Clayton v. North Shore Driving School et al. Date:, 2017 BCPC 198

Citation: Clayton v. North Shore Driving School et al. Date: 20170524 2017 BCPC 198 File No: 1655160 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil BETWEEN: TRAVIS STEVEN CLAYTON CLAIMANT AND: NORTH SHORE DRIVING SCHOOL, INLAND KENWORTH LTD., VAN-ISLE TRUCK TECH LTD., DAWSON TRUCK REPAIRS LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI Appearing on his own behalf: T.S. Clayton Appearing on behalf of North Shore Driving School: J. Briton and J. Briton Appearing on behalf of Inland Kenworth Ltd: V. Waller Appearing on behalf of Van-Isle Truck Tech Ltd.: W. Johnston Appearing on behalf of Dawson Truck Repairs Ltd.: K. Newton A. Comey

Place of Hearing: Vancouver, B.C. Date of Hearing: March 28-31, 2017 Date of Judgment: May 24, 2017 INTRODUCTION [ 1 ] In January 2015 the claimant, Travis Clayton, purchased a used 1996 black Kenworth T600 truck (“the truck”) from the defendant North Shore Driving School Ltd. (“NSDS”). Several months later, in July 2015, Mr. Clayton learned there was a crack on the front driver’s side frame of the truck. He was told the truck was unsafe to drive. Mr. Clayton was not able to have the truck repaired immediately because of the cost involved but eventually he had the frame repaired at a cost of approximately $5,700.

As a result Mr. Clayton has brought this claim against NSDS, the company that sold him the truck; Inland Kenworth, the company that sold the truck to NSDS in 1996 and maintained/inspected it for a period of time; Dawson Truck Repairs Ltd. (“Dawson”), the company that maintained and inspected the truck from 2012 to 2014; and Van-Isle Truck Tech Ltd. (“Van-Isle”), the company that inspected the truck and did some repairs in March 2015. [ 2 ] Mr.

Clayton maintains NSDS sold him a truck that had a severe crack in the frame and was unfit for the purpose for which it was bought in contravention of the Sale of Goods Act , ss. 17 , 18 , and 56 . Mr. Clayton also maintains NSDS misrepresented the state of the truck at the time of sale, concealed its true history, and tried to conceal the defect in the frame. He maintains NSDS committed fraud by selling him a truck given the condition and circumstances of the truck he purchased. [ 3 ] Mr.

Clayton maintains Inland Kenworth was negligent because it failed to recognize a recurring issue with the front end of the truck. As the dealer that sold the truck to NSDS and as the company that performed maintenance and inspections on the truck for a period of time, it should have taken steps to investigate and detect the cracked frame. [ 4 ] With respect to Dawson, Mr. Clayton maintains it too was negligent when it performed a commercial vehicle inspection on the truck in April 2014.

Inspection guidelines that apply to commercial vehicles direct that the area where the crack was found on the frame of the truck is one that ought to be visually inspected. If Dawson had been diligent in its inspection, it would have detected the crack in the frame. [ 5 ] With respect to Van-Isle, Mr. Clayton maintains it was negligent in its performance of a commercial vehicle inspection in March 2015. If it had done a proper and thorough inspection, it would have detected the crack in the frame. Damages sought by Mr. Clayton [ 6 ] Mr. Clayton claims damages for a number of losses.

I have rounded out the amounts claimed for ease of reference. He claims: lost wages ($32,112), repairs ($5,701), towing ($314), and engineer’s expert report ($522). He also claims filing fees and service fees. Mr. Clayton abandoned the amount of damages over $25,000 so as to stay within the jurisdiction of the provincial court. BACKGROUND CIRCUMSTANCES Purchase of the truck [ 7 ] Mr. Clayton is a truck driver and has a Class1 driver’s license. He has worked as a truck driver for various trucking companies for the last 11 years. In January 2015 he was working as a driver for Bounty Holdings.

He found an advertisement for the truck online at autotrader.ca . The advertised price was $18,000. The advertisement provided some basic information about the truck including its mileage of 350,000 km. He made an appointment online to meet with Tom Huynh, who he understood was the operations coordinator of the truck division of NSDS. On January 20, 2015, Mr. Clayton went to NSDS’s Burnaby location and met with Mr. Huynh. [ 8 ] Mr. Clayton, accompanied by Mr. Huynh, took the truck for a test drive which, according to Mr. Clayton, lasted for about 15 minutes.

After the test drive they returned to NSDS’s Burnaby office. Mr. Clayton went over recent maintenance records for the truck. He was concerned that the CB radio was missing. Mr. Huynh introduced him to Judy Briton, the daughter of the owner of NSDS. After a discussion Ms. Briton told him she would speak to her mother about the price. As a result, the price was lowered by $300. Mr. Clayton purchased the truck that day for $17,700. [ 9 ] In cross-examination Mr. Clayton said he looked at a number of other trucks before he settled on the one advertised by NSDS.

He bought the truck because of the type of engine in the truck and the good reputation of the Kenworth brand. He said this particular truck is very rare. He did not have the truck inspected, neither did he undertake a lien search or a search of ICBC records regarding accidents. He accepted NSDS’s claim that it had kept good records and had maintained the truck. He thought the price advertised for the truck was a good price. [ 10 ] In cross-examination Mr. Clayton was asked about his long term business plan for the truck. He said he planned to work as an owner-operator.

He financed the purchase of the truck through a bank line of credit. When pressed about his plans for the truck, Mr. Clayton said he had a lot of options but, at the time, he did not know for certain what he was going to do with the truck. He did not have an immediate plan regarding how he was going to use the truck. [ 11 ] At the time of sale, Mr. Clayton signed a document titled – Bill of Sale. It was printed on NSDS letterhead and dated January 20, 2015.

The bill of sale read: This is to confirm the sale of a North Shore Driving School 1996 Kenworth tractor, VIN #1XKAD209X8TJ942319 as is, where is (no guarantees or warranties implied), to Travis Clayton for the sum of $17,700 (Seventeen thousand seven hundred dollars).

[ 12 ] In cross-examination Mr. Clayton acknowledged he did not feel under any duress at the time of purchase. He also said he understood the terms and conditions of the bill of sale. His understanding of the bill of sale was that it implied the vehicle was a used truck. Mr. Clayton understood NSDS was not accepting any responsibility after he left the premises with the truck. He also understood NSDS was not accepting responsibility for replacement of things such as a broken tail light, tires or other similar parts. However, Mr.

Clayton was not expecting to find damage on the truck that might compromise its integrity. When he signed the bill of sale he never thought it would apply to such severe pre-existing damage as a cracked frame that could have severely injured him or the general public. [ 13 ] Mr. Clayton left the truck at NSDS’s Burnaby location and returned a week later to pick it up. He drove the truck to his home on Thetis Island where it sat for approximately two months. At the time, Mr. Clayton was finishing his job as a driver with Bounty Holdings.

He obtained a day permit on three separate occasions which allowed him to drive the truck to the shop and back again. Other than that he did not drive the truck. [ 14 ] On or about March 6, 2015, Mr. Clayton took the truck to Van-Isle for a commercial vehicle inspection. [ 15 ] On April 1, 2015, Mr. Clayton put the truck to work. He began operating the truck as an owner-operator working for Protrux Systems Inc. Mr. Clayton said he operated the truck on a daily basis, approximately five days a week. He hauled building materials in western Canada and western U.S. (Washington, Oregon and Idaho).

The materials he hauled were mainly doors and mouldings. He hauled the materials in a 53 foot curtain side trailer. He explained there was a fourth axle on the back of the trailer but he only used it in U.S. states that required a fourth axle to be used. He noted that using the fourth axle can increase or decrease the amount of weight at the front end of the truck. Finding out about crack in frame [ 16 ] On June 26, 2015, when he was doing a post-trip inspection, Mr. Clayton found he could not close the hood of the truck. He took the truck to Tridem, a shop recommended to him by Protrux.

The mechanic at Tridem who inspected the truck told him the hood was not properly adjusted. Apparently, the adjustment collar had been loosened in order to slide it to the very end of the pivot point. The mechanic told him this was not right and it may have been why the truck hood was not closing properly. The mechanic tried to readjust the hood to factory settings. However, that did not work. The hood, as a result, was completely misaligned and this made matters worse. The significance of the hood adjustment, from Mr. Clayton’s point of view, is the fact the hood was not set to factory settings.

