O’Shaughnessy v. Sidhu Date:, 2016 BCPC 308

Citation: O’Shaughnessy v. Sidhu Date: 20161012 2016 BCPC 308 File No: 140686 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: Robert J. O’Shaughnessy CLAIMANT AND: Jaschern Bachandev Singh Sidhu DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing in person: R. J. O'Shaughnessy Counsel for the Defendant: Jenson Leung, Articled Student Place of Hearing: Victoria , B.C.

Date of Hearing: August 16, 2016 Date of Judgment: October 12, 2016 INTRODUCTION [ 1 ] Robert J.

O’Shaughnessy (the “Claimant”) seeks damages from Jaschern Bachandev Singh Sidhu (the “Defendant”) arising from the private sale and purchase in October 2014 of a 2000 Ford Windstar minivan (the “Van”). [ 2 ] The Claimant says that the Defendant orally and in an online advertisement misrepresented the condition of the Van to him and that he relied upon those misrepresentations when agreeing to purchase and when completing the purchase of the Van. [ 3 ] The Defendant says that he adequately disclosed all deficiencies to the Claimant prior to the completion of the sale and that the Van was sold in an “as is” condition.

Evidence was given by the Claimant, a mechanic called by the Claimant, to provide expert opinion evidence and by the Defendant. [ 4 ] Evidence was given by the Claimant, a mechanic called by the Claimant to provide expert opinion evidence and by the Defendant.

Summary of the Circumstances Giving Rise to the Sale and Purchase

Summary of Evidence of the Claimant [ 5 ] The Claimant is a 75 year old retired contractor who, during his 35 year working career, was involved in a variety of different contracting businesses including paving, window manufacturing and installation and home building and renovations. He stated while he did not have a mechanical background, that he had a “feeling for mechanics” because of his business use of large, heavy equipment.

The repair work on that heavy equipment was undertaken by his staff mechanics. [ 6 ] The Claimant has experience buying motor vehicles but this was his first private purchase. [ 7 ] As a retiree, the Claimant and his spouse are “snowbirds” and therefore drive to and spend several months each year in Mexico for their winter sojourn. [ 8 ] The Claimant decided that it would be to his advantage to purchase a vehicle which could be used for the 5,000 kilometre journey down to Mexico. He began an online search to locate a potential motor vehicle for that purpose.

He never disclosed this forthcoming trip or the intended purpose of the Van to the Defendant. [ 9 ] He came across the online advertisement of the Defendant which stated the sale price of the Van described as a “2000 Windstar SEL” as $2,995. [ 10 ] The online advertisement stated in part as follows: “TOP Of the Line! Reliable Family Vehicle for Many Years! Soccer mom, camping trips, many memories! Runs like a dream.” [ 11 ] The online advertisement then detailed a number of the Van’s features and extras.

As I understand it, no issue is taken about the accuracy of those features and extras. [ 12 ] The online advertisement further stated the odometer reading to be 188,000. I understand that to be expressed in kilometres. Again I understand there is no issue with the accuracy of that information. [ 13 ] The Claimant became interested in the Van based upon the online- advertisement information.

The Claimant called the Defendant and arranged to meet the Defendant at the Defendant’s residence on October 13, 2014, being on the Thanksgiving weekend. [ 14 ] What was said leading up to the conclusion of the sale and purchase of the Van is in dispute as between the Claimant and the Defendant. [ 15 ] The Claimant observed that the Van looked like it was in good shape but also noted that the Van was uninsured. It was parked at the front of the Defendant’s residence on what appeared to be the public roadway at the end of a cul-de-sac, crowded with other parked cars.

Several other vehicles, estimated to be about 5 or 6 in number were parked on what appeared to be the Defendant’s front lawn. [ 16 ] The Claimant testified that the Defendant told him that he knew the vehicle well and it had been in his family since 2003 and then went on to say that the only thing that he was aware of in terms of operational concerns with respect to the Van’s condition was an airbag sensor warning light which had come on and remained lit. [ 17 ] According to the Claimant’s evidence, the Defendant told the Claimant that the Defendant’s son was the primary driver of the Van and that he had outgrown it and hence a replacement vehicle had been purchased.

[ 18 ] The Claimant further testified that he was told by the Defendant that it was necessary for him to sell the Van as soon as possible because the local Saanich Police Department had given him two warnings about having an unlicensed vehicle on the street. The Claimant concluded that the Defendant was eager to sell quickly. [ 19 ] The Claimant made a “cursory inspection” of the Van and looked for body damage, examined the tires and the engine compartment. The Claimant did not ask any questions about when the Van was last serviced.

However, all that appeared to be in order as a result of the Claimant’s examination of the oil and other fluids. [ 20 ] The Claimant concluded that for a 14-year-old vehicle he thought it was a “clean car and well cared for”.

The Claimant took the Van for a short test drive for a distance of approximately 400 yards up the cul-de-sac, notwithstanding that the Van was not licensed nor insured. [ 21 ] The Claimant observed that the Van ran smoothly and noticed that what he took as the airbag warning light was illuminated, as had just been disclosed to him by the Defendant during the initial attendance with the Defendant. [ 22 ] The Claimant did not ask about having the Van inspected by a mechanic. He neither asked nor received from the Defendant an ICBC Vehicle Claims History Report.

He did not ask about whether the Van had been in any prior accidents nor did the Defendant tell him about prior any accidents. [ 23 ] The Claimant subsequently received an ICBC Vehicle Claims History Report that disclosed that the Van was involved in: a March 2006 collision and sustained damage to the front with repair cost of $2,437.52; an October 30, 2005 collision with no details of repairs or expense; and an August 2005 collision and sustained damage to the rear with repairs costs of $423.99. [ 24 ] In cross examination, the Claimant denied that we was told by the Defendant that the Van had been stored undercover by the Defendant for several months or that it had not been driven for several months. [ 25 ] The Claimant said that he cannot recall other specific questions that he asked of the Defendant.

The Claimant described the Defendant as “glib and talkative” and further indicated that the Defendant dominated the conversation. The Defendant told the Claimant about the reliability of the Van and about its use for memorable family trips and events over the years. [ 26 ] In his evidence, the Claimant said that his cursory inspection and what the Defendant verbally told him about the Van, all of which was consistent with the on-line advertisement, was the basis upon which he negotiated and proceed with the purchase of the Van.

No written agreement was prepared nor entered into by the parties. [ 27 ] The parties negotiated a reduction in the sale-purchase price for the Van from $2,995 down to $2,200. The Claimant told the Defendant he would think about it for an hour or two. [ 28 ] The Claimant departed for his own residence around 4 p.m. and then later that Sunday evening, around 8 p.m., after dark, he brought his wife back in order to again look at the Van. [ 29 ] The transaction was concluded and the Claimant paid the agreed sale-purchase price in cash.

