumer product by a seller or supplier
(a) who is not a distributor of consumer products of that kind and does not hold himself out as such; or
(b) who is acting as a trustee in bankruptcy, receiver, liquidator or sheriff, or who is acting under an order of a court."
[11] The term "distributor" is defined in section 1(1) of the Act as follows:
"... 'distributor' means a person who supplies consumer products as part of his regular business and, without limiting the generality of the foregoing, includes a producer, processor, manufacturer, importer, wholesaler, retailer or dealer ..."
[12] Mr. Duplessis testified that Mr. MacKenney told him he buys vehicles, fixes them up and sells them to make money. Mr. MacKenney denies that he said that and testified he is not in the car sales business. Neither party's assertion is more credible than the other so I must look to the rest of the evidence to see if there is anything that supports one version over the other.
[13] Mr. Duplessis responded to an ad but he didn't bring the ad to court or testify that it gave any representation that Mr. MacKenney was in the business of selling cars.
[14] The parties also used a "doctored" version of Pine Crest's standard bill of sale when they completed the sale. If Mr. MacKenney was in the business I would expect he would have either his own form of a bill of sale or a generic form that he could buy from a stationery sales shop.
[15] On the other hand Mr. MacKenney, who professed not to know a great deal about cars, chose to use cross-examination of Mr. Duplessis to teach him about the proper response to an overheating car and how to check fluids which leads me to believe he's not the novice with cars that he would have the Court believe.
[16] He also told Mr. Duplessis when he bought the car that the front end had been banged in and he had it fixed up and that he had painted the whole car. He also offered to fix another minor defect, an offer Mr. Duplessis declined.
[17] Mr. MacKenney says he does not have a car dealer's license and never had one. He says he is a retired banker and a not too active business consultant and woodworker.
[18] I am not convinced by the evidence that it is more likely than not that Mr. MacKenney, as part of his regular business, buys and sells cars. I therefore find that he is not a distributor as that term is defined in the Consumer Product Warranty and Liability Act and this sale is therefore exempt from the provisions of that Act by virtue of section 2(2).
(ii) Sale of Goods Act
[19] Mr. Duplessis also made reference to the implied warranty of fitness for the purpose contained in section 15 of the Sale of Goods Act . That warranty, however, also only applies to sales where the seller was selling goods in the course of his business. For the reasons set out above in respect to that issue I also find that the implied warranty of fitness for the purpose in section 15 of the Sale of Goods Act does not apply to this sale.
(iii) Other Warranty
[20] Mr. Duplessis approached Mr. MacKenney to get him to pay for the repairs since the car broke down within 30 days of the sale. While he didn't argue the point at the hearing, Mr. Duplessis seemed to suggest that there was some provision that protected him if the car broke down within 30 days.
[21] The bill of sale has a warranty paragraph that Mr. MacKenney alleges was not part of the contract. Even if it were, however, it states that there is no warranty on vehicles sold for less than $5,000.00. Since the actual sale price in this case was just under $4,700.00 plus H.S.T. that warranty would not apply in any event.
(iv) The Common Law
[22] In order to succeed in this claim Mr. Duplessis must rely on the common law and prove that he was somehow the victim of fraud, misrepresentation, duress, coercion, mistake or some other cause for which I should declare the sale invalid.
[23] On the evidence before me I find there was no fraud, duress, coercion or mistake nor did Mr. Duplessis suggest that there was any. He did suggest that he was misled by Mr. MacKenney who told him the car was in excellent condition. For him to succeed on the basis of misrepresentation he must first prove that the representation occurred, secondly that it was false and thirdly that it was either fraudulent or negligent.
[24] The difficulty with proving that the representation was made is one of differing perceptions in this case. I have no doubt that Mr. MacKenney represented the car was in good working order as he testified that that is what he believed when he sold it. He also told Mr. Duplessis about it being in an accident and that it was fixed and painted. Clearly he wasn't saying it was like brand new but Mr. Duplessis apparently perceived him to be saying that. That, in my opinion, was not a realistic expectation on his part.
[25] In the case of Bartlett v. Sydney Marcus Ltd. , [1965] All E.R. 753, Lord Denning, M.R., stated at p. 755:
"... A buyer should realize that, when he buys a secondhand car, defects may appear sooner or later ..."
[26] In the case of Peters v. Parkway Mercury Sales Ltd. (1975), 10 N.B.R.(2d) 703; 2 A.P.R. 703 (C.A.), Chief Justice Hughes stated at paragraph 16:
"Persons who purchase used cars, especially older models with substantial mileage, must expect defects in such cars will come to light at any time."
[27] The vehicle that Mr. Duplessis bought from Mr. MacKenney was six years old. It had approximately 125,000 kilometers on it and, to Mr. Duplessis' knowledge before he bought it, it had been in an accident. In addition, in the 30 days he owned it before it broke down he put another 3,000 kilometers on it.
[28] I find there is nothing unusual about a secondhand vehicle having mechanical problems in these circumstances. I further find no evidence that Mr. MacKenney made any false representation to Mr. Duplessis before the sale was completed.
[29] Finally Mr. Duplessis suggested that Mr. MacKenney should have explained some things to him more clearly or urged him to have the car inspected. I do not accept that submission. There is no obligation on one party to a contract in circumstances such as this to look out for the interests of the other party. Mr. Duplessis was obliged to protect himself. There is no evidence that Mr. MacKenney knew or ought to have known of the faulty hose which led to the costly repairs. It was a hidden defect that may have been detected by Mr. Duplessis if he'd had the car inspected. He chose not to do so and he must bear the loss. I therefore dismiss Mr. Duplessis' claim against Mr. MacKenney.
Counterclaim/Costs
[30] With respect to Mr. MacKenney's counterclaim, which is essentially a claim for costs, that is entirely within the discretion of the Court. Mr. MacKenney does not stand before the Court with "clean hands." He prepared a bill of sale for presentation to the Department of Motor Vehicle Registration which does not disclose the full purchase price thereby reducing the amount of H.S.T. payable on the transaction. Although it is customary to award costs to the successful party in litigation, in these circumstances I will not do so because of his less than forthright dealings with the Department of Motor Vehicles. Mr. MacKenney's claim for costs and disbursements is hereby dismissed.
[31] In summary Mr. Duplessis' claim against the defendant, Pine Crest, is dismissed with costs of $325.00 including disbursements and his claim against Mr. MacKenney is dismissed with no costs. Mr. MacKenney's counterclaim is also dismissed without costs.
Claim dismissed.
Editor: Steven C. McMinniman/pdk
Back to New Brunswick's Consumer Product Warranty Legislation Home Page.