Hazrat Ali Talash - v. -, 2015 SKPC 120

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 201 5 SKPC 120 Date: August 12, 2015 File: 431/14 Location: Regina Saskatchewan _____________________________________________________________________________ Between: Hazrat Ali Talash - and - 604329 Saskatchewan Ltd. Operating under the business name of Hyundai of Regina Hazrat Ali Talash For the Plaintiff Allan Lamoureux For the Defendant JUDGMENT P. DEMONG, J Introduction [ 1 ] The plaintiff, Mr. Talash, is a recent immigrant to Canada, and resides in the City of Regina.

The defendant, 604329 Saskatchewan Ltd., carries on business under the trade name and style of Hyundai of Regina (‘Hyundai’) and is in the business of selling new and used vehicles to the public at large.

[ 2 ] Mr. Talash purchased a 2012 Veracruz automobile from Hyundai on May 17, 2014. Within a few days he discovered that the engine size was larger than what he thought he had contracted for and brought the vehicle back to Hyundai seeking to rescind the agreement. Hyundai agreed to accept the vehicle back at the value of its original purchase price if that sum in turn was applied to the purchase of a different and more expensive vehicle. [ 3 ] When Mr. Talash returned the vehicle he did indeed purchase a newer and more expensive vehicle from Hyundai, a 2013 Santa Fe. Mr.

Talash purchased this vehicle on May 22, 2014. The purchase price, exclusive of taxes and extras equated to $36,700.00. Allegedly within a day of this purchase, Mr. Talash says he began to experience mechanical problems with the vehicle and returned it to Hyundai and ultimately demanded the return of his full purchase price. [ 4 ] Hyundai determined that the problems were minor and refused to comply with Mr. Talash’s request. Mr.

Talash abandoned the vehicle on Hyundai’s vehicle lot and now brings this action seeking damages in an amount to be determined at trial, which may exceed this Court’s monetary jurisdiction. Mr. Talash is prepared to abandon that portion of his damages which exceed the jurisdiction of this Court. Mr. Talash’s prayer for relief seeks: (

a) damages for the faulty vehicle in an amount to be determined at trial; (

b) the cost of a rental vehicle in the amount of $2,500.00; (

c) the trade-in cost, or the return of a trade-in vehicle in the sum of $4,000.00; (

d) the income lost while waiting for Hyundai’s repair of his vehicle; (

e) interest; and (

f) costs. [ 5 ] Essentially, it is clear that Mr. Talash is a ‘consumer’ and Hyundai is a ‘supplier’ within the meaning of The Consumer Protection and Business Practices Act , ss 2013 cC-30.2. Mr. Talash is seeking, in pith and substance, relief as may be allowed under the Act for breach of the consumer protection warranties identified therein. [ 6 ] Hyundai denies that Mr. Talash is entitled to damages either as alleged or at all. It alleges that Mr. Talash caused physical damage to the vehicle while it was in his possession and that any damages to the vehicle were therefore not covered by warranty.

It alleges that the repairs required were minor and that they have no legal obligation to return Mr. Talash’s purchase price. They maintain that Mr. Talash is mistaken in relation to the nature of any oral representation that may have been made to him nor does he understand the accounting of monies paid and received for the trade-in vehicle that he offered to the defendant to assist in the financing of this newer vehicle. Finally, they assert that Mr.

Talash would have suffered no loss whatsoever if he had simply allowed Hyundai to fix the minor damage to his vehicle and, thereafter, continue to use it. [ 7 ] This case raises the unfortunate difficulties that arise when recent immigrants, unversed in the English language and Canadian law, negotiate commercial contracts and the miscommunication that can arise therefrom. This vexing problem continues into the courtroom when that language barrier, and even the simplified procedure in small claims court, can confound a plaintiff.

Evidence and Findings of Fact [ 8 ] The time lines involved in the dealings between the parties are important. They assist in defining the type of relief sought by the plaintiff. The pertinent time frame commences on May 17, 2014, a Saturday, and, for all practical purposes, conclude on June 6, 2014, a Friday. [ 9 ] On or about May 17, 2014, Mr. Talash attended the Hyundai dealership in Regina and purchased a used 2012 Hyundai Veracruz for a total purchase price of $29,766.45. The purchase was arranged through a financing agreement.

