Seller v. Daye (Roly) & Sons Ltd.
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Saint John
[2002] N.B.R.(2d) Uned. 83
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
This case is unedited, therefore contains no summary. This case was originally cited as [2002] N.B.R.(2d) TBEd. AU.022.
Counsel
Rosalind Seller, appearing on behalf of the plaintiff;
Roly Daye, appearing on behalf of the defendant.
[1] Guerette, J. [orally]: This is an appeal by way of a Trial de Novo arising from an adjudication under the Small Claims Act , S.N.B. Chapter S-9.1.
[2] Rosalind Seller purchased a 1991 Mazda van for $4,140.00 ($3,600 + HST $540) from Roly Daye & Sons Ltd. ('Roly Daye') on August 20, 2001. The van showed approximately 194,800 kilometers registered to it. Difficulties with the engine arose the next day and again on several other occasions. Eventually, a replacement engine was put in the vehicle, at no expense to her, but a little over a month later, a lifter began making noise and she demanded her money back, or a new engine. This suit arises out of the defendant's refusal to do anything more for her.
[3] At the outset, it should be pointed out that the plaintiff Catherine Craft is a friend of Ms. Seller who resides with her. She co-signed on the loan for the car but this is insufficient to entitle her to be a plaintiff. The contract is between Ms. Seller and Roly Daye & Sons Ltd. For the same reason, Roland Daye, Marjorie Daye (his wife) and Jeffery Daye (his son) should not be parties to the action. Consequently, their names will be deleted from the heading in this action.
BACKGROUND :
[4] Ms. Seller purchased the vehicle to be used for pleasure but also for use in her business (self-employed) delivering mail on contract for Canada Post. She thought the van would suit her needs.
[5] The day after the purchase, the car overheated and began to emit steam. She took it back to Roly Daye and he replaced the radiator cap, thinking this was the problem.
[6] Several days later, (August 24 th ), it again overheated and she took it back and demanded that it be fixed. Roly Daye sent the van to City Radiator Ltd. who agreed to flush out the engine. That took a few days but the defendant provided the plaintiff with a replacement vehicle. The van was returned on August 26 th .
[7] On August 27 th , the van overheated again and Ms Seller brought the car back and demanded her money back. Roly Daye essentially told her to wait until they found out what was wrong with the vehicle and sent it to Ralph's Repair Service Inc. for a complete flushing of the radiator and the engine. That took several days.
[8] Ralph's Repair Service apparently made it clear to Roly Daye that it was not guaranteeing that flushing would fix the problem. However, if it was a small problem, that would probably fix it. If it didn't, then something else was wrong and they would have to dig deeper to find the problem.
[9] Ms. Seller got the van back on September 5 th and on that date, Roly Daye persuaded her to purchase a warranty on the vehicle and he would pay the premium. The warranty, with Lubrico Warranty Vehicle Protection is dated September 5, 2001 and records the mileage on the van at 194,865 kilometers. Roly Daye paid the premium of $275.00.
[10] On September 9 th , the van was brought back to Roly Daye. It had overheated again and when Ms. Seller opened the hood, some fluid sprayed on her hand and burned her. On September 12, she again demanded her money back. Roly Daye refused saying the problem could be fixed. The car was sent to Ralph's Repair Service to determine the problem and to see what had to be done.
[11] Ralph Balemans, owner of Ralph's Repair Service Inc. testified that when he looked at the engine, there were two possibilities to permanently fix the problem: either the engine could be reconditioned at a shop in Saint John or he could order a replacement engine from Vance Hanes Auto Parts Limited in Nova Scotia. These replacement engines essentially came from salvage yards and although Hanes provides a 30 day warranty on them, there is no guarantee that the engine is a new one or that it will run for at least another 100,000 kilometers.
[12] Ms. Seller was offered the choice. A reconditioned engine would cost a bit more and Roly Daye was prepared to pay one half the difference over and above amount received from the warranty. Ms. Seller insisted on obtaining a replacement engine, probably because it would be cheaper but also, perhaps, because she did not understand that a reconditioned engine was almost like a new one and would certainly be better than taking a chance on an engine from a salvage yard.