This suggests someone had readjusted the hood which, either intentionally or inadvertently, hid the crack in the frame. [ 17 ] The mechanic at Tridem recommended to Mr. Clayton that he take the truck to a professional truck body shop. He recommended Reflections Truck Body Repair. Mr. Clayton took the truck to that shop on June 29, 2015, and spoke to “Rory” about the problem with the truck hood. Rory told him this usually meant it was a structural issue. Rory asked Mr. Clayton to leave the truck at the shop. Mr. Clayton did so and returned a week later. At that time Rory told Mr.

Clayton about the crack in the frame. Rory told him the crack was so severe that it was not safe for Mr. Clayton to drive the truck. Rory also told him the only way they could fix the problem was to replace the frame rail. Rory gave Mr. Clayton an approximate estimate for that work of $11,000 to $20,000. Rory told him, based on the rust around the crack; it appeared it had been there for several years. [ 18 ] In cross-examination Mr. Clayton acknowledged he personally had done visual inspections of the truck a number of times. He did pre-trip inspections every time he drove the truck for work. Mr.

Clayton acknowledged he had visually inspected the frame of the truck 35 times. He also acknowledged he had not found the crack in the frame on any of those occasions. [ 19 ] Mr. Clayton was not in a financial position to have Reflections repair the frame. He initially contacted NSDS and spoke to Judy Briton. She told him she had no knowledge of the crack. He also contacted Inland Kenworth, Van-Isle, and Dawson. Inland Kenworth provided no information because Mr. Clayton was not the owner at the time they serviced the truck. Mr. Johnston of Van-Isle told him he had no knowledge of the crack in the frame.

The receptionist at Dawson told him they had no knowledge of the crack in the frame. [ 20 ] Mr. Clayton contacted a lawyer to obtain advice. The lawyer provided him advice and also wrote to NSDS. The matter was not resolved. [ 21 ] Mr. Clayton tried to find someone who could repair the crack in the frame at a reasonable price. In early to mid-September 2015, Reflections told him they had found a shop that could effect the repairs for a cost between $6,000 to $7,000. This was Frontline Trailer Manufacturing; however they were not able to begin the work immediately. Mr.

Clayton arranged for the truck to be towed to Frontline. However, after he had made those arrangements, the tow truck driver deemed it unsafe to tow the truck, so arrangements had to be made to move the truck using special equipment. Eventually the frame of the truck was repaired by Frontline for a cost of $5,500. Mr. Clayton picked up the truck on October 30, 2015. [ 22 ] In cross-examination Mr. Clayton was asked whether he contacted any other shops regarding the repairs to the truck. He said he did not but chose to go to the people he trusted.

He did not try to rent a truck to use for his work with Protrux because he did not believe that was an option. He was asked why it took until October to get the truck repaired by Frontline. He said the shop was not able to take the truck before that date. Expert opinion [ 23 ] Mr. Clayton, with the help of his lawyer, obtained an opinion from Craig Sanderson, a professional engineer with SCS Materials Engineers Ltd. Mr. Sanderson provided an email of his findings dated September 3, 2015, which was presented in court. I summarize the contents of that email in point form below:

a) Apparently the location of the crack was in an awkward spot. Mr. Sanderson actually wrote, “What a crappy place to access”. I assume he was referring to the location of the crack.

b) The crack initiated at the rear bolt hole through the bottom flange of the left frame rail where two bolts attach a heavy spring-related component to the frame, just to the rear of the right front wheel.

c) The crack initiated several years ago but was not visible as it was hidden behind/beneath the heavy spring component.

d) The crack is a fatigue crack. The initiation and initial growth was very slow and not visible.

e) As the crack grew, the remaining available frame rail to support service loads was reduced and the crack grew more quickly.

f) The growth up the vertical part of the frame rail toward the top flange happened rapidly once the bottom flange was cracked 100%. The vertical crack occurred recently as confirmed by the lack of corrosion and spacing of fatigue striations benchmarks.

g) At the time it was examined (September 3, 2015), only the top horizontal flange for the channel shaped frame rail was available to support service loads. It was unsafe to drive the truck.

h) The corrosion depth for the initial cracking in the frame flange indicated the crack started prior to the current owner’s truck purchase. The owner at the time the crack initiated would not have been aware that a hidden fatigue crack was present. There would be no visual evidence.

i) Once the bottom flange eventually failed, the service loads rapidly propagated the crack up the frame rail and opened the crack in the bottom flange.

j) This was an unusual failure.

k) The fatigue crack was initiated by some inadvertent overload incident in the past.

l) Once the crack failed the total cross-section for the bottom flange of the frame rail, vertical crack propagation through the vertical web of the frame rail was rapid.

m) The latter part of the failure occurred in a few months or less. NSDS’s dealing with the truck [ 24 ] Ms. Briton is the daughter of the owner of NSDS and the manager of NSDS. She has been involved in the driving school business since her parents bought the school in 1986. Ms. Briton testified that NSDS owned the truck since it was brand-new. It was purchased in 1996. The truck was used at the driving school pretty much every day. The driving school operates seven days a week. However, Ms.

Briton said, for the last few years (4 to 5 years) prior to the sale date the truck had been used as a spare. [ 25 ] As far as Ms. Briton knew the truck was in good mechanical condition. NSDS used both Inland Kenworth and Dawson to service and inspect the truck. Ms. Briton said the truck had been taken in for scheduled maintenance. Furthermore, there was a requirement to have it inspected on an annual basis and NSDS complied with that requirement. Ms. Briton noted it was in NSDS’s best interests to keep the truck in good working order.

If a truck is not in good working order, it will be refused when a driver goes for the ICBC driving test. [ 26 ] Ms. Briton said NSDS had maintenance records for the truck from February 2007 to 2015. It is only required to keep records for seven years. She pointed out that the truck maintenance and inspection documents NSDS had made no mention of a problem with a crack. [ 27 ] In cross-examination Ms. Briton testified that Inland Kenworth did maintenance and inspections from 2007 to 2011.

However, NSDS found that Inland Kenworth was very expensive so they sought out Dawson’s to do the maintenance and the commercial vehicle inspections. Ms. Briton was asked why NSDS sold the truck. She said NSDS was not using it as much as it had in the past. NSDS had newer trucks and the students wanted to learn to drive on a newer vehicle. [ 28 ] Ms. Briton testified that whenever the truck was used, including in the later years, a pre-trip inspection was done every time it was driven by a student.

Sometimes a pre-trip inspection was done four or five times a day, depending on the number of students who drove the truck. Post-trip inspections were also done but it was not clear from the evidence whether they were done with the same regularity as the pre-trip inspections. If deficiencies were found on the truck, those deficiencies were fixed. [ 29 ] Ms. Briton said the truck did not pull a lot of weight. This was because, as a driving school, they did not pull a full load. She thought it carried approximately 20,000 kg or a little bit above that.

The weights that can be carried by driving school trucks are set by ICBC. Ms. Briton’s involvement in the sale [ 30 ] Ms. Briton testified about her involvement in the sale of the truck. During the time she worked at NSDS only two or three trucks were sold. On this occasion she met with Mr. Clayton to answer any questions he might have. After the test drive Mr. Clayton returned to the office. He looked at the maintenance records for the truck. He said he was interested. Mr. Clayton was quite excited about having found this particular Kenworth truck because this kind of truck is hard to find. When Mr.

Clayton said he was interested, she discussed the price with him. As the truck did not have a CB radio, the price was reduced by $300. [ 31 ] Mr. Clayton left the office and came back a few hours later with a certified cheque. In her presence, Mr. Clayton signed a bill of sale prepared by NSDS. He seemed to sign the bill of sale willingly. They had to deal with the transfer papers, therefore she drove Mr. Clayton to an insurance agent so he could complete the documentation. She then drove him back to the office. During the time they were together they had a conversation. Mr.

Clayton told her he was hoping to become an owner-operator. He was going to haul stuff. He had a lot of ideas. He was quite excited about it. She asked him if he was satisfied with the information he had received about the truck. He told her he was. On the way to the insurance agent’s office they drove by Dawson’s premises. Ms. Briton told Mr. Clayton that NSDS had used both Inland Kenworth and Dawson to do work on the truck. She asked him when he was going to get an inspection.