He drove the vehicle home and shortly thereafter, when speaking with a colleague, he was advised that the engine size that he thought the car had was actually larger than what he had intended to buy.

[ 10 ] He attended at the dealership a few days later on Thursday, May 22 nd and indicated to Hyundai that he wanted to rescind the contract. Hyundai agreed, if, Mr. Talash was prepared to trade it in for another vehicle. Following negotiations with the salesman Imran Syad (who also speaks Urdu, Mr. Talash’s primary language), Mr. Talash agreed that he would purchase a different but more expensive 2013 Hyundai Santa Fe from the dealership. The purchase price of the 2012 Veracruz would be applied to this new purchase. [ 11 ] By contract dated May 22 nd , Mr. Talash purchased this newer vehicle.

In order to bridge some, but not all, of the difference in price between the two vehicles, Mr. Talash traded in a second car, a 2008 Ford Focus for the alleged agreed upon price of $4,000.00. [ 12 ] The total purchase price for the Santa Fe inclusive of purchase price, air tax, environmental levy, anti-theft protection and PST equated to approximately $39,000.00. After set off of the total purchase price of the 2012 Veracruz ($29,766.45), and the trade-in value of the Ford Focus ($4,000.00), and some further slight adjustment to reflect pay out of the lien on the original vehicle, and additional taxes, Mr.

Talash effectively spent about $9,000.00 more to acquire this newer and more expensive vehicle. Once again, he entered into a financing agreement to arrange payment for the Santa Fe. I note in passing that Mr. Talash was, at this time, earning $18.00 per hour working in a seed warehouse. Based on a typical 2,000 hour work year, he would have earned approximately $36,000.00 per year gross salary. In effect he had just purchased a vehicle that cost well in excess of his yearly take home pay. [ 13 ] Mr.

Talash advised the Court that when he attended at Hyundai on this second occasion, he brought with him two friends to assist in the purchase and the negotiations, because each of these people were more fluent in the English language than him. They each testified at trial, and with due respect, while they are more fluent, their fluency was only marginally more pronounced than Mr. Talash. [ 14 ] During the course of the negotiations a few things are worthy of note because they form the basis of the claims advanced by the plaintiff. First, Mr.

Talash says that the salesman made an oral representation to him that if Mr. Talash had any problems with the vehicle, Hyundai would give him another one. This arguably happened at or about the time that the salesman indicated that this used vehicle should be inspected one final time before driving it home. If there was a problem, Mr. Talash should not worry because Hyundai would fix it because it had a warranty. This explanation is different than what the plaintiff’s witness Mr. Turhan said, which was that Mr.

Syad had given him a 30 day exchange warranty, which he understood to mean that the plaintiff could change the vehicle if he was unhappy with it. Even then, this evidence is suspect. In my view, these witnesses inferred an express oral representation because, they allege, the salesman was attempting to draw their attention to a series of placards on the wall, one of which was a platinum warranty, and another, a certified pre-owned vehicle warranty. Mr. Turhan could not, at trial, recall if the salesman had offered to give Mr. Talash his money back if he was unhappy. He couldn’t recall that, if unhappy, Mr.

Talash was promised a new vehicle. [ 15 ] Syad Imran testified for the defendant. He was the salesman that sold Mr. Talash the vehicle. He denies that he made any representation to the effect that if Mr. Talash was unhappy with the vehicle he could return it, or exchange it, or get his money back. He acknowledged that some vehicle warranties have this effect, and that yes, these warranty placards are situated on the office walls, but denies that he represented that this particular vehicle had those kinds of warranties.

What he does recall indicating is that if the vehicle had any problems, then it was under warranty and that those problems would be fixed by Hyundai. [ 16 ] Upon a review of the evidence and lack thereof, I am not satisfied that the salesman, or Hyundai, at any time provided an express oral representation to the effect that if, for any reason Mr. Talash was unhappy with the vehicle, or if it had problems, it could be exchanged, and/or Mr. Talash could get his money back.