The Defendant provided the Claimant with a signed and completed Transfer/Tax form with the details completed except for the portion dealing with “Cumulative Vehicle Damage” and including the portion requiring disclosure of “Used Vehicle Damage over $2,000”. The Claimant testified that he failed to notice the omissions. [ 30 ] The Claimant then testified that the Defendant insisted upon driving the Van to the Claimant’s home, notwithstanding that the Van was not insured because of the prior police warnings about parking the unlicensed Van on the public road.

As I understand it, the Claimant and his wife followed in their own, separate vehicle; then the Claimant drove the Defendant back to his residence in that same vehicle.

Summary of Evidence of the Defendant [ 31 ] As noted above, the Defendant’s testimony is at odds with some of the important evidence of the Claimant concerning the circumstances surrounding the sale. [ 32 ] The Defendant testified that he told the Claimant that the Van had been in the family only since 2009 and not since 2003. I note that the damage to the Van ultimately disclosed by the ICBC Vehicle Claims History Report occurred in 2005 and 2006. [ 33 ] The Defendant, who is a landscaper, testified that he had acquired the Van in 2009 from a certain named auto dealer for the amount of $4,000.

I understand from the Defendant’s evidence that the selling auto dealer was an actual licensed motor vehicle dealer and not a private individual nor an unlicensed auto dealer, sometimes commonly referred to as a “curber”.

I note parenthetically that a “curber” often makes a living buying multiple vehicles and then selling them individually under the guise that they are family owned or owned by a close friend. [ 34 ] Although the Van was transferred between himself and his wife on a couple of occasions, and a Transfer/Tax form for one of those transfers was produced and entered into evidence, nothing was produced by the Defendant to confirm the date that the Defendant had actually acquired the Van. He was uncertain if he had originally first acquired the Van in his own name or that of his wife, now his ex-spouse.

He was uncertain about the dates of those transfers between spouses. He was uncertain about the number of kilometres on the Van at the date of his initial purchase. [ 35 ] At the outset of his testimony and later in his testimony, the Defendant described the Van as a year 2004 rather than as a year 2000 vehicle. [ 36 ] He testified that he rarely used the Van immediately preceding parking it for some 6 months on this front lawn preceding the

sale. This occurred he said because his son was grown up and the Defendant was no longer utilizing the Van as a parent volunteer driver for school events, which he stated was its primary use. He also said that his son, as an older teenager, did not like being driven to high school in the Van. The Defendant said he purchased a more economical vehicle to replace the Van. [ 37 ] The Defendant testified that at the time he parked the Van for the six month period, that it was working fine and that there were no problems when he had last driven it.

He stated he was aware of the airbag warning light coming on when he first started it after it had been parked for six months but he was not aware of any other issues relating to the Van, including any problems with the other warning lights. He confirmed that he told the Claimant about the airbag warning light when they first spoke. He also said that his son had been instructed to change the on line advertisement to disclose that air bag warning light problem but had not done so.

He testified that in all other respects, the information contained in his on line advertisement about the Van was accurate. [ 38 ] He testified that he never had any issues with the Van during the entire course that he had owned it. He confirmed that he specifically told the Claimant during their negotiation discussions that it had been a “great vehicle”, that there had been no other issues other than the airbag warning light and specifically no other warning lights. He said he was very sentimentally attached to Van.

He further testified that it brought him “to tears to sell the Van”. [ 39 ] He further testified that, although he filled out the Transfer/Tax form, he did not complete any information on it about damage to the Van because he said that he was unaware of the damage and did not know whether or not it had ever been in an accident. He denied that it had ever been in an accident while he owned it. He made no mention of any damage occurring while his ex-spouse owned it.

Also, he said there was no required disclosure of prior damage made to him by the licensed auto dealer at the time he purchased the Van. [ 40 ] The Defendant testified that he had sold 3 or 4 vehicles in the last 10 years and denied that he was making a living from selling vehicles (that is working as a “curber”), notwithstanding the large number of vehicles observed in his front yard. About those vehicles, he testified two belonged to his son, and the others to his tenant and a neighbour whom he said had nine vehicles.

He stated he had two vehicles of his own. [ 41 ] He said that he had regular oil changes completed for the Van, all at an establishment that provided quick, drive in lubrication and oil change services. He said he relied upon them to tell him about the “wear and tear on the Van” but testified he had never had an actual mechanical inspection completed nor that any repairs were necessary including such thing as any brake work. He stated he had no records of any repairs completed on the Van.

He could not recall when he had last had an oil and lubrication performed on the Van. [ 42 ] He stated that a fair amount of mileage was placed on the Van as it was driven daily by the family, and he confirmed that based upon information contained in various vehicle Transfer/Tax forms, that between March 2011 and around what I take to be April of 2014 (being the calculated start of the 6 month period that the Van was said to have been parked), some 28,000 kilometres were apparently driven with the Van.

This did not appear to be entirely consistent with his earlier evidence about the lack of use for an extended period prior to being parked for 6 months. [ 43 ] He stated that he did not have the Van inspected or repaired or serviced in any fashion, nor did he in fact drive it again before he started advertising it for sale on line.

I understand that also extends to any servicing or inquiries of a mechanic about the appearance of the air bag warning light when the Van was started after its lengthy time being parked. [ 44 ] The Defendant denied that his now 18 year old son ever drove the Van, notwithstanding that according to the Defendant’s other evidence, his son apparently owned two vehicles of his own that were parked on the front lawn.

He said in his evidence that his son was not old enough to drive the Van prior to being parked for 6 months. [ 45 ] The Defendant said that it was the Claimant who insisted that the Defendant drive the vehicle to the Claimant’s residence because of the upcoming trip to Mexico. He testified that none of the other warning lights appeared when he was driving the Van to the Claimant’s residence. Circumstances Following the Sale

Summary of Evidence of the Claimant [ 46 ] On October 14, 2014, the Claimant completed the transfer of the Van into his name as the registered owner, paid the sales tax, insured and licensed the Van.

The Claimant did not drive the Van after it was driven to his residence by the Defendant but the Claimant made arrangements to drive it to his mechanic the following Friday evening, October 17, 2014, in order to have it serviced in preparation for the forthcoming trip to Mexico. [ 47 ] On the way to his mechanic’s residence and workshop, apparently a short distance of less than 5 miles, which included a stop to fill the Van’s fuel tank, the Claimant stated that a “Christmas tree” of warning lights came on. [ 48 ] Besides the airbag warning light, the engine warning light, the battery charge light, and the ABS lights all suddenly illuminated.

