Sterczyk v. DFS Motors Ltd., 2022 BCPC 124

Citation: Sterczyk v. DFS Motors Ltd. 2022 BCPC 124 Date: 20220621 File No.: C5679 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: PETER ANDREW STERCZYK CLAIMANT AND: DFS MOTORS LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on his own behalf: P. Sterczyk Appearing for the Defendant: J. Pambrun Place of Hearing: Duncan , B.C. Date of Hearing: July 2, 2021 Date of Written Submissions: July 14, 2021 Date of Judgment: June 21, 2022 INTRODUCTION [ 1 ] This case is about a failed sale and purchase of a brand new motor vehicle and the interesting intricacies of the new vehicle sales

industry in Canada. Peter Andrew Sterczyk (the “Claimant”) is a licensed real estate sales person and associate broker in the Nanaimo office of national real estate network. At the time of this trial he had moved to another real estate firm. While with the first real estate firm, he entered into negotiations for the purchase of a vehicle with a sales representatives of the defendant, DFS Motors Ltd. (the “Defendant”).

The Defendant is a Ford Dealership and carries on its business in Duncan, BC under the name of Island Ford. [ 2 ] The negotiations occurred during a period in or around November and December of 2019. The subject matter of the negotiations was a new 2019 Ford Mustang, which as between the parties was identified by a specific vehicle identification number (or “VIN”) ending in the numerals 5161 (the “Vehicle”).

It is not disputed that at all material times the Vehicle was physically in the possession and under the control of another Ford Dealership located in Surrey, BC, which was identified in the evidence as Mainland Ford. [ 3 ] The Claimant contends in his Notice of Claim filed on December 17, 2020, that the parties reached an agreement for the purchase and the sale of the Vehicle at an agreed purchase price of $26,060.71 exclusive of all taxes (the “Purported Purchase Price”).

The Claimant alleges that pursuant to that agreement he paid a deposit of $2,500 (the “Deposit”) to the Defendant. [ 4 ] The Claimant further alleges that immediately thereafter the Defendant informed the Claimant that it would not be supplying the Claimant with the Vehicle although, says the Claimant, it was readily available. Furthermore, the Claimant says that the Defendant then attempted to provide him with a “switch vehicle” which he claims to be of a substantially lesser market value of some $6,109, but for the same Purported Purchase Price.

The Claimant seeks return of the deposit and damages for the alleged breach of contract. [ 5 ] In its Reply filed on December 29, 2020, the Defendant denies any breach of contract and any resulting damages on the basis that there were un-met pre-conditions for completion of the sale and purchase of the Vehicle. The Defendant further argues in the alternative that “there was no consensus ad idem or meeting of the minds” with respect to nature of the accessories and equipment installed by a third party on the Vehicle.

In the further alternative, the Defendant pleads mutual mistake, or alternatively unilateral mistake or alternatively frustration of contract, relying upon the Frustrated Contract Act , R.S.B.C. 1996 c. 166 . [ 6 ] The task of this Court is to determine whether or not the Claimant has proven the existence of the contract, whether the Claimant has proven that the Defendant has breached that contract and if so, whether the Claimant has proven what damages, if any, flow from that breach. Summarizing the Evidence [ 7 ] The Claimant testified as his own and only witness.

In course of his viva voce evidence he introduced several documents. [ 8 ] Justin Pambrun, who is and was the Defendant’s General Manager at all material times, testified as the sole witness of the Defendant. In the course of his viva voce evidence he also introduced several documents from the Defendant’s business records. [ 9 ] I do not intend to describe the minutiae of all of the evidence presented in this case. I have rather taken a more compressed and somewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings.

This approach was approved by Provincial Court Judge Woods in R. v. Connell , 2017 BCPC 123 , at paras. 5 and 6 . This approach has been followed in other decisions of our court and recently in my own decision of Vista Leadership Inc. v. Pilon , 2021 BCPC 320 ; 2021 CarswellBC 4168 . [ 10 ] However, in drawing necessary inferences and in reaching my conclusions, I have carefully considered all of the evidence, even if I have not made specific reference to certain aspects of it.

Summary of the Undisputed Circumstances and Undisputed Facts Giving Rise to the Claim [ 11 ] According to the Claimant’s evidence he conceived of a 2020 year long promotional contest which he dubbed “Win My Ride” whereby a “lucky client literally wins my vehicle.” The eligible contestants would be the consumers who completed a real estate transaction through him, either as a purchaser or a seller, or a purchaser of one of his listed properties through another agent. [ 12 ] His plan was to acquire a new car with dealer financing in December 2019, use it during 2020 and then draw the winner on December 31, 2020, pay off the financing balance owing and transfer title to the winner in January 2021.

He sought and received tax and legal advice concerning this planned promotion; he also obtained an internet domain name to host and advertise this promotional campaign.

He testified that he was attempting to get the entire promotional program in place including the purchase of the motor vehicle by the end of 2019. [ 13 ] The Claimant was attracted to the Defendant’s own promotion called “Mustangs at Cost” which he apparently noticed while driving by the dealership in early November of 2019. [ 14 ] As part of the Claimant’s documentary evidence he entered an archived web page from the Defendant’s website for a time period around when he started his negotiations with the Defendant. The banner stated: Mustangs at Cost .

It featured a new 2019 Ford Mustang GT Coupe with a manufacturer’s suggested retail price (“MSRP”) of $42,589 which could be acquired from the Defendant for $37,094 plus a $509 documentation fee. The pricing excluded licensing and taxes. According to the webpage, manufacturer’s financing could be available at 0% up to sixty months. The webpage described a number of the features and accessories for that particular featured car. Contained within the webpages were various applicable conditions and disclaimers.

It included the following: Promotion on in-stock units only, while supplies last. **No negotiations, serious inquiries only **Mustangs at Cost……Promotion on in-stock units only while supplies last **No negotiations, this is dead dealer cost** [ 15 ] According to the evidentiary documentation submitted by both parties, the term “MSRP” is explained as a price that has been “developed” as a guide.

Dealers may sell for less and are not under any obligation to accept this suggested retail price. [ 16 ] It is not clear from the Claimant’s evidence whether or not he saw this archived web page during or at the time that he started dealing with the Defendant to negotiate his agreement or at some time thereafter.

[ 17 ] The Claimant made contact with and then only dealt with Abraham Lee, who was at that time a salesperson with the Defendant. Mr. Lee was not called as a witness by either the Claimant or the Defendant, although I understand he still lives and works on Vancouver Island and now works as a business manager at another local vehicle dealership. [ 18 ] According to the Claimant’s evidence, all of his communication with Mr. Lee was by telephone, text or email. Except for a very few, no copies of the text messages were entered as exhibits because the Claimant did not think they were relevant.

Some emails were entered as exhibits, but for the most part, they relate to the time period after the parties were at odds. [ 19 ] The Claimant testified that when he was speaking with Mr. Lee, he explained the nature of his promotional contest, the required promotional vehicle, its budget, and the timelines for the promotional contest. [ 20 ] According to the Claimant, he provided Mr.