I find support for this conclusion simply because it sounds so utterly open ended, and so contrary to what the defendant says is never done in the used car industry. The defendant has testified that they make a great deal of profit in selling extended warranties. No salesman, it says, motivated by the opportunity to make additional commission by up selling these additional warranties, would make such a grandiose promise, especially for free. It belies common sense to conclude that if, for instance Mr.

Talash had the car for a few days and damaged it through his own negligence (something which the defendant maintains actually occurred) that Mr. Talash could then, without condition, simply return the vehicle and get his money back. Further, I note that the sales contract signed by the plaintiff allows a space for the purchase of an extended warranty, and this portion of the contract is not filled in, nor paid for. If the warranty was made, would Mr. Talash not have sought its inclusion into this empty space?

In conclusion, if such a representation was orally made, whatever the true nature of that representation could have been, Mr. Talash has failed to convince me on a balance of probabilities that it was made or what it was intended to reflect. [ 17 ] The second matter deals with what appears to be Mr. Talash’s concern that he was not paid for, or alternatively that the contract did not properly offset, the value of a trade-in vehicle Mr. Talash had used to provide additional funding for this newer and more expensive vehicle.

[ 18 ] The newer Santa Fe was an expensive car, and it was clear the Mr. Talash could not meet the financing conditions for that vehicle based on a trade-in of the 2012 Veracruz by itself. Mr. Talash had to come up with more money. To do that, he offered to also trade in a 2008 Ford Focus that belonged to his friend. There were discussions between the parties as to the value that would be attributed to that vehicle and at the end of the negotiations, Hyundai says they negotiated a value of $4,000.00 for the vehicle. Mr.

Talash says that it was more, either $5,000.00 or $4,200.00 depending on the evidence the plaintiff adduced at trial. Mr. Talash says that this trade-in value was not credited to him when the contract was finalized. [ 19 ] I disagree with Mr. Talash when he says that the agreed upon price was anything other than $4,000.00. I say this because the $4,000.00 dollar value price is specifically referred to on the written contract that was signed by him. In addition, his own pleadings seek return of the sum of $4,000.00 and not a different value. [ 20 ] I must also disagree with Mr.

Talash’s assertions that the contract did not offset the value of that trade-in. I have reviewed the contract and have considered the various inputs and offsets set forth in the terms of settlement, and, with due respect to Mr. Talash, those settlement terms clearly and unequivocally offset the $4,000.00 value of the trade-in. [ 21 ] Immediately after purchasing the vehicle, Mr. Talash wanted to drive it off the lot.

The salesman indicated to him however that he should wait because in the normal course of a sale of a used vehicle (it had 34,757 kilometres on it) there would be a final inspection before its release to a purchaser. Mr. Talash, however, was keen to take it home and the salesman allowed him to do so but warned him to be careful pending a final inspection which was booked for about a week later. He suggested that Mr. Talash keep the speed under 100 kph and to keep it off the highway. Mr.

Talash took no issue with that because, he said, he intended to use it in the city to go to work and back and would not likely use it for more than about 40 kilometres per day. [ 22 ] Mr. Talash says that he drove it home and the next day, on Friday the 23 rd of May, and after having driven it for a short period of time the engine light went on. He says he contacted the salesman and brought the vehicle in for service. The salesman in turn advised Mr. Talash that there was no loaner vehicle available but that Mr. Talash could use the salesman’s car in the interim. The following day, Saturday, May 24, Mr.

Talash says that the salesman advised that he needed his car back and when Mr. Talash attended to the shop, his car had not yet been serviced. He says that he then drove home with a friend. On the 27 th or 28 th of May, and after calling repeatedly to see if his car was fixed, he attended at Hyundai and took his car. He needed it for work. After a day of use, the engine lights came on, again forcing him to come back to Hyundai. Mr. Talash says that at that time he demanded his money back from the salesman and the salesman refused. The car was taken in for servicing and Mr.