The Claimant describes himself as being panicked because of these lights becoming illuminated and especially with the forthcoming trip to Mexico a short time away. [ 49 ] He arrived shortly at the premises of his mechanic, known to him as Mike. Mike the mechanic was not called as a witness.

The Claimant testified that he watched as Mike placed an electronic scope on the engine and spent about 20 minutes examining the Van. [ 50 ] The blunt advice received thereafter from Mike was to the effect that the Claimant should take the vehicle back and that it was “shot” and there is nothing that could be done with it. [ 51 ] While the truth of that hearsay assertion cannot be accepted as evidence, the Claimant’s next and subsequent actions were certainly consistent with the tenor of that advice.

[ 52 ] Notwithstanding that he had received this very blunt and negative assessment, the Claimant testified that he wanted to get a second opinion before speaking with the Defendant about a refund of the purchase price. [ 53 ] Therefore, he made arrangements to take the vehicle to Nixon Brothers Trucking Ltd. and to consult with the shop foreman, Trevor Metters, a qualified red seal automotive and truck mechanic. Nixon Brothers Trucking Ltd. is a Provincially Certified Safety and Inspection Facility.

This appointment occurred on October 20, 2014. [ 54 ] Trevor Metters was qualified in these proceedings by the court as an expert who is trained to detect and fix mechanical and electrical deficiencies in motor vehicles and to express an opinion with respect to those subject areas. [ 55 ] According to the Claimant’s evidence, on the way to see Mr.

Metters, again a short distance of less than 5 miles from his residence, and after the Van had again warmed up, all of the same array of warning lights illuminated and were displayed on the Van’s dashboard control panel. [ 56 ] The Claimant says that upon arrival, he spoke to Mr. Metters about the warning light issues and says that Mr. Metters made an inspection of the Van with the aid of a computer diagnostic system. [ 57 ] Mr. Metters did not recall undertaking the electrical or diagnostic inspection of the Van and had no notes of the inspection that he had conducted on the Van.

However, he did recall, as did the Claimant, observing the Van parked outside of his garage facility on a slight incline and seeing a steady flow of transmission fluid coming from the Van. [ 58 ] Mr. Metters testified that the flow was likely coming from the front pump seal of the transmission and that the usual and recommended solution for this problem was to pull and to replace the entire transmission with a rebuilt transmission. He testified that the usual cost for such a procedure would be in the range of some $3,000. [ 59 ] Given the age and condition of the Van, Mr.

Metters expressed the opinion in court that such an expenditure would not be warranted. As I understand it, he did not make a particularly extensive investigation of the apparent transmission problem other than to climb down to conduct a visual inspection but he did conclude that a fluid stream from the transmission area usually indicated more serious underlying problems with the mechanical condition of a vehicle. [ 60 ] He further testified that the transmission seal problem may arise from a lack of use of the vehicle for a considerable period of time.

He also indicated that the flow from the transmission would normally have been detected right away upon the vehicle being started but did concede that an apparent increase in the flow of transmission fluid may have been caused by the fact that the Van was on an incline and that the transmission fluid had accumulated in the pan and flow became noticeable when the Van’s pan became tilted because the Van was parked on an incline. [ 61 ] He was unable to recall the specific advice that he provided to the Claimant. [ 62 ] Interestingly and somewhat curiously, following the Claimant’s disclosure of witnesses for the trial, the Defendant showed up unannounced at Nixon Brothers Trucking shortly before the trial, purportedly seeking to have vehicle repair work completed. [ 63 ] Following the Claimant’s attendance with Mr.

Metters, that same evening of October 24, 2014, between 6 and 7 o’clock p.m., the Claimant called the Defendant and had what I take to have been a somewhat heated and pointed discussion with the Defendant concerning the discovered defects in the Van. [ 64 ] According to the Claimant’s evidence, the Defendant said he needed to talk to his lawyer. The Defendant called back an hour later and told the Claimant that the Defendant’s lawyer had told him not to speak to the Claimant. The Claimant indicated that he intended to proceed with an action in Small Claims Court. The Defendant “rang off”.

The Claimant heard nothing further from the Defendant, nor from the Defendant’s lawyer or anybody else, acting on the Defendant’s behalf. In his testimony, the Defendant testified that he had surreptitiously recorded that second telephone conversation. [ 65 ] The Claimant shortly thereafter returned to his insurance broker and cancelled the license and insurance on the Van and received a partial refund. The non-refunded insurance premiums and sales tax are in part the subject matter of the Claimant’s claim for damages.

The Claimant testified that from the date he first acquired the Van until he disposed of it, he only drove it a total of approximately 50 km. He produced documentation to corroborate that statement.

Summary of Evidence of the Defendant [ 66 ] In his evidence, the Defendant stated that in preparation for the trial that he had spoken to two auto repair shops and had been given estimates about the costs of replacing a “defective processor” which he said was “some form of computer” in the Van. [ 67 ] When asked by the court how he knew or obtained a diagnosis in order to obtain the estimates, he stated it was based upon the evidence disclosure made by the Claimant. Counsel for the Defendant then abandoned that line of questioning.

I note that there is nothing that I can see in the disclosure or in the evidence before me where any such diagnosis was made by either of the two mechanics consulted by the Claimant. Circumstances Surrounding the Commencement of the Action and Service of Documents

Summary of the Claimant’s Evidence [ 68 ] The Claimant prepared and filed his Notice of Claim in the Victoria Registry on October 21, 2014. He mailed the Notice of Claim by regular mail to the Claimant and, as I understand it, prepared and filed an affidavit of service in the Victoria Court Registry indicating the method of purported service on the Defendant.

[ 69 ] The Claimant and his spouse then departed the next day for Mexico but as I understand it returned on November 24, 2014 whereupon he received a letter from the Victoria Court Registry which indicated that the wrong method of service had been undertaken and indicating that service had to be completed in accordance with Rule 2 of the Small Claims Rules. [ 70 ] Thereafter, the Claimant sent the Notice of Claim and a blank Reply by registered mail to the Defendant.

However, when the Claimant returned in May 2015, he became aware from the Canada Post records that the Defendant had apparently refused to pick up the registered mail and the Notice of Claim envelope addressed to the Defendant had been returned to the Claimant. [ 71 ] On May 8, 2015, the Claimant took an envelope that he said contained only the Notice of Claim and a blank Reply document to the Defendant’s residence and personally served it upon him outside of the Defendant’s residence. [ 72 ] He said that he asked the Defendant why he had not picked up the registered mailed envelope from Canada Post and was told by the Defendant that the Defendant “thought it was from his ex-wife”. [ 73 ] Therefore the Claimant completed personal service on that date.

