Salmaki v. Saatchi Date:, 2014 BCPC 231

Citation: Salmaki v. Saatchi Date: 20140822 2014 BCPC 0231 File No: 14-48015 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: FARANGIZ SALMAKI (MARY) CLAIMANT AND: SAATCHI & SAATCHI FINE JEWELLRY LTD. DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L. A. KAHN Appearing on their own behalf: F. Salmaki Appearing for the Defendant: Julio Saatchi

Place of Hearing: Vancouver , B.C. Date of Hearing: August 6, 2014 Date of Judgment: August 22, 2014 [ 1 ] On March 26, 2008, the Claimant bought a Pahlavi (pre-owned) “as is” coin only for $1,300 at the Defendant’s place of business on Robson Street in Vancouver, B.C. [ 2 ] The description of the coin is taken from the invoice provided by the Defendant to the Claimant which invoice, according to my understanding of the evidence, was acknowledged by the Claimant. [ 3 ] The Claimant bought the coin for an investment in the future.

If she required some money, she could sell the coin for its gold value, and she anticipated that the value of the gold would increase after her purchase. [ 4 ] Although not mentioned on the invoice, the coin was a 5 Pahlavi, which is a specific denomination. The Defendant explained that these coins were produced when Iran was ruled by the Shah and, as a result, it has a historical significance. Apparently, these coins in their various denominations are well known to individuals who have an Iranian background. [ 5 ] In 2012, although the Claimant was not certain about the date, she travelled to Iran.

During that visit, she was told by a jeweller in Iran that the coin was a fake. While in Iran, she gave the coin to a friend so that he could return it to her in Canada, because as the Claimant explained, if she was found with the coin in Iran, criminal charges could be brought against her.

Her friend returned the coin to her in Canada several months later, which was in early 2013. [ 6 ] The Claimant testified that she went to the Defendant’s store to inquire whether or not the Defendant bought gold, or did so after she had telephoned the Defendant and learned that it bought gold. [ 7 ] When she was at the Defendant’s business premises, the Claimant attempted to sell the coin to the Defendant without having mentioned that she had bought the coin from the Defendant in 2008. [ 8 ] When she presented the coin to a salesperson at the Defendant’s business premises, she was told that the coin was a fake.

Thereafter, the Claimant advised the salesperson that she had purchased the coin from the Defendant. The Claimant then produced the invoice noted above. [ 9 ] During cross-examination, the Claimant testified that when she left the coin in Iran, it may have been for 2 to 3 months.

Also, she did not contact the Defendant for at least 3 to 4 months after the coin was returned to her by her friend. [ 10 ] I asked the Claimant about the amount of damages that she was claiming, as the coin was purchased for $1,300, and her Notice of Claim sought damages for $5,000 because she alleged that sum was the value of an authentic 5 Pahlavi coin.

However, in her Trial Statement, the Claimant sought $3,500 which was what she believed to be the value of the coin based upon the current value of gold. [ 11 ] I explained to the Claimant that without evidence regarding the value of gold, or the value of 5 Pahlavi coin, I could not determine the appropriate damages to award her if I found in her favour. I suggested that she may require an adjournment so she could obtain evidence of the coin’s value. After some discussion, the Claimant was satisfied that it would be appropriate to award her damages of $1,300. [ 12 ] Mohammad Saatchi (“Mr.

Saatchi”) testified for the Defendant. He explained that the Defendant is a third generation jewellery business which has its origins in Iran. The Defendant has been at the same location on Robson Street, Vancouver, for over 20 years. [ 13 ] Mr. Saatchi explained that when the Defendant purchases coins, they test and examine the coins to confirm that they are genuine. They are sold “as is” as indicated on the invoice if the coin is used. Only if they are new coins are they sealed in plastic covering. In those circumstances, the invoice will indicate that the coin is new. [ 14 ] Mr.

Saatchi said that it is not the Defendant’s usual practice to include the weight of the coin or the number of ounces of gold in the description on the invoice because there are standards weights or descriptions of the coin based upon the denomination, such that the differences between a 1 Pahlavi coin and a 5 Pahlavi coin are well known. [ 15 ] Mr.