Talash was left without a car as no loaners were available. Mr. Talash says that thereafter and every day he contacted Hyundai to see when his vehicle would be ready and received no satisfactory response. [ 23 ] I earlier referred to the time lines in this dispute because Hyundai steadfastly maintained that they only first became aware of a problem with the vehicle on Thursday, May 29 th , when Mr. Talash said he brought it in the second time. Hyundai’s argument is that this is the only time that they have a record of a work order being prepared.

Had it been in on the 23 rd , a work order would have been made and they would have had a record of it. They also maintain that in direct examination, the salesman had confirmed that the vehicle was only brought in once. Unfortunately, in cross-examination, the salesman conceded that the vehicle may have been brought in on both days suggested by Mr. Talash. Can I conclude that the vehicle was brought in twice, but for whatever reason, the work order was not prepared or delivered to the service department on that date, and therefore no work was done on it?

Can I conclude that presumably the service department was unaware that the vehicle had been brought in on the first occasion? [ 24 ] I have some problems with this bit of evidence. If the car had been brought in on the 23 rd of May and then kept un-serviced by Hyundai, until the 27 th or 28 th , and then brought back again on the 29 th , Mr. Talash would have had the car in his possession for a small portion of the 22 nd , a small portion of the 23 rd , none on the 24 th , 25 th , 26 th , or 27 th , and then arguably for one additional day. If so, and if Mr.

Talash only drove it, as he says, only to go to work and back or about 40 kilometres per day, then the car would have accumulated only 80 kilometres or so on its odometer. The problem however is that Mr. Talash says that he took a picture of the dashboard when the engine lights came on a second time (May 29), and the odometer reads 34,987. In addition, once the vehicle was finally serviced, the mileage read 35,097. It is clear that since the 22 nd of May, the vehicle had been driven some 330 kilometres.

This would be the equivalent of 6 and ½ hours of non-stop driving within the city limits. [ 25 ] If Hyundai’s assertion is correct, that Mr. Talash only brought it in on one occasion, on May 29 th , then Mr. Talash would have had,

[ 25 ] If Hyundai’s assertion is correct, that Mr. Talash only brought it in on one occasion, on May 29 th , then Mr. Talash would have had, and driven, the vehicle for seven days. Assuming that it would have been used to drive to and from work, on the weekend, to go shopping and the like, it would seem to the Court that the mileage used would come much closer to that which is actually borne out in the documentation presented at Court.

It would also give some fodder to Hyundai’s suggestion that upon inspection of the vehicle they concluded that a broken vacuum canister and loose stabilizer link was probably caused by erratic driving resulting in the undercarriage being physically damaged while the car was being driven, something which was not covered by the existing mechanical warranty. In support of this position, Hyundai asserts that the vehicle had in fact been in the shop on the 22 nd day of May for a minor unrelated problem.

When the vehicle was being serviced at that time, they saw no problem whatsoever with the stabilizer link and vacuum canister. I am unable to reconcile this conflicting evidence, and I am unable to positively determine whether or not the vehicle had a pre- existing problem or whether it was a problem created by physical damage caused by the erratic driving of the vehicle while in the possession of Mr. Talash. [ 26 ] In any event, it is clear that the vehicle was brought in on Thursday, May 29 th and work was performed on it, according to Exhibit D-7, on Friday, May 30 th and Monday, June 2 nd .

Parts had to be ordered and the vehicle was not finally repaired until Thursday, June 5 th . [ 27 ] During this time Mr. Talash became more agitated. He says that he phoned or attended on Hyundai on a daily basis asking when his car would be done. On June 2, utterly frustrated, he attended the dealership and presented them with a letter, Exhibit P-9, expressing his indignation that it was taking so long and that he was not offered a loaner and therefore he was losing time at work. I note that this letter did not demand rescission of the agreement or the return of Mr. Talash’s purchase price.

One of the managers then gave him a handwritten note indicating that if his vehicle was ever in for repair again he would get a loaner. At the same time, the manager presented him with a loaner. Mr. Talash used that vehicle until the 4 th day of June and then returned it. He advised Hyundai that he no longer wished to own his car and that he considered that they owed him his money back. He then attended to his vehicle and pulled off his licence plates with the intention of abandoning it (or rendering up possession back to Hyundai). [ 28 ] Kevin Fairbrother, the General Manager of Hyundai says that he met with Mr.

