Wood v. Connell Motors Ltd.
(1991), 113 N.B.R. (2d) 427; 285 A.P.R. 427
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Woodstock
McLellan, J.
January 14, 1991
Wayne Wood (plaintiff) v. Connell Motors Ltd. (defendant)
(W/SC/275/90)
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
The plaintiff purchased a secondhand 1985 Ford cube van from the defendant dealer. The engine subsequently required replacement. The plaintiff sued the dealer for the cost of replacing and other expenses. The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.
Application of consumer protection legislation -- The New Brunswick Court of Queen's Bench, Trial Division, held that a "cube van" with a 15 foot box that was not equipped as a recreational vehicle was not a "consumer product" within the meaning of those words in the Consumer Product Warranty and Liability Act, because the van was not commonly used for personal, family or household purposes -- Accordingly, the court held that the Act was inapplicable to protect the purchaser of a secondhand van.
Consumer Law -- Topic 1602
Sale of goods -- Consumer product -- What constitutes -- [See Consumer Law - Topic 5].
Cases Noticed
Greene v. D.R. Sutherland Ltd. et al. (1982), 40 N.B.R.(2d) 27; 105 A.P.R. 27, refd to. [para. 11].
Statutes Noticed
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1.
Sale of Goods Act, R.S.N.B. 1973, c. S-1, s. 15(a) [para. 21].
Authors and Works Noticed
Ivankovich, Ivan F., Consumer Products in New Brunswick (1983), 32 U.N.B.L.J. 123, pp. 130, 131 [para. 12].
Counsel
Ian D. MacInnis, for the plaintiff;
Peter E. Crocco, for the defendant.
This action was heard before McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, on January 10, 1991, whose decision was delivered on January 14, 1991.
[1] McLellan, J.: Is a "cube van" with a 15 foot box that is not equipped as a recreational vehicle a "consumer product" within the meaning of those words in the Consumer Product Warranty and Liability Act S.N.B. 1978, c. C-18.1? That is the key legal question raised in this small claim proceeding.
[2] The plaintiff Wayne Wood bought a secondhand 1985 Ford cube van from the defendant Connell Motors Ltd. at Woodstock for $3,864 in total on February 5, 1990. The condition of the van was "rough" and Mr. Wood knew it needed work.
[3] The people at Connell Motors made no representations to Mr. Wood of the cube van other than to suggest that it was worth repairing. Before buying the vehicle Mr. Wood got the advice of a friend with mechanical ability and took it to a service station. In particular Mr. Wood, his friend and the service station people considered whether the engine was good. In a letter dated March 5, 1990 Mr. Wood said: "Before I bought it from you I went to great lengths to find out if the motor was running O.K."
[4] Unfortunately Mr. Wood and his advisors did not go beyond just listening to the engine. They did not bother to do a compression test or to take off the rocker cover. Such a test and inspection would have revealed that the engine was in bad shape and contained an additive, possibly STP, that improved its sound. When Mr. Wood had the oil changed on February 12, 1990 he discovered that the engine would have to be replaced. He replaced it and did other repairs. The van now works well.
[5] Mr. Wood wants damages from Connell Motors for replacing the motor ($1,900) and other expenses. In the letter of March 5, 1990 Mr. Wood summarized his position as follows: "I cannot afford to take the fall for a doctored motor and will not."
[6] The evidence establishes that Connell Motors got the cube van from a dealer in Fredericton in late December, 1989, about 40 days before the sale to Mr. Wood. The expert mechanic called by Mr. Wood says that he could not tell when the additive was added. He said it might have been months before Connell Motors got the vehicle. The witnesses for Connell Motors deny doing anything to the vehicle or adding any additives. Accordingly the evidence does not establish that Connell Motors "doctored" the motor, misrepresented it or knowingly sold a vehicle with a "doctored" motor.
[7] The sales slip does not include any express warranty. The Connell Motors salesman says that the sale was "as is" without any warranty. He emphasizes that it was apparent to anyone that the vehicle had been "used hard", was "rough" and "needed a lot of work".