According to the Claimant’s evidence and as confirmed by the court records, no Reply was filed by the Defendant within the time limit. Accordingly, the Claimant applied on May 22 nd 2015 for a Default Order which was granted on June 18, 2015. [ 74 ] Thereafter on June 18, 2015, the Claimant took a copy of the Default Order to the Defendant’s residence. Nobody responded to the Claimants knocking at the front door although the Claimant was able to observe some swinging blinds and therefore concluded that somebody was at home.

Accordingly, he left a copy of the Default Order, placing it under the front door together with a demand letter requiring some response within 72 hours in order to make satisfactory arrangements regarding payment of the amount set out in the Default Order. The Claimant’s contact particulars were provided. He further notified the Defendant in that letter that the Claimant was prepared to return the “property” (being the Van) but he would be disposing of the Van by June 30, 2015, if satisfactory arrangements were not made with the Claimant.

Although the letter did not state so, disposal of the Van became necessary for the Claimant because of a pending sale of his residence and the inability to continue to store the Van until there was some resolution of the matter. [ 75 ] No communication was received back from the Defendant, therefore the Claimant went back to the Defendant’s residence on June 23, 2015 in order to attempt to affect personal service of the Default Order and a Notice to a Payment Hearing on the Defendant.

Again there was no response at the front door; the Claimant took some photographs of some of the 5 vehicles parked in front of the Defendants residence and departed. [ 76 ] Thereafter the Claimant received a communication from Constable Akbar of the Saanich Police Department informing him that the Defendant had filed a police complaint about harassment by virtue of the Claimant’s attendance at his residence and with further allegations that the Claimant had damaged one of the Defendant’s vehicles.

The Claimant denied to the police any such actions of either harassment or damage of the Defendant’s property but agreed that he would not attend at the Defendant’s residence in the future. [ 77 ] On June 24, 2015 at approximately 9:30 p.m., the Claimant heard a knock at his front door whereupon he observed a young woman standing on his front porch who then served him with documents, which as it turned out included an affidavit from the Defendant seeking to set aside the Default Order. [ 78 ] The Claimant observed the Defendant sitting in the rear seat of a vehicle on the street whereupon the Claimant grabbed the envelope containing the Summons to a Payment Hearing and ran to the street and touched the Defendant with the document and told him that he had been served.

In response, the Defendant twice threw the served documents onto the street and departed in that vehicle. [ 79 ] According to a Saanich Police Department report admitted into evidence, with some common redactions, the Defendant, and I take it one or more of the persons who had been with the Defendant at the Complainant’s residence, attended on June 29, 2015 at the police detachment to report that the Claimant was still harassing the Defendant.

No mention is made in the police report of any alleged assault by the Complainant of the Defendant, of any individual accompanying the Defendant on the evening in question, including the young woman and the man driving the vehicle. [ 80 ] On June 3, 2015, the application to set aside the Default Order was heard with both the Claimant and the Defendant in attendance. The Default Order was set aside and the Defendant was allowed 14 days to file his Reply and a settlement conference was ordered.

In the Defendant’s affidavit, he stated that he was never served with the Notice of Claim and that the Defendant had only delivered “two blank pieces of paper in an envelope and not a Notice of Claim.” [ 81 ] As I understand it, having not heard from the Defendant about the Van notwithstanding the prior written notice to the Defendant, the Claimant in the process of selling his residence held a yard sale in October of 2015 at which time he offered the Van for sale for an asking price of $500.

He was able to obtain an offer of $350, which he indicated was essentially what the Van was worth, in his estimation, on the basis of the value of the used parts. He told prospective buyers about the electrical and transmission issues as well as the prior vehicle damage. He did not advertise the Van online or otherwise.

Summary of Evidence of the Defendant [ 82 ] The Defendant admitted, in his viva voce evidence, that he received the original Notice of Claim by ordinary mail in November of 2014 but says that he was informed by his lawyer that it was improper service in accordance with the Small Claims Rules and that he should ignore it, and he did so. [ 83 ] He further testified that he received notice from Canada Post of a registered letter for pick up.

He refused to pick up the registered mail that had been sent by the Claimant because he thought it was from his ex-wife, whom he described in disparaging terms, all in connection with their 4 or 5 year ongoing matrimonial dispute. He also confirmed that he told the Claimant that he ignored the registered mail because he thought it was correspondence coming from his ex-wife. [ 84 ] The Defendant testified that he was served only with two blank pieces of paper by the Claimant and not with the of Notice of

Claim. However, in his testimony on cross examination, he stated that the Claimant arrived on a motorcycle, wearing a helmet, saying tohim, “do you remember me?”, that he, the Defendant, felt “threatened” by that arrival and he was served by the Claimant with only thetwo blank pieces of paper in an envelope, upon which the Claimant had written his phone number.

He then expressed uncertainty aboutwhether or not he also received the Notice of Claim at the same time but when pressed about what was deposed to in his sworn Affidavitin support of his application to set aside the Default Order, he then regained a more precise memory that it was only two blank pieces ofpaper and nothing more. [85] The Defendant also testified that he refused to come to the door when the Claimant attended at the Defendant’s residence inorder to serve court documents because he was “fearful” of the Claimant. [86] In the Defendant’s viva voce evidence, he made a number of assertions about the actions and the behaviour of the Claimantduring the Claimant’s attendances at the Defendant’s residence and what occurred at the Claimant’s residence.

None of these allegationsabout the Claimant’s untoward behaviour, including an attempted break and entry into a vehicle owned by the Defendant, an alleged“attack” of the Defendant’s driver and the “pushing of a pregnant woman” who was serving the Claimant with the Defendant’s Affidavitin support of setting aside the Default Order, appeared anywhere in the police reports arising out of his complaints. The Defendantoffered no explanation for the very significant alleged deficiencies in the two police reports admitted into evidence.

Applicable Legal Principles Burden of Proof [87] The burden of proof in a civil case rests with the Claimants to prove their case on a balance of probabilities. The Supreme Courtof Canada in F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 at paragraph 49, states: [I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [88] 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. Misrepresentation [89] Misrepresentation is a false statement of fact, made in the course of negotiations or in an advertisement, that has the effect ofinducing a reasonable person to enter into the contract.