Talash at that time. He says that he did his best to try to rectify what he knew was a significant problem for Mr. Talash. He indicated that in addition to the promise to always ensure that Mr. Talash would have a loaner vehicle when his was in for repair, he offered him a one thousand dollars rewards card which he could use to buy down some of the existing indebtedness on the vehicle. In addition he indicated that he was prepared to extend the existing warranty on the vehicle for an additional year. In addition he says that he would not charge Mr.

Talash for the repairs, even though Hyundai was certain that the problem arose by virtue of physical damage to the vehicle. He says he did this, and I accept his evidence, because his dealership has an excellent reputation and he will always go out of his way to try to ensure that the customer walks away happy. He says that he explained, in no uncertain terms, that Hyundai was not prepared to accept the surrender of the vehicle or refund Mr. Talash’s money. Mr. Talash did not accept the offer and walked away from the vehicle never to return. And then he brought this lawsuit.

Analysis [ 29 ] It is based on these facts that Mr. Talash brings his lawsuit. He says that he had to incur significant expenses in renting a vehicle following his surrender of the vehicle. He says that he lost significant time from work between May 23 and June 5 attending to his dealings with Hyundai. He says that he eventually lost his job (in March of 2015) because of so many lost days from work attending to this matter and in not having a vehicle to get to and from work. He says that he has lost the value of the trade-in of the Ford Focus which had a value of $4,000.00.

He has never made a payment on the financing contract and runs the real risk that at some point the bank may come to him to ask him to pay for the accrued monthly payments not made, together with the bank’s shortfall after they seized his vehicle for non-payment and sold it at auction. [ 30 ] Mr. Talash is in a very unfortunate position, but, for the reasons which follow, I must dismiss his claim in its entirety but without any costs payable to Hyundai. [ 31 ] As I have previously indicated, there is no basis for Mr.

Talash’s claim that the terms of settlement for the vehicle did not include an adjustment for the trade-in of the 2008 Ford Focus. They are set forth and properly identified on the contract of purchase. As such, his claim for recovery of this sum is dismissed. [ 32 ] Sections 16 and 17 of The Consumer Protection and Business Practices Act , SS 2013, c C-30.2 reads: Express warranties

(1) Any promise, representation, affirmation of fact or expression of opinion or any action that reasonably can be interpreted by a consumer as a promise or affirmation relating to the sale or to be quality, quantity, condition, performances or efficacy of a consumer product or relating to its use or maintenance is deemed to be an express warranty if it would usually induce a reasonable consumer to buy the consumer product, whether or not the consumer actually relies on the warranty. (2) Subsection (1) applies to a promise, representation, affirmation of fact or expression of opinion made verbally or in writing directly to a consumer or through advertising by: (

a) a retail seller or manufacturer; or (

b) an agent or employee of a retail seller or manufacturer who has actual, apparent or usual authority to act on his or her behalf.

(3) No express warranty is to disclaim, exclude or limit a statutory warranty set out in

section 19. Parol evidence rule abolished 17 Parol or extrinsic evidence establishing the existence of an express warranty is admissible in any action between a consumer and a retail seller or manufacturer even though it adds to, varies or contradicts a written contract. [ 33 ] As I have previously stated, Mr. Talash has not convinced me on a balance of probabilities that Hyundai’s salesman made a promise or represented that Mr. Talash could, for any reason return the vehicle for a replacement or get his money back. The evidence simply falls short of such a conclusion. [ 34 ] This notwithstanding, if Mr.

Talash had problems with the vehicle performance was he therefore entitled to return the vehicle and demand his money back? I must conclude that he was not. While I have some concerns with a sale process that allows a purchaser to buy a used vehicle, sign the contract and only then be advised that the vehicle is not ready to be taken off the lot because it has not been serviced, I note that Mr. Talash agreed to take the vehicle under these circumstances.