Lee with the “rough parameters” for the promotional vehicle indicating that the colour had to be red, white or blue in order to be consistent with the colour branding of the national real estate network with which he was then affiliated; it was important to have an automatic transmission and that his budget for acquisition of that promotional vehicle was under $30,000 inclusive of all taxes and fees. [ 21 ] No confirming correspondence or exchanges of written documentation were entered as documentary exhibits to confirm these “rough parameters” and specifically there is no correspondence from Abraham Lee provided to the Court confirming these “rough parameters.” [ 22 ] As part of the Claimant’s documentation there is an email from Abraham Lee sent to the Claimant, dated November 25, 2019, when unhappy differences were arising between the parties which says in part: You were looking for a 2019 New Ford Mustang for $30,000 all in.

You said it didn’t matter weather [sic] manual or automatic and colour was not important. What was important was the budget that was the focus. [ 23 ] The Claimant disputes the accuracy of that statement of Abraham Lee as it relates to the type of transmission. [ 24 ] According to the Claimant, after an initial communication exchange, Abraham Lee then contacted the Claimant by telephone within about two weeks, likely around November 21, 2019, to indicate that he could buy a suitable car from another Ford dealership, but he did not specify which dealership it was. In fact, as it turned out, it was Mainland Ford.

The suitable car of which Abraham Lee spoke of was the Vehicle. [ 25 ] According to the Claimant, he also spoke by telephone with an individual whom he understood to be the sales manager at Island Ford , who told him that the name of the actual dealership which had the Vehicle would not be shared with the Claimant because the Defendant did not want the Claimant going directly to that other dealership.

As it turns out, according to the evidence of Justin Pambrun, that individual was Mitch James, the sales manager at the time, who was not called as a witness at trial because he no longer works for the Defendant and he has relocated to Ontario. [ 26 ] Upon Abraham Lee contacting the Claimant, around 3:46 p.m. on November 21, 2019, Mr. Lee sent a text message to the Claimant with a partial photograph of a document known as a “window sticker” for the Vehicle.

As I understand it, when a motor vehicle is built, it is issued a “window sticker” apparently produced from the manufacturer’s details about the motor vehicle, including environmental and fuel consumption information and other important details.

The Vehicle’s window sticker sent by Abraham Lee to the Claimant (the “Vehicle’s Original Window Sticker”) contained a description of the Vehicle including a portion of the details of the VIN and its exterior colour being “Velocity Blue”, as well as information about the Vehicle’s “standard equipment”, “warranty” and “optional equipment” which in this case included the 10-speed automatic transmission valued at $1,500 and “17 Sparkle Silver Alum Wheel” with no value referenced. It also contained the MSRP for the Vehicle which was shown as $32,885. [ 27 ] Pursuant to discussions between the Claimant and Mr.

Abraham Lee , Mr. Lee sent the Claimant a form document that he prepared which was headed “Offer to Purchase”, including within it the Defendant’s name and business location. It was addressed to the Claimant and contained within it a reference to a 2019 Ford Mustang, the last digits of the VIN, a reference to it being “new” and with odometer reading stated as “250”.

The date appearing on the Offer to Purchase was “11/21/2019” being November 21, 2019. [ 28 ] Under the heading “New Vehicle” the following information appeared all hand written except for reference to the “Documentation fee and taxes noted below”: $32,855.xx [apparently taken from the MSRP] < -5,000> incentive $27,885. xx <- 1824.29> Is.

Ford incentive [being the Defendant’s incentive] $26,060.71 All vehicles are subject to $599 Documentation fee and applicable taxes Cash O.T.R. $30,000 [ 29 ] At the bottom of that document (hereinafter the “Offer to Purchase”) appeared separate lines for the “Seller’s Acceptance Signature and “Buyer’s Signature” and both containing the above noted date. No signatures appear on the Offer to Purchase. [ 30 ] The Claimant testified that he “verbally accepted the offer” notwithstanding that the form of the “Offer to Purchase” is fashioned such that it is the buyer who is making the offer.

He also testified that he provided Abraham Lee with his credit card for a required

deposit of $2,500 (the “Deposit”). That amount was transacted on his credit card by the Defendant around 4:20 p.m. on November 21, 2019, and a hand written receipt dated November 21, 2019, (the “Receipt”) was issued by the Defendant which contained an inserted notation “ST Locate”.

The Claimant says he did not know what “ST Locate” meant, nor did he authorize it to be put on the Receipt. [ 31 ] It is now accepted by the parties that “ST Locate” means “subject to locating”, that being subject to the Defendant “locating” the Vehicle which was subject of the Deposit, and that being in the sense of obtaining that Vehicle for sale to the Claimant. [ 32 ] According to Justin Pambrun’s evidence, the purpose of the “Offer to Purchase” and the receipt of the Deposit was to put the Defendant in the necessary position to approach Mainland Ford in order to acquire the Vehicle for resale to the Claimant. [ 33 ] There was no specific discussion between the Claimant and Abraham Lee about the nature of the Deposit, but it appears to be common ground that the Deposit was to be applied to the Purported Purchase Price and would be refundable to the Claimant if the Defendant was unable to provide the Vehicle. [ 34 ] Although the Claimant does not have a business background in the automotive sales business, his evidence is that he was very familiar with the existing stock of Ford motor vehicles in British Columbia from accessing the manufacturer’s Ford.ca website.

As I understand it, having received the photo containing a portion of the Vehicle’s Original Window Sticker, which included the Vehicle’s make and model and the reference to “Velocity Blue” and the VIN number, he tracked down the Vehicle and found it on the Mainland Ford website. [ 35 ] From the Mainland Ford website he learned that the Vehicle was shown to have a MSRP of $39,194 and Mainland Ford was advertising “Savings” of $5,000 with a resulting “Dealer Price” of $34,194. “Dealer Price” was described in the following manner: Dealer Price shown is net of all manufacturer incentives effective Back Friday Sale between November 15 - 27, 2019. [ 36 ] As I understand it, the Claimant was also able to view photographs of the Vehicle on the Mainland Ford website and to learn that the “Features” included “Equipment Group 100 A” and a “10-Speed SelectShift Automatic Transmission”.

No specific prices or values were stated for these “Features.” [ 37 ] The evidence supports the conclusion that the Claimant did not disclose to Abraham Lee or any other representative of the Defendant that he had obtained this additional information about the Vehicle from the Mainland Ford website.

The timing of its receipt by the Claimant is not clear on the evidence. [ 38 ] A copy of the Mainland Ford’s website containing information about the Vehicle was downloaded and printed on November 23, 2019, based upon the printed version that appears in Exhibit 1, although it is possible that the Claimant viewed it earlier than that date.

