Tracey Goldade - v. -, 2011 SKPC 183

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 183 Date: December 5, 2011 File: SC#110 of 2011 Location: Saskatoon _____________________________________________________________________________ Between: Tracey Goldade - and - Tyra Germscheid Tracey Goldade For the Plaintiff Tyra Germscheid and Trevor Germscheid For the Defendant _____________________________________________________________________________ JUDGMENT D.C.

SCOTT , J _____________________________________________________________________________ Introduction [ 1 ] The plaintiff Tracey Goldade purchased a 2003 Volkswagen Jetta TDI (diesel) from the defendant Tyra Germscheid for $8,800.00 on March 15, 2010. Approximately eight weeks after the purchase, the plaintiff was unable to start the vehicle. The plaintiff had the problem diagnosed and it was determined that the timing belt had broken, causing damage to the engine. The plaintiff claims the

cost to repair the damage in the amount of $3,967.26. [ 2 ] The matter proceeded by way of a simplified trial, a process in Provincial Court designed to expedite claims under $5,000.00. As such, the plaintiff and defendant adopted their written trial statements, which were made exhibits and formed part of the evidence at trial. As well, documents filed and exchanged in advance were admitted into evidence as exhibits. The parties testified, as did the defendant’s husband Trevor Germscheid. The plaintiff called two witnesses, Mr. John Lehman, owner and operator of Import Auto, and Mr.

Lorne Sarich, operations manager of Volkswagen Saskatoon. Overview [ 3 ] The plaintiff answered an ad posted by the defendant on Kijiji for the sale of the Jetta, with an asking price of $9,500.00. The vehicle was owned by the defendant’s husband, but the defendant was responsible for selling it. [ 4 ] The plaintiff contacted the defendant by phone and discussed the vehicle’s history. The plaintiff and defendant met, so the plaintiff could view the vehicle and take it for a test drive. [ 5 ] At the time of the first test drive, two service lights on the dashboard were illuminated.

The plaintiff was concerned, but was assured by the defendant that although the service lights came on, the vehicle had been in for regular maintenance and no problem was detected. [ 6 ] Subsequent discussions took place between the plaintiff and defendant with respect to the vehicle. The plaintiff testified she asked the defendant about the condition of the vehicle and specifically about the timing belt. The plaintiff says the defendant repeatedly reassured her that the vehicle had been regularly maintained and that the timing belt was in good condition.

The defendant denies having been asked by the plaintiff specifically about the timing belt or representing that it was fine. She admits she told the plaintiff that as far as she knew all the work that was needed to be done was done. [ 7 ] During Mr. Germscheid’s ownership, the vehicle was serviced at Volkswagen Saskatoon. The plaintiff testified she was reassured because Volkswagen Saskatoon had a good reputation with respect to servicing imported vehicles. On March 15, 2010, the date of the purchase, the plaintiff and defendant met at Volkswagen Saskatoon so the plaintiff could have the service light checked.

The plaintiff’s boyfriend accompanied her. The mechanic at Volkswagen Saskatoon showed the plaintiff a printout of the engine light problem, which satisfied the plaintiff. [ 8 ] The plaintiff had prepared a bill of sale for the parties to sign. She paid $6,500.00 by certified cheque and $1,300.00 by post-dated cheque, in addition to a previous deposit of $1,000.00. [ 9 ] In June 2010, when the plaintiff could not start the vehicle, she had it towed to Import Auto. Mr. John Lehman, owner and operator of Import Auto testified on behalf of the plaintiff. His business services primarily imported vehicles.

When diagnosing the problem with the vehicle, he found that the timing belt had broken causing damage to the engine. Import Auto repaired the damage; its invoice (Ex. P3) represented all work necessary to repair the vehicle as a result of the timing belt breaking at a cost of $3,967.26. [ 10 ] Mr. Lehman testified that when a timing belt breaks, there is no warning—the engine just stops. He generally recommends that a timing belt be replaced at 5 years or 100,000 kilometres.

The age of the vehicle and its mileage are both important considerations because even where a vehicle has low mileage, the rubber on a belt can rot over time. Usually wear and tear to the timing belt is apparent. When the belt has cracks it needs to be replaced, as it could break at any time. [ 11 ] According to Mr. Lehman it is important for the purchaser of a used vehicle to examine the maintenance and repair records of the vehicle and to have the vehicle inspected. It would be unwise to simply assume the timing belt had been replaced. If no records are available, Mr.

Lehman recommends that replacement of the timing belt be done immediately upon purchase.

[12] On the Jetta, the timing belt can be easily accessed for inspection. Mr. Lehman examined the belt and concluded it had neverbeen changed—the belt that broke was the original timing belt. [13] Mr. Lorne Sarich, the operations manager for Volkswagen Saskatoon testified on behalf of the plaintiff with respect to themaintenance history of the Jetta. Based upon their records, the Jetta had been serviced eight times during Mr. Germscheid’s ownership,between December 2006 and November 2009. In December 2006 the timing belt was visually inspected.

It appeared to be cracked andreplacement was recommended. [14] The Jetta was originally sold in the United States; as such, it recorded mileage in “miles” rather than “kilometres”. Neitherthe plaintiff nor the defendant knew with certainty the mileage on the Jetta at the time of the sale. Service records from VolkswagenSaskatoon indicate the mileage as “73,575 kms” on December 19, 2006. However, Mr. Sarich, the manager of Volkswagen Saskatoontestified they would have copied the mileage as displayed, without noting whether miles or kilometres were indicated and withoutmaking the conversion.