The principal remedy is rescission (discussed below), whereby the contract is setaside and the parties are restored to their original positions. [90] Statements made in the course of negotiations for a contract can be put on an ascending scale of significance, from mere pufferyto innocent misrepresentations, negligent misrepresentations, and fraudulent misrepresentations: Pacific Playground Holdings Ltd. v.Endeavour Developments Ltd., 2002 BCSC 126. [91] A fraudulent misrepresentation is a representation of fact made without any belief in its truth, with the intent that the person towhom it is made will act on it, and actually causing that person to act on it: Roussel v.

Saunders (1990), (NL SC), 85Nfld. & P.E.I.R. 228 at 238 (Nfld. T.D.); Baltimore Aircoil of Canada Inc. v. Process Cooling Systems Inc. (1993), (ON SC), 16 O.R. (3d) 324 at 337 (Gen. Div.), reversed on other grounds (1996), (ON CA), 30 O.R. (3d) 159(C.A.). [92] The plaintiff must prove fraud strictly; allegations will not be lightly accepted: Popowich v. Dromarsky, (ABCA), [1946] 1 W.W.R. 570 (Alta. C.A.). The plaintiff must show a positive statement of fact; facts must be differentiated from opinion:Mayer v. Mayer Estate (1993), (BC CA), 83 B.C.L.R. (2d) 87 (C.A.), leave to appeal refused [1993] S.C.C.A.

No.507 (QL). [93] There must be evidence of dishonesty, or such recklessness as to the truth as is tantamount to dishonesty: Nesbitt, Thomson &Co. v. Pigott, (SCC), [1941] S.C.R. 520; Lakex Mines Ltd. v. Marathon Realty Co. (1980), (BC SC),24 B.C.L.R. 332 (S.C.). The plaintiff must show evidence of knowledge that the representation was untrue, and of an intent to defraud orthe absence of an honest belief in the truth of the representation: TWT Enterprises Ltd. v. Westgreen Developments (North) Ltd. (1992),1992 ABCA 211 , 3 Alta.

L.R. (3d) 124 (C.A.). [94] The court also must be shown that the misrepresentation was relied upon by the plaintiff in entering the contract: L.K. Oil &Gas Ltd. v. Canalands Energy Corp. (1989), 1989 ABCA 153 , 60 D.L.R. (4th) 490 at 496 (Alta. C.A.); Timmins v. Kuzyk(1962), (BC SC), 32 D.L.R. (2d) 207 (B.C.S.C.). [95] In some circumstances, conduct that does not amount to fraud may be construed by the court to be negligence: Congiusti v.Guriel (1989), 34 O.A.C. 306 (C.A.); see also Dixon v. Deacon Morgan McEwan Easson (1993), (BC CA), 102D.L.R. (4th) 1 (B.C.C.A.).

Effect of Fraudulent Misrepresentation [96] Rescission is available at common law for fraudulent misrepresentation in contract. The remedy is discretionary, resulting inthe contract being voidable at the option of the defrauded party: TWT Enterprises Ltd. v. Westgreen Developments (North) Ltd., supra;Jarvis v. Maguire (1961), (BC CA), 35 W.W.R. 289 (B.C.C.A.). [97] However, rescission will not be available if the parties cannot be put back into their previous positions: Morin v. Anger, (ON CA), [1931] 1 D.L.R. 827 (Ont. C.A.).

Nor will the court grant rescission if the injured party has affirmed or adoptedthe contract by words or conduct: Dodds v. Millman (1964), 47 W.W.R. 690 (B.C.S.C.).

[98] Damages may be awarded as well as rescission in cases of fraudulent misrepresentation: Muise v. Whalen (1990), (NS SC), 96 N.S.R. (2d) 298 (T.D.). Such damages will be calculated on the basis of the loss suffered through the deceit, so as toput the injured party into the position he or she would have been in had the fraud not occurred. The damages include all loss directlyflowing from the avoided transaction. Any benefit received by the plaintiff must be taken into account: Jarvis v. Maguire; Mikulas v.Milo European Cars Specialists Ltd. (1995), (BC CA), 60 C.P.R. (3d) 457 (B.C.C.A.).

Damages may includeconsequential loss: C.R.F. Holdings Ltd. v. Fundy Chemical International Ltd. (1981), (BC CA), 33 B.C.L.R. 291(C.A.). Negligent Misrepresentation General Principles [99] A misrepresentation that constitutes negligence can lead to tort damages for negligence, as first recognized in Hedley Byrne &Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.). [100] The elements of the tort of negligent misrepresentation are stated in Queen v.

Cognos Inc., (SCC), [1993] 1S.C.R. 87 at 110, by Iacobucci J. as follows: (1) there must be a duty of care based on a “special relationship” between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making the misrepresentation; (4) the representee must have relied, in a reasonable manner, on the negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. [101] Even where no contract exists between the representor and the recipient of the information, if the recipient relied on theinformation to enter into a contract with a third party, the representor may owe a duty to the recipient because of the representor’sposition and knowledge. [102] A negligent misrepresentation may lead to the rescission of the contract as well as tort damages, if the representor and therecipient of the information entered into a contract: Esso Petroleum Co.

Ltd. v. Mardon, [1976] Q.B. 801 (C.A.); Central Trust Co. v.Rafuse, (SCC), [1986] 2 S.C.R. 147, varied (SCC), [1988] 1 S.C.R. 1206; BG Checo International Ltd.v. British Columbia Hydro and Power Authority, (SCC), [1993] 1 S.C.R. 12. [103] However, a contract may successfully exclude liability for negligent misrepresentation: Carman Construction Ltd. v. CanadianPacific Railway Co., (SCC), [1982] 1 S.C.R. 958. Furthermore, a tort claim cannot be used to circumvent a contractuallimitation of liability: J. Nunes Diamonds Ltd. v.

Dominion Electric Protection Co., (SCC), [1972] S.C.R. 769 Effect of Negligent Misrepresentation [104] The plaintiff seeking damages for negligent misrepresentation is entitled to be put in the position he or she would have been inhad the misrepresentation not been made: Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., (SCC),[1991] 3 S.C.R. 3. The plaintiff must establish on a balance of probabilities what that position would have been.

Once the plaintiff hasestablished the loss caused by the transaction, his or her burden of proof with respect to damages is discharged. [105] The measure of damages should include the loss incurred from performing the work, but not the expected profit; however, itmay include an estimate of what the plaintiff might have earned elsewhere: V.K. Mason Construction v. Bank of Nova Scotia, (SCC), [1985] 1 S.C.R. 271.