The viva voce evidence of the Claimant certainly supports that inference because the Claimant said in his evidence that in the context of the Mainland Ford’s website information and the photographs of the Vehicle, he viewed and obtained and included in Exhibit 1, that he “made the comparisons” about what features were on the Vehicle. [ 39 ] He specifically noted that he could see the following features from those photographs which included:

a) the lower exterior “EcoBeast” stripe decal graphics on the lower part of the doors on both sides;

b) the performance “black wheels” or otherwise referred to as “black rims”; and

c) the full leather interior including the leather seats. [ 40 ] At some unspecified later time the Claimant also was able to confirm in discussions with a representative of Mainland Ford, that the Vehicle was also equipped with a “performance upgrade package” which included an exhaust system and an enhanced automatic electronic speed control enhancement attached to the foot pedal. [ 41 ] It is noteworthy that the Vehicle’s Original Window Sticker sent to the Claimant by Abraham Lee specifically made mention of “seats cloth bucket” and the “17 Sparkle Silver Alum Wheel” and made no mentioned of the enhancements noted above nor the “performance upgrade package.” [ 42 ] The Defendant contacted Mainland Ford following the service of the Claimant’s Notice of Claim and in preparation for this trial and well after the negotiations between the Claimant had collapsed.

The Defendant was thereby able to obtain from Mainland Ford’s four internal service invoices rendered as between, their service and sales departments, June 18, 2019, and December 4, 2019, which detailed the costs relating to the various upgrades. These documents were admitted into evidence. [ 43 ] Those documents confirm that prior to the time period of the Parties negotiations, the following upgrades were installed on the Vehicle at a total cost of $6,125.49 ( the “Vehicle Upgrades”):

a) a set of Roush-X exhaust pipes for $632.49 invoiced on June 18, 2019;

b) a custom automotive decal ($1,200), window tinting ($500), black tire rims ($550); leather heated seats ($2,500), plus $50 for miscellaneous supplies for a total of $4,800 invoiced on November 30, 2019; and

c) a pedal commander kit for a total of $693 invoiced on December 4, 2019. [ 44 ] These upgrades mostly occurred in late November and early December of 2019 and therefore were not reflected on the Vehicle’s Original Window Sticker that Abraham Lee provided to the Claimant. [ 45 ] The evidence supports the conclusion that neither Abraham Lee nor any other representative of the Defendant saw the information about the Vehicle on the Mainland Ford website at the time they were dealing with the Claimant on the Vehicle.

[ 46 ] According to Justin Pambrun’s evidence, the Defendant and its sales representatives and the standard industry procedures for Ford dealerships is to use and rely upon an internal computerized system available to all Ford dealerships. This is in order to obtain necessary information about the Ford dealerships’ network inventory and full details about available Ford motor vehicles, network wide. According to Justin Pambrun, this internal system provides more detailed information than what is available to the general public on the Ford.ca website.

Thus, through this internal system a dealer may find out the MSRP of any motor vehicle and the actual dealer invoice price, being what Ford, as the manufacturer, has charged a dealership for a particular motor vehicle and any Ford motor vehicle in Canada.

The use of the internal website eliminates the impractical requirement for a Ford dealer looking at the websites of other Ford dealers to find a motor vehicle of a certain kind, description, features and price. [ 47 ] However, dealership sales persons like Abraham Lee do not have open and general access to this internal dealership system; they must seek available information from a dealership’s sales manager or other level of management in the dealership to obtain such information. It is the sales manager who must ultimately “approve the deal”.

The information on this internal system informs their decision. [ 48 ] As part of the Defendant’s documentary evidence is a copy of the actual dealer invoice for the Vehicle as at June 20, 2018, (the “Actual Dealer Invoice”) which shows the dealer invoice price as $31,472 and the MSRP at $32,885. The Actual Dealer Invoice lists the equipment shown on the Vehicle’s Original Window Sticker for the Vehicle that Abraham Lee sent to the Claimant.

It does not show any of the Vehicle Upgrades nor the cost of them. [ 49 ] Again, according to Justin Pambrun’s undisputed evidence, upgrades to a motor vehicle like the Vehicle Upgrades, are used by some Ford dealerships to increase the market value and the retail price and to thereby limit and to dissuade the export of popular motor vehicles (such as “small displacement Mustangs”) outside of Canada. Such exports may be contrary to a dealership’s agreements with Ford Canada.

Apparently a “black list” exists of individuals who commonly seek to export popular Ford motor vehicles and with whom dealers will avoid dealing with. There was no suggestion that the Claimant was on such a “black list” and hence that was not an impediment for the Defendant seeking to procure the Vehicle for him.

In any event, it is most likely that in keeping with Ford Canada’s requirements that the Claimant would have been required to sign a “Non-Export Agreement.” [ 50 ] As I understand it, the Defendant’s sales manager contacted and sought to obtain the Vehicle from Mainland Ford following the delivery of the Offer to Purchase and the payment of the Deposit.

They learned of the existence of the Vehicle Upgrades and the fact that they could not obtain the Vehicle for the Claimant at the prices set out in the Actual Dealer Invoice and that the MSRP was not that as set out in the Vehicle’s Original Window Sticker sent to the Claimant. [ 51 ] It was at this point, Abraham Lee informed the Claimant of that fact. Furthermore, and as I understand it, Mr.

Lee provided an explanation and stated that the Vehicle was not available at the price which had been discussed because of the Vehicle Upgrades, about which neither Abraham Lee nor the Defendant’s sales manager were aware. [ 52 ] Thereafter, Abraham Lee continued to search for motor vehicles that would be available and would meet the parameters of a new Ford Mustang for $30,000 “O.T.R.” and presented them to the Claimant. [ 53 ] Abraham Lee sent the Claimant window stickers for other motor vehicles which the Claimant rejected on the basis that these vehicles were of “lesser value” because they did not have all of the options contained in the Vehicle Upgrades.

He was basing this on his own research and primarily on the MSRP’s he was seeing on other dealer’s websites.

Therefore the MSRP for the Vehicle on the Mainland Ford website was $39,194 and he was being presented with an alternative new Ford Mustang with an MSRP of $33,085 and hence a difference of some $6,109. [ 54 ] The Claimant testified that he did not compare the features of each of the alternate vehicles on an item by item basis in order to reach this conclusion. [ 55 ] He rejected the first alternative new Mustang because it was green in colour and had a 6-speed manual transmission, which he contends failed to satisfy the important specifics of his parameters for a new Ford Mustang. [ 56 ] The Claimant rejected a second alternative of another new Ford Mustang.

It was offered to him by Abraham Lee for $30,000 “on the road” but rejected by him because the MSRP was some $4,746 less than the MRSP for the Vehicle, as it appeared on the Mainland Ford website. The second alternative Ford Mustang was another shade of blue which was acceptable, but he rejected it on the basis of what he said was “its lesser value.” Specifically it did not have the “EcoBeast” options although he was not certain about all that was included in that particular package.

However, without specifically knowing that, he concluded that this second alternative vehicle was missing the Vehicle Upgrades. [ 57 ] Abraham Lee’s email of November 25, 2019, to the Claimant offered him an alternative Mustang for a price of “$30,000 all in”. It further indicated that if this was not acceptable to the Claimant then the Defendant would return the Deposit to the Claimant by way of a credit back to his credit card and requested credit card particulars from the Claimant.

Those particulars never were provided and the Claimant thereafter refused to accept the return of the Deposit. [ 58 ] The Claimant consulted legal counsel. On or about December 2, 2019, the Defendant received a letter dated November 29, 2019 (the “Solicitors’ Demand Letter”) sent on behalf of the Claimant. It demanded specific performance of the alleged contract for the delivery of the Vehicle and required that the Defendant provide confirmation that the Defendant would be providing the Vehicle or before 4:00 p.m. on December 3, 2019.

