MacLean v. Hafford Motors Ltd.
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Fredericton
June 21, 2000
Currently being edited for N.B.R.(2d) - judgment temporarily in rough form.
Temp. Cite: [2000] N.B.R.(2d) TBEd. JL.012
(F/C/684/98)
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary:
The headnote and the decision for this document are in preparation.
Counsel
Kathryn Gregory El-Khoury, for the plaintiff;
Grant M. Ogilvie, for the defendant.
[1] Russell, J. : The plaintiff seeks to have a contract for the sale of a 1989 automobile he made with the defendant rescinded. Mr. MacLean wants the purchase price and the expenses he has incurred subsequent to the sale returned.
THE PLEADINGS
[2] The Statement of Claim says in part:
"6. Just prior to the purchase of the vehicle, Derrick Knox, employee and agent of the defendant, stated to Robert MacLean that the vehicle was previously owned by an older lady and that it would last a long time.
7. The plaintiffs plead that the statement made by Derrick Knox to Robert MacLean implied that the vehicle was well maintained by the previous owner and not driven to excess or so as to exceed the vehicle's capabilities, such information being available and known to the defendant from the previous owner, and constituted an express warranty that the vehicle would not require significant repair within 2 months of sale.
8. In his decision to purchase the vehicle from the defendant, Robert MacLean relied on the statement made by Derrick Knox.
9. Further at the point of sale, Derrick Knox stated to Robert MacLean that if he should have any problems with the vehicle following the sale that Robert MacLean should contact the defendant by telephone and the defendant would take care of any problems encountered.
13. Prior to the expiry of the 1 month written warranty provision, the plaintiffs encountered problems with the vehicle's transmission and returned to the defendant for a return of their purchase money.
14. The owner of the defendant company, Jim Hafford, stated to Robert MacLean that he would have the transmission replaced. The defendant provided the plaintiffs with a substitute vehicle while the other vehicle was being repaired.
17. On June 27, 1998, approximately 3 weeks following the purchase of the vehicle, the vehicle began to require further repair.
18. The vehicle required repair to replace the radiator, in the approximate amount of $200.
21. The following day, July 7, 1998, the vehicle required repair to its shock absorbers and they were replaced at a cost of approximately $150.
22. On August 13, 1998, the vehicle required repair to the constant velocity joints and to the left axle at a cost of approximately $538.20.
23. The plaintiffs drove the vehicle until September 21, 1998 at which time the transmission in the vehicle failed and the vehicle ceased to operate in a roadworthy capacity. The vehicle remains locked in first gear and cannot be disengaged.
24. On or about September 28, 1998, Robert MacLean attended at the office of the defendant to advise of the problem with the transmission and to request a return of his purchase money.
25. Jim Hafford stated to Robert MacLean that he would not return his money and that if he wished to repair the transmission he would have to do so at his own expense."
[3] The Statement of Defence says:
"4. The Defendant says that:
(ii) With reference to paragraph 13 the Defendant states that the Plaintiffs requested a new transmission or his money back. The transmission was repaired at the expense of the Defendant although the warranty specifically provided that the cost was to be shared on a 50/50 basis. As the vehicle was over 5 years old there was only 1 month warranty on it. The Defendant was not aware of any other complaints until after the expiry of the 1 month warranty."
THE EVIDENCE
[4] Mr. MacLean testified that in early June 1998 he was looking for a used car to replace a 1986 Nova vehicle used by Mrs. MacLean. He saw a 1989 Chrysler Dynasty car in the defendant's used car lot that appeared to be in "fairly good shape". One Derrick Knox, an employee of the defendant, allowed him to take the car for a drive and he kept it for several hours driving it to his home some 14 kilometres from the car lot. He looked under the hood but admitted he is not a mechanic. On return, price was discussed and either then or at the initial contact Mr. Knox told the plaintiff the car had been traded in by an elderly lady, that it had only 108,000 kilometres on it, that it was in "tip-top" shape, and that it should last a long time. The plaintiff noted the car was clean, took Mr. Knox at his word and purchased the vehicle that day for $4,900. Although a sales agreement was signed the plaintiff testified Mr. Knox advised him that if any problem occurred with the car in a 30 day period the defendant would look after it. The sales agreement (Exhibit P-1, Tab 9) says about the warranty over the signatures of the plaintiff and Mr. Knox:
"WARRANTY AGREEMENT
We do hereby give a 50/50 warranty on internal parts of motor and transmission only.
The vehicle must be returned to us for any repairs under this warranty.
Warranty Conditions
1 to 5 years = 6 months
Older than 5 years
= 1 month (if vehicle purchase price is $1500 before taxes).