Mr. Clayton told her he was not sure when he was going to put the truck into service. He was going to take it and put it in storage for a while and was going to figure it out. [ 32 ] Ms. Briton had no comment about the expert report from Mr. Sanderson. She said the truck had been inspected by students and instructors on numerous occasions and no one reported a crack. Furthermore, NSDS had the vehicle maintained and inspected by Dawson. If Dawson had mentioned a crack at any time NSDS would have had it fixed. If she knew about a crack in the frame she would have told Mr. Clayton when he purchased it. However, Ms.

Briton maintained NSDS knew nothing about a crack in the frame. [ 33 ] In cross-examination Ms. Briton was asked whether it was reasonable for Mr. Clayton to believe that on the day he purchased the truck it was in pretty much in the same condition as it had been when the commercial vehicle inspection report (9568855) had been issued on April 30, 2014, given the minimum amount of time the truck had been driven. Ms. Briton acknowledged that was reasonable. [ 34 ] Ms. Briton was directed to a

summary report which listed the repairs done on the truck between 2008 and 2014. She was asked if she saw a pattern in the type of repairs. She said she did not. It was pointed out to her that 10 of the items on that report were front end related repairs. Ms. Briton maintained she did not see a pattern. She pointed out the truck was used at the driving school and they had more brake issues with the truck than a normal truck driver would. [ 35 ] Mr. Tom Huynh also testified for NSDS. He initially began working at NSDS as an instructor in 2012.

He later became a coordinator and in 2016 became the operations manager. Mr. Huynh took Mr. Clayton out for a test drive on the truck. He estimated that altogether he spent approximately an hour and a half with Mr. Clayton, that is; 15 to 20 minutes for a short inspection and getting the truck started, test driving for approximately 30 to 45 minutes, and 15 to 20 minutes once they returned to the office. Ms. Briton was at the office at that time. While she spoke to Mr. Clayton, Mr. Huynh left to try to find a CB radio for the truck. He could not find one. Later Mr.

Huynh went over the truck’s maintenance records with Mr. Clayton. Inland Kenworth’s dealing with truck [ 36 ] Vance Waller gave evidence on behalf of Inland Kenworth. He has worked for the company since 1998 and is currently their director of credit. He checked Inland Kenworth’s records and found that the last time they had repaired the truck was November 10, 2011 (invoice 70950). The last time they issued a commercial vehicle inspection report was May 5, 2011. Mr.

Waller testified that Inland Kenworth had not seen the truck since 2011. [ 37 ] He also testified that in June 2015 the Pac Lease division of Inland Kenworth had five trucks that were available for rental. The weekly rental cost for a truck was $900 per week plus mileage and insurance. [ 38 ] In cross-examination Mr. Waller was asked about the ownership of the truck before it was delivered to NSDS. He explained that in order to get a bulk discount Inland Kenworth may place orders for trucks under the Swift or Ranger name. Mr. Waller acknowledged that a detailed truck

summary for the truck indicated the dealer name was Inland Kenworth Ltd. The customer was listed as Ranger Transport. He could not say why the name Ranger was there. However, he said Inland Kenworth has a long-term relationship with Ranger and sometimes piggybacks on Ranger’s orders. In cross-examination he also pointed out that Ranger’s truck colours are blue and yellow and Ranger would not have ordered a black truck for their own use. Dawson’s dealing with the truck [ 39 ] Ken Newton gave evidence on behalf of Dawson. He is a licensed mechanic and a licensed inspector.

He testified that Dawson is a designated inspection facility. It conducts approximately 800 to 1000 inspections per year on such vehicles as trucks, buses, and trailers. It has 15 employees, 8 of whom are licensed inspectors. Mr. Newton testified that in the 22 years he has been with Dawson it has never had an infraction with the Department of Transport. [ 40 ] Mr. Newton testified that a commercial vehicle inspection was carried out on the truck in 2012, 2013, and 2014. Each of those three inspections was done by a different inspector. Repairs were also carried out on the truck by various mechanics.

He reviewed the invoices that documented the repairs undertaken by Dawson. [ 41 ] In cross-examination Mr. Newton acknowledged that the list of repairs he described constituted normal wear and tear. He said the truck was in very good condition for its age. He said before the inspection of May 8, 2012, Dawson had not inspected that truck. He did not know why NSDS brought its business to Dawson and he did not know who had done NSDS’s work previously. He did the inspection of April 30, 2013, himself. [ 42 ] Mr. Newton agreed the purpose of an inspection is to find problems not apparent on pre-trip inspections.

He was asked to assume that the truck had been inspected in April 2014, only driven 699 km, and carried weight to a maximum of 20,000 kg. He was asked whether in such circumstances it would be reasonable to believe that the truck would be in a similar condition in 2015 as it was when it was inspected by Dawson in 2014. Mr. Newton said he carried out the April 2013 inspection. At that time the mileage on the truck was 340,761 km. The speedometer was replaced accordingly it only read 3021. Mr. Newton said anything can happen on a truck in 699 km.

Air lines can go, brake parts can go and so forth. [ 43 ] In cross-examination by Ms. Briton, Mr. Newton said that whenever he called NSDS and told them something had to be repaired, they repaired it. He also said NSDS never asked him to cover up defects. Van-Isle’s dealings with the truck [ 44 ] Mr. Johnston testified on behalf of Van-Isle. He is a heavy duty mechanic and an authorized commercial vehicle inspector. He obtained his inspector’s ticket in approximately 2000. Van-Isle has been in business for 11 years in Ladysmith, British Columbia.

It carries out work on vehicles ranging from light trucks to heavy-duty trucks. The shop performs approximately 150 inspections per year plus regular maintenance.

[ 45 ] Mr. Clayton brought the truck to Van-Isle for an inspection in March 2015. At that time they inspected the truck. They also did minor repairs. The inspection of commercial vehicles must be conducted in accordance with criteria and standards contained in the Vehicle Inspection Manual, the Motor Vehicle Act and the Motor Vehicle Act Regulations . An excerpt of a Vehicle Inspection Guide was tendered as an exhibit. In that excerpt it is noted that the Vehicle Inspection Manual is a legal regulation enacted under legislative powers established by the Motor Vehicle Act . [ 46 ] Mr.

Johnston explained there is a truck and tractor inspection manual which sets out the specific items to be inspected, the method of inspection and the circumstances under which a rejection will issue. There is a specific

section that deals with the inspection of frame rails and mounts. A visual inspection must be carried out of the frame rails, frame fasteners, cross members, and mounts. If the frame rails are cracked, broken, bent, or kinked they must be rejected. As well, if the frame rails are rusted to such a depth as to weaken the frame, they must be rejected. [ 47 ] Mr. Johnston said when he inspects a commercial vehicle he inspects the cab on the inside. He also inspects the outside of the vehicle; that includes a mechanical check. Part of the inspection involves jacking up the frame to let the suspension hang.

When this is done he would see the same area of the truck depicted in a number of the photographs tendered by Mr. Clayton. He checks the kingpin and the air system, if the truck has air brakes; he conducts electrical tests, and checks the lighting. He goes underneath the vehicle when the inspection is carried out. [ 48 ] Mr. Johnston reviewed an invoice and a commercial vehicle inspection report dated March 6, 2015. The invoice indicates the truck was brought in to Van-Isle for inspection and repairs. The repairs included replacing a brake pot and a driveline u joint. The inspection report was completed by Mr.

Johnston personally. He inspected the truck on that occasion. The inspection report indicates the inspection started at 8 a.m. March 6, 2015, and was completed by 1 p.m. the same day. The truck passed all of the applicable areas of inspection, but in two areas it received a “pass with caution”. One of those areas was the powertrain. There was a notation that there was “fan hub friction”. The other area was body and frame. There was a notation “hood pins”. [ 49 ] Mr. Johnston said based on its age he thought the truck probably had almost 400,000 km. In Van-Isle’s invoice the mileage was noted as “3720+”.

He made the notation because the mileage was more than that. [ 50 ] Mr. Johnston testified there is a commercial transport procedures manual which specifies the legal weights allowed for axles and axle groups.

Section 6.3.2 of that manual states that regardless of the weights listed in the manual, a vehicle may not exceed the axle weight rating as specified by the manufacturer or the tire size as specified by the CTAR (meaning of acronym not explained) for any axle or axle group. [ 51 ] Mr. Johnston also obtained and filed a copy of the order form for the truck. He obtained that information from the Inland Kenworth Nanaimo office. He testified the model number of the front axle listed in the order form indicates it was one axle only. He also testified that the load capacity for the axle was 12,000 pounds. Mr.

