Witherell v. Buchanan Estate
169 N.B.R. (2d) 14; 434 A.P.R. 14; 169 R.N.-B. (2e) 14
New Brunswick Court of Appeal
Ayles, Ryan and Turnbull, JJ.A.
November 1, 1995
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
Witherell purchased a vehicle from Buchanan (now deceased). Ten days later the motor failed. Witherell commenced small claim proceedings seeking damages. The hearing judge awarded $2,000 damages under the Consumer Product Warranty and Liability Act. The Buchanan Estate appealed. The New Brunswick Court of Appeal allowed the appeal and set aside the decision of the hearing judge.
General -- Application of consumer protection legislation -- Buchanan placed a vehicle for sale on a used car lot after having the engine repaired -- Upon inquiry, Witherell was told by car lot personnel that this was a private sale on an "as is" basis and recommended a private inspection -- However, Witherell purchased the vehicle without an inspection -- Ten days later the motor failed -- A small claims judge awarded Witherell $2,000 damages under the Consumer Product Warranty and Liability Act, holding that Buchanan was a "distributor" within the meaning of the Act -- The New Brunswick Court of Appeal set aside the decision -- There was no evidence that Buchanan was a "distributor" -- The sale was a private sale with no warranty -- In the absence of a warranty the buyer assumes the risk of reliability of the product.
Consumer Law -- Topic 1608
Sale of goods -- Distributor -- What constitutes -- [See Consumer Law -- Topic 5].
Cases Noticed
Watt v. Maillet et al. (1995), 163 N.B.R.(2d) 387; 419 A.P.R. 387 (T.D.), refd to. [para. 5].
Statutes Noticed
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, ss. 1(1), 2(2)(a), 12(1), 12(2) [para. 4].
Authors and Works Noticed
Dore, Karl J., The Consumer Product Warranty and Liability Act (1982), 31 U.N.B.L.J. 161, pp. 161-163 [para. 5].
Ivankovich, Ivan F., Consumer Products in New Brunswick (1983), 32 U.N.B.L.J. 123, pp. 139-140 [para. 5].
Counsel
Richard J. Scott, for the appellant;
Robyn Witherell, on behalf of Philip Witherell.
This appeal was heard on October 26, 1995, before Ayles, Ryan and Turnbull, JJ.A., of the New Brunswick Court of Appeal. The following decision was delivered by the court on November 1, 1995.
[1] By the Court: This is an appeal from a decision of a judge of the Court of Queen's Bench of a small claim action for damages arising out of the sale of a used 1986 Jeep motor vehicle by the late John Buchanan to Philip J. Witherell. The hearing judge awarded damages of $2,000 to Mr. Witherell under the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1 when, on May 27, 1994, 10 days after the sale, the motor failed. The vehicle had been driven about 100 kilometres.
[2] Before the vehicle had been placed for sale by Mr. Buchanan on the used car lot of Wheaton Auto Sales Ltd. in Fredericton, he directed his mechanic friend in St. Stephen to effect any necessary repairs to the engine. This was done. On two separate occasions Mr. Witherell tested the Jeep for a number of hours. He was told by sales personnel at Wheaton that it was a private sale by Mr. Buchanan and not one of Wheaton's used cars. He was also advised that it was being sold on an "as is" basis. Mr. Witherell was advised to have the vehicle inspected by his own mechanic. He attempted to do so but his mechanic was busy at the time. He took a chance and bought the vehicle without this precaution.
[3] The question of law in this appeal is the interpretation of ss. 12, 1 and 2 of the Act. In particular, was Mr. Buchanan a distributor?
[4] The hearing judge found that the used vehicle was a consumer product under s. 12 and that there was an implied warranty that the product and any components would be durable for a reasonable period of time. He appears also to have reached the conclusion, although it is not clear, that because the Jeep was on a used car sales lot, Mr. Buchanan was caught by the wording of the Act as being a distributor. The pertinent parts of the sections in question are as follows:
"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.
. . . . .
"1(1) in this Act
. . . . .
'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;
. . . . .
'seller' means the person who is the supplier under a contract for the 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 ..."
[5] The hearing judge erred in his interpretation of the relevant sections. There was no evidence before the court that the late Mr. Buchanan was a "distributor" within the meaning of the Act; see the commentary of Karl J. Dore, The Consumer Product Warranty and Liability Act (1982), 31 U.N.B.L.J. 161-163, and the commentary of Ivan F. Ivankovich, Consumer Products in New Brunswick (1983), 32 U.N.B.L.J. 123, 139-140, C. & L. Transport Ltd. v. Brine, [1988] N.B.J. No. 722 (QL) (C.Q.B.T.D.), August 29, 1988, Miller, J., and Watt v. Maillet et al. (1995), 163 N.B.R.(2d) 387; 419 A.P.R. 387 (T.D.).
[6] The sale to Mr. Witherell was a private sale and he was so informed. There is no warranty on the product in a private sale. In the absence of a warranty the buyer assumes the risk of the reliability of the product.
[7] The appeal is allowed and the decision of W.L.M. Creaghan, J., dated March 22, 1995 is set aside. The appellant is entitled to costs as per rule 75 here and in the Court of Queen's Bench.
Appeal allowed.
Editor: Elizabeth M.A. Turgeon