Louis Larochelle - v. -, 2017 SKPC 001

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2017 SKPC 001 Date: January 4, 2017 File: 310/16 Location: Regina _____________________________________________________________________________ Between: Louis Larochelle - and - Saskatchewan Government Insurance Self Represented For the Plaintiff Alexis Tayco For the Defendant JUDGMENT P. DEMONG, J Introduction [ 1 ] Louis Larochelle (‘Louis’) is a retired farmer who has, over the last twenty years or so, carried on the business of buying and then repairing used and/or damaged vehicles for resale.

Sometimes he purchases these vehicles from Saskatchewan Government Insurance (‘SGI’) by bidding on an online auction, a service that SGI, through its salvage division has created for the purpose of reselling, among other things, vehicles which may have been damaged in motor vehicle accidents. [ 2 ] On or about February 24 th of 2014 Louis bid on a Dodge truck. He says that his bid, which was ultimately the successful bid, was based, in part on his reliance of the accuracy of certain documentation that SGI provided to him.

He says that the information was incomplete, and that as a result, he bid far more than he otherwise would have. He alleges that SGI’s failure to provide this additional information constituted a misrepresentation as to the actual value of the vehicle, and he is suing SGI for the difference between what he actually bid, and what he feels should have been a much lower successful bid, which he says equates to the sum of $10,600.00.

[ 3 ] SGI admits that it failed to provide this updated information to prospective bidders. It asserts that this was an innocent omission. It says, however, that Louis was contractually bound by certain terms and conditions of the online auction, including terms that expressly waived any warranty; other terms that assert that vehicles are sold as is; and an acknowledgment that the documentation provided by SGI may be incomplete or inaccurate and should not be relied on by prospective purchasers.

SGI maintains, therefore, that while it may have derived an unfair profit arising from the sale, Louis is not entitled at common law to sue for damages arising from what is, in essence, an innocent as opposed to a negligent or fraudulent misrepresentation. It asks this court to dismiss Louis’ claim with costs in its favour. The Evidence and Findings of Fact [ 4 ] The parties are in substantial agreement on those facts which give rise to the claim although SGI takes issue with the manner by which Louis assesses his damages.

I will deal with the damages assessment separately in this judgment. [ 5 ] SGI is a Crown corporation established for the primary purpose of providing mandatory automobile insurance to residents of Saskatchewan. As such, it is obliged to pay out insurance proceeds to those insured who sustain property damage arising from a motor vehicle accident. On numerous occasions the amount of property damage that arises in an accident makes it financially irresponsible to try to fix a vehicle, especially where the cost of repair exceeds the value of the vehicle in question.

In those circumstances, SGI pays out the pre-accident market value of the vehicle to the insured and in exchange, SGI retains the damaged vehicle, what is described in the insurance industry as the ‘salvage’. [ 6 ] Even though SGI may conclude that it makes no financial sense to repair a vehicle, this is not to say that a damaged vehicle has no value. It can still be used and/or sold for scrap, or for parts, or for subsequent repair by those industrious individuals that feel they can make a profit on resale to a third party.

SGI obtains hundreds if not thousands of vehicles each year as a result of motor vehicle accidents. To maximize profit, its salvage division resells these damaged vehicle is to members of the public at large and SGI has created an online auction service to facilitate those sales. [ 7 ] Those people who wish to participate in the online auction are obligated to register with SGI. As a condition of registration, registrants agree to be bound by the terms and conditions of the auction, and those terms and conditions are made known to registrants.

Louis is one such registrant, and he has, prior to the purchase of the vehicle in question in this law suit, participated in SGI’s vehicle auction between twenty and twenty-five times. He has utilized the computerized, or online auction five or six times.

Louis acknowledges that he was aware, of and bound by, the terms and conditions of the auction, and specifically the following ‘Salvage Sales Terms and Conditions’: - Bidders must acknowledge and accept the terms and conditions for online bidding. .... - If possible examine the vehicle or other salvage beforehand. -Be aware of the following: - All vehicles and bid items are sold as is.