Johnston obtained a certified automated truck scale ticket dated 4-06-2015, issued to the truck. The gross weight carried on that occasion was 92,900 pounds and the steer axle weight was 12,440 pounds. [ 52 ] In cross-examination, Mr. Johnston acknowledged the condition of the truck was good for its age. He also agreed about the location of the crack, namely, at the rear bolt hole of the rear mount of the front axle to the frame. Mr. Johnston was referred to s. 7(

a) of a document titled Truck and Truck Tractor Inspection Manual (Frame Rails and Mounts), which indicated certain items were to be visually inspected. Mr. Clayton asked whether that meant, if a crack was present, Mr. Johnston would have found it. Mr. Johnston said he would have found a crack if it was present. It was put to him that the purpose of an inspection is to find defects that cannot be found during pre or post-trip inspections. Mr. Johnston said the purpose was broader than that.

It was his view that, if drivers were allowed to do their own inspections, every vehicle would pass and that would not make for safe highways. POSITION OF THE PARTIES Position of claimant [ 53 ] Mr. Clayton relies on the Sale of Goods Act , in particular, ss. 17 , 18 , and 56 . Mr. Clayton specifically submits:

a) He made known to NSDS the purpose for which the goods were required and therefore there is an implied condition that the goods are reasonably fit for that purpose.

b) The sale of the truck was a sale by description and therefore there is an implied condition that the truck was of merchantable quality.

c) Further, there is an implied condition that the truck would be durable for a reasonable period of time. Mr. Clayton also reviewed s. 56 of the Sale of Goods Act . He said he is not seeking rescission but direct and indirect damages flowing from the crack found in the frame of the truck. [ 54 ] Mr. Clayton also submits that NSDS misrepresented the condition of the truck. Mr. Clayton submits when NSDS sold the truck to him the crack in the frame was already there. He believes NSDS knew about the crack in the frame when it sold the truck to him. He also believes NSDS tried to conceal the defect. Accordingly, Mr.

Clayton submits NSDS misrepresented the condition of the truck at the time of sale. [ 55 ] On this point Mr. Clayton relies on the statements in the expert report of Mr. Sanderson which notes that the crack had started prior to his purchase of the truck and dated back several years. He also relies on photographs taken from NSDS’s Facebook postings which in his view show that the hood on the truck was misaligned as far back as 2008. He submits the misaligned hood was a symptom of the hidden crack.

He submits, based on circumstantial evidence led at the trial, that someone had adjusted the hood to hide the real issue, namely, the crack in the frame. He notes that once the crack was repaired the hood of the truck was perfectly aligned.

[ 56 ] With respect to concealment of the defect, Mr. Clayton argues that both Judy Britton and Tom Huynh described the truck as being in very good condition at the time of sale despite the hidden flaw. In particular, Mr. Clayton argues NSDS tried to hide the true history of the truck. He testified that Mr. Huynh told him the truck had previously been briefly owned by Ranger Transport. However, he points out that after he found out about the crack in the frame, NSDS blocked all attempts he made to contact Mr. Huynh. This included being told that Mr. Huynh was on a leave of absence and that Mr.

Huynh had left the company. [ 57 ] Mr. Clayton also argues that Mr. Huynh was clearly on a mission to protect his employer NSDS. Mr. Clayton reviewed Mr. Huynh’s evidence and other related evidence and submits Mr. Huynh was untruthful and inaccurate. In particular Mr. Clayton submits Mr. Huynh was inaccurate about the length of time the truck was taken out for a test drive. [ 58 ] Mr. Clayton notes that NSDS was adamant about how open they had been with him at the time of sale regarding maintenance records.

However, he contrasted that to NSDS’s refusal to provide any of the records after the crack was found, despite repeated attempts by his lawyer to obtain that information. [ 59 ] Mr. Clayton argues that the concealment also extends to Inland Kenworth. It is his theory that NSDS likely instructed Inland Kenworth not to disclose any information about the truck to Mr. Clayton. His theory stems from the response he received from the receptionist when he called Inland Kenworth in July 2015 and was told that she could not talk to him. [ 60 ] Mr.

Clayton submits it is reasonable to conclude that NSDS also concealed the truth about the condition of the truck from Dawson. He notes that the truck he bought was the first truck NSDS took to Dawson for maintenance. It is Mr. Clayton’s theory that NSDS was likely aware of the recurring front end issues with the truck (based on the service history/invoices from Inland Kenworth). He notes that Mr. Newton testified NSDS did not provide anything about the history of the truck when they first took it to Dawson. [ 61 ] Mr.

Clayton submits that NSDS was likely relying on Dawson not to find the problem or any underlying problems causing the recurring pattern of front end issues. He further believes that NSDS relied on the commercial vehicle inspection report issued by Dawson in April 2014 to provide a false account of the truck’s condition at time of sale. Position regarding Inland Kenworth [ 62 ] Mr. Clayton submits that Inland Kenworth caused him damages by its negligence in failing to recognize recurring issues with the front end of the truck. Mr. Clayton points to a maintenance

summary of the work performed by Inland Kenworth between 2008 and 2011. This work consisted of various repairs performed by Inland Kenworth on the front end of the truck. It included such things as replacing steer axle auto slacks, repairing steer brakes for hanging up, and replacing front tie rods. Mr. Clayton’s position is that according to the expert’s report the cracked frame was likely there for several years.

Accordingly, if Inland Kenworth had recognized the pattern of front end issues with the truck, it could have led to a qualified mechanic further investigating and detecting the cracked frame. [ 63 ] Mr. Clayton points out that Inland Kenworth was the dealer who originally sold the truck and performed inspections and maintenance on the truck for many years but at least between 2007 and 2012. Accordingly, Mr. Clayton argues Inland Kenworth had a responsibility with regards to the integrity of the truck. They failed in that responsibility by not detecting the cracked frame. Position regarding Dawson [ 64 ] Mr.

Clayton submits Dawson was negligent in its commercial vehicle inspection and issuance of an inspection certificate in April 2014. Mr. Clayton relies on the expert’s report which states the crack to the frame of the truck dated back several years. From that opinion he extrapolates that the crack must have been present when Dawson inspected the truck in April 2014. [ 65 ] Mr. Clayton points out the inspection guidelines clearly indicate that the exact area where the crack was located on his truck is an area which must be visually inspected.

He notes that by his calculation the truck had only been driven approximately 699 km between the April 30, 2014, inspection and April 2015 when Mr. Clayton began using the truck at work. He submits, given that information, that the truck was in the same condition when he purchased it as it had been when it was inspected in April 2014. His theory is that Dawson did not diligently follow the inspection guidelines when it inspected the truck in April 2014. He suggests that Dawson was likely misled by the overall good condition of the truck for its age. Mr.

Clayton submits he relied on Dawson’s 2014 inspection report, which he was given by NSDS, as a guarantee of the mechanical integrity of the truck at the time of purchase. Position regarding Van-Isle [ 66 ] Mr. Clayton submits that Van-Isle was negligent in the performance of the commercial vehicle inspection of the truck on March 6, 2015. Again, he relies on the expert’s report which indicates the crack dated back several years before Mr. Clayton purchased it. He therefore argues that the crack in the frame was present when the truck was inspected by Van-Isle in March 2015.

He notes the inspection guidelines clearly indicate that the area where the crack was located on the frame of his truck is one of the areas which must be visually inspected. Mr. Johnston explained the procedure followed during a commercial vehicle inspection and the areas inspected. Mr. Clayton’s position regarding Van-Isle is that it did not diligently follow the inspection guidelines when it inspected the truck. He suggests that Van-Isle may have been misled by the overall good condition of the truck for its age.

Position of NSDS [ 67 ] NSDS submits that during the time it owned the truck it performed regular maintenance and had the truck inspected as required by law on a yearly basis. Such maintenance and inspections were initially carried out by Inland Kenworth and later, beginning in 2012, by Dawson. In addition to maintenance and inspections by certified mechanics the truck had numerous pre-trip inspections on a daily basis. This was part of the training provided to the driving school students. The inspections were carried out by the students and the licensed instructors.

At no point before the sale of the truck did anyone report a crack in the frame. If one had been reported it would have been fixed.

[68] NSDS submits it never applied any pressure on Mr. Clayton to buy the truck or to sign the bill of sale. NSDS allowed Mr.Clayton to look at its maintenance records for the truck. It also allowed him to examine the truck. If he had asked NSDS to allow him tohave the truck inspected before he purchased it, they would have allowed him to do so. However, he did not ask to have the truckinspected by a mechanic. [69] NSDS submits they sold the truck to Mr. Clayton in good faith. The truck was in good working order.