Failing that, it threatened legal action against the Defendant for “serious adverse financial implications” caused to the Claimant. The Solicitors’ Demand Letter was addressed to the attention of Abraham Lee. It cited the Offer to Purchase for the Vehicle identified as having a VIN ending in 5161 and the payment of the Deposit as being the basis of the agreement between the parties.

In addition the Solicitors’ Demand Letter indicated as follows: We understand that you, on behalf of Island Ford, subsequently reneged on the agreement and offered a different vehicle in its place, being a green Mustang with a manual transmission. This is a “bait and switch”- a deceptive act - and a breach of the said agreement.

[ 59 ] The Claimant testified that he instructed his lawyers to prepare the Solicitors’ Demand Letter and that he agreed with its contents and in fact, he personally sent it to the Defendant via fax. [ 60 ] The Defendant did not provide the demanded confirmation and did not deliver the Vehicle, but of course did offer the two alternative Mustangs to the Claimant, which he rejected. [ 61 ] I understand that negotiations continued between the parties, with and without the assistance of lawyers, but no settlement resolution was reached. [ 62 ] There was apparently a third alternative Mustang located at the Applewood Ford Dealership in Port Hardy, which was available to the Defendant for sale to the Claimant.

By way of email exchanges between legal counsel on December 6, 2019, that third alternative was offered to the Claimant for the $30,000 “on the road price” but it was also rejected by the Claimant in the course of the negotiations between legal counsel. [ 63 ] As I understand it from the documentary evidence and the Ford Motors internal documentation, this third alternative was Kona Blue Mustang and with a 10-speed automatic transmission, but did not have the EcoBeast options or the Vehicle Upgrades.

The total Dealer invoice price was $32,770 and the MRSP was $34,299. [ 64 ] The Claimant’s Notice of Claim was filed December 17, 2020. [ 65 ] Based upon the documentary evidence presented to the court, the Vehicle was ultimately sold by Mainland Ford on August 22, 2020, to another third party buyer. The details are set out in a formal “Motor Vehicle Purchase Agreement” (the August 2020 MV Purchase Agreement).

The “Total Purchase Price” was shown to be $32,048 with a disclosed “Price of the Vehicle” at $24,696, plus accessories with a value of $4,800 for a total of $29,496, plus an additional $ 2,552 in administration fees, a “protection package”, a fuel fee and a tire disposal fee. Mainland Ford accepted a trade in of a 2013 Hyundai with an allowance given of $8,000. Additional Evidence in the Claimant’s Case The Fournier Report [ 66 ] The Claimant commissioned an expert’s report from The Fournier Auto Group Ltd. which was completed June 10, 2021, (the “Fournier Report”).

It was admitted into evidence as an expert’s report as part of the Claimant’s case.

The author of the Fournier Report, Robert Fournier was not called as a witness. [ 67 ] The stated purpose of the Fournier Report was as follows: …to read selected file material, analyse the data, and research the market value of similar 2019 Ford Mustang 100 A Package 2.3 L EcoBoost 10-Speed Automatic (Modified) 2 Door Fastbacks to determine the fair market value on the date of loss on November 21, 2019. [ 68 ] The motor vehicle subject of the Fournier Report was the Vehicle. [ 69 ] The Fournier Report and the opinion of the fair market value of the Vehicle was based upon the following relevant facts about the Vehicle:

a) the MSRP was approximately $32,885;

b) it had $6,125.49 in modifications installed;

c) there was a $5,000 cash rebate (from Ford Motors) available at the time of the loss; and

d) it was equipped with the 2.3L EcoBoost 10-Speed Automatic [transmission]. [ 70 ] The Fournier Report concluded that it was the author’s opinion that the Vehicle had a fair market value as at November 21, 2019, “in the range of $32,960 Canadian Dollars” plus taxes (the “Opinion of FMV Figure”). [ 71 ] The Claimant testified that his measure of damages suffered as a result of the Defendant failing to provide him with the Vehicle should be calculated as the difference between that Opinion of FMV Figure of $32,960 and what the Claimant says was agreed net amount of the Vehicle shown on the Offer to Purchase, being the Purported Purchase Price of $26,060.71, which equals $6,899.29 (all before taxes).

Other Evidence of the Claimant [ 72 ] In cross-examination, the Claimant stated that he presumed that the Defendant was selling him a Mustang “at their cost” but he had no idea how “their cost” was being calculated. He suggested it would be “their business’ cost”. He did not discuss this with Abraham Lee nor any other representative of the Defendant.

He contends that he had no reason to question the price contemplated in the Offer to Purchase, despite the fact that at some point he had become aware of the all of the Vehicle Upgrades nor did he ever discuss those with Abraham Lee. [ 73 ] The Claimant testified that he did not require any dealer financing to complete the purchase of the Vehicle, as he had available cash. He asserts that he was ready, willing and able to complete the purchase of the Vehicle at all material times up to and including the time that Vehicle was eventually sold by Mainland Ford in August 22, 2020.

The Claimant never directly approached Mainland Ford about the Vehicle. [ 74 ] The Claimant says that he abandoned his “Win My Ride” promotional scheme in the middle of December of 2019. He never did

purchase a Mustang for it or thereafter for himself. Other Evidence of the Defendant [75] Justin Pambrun’s further evidence is that the third alternative Mustang available from the Port Hardy dealership was “nearlyidentical” in terms of its options and pricing as set out in the Vehicle’s Original Window Sticker sent to the Claimant by Abraham Lee onthe afternoon of November 21, 2019. [76] Specifically, both Mustangs had the same engines and the same 10-speed automatic transmissions as well as the same exterior,interior, functional, safety/security and warranty features. The blue colour was a different shade.

The MSRP shown on the Vehicle’sOriginal Window Sticker received by the Claimant from Abraham Lee on November 21, 2019, was $32,885 and the MSRP on the thirdalternative Mustang was $34,299. [77] Of course, no mention was made on the Vehicle’s Original Window Sticker received by the Claimant on November 21, 2019, ofthe Vehicle Upgrades such as the EcoBeast package that had been installed by Mainland Ford.

No such upgrades had been installed onthe third alternative Mustang. [78] Justin Pambrun’s further evidence is that based upon the documentary evidence provided by Mainland Ford, when the Vehiclewas eventually sold by Mainland Ford in August 2020, it had been on the lot for close to two years.

That sale price was actually some$2,300 less than the amount that the Defendant had offered to pay to Mainland Ford at the outset to obtain the Vehicle. [79] Justin Pambrun provided details of the Defendant’s calculations of their “Total Dealer Gross Profit” on the Vehicle, on the thirdalternative Mustang and on another Mustang vehicle on the Defendant’s lot, which had several superior features than the stock version ofthe Vehicle, or the stock version of third alternative Mustang.

The Claimant sought to obtain this superior Mustang as a settlementvehicle; that proposal was rejected by the Defendant. [80] Using the original Dealer Invoice Costs for each of the three Mustang vehicles (which for the Vehicle was $31,472.00) and thenadding in the transportation fees and deducting the Ford Delivery Allowances (being the manufacturer’s allowances) produces a separate“Dealer Cost” figure for each of the three vehicles.