Innocent Misrepresentation General Principles [106] For an operative innocent misrepresentation to exist, the recipient must show the statement: (1) is of fact (that is, not opinion); (2) is untrue; (3) is material; (4) was relied on by the recipient as a reason to enter into the contract. [107] The requirements of materiality and reliance are closely related, often overlapping. What constitutes a material representationdepends on the context of the contractual situation. The terms “substantial” and “going to the root of the contract” are synonymous with“material”: Guarantee Co. of North America v.

Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423. [108] The victim alleging innocent misrepresentation must show a substantial difference between what the victim bargained for andwhat was obtained, such as to constitute a failure of consideration: Alberta North West Lumber Co. v. Lewis, [1917] 3 W.W.R. 1007(B.C.C.A.); Alessio v. Jovica (1974), 1973 ALTASCAD 118 , 42 D.L.R. (3d) 242 at 256-57 (Alta. C.A.); Komarniski v. Marien, (SK KB), [1979] 4 W.W.R. 267 (Sask. Q.B.); Kingsglen Developments Inc. v. Vitti (1994), 38 R.P.R. (2d) 247 (Ont.

Gen. Div.). [109] The injured party must have been seriously inconvenienced by the mistake in question: Field v. Zien, (SCC),[1963] S.C.R. 632. In such instances, the victim is entitled in equity to be restored to the position he or she would have been in had he orshe not been affected by the innocent misrepresentation: Corbeil v. Appell, (BC SC), [1950] 1 D.L.R. 159 (B.C.S.C.). [110] A misrepresentation made by or to an agent of one of the parties is just as effective as if it was made by the parties themselves:Weibelzahl v. Symbaluk (1963), (BC CA), 42 D.L.R. (2d) 281 (B.C.C.A.).

The Remedy of Rescission [111] Rescission is the only remedy for innocent misrepresentation: Kingu v. Walmar Ventures Ltd. (1986), (BCCA), 10 B.C.L.R. (2d) 15 (C.A.); Pacific Playground Holdings Ltd. v. Endeavour, 2002 BCSC 126. Damages for consequential loss arenot awarded for innocent misrepresentation; the equitable relief is not intended to punish another’s innocent error: Comeller v. Billinkoff(1953), (MB KB), 11 W.W.R. (N.S.) 279 (Man. Q.B.). But see Bahry v. Lindell Beach Holiday Resort Ltd., 2009BCSC 632, and Petrelli v.

Lindell Beach Holiday Resort Ltd., 2010 BCSC 956, where the court granted rescission for what was called afundamental breach. [112] If the equitable remedy of rescission is available, the parties are returned to the position they were in just when the contract wasentered into. For example, whatever was delivered under the contracts is returned. [113] An application for equitable rescission will be granted only if it will not result in an injustice to the other party: Solle v. Butcher,[1949] 2 All E.R. 1107 (C.A.). [114] The so-called “bars to rescission” that may preclude the remedy are as follows:

(1) Impossibility of restitution in integrum. If property cannot be returned or cannot be returned in the condition it was in whentransferred, the remedy will be precluded: Lumley v. Broadway Coffee Co. Ltd., (ON CA), [1935] O.R. 278 (C.A.). However, equity may effect rescission in some situations by using money compensation to allow (for example) for the use of theproperty and deterioration: Wiebe v. Butchart’s Motors Ltd., (BC CA), [1949] 4 D.L.R. 838 (B.C.C.A.). Also, in afraudulent misrepresentation, in some circumstances, money compensation can substitute for property that cannot be returned: Kupchakv. Dayson Holdings Co. (1965), (BC CA), 53 D.L.R. (2d) 482 (B.C.C.A.).

(2) Execution of the contract, at least with respect to land: the principle is that “An executed contract for the sale of an interest inland will not be rescinded for an innocent misrepresentation. Nothing short of fraud will suffice”: Shortt v. MacLennan, (SCC), [1959] S.CR. 3. But compare that with the decision of Lord Denning in Solle v. Butcher, [1949] 2 All E.R. 1007 at 1121 (C.A.):“[This bar to rescission] would mean that innocent people would be deprived of their right of rescission before they had any opportunityof knowing they had it”.

(3) Affirmation. Rescission will be denied if the recipient, knowing of the misrepresentation, proceeded with the contract as thoughno problem existed: Panzer v. Zeifman (1978), (ON CA), 88 D.L.R. (3d) 131 (Ont. C.A.); Long v. Lloyd, [1958] 2 AllE.R. 402 (C.A.).

(4) Delay. The right to rescind for innocent misrepresentation may be lost by undue delay: Terri-Grant Enterprises Inc. v. 82506Canada Ltd. (1986), (SK KB), 47 Sask. R. 63 (Q.B.). Caveat Emptor [115] In Floorco Flooring Inc. v. Derek Blackwell and Ootsa Lake Outfitting, 2014 BCPC 248 ; [2014] B.C.J.

No. 262, theHonourable Regional Administrative Judge Brecknell reviews the authorities and provides the following useful guidance regarding theterm “as is, where is” basis and the principles of caveat emptor: 67 The terms "as is, where is" and caveat emptor have been discussed in various court decisions in a variety of jurisdictions acrossCanada. With regard to the terms "as is, where is" the Newfoundland District Court in Allen v. Allen 1976 Carswell Nfld. 151 had thefollowing comments at paragraph 70: 70.

However, I do not feel that the finding that there was a bill of sale containing the expression "as is, where is," is a critical findingof fact. That term is in common usage in such private transactions though its legal significance is somewhat dubious. The expressionhowever is not without some significance in that it surely indicates an understanding between the seller and the buyer that the seller ismaking no representations and giving no warranties or guarantees and that the buyer takes the chattel with all its defects-both latent andpatent.

I rather suspect that it is the layman's way of expressing the maxim caveat emptor. 68 The term caveat emptor has been discussed by a number of courts in various jurisdictions across Canada. One of the leading caseson the point is the decision of Rushak v. Henneken, [1986] B.C.J.

No. 3072 (B.C.S.C.) affirmed (BC CA), [1991] 59B.C.L.R. (2d) 250 (B.C.C.A.) which has been referred to and followed in several subsequent decisions. [116] A party is expected to look out for himself and make his own bargains and if he has done so foolishly it is his own fault. (See:Floorco at paragraph 173). [117] However, I am also mindful that a lack of due diligence by the person to whom a false statement is made, in verifying thestatement, does not benefit the maker of the misstatement. [See: Mason v. King, [2011] B.C.J. No. 1371; 2011 BCPC 169 atparagraph 40].