They further submit Mr.Clayton had the truck for six months before he found a crack in the frame in July 2015. NSDS relies on Peters v. Econo Car CentreLtd., 2003 BCPC 286 , 2003 BCPC 0286. Position of Inland Kenworth [70] Inland Kenworth submits it ordered the truck for and sold it to NSDS on or about 1996. Between the time of 1996 sale andNovember 2011, Inland Kenworth maintained and inspected the truck. This included annual commercial vehicle inspections as requiredby law. Records submitted to the court from the period of 2007 to 2011 make no mention of a cracked frame.

Inland Kenworth notesthere would be no motive for it to hide the crack if it existed. In fact, the opposite would be true because it would then have had theopportunity to carry out a labour-intensive repair. [71] Inland Kenworth notes it has had nothing to do with the truck since November 2011. Inland Kenworth also points to the factthe claimant himself performed no less than 35 pre-trip and post-trip inspections during the period of April 2015 to June 2015. Moreover, prior to the sale no inspector, student, staff, or driving school instructor reported seeing a crack.

It also points to thetestimony of the representatives of Dawson and Van-Isle. Both Mr. Newton and Mr. Johnston were adamant they did not see a crack inthe frame when they inspected the truck. [72] Inland Kenworth notes that the expert’s report relied on by the claimant states the crack started slowly and was not visible. Theexpert’s report also notes there would be no visual evidence of the crack. Mr. Sanderson was not able to put a precise timeline on whenthe crack started. [73] Inland Kenworth submits Mr.

Clayton has not proved the case against it (or against any of the other defendants) on a balance ofprobabilities. He notes the claimant’s own expert was not able to confirm when the crack started or why the crack in the framehappened. Position of Dawson [74] Dawson submits it maintained and inspected the truck between 2012 and 2014. During that time three commercial vehicleinspections were carried out by three different inspectors. They found no crack. The truck also had three oil changes and three greaseservices performed by other staff. Dawson points to photographs that were submitted as exhibits (photos I and

J) and notes that a greasetube from the clutch cross shaft shown in one of those photos and spring pins are parts that are close to the area where the crack waslocated. If the crack had been visible, they would have seen it when the truck was serviced. Position of Van-Isle [75] Van-Isle submits that when it carried out a commercial vehicle inspection of the truck on March 6, 2015, the truck passed theinspection. No crack was found. Van-Isle notes no one detected a crack before early July 2015. Many people had serviced andinspected the truck and no one saw the crack.

Van-Isle notes that the claimant himself, who had done 35 pre and post-trip inspections,did not see the crack. Van-Isle also points out that in recent years there have been at least six services performed on the truck. Thisinvolved accessing the area near where the crack was found, but no one reported a crack. [76] Van-Isle also points to the expert’s report provided by the claimant. That report states the crack was hidden by a heavy springcomponent and therefore would not have been visible.

If the expert’s opinion is correct, Van-Isle submits there is not a certifiedinspection facility in British Columbia that would have found the crack. Van-Isle notes it is not practical, and is not the practice, to teardown a truck and put it together again when it is inspected. All that is required is a visual inspection. Van-Isle submits it was notnegligent in carrying out the inspection and the claimant has not proved a case against it on a balance of probabilities. APPLICABLE LAW [77] In civil cases the burden of proof lies with the party making the claim, in this case Mr.

Clayton, to prove his case on a balanceof probabilities. The meaning of this was commented on by the Supreme Court of Canada as follows: … In 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 has occurred. See, F.H. v. McDougall, 2008 SCC 53 at para 49; also see Martell v.

Reed, 2012 BCPC 201. [78] In British Columbia the Sale of Goods Act contains provisions which imply certain conditions and warranties into contracts forthe sale of goods. In particular, s. 18 of the Sale of Goods Act implies certain conditions regarding fitness for a specified purpose,merchantable quality, and durability for a reasonable period. The import and applicability of the provisions of the Sale of Goods Act willbe discussed in more detail in my analysis.

Section 20 of the Sale of Goods Act in essence prohibits parties to a contract regarding theretail sale of goods from excluding the application of the implied warranties under s. 18. However, s. 20 does not apply to the sale ofused goods. In other words, the seller of used goods can exclude the implied conditions contained in s. 18 by way of a term in thecontract of sale: see Sugiyama v. Pilsen, 2006 BCPC 265. If the seller intends to contract out of the implied conditions found in s. 18, theseller must do so in clear and unambiguous language: see, Trethewey v. Girard, (BC SC), [1983] B.C.J.

No. 1918; Queen Charlotte Lodge Ltd. v. Hiway Refrigeration Ltd., [1998] B.C.J. No. 13; and Sygiyama v. Pilsen. [79] The Sale of Goods Act does not have a reverse onus provision. In other words, it does not place the responsibility for

establishing a claim on the seller. Instead, the claimant must establish not only the alleged breach of a warranty or condition under theSale of Goods Act; he must also establish the existence of an implied condition or warranty. In the present case that means Mr. Claytonmust establish that the conditions or warranties he relies upon in the Sale of Goods Act apply and that one or more of those conditions orwarranties were breached: see, Berg v. Harbour City Diesel and Offroad Ltd., 2012 BCSC 710 and Judy’s Family Restaurant v.Brothers Food Equipment, 2016 BCPC 352.

ANALYSIS [80] The matter in dispute between the parties in this case raised a number of issues for the court’s consideration. Those issuesincluded, but were not limited to, the application of warranties and conditions under the Sale of Goods Act, whether there was a waiver ofconditions implied by the Sale of Goods Act, whether the truck was purchased for business purposes etc. I will not address all of thepossible issues raised by this case. Instead, I will focus on those issues that will be dispositive of the claim, one way or another. First, Iwill consider Mr.

Clayton’s claim against NSDS and then the claims against the other defendants. The claim against NSDS The crack on truck frame [81] One of the central factual determinations I must make in this case is about the existence, nature, and cause of the crack on thetruck frame which was identified by Rory at Reflections Truck Body Repair in early July 2015. The evidence presented on these pointscame from the claimant who tendered an emailed letter dated September 3, 2015, from Craig Sanderson, a professional engineer withSCS Materials Engineering Limited. The evidence from Mr.

Sanderson contained in that letter supports the following conclusions:

a) The crack began several years before Mr. Sanderson examined the truck.

b) The crack was hidden beneath/behind a heavy spring component and therefore was not visible.

c) The crack is a fatigue crack and the initiation and growth of the crack were very slow and not visible.

d) The growth up the vertical part of the frame rail happened rapidly once the flange was cracked 100%.

e) The vertical crack occurred recently. This conclusion was based on the lack of corrosion and the spacing of fatigue striations.

f) The initial crack in the frame bottom flange indicates that the crack began before Mr. Clayton purchased the truck.

g) The owner of the truck at the time the crack initiated would have been unaware that a hidden fatigue crack was present. There wasno visual evidence.

h) Once the bottom flange eventually failed, the service loads propagated the crack up the frame rail and opened the crack in the bottomflange.

i) This was an unusual failure.

j) The fatigue crack was initiated by some inadvertent overload incident in the past.

k) The latter part of the failure occurred in a few months or less. [82] On the basis of Mr. Sanderson’s evidence, I am satisfied that the crack on the truck frame began several years before Mr.Clayton purchased the truck. The crack grew slowly but was hidden from view. I accept Mr. Sanderson’s evidence that the owner ofthe truck at the time the crack started would not have been aware that a hidden fatigue crack was present. I also accept his evidence thatthe growth of the crack up the vertical part of the frame rail happened rapidly once the flange was cracked 100%. Moreover, the verticalcrack occurred recently.

I accept Mr. Sanderson’s opinion that once the crack failed, the latter part of the failure occurred in a fewmonths or less. Implied conditions/warranties under Sale of Goods Act Sale by description [83] The Sale of Goods Act, s. 17 provides: 17(1) In a contract for the sale or lease of goods by description, there is an implied condition that the goods must correspond with thedescription. The Sale of Goods Act does not define the word "description". However, the meaning of the term has been commented on in decisionsissued by the Supreme Court of British Columbia as well as by other Canadian courts. [84] G.H.L.

