Greene v. D.R. Sutherland Ltd. and Sutherland
(1982), 40 N.B.R. (2d) 27
New Brunswick Court of Queen's Bench, Trial Division
Judicial District of Fredericton
Creaghan, J.
April 13, 1982
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary:
The purchaser of a used tractor brought an action against the vendor under the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, because of alleged faulty brakes. The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action, because the tractor was not a "consumer product" within the meaning of the Act.
Consumer Law -- Topic 5
Application of consumer protection legislation -- The New Brunswick Court of Queen's Bench, Trial Division, held that the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, applied to a purchase of goods if the article purchased was a kind of product commonly used for personal, family or household purposes -- The court stated that the use intended to be made of the article by the buyer was irrelevant -- See paragraph 10.
Statutes -- Topic 1803
Interpretation -- Intrinsic aids -- Bilingual statutes -- Interpretation of both versions -- The English and French definitions of a word in a bilingual statute were different -- The New Brunswick Court of Queen's Bench, Trial Division, stated that the English version prevailed, because it was clearer -- See paragraph 8.
Cases Noticed
Gauvin v. Dryden Motors (1981), 34 N.B.R.(2d) 143, not folld. [para. 21].
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Counsel
Sharon F. Cupples, for the plaintiff;
William E. Cooper, for the defendants.
This action was heard before CREAGHAN, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, on February 9 and March 9, 1982. The decision of CREAGHAN, J., was delivered on April 13, 1982.
[1] CREAGHAN, J.: On October 7, 1980 the plaintiff purchased a used International Tractor Model 624, serial number 57018, equipped with a front end loader, front blade and bucket from the defendant company. The purchase price was $6,000.00 including provincial tax and delivery, the full price was paid in cash, $3,000.00 on October 7th and $3,000.00 the next day.
[2] The plaintiff resides at Taymouth, N.B. and is retired. For a number of years he was employed by the Province as a truck driver, equipment operator including snow plows and graders with the Department of Highways. He was compelled to retire in 1979 due to illness; he is in receipt of a Canada disability pension but to date has not qualified for a pension from his former employer.
[3] For a number of years he was the owner of a farm tractor. Up until September 1980 and for some 6 to 7 years prior thereto he owned a 1947 Ford tractor. On September 11, 1980 he purchased a used Ford Dextra farm tractor from Fredericton Tractor Sales & Services Ltd. for $3,985.17 he was allowed $1,485.19 for his trade-in, see Exhibit D-1. Within days he found this unit to be unsatisfactory; it failed to remain in gear; it had other problems. He was advised of the existence of a new Act in New Brunswick, the Consumer Product Warranty and Liability Act, which came into effect January 1, 1980.
[4] Although of no importance, it is not clear what was the real purchase price for the Ford Dextra. The plaintiff stated that by the end of September he was promised the return of his money. He was repaid about $3,000.00 around October 8, 1980; at that time his trade-in had been sold.
[5] In any event, one of his neighbors Stuart Wall became aware of the plaintiff's dissatisfaction with the Ford Dextra and advised his son Gordon Wall an employee of the defendant company of this fact. As a result the
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defendant Donald Sutherland went to the plaintiff's residence around the end of September 1980 for the purpose of making a sale. I am satisfied that at this date the plaintiff fully expected to receive the return of the purchase price for his Ford Dextra tractor. This unit was still in his possession; he was told by Mr. Sutherland that it could not be used as a trade-in with his company.
[6] A few days later the plaintiff attended at the defendant's place of business. He was shown the tractor now in dispute, and told that the price was $6,500.00 plus tax. He returned the next day and was advised that the best price was $6,000.00 plus tax. On this occasion the tractor was put in motion; the plaintiff examined it, but I am unable to find whether he in fact actually operated it. During this time, as a result of surgery earlier in 1980, it was necessary for the plaintiff to use crutches. Mr. Sutherland stated "I held his crutches while he drove it". The plaintiff denies that he mounted the tractor. In my opinion this discrepancy is of little consequence; in any event the parties did not agree on a price at this meeting.
[7] Mr. Sutherland says that the plaintiff then offered $6,000.00 as is. The plaintiff says that the next day he contacted Gordon Wall and offered $6,000.00, tax incincluded [sic]. This slight variation in the evidence is also not material. On October 7, 1980 the tractor was purchased for $6,000.00 this included Provincial tax of $440.00 and $60.00 for delivery. The plaintiff paid $3,000.00 cash and the further sum of $3,000.00 on October 8, 1980, also by cash. At this date he had received his refund from the Ford Dextra vendor.