SGI does NOT: - provide a warranty on any bid items - guarantee the accuracy of odometer readings, - guarantee the structural/mechanical condition, - guarantee the vehicle/item to be exactly as shown in pictures - The information pertaining to items listed on this website is designed to both reflect and summarize specific details concerning said items, and is not necessarily a comprehensive or entirely accurate description of said items. - Copies of repair estimates, if provided, were prepared as part of the adjusting process and do not necessarily reflect a complete or accurate estimate of damage. [Emphasis added]

[ 8 ] In the instant circumstances, Louis decided to bid on a 2012 Dodge pickup truck, series 1500. The online auction posting provided several photographs of the exterior and interior of the vehicle. The posting identified a reserve bid of $16,500.00 in addition to any applicable taxes. The posting noted that the type of damage was ‘to the right side and under carriage’. It confirmed that the vehicle would (presumably in the event that upon repair it was sought to be registered with SGI) require a structural and mechanical inspection.

Finally, the posting included a ‘repair estimate’, which is a document generated internally by SGI by an SGI appraiser. This is the repair estimate that is referred to in the highlighted portion of paragraph 7 above. [ 9 ] A repair estimate is not an appraisal of the value of the vehicle. It is a document that is prepared internally at SGI by an appraiser.

When a vehicle is damaged in an accident, it is brought to SGI which conducts a preliminary assessment of the amount of damage sustained by the vehicle in that accident and identifies, in so far as SGI is then able, the parts and amount of labour that must be put into the vehicle to bring it back to its pre-accident condition. Put another way, it may be that the vehicle has pre-accident damage or deficiencies. The repair estimate does not assess that portion of the vehicle that was not damaged in the accident. Nor does it provide an appraisal of the market value of a vehicle.

If a vehicle is going to be, or might be repaired, it is sent to an auto body repair shop, and a mechanic will then, on behalf of the owner, conduct its own repair estimate which may or may not identify supplemental losses which the repair shop feels arose as a consequence of an accident. If so, the repair shop will advise SGI and SGI may or may not agree to pay for these supplements that were suggested by the repair shop.

This is because they may disagree with the repair shop’s opinion. [ 10 ] In the instant circumstances, the original SGI repair estimate identified a number of parts and the amount of labour SGI felt was necessary to bring the Dodge truck back to its pre-accident condition. The amount of money it identified as necessary to fix the accident- related loss equated to the sum of $9,809.17 plus GST. [ 11 ] On the strength of these materials, Louis placed an online bid in the sum of $16,500.00.

At first, his bid was rejected in favour of a higher bid, but the higher bidder bowed out and Louis’ bid was accepted. [ 12 ] The acceptance of a bid does not bind the purchaser. The purchaser has the right, prior to payment, to personally attend the salvage yard to inspect the vehicle and Louis did so. The inspection was

summary in nature. Prospective purchasers do not have the right to remove the vehicle from the salvage yard to conduct their own inspection. Occasionally SGI will, in some locations, place the vehicle on a hoist so that a purchaser may visually inspect the undercarriage, but this is not done in Regina, where the vehicle was located. Instead, an employee of SGI lifted the vehicle with a forklift to approximately three feet high. Louis was able to see some but not all of the undercarriage.

Following that visual inspection be purchased the vehicle for the amount of his bid - $16,500.00. [ 13 ] Shortly thereafter, Louis re-attended the salvage department to buy used parts. In the course of a conversation with one of SGI’s employees he was made aware of the fact that this vehicle had, in fact, been inspected by an auto repair shop after SGI had conducted its original repair estimate. That second repair estimate in turn identified a number of supplemental repairs that would need to be done to the vehicle, and these supplements were significant.

The repair cost in the second repair estimate identified a cost of repair in the amount of $33,906.95. The difference between the two estimates equated to the sum of $24,097.78. [ 14 ] In light of this significant difference, Louis approached the manager of salvage and asked SGI to discuss some form of compensation. He was offered a new frame for the vehicle but that offer was refused. [ 15 ] In light of SGI’s position, Louis did not take any immediate legal action, and instead proceeded to repair the vehicle for eventual resale.