[13] After receiving instructions from Roly Daye and Ms. Seller, Ralph's Service purchased a replacement engine from Vance Hanes Auto Parts Limited for $948.75. The engine was put in the van and the total cost, parts and labour, came to $1,363.47. The warranty paid $1,000.00 and Roly Daye paid $363.47.
[14] The car was returned to Ms. Seller on November 1, 2001. It ran well until December 11, when, while on her mail run, Ms. Seller heard a loud clacking noise from the engine. She took it to Ralph's Repair Service who diagnosed the problem as a possible lifter that was broken. He would have to take the top off the engine to repair it.
[15] He gave her an estimate of $61.00 for parts and $114.00 for labour, for a total of $175.00. Although he estimated only one lifter had gone bad, if there were others, the top of the engine would be off in any event and it would not be that much more expensive to fix the others.
[16] By then, Ms. Seller had had enough. She spoke to Roly Daye and demanded a new engine. The warranty only covered one replacement engine and it would not cover the cost of another one. Daye refused and told her the problem was now hers entirely. He had already provided and paid for a warranty protection on her car, which had cost $275.00 and he had arranged for a replacement engine which had cost him $363.47 (total = $638.47) and that he was not in the business of providing lifetime warranties. He told her he had done everything he could for her and that he could do no more.
[17] Ms. Seller had the car towed to her house and it has been sitting on her lawn ever sense. On January 21, 2002, she commenced small claims proceedings.
[18] Dealing first with a portion of the claim dealt with in open court but which bears repeating. Ms. Seller borrowed the money to purchase the van from HFC at 29% interest. The payments of $314.00 per month have been made regularly. She wanted the court to award the cost of these payments against Roly Daye. However, those financial arrangements were between HFC, Ms. Craft and herself and do not involve Roly Daye. Whatever she paid to HFC, it is not recoverable against the vendor.
[19] It must also be mentioned that throughout the various times that the van was immobilized, Roly Daye provided a courtesy car at no expense to her. Further, on three different occasions, Roly Daye offered to replace the Mazda van with other vehicles that he thought would meet her requirements. He offered her a 1993 Dodge Caravan with only 163,000 kilometers which she refused; he also offered a GMC Safari van but she refused that also. Lastly, he offered her a Taurus station wagon, but she refused because she thought it was too costly on gas. Essentially, Ms. Seller told Roly Daye she wanted her van back.
[20] This is essentially a contract dispute involving the sale of a used vehicle. The contract (Exhibit #1) clearly spells out, on the front page (there is nothing written on the back page) that there is a warranty on the power train only, for 30 days, at '50/50' - meaning the vendor will pay 50%. There are no other warranties.
[21] Ms Seller submits that she demanded her money back within 30 days of the purchase and there is a law that says she is entitled to reimbursement within that time period. She is probably referring to the Direct Sellers Act S.N.B. Chapter D-10 which allows purchasers to back out of deals made with door-to-door salesmen. The Act does not apply in this case.
[22] The appropriate legislation affecting this transaction is the Consumer Product Warranty Act , S.N.B. Chapter C-18.1. That Act provides some protection to a buyer in that the product being purchased is supposed to be fit for the purpose for which it is intended. Sections 10, 11 and 12 outline what the purchaser may expect:
"10(1)Subject to subsection (2), in every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer
(a) that the product is of such quality, in such state or condition, and as fit for the purpose or purposes for which products of that kind are normally used as it is reasonable to expect having regard to the seller's description of the product, if any, the price, when relevant, and all other relevant circumstances; and
(b) that the product complies with all mandatory federal and provincial standards in relation to health, safety and quality.
