Feng v. Yang Date:, 2012 BCPC 127

Citation: Feng v. Yang Date: 20120501 2012 BCPC 0127 File No: 1138014 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HAO YI FENG CLAIMANT AND: FAN YANG DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP BARBARA CORNISH Appearing on their own behalf: Hao Yi Feng Appearing for the Defendant: No One Appeared Place of Hearing: Vancouver , B.C.

Date of Hearing: April 4, 2012 Date of Judgment: May 1, 2012 Introduction [ 1 ] The Claimant, Hao Yi Feng, bought a vehicle (the “Vehicle”) from the Defendant, Fan Yang, and in this Action seeks the return of a portion of the purchase price in the amount of $3,000.00. The basis for the Claim is succinctly set out in the Claimant’s Statement of Facts appended to his Trial Statement as follows: “I bought a Lincoln car (Zephyr, 2006) from Yang Fan with the price of $15,000.00 Canadian dollars.

Before I paid it he told me the road haul of this vehicle is 46,000 kilometers; also, the road haul of this vehicle on the document of ICBC is 46,000 kilometers. But after I got the vehicle I found the road haul on the dashboard is 46,000 miles, which is 74,000 kilometers. Car dealers told me that this vehicle with 74,000 kilometers road haul values $12,000.00 Canadian dollars. But it would be worth $15,000.00 if the road haul is only 46,000 kilometers.

Therefore, the price difference between these two road hauls is over $3,000.00 Canadian dollars.” [ 2 ] For his part, the Defendant did not file a Trial Statement or appear at the expedited trial held on April 4, 2012, but did file a Reply to the Notice of Claim which provides as follows: “The Claimant completed and signed the vehicle transfer and agreed to purchase this Lincoln Zephyr as on the date of September 25, 2011. Claimant and I both reviewed the condition and odometer of this vehicle before signing the vehicle transfer form.

The vehicle selling price was $6,000 plus tax therefore the information provided by the Claimant is not true. Regarding the Claimant’s point of view, vehicle with 72,000 km is worth $12,000.00 plus tax. Therefore, the Claimant still own [sic] $6,000.00 towards me as regarding on the vehicle transfer form.” [ 3 ] On the pleadings, no Counterclaim is advanced by the Defendant. The Evidence [ 4 ] At trial, the Claimant advised that English was not his first language and all of the proceedings were translated by a certified translator who accompanied him.

In addition to filing a Trial Statement, he gave oral evidence and also brought a witness, Gu Shun. [ 5 ] The Claimant is a young man who came to study and live in Vancouver in early 2011. His evidence was that the Defendant is a relative of his then landlord and that he first met him and saw the Vehicle in April or May of 2011. At that time, the Claimant did not have a full driver’s license but did obtain one by the end of August 2011. Shortly thereafter, he and the Defendant discussed the potential sale of the Vehicle.

The Claimant stated that he had never purchased a car before and, in fact, did not know much about cars at all, but he did check the outside of the Vehicle and also test drove it before agreeing to the purchase. [ 6 ] The Claimant appended photographs of the Vehicle dashboard and odometer to his Trial Statement dated March 15, 2012. The odometer reading depicted is as follows: “47,813.8 mi”. At trial his evidence was that during the test drive the odometer reading was “46,000 mi” and that he specifically asked the Defendant what that meant and that the Defendant replied “46,000.00 kilometers”.

His evidence was that since he did not know much about cars, he “just trusted” the Defendant that what he said was correct. He candidly admitted, however, that he was aware that the symbol for kilometers was “km” and not “mi”. He also said that this trust in the Defendant was why he did not have anyone inspect the Vehicle or ask to see the Defendant’s purchase documents before agreeing to buy. [ 7 ] On the issue of price, the Claimant stated that he had “many discussions” with his friends and was satisfied that $15,000.00 was a good price for a car with that number of kilometers on the odometer.

He was, however, waiting for money from his parents and did not have sufficient funds for the purchase. He therefore arranged to borrow $15,000.00 from a friend, Gu Shun. The evidence of Mr. Shun is discussed below. [ 8 ] A copy of the ICBC Vehicle Transfer Tax form was also attached to the Claimant’s Trial Statement. It is a printed form where the salient information is h and written and signed by the parties to the transaction. It was date stamped September 25, 2011.

In the portion of the document entitled “Seller Information and Vehicle Declaration” the Defendant’s name and address are written together with his driver’s license information. There is also a

section entitled “odometer reading” with two separate boxes labeled “km” or “mi”. The box “km” is ticked and the number 46,000 written next to it. Directly above the seller’s signature are the words:

“I/we seller(

s) certify that we are the registered owner(

s) of the described vehicle and that I/we are entitled to sell it and that the information above is true”. [ 9 ] In the portion of the document entitled “Purchaser Information and Tax declaration” the Claimant’s name and address appear. As noted above, it was the same address as that of the Defendant seller. The purchase price is stated to be $6,000.00 and a box, next to which are the words: “Stated purchase price below market value?”, is ticked. Directly above the purchaser’s signature are the words: “I/we the purchaser(s)…apply … for vehicle registration or transfer of registered ownership of the vehicle described above and by my/our signature(

s) declare that the information included above is true.” [ 10 ] The Claimant testified that the Defendant filled out all of the information on the Transfer Tax form and that he did not read it but just signed his name. His evidence was that he first became aware that the odometer reading was not, in fact, expressed in kilometers, about a month after the purchase when a friend who was in the car with him pointed out that it was in miles. The Claimant then asked the Defendant for a copy of his purchase papers and found out that the car “had over 60,000 kilometers” when the Defendant purchased it.