At trial Louis submitted a series of receipts which reflect the parts and professional labour that he paid in order to repair the vehicle for resale. Those receipts total $6,866.38. In addition Louis asserts that he put $6,000.00 of his own labour into the repair of the vehicle at the stated rate of $20.00 per hour. SGI did not take issue with, or cross-examine on whether or not these parts and labour costs were necessary or reasonably incidental to, or fairly reflective of the actual costs incurred.

After repairing the vehicle, Louis resold the vehicle to a third party for the sum of $29,000.00. [ 16 ] Louis originally brought action against SGI for $24,097.78, which is the difference between the original and supplemental estimates. He has based his claim on an allegation of misrepresentation. He does not identify whether or not he is claiming fraudulent misrepresentation, negligent misrepresentation, or innocent misrepresentation. Louis is self-represented. He says that he came up with

the figure of $24,097.78 after discussing the matter with a lawyer. At trial, he amended his claim to the sum of $10,600.00. This amended amount is reflective, he says, of the fact that a somewhat similar truck (a 2014 Ford F150) with approximately $39,027.80 in estimated repair damage had been given a reserve auction price by SGI in the sum of $5,900.00.

He argues that since the trucks are somewhat similar in size and price and year of make and cost of repair, the Dodge truck that he purchased should have had a similar reserve price, He invites the Court to infer that had the Dodge truck’s supplemental repair estimate been produced at first instance, then SGI would have set a similar reserve price ($5,900.00); he would have bid on the truck at that reserve price; and that he would have been successful on the bid.

On that basis he says that he is entitled to be compensated in the difference between what he bid ($16,500.00) and what he would otherwise have bid ($5,900.00) for a net claim of $10,600.00. [ 17 ] SGI takes issue with Louis’ analysis. It argues that the two vehicles are not comparable. The nature of the damage to each vehicle is distinctly different.

On that basis, one cannot credibly conclude that on this analysis alone SGI would have set up a reserve bid on the Dodge that is equal to the reserve bid they set for the Ford. [ 18 ] In cross-examination, Louis conceded that he understood, and that he was bound by, the terms and conditions of the online auction as referred to above. Louis also conceded that he had no evidence, nor did he personally believe, that SGI attempted to fraudulently misrepresent the anticipated cost to repair the vehicle in question.

Louis further conceded that he knew that his right to inspect the vehicle was limited to a rather cursory visual examination, although he stated in some parts of Saskatchewan they will put it on a hoist for a better visual inspection. Louis further conceded that he knew, from past experience, that the repair estimates provided by SGI are not always a precise or accurate estimate of the actual cost of repairing the damage that arose in a motor vehicle accident, and that in his own experience repair estimates can be off by a few thousand dollars but that he participated in SGI auctions in any event.

He further conceded that the visual inspection that is allowed won’t reveal all unforeseen damage but that nevertheless he has, in the past, purchased vehicles notwithstanding this limited opportunity to inspect, and notwithstanding that sometimes the repair estimates are not reliable. [ 19 ] SGI has conceded that it erred in failing to ensure that the supplemental repair estimate prepared by the auto body shop was included online for review by prospective purchasers. It says that this was simply an oversight.

It acknowledges that its processes are not perfect and that occasionally, information that the salvage division of SGI receives from the claims division may be incomplete. It maintains that since this occurrence, it has attempted to redouble its efforts to ensure that supplemental repair estimates are posted online. [ 20 ] SGI spent some significant time at trial to attempt to explain what a repair estimate is, and what it is not. I have repeated some of this but do feel it is necessary to go into some more detail. SGI says that Louis’ assertion that the first repair estimate was ‘not true’ is a misnomer.