[8] It is necessary for this court to determine if the tractor is a consumer product as defined in the Act. The English definition of "consumer product" is not the same as the French definition of "produit de consommation". In my opinion, the English version is clearer and therefore must prevail. It states,
"consumer product" means any tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes;
[9] I am satisfied that the action against Donald Sutherland must be dismissed. He acted as President of his company; the plaintiff was aware of this fact. I am also satisfied that the company is a distributor within the
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meaning of the Act.
[10] The Act states that the test to be applied in determining whether the Act applies, that is, whether the article is in law a consumer product, is not the use intended to be made by the buyer, but is the article itself the kind of product that is commonly used for personal, family or household purposes.
[11] By definition it is my opinion that the court must determine as a question of fact if the article or product purchased is of "a kind" that is commonly used for personal purposes. This would include a car, a van, a family type trailer but not necessarily a transport truck or road grader.
[12] It was argued by Mr. Cooper that the Act did not include farm tractors. I cannot accept such a general submission. The evidence of the plaintiff establishes that he has owned tractors for a number of years, so have some of his neighbors, including the defense witness Stuart Wall. Tractors are commonly used to plow long private driveways, for assistance in private wood cutting and personal farming. The use depends on various circumstances, where a person resides, that is in a rural as opposed to an urban area, whether it is in a snow belt and many other factors. I am satisfied that some tractors are of a kind now commonly used for personal purposes, even though the same unit is manufactured for and used for industrial or public as opposed to personal purposes.
[13] As stated it is a question of fact. The model in question was manufactured around 1967. It is somewhat larger in size and power than the other two models previously owned by the plaintiff earlier in 1980.
[14] Mr. Sutherland stated it is "a large tractor, 60 horsepower, a powerful tractor, that the average size is 40 horsepower".
[15] Another witness, William Neill, said it was "a big International"; he operated it while on loan to his employer by the defendant during the summer of 1980.
[16] Mr. Albanie Arsenault, service manager of Apex Tractor and Equipment Ltd., an expert called by the plaintiff, said that a model 624 International was heavier than the usual farm tractor.
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[17] Having considered the various sections of the Act, the argument and evidence, it is my opinion that the Act does not apply to the sale in question. I am not at all satisfied that this particular tractor is in fact a consumer product within the test referred to.
[18] In the event that I may be incorrect in finding that this tractor is not a consumer product, and to avoid a further hearing, I will make some further findings.
[19] It is my opinion that as a result of the plaintiff's current physical condition, he encounters real difficulty in operating this large unit. He must use "a milk can" as a stool to mount the tractor and take the same with him in the event that he is required to dismount. He has damaged it and also became stuck while using it, consistently blaming faulty brakes for these instances. I doubt if he has the necessary strength in his legs to properly operate the brakes or the agility to meet emergencies. It is my finding that these are the principal reasons for his rejection of the tractor. From the evidence this, that is formal rejection, occurred on or about December 6, 1980 when the defendant probably received a written notice from the plaintiff's solicitor.
[20] Prior to that date the seller made certain repairs; without exception all complaints up until that time were willingly carried out, some at the defendant's place of business and more often at night at the plaintiff's residence by Gordon Wall.
[21] The case of Gauvin v. Dryden Motors, 34 N.B.R.(2d) 143; 85 A.P.R. 143, cited in argument is not applicable. There was no fraudulent misrepresentation in the present litigation.
[22] Furthermore, I am unable to conclude that any of the complaints that have not been rectified are of a type that can be considered a major breach of warranty. The buyer was a person familiar with tractors; he had ample opportunity to examine the unit; he drove it; he used it in the fall harvesting 20 cords of wood. Later he plowed his own and other driveways; in fact, as late as January 1981 he was seen plowing the main highway. This was during a heavy snow storm; the witness said, "he was amazed" that the plaintiff had so little trouble. The evidence is to the effect that without the use of chains he opened the highway during
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"the biggest storm of the winter". This of course was after the plaintiff had rejected the contract.
[23] The unit was about 13 years old when purchased. Mr. Arsenault said that his company would now allow $2,800.00 in its present condition on a trade-in. On October 20, 1981 his estimate to complete the repairs requested by plaintiff using new parts totaled $708.90, (Exhibit P-6). Later, December 16, 1981 he added a further $585.66; this was to include new brakes ($292.60) and labour $250.00.
[24] In my opinion if the plaintiff were entitled to any damages the same should not exceed $1,000.00. However, as stated earlier, in my opinion, the Act does not apply.
[25] It is ordered that the plaintiff's action be dismissed with costs, if demanded, under Column 1.
Action dismissed.
Editor: Debra F. MacCausland
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