Darryl Quibell - v. -, 2014 SKPC 134

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 134 Date: July 9, 2014 File: 86/13 Location: Moose Jaw _____________________________________________________________________________ Between: Darryl Quibell - and - Dakota Kuntz Self-Represented For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT M.

GORDON , J _____________________________________________________________________________ [ 1 ] The plaintiff sues the defendant for payment of $19,172.00 plus pre-judgment interest and costs which he claims are damages incurred as a result of the defendant’s negligent representation in the sale of a boat and motor. The trial came before me in Moose Jaw on April 21, 2014 and I reserved to provide a written decision.

[ 2 ] The plaintiff testified that he saw an advertisement on Kijiji for a Malibu Wakesetter, 2005, 23 foot with only 95 hours for the price of $26,500.00. After numerous e-mails and additional photos sent by the defendant, the plaintiff came to Moose Jaw and inspected the boat and purchased it July 1, 2013, for $26,500.00. Exhibit P-1 is the bill of sale with the terms. The plaintiff has purchased numerous boats and testified that this particular boat was out of his price range but was not out of the price range for the brand name Malibu boat with these specifications.

The plaintiff asked to see the hour gauge and when the key was turned on, the gauge showed “no data”. The defendant indicated that the boat could not be started on land. There was a tail light on the boat trailer that was not working and the defendant gave a refund of $200.00. [ 3 ] The defendant told the plaintiff he had purchased the boat at an auction in the fall of 2012 and was told by the marine mechanic who looked at the boat with him that there was about 90 hours on this engine. The defendant estimated he used the boat for about five hours on a recent weekend.

The plaintiff noticed some of the wiring hanging down but the defendant said that is how it was when he purchased the boat. The defendant was willing to give the plaintiff, by e-mail, copies of his purchase documents. The defendant told the plaintiff the boat was running amazingly and would work with the plaintiff to get the gauges working. [ 4 ] The plaintiff purchased the boat and drove home to Red Deer and took the boat out the next day. There was difficulty with the battery. The battery was dead and it could not be boosted.

He contacted the defendant by text and there was some discussion but the boat still would not work. The plaintiff found a marine mechanic who checked over the boat and that invoice for $280.88 was filed as Exhibit P-2. [ 5 ] Exhibit P-3 is a quote that itemizes the work that Horizon Marine Services in Sylvan Lake estimated had to be completed to get the boat into working order. This totalled $6,804.00. Horizon Marine apparently looked at the serial number as well and determined that this Malibu boat was a 2003, not 2005 as advertised.

The engine hour gauge once it was working showed over 700 hours on the engine rather than the 90 to 95 hours that the defendant had indicated. The plaintiff said the boat looked like a 2005 and assumed because the hour gauge said “no data” and not an error message, that all was fine. The plaintiff consulted the NADA guide which the plaintiff said is an industry standard for all manufacturer/finance companies in determining the value of used boats.

According to the NADA information the plaintiff presented, the difference between a used Malibu boat from 2003 to 2005 is $5,000.00 to $9,000.00. [ 6 ] The plaintiff contacted the defendant and told him all the problems and wanted to rescind the sale. There was some discussion back and forth between the parties for a couple of days. The defendant refused to return the money and take the boat back. Finally, Exhibit P-5 was filed to show part of the classified ad on Kijiji which read “2005 Malibu Wakesetter”.

The plaintiff indicated that he was well aware the defendant had purchased this boat from an auction and that the defendant had used the boat very recently on his birthday and that everything had worked fine. [ 7 ] Dakota Kuntz testified and said that he had purchased this boat through McDougall Auction on November 5, 2012. The bill of sale is filed as Exhibit D-1. Mr. Kuntz said that it is noted that a digital perfect passenger was installed on this motor in the summer of 2012. It is a separate gauge and it showed 172 hours on the boat. The defendant cannot explain those hours.

He said that the gauge never showed the hours. He said that he went to McDougall Auction prior to the sale and had a mechanic go through the boat with him. He put an offer in on line. He was told by McDougall that there were low hours, about 90 hours, on the motor. He thought that it was a 2005 boat and that the trailer was 2009. He filed as Exhibit D-2 a reply from Kijiji saying that they did not have a copy of his ad. The defendant says he lost information from when he bought it.