Repair estimates, it says, are prepared by the claims division in an effort to alert auto body shops to correct the damage that SGI is prepared to pay for. Supplemental repair estimates are not ‘true’ either. They are an opinion expressed by an auto body shop as to what that auto body shop considers to be a fair estimate of the damage caused by an accident, something which SGI may, or may not accept when trying to ascertain the insurance payment they should make to an owner who has had their vehicle damaged.

Regardless of which estimate is being referred to, they do not constitute an appraisal of the value of a vehicle. They may, however, assist a prospective purchaser in getting a rough and ready estimate of the damaged condition of the vehicle when it goes to auction. It is, SGI insists, precisely for this reason that the terms and conditions of the auction specifically alert prospective purchasers that repair estimates do not necessarily reflect either a complete or accurate estimate of the damages.

That said, SGI does concede that the supplemental repair estimate is likely a more reasonable estimate of the damage that the Dodge truck sustained in the accident. [ 21 ] SGI also reiterated to the Court that its salvage division does not enquire of any prospective purchasers of the use to which a purchased vehicle may be put, but there are three. It may be purchased solely for its subsequent use as scrap, or it may be purchased for the subsequent use of its salvageable parts. Finally it may be used for the purpose of repair and subsequent re-sale.

Bidders are not required to advise SGI of the uses to which the vehicle, once purchased, will be put, nor does SGI make that inquiry before or after sale. Issues Argument and Analysis [ 22 ] As invariably happens in this Court, the manner in which the plaintiff has drafted his claim is imprecise. It fails to articulate, with clarity, the legal basis upon which the relief is sought.

It bases its claim on a ‘misrepresentation’, which, as I have indicated, is a failure by SGI to include, in the documents it posted online, a supplemental repair estimate prepared by a third party which in turn may or may not be a precise estimate of the complete and actual damages which arose as a result of a motor vehicle accident. I am satisfied that SGI posts repair estimates online to assist prospective purchasers in understanding, to some extent, the deficiencies which may be found to exist in the vehicle.

The central question is whether or not SGI’s failure in this instance to provide the supplemental repair estimate online constitutes a misrepresentation, and, by mistaking to do this, gives rise to a legal claim for compensation. The next question is, if compensation is to be awarded, upon what legal basis is that compensation to be allowed? The final question is, if compensation is to be

awarded, what is the amount to be awarded and how is it to be calculated? [ 23 ] The claim does not identify whether the misrepresentation is alleged to be innocent, negligent or fraudulent. The claim does not identify whether or not the claim is based on a breach of contract or the tort of negligence. The plaintiff does not seek equitable relief rather than damages, although he may be entitled to seek either.

The claim does not seek to rely on either The Sale of Goods Act c S-1 RSS 1978 or The Consumer Protection and Business Practices Act c C-30.2 S.S. 2014 both of which import certain statutory warranties into retail sale transactions.

I will deal with each in turn but not necessarily in this order. [ 24 ] I am satisfied that the contract entered into between the parties included an express agreement to the effect that the vehicle was to be sold as is; that no warranty whatsoever was provided as it relates to the vehicle’s condition; and that purchasers acknowledged that the repair estimates do not necessarily reflect a complete or accurate estimate of damage. I am satisfied that Louis was aware of these express reservations of warranty and that they would apply to him in relation to any online purchase that he made.

I am also satisfied that the language used by SGI was clear and direct. I am also satisfied that Louis was neither a novice nor an unsophisticated buyer of used vehicles online, and that he had previous personal knowledge of the fact that the repair estimates not only could be, but often were, unreliable. I conclude therefore that Louis cannot avail himself of any of the remedies for breach of warranty that might be implied pursuant to The Sale of Goods Act . [ 25 ]