= if vehicle price is less than $1500 before taxes, vehicle is sold "as is".
[5] The following day, having noticed a "clunking" noise emanating from the front of the car, Mr. MacLean returned the car to the defendant. Despite the 50/50 clause in the warranty the defendant had the front shocks or struts replaced without cost to the plaintiff. During the several days the vehicle was out of commission the plaintiff was provided a replacement vehicle.
[6] Several days after the car was back in service the noises persisted and it was agreed by Mr. Knox and the plaintiff that the transmission was probably the culprit. The plaintiff insisted on his money being returned but after Mr. Knox consulted with Mr. Hafford, the plaintiff agreed to the replacement of the transmission at no cost to him. He testified he was told the transmission would come from a 1993 vehicle with 10,000 kilometres on it. The plaintiff left the Dynasty with the defendant, received a substitute vehicle and several days later retrieved his car which had acquired a replacement automatic transmission.
[7] Near the end of June, according to the plaintiff he telephoned Mr. Knox complaining that the radiator was leaking. Mr Knox refused to do anything more under the warranty and on July 6, 1998 the radiator was repaired (see: Exhibit P-1, Tab 3) at the plaintiff's expense. Several other fairly expensive repairs were performed subsequently by the plaintiff. (See: Exhibit P-1, Tabs 1 and 2.)
[8] On September 20, 1998 the replacement transmission failed and the plaintiff returned to the defendant seeking repair of the transmission because, according to Mr. MacLean, the transmission was guaranteed for 6 months. On being told that was not so he demanded the return of the sale price and shortly after sought the advice of his lawyer. This action was started on 30 October 1998.
[9] The car remains parked at the plaintiff's home and has not been driven since September 20, 1998. It has approximately 115,000 kilometres on the odometer. Thus, in approximately 3 1/2 months the plaintiff or others drove the vehicle some 7000 kilometres.
[10] The evidence from Mr. Knox and James Hafford, the defendant's principal, differs to some extent from that of the plaintiff. Mr. Knox said the plaintiff came to the sales lot looking for a "$4000 to $5000 car". He was shown the subject vehicle by Mr. Knox who told him the car looked good and that it had been traded in by a clergyman who told the defendant's representative he had purchased it from an elderly lady. The plaintiff then took the vehicle for a 10 minute drive. Mr. Knox testified he sells some 50 used cars each month and he has a sales pitch which never varies. He said he told the plaintiff the vehicle "seemed to work good", that it came with a 30 day 50/50 warranty, and that he should take it for a drive then get it checked out by a mechanic of his choice. He denied that he promised anything more, that he ever used the words "tip-top shape ", or that he told the plaintiff he could get his money back if unsatisfied. As to the latter claim he said had this been promised on a regular basis he would not be in business very long. The day following, that is June 2, the sale was consummated after the plaintiff drove the car for the afternoon.
[11] A few days after the sale Mr. Knox authorized the replacement of the front struts at a garage the defendant utilizes for its repair work without cost to Mr. MacLean. Several days after that the plaintiff complained about transmission problems and Mr. Knox authorized a purchase order for a 50/50 repair at the same garage (see: Exhibit P-1 Tab 5). The plaintiff became extremely upset at the prospect of paying 50% and Mr. Knox took him to see Mr. Hafford, who authorized the replacement of the transmission at the defendant's cost. Both Knox and Hafford testified the plaintiff wanted either a 6 month or 1 year warranty on the replacement transmission and Mr. Hafford refused. He said the transmission would be warranted for 30 days which was the warranty Hafford received from its supplier. To their knowledge the repairing garage purchased the transmission with a Hafford purchase order from a local salvage yard. Both Knox and Hafford said they did not give the plaintiff any details about the replacement transmission because they had no knowledge about it except that it would be removed from a scrapped vehicle at Capital Auto Parts salvage yard (see: Exhibit P-1, Tab 7).
[12] In July, according to Mr. Knox the plaintiff telephoned complaining about the radiator leaking. Mr. Knox checked the date of the sale and advised the plaintiff over 30 days had elapsed and the car was no longer warranted. The plaintiff did not complain again until mid September after the second transmission failed. He demanded the return of the purchase price. Both Mr. Knox and Mr. Hafford told him the 30 day warranty on the replacement transmission had expired and he threatened legal action.