When each of these Dealer Cost figures has been deducted from it the negotiatedPurported Purchase Price of $26,060.71, which was used to produce the “$30,000 O.T.R.” figure discussed by the parties, the resultingnegative Total Dealer Gross Profit Figures are as follows:

a) for the Vehicle: a negative Total Dealer Gross Profit of $112.29;

b) for the third alternative Mustang: a negative Total Dealer Gross Profit of $1,419.29; and

c) for the superior Mustang: a negative Total Dealer Gross Profit of $7,496.29. [81] Justin Pambrun testified and the documentary evidence supports that the Defendant eventually issued its cheque to the Claimantas a full refund of the Deposit on March 10, 2021, instead of continuing to attempt to credit it back to the Claimant’s credit card, forwhich the Defendant did not have details. Burden of Proof [82] The burden of proof in a civil case rests with a claimant to prove their case on the standard of a balance of probabilities. TheSupreme Court of Canada in F.H. v.

McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 at paragraph 49, states: In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In allcivil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an allegedevent occurred. [83] Therefore, the Claimant must prove the existence of the facts and other essential elements upon which he relies in order tosucceed in his claim against the Defendant.

If he fails to do so, he cannot succeed. [84] What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt. That standard of proofapplies only in criminal trials. In civil trials the party who has the burden of proof on an issue must convince the finder of fact (herebeing the Court) that what she or he asserts is more probable than not, or to put it another way that the balance is tipped in his or herfavour [see: F.H. v.

McDougall, supra]. [85] The degree of probability required to meet the standard and to discharge this burden of proof has been defined by Lord Denningin the following terms: It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunalcan say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not. [see: Miller v. Minister of Pension, [1947] 2 All E.R. 372. at 374 (K.B.)] [86] In Smith v. Smith (SCC), [1952] 2 S.C.R. 312; [1952] S.C.J.

No. 25 (S.C.C.) Justice Cartwright ( as he then was)of the Supreme Court of Canada articulates the applicable test as follows: … that civil cases may be proved by a preponderance of evidence or that a finding in such cases may be made upon the basis of apreponderance of probability and I do not propose to attempt a more precise statement of the rule.

I wish, however, to emphasize that inevery civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonablysatisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment isformed including the gravity of the consequences of the finding.

[87] Sopinka, Lederman & Bryant: The Law of Evidence in Canada, Third Edition (LexisNexis Canada Inc., 2009) [“Sopinka et al.”]at ss. 5.52 and 5.53 provide the following useful

summary: [5.52] Simply put, the trier of fact must find that the existence of the contested fact is more probable than its nonexistence. Conversely,where a party must prove the negative of an issue, the proponent must prove its absence is more probable than its existence. [5.53] But how does a trier of fact determine if the standard has been met? Certainly not based on the number of witnesses or the volumeof evidence adduced. Also, if the nature of the inquiry is serious or the evidence adduced is very unsatisfactory, a jury may not besatisfied as to the existence of a disputed fact even though the proponent of the issue adduced a preponderance of evidence. [88] Sopinka et al. in

section 5.53 at footnote 135 go on to cite Dixon J. in Briginshaw v.

Briginshaw (1938), 60 C.L.R. 336 at 361 to362 (H.C.A.) for the proposition that there must be a subjective belief by the tribunal of the fact, expressed in the following words: The truth is that, where the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existencebefore it can be found… [89] If the evidence on an issue is evenly balanced, such that the trier of fact is unable to say where the balance of probabilities lies,then the decision on that issue must be made against the party who has the burden of proving it. [90] In deciding whether an issue has been proven on a balance of probabilities, the trier of fact must consider all of the evidencerelevant to that issue, no matter who produced it.

Analysis Assessing Credibility and Reliability of Witnesses [91] In this case, I have heard evidence that is conflicting on some material matters. Therefore, I must assess the credibility of thewitnesses who provided this conflicting evidence. [92] The Court can accept some, all or none of the evidence of a witness. In many cases credibility assessment is reasonablystraightforward. However, in others it is not. In most respects, this case falls into the first category. [93] The test for assessing the credibility of a witness is well known, if not always easy to apply. O'Halloran J.A. in Faryna v.

Chorny(1951), (BC CA), 4 W.W.R. (N.S.) 171 (B.C.C.A.) states as follows: The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existingconditions.

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of theprobabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [94] In this case, I do find at the end of the day that credibility of either of the two witnesses has been significantly impugned nor iseither attempting to deceive the Court. Any material disputes on the evidence are therefore best resolved by me considering bothwitnesses’ evidence in the context of the whole of the evidence to determine what makes sense.

Positions of the Parties The Claimant’s Position [95] The Claimant submits that there was a breach of a contract by the Defendant whereby he agreed to purchase and the Defendantagreed to sell him a “specified new model year EcoBeast Ford Mustang” which is alleged to be the Vehicle.

He seeks specificperformance or damages in lieu and the recovery of the Deposit and additional cost “incurred” to bring the matter to trial. [96] The basis of his damages is described above, but also includes alleged damages for his incurred legal fees for the lawyers heconsulted about the alleged breach of contract and who wrote the Solicitors’ Demand Letter, the cost of the Fournier Report; BC On-linesearches and costs of unsuccessful service attempts upon a witness who worked for Mainland Ford. The Defendant’s Position [97] The Defendant submits that:

a) there was no valid contract because there was “no consensus ad idem (meeting of the minds)” between the parties with respectto fundamental characteristics of the Vehicle;

b) alternatively, if there was a contract, it was an express or implied term that the completion of the contract was “fully subject tothe Defendant acquiring the Vehicle “as equipped in the window sticker, from the third-party Mainland Ford;

c) further and in the alternative, if there was a contract, it was for the “sale of the stock Mustang” without the AdditionalAccessories;

b) in the further alternative, if there was a contract both parties made a “mutual mistake” with respect Vehicle being the subjectmatter of the contract and relies on the doctrine of mutual mistake;

c) in the further alternative, if there was a contract for the Vehicle, the Claimant was aware the Vehicle “did not in fact match thecharacteristics as outline on the window sticker” and the Defendant relies upon the doctrine of unilateral mistake; and

d) finally, if there was a contract in place for the Vehicle, the contract was frustrated by the fact that significant accessories were

installed on the Vehicle by Mainland Ford and pleads and relies upon the Frustrated Contract Act, RSBC 1996 c. 166. [98] The Defendant further submits that the Claimant has suffered no damages or losses, but if so, then the Claimant has failed tomitigate, and further that such damages and losses are not reasonable and are too remote and not recoverable in law. The Issues for this Court to Decide [99] Therefore main issues for consideration and determination in this action to come to a decision are as follows:

a) Did the parties intend to create legal relations by way of a contract?

b) If so, whether a valid and binding contract exists?

c) If so, what was the form of that contract and what were the agreed terms of that contract?

d) If there was a contract, was it breached?

e) If it was breached, what is the appropriate remedy for its breach? Relevant Principles of the Law of Contracts [100] In making the required determinations this court must consider several fundamental principles of the law of contracts andultimately apply them to the facts that that the Court finds have been proven. [101] In Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc. 2009 BCSC 1303 (“Le Soleil”), the Honourable Justice GailDickson, then of the Supreme Court of British Columbia, at paragraphs 321 to 341 provides a comprehensive

summary and guide to thelaw of contracts which I find to be very useful. I have relied upon it in my analysis and in reaching my conclusions. In doing so, I havenot necessarily been required to consider or apply all of the principles that have been enunciated in Le Soleil. [102] In paragraphs 321 to 323, states the following fundamental principles of contractual relationships and obligations: 321 Courts strive to uphold contractual obligations solemnly and freely undertaken. They do not, however, impose them upon partieswho have not reached agreement on all essential terms: Catalyst Paper Corp. v.