The defendant admits he was wrong in his advertisement with respect to the year but he still maintained it would be the “best deal of the summer”. [ 8 ] The defendant said he had the boat winterized after it was bought and it was stored covered in his yard. He was not aware of any wiring problems. He used the boat just recently on the weekend and it was working fine. He had gone through the boat at the time the plaintiff purchased it with the plaintiff and a friend and the engine was spotless. He admitted the signal light was not working.

He maintains he was told by McDougall that some boats don’t have hour meters on the engine. The defendant denies he had any knowledge of the other problems with the boat as identified by Marine Horizon. [ 9 ] The plaintiff in his argument said he should be compensated as he thought he was purchasing a 2005 top of the line boat and it turned out to be a 2003 model with problems. The defendant said it only had 90 to 95 hours on the boat.

The plaintiff is asking for compensation for the difference in value because of the year and the repairs that had to be made in accordance with the Marine Horizon invoice in the amount of $6,804.00. The plaintiff acknowledged he paid less than the estimate that he provided for a low value 2003 boat. However the plaintiff’s dissatisfaction is that he did not get a 2005 boat.

[10] Mr. Kuntz submitted that the plaintiff received substantially what was advertised. He notes that Mr. Quibell admitted hecould not tell by looking the difference in year between a 2003 and a 2005 boat of this type. He acknowledges that he did “mess up onthe year” but that this is not a substantial variance as the boat was still valued as being worth more. He was not aware of any of the otherproblems and the boat had worked just fine when he had it out just prior to the July long weekend. ISSUES [11] The issues to be decided are as follows:

(1) Does the principle of caveat emptor or “buyer beware” apply in this case?

(2) Did the defendant misrepresent the condition of the

article sold?

(3) Is the plaintiff entitled to any damages and if so, what is the amount? ANALYSIS [12] The defendant was not in the business of selling used boats, motors and trailers. Therefore the plaintiff cannot rely on thestatutory protection under The Consumer Protection Act S.S. 1996, c. L-30.1 or the implied conditions of quality and fitness under s. 16of The Sale of Goods Act R.S.S. 1978, c. S-1. The legal principle of caveat emptor or “buyer beware” applies in the sale of used goods. In the case of Frey v. Sarvajc (2000), 2000 SKQB 281 , 194 Sask.

R. 249 (Q.B.), Wilkinson J. addressed the issue of caveatemptor in relation to the sale of a used vehicle. The Court summarized the principles which apply, as follows: The application of these principles to the sale of used cars is summarized in the comments of Gow J. in Rushak v. Henneken, [1986]B.C.J. No. 3072 (QL) (S.C.) where he states: At a common law in the absence of a fiduciary or analogous relationship, there is not as between negotiating parties any duty ofdisclosure.

Almost always the seller of a used car knows of its defects, or at least some of them, but he is not under any duty to disclosethem to a potential buyer, unless there has been on his part active concealment, that is, he has done something to the car with intent toprevent the defect being discovered. Leeson v. Darlow, (ON CA), [1926] 4 D.L.R. 415 at p. 432; Allen v. McCutcheon, (BCSC), (1979) 10 B.C.L.R. 149; Sorensen v. Kaye Holdings Ltd. (BCCA), (1979) 14 B.C.L.R. 204per Lambert, J.A. at p. 235. The common law rule is caveat emptor.

The underlying philosophy of the law of contract is that “a party isexpected to look out for himself, and make his own bargains. If he has done so foolishly, this is his own fault and he is left to his owndevices.” The distinction between patent and latent defects is described in Halsbury’s Laws of England (3d ed.) Vol 34, page 211, para. 353 asfollows: Defects of quality may be either patent or latent.

Patent defects are such as are discoverable by inspection and ordinary vigilance on thepart of a purchaser; latent defects are such as would not be revealed by any inquiry which a purchaser is in a position to make beforeentering into the contract for purchase. As regards patent defects, the vendor is not bound to call attention to them; the rule is caveatemptor; a purchaser should make inspection and inquiry as to that which he is proposing to buy. [13] Therefore a seller of a used vehicle and I would say as well boat and trailer, is under no duty to disclose any defects unless hehas actively concealed them.

The seller is not bound to call attention to defects the purchaser could observe through ordinary inspectionand inquiry. The rule is “buyer beware”. [14] Exhibit P-1 clearly indicates that the plaintiff was buying a water craft Malibu Wakesetter, 2005, free of liens and otherencumbrances with a VIN Number MB2S1775D303, sold as is with no warranties. It also included a 2009 boat trailer and the VINNumber for it is given. Both parties signed this bill of sale on July 1, 2013. [15] The defendant acknowledges that he misrepresented the year of the boat. He said he thought it was a 2005.