Section 54 of that Act allows parties to exclude implied terms and condition by express agreement. It reads : 54 Where a right, duty or liability would arise under a contract of sale by implication of law it may be negative or varied by express agreement or by the course of dealing between the parties or by usage if the usage be such as to bind both parties to the contract. In my view, the parties acknowledged and agreed that there were no warranties express or implied. [ 26 ] I further conclude that Louis cannot avail himself of the protections that might otherwise be afforded to him pursuant to

section 19 of The Consumer Protection and Business Practices Act , as these relate to ‘acceptable quality’ warranties. While SGI argues, perhaps correctly, that the warranty does not apply if Louis had the opportunity to examine the truck before the contract is made, I think the more accurate reason for not affording relief under the Act is that SGI, as a second hand dealer, is entitled to rely on the exclusion found in

section 14 of the Act: 14(1) A second hand dealer is entitled to rely on a provision in a contract for the sale of a second-hand consumer product that excludes or modifies any or all of the statutory warranties mentioned in clauses 19(d), (

e) and (

g) if the second hand dealer proves that, before he or she entered into the contract, the provision was: (

a) brought to the notice of the consumer; and (

b) made clear to the consumer respecting its effect. I am satisfied that the contractual provision excluding any warranty was agreed to between the parties, and on that basis, Louis has no recourse pursuant to this Act . [ 27 ] I am also satisfied that SGI did not fraudulently attempt to misrepresent the repair estimate as accurate.

There is simply no evidence before me to come to that conclusion, and in fairness, Louis stated in his evidence that he did not believe that SGI was attempting to defraud him. [ 28 ] I am also satisfied that SGI’s failure to alert Louis to the fact that there was a more recent third party repair estimate was an innocent as opposed to a negligent misrepresentation. First, if I were to conclude that the misrepresentation was negligent, I believe that I would have to conclude that in exercising its duty of care as an online vehicle auction services provider, SGI failed to meet the standard of care required of it.

Louis, as plaintiff, carries the burden of proof, on a balance of probabilities, to show that SGI did not meet the standard of care of a reasonable and prudent online auction service provider. He has led no evidence whatsoever as to what that standard should be. I do not think that I can infer that an auction of this type demands scrupulous attention in ensuring that all information in relation to the damage that may have been sustained to a vehicle in a previous accident must, of necessity, be disclosed in order to show that the service provider was acting in a reasonable and prudent fashion.

I may like to do so, but in the absence of any evidence whatsoever, I refuse to do so. The only evidence that I have before me is that SGI’s failure to post the supplemental repair estimate online was a clerical oversight. An oversight may be innocent. Not every oversight is negligent, and the mere fact that SGI has now put

into place special safeguards in an effort to ensure that supplements are posted online does not make its earlier failure negligent. [29] Second, in order to found a claim based on negligent misrepresentation, Louis must, as noted in Queen v Cognos Inc. [1993] 1SCR 87, (SCC), show that there was (1) a duty of care based on a special relationship between the parties; (2) arepresentation which is untrue, inaccurate or misleading; (3) that SGI acted negligently in making the representation; (4) that he relied, ina reasonable manner, on the negligent misrepresentation and; (5) that the reliance was detrimental to him in the sense that damagesresulted.

While I find (2) and (5) to exist, I cannot find that SGI was negligent, nor can I conclude that Louis relied reasonably on themisrepresentation. On this last point, I would note that Louis was aware that repair estimates are not necessarily accurate, and that he hadthis personal knowledge through past experience. Is his alleged reliance reasonable? Louis has acknowledged that notwithstanding hisknowledge that repair estimates are not accurate, he had, in the past, bid for vehicles online.

He has indicated that even if the estimatesare off by a few thousand dollars, he accepts this as an incidental risk to the buying process. With this previous knowledge in hand, Icannot conclude that Louis has succeeded in establishing that he reasonably relied on the accuracy or completeness of the repair estimatethat was posted.

He knew, or ought least ought to have known that it could or would be inaccurate or incomplete. [30] Third, and even if I am wrong on the issues of standard of care and reasonable reliance, I am in any event satisfied that theparties have, by their contract, limited or waived the duty which the common law would have imposed upon SGI. It is clear that the‘wrong’ that Louis complains of may be brought concurrently in contract (on the basis of a breach) or in tort (on the basis of a negligentmisrepresentation).