Saatchi explained that the Pahlavi coins have been counterfeited recently, and there have been attempts to pass off these fake coins as genuine. [ 16 ] The Defendant, as a gesture of goodwill, offered to reimburse the Claimant for $1,300, because of their long standing excellent reputation as a jeweller in Vancouver. They decided to do so to enhance that reputation, even though the coin presented to them was a fake.

The Claimant refused to accept this goodwill gesture. [ 17 ] The Claimant asked the Court to conclude that Defendant’s offer was an admission of liability, i.e. that the Defendant sold the Claimant a fake coin. I am not prepared to do so. Often, discussions between the parties to settle a dispute are not admissible, as generally those are considered to be made on a “without prejudice” basis, so that parties are encouraged to attempt to settle their differences.

I see no reason to depart from that principle. [ 18 ] I have concluded that where the evidence of the Claimant and Defendant differs, I prefer the Defendant’s evidence. [ 19 ] My determination as to credibility, i.e. the reasons I prefer the Defendant’s evidence to that of the Claimant’s evidence, include the following:

(

a) The Claimant’s evidence was inconsistent as to a timeline. There were too many gaps with respect to dates. (

b) The demeanor of the Claimant was quite animated and, in my view, unnecessarily so, as the facts of this case were very straightforward. (

c) The Claimant made allegations, although implicitly, that the Defendant took advantage of her medical condition at the time ofpurchase (her Trial Statement indicated she could not see properly) without explaining how her health may have impacted on herdecision to buy the coin. (

d) The Claimant was deceptive when she contacted the Defendant to purchase the coin. It was not until after the Defendant’ssalesperson told her that the coin was a fake that she disclosed that the coin was purchased at the Defendant’s premises in 2008. (

e) The Claimant did not offer any reasonable explanation for the delay to contact the Defendant regarding the fake coin, either withina short time upon her return to Canada without the coin, or within a short time after the coin was returned to her possession by her friend. [20] I advised the parties at Court that I was concerned with the reference on the invoice to “as is”, as no evidence was tenderedabout this term. [21] In MacLeod v.

Ens, (1982), (SK CA), 135, D.L.R. (3d) 365, a decision of the Saskatchewan Court of Appeal,Cameron JA said at p. 367 as follows: When used with reference to a sale, people generally take the term “as is” to mean that the product is bought and sold in the condition inwhich it then exists, for better or for worse, with altogether no warranties in relation to quality, durability, or fitness, and with the entirerisk in those respects to be borne by the buyer. [22] The above passage is not applicable to the coin. If the Defendant had sold a fake coin to the Claimant, the Claimant would beentitled to damages.

It would not matter, in my opinion, if the Defendant was aware that the coin was fake or not. [23] Additionally, sections 18(

b) and (

d) of the Sale of Goods Act, RSBC 1996, c 410 say: Implied conditions as to quality or fitness 18 Subject to this and any other Act, there is no implied warranty or condition as to the quality or fitness for any particular purpose ofgoods supplied under a contract of sale or lease, except as follows: … (

b) if goods are bought by description from a seller or lessor who deals in goods of that description, whether the seller or lessor is themanufacturer or not, there is an implied condition that the goods are of merchantable quality; but if the buyer or lessee has examined thegoods there is no implied condition as regards defects that the examination ought to have revealed; … (

d) an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade; [24] The above portions of the Sale of Goods Act, in my opinion, support the notion that if the Defendant had sold a fake coin to theClaimant, the Claimant would be entitled to damages. [25] The issue is whether or not the Defendant sold a fake coin to the Claimant. As I have discussed above, it would not matter ifthe Defendant made a mistake and unwittingly sold a fake coin, even though it had believed it to be genuine. [26] I prefer the Defendant’s evidence to the evidence of the Claimant.

There was no reasonable explanation given by the Claimantfor her to have been deceptive when she approached the Defendant after knowing that the coin was fake. [27] Accordingly, I concluded that the Defendant sold a genuine 5 Pahlavi coin (although used) to the Claimant, and while the coinwas in the Claimant’s possession for some 5 years, the coin was switched for a fake coin. [28] The claim is dismissed, but without costs to the Defendant. __________________________Lawrence A. Kahn Adjudicator