Fridman, Sale of Goods in Canada 6th Ed. (Canada: Carswell, 2013) notes that in the past the word “description” gaverise to difficulty. That word can refer to factors relevant to the definition of the goods being sold, namely, their identification. However,it can also refer to other attributes which are set out by the parties and believed by them to apply to defined identified goods. The debateon this point was settled by the decision in Ashington Piggeries Ltd. v.

Christopher Hill Ltd., [1972] A.C. 441 (H.L.) which, among otherthings, stands for the proposition that the language used with respect to sale of goods by description is directed to the identification ofgoods. [85] In Bakker v. Bowness Auto Parts Co., (1976) (AB CA), 68 D.L.R. (3d) 173, the Alberta Court of Appealnoted that although the term “description” was not defined in the Alberta legislation, it was clear that the description of which the

section

speaks (the reference was to s.16 of the Alberta legislation which is similar to the current s.17 in the British Columbia Sale of Goods Act ) was only that which, as a term of the contract, identified the subject matter of the sale. In that decision the court also noted that the description for the purposes of s. 16 of the Alberta act was a matter of construction as to what is contractually descriptive of the identity of the goods. [ 86 ] In Coast Hotels Ltd. v.

Royal Doulton Canada Ltd . , 2000 BCSC 857 , Martinson J. also relied on Ashington Piggeries Ltd ., and noted that the description goes to the identity of the goods. The court must construe the contract to determine what the description was. [ 87 ] In George Reed Inc. v. Nelson Machinery Company Ltd ., [1972] B.C.J. No. 572 , Ruttan J. wrote at paragraph 34 : There can be a sale by description even when the product is displayed on a counter in a shop, so long as it is sold not merely as a specific thing but as a thing that corresponds to a description. [ 88 ] In Leone Industries Inc. v.

International Adjusters (Western) Ltd. , [1994] B.C.J. No. 2832 , Wong J. said that in an action pursuant to a sale of goods by description the court must determine:

a) Is this is a s ale by description?

b) What do the words used in the description mean?

c) Do the goods correspond to the description? Was this a sale by description? [ 89 ] Mr. Clayton learned about the truck through an advertisement placed online in autotrader.ca. The advertisement had a bolded title – “1996 Kenworth T 600 – Burnaby $18,000”. The advertisement also contained several photographs of the truck. There was also a further description of the truck which indicated it was a used Kenworth, model T600 with 350,000 km.

The further description was – “220 WB, Cummins N 14435 HP, 18sp Eaton, 13,000 FA, 44,000 RA 4.33 ratio, 24.5 Alum wheels, two – 100 gallon fuel tanks.” [ 90 ] There is no dispute that the description in the advertisement described the truck Mr. Clayton purchased. In the instant case the description provided in the advertisement was amplified by a personal inspection made by Mr. Clayton when he attended at NSDS’s Burnaby office to view the truck and take it for a test drive. Mr. Clayton was told the truck had been maintained and serviced.

He was given access to the records which indicated it had been serviced and had been the subject of yearly commercial inspections. However, Mr. Clayton maintains the truck did not meet the description because the crack on the frame was so severe when he bought the truck that it was unsafe to drive. Mr. Clayton acknowledges the crack on the frame was a hidden flaw but argues this is not a factor to consider in deciding whether the truck he purchased matched the description.

In the circumstances, I am satisfied that the sale of the truck was a sale by description within the meaning of s. 17 and the case law which has interpreted the word “description”. What do the words used in the description mean? [ 91 ] There is no need to interpret the meaning of the words contained in the autotrader.ca advertisement. They obviously refer to the details of the truck indicating expense type, mileage and so forth.

Did the goods correspond to the description? [ 92 ] In Leone Industries , Wong J. noted at paragraph 18: The test for whether goods correspond with the description was outlined in Ashington Piggeries v. Hill , [1972] A.C. 441 at 503-504 as: Whether the buyer could fairly and reasonably refuse to accept the physical goods proffered to him on the ground that their failure to correspond with that part of what was said about them in the contract makes them goods of a different kind from those he had agreed to buy. In the instant case, I am satisfied that the truck sold to Mr.

Clayton was the 1996 Kenworth T 600 as described and depicted in the autotrader.ca advertisement. It was also the same truck that was described in the bill of sale. The fact there was a defect in the frame of the truck did not change the identity of the vehicle which NSDS offered for sale and which was purchased by Mr. Clayton. Do the implied conditions in s. 18 apply to the sale of the truck? Was the truck reasonably fit for the purpose? [ 93 ]

Section 18(

a) provides that if the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of the description that it is in the course of the seller's business to supply, there is an implied condition that the goods are reasonably fit for that purpose. Therefore, in order to establish a claim under s. 18(

a) of the Act the claimant must establish that:

a) the buyer made known to the seller the purpose for which it required the goods;

b) the buyer relied on the seller's skill or judgment; and

c) the goods are of a description that is in the course of the seller's business to supply. [ 94 ] In Trethewey , Taylor J. dealt with a case in which newlyweds bought a 13-year old plywood motorboat. A few weeks later they discovered that the hull was rotten, the engine block cracked, and a number of other deficiencies. In addressing the implied warranties under s. 18 of the Sale of Goods Act the court noted:

Section 18 of the Sale of Goods Act R.S.B.C. 1979,

Chapter 370, provides that no warranties or conditions of quality or fitnessshall implied [sic] in a contract for the sale of goods except as there set forth.

Section 18(

a) provides in certain circumstances for animplied condition of fitness for the buyer's purpose;

Section 18(

b) provides in other circumstances for an implied condition ofmerchantable quality. The condition is to be implied under sub-section (

a) only if the goods are "of a description which it is in the courseof the seller's business to supply" and under sub-section (

b) only if they are "bought from a seller who deals in goods of that description". 15 The conditions of fitness and merchantable quality may be implied only in the case of sales by dealers. In a case, such as thepresent, of sale by private individuals, the Act excludes any such implied conditions. This will be so even though the sale is made, ashere, through the agency of a broker dealing in goods of that description. Our Act, unlike the United Kingdom statute, has not beenextended so as to imply conditions of quality in private sales through mercantile agents: see Benjamin's Sale of Goods [1974 Edition]page 355.

Did Mr. Clayton make known to NSDS the purpose for which he was going to use the truck? [95] Both Ms. Briton and Mr. Huynh testified that Mr. Clayton told them he was going to work as an owner-operator. Mr. Claytonwas somewhat less certain about having expressly made such a statement. He said in cross-examination that he was not entirely certainwhat he was going to be doing with the truck and was considering his options.

I’m satisfied on the evidence that he made it known that,at some point, he was going to use the truck as an owner-operator or to haul other materials, perhaps not immediately but in theforeseeable future. Did Mr. Clayton rely on NSDS’s skill and judgment? [96] The case law indicates that reliance on the seller's skill and judgment does not need to be specifically expressed. However,reliance must be brought home to the mind of the seller: see, Nikka Traders Inc. v. Gizella Pastry Ltd., 2012 BCSC 1412. I find Mr.Clayton has not established that he relied on NSDS’s skill and judgment in purchasing the truck. Mr.

Clayton did not establish that hespecifically told NSDS that he was relying on its skill and judgment. Moreover, such reliance cannot be implied based on the evidencebefore the court. I am satisfied on the evidence that Mr. Clayton was particularly interested in buying a Kenworth brand truck. Helooked at a number of other trucks before settling on the NSDS truck. He testified he was very pleased to have found this one becausethis particular model was difficult to find. It was a very rare truck.

Was the truck a vehicle that was in NSDS’s course of business to supply? [97] I find that NSDS was not in the business of selling used vehicles. NSDS’s business was operating a driving school and trainingstudents. Selling vehicles used by the driving school had only occurred on a few previous occasions. I note that the advertisement filedby the claimant shows this was a “private” sale and not a sale by a dealer. [98] Having reached the above-noted conclusions, I find Mr. Clayton has not met two of the three pre-requisites needed for a findingunder s. 18(

a) that there was an implied condition the truck had to be reasonably fit for the purpose of being used by Mr. Clayton to haulmaterials as an owner-operator. Merchantable quality [99]

Section 18(

b) provides that if goods are bought by description from a seller or leasor who deals in goods of that descriptionthere is an implied condition that the goods are of merchantable quality. In this case it is clear that one of three precondition to theapplication of s. 18(

b) has not been met because NSDS runs a driving school and is not a seller who deals in goods of that description,namely, used trucks. However, even if s. 18(

b) applied, the case law indicates the courts have set a high bar for finding that usedvehicles are not of “merchantable quality”. [100] Merchantable quality is not defined in the Act. However, it is evident from a review of the case law that it is not possible to formulate an all-purpose definition of merchantable quality. P.S. Atiyah, The Sale of Goods 5th Ed. (London: Pitman Publishing Ltd.,1975.), states: It will be apparent that the concept of merchantability is an extremely flexible one, and this flexibility is in no way restricted by the newstatutory definition.

