Ryan v. Sutherland Equipment Ltd.
126 N.B.R. (2d) 344; 317 A.P.R. 344; 126 R.N.-B. (2e) 344
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Fredericton
McLellan, J.
June 18, 1992
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
A consumer purchased a used snowmobile from a dealer. The machine quickly manifested mechanical difficulties and was returned for repairs. After the second failure, the consumer applied for rescission under the Consumer Product Warranty and Liability Act on the ground that the machine was not durable for a reasonable period of time. The New Brunswick Court of Queen's Bench, Trial Division, granted rescission.
Sale of goods -- Statutory warranties -- Of durability -- A consumer (an experienced mechanic) purchased a used snowmobile from a dealer -- The machine was four years old and had 4,822 km on the odometer -- The dealer claimed that the machine had a complete resale check and gave a thirty day 50/50 warranty -- During two of the three times the consumer used the machine over the following two weeks, the engine blew a piston because the wrong parts had been installed and the clutch failed -- The consumer applied for rescission under the Consumer Product Warranty and Liability Act on the ground the machine was not durable for a reasonable period of time -- The New Brunswick Court of Queen's Bench, Trial Division, granted rescission.
Consumer Law -- Topic 1808
Sale of goods -- Breach -- Remedies of buyer -- Return of goods for major breach -- [See Consumer Law -- Topic 1724].
Statutes Noticed
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, ss. 12(1), 12(2) [para. 8].
Counsel
Frederick Wallace Ryan, for himself;
Nick Glendenning, for the defendant.
This matter was heard on June 11, 1992, by McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following decision on June 18, 1992.
[1] McLellan, J.: A disappointed buyer of a used Ski-Doo wants his money back.
[2] The plaintiff Frederick Wallace Ryan on February 7, 1992 bought a secondhand 1988 Ski-Doo Safari Scout from the defendant Sutherland Equipment Ltd. in Fredericton for $2,400 with a "30 day 50/50 warranty Consists of 50% off parts and labour when work performed at Sutherland Equipment". Sutherland represented that it had been given a complete resale check.
[3] On Saturday February 15 a piston blew, possibly because someone had installed an incorrect size of spark plugs and an incorrect size of main jet. The Ski-Doo was repaired by Sutherland at a cost to Mr. Ryan of $130 and picked up again by him on Friday February 21, 1992. The next day the clutch failed and Mr. Ryan returned it to Sutherland on February 25. The clutch has been repaired and Mr. Ryan has been billed 50% of the cost or $75.82. Since then the Ski-Doo has remained at Sutherland's and Mr. Ryan has asked for his money to be refunded.
[4] Mr. Ryan has not picked up the Ski-Doo from Sutherland and wants to rescind the purchase and get his money back. Sutherland feel that they "have stood by their 50/50 thirty day Used Machine Warranty and do not feel that Mr. Ryan has a legitimate claim".
[5] The odometer reading on the February 25 work order is 5,165 km. The odometer reading according to the bill of sale was 4,468 km on February 7, 1992. Mr. Ryan says the bill is incorrect and the odometer reading was 4,822 when he bought the Ski-Doo. Thus the parties disagree whether Mr. Ryan drove it 697 km or 343 km during the time he had it in his possession.
[6] As Mr. Ryan lives in the rural area of Nashwaak Bridge and such a Ski-Doo can travel 100 km/h, the distance travelled does not strike me as excessive. The evidence is undisputed that Mr. Ryan had the piston trouble on his second time out on the Ski-Doo and the clutch trouble after only six km of Ski-Doo travel after the piston problem had been fixed.
[7] The evidence is also clear that Mr. Ryan is an experienced mechanic. In my view an experienced mechanic is unlikely to abuse a new machine he has just bought. There is no suggestion in the evidence that he allowed anyone other than himself to drive the Ski-Doo. Nor is there any reason to think that he had anything to do with the installation of the incorrect size of main jet or spark plugs. The minor scratches and dent on the underneath of the Ski-Doo as shown in the photographs do not convince me that Mr. Ryan abused the Ski-Doo.
[8] The Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, applies to this transaction. That is because such a Ski-Doo is "commonly used for personal, family or household purposes". Thus by that law there are implied warranties. That 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."
[9] In my view the Ski-Doo was not durable for a reasonable period of time. Considering that the seller represented that it had done a complete resale check on the machine and that the buyer had major failures with the engine and clutch on two out of three days that the Ski-Doo was used, in my opinion the breach of warranty by the seller was a major breach. Thus in my view the buyer is entitled to rescind the purchase and to have the purchase money refunded.
[10] In view of the minor dent and scratches and the distance the machine was driven, I will arbitrarily allow Sutherland a credit for touching-up the dent and scratches of $100 and for Mr. Ryan's use of the machine of $.25 per kilometer for 697 kilometers or $174. Those credits total $274 and are allowed against the total amount paid by Mr. Ryan to Sutherland of $2,530 leaving a balance to be refunded of $2,256, with interest.
[11] For these reasons there will be judgment for the plaintiff Frederick Wallace Ryan against the defendant Sutherland Equipment Ltd. in the amount of $2,256 with simple interest at 10% per annum from March 1, 1992 and the filing fee of $35.
Order accordingly.
Editor: Reginald W. Curtis
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