He knew that Hyundai wanted to do a final inspection, and was agreeable to taking the vehicle off the lot as soon as it was purchased on the understanding that he would bring the vehicle back a week later for a final inspection. [ 35 ] Mr. Talash knew that the vehicle would have to go back into the shop at some point in the future and reasonably should have known that he might be without it for some time if that inspection took a day or more.

He cannot reasonably be heard to say that he has lost income and had to arrange for a rental vehicle during this inspection, which took place on the 29 th of May. [ 36 ] In addition, if, in fact, the car had to be repaired because of physical damage caused to it while in Mr. Talash’s possession, and there is some evidence to that effect, then Mr. Talash cannot be heard to say that he should be paid for loss of income and/or the cost of a rental vehicle while the vehicle was being repaired.

He is, in that situation, the author of his own misfortune. [ 37 ] If, however, the vehicle had a pre-existing problem unknown to him when he bought it, other considerations would apply.

Section 19 of the Act imports certain statutory warranties in a sale arrangement between a supplier and a consumer: 19 If a consumer product is sold by a retail seller, the following warranties are deemed to be given by the retail seller to the consumer. (

d) that the consumer product supplied under the contract is of acceptable quality, except that this warranty is deemed not to be given: (

i) respecting defects specifically drawn to the consumer’s attention before the contract is made; or

(ii) if the consumer examines the consumer product before the contract is made, respecting defects that the examination ought to have revealed; (

g) that the consumer product and all its components are to be durable for a reasonable period, having regard to all the relevant circumstances of the sale, including: (

i) the description and nature of the consumer product; (ii) the purchase price; (iii) the express warranties of the retail seller or manufacturer; and (iv) the necessary maintenance the consumer product normally requires and the manner in which it has been used; [ 38 ] A breach of these statutory warranties does not automatically mean that a consumer may rescind the contract and demand the return of his purchase price. Section 28(1)(

a) of the Act grants to the supplier the opportunity to remedy the breach free of charge, while still allowing the consumer to recover damages for losses that are reasonably foreseeable for losses that he has suffered: Remedies for breach of statutory or express warranties 28

(1) If there is a breach by a manufacturer or retail seller of a statutory warranty mentioned in

section 19 or of an express warranty mentioned in

section 16 and if: (

a) the breach is remediable and not of a substantial character: (

i) the party in breach shall, within a reasonable period, make good the breach free of charge to the consumer but, if the breach has not been remedied within a reasonable period, the consumer is entitled to have the breach remedied elsewhere and to recover from the party in breach all reasonable costs incurred in having the breach remedied; and (ii) the consumer is entitled to recover damages for losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach regardless of whether the breach is remedied; [ 39 ] It is only if the breach is of a substantial character that the consumer is entitled to rescind the agreement and demand his money back.

Section 28(1)(

b) of the Act reads: (

b) the breach is of a substantial character or is not remediable, the consumer, at his or her option, may exercise the remedies pursuant to clause (

a) or, subject to subsections (2) and (3), the consumer may: (

i) reject the consumer product; and (ii) if he or she exercises his or her right to reject, he or she is entitled to recover the purchase price from the party in breach and to recover damages for any other losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach. [ 40 ] Were I to conclude that the repair was required due to a pre-existing problem with the vehicle, I could not conclude that the breach was of a substantial character. Section 10(1)(

c) of the Act defines ‘substantial character’: 10 (c) “breach of a substantial character” means:

(

i) that a consumer product, or the level of performance of the retail seller or manufacturer of a consumer product, departs substantially from what consumers can reasonably expect, having regard to all the relevant circumstances of the sale of the product, including: (

A) the description of the product; (

B) its purchase price; (

C) the statutory warranties and express warranties of the retail seller or the manufacturer of the product; or (ii) that a consumer product is totally or substantially unfit for all the usual purposes of that product is totally or substantially unfit for all the usual purposes of that product or for any particular purpose for which, to the knowledge of the retail seller, the product is being bought; [ 41 ] The vehicle purchased by the plaintiff had previously been used and had in excess of 34,000 kilometres on it. A reasonable person would anticipate that it may have some problems with it.