[13] The plaintiff's action is essentially based on the alleged oral representations becoming an integral part of the contract because of Section 4(1) and 5 of the Consumer Product Warranty and Liability Act , S.N.B. 1978, Ch. C-18.1 and amendments. These sections say:
"4(1) In every contract for the sale or supply of a consumer product the following statements are express warranties given by the seller to the buyer:
(a) any oral statement in relation to the product that the seller makes to the buyer, unless the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's statement;
(b) any written statement in relation to the product that the seller makes to the buyer, whether or not the buyer relies on the statement, unless the circumstances show that it would be unreasonable for him to rely on the statement; and
(c) any statement in relation to the product, however made, that the seller makes to the public or a portion thereof, whether or not the buyer relies on the statement, unless the circumstances show that it would be unreasonable for the buyer to rely on the statement.
5. Where there is a written contract, oral and other extrinsic evidence is admissible in any court to establish an express warranty notwithstanding that it adds to, varies or contradicts the written contract."
[14] In seeking rescission of the contract the plaintiff relies on Sections 15 and 16 of the same Act. The relevant portions of these Sections say:
"15. Where the seller is in breach of a warranty provided by this Act, the buyer may recover damages for any 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.
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.
16(2) Notwithstanding that the buyer discovers the breach later than sixty days after delivery of the product, where the breach is a major breach the buyer may reject the product if he does so within a reasonable time after he ought to have discovered the breach.
16(3) The buyer's rejection is not effective until the seller knows or ought to know that the buyer does not accept the product."
ANALYSIS
[15] After having observed and heard the witnesses where the evidence about what was said leading up to the sale and to the provision of the replacement transmission is in conflict, I accept the evidence of Messrs. Knox and Hafford as being factual. Mr. Knox said he has a standard sales patter that doesn't vary. He only sells used cars. He is careful to say the vehicle, "looks like a nice car" or "that it seems to be well kept" and nothing more substantive than that. As well, the defendant only received a 30 day warranty on the replacement transmission from its supplier. It would simply not be reasonable for it to offer a 6 month warranty on that transmission after having already exceeded the warranty it gave the plaintiff. Thus I conclude the defendant offered only a 30 day warranty on the replacement transmission. Accordingly, where the evidence differs I accept the evidence of the defendant's witnesses.
[16] Having reached that conclusion I cannot say the defendant's employee made any oral representations upon which the plaintiff should have reasonably relied. The comments made by Mr. Knox were in the nature of mere sales talk that one would expect of any salesman attempting to sell a 9 year old used car. They were so vague and so obviously statements of opinion that they have no contractual force and it would be unreasonable for a buyer to rely on them when all the circumstances are taken into account including the age of the vehicle, the price, and the opportunity the plaintiff had for independent inspection.
[17] In Ordog v. District of Mission et al., 110 D.L.R.(3d) 718 the plaintiff house purchaser sued the vendor for breach of contract alleging the vendor had said, "It's a well built home and everything is in order". Mr. Justice Bouck said of this statement:
"... The comment by Takats could best be described as a mere statement of opinion not amounting to a representation of fact. Alternatively, it was a "puff" or commendatory statement expressed in good faith by Takats at the time of the sale. In either event, no cause of action for damages for misrepresentation can succeed based only on this representation: Chitty on Contracts, 24th ed. (1977), pp. 157- 8, para. 354."
[18] Here, the contract signed by the plaintiff is quite specific.
[19] There are several New Brunswick judgments relying on the relevant sections of the Consumer Product Warranty and Liability Act which involve the sale of vehicles. In Mallet v. Brunswick Rent A Car Ltd., 153 N.B.R.(2d) 321 the plaintiff bought a car which the salesman told her had some 78,000 kilometres on it as the odometer showed. It was established that in fact the vehicle had been driven over 175,000 kilometres. The salesman's statement in light of the surrounding circumstances was found to be an express warranty which was breached.
[20] Similarly in Leblanc v. Lorne Brett Chev Olds Ltd., [1986] N.B.J. No. 927 the plaintiff believed he was buying a demonstrator vehicle of the then current model year. In fact the vehicle had been sold to a retail customer and later returned to the dealership. The court found the plaintiffs were looking for a new car and the word " demonstrator" had connotations which meant it had not previously been sold. The representation of fact came within the confines of an express warranty under Section 4 of the Act.
[21] The concrete deceptions in Mallet and Leblanc differ from the nebulous statements in the present case that the car " appears to be well kept" or that "it looks like a nice car" and those judgments are distinguishable on that basis.
[22] I cannot conclude the defendant or its employees made any statements which can be taken to be oral express warranties which should be taken to be part of the contract of sale. As well, I have found the defendant did not, as a question of fact, warrant the replacement transmission for anything other than 30 days from June 10, 1998. It did not fail within that period. Accordingly, the plaintiff's action is dismissed.
[23] The defendant is entitled to costs. Using an amount involved of $4000 and Scale 3 of Tariff "A" of Rule 59 I fix those costs at $1,000. The defendant is also entitled to provable disbursements.
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