In support of that that proposition, Dhillon P.C.J. at paragraph 39 relies upon Jessel M.R. in the decision of Redgrave v.Hurd (1881), 20 Ch.D. 1 (C.A.) at 13:

If a man is induced to enter into a contract by a false representation, it is not sufficient to answer him to say "If you had used due diligence you would have found out that the statement was untrue. You had the means afforded you of discovering its falsity, and did not choose to avail yourself of them”. Position of the Claimant [ 118 ] In the Claimant’s Notice of Claim the Claimant states as follows with respect to the purchase of the Van: The Defendant claimed that vehicle had a minor electrical malfunction which was understated by far.

The Defendant failed to declare to the Seller [sic] other likely damage or repairs required before the vehicle can be safely operated. [ 119 ] I understand that the Claimant is alleging some form of misrepresentation made by the Defendant that was relied upon by the Claimant and says the Defendant knew the misrepresentation was either untrue or inaccurate.

Further that Defendant in making the misrepresentation knew that the Claimant was relying upon the Defendant’s representations in the Claimant’s actions of purchasing the Van. [ 120 ] Thus the Claimant seeks a refund of the purchase price of $2,200, reimbursement of the “transfer tax” (which I understand is the paid sales tax) of $264, the transfer fee for the transfer of the Van into the Claimant’s name of $28 and the fee charge for new license plate of $18.

He also claims filing and service fees. [ 121 ] I understand that the Claimant says that the evidence that has been adduced supports the Claimant’s claims and supports this position. I note that the Notice of Claim was filed prior to the Claimant disposing of the Van in October 2015. Position of the Defendant [ 122 ] The Defendant says that the two issues this court must decide are whether or not there was a misrepresentation and if so whether or not it is a fraudulent misrepresentation.

If not, then the Defendant says caveat emptor applies. [ 123 ] If caveat emptor applies, then the responsibility falls upon the Claimant to conduct his appropriate due diligence. In this case, the Defendants says the Claimant has failed to undertake appropriate due diligence. [ 124 ] The Defendant further says that if any damages have arisen, the Claimant has failed to appropriately mitigate when he disposed of the Van essentially for the value of its parts. Analysis Assessing Credibility and Reliability of Witnesses [ 125 ] In this case, I have heard evidence that is conflicting on material matters.

Therefore, I must assess the credibility of the witnesses who provided this conflicting evidence. [ 126 ] In doing so, I must weigh all of the evidence.

In so weighing the evidence, I may reject or accept some or all of a witness's testimony, after having taken into account a multitude of factors which include, but are not limited to: appearance or demeanour; ability to perceive, ability to recall; motivation; probability or plausibility; and internal or external consistency. [ 127 ] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [ 128 ] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. ( See R. v.

Jackson , 2007 BCSC 636 ; see also R. v. Mann , [2010] A.J.

No. 1094 .) [ 129 ] Here I have heard evidence from the Claimant and from the Defendant that is conflicting on material matters regarding the making of the agreement to purchase the Van and also on subsequent events. [ 130 ] In assessing credibility, the testimony of each of the witnesses can be considered from three perspectives: 1) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying; 2) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of their perceptions; and 3) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [ 131 ] In R. v.

Cuhna , 2015 BCPC 60 at paragraphs 5 and 6 , the Honourable Judge Merrick provides a useful review of the factors to be considered when assessing the testimony of a witness from these three perspectives. I have utilized those factors in assessing credibility in this case. Assessment of the Credibility of the Claimant [ 132 ] I have carefully listen to, and reviewed and weighed, the evidence provided by the Claimant.

I am of the view that overall his evidence is: reliable; internally and externally consistent; reasonably objective with appropriate concessions and self-criticism for what was a hurried decision, made with a lack of a full investigation and with significant reliance on the Defendant’s representations about the Van, all preceding the completion of the purchase and payment; and an adequate ability to observe, remember and to concede when he

could not recall certain facts. In my view, the evidence of the Claimant results in a high level of probability or plausibility concerning the matters to which he has testified. Assessment of the Credibility of the Defendant [ 133 ] Also, I have listened to, and reviewed and weighed, the evidence provided by the Defendant. Based on all the same criteria that I applied to the Claimant, my overall conclusion is that the evidence of the Defendant lacks the important ring of truth on a number of key points of evidence.

On many occasions I found the evidence provided by the Defendant to be inconsistent both internally and externally, and also contradictory, exaggerated and in some cases quite unbelievable, improbable or implausible.

Often the Defendant said he was either uncertain or unable to recall important facts but when pressed and recognizing the importance to his case became increasingly certain. [ 134 ] Some examples that were particularly striking include the evidence of the Defendant to the effect that when the Claimant attended on motorcycle at the Defendant’s residence in May of 2015 to affect personal service of the Notice of Claim upon him, that the Claimant only served blank paper upon him.

This makes absolutely no sense and is implausible, especially given the efforts that the Claimant had previously made in order to complete service upon the Defendant, first, not in accordance with the Small Claims Rules and second by way of registered mail which the Defendant refused to pick up. I consider this to be a fabrication on the part of the Defendant. [ 135 ] Another example was what I consider to be highly exaggerated allegations of untoward behavior on the part of the Claimant. What the Defendant stated in court that occurred is absent from the reports produced by the Saanich Police Department.

I find that absence to be very unusual and common sense tells me that serious allegations of break and entry and assault would find some mention in police reports, especially a second report detailing significant allegations from the same source. [ 136 ] The Defendant testified that he did not know about any prior damage to the Van and hence left it blank and incomplete on the Transfer/Tax form given to the Claimant. For me to accept that assertion, I would also have to accept that the original licensed motor dealer, from whom the Defendant had purchased, had failed to discharge its obligation under

section 23 of the Motor Dealer Act Regulations (B.C. Reg. 4447/78) to make the disclosure to the Defendant of prior damage requiring repairs over $2,000. I question why the Defendant, rather than leaving the space blank, simply did not hand write in “not known” or words to that effect.

The inference I can draw is that the Defendant did not want to draw the Claimant’s attention to that possible issue. [ 137 ] Thus on important points, where there is a material conflict in the evidence between the Claimant and the Defendant, and upon considering the whole of the evidence that I do accept, I conclude and accept the Claimant’s evidence as being accurate and the Defendant’s evidence as not being accurate. Assessment of the Credibility of Trevor Metters [ 138 ] Using the appropriate criteria, I accept Mr. Mettors as a credible and reliable witness.

Given his lack of recall regarding his inspection of the Van and the advice he provided to the Claimant, his use to the Claimant is somewhat limited. [ 139 ] However I do find his expert opinion evidence helpful on a number of points about the observed problems with the Van and the necessary required steps to fix the transmission leak.