It does not seem to be going too far to say that, in effect, the concept merely requires the goods to be of the sort ofquality reasonably to be expected having regard to all the circumstances of the case. The new definition, far from being, as somedefinitions are, a straight jacket, turns out to be largely a non-definition; it delegates to the Court the task of deciding what is reasonableand the circumstances of each particular case guided no doubt by general acceptance of what reasonableness requires in various classesof cases.

While Professor Atiyah's comments are not binding on this court, I find them to be helpful in deciding whether the goods in questionwere merchantable or not. [101] In Kerr v. Gingras and Inland Kenworth Sales (Penticton) Ltd. (1980), (BC SC), 24 B.C.L.R. 372, Ruttan J.addressed the issue whether there was a breach of a fundamental condition in circumstances where the plaintiff bought a used Kenworthtruck.

The plaintiff’s lawyer argued there was a fundamental breach because the defects in the truck were so numerous that theydestroyed the fundamental character of the thing sold. [102] Ruttan J. cited as particularly apt the judgment of Bartlett v. Sydney Marcus, Ltd. (1965), 2 All E.R. 753 at 755, where LordDenning M.R. said the following about used cars and merchantable quality: It means that, on the sale of a second-hand car, it is merchantable if it is in usable condition, even though not perfect. This is very similarto the position under s. 14(1).

A second-hand car is "reasonably fit for the purpose" if it is in a roadworthy condition, fit to be drivenalong the road in safety, even though not as perfect as a new car.

Applying those tests here, the car was far from perfect. It required a good deal of work to be done on it; but so do many second-hand cars. A buyer should realize that, when he buys a second-hand car, defects may appear sooner or later; and, in the absence of an express warranty, he has no redress. Even when he buys from a dealer the most that he can require is that it should be reasonably fit for the purpose of being driven along the road. Ruttan J. found that the plaintiff had not established a breach of a fundamental term of the contract. [ 103 ] In Fisher v. Lundy , [1987] B.C.J. No. 511 , Hutchinson Co.Ct.

J. dealt with a case where the plaintiff bought a used sports car only to find later that it required major repairs. He relied on in the Kerr decision above and in particular on the quote from the Bartlett decision regarding merchantable quality. He noted there was no question the sports car was fit for the purpose for which it was sold. In any event, he noted s. 18 of the Sale of Goods Act made it doubtful that such an implied warranty applied to a private sale. [ 104 ] In Aswan Engineering Establishment Co. v.

Lupdine Ltd. , [1987] 1 W.L.R. 1 (C.A.) , Lord Justice Lloyd concluded that in order to comply with a requirement that goods be of merchantable quality the goods do not have to be suitable for every purpose within a range of purposes for which the goods are normally bought under that description. It is sufficient that the goods are suitable for one or more such purposes without abatement of the price since, if they are, the goods are commercially saleable. [ 105 ] In Kobelt Manufacturing Co. Ltd. v. Pacific Rim Engineered Products

(1987) Ltd., 2011 BCSC 224 , Sigurdson J. discussed the meaning of merchantable quality at paragraph 57. I paraphrase what he wrote. Merchantable quality means the goods must be of such quality, in such state, or condition as it is reasonable to expect and fit for the purpose for which the goods are normally purchased within the market in which they are sold. [ 106 ] In Brar v. Sunrise Toyota , 2013 BCPC 317 , Skilnick P.C.J. noted the following about s. 18 of the Sale of Goods Act at paragraph 27: The meaning of the various warranties and conditions under

section 18 of the Act must be considered within the context of the item sold. For example, used goods do not attract the same expectations as new goods when it comes to considering what is reasonable.

For example, when it comes to used vehicles, the expectations of what is reasonable are not the same as in the case of new vehicles. [ 107 ] Relying on Sugiyama , Skilnick P.C.J. said the factors that must be taken into consideration when determining what a purchaser of a used vehicle can reasonably expect include: the age of the vehicle, the mileage at the time of the purchase, how the vehicle was used by its previous owners, the price paid for the vehicle, the use of the vehicle made after the purchase, and the reasons for any breakdown. [ 108 ] The case law regarding the application of the warranties and conditions in the Sale of Goods Act to used goods indicates that used goods are not treated the same way as new goods when it comes to determining what is reasonable in a particular case.

In this case, in determining what Mr. Clayton could reasonably expect I have considered the following:

a) The age of the truck – The truck was purchased new in 1996, thus it was approximately 19 years old when it was purchased by Mr. Clayton in January 2015.

b) The mileage at time of purchase – Some time before Mr. Clayton purchased the truck, the odometer had been replaced. Mr. Newton said the speedometer was replaced - he may have misspoken because the odometer records the distance travelled. There is no dispute however that the mileage shown on the truck’s instruments was not the entire original mileage. The commercial vehicle inspection report issued by Dawson in 2014 indicated the odometer reading was 3720+ km. The commercial vehicle inspection report issued by Van-Isle in 2015 indicated the odometer reading was 3720+ km. When Mr.

Newton inspected the truck in April 2013 the mileage was 340,761 km. The speedometer or odometer was replaced so that changed the mileage reading. It was clear from the advertisement on autotrader.ca that the truck had a total of 350,000 km.

c) NSDS use of truck – The truck was used on a regular basis by NSDS to teach its students how to drive a truck. Ms. Briton’s evidence is that the school operated seven days a week. She said the truck was used pretty much every day. However, she also said that in more recent years the truck had not been used as much as it had in the past because students wanted to learn to drive on a newer vehicle.

d) The price paid for the truck – Mr. Clayton paid $17,700 for the truck.

e) The use of the vehicle by Mr. Clayton – Mr. Clayton testified that he put the truck to work on April 1, 2015. He used it as an owner operator, approximately five days a week. He hauled building materials in western Canada and the western U.S. states. The materials he hauled were mainly doors and mouldings. He hauled those materials in a 53 foot curtain side trailer. From time to time he used a fourth axle.

f) The reason for the breakdown – The crack in the truck was a fatigue crack caused by some inadvertent overload incident in the past. How long in the past Mr. Sanderson, who prepared the expert report, was unable to say. He was of the opinion that the crack began several years before Mr. Clayton purchased the truck. The crack grew slowly but was hidden from view. The owner of the truck at the time the crack started (NSDS) would be unaware of the hidden fatigue crack. The vertical crack occurred more recently. It occurred once the flange was cracked 100%.

The latter part of the failure occurred in a few months or less. [ 109 ] In this case, it is clear that the crack which was eventually discovered in July 2015 did not occur overnight. Its genesis was an initial initiating incident, which Mr. Sanderson opined was an inadvertent overloading incident. The crack developed from there over the course of several years. It is clear that the vertical crack occurred more recently and that the failure which made the truck unsafe to drive occurred in a few months or less.

The crack was not visible and was not detected during the annual commercial vehicle inspections, servicing/maintenance work, and the repeated pre and post-trip inspections. [ 110 ] Taking into consideration the circumstances in this case and the case law regarding merchantable quality of used vehicles, I find that the truck was of merchantable quality at the time it was purchased by Mr. Clayton.

Durability for a reasonable period [ 111 ]

Section 18 (

c) of the Sale of Goods Act provides there is an implied condition that goods will be durable for a reasonable period of time having regard to the use to which they would normally be put in to all the surrounding circumstances of the sale or lease. [ 112 ] In Peters , Cowling P.C.J. wrote: 13 In Fisher v. Lundy the plaintiff had purchased in May of 1985 for $3,000 by private sale a 1973 MG Midget with 107,200 kilometres. It was alleged that the car had clutch problems after 1 month and needed a $178.55 brake job in August.

It was further suggested that it needed a new transmission after 111,000 kilometres when taken off the road in November 1985. It was said that the car failed to operate in November and had not been repaired since. There was an estimate of $750 for suggested repairs to satisfy an alleged implied warranty. 14 Hutchison, J. held as follows: Here, there is no question the vehicle was fit for the purpose for which it was sold, the question is whether or not the plaintiff was induced to buy on the statement it was in good or excellent condition and would not require major repairs.

