ROBERT HARRY LEWIS Claimant - v. -, 2015 NSSM 39

Claim No: 436619 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Lewis v. Miller, 2015 NSSM 39 BETWEEN: ROBERT HARRY LEWIS Claimant - and - NICK MILLER Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on June 30, 2015 Decision rendered on July 6, 2015 APPEARANCES For the Claimant Self-represented

For the Defendant Self-represented BY THE COURT: Historical issue 1 I will begin by commenting upon some of the unusual history of this case. 2 It was commenced by the Claimant on February 24, 2015, seeking damages and other relief in connection with the purchase and sale of an All Terrain Vehicle. 3 The case initially came up for hearing before me on the 14 th of April 2015. The Defendant did not appear. The Claimant filed an Affidavit of Service that was regular on its face, and after hearing some brief testimony I granted the Claimant the relief he was seeking.

I heard nothing further until the matter came back to court on June 16, 2015, in the form of a motion to set aside the default order. The Defendant stated that he had never been served with the claim, and had no idea that there was an outstanding legal proceeding until he was served with an execution order. 4 The Defendant satisfied me that there was some doubt as to the propriety of service. According to the Affidavit of Service, he had been served on March 4, 2015 at 541 Pleasant Street in Dartmouth, which is a car dealership named Oceanview Motors.

The Defendant testified that he had worked at that dealership until February 19, 2015, when he had been fired from his employment and barred from the premises. He filed a copy of his letter of dismissal, which appears to confirm those facts. 5 Mostly on the basis that the service was likely defective, I set aside the judgment and set a date for a new hearing on June 30, 2015. I suggested to the Claimant that he might wish to have a word with his process server. 6 The Claimant decided to bring the process server to court on June 30, 2015, to speak to his actions.

Although the matter of service was essentially academic at that point, I heard from the individual involved. He testified that he attended at the car dealership on March 3, 2015, and was told by an individual working there that Mr. Miller had left the company. He went back to his office and did an internet search, and found a photograph of Mr. Miller, who he believed was the person who he had encountered on March 3. He went back the next day and handed the Claim to that individual. He believes that this was Mr. Miller, who was present in court. 7 Mr. Miller is a relatively young man who shaves his head.

He testified that there were three men who worked in the business who all had shaved heads. He showed the court a photo of one of these men on his phone. The process server denied that he had made a mistake in identifying who he was serving. 8 The Defendant reiterated that he had been fired from that business several weeks before he was allegedly seen working there, and allegedly served with the documents. 9 In the end, I remain in doubt as to whether the Defendant was served.

The process server in question, who I have not named in this decision, has some experience serving documents but is not a professional process server. This is not a matter of credibility as much as it is a testament to the frailty of identification evidence. Both Mr. Miller (who was allegedly served) and the process server who allegedly served him, sounded perfectly credible. However, one of them must be wrong. 10 I prefer to resolve this question on the basis of the inherent probabilities. The Defendant demonstrated convincingly that he no longer worked at the car dealership as of February 19, 2015.

As such, it is highly unlikely that he would have been there two days in a

row, let alone been working there. Also, the Defendant had nothing to gain by taking the Claim and then ignoring it. Once he had notice of the proceeding, he acted with diligence and took a strong position in opposition to the claim. 11 All in all, it is more probable than not that the Defendant was not served with the claim on March 4, 2015. The case 12 This case concerns the purchase and sale of a 2011 Polaris RZR All Terrain Vehicle ( “ the ATV ” ). The Claimant alleges that the mechanical condition of the ATV was misrepresented.

He also says that he never received proper registration papers and asks for his money back, or in the alternative damages for the likely cost of repair. 13 The status and background of the individuals is important. The Claimant is a retired automotive mechanic with over 50 years of experience. He is an experienced user of off-road vehicles such as the one purchased. 14 The Defendant was, at the time of the purchase in November 2014, the manager of a car dealership. The ATV was parked at the dealership to be shown to prospective buyers.

The Defendant was quite clear in his dealings with the Claimant, however, that this was a personal vehicle and had nothing to do with the dealership. 15 The Claimant found out about the ATV in a kijiji ad. After a few emails back and forth, he drove down to the dealership in Dartmouth to see the ATV. The evidence of the parties differed as to whether or not the Defendant actually sat on and drove the vehicle.

Even if he did, it would have been for a few seconds only while the ATV was being transferred from one shed to another. 16 The parties had a conversation during which the Defendant told the Claimant about various improvements he had made to the ATV since he had owned it, and work that had been done. They eventually settled on a price of $11,300.00, which was $200.00 less than asking - the reduction being on account of a certain part which had not yet been installed.

The Claimant said he would take it if the Defendant could deliver it immediately to his home in Oyster Pond Jeddore, as the Claimant did not own a trailer. The Defendant agreed and that same day money changed hands and the ATV was delivered. 17 The parties differed as to whether or not this price also included sales tax. The Claimant says it did; the Defendant says it did not. I will return to this issue later. 18 Another issue I will return to later, is the fact that the Defendant did not hand over any title papers that would make registration into the Claimant ’ s name easy and straightforward.

The Defendant explained that he had never actually gotten it from the person who had sold the ATV to him, someone named Cory who happened to be a neighbour of the Claimant in Oyster Pond. 19 The Claimant did not take any significant test drive of the ATV before agreeing to buy it. Nor did he do any in depth inspection, despite his own expertise and ability to do so. 20 The Claimant says that shortly after buying the ATV, he drove it for about 30 minutes on local trails through the woods near his home. He says that he started hearing some rattling noises, which convinced him that certain parts were loose.