No documents were submitted at trial to corroborate this allegation. The Claimant did, however, submit two computer printouts of 2006 Lincoln Zephyrs for sale in March 2012. One of these cars was listed as having 58,000 km for an asking price of $12,500.00 and the second, as having 75,910 km for an asking price of $11,995.00. The Evidence of Gu Shun [ 11 ] On the issue of the purchase price, Mr. Shu’s evidence was that the Claimant was “a friend of a friend”. In September 2011 the Claimant told him that his parents had not sent the expected funds and so he agreed to lend him the money for the Vehicle’s purchase.

At trial he produced a handwritten document dated September 23, 2011, written in Chinese which he advised was an “IOU” executed by him and the Claimant. The translated document provided for a loan of $15,000.00 of which $5,000.00 was to be repaid within one week of the purchase and the remaining $10,000.00 by February 2012. His evidence was, however, that the only money he has received from the Claimant was a bank draft for $6,000.00 dated March 27, 2012. The original, uncashed bank draft for this amount was produced at trial. [ 12 ] Mr.

Shu’s evidence was that after signing the IOU he, together with the Claimant and Defendant, drove in the Vehicle to his bank and he obtained a bank draft for $14,500.00 made payable to the Defendant. In addition, Mr. Shu referred to two pages of his banking documents attached to the Claimant’s Trial Statement which appear to reflect a transfer of $14,500.00 to Yang Fan on September 23, 2011.

Issues to be Decided [ 13 ] As in any civil Action, the Claimant is required to prove his case on the balance of probabilities. [ 14 ] The essence of the Claimant’s case is his allegation that the Defendant misrepresented the Vehicle’s odometer reading to him and that, as a result, he paid too much for the Vehicle. [ 15 ] The law of misrepresentation finds expression in both contract and tort. Generally, however, a material misrepresentation will allow the wronged party to set aside or rescind a contract and return the parties to their original positions.

Alternatively, a party can simply seek an award of damages to compensate them for any losses. In this case the Claimant is seeking the latter remedy. [ 16 ] Regardless of the specific remedy sought, the Claimant must establish that:

a) there was a material misrepresentation or false statement on the part of the Defendant;

b) the Claimant reasonably relied on this statement; and

c) the Claimant suffered damages as a consequence.

[17] In order to be material, the impugned statement must be of such a nature that it would be likely to induce a person to enter intoa contract. Thus, statements relating to trivial or irrelevant matters are not material. In a number of cases the courts have held that theaccuracy of a figure recorded on an odometer is an important or material consideration to any purchaser. See for example: BirchwoodPontiac Buick Ltd v. Hasid (1997), 35 CCLT (2d) 54 (Man QB); O’Regan’s Lexus Toyota v. Goomar, [2001] N.S.J. No 532 (Prov Ct.).

In this case, I find that the accuracy of the odometer reading was similarly a material consideration to the Claimant. [18] If the Claimant establishes a material misrepresentation he must still establish that he was induced to enter into the sale as aresult of the misrepresentation. Put another way, he must establish that he did, in fact, rely on the misrepresentation.

The necessity ofproving reliance is noted in Cheshire , Fifoot & Furmston’s Law of Contract (Butterworths, 11 ed., 1986) at p 262: “A representation does not render a contract voidable unless it was intended to cause and has, in fact, caused the representee to make thecontract. It must have produced a misunderstanding in his mind and that misunderstanding must have been one of the reasons whichinduced him to make the contract.

A false statement, whether innocent or fraudulent does not per se give rise to a cause of action.”(emphasis added). [19] Whether there has been reasonable reliance is a question of fact to be inferred from all of the circumstances of the case and allof the evidence adduced at trial: L.K. Oil & Gas Ltd. v. Canalands Energy Corp. et al (1989), 1989 ABCA 153 , 68 Alta L.R.(2d) 269 (C.A.) Discussion [20] At the heart of the Claimant’s case is his assertion that the odometer was calibrated in miles and not kilometers.

As proof ofthis fact the Claimant has provided photographs of the Vehicle dashboard and odometer which shows the distance recorded and next to ita symbol “mi”. From these photographs he asks that I infer that the odometer was, in fact, calibrated in miles. There is no suggestion onhis part that the odometer was faulty or inaccurate. As such, based on these photographs I accept that the odometer recorded theVehicle’s distance in miles and not kilometers. [21] The Claimant alleges that he was misled by two separate representations on the part of the Defendant.