Therefore, in 2006, the vehicle had 118,407 kilometres on the engine. Service records in relation to the Jettadated June 17, 2010 show the mileage to have been 116,139 miles, which would be 186,907 kilometres. [15] Mr. Germscheid testified Volkswagen Saskatoon recommended the timing belt be changed when the vehicle was 5 years oldor had 100,000 kilometres on the engine.

At that time, the vehicle was three years old and had approximately 74,000 miles (or 119,000kilometres) on the engine. [16] In addition to the matter of the timing belt, the plaintiff testified she had been misinformed by the defendant that the tint onthe windows was lawful. According to Mr. Germscheid, the windows were coated with a factory tint, which had been verified by thevehicle information number. In fact, the plaintiff was issued a ticket and she was required to remove the tint, as it was considered to beaftermarket tint. However, the plaintiff is not seeking damages with respect to this matter.

Analysis [17] The questions for this Court are: 1. Did the defendant misrepresent the condition of the vehicle? 2. Does the principle of caveat emptor or “buyer beware” apply? [18] In Frey v. Sarvajc, 2000 SKQB 281 , [2000] S.J. No. 382 (Q.B.), Wilkinson J. cites, as the authority in transactionsof this kind, the decision of Bartlett v. Sidney Marcus Ltd., [1965] 2 All E.R. 753 where Lord Denning stated: …A buyer should realize that, when he buys a secondhand car, defects may appear sooner or later; and, in the absence of an expresswarranty, he has no redress… [19] According to Kinch v.

Sharbell (1999), (PE SCTD), 173 Nfld. & P.E.I. R. 336 (P.E.I.S.C.), also cited inFrey at para. 16: …where there is no evidence of fraud, the purchaser of a product may not complain of defects in a product that the purchaser has had anopportunity to inspect before purchase. This is referred to as the maxim caveat emptor. It is expected that if the vendor has not beenfraudulent in the sale of the product, it is the responsibility of the purchaser to have obtained a warranty on the item before agreeing tobuy it.

The definition attributed to caveat emptor in Black’s Law Dictionary is “let the buyer beware”. [20] Defects of quality may be either patent or latent. Patent defects are discoverable by inspection and ordinary vigilance on thepart of the purchaser. Latent defects are those which could not have been discovered by any inquiry. As a general rule, a vendor is notobliged to draw attention to patent defects; a purchaser should make their own inquiry and inspection (Halsbury’s Laws of England (3d

ed.) Vol. 34, p. 211, para. 353; Frey para. 18). [21] Fraud can be established where there has been concealment of latent defects by the vendor (McGrath v. MacLean (1979), (ON CA), 95 D.L.R. (3d) 144 (Ont. C.A.) at p. 150). [22] In the case before this Court, the plaintiff claims there was an express warranty with respect to the condition of the timingbelt. The defendant disputes this. The onus is on the plaintiff to prove any such warranty. [23] The bill of sale makes no mention of the timing belt, but it does refer to the service engine light.

The plaintiff testified thatafter she viewed the vehicle on the first occasion, she paid a deposit of $1,000.00 subject to the defendant confirming the illuminatedservice light was not an indication of a further problem. [24] When the plaintiff and defendant met at Volkswagen Saskatoon on the date of the sale, the plaintiff sought confirmation thatthe illuminated service engine light was not indicative of a mechanical problem. There is no evidence she made any inquiry with respectto the timing belt at Volkswagen Saskatoon.

Although detailed service records were available, she did not ask to see them. [25] According to the plaintiff’s witnesses, Mr. Lehman and Mr. Sarich, the timing belt was accessible and its condition couldhave been easily determined by inspection. Yet, the plaintiff did not have the vehicle inspected. [26] Had the matter of the timing belt been of specific concern to the plaintiff, it is likely she would have taken steps to satisfyherself with respect to its condition. Further, the bill of sale would have specifically referenced the timing belt, as it did the service light.

It is clear from the evidence that the plaintiff’s primary concern was with the service light. I find the plaintiff did not make it an expresswarranty of the purchase that the timing belt must be in good condition. [27] There is no evidence of fraud on the part of the defendant or any suggestion the defendant actively concealed the condition ofthe timing belt.

Neither was the defendant obliged to bring to the plaintiff’s attention the fact that the timing belt was cracked or that ithad not been replaced. [28] The Jetta was seven years old, with well over 100,000 kilometres on the engine at the time of its purchase. Mr. Lehman andMr. Sarich testified that as a general rule, a timing belt should be replaced after five years or 100,000 kilometres. A timing belt canbreak at any time. It was Mr.

Lehman’s view that the purchaser of a used vehicle ought to replace the belt as a matter of course if servicerecords are not available. [29] The worn timing belt was not a latent defect. Rather, it was a defect which was discoverable by inspection and ordinaryvigilance on the part of the plaintiff. The plaintiff had the opportunity to have the vehicle inspected when she met with the defendant atVolkswagen Saskatoon, but did not do so. [30] As such, the principle of caveat emptor or “buyer beware” applies in these circumstances.

The defendant is not liable fordamage caused by the broken timing belt and the plaintiff’s claim is therefore dismissed. [31] The parties will assume their own costs.

______________________________ D.C. Scott, J