Companhia de Navegacao Norsul, 2008 BCCA 336. 322 For parties to be bound in a contractual relationship there must be a manifest meeting of the minds. They must express themselvesoutwardly in a manner that indicates both an intention to be bound and reasonably certain mutually agreed terms: Klemke MiningCorporation v. Shell Canada Limited, 2007 ABQB 176, affirmed 2008 ABCA 257 . 323 These fundamental principles of contract law enable commercial life to operate in a fair, predictable and efficient manner.

Theyapply whether the purported contract in question is concluded in writing, orally, by conduct, or by a combination thereof. The keyquestion in all cases is whether an agreement has been reached on all essential terms, regardless of its form: Catalyst Paper Corp. supra;Periscan Financial Services Inc. v. 519090 B.C. Ltd., 2008 BCSC 707; Leong & Associates Actuaries & Consultants Inc. v. Watt, 2003BCSC 1885.

The Intention to Create Legal Relations [103] In paragraphs 324 to 335, under the heading “Intention to Create Legal Relations” Justice Dickson goes on to state as follows: 324 The test for determining the intention to create legal relations is objective. It is explained by G.H.L.

Fridman in The Law ofContract, 5th ed. (Toronto: Thomson Carswell, 2006) as follows: Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether the parties have indicated to theoutside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is notconcerned with the parties' intentions but with their manifested intentions.

It is not whether or not what an individual party believed orunderstood was the meaning of what the other party said or did that is the criterion of the agreement; it is whether a reasonable man inthe situation of that party would have believed and understood that the other party was consenting to the identical terms. 325 The objective test serves the main purpose of contract law: to protect reasonable expectations created by promises.

Accordingly, "thetest of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an enquiry into theactual state of mind of the promisor, but on how the promisor's conduct would strike a reasonable person in the position of thepromisee": S.M. Waddams, The Law of Contracts, 5th ed. (Toronto: Canada Law Book, 2005), cited in Hammerton v. MGM Ford-Lincoln Sales Ltd., 2007 BCCA 188. 326 If the parties have reduced the alleged agreement to writing, the starting point for analysis is the wording of the document itself.

Thewords used should be given their plain, literal and ordinary meaning, unless absurdity would result, and the contract should be construedin context and as a whole: A.L. Scott Financial (FIR) Inc. v. PDF Training Inc., 2004 BCSC 1646, at para. 105-107; B.G. ChecoInternational Ltd. v. B.C. Hydro and Power Authority, (SCC), [1993] 1 S.C.R. 12; Jardine v.

General HydrogenCorporation, 2007 BCSC 119 at para. 23. 327 If the parties' intent is not clear from the words of a written agreement, extrinsic evidence may be considered to assist in interpretingthe arrangement or to explain, without contradicting, the language of the contract. As a last resort, the principle of contra proferentemmay be applied to construe an ambiguity against the contract's drafter if the non-drafting party had no meaningful opportunity tonegotiate its terms: A.L. Scott Financial, supra; B.G. Checo International, supra; Jardine, supra; Hillis Oil & Sales Ltd. v.

Wynn'sCanada Ltd., (SCC), [1986] 1 S.C.R. 57, at para. 17; Duprey v. Seanix Technology (Canada) Inc., 2002 BCSC 1335, [2002] B.C.J. No. 2118 (S.C.).

328 The

interpretation of oral contracts turns on the same essential principles: Lawson Graphics Pacific Ltd. v. Simpson (1987), (BC SC), 12 B.C.L.R. (2d) 126. If the alleged agreement has not been reduced to writing, the Court must consider what theparties said and did and assess objectively whether, in context, their words and actions establish an intention to be bound: PeriscanFinancial Services Inc., supra; Leong & Associates, supra. The genesis and aim of the transaction is an aspect of the relevant context forconsideration: Canada Square Corporation, supra.

The credibility of witnesses will be particularly important and differing versions ofevents will increase the difficulty of establishing that an enforceable bargain was made: Anchorage Management Services Ltd. v. 465404B.C. Inc., 1999 BCCA 771 , [1999] B.C.J. No. 2976, 1999 CarswellBC 2947 (C.A.). 329 When the Court considers the parties' manifest intentions, it may be required to determine whether they intended to create a bindingcontract or simply reached a basis for future agreement.

This question often arises where, as in the Specific Performance Action, thealleged agreement contemplates the execution of a further formal contract. 330 It is not necessary for every conceivable matter to be resolved between the parties before an enforceable contract is created. The lawdoes not, however, recognize an "agreement to agree". The question for determination is whether the parties have reached agreement onall matters that are vital or fundamental to the arrangement or whether they intended to defer legal obligation until a final agreement hasbeen reached: Boult Enterprises Ltd. v.

Bissett (1985), (BC CA), 21 D.L.R. (4th) 730. 331 The classic statement of the law is found in Van Hatzefeldt-Wildenburg v. Alexander, [1912] 1 Ch. 284 at pp. 288-289: It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate theexecution of a further contract between the parties, it is a question of construction whether the execution of the further contract is acondition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transactionalready agreed to will in fact go through.

In the former case there is no enforceable contract either because the condition is unfulfilled orbecause the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to themore formal document may be ignored. 332 If agreement on all essential terms is established, on occasion the law will permit certain terms to be implied to give businessefficacy to the bargain: Catalyst Paper Corp., supra, at para. 27.

For example, in Canada Square Corporation, supra, a case involving anagreement to lease, the Court implied terms such as the dates for payment of rent. A term should not be implied, however, unless it isnecessary: Alpine Veneers Ltd. v. Reed Lumber Co. Ltd., [1983] B.C.J. No. 2289 (C.A.), para. 33-34.

In addition, no term should beimplied where it would have the effect of rewriting the bargain or contradicting its other terms: Alpine Veneers, supra, at para. 33. 333 In some cases where execution of a formal contract is contemplated, a draft contract containing additional or different contractualterms may be produced and delivered. In such circumstances, if the Court is satisfied, on objective analysis, that all essential terms wereagreed and the new terms do not amount to a repudiation or admission that no agreement was reached earlier, the agreement will bebinding: Perry v.