He later discovered certain defects which in his claim he listed as: a. Front differential badly worn and leaking lube oil b. Driveshaft wobbles, probably bent c. Problems with new U-joints

d. Steering assembly worn e. Throttle sticks, due to being patched with tape 21 The Claimant says it would cost about $3,000.00 to bring the ATV into the tip top shape that he believed he was getting when he bought it. 22 The Defendant says that nothing was misrepresented, and that the Claimant had every opportunity to do a thorough inspection prior to purchasing. He also speculated that some of these problems may have been caused during the half-hour drive through the woods that the Claimant took. The Claimant denies that he did any damage at that time.

Misrepresentation 23 The Claimant ’ s case is essentially a warranty claim. He wants to hold the Defendant to an alleged promise or understanding concerning the condition of the ATV. The first problem is that in sales of used vehicles between individuals, there are no such implied warranties. The well-known principle of caveat emptor , or “ buyer beware, ” applies. Sales by dealers are treated differently because of the operation of the Consumer Protection Act . 24 The Claimant had every opportunity to inspect the ATV before he agreed to buy it.

Such inspections are the very thing that every buyer is encouraged to do. It would have been so easy for the Claimant to do this, given that he was an experienced mechanic himself. 25 I do not wish to be taken as saying that a party such as the Defendant could not be held responsible for misrepresentation. Clearly false statements can be actionable, particularly if there is fraud. Here the evidence of what statements were made by the Defendant is extremely vague. It appears that the Defendant spoke about the various after-market improvements he had made, and work that had been done.

It has not been proven that these statements were false. However, I did not hear evidence of the Defendant promising that the mechanical condition of the ATV was perfect. Even had there been general statements extolling the virtues of the ATV, there is a certain allowance made as sellers are expected to engage in a certain amount of “ puffery. ” 26 To allow the Claimant recovery of repair costs would essentially be to impose a warranty where none exists. It would also reward the Claimant for failing to exercise due diligence. Was sales tax (HST) included? 27 The evidence here is a bit sketchy.

The Claimant says it was to be included, while the Defendant says it was not. The one document that passed between the parties documenting the transaction was a receipt dated November 28, 2015. The main body of the document says: I Nick Miller Received $11,300 for the purchase of a 2011 Polaris RZR. 28 It is signed at the bottom by the Defendant. 29 Also handwritten on the document, in what appears to be a different handwriting, are the words: This was to be sales tax & delivery to residence 180 Upper Lakeville Rd. if he got paid that day.

30 This statement is in the past tense. It appears that it was written afterward by the Claimant. There is no indication that the Defendant signed the document with that statement in place. 31 All that I can infer from the evidence is that the Claimant believed that the sales tax would be included, if the money were paid that day. The Defendant testified that he had no intention of - essentially - reducing the price by 15% by paying the sales tax himself. 32 In the end, I am not convinced that there was a deal to have the sales tax paid by the Defendant.

Title papers 33 The email exchanges between the parties confirm that the Defendant promised the Claimant that he would try to get the title papers from the third party who supposedly had them. Apparently, this proved to be difficult. To date, those papers have not materialized. 34 Of course, it is an implied term of every sale that the seller has the right to sell the good in question which, in the case of a motor vehicle, usually involves title documents: Sale of Goods Act: 15 In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is (

a) an implied condition on the part of the seller that, in the case of a sale, the seller has a right to sell the goods, and that, in the case of an agreement to sell, the seller will have a right to sell the goods at the time when the property is to pass; (

b) an implied warranty that the buyer shall have and enjoy quiet possession of the goods; (

c) an implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made. 35 If it were to be shown that the Defendant did not have the right to sell the vehicle, or that there were some form of lien on the vehicle (such as a bank lien), the Claimant would clearly be entitled to his money back or, in the case of a lien, some financial relief. 36 The Defendant says that there is an established procedure to obtain registration of a motor vehicle where the title documents are lost or otherwise unavailable.

He says that one brings the vehicle identification number to the local RCMP detachment, which checks for evidence of the vehicle being reported stolen. If the search comes up clear, the purchaser can fill out a declaration and obtain registration. Indeed, a simple Google search (by me) turned up an entry in the Service Nova Scotia website detailing this very procedure: see http://novascotia.ca/sns/rmv/registration/roadveh.asp. 37 Admittedly, following this procedure involves some trouble and - for the moment - some risk.

The Claimant could theoretically be told that there is a problem with the title for the vehicle, or a lien. 38 Under the circumstances, although the claim is otherwise being dismissed, it seems appropriate to add a proviso that if the Claimant is unable to register the vehicle, because of some claim of ownership by a prior owner, or if there is some type of lien on the vehicle, he is at liberty to apply to this court for a further hearing to determine if the transaction should be voided and the Claimant receive a refund of his money, of if any other relief is appropriate.

The Defendant may wish to put some effort into obtaining the proper

sale papers, to assist the Claimant. 39 In order that this matter not remain in abeyance for too long, I am ordering that the Claimant bring the matter back within 60 days of the date of this decision and order, failing which he shall be deemed to have accepted the title as it is. Eric K. Slone, Adjudicator