I note thatExhibit D-1 entered by the defendant which is his bill of purchase from McDougall Auction shows that he bought a 2003 Malibu

Wakesetter. [16] The plaintiff argues that by misrepresentation of the year, the value of the boat is considerably different and in support hefiled the NADA guide as Exhibit P-4. [17] In my view the year of the boat can be characterized as a patent defect which was discoverable by the plaintiff doing somehomework. The VIN Number was made available to the plaintiff and is clearly stated in the bill of sale. It is of course how he learned ofthe difference in year was by having Marine Horizon check the VIN Number. The plaintiff has purchased many boats.

He likes boatsand this particular boat was the Cadillac version and it is clear to me from his evidence that he wanted to purchase this boat. There weremany e-mails back and forth and the plaintiff had ample opportunity and resources to further check out the boat. The plaintiff was sentpictures by the defendant and could easily have taken further steps such as he did after purchase of the boat by contacting MarineHorizon. The plaintiff could not tell the difference between a 2003 and a 2005 boat. [18] Not every misrepresentation gives a remedy.

The misrepresentation must be material and have induced the purchaser to enterthe contract. In this case, the information was readily ascertainable in my view by the plaintiff and therefore I am not prepared to giveany remedy for the variance in description. I adopt the reasoning of Judge Scott of this Court in Wong v. Wruck, 2008 SKPC 116 atparagraphs 20 and 21: [20] However, fraudulent misrepresentation on the part of the seller will have an impact on the principle of caveat emptor. Fraudmay be found when the vendor has actively concealed a latent defect.

However, if the latent defect is unknown to the vendor, there willbe no redress for the purchaser and the principle of caveat emptor or “buyer beware” will apply (McGrath v. MacLean (1979), (ON CA), 95 D.L.R. (3d) 144 (Ont. C.A.) at p. 150.) [21] A fraudulent misrepresentation is a statement known to be false or made not caring whether it is true or false (Waddams, The Law of Contracts, 5th ed. para. 416; Derry v. Peek (1889), 14 App. Cas. 337 (H.L.(E.)).

Such a statement must be material to thedecision of the purchaser to enter the agreement and the misstatement must serve as an inducement to the making of that decision(McCamus, The Law of Contracts, 2005, p. 326). [19] The plaintiff also suggests that the defendant misrepresented and was negligent or perhaps fraudulent in stating the number ofhours on the motor. The plaintiff asked for the boat to be turned on when he came to look at it and the gauge indicated “no data”. Theplaintiff did not pursue that any further.

The plaintiff acknowledged he was told by the defendant that a McDougall Auction mechanichad told him there were 90 hours on the boat and the defendant had used it for approximately five hours. It is at this juncture that againif the plaintiff had been relying exclusively as a material inducement to entering this contract on the number of hours, he should havefurther investigated at that time. The plaintiff said in his evidence that he assumed that all was okay. The plaintiff could have had hismechanic at Horizon Marine Services check it out ahead of time.

I do not find that the defendant was trying to hide anything. This wasthe information he had been given. The defendant had been forthcoming that he had purchased the boat in the late fall from an auctionand had only used it once recently and it was working satisfactorily. [20] I find that the defendant was more than willing to answer any of the plaintiff’s questions, to work with the plaintiff and in factdid give him some reductions for some minor problems in order to conclude the sale.

I do not find the defendant fraudulentlymisrepresented in any other fashion the condition of this boat, motor and trailer; the subject of the sale. Even if I find that there was anytype of misrepresentation by the defendant, I note that on the plaintiff’s material filed from Marine Horizon in Sylvan Lake that a 2003boat in low condition with 727 hours has a value of $26,350.00.

This is approximately the same as the amount that the plaintiff paid forthe boat so the plaintiff has not suffered any damages (purchase price $26,500.00 minus $200.00 credit for tail light). [21] In my view the plaintiff saw this boat advertised and given that it was the Cadillac version, he was intent on purchasing thisboat at the beginning of the summer season. The plaintiff did not do the checking and investigation ahead of time that he could havedone and discovered the problems he now complains of. For all of the above reasons, the plaintiff’s claim is dismissed.

M. Gordon, J