The first instance issaid to have occurred during the test drive of the Vehicle when the Defendant told him that notwithstanding the symbols “mi” on theodometer, the Vehicle had 46,000 kilometers on it. The second instance was when the Defendant filled out the Tax Transfer form,certifying in writing that the vehicle odometer recorded “46,000 km”. The Transfer Tax Form [22] Plainly the reference on the Transfer Tax form to "46, 000 km" is incorrect and I accept that it misrepresents the trueodometer reading.

It is clear, however, that the Claimant did not rely on this statement prior to deciding to buy the Vehicle. In fact, his evidence was that he didn’t even read this document before signing it. As noted, reliance on the misrepresentation is an essentialelement of this claim and I find as a fact that there was no reliance on the written statement of the odometer reading on the Transfer Taxform. The Test Drive [23] The Claimant’s uncontested evidence is that during the test drive the Defendant told him that the Vehicle distance was 46,000kilometres.

As noted, the same statement is made on the Transfer Tax form and, in the absence of any contrary evidence, I accept thatthe Defendant made this statement to the Claimant during the test drive. [24] While I am satisfied that the Defendant likely stated the Vehicle’s distance in kilometres, I have some difficulty accepting thatthe Claimant was, in fact, misled by that statement. This is not a case where the Claimant did not have the opportunity to examine theodometer at any time before the purchase.

To the contrary, the Claimant admits that when he was in the Vehicle with the Defendant, hesaw the odometer and the reference to “mi” and actually pointed it out to the Defendant, but nevertheless simply accepted theDefendant’s assertion that the recorded distance was, in fact, in kilometers. [25] In Faryna v Chorny, (BC CA), [1951] B.C.J.

No. 152 (C.A.) our Court of Appeal held that the test forassessing the credibility of a witness is whether the evidence of that witness is in “harmony with the preponderance of the probabilitieswhich a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

Applying the test in Faryna to this case, inmy view, it defies common sense to suggest that the Claimant would simply accept, without any further explanation, that the distancerecorded on the Vehicle’s odometer was actually in kilometers - particularly when evidence to the contrary was clearly in view for him tosee and when he knew that the symbol for kilometers was “km” not “mi”. [26] While a lack of due diligence in verifying the truth of a statement is not generally a defence to an action for misrepresentation(Mason v. King, [2011] B.C.J.

No. 1371 (P.C)), evidence establishing that the Claimant had actual knowledge of facts which show thestatement to be untrue has long been considered as part of the relevant assessment of the Claimant’s case (see: Redgrave v. Hurd (1881),20 Ch. D. 1 (C.A.). In this case, the Claimant had actual knowledge of the facts which demonstrated that the claimed misrepresentation

was untrue. [ 27 ] In addition, given the stated relationship between the parties, it makes no sense that the Claimant would, in his words, simply “trust” the Defendant’s contrary version of the facts. Mr. Yang was a relative of the Claimant’s landlord whom he had only known for a few months and the vendor of the Vehicle. He was not a trusted friend or family member. Nor did the evidence establish that he was a professional sales person or someone who had or held himself out as having, relevant experience or qualifications with cars.

In short, the Claimant provided no plausible explanation for why he chose, when faced with directly contrary facts, to blindly “trust” the Defendant on such a critical issue. [ 28 ] Applying the test in Faryna , supra, I find that the Claimant’s evidence is not “in harmony with the preponderance of probabilities which a practical and informed person would recognize as reasonable” and I do not accept that he was, in fact, misled by the Defendant as to the odometer reading of the Vehicle prior to entering into the contract. [ 29 ] Finally, to succeed in this Action the Claimant must also prove that he suffered damages as a consequence of his reliance on the Defendant’s statement.

In a nutshell, the Claimant’s position on damages is that he paid the Defendant $15,000.00 for the Vehicle and ought only to have paid $12,000.00. There was no evidence adduced at trial, however, that the Claimant, in fact, paid anything to the Defendant. The only evidence was that Mr. Shu provided a bank draft to the Defendant in the amount of $14,500.00. This Action is not brought by Mr. Shu, it is brought by the Claimant and the only evidence of any payment made by the Claimant related to the Vehicle was of a $6,000.00 uncashed bank draft dated 6 months after the purchase and made payable to Mr. Shu.

On that issue, I note that in the “IOU” which the Claimant says he gave to Mr. Shu for the purchase price there is no reference to any payment installment in the amount of $6,000.00. That amount does, however, correspond with the purchase price stated on the Tax Transfer form.

In short, even if I accept that the Claimant paid the Defendant any money for the Vehicle, it is equally plausible, on the evidence, that, in fact, the amount paid was only $6,000.00. [ 30 ] After considering all of the evidence on the issue of damages and applying the test in Faryna , supra , I find that the Claimant has not proved that he paid the Defendant the sum of $15,000.00 for the purchase of the Vehicle and thus that he has, in fact, suffered the loss claimed.

Summary and Conclusion [ 31 ] In

summary, I find that the Claimant has not proven on a balance of probabilities that the Defendant made a misstatement of a material fact which induced him to enter into the contract of purchase and sale for the Vehicle or that he suffered damages as a consequence. Accordingly, the Claim is dismissed. ___________________ Barbara Cornish Adjudicator