Mike v. Merritt Country Auto Sales Date:, 2014 BCPC 268

Citation: Mike v. Merritt Country Auto Sales Date: 20141120 2014 BCPC 0268 File No: 40041 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GILBERT MIKE CLAIMANT AND: MERRITT COUNTRY AUTO SALES DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Mr. Gilbert Mike Appearing for the Defendant: Mr. Don Fox

Place of Hearing: Merritt , B.C. Date of Hearing: October 30, 2014 Date of Judgment: November 20, 2014 [ 1 ] This is a claim by Mr. Mike against Merritt Auto Country Sales for the purchase of a Blazer, for which he paid $5,200. Mr. Mike’s complaint is that the Defendant said it was a good Blazer and would never break down. They assured him that he would be able to go to Kelowna and back. The mechanic was present when Don Fox, the salesman, made the representation. [ 2 ] This claim starts and ends with the Motor Vehicle Sale or Purchase Agreement (Used) signed by Mr. Mike for the purchase of that Blazer.

That agreement states in the warranty box that the vehicle is sold “as is condition other than Lubrico Warranty”. The notations are “if the vehicle is suitable for transportation, the only warranty is as follows: no warranty expressed or implied”. There is an option to indicate if there is a Lubrico Warranty. The box is ticked “yes”. The box also notes “cash discount given for any unforeseeable repairs or expenses”. [ 3 ] The warranty

section is signed by Mr. Mike. That

section also indicates that the Lubrico Warranty is for three months. [ 4 ] Whether the representations were ever made by Mr. Fox, which seem unlikely, they are specifically excluded by the terms of the purchase agreement. The only relief Mr. Mike had for any repairs required to the Blazer were through the Lubrico Warranty. He was clearly aware of the warranty and was provided with a brochure identifying what the warranty was. Had Mr.

Mike come to the Defendant with a complaint about the condition of the vehicle, it would have referred him to Fountain Tire, who were the authorized dealers for the Lubrico Warranty. In fact, Mr. Mike did take the vehicle to Fountain Tire because the engine light continued to go on after the Defendant reset it for him. Fountain Tire charged him $52.92 for those repairs. Fifth Geier Auto also did some repairs including adding coolant, which they noted had water in it. Mr. Mike specified that he did not want any other work done. That bill came to $53.43.

Although the agreement with the Defendant says that a cash discount had already been given for unforeseeable repairs or expenses, the Defendant had offered to pay Mr. Mike for these repairs. He declined. [ 5 ] Mr. Mike put the Blazer in storage although he was not then experiencing any significant issues with it. He said that it continued to have the engine light go on and it seemed to sometimes be losing power. However, it still ran and he offered no evidence of what caused the mechanical or electrical problem. [ 6 ] Mr.

Mike said that he had tried to take the vehicle in to the Defendant to have it repaired under the warranty. He said that he explained the problem to Mr. Fox in his office. He complained that Mr. Fox simply sat there coughing and smoking. Mr. Fox denied this meeting ever occurred. The discussion about paying the minor repair bills happened over the telephone. Mr. Mike never came in with his warranty papers or they would have reminded him of how to go about making a warranty claim. There is nothing to be gained or lost by not directing Mr.

Mike to Fountain Tire for repairs. [ 7 ] On the balance of probabilities, I find that the meeting Mr. Mike described in Mr. Fox’s office did not occur. Even if it had occurred, Mr. Mike had an option to pursue his warranty. He chose, instead, to lock up the vehicle in storage before the warranty expired. He has left it there ever since. He originally intended to bring a substantial stack of documents to the trial but sent them off first to Better Business Bureau and then to some unidentified automotive industry authority. Mr. Mike had no documents at the trial.

He also intended to bring the mechanic from Fountain Tire who was going to describe what was wrong with the vehicle. However, he chose not to summons this person because the business is in a small town and had a small staff. It could not afford to be without any employee. That is entirely the choice of the Claimant to make but it is also the Claimant’s claim to prove. Mr.

Mike has failed to do so. [ 8 ] Even if I accepted that there was something wrong with the vehicle that would not be repaired under warranty, the agreement limits the liability of the Defendant to repairs that are covered by the warranty within the limited warranty period of three months. No other claim can be made under the terms of the agreement. [ 9 ] I dismiss the Claimant’s claim with reasonable costs to be assessed by the Registrar to the Defendant. _______________________________ S.D. Frame Provincial Court Judge