Kim v. Suzuki Canada Inc. Date:, 2013 BCPC 6

Citation: Kim v. Suzuki Canada Inc. Date: 20130114 2013 BCPC 0006 File No: 1240329 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MICHELE KIM CLAIMANT AND: SUZUKI CANADA INC. DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP KAREN NORDLINGER Appearing on their own behalf: Michele Kim Counsel for the Defendant: James Alen Place of Hearing: Vancouver , B.C. Date of Hearing: December 5, 2012 Date of Judgment: January 14, 2013

[ 1 ] The Claimant purchased a new 2009 Suzuki motorcycle from a Suzuki motorcycle dealership, Richmond Motor Sports for $8,550. The Claimant rode the motorcycle home from the dealership and, on the way home, the motorcycle engine shut off and would not restart. The motorcycle was picked up by the dealership, who advised the Claimant that the make and model of the motorcycle had been known to have some issues with the regulator/rectifier.

They replaced the regulator with a 2010 regulator/rectifier. [ 2 ] The Claimant continued to experience difficulties with the motorcycle in that the engine would shut off at various times, particularly in the heat. The Claimant did not feel that she could ride the bike alone for any extended period of time. On occasion, she would have difficulty restarting the motorcycle and sometimes had to start it by “a run start” of the motorcycle. [ 3 ] The Claimant left the motorcycle with the dealership, Richmond Motor Sports, on a number of occasions, but the dealership was unable to identify any defects.

In April, 2011, the dealership ceased operations. The Claimant winterized and stored her motorcycle for the winter season of 2011. When she picked it up on April 2, 2011, she rode the motorcycle for approximately an hour, at which time, again, the motorcycle engine shut off. It did so again on a couple of occasions in April, 2011. [ 4 ] In late April, 2011, the Claimant was advised by another Suzuki authorized dealer, Modern Motorcycles, that there had been a recall notice concerning the regulator/rectifier of her make and model of motorcycle.

The motorcycle’s regulator/rectifier of her make and model of motorcycle. The motorcycle’s regulator/rectifier was replaced again by Modern Motorcycles. The Defendant asked the Claimant to make the motorcycle available for inspection at the Suzuki dealership for a two-week period. Again, the Defendant was unable to identify any defects in the motorcycle that would result in the difficulties the Claimant was experiencing. The removed regulator/rectifier was tested and found to perform “flawlessly”.

There is no evidence of any further difficulties with the motorcycle after the second replacement of the regulator/rectifier. [ 5 ] Ultimately, the Claimant traded in her motorcycle for a new motorcycle on June 15, 2011. She disclosed the ongoing issues with the motorcycle and was able to obtain a trade-in value of $6,250. [ 6 ] The Claimant’s claim is for: (

a) Depreciation/loss on trade-in in the amount of $2,546.60 (The Claimant has included the cost of guards she added); (

b) Damages for loss of use, 797.20; (

c) One month of insurance premium paid during periods of repair and/or inspection, $181.68 in 2010 and $115.52 in 2011; (

d) loss of use of the vehicle, $500; (

e) winterization costs for the 2011 winter season, $330.85; plus filing fees and service fees. [ 7 ] The Defendant does not necessarily dispute that the Claimant had difficulties with the motorcycle, but says that those difficulties were related to the Claimant’s use and maintenance of the motorcycle. It submits that the bike may not have been properly winterized with a proper charge being kept on the battery, that the aftermarket short adjustable levers installed by the Claimant on the bike may have contributed to the problem.

The motorcycle was tested on two occasions by the Defendant and no defects in the motorcycle were noted. The Claimant disputes that the aftermarket levers or the winterizing of her motorcycle contributed to the problem. [ 8 ] The Claimant relies on the Sale of Goods Act , and specifically

section 18, which states: “Subject to this and any other Act, there is no implied warranty or condition as to the quality or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale or lease, except as follows: (

a) if the buyer or lessee, expressly or by implication, makes known to the seller or lessor the particular purpose for which the goods are required, so as to show that the buyer or lessee relies on the seller’s or lessor’s skill or judgment, and the goods are of a description that is in the course of the seller’s or lessor’s business to supply, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are reasonably fit for that purpose; except that in the case of a contract for the sale or lease of a specified

article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;” [ 9 ] The Claimant refers to Great West Van Conversions Inc. v. Langevin, [2000] B.C.J. No. 2547 wherein Romilly, J. cites Fridman in Sale of Goods in Canada 4 th edition for the test to be applied under

section 18: “For the buyer to succeed in making a case of breach of the implied condition, he must show ‘that the defect was such as to destroy the workable character of the thing sold, thereby amounting to a fundamental and total breach of the contract’. He cannot succeed, however, if he received what he ordered, even if there is a lack of quality or fitness.” [ 10 ] The difficulty in this matter is that there is no evidence of an identifiable defect.

The motorcycle was taken in several times by the Claimant to the dealership or a successor dealership to have it checked, and no defect could be found despite a 300-kilometer ride by a technician and another 40-kilometer ride by another technician. The evidence of the diagnostic testing submitted by the Defendant did not support the Claimant’s position that the motorcycle was defective. The Claimant submitted no expert evidence that the difficulty she experienced with the motorcycle was in fact related to any defect in the motorcycle itself.

The only evidence was that of the recall notice that the Claimant stated she did not receive but was later advised of, which stated in part:

“Some regulators/rectifiers installed…may have a condition which can cause the internal circuit board to fail in service due to excessive heat. Should this occur, insufficient charging current will be available to the battery. If the battery becomes excessively discharged, the engine may not be able to start, or may stall.” [ 11 ] The original regulator had been replaced in July, 2010, but the problems continued, and it is possible the replaced part was an earlier version. However, it was tested by the Defendant and performed flawlessly. [ 12 ] I cannot find that

section 18 of the Sale of Goods Act allows me to infer that there is a defect in the goods sold so as to bring the Claimant’s claim within section18. In my view, there must be evidence of a defect in the goods sold. I am left with the evidence of the Claimant as to the difficulties she experienced, which I accept, but with no link to a defect in the motorcycle. The Defendant has raised other possibilities as to the source of the difficulties. While I am somewhat skeptical as to these possibilities, I cannot find that, on a balance of probabilities, the Claimant has proven her claim.

In addition, the Claimant was able to sell the bike for what she admitted was a good price. I dismiss the claim. ____________________________ Karen F. Nordlinger, Q.C. Adjudicator