But parties are entitled to govern their respective rights and obligations by contract and in so doing insulatethemselves from the rigours of the common law: [See generally BG Checo International Limited v British Columbia Hydro and PowerAuthority (SCC)]. In the instant circumstances, the parties have agreed to stipulate for a lower duty of care than thatwhich would be presumed by the law of tort in similar circumstances.

They have indicated that, by agreement, no warranties would begiven; that the vehicle was sold as is; that there was no guarantee as to the vehicle’s structural or mechanical condition; that theinformation provided was not necessarily comprehensive; and that the repair estimates provided were not necessarily complete oraccurate.

As such, the duty of care required in tort law is clearly and expressly contradicted by the contract, and, in my view the terms ofthe contract govern their relationship. [31] I am satisfied that SGI, by failing to include the supplemental repair estimate, misrepresented the cost that might be incurred by asubsequent purchaser who sought to repair the vehicle and then re-sell it. I am satisfied, however, that the misrepresentation wasinnocent.

A plaintiff who suffers loss as a result of an innocent misrepresentation in a contract may obtain a remedy, but a plaintiff willnot be entitled to recover common law damages. Rather, his relief is limited to that of rescission of the contract and return of any monieshe has paid as part of the contract: [See Damages for Breach of Contract; Harvin D. Pitch and Ronald M. Snyder (Carswell), Loose LeafEdition 2011- Release 4 at p 1 -19, and; MacKenzie v Royal Bank (UK JCPC), [1934] A.C. 468 (P.C.). [32] Rescission of an agreement relating to personal property comes within the jurisdiction of this court.

Section 3(1) of The SmallClaims Act, 1997 reads: 3(1) Subject to subsection (7), this Act applies, whether or not the Crown is a party to the action, to any claim or counterclaim for: (a) .... (b) .... (

c) specific performance or rescission of an agreement relating to personal property or services; ....

The equitable remedy for rescission involves, as noted in The Law of Restitution (Loose Leaf Edition) Peter C Maddaugh and John D.McCamus, 2008 Canada Law Book Inc, at p 5:500, ‘the setting aside of a transaction and the granting of such incidental relief as willrestore the parties to their previous position; [contracts] ‘may be set aside on equitable grounds if they have been induced by fraudulentor innocent misrepresentation’. [33] Unfortunately, Louis is not entitled to claim rescission because, as I have said, the parties have, by contract, set the terms of theirbargain and that bargain effectively transferred the risk that a misrepresentation might occur to Louis.

The contract has imported into theagreement the principle of caveat emptor, or buyer beware. That stated, consideration of the principles of rescission assists in identifyingthe manner in which compensation can be quantified. Generally speaking, the granting of a decree of rescission (which is the settingaside of the agreement in order to place the parties in the position they would have been in had the innocent misrepresentation had notoccurred) is conditional upon a requirement that the parties are able to make a restitutio in integrum.

This is a restoration to each party ofthe value of any benefits conferred on the other party, such that the parties are returned to the status quo ante [See: The law of

Restitution, at p 20-1]. [34] In the instant circumstances, even if rescission had, theoretically, been available to Louis, he chose to retain the vehicle, repair it,and re-sell to a third party. Rescission is generally unavailable where the parties are unable to effect that restitutio in integrum. - insituations for example, like this situation, where the vehicle cannot be returned to SGI. [See:The Law of Restitution at p 20-10] Thatstated, Courts in Canada have, on occasion, given a money award to an aggrieved party when restitutio in integrum is unavailable.

InBank of Montreal v Murphy (BC CA), [1986] 6 WWR 610, BCLR (2d) 169 at pp 615-616 the British Columbia Courtof Appeal noted that judges are not: ... confined to the remedy of rescission where the contract is induced by misrepresentation and the awarding of a remedy of rescissiondoes not do justice between the parties. In some cases a money award may be given instead of rescission.

In other cases a money awardmay be given as well as rescission. [35] That money award should attempt to mirror the effect, in pith and substance, of what restitutio in integrum would have done, andin this case it should be in an amount necessary to place the parties in the position they would have been in had Louis not purchased thetruck. With this in mind, the measure of compensation would not be the amount claimed by Louis, in the sum of $10,600.00.