The question really is, if those words are to be considered a collateral warranty what do they mean? Are they clear enough that damages can be assessed for their breach? I think not. I cannot find the average purchaser of a used car does not realize that the law of caveat emptor applies. Even if the purchaser of a used car takes the vehicle to a reputable mechanic for consultation, there can be no long term assurance of freedom from maintenance and regular replacement of worn parts.

Here there is a paucity of evidence the transmission was worn and the repairs said to be required in November have not been completed and their real nature not yet disclosed. 15 The case law from the United Kingdom is of similar effect as per the following passage from p. 188 of the 10th edition of "The Sale of Goods", Atiyah et al : In Thain v. Anniesland Trade Centre [1997 S.L.T. (Sh. Ct.) 102] ...the pursuer purchased for 2,995 [pounds] a second-hand Renault 19, which was about five years old and had done about 80,000 miles.

After two weeks' use, the car developed a gearbox fault which could not be sorted economically, and the car was written off. It was held to be sufficient that the car was fit for initial use, ..and that the purchaser assumed the risk that a defect might emerge at any time, given the age and mileage of the car. Durability was not a quality reasonably to be expected of a second-hand car. [ 113 ] In Sugiyama , Gulbransen P.C.J. had to consider both the issue of fitness for the purpose and durability for a reasonable time period. In that case the claimant bought a used car from an auto dealership.

Approximately one month after buying the car and after 616 km of use, the engine failed. In considering whether the car was durable for a reasonable period of time, the court noted it must consider all the surrounding circumstances of the sale. [ 114 ] The court considered evidence that the source of the engine problem was the valve seats which were made of a type of metal that gradually weakened over time. Eventually the valve seats wore out and collapsed into the cylinders. There was no way to predict when that would happen.

If a mechanic had inspected the engine before the claimant bought the car the defect would not have been detected. [ 115 ] In Sugiyama , the court concluded the evidence established that the engine failure was a result of gradual wear and tear on the valve seats and there were no warning signs of the impending breakdown.

The court found the evidence merely supported the conclusion that the source of the problem was a gradual wearing out of the valve seats. [ 116 ] The court noted that when the claimant took possession of the car it had been inspected, repairs had been done to it, and it had passed through air care. There were no apparent defects in any of the important components of the vehicle. The court concluded the vehicle was roadworthy and could be driven in safety on the road. The fact there was a serious engine failure after a month of driving did not disprove that fact.

In all of the circumstances, the court found the vehicle purchased by the claimant was durable for a reasonable period of time. [ 117 ] In Drover v. West Country Auto Sales Inc ., 2004 BCPC 454 , Hoy P.C.J. considered a claim where the claimant had purchased a used truck from the defendant. After using it for about 400 km the truck experienced difficulties with the engine. The problems became so pronounced that the driver lost control and ended up in a single motor vehicle accident.

The claimant maintained, among other things, that the defendant had breached an implied term under the Sale of Goods Act that the truck be durable for a reasonable period of time. Hoy P.C.J. noted that prior court decisions make it clear the court must evaluate the totality of the facts in order to determine the degree of reasonable fitness or durability. [ 118 ] In Berg , Voith J. addressed the issue of merchantable quality and durability. In that case, the claimant had purchased used parts to be used in his truck.

The court noted that in Bartlett , which concerned the sale of a used car, it was held that merchantable quality meant of some use, though not entirely efficient use for the purpose, not perfect condition, but usable condition. [ 119 ] Voith J. applied the reasoning in Bartlett, and said that used car parts should be held to a similar standard as used cars. A buyer must realize that used parts are inherently less reliable than new parts and the defects may appear sooner or later. So long as the used parts can be reasonably used they are of merchantable quality. In that case the claimant, Mr.

Berg, had used the truck extensively and put thousands of miles on it. The court found the parts were of merchantable quality. Moreover, for the same reasons, it found that the parts satisfied any implied warranty of durability. [ 120 ] The case law dealing with the assessment of durability makes it clear that in determining whether a vehicle is durable for a reasonable period of time the court must evaluate the totality of the facts in the case before it. In my analysis regarding merchantable quality I set out a number of factors I took into account.

I take those same factors into account in determining the issue of durability. I

also take into account the fact that Mr. Clayton had the truck from late January 2015 and actually used it from April 1, 2015 to the end ofJune 2015 (a period of two months). During that time he used it approximately five days a week to haul loads in western Canada andwestern U.S. I find that the truck was durable for a reasonable period of time having regard to the use to which it would be put and allthe surrounding circumstances of the sale. Misrepresentation by North Shore [121] In addition to relying on the Sale of Goods of Act, Mr.

Clayton maintains NSDS misrepresented the state of the truck at the timeof sale, concealed its true history and tried to conceal the defect. In short, he claims NSDS fraudulently misrepresented the state of thetruck. Given his claims against NSDS, I will also consider whether there was negligent misrepresentation. [122] In Hao Ran Investments Ltd. v.

He, 2016 BCSC 61, Sigurdson J. set out the elements to be considered when there are allegationsof fraudulent and/or negligent misrepresentation as follows: 99 I will first set out the elements for establishing fraudulent and negligent misrepresentation. 100 In Catalyst Pulp and Paper Sales Inc. v. Universal Paper Export Co., 2009 BCCA 307, the Court of Appeal described the elementsrequired to establish fraudulent misrepresentation inducing a contract: [55] ... G.H.L.

Fridman, Law of Contract in Canada, 4th ed. (Scarborough: Carswell, 1999) at 309-310, where the learned authordescribed a case of fraudulent misrepresentation as consisting of four elements: (

a) the wrongdoer must make a representation of fact to the victim; (

b) the representation must be false in fact; (

c) the party making the representation must have either known it was false or made it recklessly without knowing whether it was true orfalse; and (

d) the victim must have been induced by the representation to enter into the contract. 101 The test for establishing a negligent misrepresentation was described in the Supreme Court of Canada decision Queen v. CognosInc., (SCC), [1993] 1 S.C.R. 87, 99 D.L.R. (4th) 626.

The five requirements are: (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 said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. ... (at p. 110) [123] In the instant case, the claimant maintains that NSDS, through Ms. Briton or Mr.

Nguyen, described the truck as being verygood condition. However, assuming that such a statement was made, Mr. Clayton has not established that Ms. Briton or Mr. Nguyenknew about the crack in the frame and therefore knew such a representation was false. I am satisfied on the evidence presented at trial,including but not limited to the expert evidence of Mr. Sanderson, that NSDS was not aware of the crack in the frame at the time theysold the truck to Mr. Clayton. There is no evidence that NSDS or its representatives knew the truck was not in good condition or thatthey made such a statement recklessly.

The evidence established that NSDS maintained the truck, had it serviced when necessary, andhad it inspected on an annual basis. In the circumstances, the claimant has not established all the required elements necessary for afinding of fraudulent misrepresentation or negligent misrepresentation. Negligence by Inland Kenworth [124] In Panaich v.

Abottsford Truck and Trailer Repair Ltd., 2016 BCPC 34, a case in which the claimant alleged the defendant hadbeen negligent in carrying out mechanical repairs, Skilnick P.C.J. reviewed the elements to be considered on a claim for negligence: 33 The three generally accepted essential elements of claim for negligence are: (

a) A duty of care that is owed by the claimant or plaintiff to the defendant; (

b) Breach of that duty (a failure to meet the standard of care required in the circumstances) and (

c) Damage suffered by the claimant or plaintiff that flows from the defendant's breach of the duty of care. (

a) Duty of Care 34 A duty of care arises in situations where there is a sufficient relationship between the alleged wrongdoer and the party who has beenwronged such that the former would reasonably understand that carelessness on his or her part may be likely to cause damage to thelatter. In a case such as this, it is reasonable for a mechanic to understand that a duty is owed to the mechanic's customers to performmechanical repairs to the standard of care required by law, namely to the standard of a reasonably prudent mechanic.

As the authorsstate in Canadian Tort Law, 7th edition, at page 149: "Professional people, for example, cannot escape by performing merely up to the capacity of the ordinarily prudent layperson; more is

expected of them and more should be demanded of them. After all, they hold themselves out as being possessed of extra skill and experience. This is why people consult them. That is why they are usually paid for their advice and service. But here too, negligence law has striven for an objective stand

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