Suffields, Limited, [1916] 2 Ch. 187 (C.A.); Horsnail v. Shute (1919), 27 B.C.R. 474 (C.A.); Klemke MiningCorporation, supra; Lake Ontario Cement Co. v. Golden Eagle Oil Co. Ltd., (1974), (ON SC), 46 D.L.R. (3d) 659. Onthe other hand, if the Court concludes that key terms remained open for negotiation an intention to be create legal relations will not befound: "Bay Ridge" (The), [1999] 2 Ll.L. Rep 277; Pitt Air Ltd. v. Pitt Meadows Airport Society, 2006 BCSC 1230 , [2006]B.C.J. No. 1870, 2006 CarwellBC 2031 (S.C.), affirmed [2007] B.C.J.

No. 36, 2007 CarswellBC 34 (C.A.); Bawitko Investments Ltd. v.Kernals Popcorn Ltd. (1991), (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.). 334 In order to determine whether a binding contract was created the Court may consider both the parties' conduct leading up to andfollowing conclusion of the alleged agreement. For example, if the parties have acted on their understanding of agreement and incurredexpenses the Court may be reluctant to find there was only a non-binding agreement to agree: Leong & Associates, supra.

On the otherhand, if further negotiations took place after the alleged agreement was concluded it may suggest that definitive agreement was neverachieved. Subsequent negotiations are not, however, necessarily inconsistent with a fully formed contract: Ridgeway-PacificConstruction Ltd. v. United Contractors Ltd., [1978] B.C.J. No. 478 (S.C.). 335 In The Law of Contract, 11th ed. (London: Sweet & Maxwell, 2003) Sir Guenther Treitel described the analytical approach to beadopted where subsequent negotiations form part of the relevant factual matrix.

He wrote: When parties carry on lengthy negotiations, it may be hard to say exactly when an offer had been made and accepted. As negotiationsprogress, each party may make concessions or new demands and the parties may in the end disagree as to whether they had ever agreedat all. The court must then look at the whole correspondence and decide whether, on its true construction, the parties had agreed to thesame terms ... the Court will be particularly anxious to reach such a conclusion where the performance which was the subject-matter ofthe negotiations has actually been rendered ...

Business men do not, any more than the courts, find it easy to say precisely when they have reached agreement, and may continue tonegotiate after they appear to have agreed to the same terms. The court will then look at the entire course of the negotiations to decidewhether an apparently unqualified acceptance did in fact conclude the agreement. If it did, the fact that the parties continued negotiationsafter this point will not normally affect the existence of the contract; it will do so only if the continuation of the negotiations can beconstrued as an agreement to rescind the contract.

A fortiori, the binding force of an oral contract is not affected or altered merely by thefact that, after its conclusion, one party sends to the other a document containing terms significantly different from those which had beenorally agreed. as cited in Norske Skog Canada Limited v. Companhia de Navegacao Norsul, 2007 BCSC 610. Certainty of Terms [104] Under the heading “Certainty of Terms” Justice Dickson provides the following additional guidance at paragraphs 339 to 341: 339 The Court cannot enforce an apparent bargain if its terms are unclear: Anchorage Management, supra.

This is so because it cannotbe said that the parties came to a meeting of the minds where the terms of the alleged agreement are vague, ambiguous or

incomplete: Klemke, supra. As Viscount Maughm explained in G. Scammell & Nephew Ltd. v. Ouston, [1941] A.C. 251 (H.L.): In order to constitute a valid contract the parties must so express themselves that their meaning can be determined with a reasonabledegree of certainty. It is plain that unless this can be done it would be impossible to hold that the contracting parties had the sameintention; in other words, the consensus ad idem would be a matter of mere conjecture. 340 As noted, however, there are enforceable contracts in which some matters are left to be determined in the future.

The contract willnot fail for uncertainty so long as an effective mechanism for their determination is agreed. In Hillas & Co., Ltd. v. Arcos, Ltd., [1932]All E.R. 494 the House of Lords stated: Business men often record the most important agreements in crude and

summary fashion; modes of expression sufficient and clear tothem in the course of their business may appear to those unfamiliar with the business far from complete or precise.

It is, accordingly, theduty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects ... that ..., however,does not mean that the court is to make a contract for the parties, or to go outside the words they have used, except in so far as there areappropriate implications of law, as for instance, the implication of what is just and reasonable to be ascertained by the court as a matter ofmachinery where contractual intention is clear but the contract is silent on some detail.

Thus in contracts for future performance over aperiod, the parties may not be able nor may they desire to specify many matters of detail, but leave them to be adjusted in the workingout of the contract. Save for the legal implication I have mentioned, such contracts might well be incomplete or uncertain; with thatimplication in reserve they are neither incomplete nor uncertain. 341 Although courts will not enforce unclear contracts, they do not expect commercial documents to be drafted with strict precision.

Onthe contrary, courts strive to preserve bargains if, on close analysis, definite meaning can be discerned from their terms. This approach isreflected in Canada Square Corp., supra, where Morden J.A. stated: In this case there is no doubt that the document of October 14, 1969, as an agreement to lease, is crudely expressed and contains somevery loose language. Further, a more sophisticated document would probably have covered several other matters in addition to thosedealt with in it.

Nonetheless, accepting that the parties intended to create a binding relationship and were represented by experiencedbusinessmen who had full authority to represent their respective companies, a Court should not be too astute to hold that there is not thatdegree of certainty in any of its essential terms which is the requirement of a binding contract. Mistake [105] Under the heading of “Mistake” Justice Dickson says as follows at paragraphs 360 to 361 360 A contract is void if it is concluded based on a common and mistaken assumption as to the existing facts: Seppanen v. Seppanen, (BC SC) [1991] B.C.J.

No. 2165 (S.C.). The doctrine of mistake does not apply, however, where the parties haveallocated the risk of a particular eventuality. 361 In Stellar Properties Ltd. v. Botham Holdings, Ltd., (BC CA) (para 51) ., [1994] B.C.J. No. 639 Rowles J.A.explained the doctrine of mistake by quoting from Chitty on Contracts as follows: The question of the effect of mutual mistake in the law of contract is basically one of the allocation of risk.

In most situations one or otherof the parties will be considered to have assumed the risk of the ordinary uncertainties which exist when an agreement is concluded.Where contracts of sale of goods are concerned, for example, the purchaser will normally be held to have assumed the risk that the goodsmay be defective, except in so far as the vendor has assumed that risk by giving an express or implied warranty to the contrary effect. Amutual misunderstanding, equally reasonable on the part of each party, will not nullify the agreement.

Cases may, however, arise inwhich the mistake is such that the obligation which it is sought to enforce is fundamentally different from that which was originallycontemplated in the agreement. If, then, the terms of the contract, construed in the light of circumstances existing at the time it wasmade, do not indicate that one or other of the parties took the risk that the facts might be otherwise than as both had assumed them to be,the contract will be void for mistake.

Findings With Respect to Facts in Dispute [106] Based on all of the evidence that I accept, the parties were negotiating for the sale and purchase of a new Ford Mustang withcertain features and characteristics set forth in the Vehicle’s Original Window Sticker sent by Abraham Lee to the Claimant onNovember 21, 2019. The sale and purchase price was $30,000 “On the Road.” [107] The Offer to Purchase dated November 21, 2019, was sent by the Defendant’s sales representative to the Claimant setting out theproposed financial terms of the transaction.