In order torestore the parties to their original position, the purchase price of the truck, inclusive of GST ($17,373.30) would have to be returned aswould the out of pocket costs incurred by Louis to repair the vehicle ($6,866.38), as would Louis’ own labour, (which was valued at$20.00 per hour for a total of $6,000.00). That total equates to $30,239.68. However, Louis sold the vehicle for $29,000.00 and mitigatedmuch of this loss. He is not entitled to a windfall because that is not the purpose of rescission.

After setting off the selling price of thevehicle against the cost of returning him to his original position ($30,239.68 - $29,000.00), I am satisfied that compensation in the sumof $1,239.68 would put the parties back to their original position. It would cover every single expense incurred by Louis, and recognizethat SGI, more likely than not, derived some pecuniary benefit by accepting a bid on the truck that was, in hindsight, more than whatwould have been bid had the true condition of the truck been known by a prospective purchaser.

Conclusion [36] Louis Larochelle is a sophisticated purchaser of used vehicles. SGI carries on a secondary business as a dealer in second handvehicles, and operates an online auction for the purposes of selling damaged vehicles to members of the public for either scrap, recoveryof salvageable parts, or repair and re-sale. SGI does not ask how prospective purchasers intend to use the vehicles they buy and there isno requirement that they in turn advise SGI. Prospective purchasers are required to enter into an agreement with SGI so that they aremade aware of, and be bound by the terms and conditions of the sale.

That agreement clearly and simply alerts purchasers that if theybuy damaged vehicles online that they do so in full recognition that the vehicles are sold as is and without any warranty whatsoever.They acknowledge that repair estimates that are posted online may be inaccurate and incomplete. The effect of this, in law, is to pass therisk of purchasing a used vehicle, which may be defective, and even more defective then SGI estimates, to the purchaser.

This is a classicexample of caveat emptor or ‘buyer beware’ being expressly introduced into the written agreement of the parties. [37] Prior to the sale which is the subject of this lawsuit, Mr. Larochelle had previously purchased used and damaged vehicles fromSGI online. He had personal knowledge that the repair estimates may be incomplete or inaccurate and he continued to use the onlineservice.

He ultimately purchased the truck which is the subject of this dispute and seeks compensation from SGI because, in thisinstance, SGI failed to post a more up to date and more comprehensive repair estimate for the truck, and he alleges that SGI effectivelymisrepresented the cost that might be incurred by prospective purchasers if they chose to repair and re-sell the truck. [38] There is no evidence that SGI sought to de-fraud Mr. Larochelle, nor is there any evidence that it was negligent. Themisrepresentation was innocent.

An innocent misrepresentation does not found a claim under the common law for breach of contract.While compensation may be paid to a purchaser who suffers from the consequences of an innocent misrepresentation, by way ofrescission, the parties entered into an agreement which limited and extinguished any rights a purchaser may have to seek redress formisrepresentation by SGI. This may seem unfair to Mr.

Larochelle in light of the amount of damage that was identified in the subsequentun-posted repair estimate, but in Saskatchewan, parties are free to expressly waive or limit the respective rights and obligations of partiesto a contract as it relates to warranties respecting used cars insofar as those warranties may arise by implication of statute in commonlaw. [39] Had Mr. Larochelle been successful in his action, any compensation that he would have received would be no more than what itwould have taken to put him in the situation he would have been in had he not purchased the truck, an amount which I would have

assessed in the sum of $1,239.68. [ 40 ] Mr. Larochelle’s claim against SGI is dismissed. Under the circumstances I would think that SGI is prepared to waive any claim for whatever nominal costs it may be able to claim in this court. If I am wrong, SGI has until January 15 th of 2017 to advise the Court of its intent to argue for costs. Failing the court’s receipt of SGI’s written request to argue costs, this action shall be dismissed on a without costs basis. P. Demong, J