[8] Mr. Wood says that there is no such thing as an "as is" sale from a dealer. His counsel argues that there is a warranty under the Consumer Product Warranty and Liability Act that protects those who buy second-hand vehicles from dealers. He says that Mr. Wood has the benefit of that statutory warranty.
[9] Counsel for Connell Motors submits that the Act applies only to sales of "consumer products" and the cube van is not a "consumer product". Thus he says there is no warranty.
[10] Against that background the key legal question is whether the cube van falls within the definition in the Act:
"'consumer product' means any tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes;."
[11] In Greene v. D.R. Sutherland (1982), 40 N.B.R.(2d) 27; 105 A.P.R. 27, Mr. Justice W.L.M. Creaghan of this court observed:
"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."
[12] Similarly, in an article Consumer Products in New Brunswick (1983), 32 U.N.B.L.J. 123, Professor Ivan F. Ivankovich noted at pages 130 and 131:
"The test for a consumer product adopted by the Act is not the use of the specific product purchased, but, rather, the common use for that kind of product. Under this test, a product may fall within the Act if it is commonly used for personal, family or household purposes notwithstanding that the aggrieved buyer is purchasing for a commercial purpose."
[13] I agree with Mr. Justice Creaghan and Professor Ivankovich. Thus the fact Mr. Wood purchased the cube van for a commercial purpose only and not for personal, family or household purposes is not relevant. The correct test or question is whether such a cube van is something that is commonly used for personal, family or household purposes.
[14] There are many sizes, types and models of vans ranging from minivans to moving vans. Various models of small and medium sized vans are commonly used for personal, family or household purposes, In my opinion large vans are not commonly used for such personal purposes unless they are equipped as "recreational vehicles". Mr. Wood describes the Ford cube van in dispute as having a 15 foot box. He says it has a much larger capacity that the small van he had been using in his business. There is no suggestion that the cube van is in any way comparable to a large recreational van or Winnebago or a "standard sized" van.
[15] In Greene Mr. Justice Creaghan went on to say at page 31:
"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." (my emphasis)
[16] In view of the various types of vans and because Greene was a case involving a farm tractor and not a van, that comment in passing by Mr. Justice Creaghan is not a precedent that a cube van with a 15 foot box is a "consumer product". But, I think Greene is a relevant precedent to show how the court should approach this type of case. Mr. Justice Creaghan said at page 30:
"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 neighbours, 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."
[17] There was evidence in Greene that it was "a large tractor, 60 horsepower, a powerful tractor, that the average size is 40 horsepower" and that the tractor "was heavier than the usual farm tractor". Because of that evidence Mr. Justice Creaghan decided that: "I am not at all satisfied that this particular tractor is in fact a consumer product within the test referred to."
[18] Borrowing the words of Mr. Justice Creaghan, I am satisfied that some vans 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. Here there is evidence that the cube van has a 15 foot box and a much larger carrying capacity than the small van it replaced. Thus like the larger and heavier than usual farm tractor in Greene, I think the cube van is larger and has more capacity than a standard or usual van. As well it is not equipped as a recreational vehicle.
[19] Accordingly, I am not convinced that the particular kind of cube van involved in this case is commonly used for personal, family or household purposes. I find that this particular cube van is not a consumer product as defined by the Act.
[20] Therefore the Consumer Product Warranty and Liability Act does not apply to the purchase of the cube van. Thus there is no warranty under that Act for the benefit of Mr. Wood.
[21] In addition, the evidence convinces me the sale was on an "as is" basis. Thus no implied warranty of fitness arose from s. 15(a) of the Sale of Goods Act.
[22] As noted, the evidence does not prove Connell Motors or its agents misrepresented or "doctored" the motor or the vehicle.
[23] For these reasons the action of the plaintiff Wayne Wood against the defendant Connell Motors Ltd. is dismissed.
Action dismissed.
Editor: Debra F. MacCausland