"10(2) There is no implied warranty under paragraph (1)(a)
(a) as regards any defect that is known to the buyer before the contract is made;
(b) as regards any defect that the seller has reason to believe exists and that he discloses to the buyer before the contract is made;
(c) if the product is a used product and the buyer examines it before the contract is made, as regards any defect that that examination ought to reveal; or
(d) if there is a sale or supply by sample, as regards any defect that a reasonable examination of the sample ought to reveal.
"11 Where before the contract is made the buyer expressly or by implication makes known to the seller any particular purpose for which the product is to be used, there is an implied warranty given by the seller to the buyer that the product is reasonably fit for that purpose, whether or not that is a purpose for which such a product is normally used, unless the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgment.
"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 purposes 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."
[23] There is no evidence that Roly Daye made any express warranties or that he misled Ms. Seller by making false claims. He sold her a vehicle which met her requirements. From the evidence, it is clear that if the engine had been working properly, Ms. Seller would have been satisfied with the vehicle. In fact, when offered the choice of other vehicles, some with less mileage on them, she preferred the van she had purchased, but with another engine.
[24] Many small claims actions involve the purchase of/or repairs to used vehicles. Too often, the expectations of a used vehicle are usually much higher than what is warranted in the circumstances. In Peters v. Parkway Mercury Sales Ltd. [1975] 10 N.B.R. (2d) 703 (N.B.C.A.), Chief Justice Hughes attempted to set out what those expectations should be. The case involved the purchase of a used 1967 Dodge Polaris. At paragraphs 16 and 17:
"16 In my opinion there is a substantial distinction between the implied condition of fitness in the case of the sale of a secondhand car and that which is implied in the sale of a new car. Persons who purchase used cars, especially older models with substantial mileage, must expect defects in such cars will come to light at any time. In the present case the insistence of the plaintiff on the benefit of a used car guarantee and the reluctance of the vendor to give such a guarantee clearly indicate that the parties realized the possibility that the car was not likely to be free of defects and that some defects might come to light even within the first thirty days following the sale. In my view they entered into the contract of sale and purchase on that basis. In Godsoe v. Beatty (1959), 19 D.L.R. (2d) 265 (N.B.C.A.), Ritchie, J.A., quoted with approval a passage from 77 Corpus Juris Sec. at p. 1199 containing the following statement:
A used car dealer is not an insurer of the car he sells and is not required to inspect them for latent defects. Where a secondhand motor vehicle will run, the fact that frequent repairs are necessary does not establish a failure of consideration.
"17 In my view the car which the defendant sold the plaintiff was not essentially different in character from what the parties should have had in contemplation. Although the car was in poorer condition than either party probably knew, I do not think the defects amounted to "such a congeries of defects as to destroy the workable character of the machine" and consequently the plaintiff's claim for a declaration that there has been a fundamental breach entitling him to rescission of the contract fails."
[25] In summary, the plaintiff purchased a 1991 Mazda van with 194,800 kilometers registered on the odometer. The contract of sale did not provide any express warranties other than the 30-day warranty on power train only, on a 50/50 basis, that limitation was clearly printed on the front page.
[26] At the outset, the vehicle was not fit for the purposes for which it was intended and Roly Daye made arrangements, at his expense, to have a replacement motor put into the van. At that point, he had fulfilled an implied warranty to Ms. Seller that the vehicle was fit for her purposes. She had the vehicle she wanted. She drove it for over a month and then a lifter broke which required repairs costing $175.00.
[27] Having purchased an old vehicle, Ms. Seller should have realized that occasional repairs would be required. The vendor cannot provide an unlimited warranty. The vehicle has now been sitting on the plaintiff's lawn, immobile for the last eight months and no doubt it will take some effort to get it operating again. But that's not the fault of the vendor. Ms. Seller should have had the lifter repaired immediately. By not doing so, her problems, unfortunately, have been compounded.
[28] In the final analysis, I am unable to find that there has been a breach of contract to the extent that it breaches the protection afforded by the Consumer Product Warranty Act . The plaintiff's action is dismissed.
[29] Each side will bear their own costs.
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