Nature of any Misrepresentation by the Defendant [ 140 ] In my view, for the Claimant to succeed he must establish fraudulent misrepresentation by the Defendant in order to obtain his remedy. [ 141 ] I have concluded that based upon all the evidence, both circumstantial and direct, that I find credible, including the evidence surrounding both the events preceding the making of the oral contract for the sale and purchase, and the events that took place subsequent to the completion of the sale, that the Defendant knowingly and fraudulently misrepresented the Van, both in his advertising with the description “Runs like a dream” and in his confirmatory statements about the condition of the Van made when he was speaking to the Claimant, and upon which he knew the Claimant was placing reliance in entering into the oral contract of sale and purchase.

I am of the view that the statement “Runs like a dream” is a clear indication that the Van was being represented as presently being free of any material problems but also that it presently ran well, without any immediate issues or concerns about its condition. That statement was highly inaccurate. [ 142 ] The Defendant was at a very minimum reckless, but I find untruthful, when he advertised the Van in this manner especially after it had sat unused for some 6 months, had not been driven for that length of time, had not been serviced within recent memory and had not in any fashion been mechanically inspected.

Plain and simple it did not “run like a dream” but quite the opposite, all of which became evident, starting with the numerous warning lights and then the leaking transmission all very shortly and within a very few kilometres of being driven by the Claimant from his residence to be serviced. [ 143 ] I am satisfied that Defendant did not tell the Claimant that the Van had sat for that 6 month period, and also that he had knowledge of those undisclosed defects.

The fact that for trial the Defendant was seeking repair estimates for a processor or computer problem that he said that he knew nothing about is strong circumstantial evidence that he knew about the processor or computer issue either when he was driving the Van or at the time he was attempting to sell the Van and when he was dealing with the Claimant. [ 144 ] The Defendant’s actions once he was contacted by the Claimant about the warning lights and transmission problems is also very telling and assist me in allowing to reach the conclusions that I have regarding the Defendant’s fraudulent misrepresentation. [ 145 ] I am of the view that the Defendant’s actions, after the Claimant called him, were not consistent with an individual who had an honest belief that the Van was as he had represented it to the Claimant, but rather, are consistent with an individual caught in the deception that he had perpetrated.

[ 146 ] I accept the Claimant’s evidence that he was told by the Defendant that the Defendant had received two police warnings about the unlicensed and uninsured Van being on the street and therefore it was the Defendant, not the Claimant, who was insistent that the Van be moved immediately by the Defendant to the Claimant’s residence.

I am satisfied that this was part of a “grab, dump and run” strategy on the part of the Defendant: to obtain sale price in hand (the “grab”); to quickly rid himself of possession of the Van before the deficiencies known to the Defendant, became apparent to the Claimant once driven by him and after only some five minutes (the “dump”); and then to take off as quickly as possible and take steps to avoid having to deal with the Claimant about the defects then or the future (the “run”). [ 147 ] Instead of dealing with the Claimant in a reasonable fashion and at least discussing the problems and investigating the concerns, of which the Defendant contends he knew nothing about, the Defendant set upon a course of blameworthy conduct to avoid further communication or contact with the Claimant and to avoid service of the Notice of Claim and to otherwise avoid dealing with the lawsuit being advanced by the Claimant against the Defendant until the Default Order was obtained. [ 148 ] The Defendant also used as part of that “run” strategy the harassment reports he filed with Saanich police.

In my view, by way of those reports, the Defendant was attempting to use the resulting police contact with the Claimant as both a sword and as a shield against the Claimant’s civil law suit. [ 149 ] There is nothing in the evidence to support a conclusion that the Van was being sold on an “as is, where it is” basis.

It certainly was not advertised in that fashion in the online advertisement and the parties did not discuss that condition nor did they sign any document to that effect. [ 150 ] Rescission of the contract between these parties is not available in this case because of the fact that the Claimant had disposed of the Van.

However I am satisfied that damages in lieu of are available and appropriate in this case. [ 151 ] With respect to the question of mitigation of damages, I note that several attempts were made by the Claimant to engage the Defendant about resolving the matters and a formal written notice was given to the Defendant about the Claimant’s intention to dispose of the Van. That elicited no response. [ 152 ] While it is arguable that the Van was worth something more than the $350 obtained by the Claimant, I note the evidence of Mr.

Metters about the estimated cost to replace the transmission, which amount would have far exceeded the actual sale- purchase price in dispute. The Defendant presented no evidence that would contradict that the price fetched for the Van, given the numerous defects, was unreasonable. Hence I am of the view that in the whole of the circumstances the Claimant took reasonable steps to mitigate. [ 153 ] I do note that there is not sufficient evidence before me to conclude that the Defendant was working as a “curber”, notwithstanding the evidence of an unusual number of cars at the Defendant’s residence.

At the very least, the Claimant would have had to establish numerous other advertisements by the Defendant offering several other vehicles for sale. [ 154 ] If it could be established that the Defendant was actually conducting a business of this nature, and was therefore found to be a “supplier”, then the provisions of the Business Practices and Consumer Protection Act , S.B.C. 2004, ch. 2 may be applicable.

Decision and Order [ 155 ] Given that the Claimant recovered and retained $350.00 from his sale of the Van, the amount of the judgment for damages in favour of the Claimant against the Defendant will be as follows: (

a) for the balance of the purchase price of the Van the amount of $1,850.00 (

b) for paid sales tax, thrown away the amount of $264.00 (

c) for the paid new plate fee thrown away the amount of $18.00 (

d) for the court filing fee the amount of $100.00 being a total of $2,232.00. [ 156 ] In addition, the Claimant will be entitled to other reasonable expenses in accordance with Rule 20, to be determined by the Registrar on the basis of paid invoices submitted, which may include, without limitation, for service and attempted service upon the Defendant, including the registered mail costs and for the invoiced services for Trevor Metters to attend and testify as an expert witness, which amount will be the lesser of $225 or the actual amount invoiced to the Claimant. [ 157 ] The Claimant will also be entitled to Court Order interest to be calculated as prejudgment interest by the Registrar from October 14, 2014, to the date of filing of these reasons for judgment in the Victoria Court Registry, all in accordance with the Court Order Interest Act R.S.B.C. 1996, c. 79 and amendments thereto.

Thereafter Court Order interest will be calculated as post-judgment interest in accordance with the Court Order Interest Act . [ 158 ] The payment order made pursuant to Rule 11(1) is that the total amount of the judgment will be payable immediately by the Defendant to the Claimant. BY THE COURT

________________________________ The Honourable Judge J.P. MacCarthy