The Offer to Purchase also contained reference to the last 4 digits of the Vehicle’s VIN.Neither party ever signed the Offer to Purchase. [108] The features and characteristics of the Vehicle set forth in the Vehicle’s Original Window Sticker received by the Claimant aspart of a text message sent on or about 3:46 p.m., November 21, 2019, did not include nor refer to the “EcoBeast” package nor to any ofthe other the Vehicle Upgrades nor any references to these or any other enhancements. [109] There is no doubt that the Ford Mustang that was the subject of the negotiations was the Vehicle.

It was understood by bothparties that the Vehicle was in the possession of another Ford dealer and would have to be acquired from that third party dealer by theDefendant in order to complete the sale. It is also quite apparent that neither the Claimant nor any representative of the Defendant hadever viewed or inspected the Vehicle in person. The name of the third party Ford dealer (in this case Mainland Ford) was not disclosed tothe Claimant.

He was not invited nor told by the Defendant’s representatives to view the Vehicle on line or in person. [110] The Deposit amount was processed through the Claimant’s credit card at 4:19 p.m. on November 21, 2019. [111] Using the limited amount of disclosed information about Vehicle’s VIN number the Claimant was adept enough to actually find

and view the Vehicle on the Mainland Ford’s website. It is not entirely clear when that occurred but I find that it most likely occurredafter the conclusion of the negotiations and the Deposit had been processed on the Claimant’s credit card. [112] Thereafter, when the Claimant viewed the Vehicle on line, he became aware of the significant number of additional upgradedfeatures possessed by the Vehicle, such as the EcoBeast package, that did not appear in the Vehicle’s Original Window Sticker for theVehicle that he had received Abraham Lee.

Analysis and Application of the Law to the Facts [113] Significant reliance is place by the Claimant on the fact that the Offer to Purchase and of course the Vehicle’s Original WindowSticker provided to him referenced the Vehicle’s VIN. The Claimant apparently reasons that it was the specific Ford Mustang with thatVIN which forms the basis of the negotiations and any resulting contract.

Thus, as I understand this argument, it is the Vehicle’s featuresand accessories that are to be actually found on that particular Ford Mustang at the time of the consummation of the sale and purchaseand not as such are described on the Vehicle’s Original Window Sticker provided to him. [114] With the greatest of respect, I find that such reasoning has no merit.

I am quite certain that the Claimant would not be adoptingthat reasoning (and rightly so) if it turned out to be that the features and accessories described in the Vehicle’s Original Window Stickerhad actually been removed from the Vehicle or were of lesser quality or fewer in number. In other words, on the basis of this faultyreasoning, although the Vehicle being purchased by Claimant would be of lesser quality or value than described in the Vehicle’s OriginalWindow Sticker, the VIN would be entirely decisive of the subject matter of the negotiations or any resulting contract.

In my view, theparties did not reach such an agreement. [115] On the whole of the evidence that I accept, I conclude that a contract was formed between the parties. I do so on the followingbasis and a determination that the following exists:

a) On an objective reasonable bystander test that there was an outward expression of and a communication of the parties’ intentionto create a contract and the terms of that contract;

b) The parties have evinced clear agreement on the essential terms of the intended contract;

c) The overall conduct of both parties when considered assists in establishing a binding contract; and

d) On an objective test basis, the acceptance of the Offer to Purchase may be implied from the conduct of both the Claimant andthe Defendant. [116] Specifically, I find that the contract in this case was partially in writing and partially oral. It was for the sale and purchase a new2019 Ford Mustang for an agreed inclusive purchase price of $30,000 “on the road” as set out in the Offer to Purchase.

It was agreed tohave the accessories and features described in the Vehicle’s Original Window Sticker provided to the Claimant on November 21, 2019.Those accessories and features did not include the EcoBeast package nor any of the other Vehicle Upgrades. Thus the subject matter wasto be what has been characterized in the evidence and in submissions as a “stock” Ford Mustang. [117] The Vehicle, as it turned out, was not that “stock” Ford Mustang.

It was something substantially more because of the addition ofthe Vehicle Upgrades and thereby putting it beyond the scope of what the parties agreed to as the subject matter of the sale and purchase. [118] I have concluded that by way of the Defendant’s offerings to make available for purchase by the Claimant, either the second orthird alternative Mustangs, the Defendant fulfilled its obligations under the contract.

It was the Claimant who wrongly and unreasonablyrejected those alternative Mustangs and caused the breach. [119] If I am wrong in my conclusion that the parties entered into such a contract, then on the basis of all of the evidence that I canaccept, this matter may be decided by application of the principles of mistake in contract. The contract would then be set aside on thisbasis. [120] In addition to the above cited provisions of paragraphs 360 and 361 of Le Soleil , I have the guidance of Justice Donald inSeppanen v. Seppanen, (BC SC), [1991] B.C.J.

No. 2165 wherein he states as follows: The three types of mistake in contract are described by the authors of Cheshire, Fifoot and Furmston's Law of Contract (11th ed.)(London: Butterworths, 1986) at pp. 217- 218: In common mistake, both parties make the same mistake. Each knows the intention of the other and accepts it, but each is mistakenabout some underlying and fundamental fact... In mutual mistake, the parties misunderstand each other and are at cross purposes... In unilateral mistake, only one of the parties is mistaken. The other knows, or must be taken to know, of his mistake.

Suppose, forinstance, that A agrees to buy from B a specific picture which A believes to be a genuine Constable but which in fact is a copy. If B isignorant of A's erroneous belief, the case is one of mutual mistake, but, if he knew of it, of unilateral mistake. [121] On the whole of the evidence that I accept, I can also conclude that both parties were mistaken about some underlying andfundamental fact, namely the subject matter and the nature of the Ford Mustang that was the object of their negotiations.

The Claimantthought it was a Ford Mustang with the EcoBeast package and the Defendant thought it was a stock Ford Mustang. Therefore, I can findthat this would fall into the category of common mistake. [122] If I am wrong in my classification of the type of mistake, I would then also follow the reasoning of Justice Donald in Seppanenstated as follows: Should I be wrong in my classification, I would-nevertheless strike down the contract on the reasoning expressed by McLachlin C.J.S.C.

(as she then was) in First City Capital Ltd. et al. v. British Columbia Buildings Corp. (1989), (BC SC), 43 B.L.R.29 (S.C.) at p. 37: In

summary therefore, the equitable jurisdiction of the Courts to relieve against mistake in contract comprehends situations where oneparty, who know or ought to know of another' s mistake in a fundamental term, remains silent and snaps at the offer, seeking to takeadvantage of the other's mistake.

In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract. [123] Therefore, the contract should be set aside on this basis. [124] I reject the Claimant’s contention that the Defendant’s offerings of the second and third alternative Mustangs amounted to “a ‘baitand switch’- a deceptive act.” Furthermore, I reject any suggestion that that the Defendant’s advertising offering for sale “Mustangs atCost” was misleading.

Conclusion and Orders [125] The Claimant’s claim against the Defendant is dismissed in its entirety. [126] The Defendant is entitled to receive forthwith from the Claimant its filing fee for its Reply and reasonable service expenses asdetermined by the Registrar. __________________________________ The Honourable Judge J.P. MacCarthy Provincial Court of British Columbia