In addition, the repair done on the vehicle was relatively minor and completed within a few days. The cost of repair was less than three percent of its purchase price. The nature of the problem can hardly be said to be of such a nature that the vehicle was rendered totally or substantially unfit for all the usual purposes of a car. The repair returned the vehicle to a state that had been anticipated by the owner upon its purchase. [ 42 ] As a result, Mr.

Talash had no right in law to abandon the vehicle and in law he would have had no right to demand the return of his purchase price. [ 43 ] The only remaining portion of Mr. Talash’s action, in which he might be successful, is reliance on section 28(1)(a)(ii) of the Act ; that is to say, is he entitled to claim for losses that he incurred as a result of the car having to be brought into Hyundai for repair? If he caused the damage that necessitated the repair then he has no claim.

If the damage was pre-existing, he might. [ 44 ] I am satisfied that the only period of time for which he may be able to claim under this head of damages would be for the period of May 22 nd through until June 2 nd He cannot claim for any period beyond June 2 nd because on that date he was offered a replacement vehicle for so long as his car was in the shop. He could have, but chose not to, use that vehicle until his vehicle was repaired. Had he then picked up his vehicle after June 5 th he would have had his vehicle back and would not have lost any time from work.

His decision to abandon the vehicle was unfortunate, but since he was not entitled in law to surrender that vehicle and get his money back, he has no remedy for losses sustained after that time. [ 45 ] Mr. Talash earned $18.00 per hour at his job. Based on an eight hour work day, his loss of income would equate to $144.00 per day. Evidence has been submitted indicating that a rental vehicle would cost $40.00 per day. [ 46 ] If I believe that Mr. Talash brought the vehicle in twice, and if I believe that the damages pre-dated the purchase of the vehicle, the quantum of Mr.

Talash’s damages equate to $386.60. [ 47 ] The only claim advanced by the plaintiff for loss of income prior to June 3 rd stems from his taking off time from work on June 2 nd to deliver his letter demanding a loaner vehicle. This is set forth in Exhibit P-6. All other references to loss of income on that document are post June 2 nd and as I have said, he has no right in law to claim beyond June 2 nd . At best, his income loss amounts to 3.7 lost hours for a total of $66.60. [ 48 ] On Friday, May 23 rd there is no claim for loss of use since he was given the salesman’s vehicle. On Saturday, May 24 th , he would

have a claim for loss of use for one half day for $20.00 since he had the salesman’s vehicle for half of the day. On Sunday, May 25 th , he would have a claim for loss of use in the sum of $40.00. On Monday, May 26 th , he would have a claim for loss of use in the sum of $40.00. On Tuesday, May 27 th , he would have a claim for loss of use in the sum of $40.00. On Wednesday, May 28 th , he would have a claim for loss of use in the sum of $40.00. On Wednesday he picked up his vehicle. On Thursday, May 29 th , he has no claim for loss of use.

He was scheduled to bring the vehicle to the dealership in any event and had agreed to this when he first took possession of the vehicle. On Friday, May 30 th , he would have a claim for loss of use in the sum of $40.00. On Saturday, May 31 st , he would have a claim for loss of use in the sum of $40.00. On Sunday, June 1 st , he would have a claim for loss of use in the sum of $40.00. On Monday, June 2 nd , he would have a claim for one half day of loss of use in the sum of $20.00 only, because thereafter, Hyundai gave him a replacement vehicle. In total, and read in the best possible light for Mr.

Talash, his claim for loss of use would equate to $320.00. [ 49 ] Taken together, Mr. Talash’s potential claim would equate to $386.60, but in order to make that award I must be satisfied that the problem with the vehicle was mechanical in nature and was not caused by physical damage. It is incumbent on Mr. Talash to prove his case on a balance of probabilities and to prove each of the essential elements of his claim on that same standard.

While he denies that he caused any physical damage to the vehicle, Hyundai’s evidence is compelling and the only evidence I have in relation to how this particular problem can come to be. Their evidence, that they had checked the vehicle for another minor matter only hours before it was sold and saw nothing to indicate that this problem existed, and their further evidence that this problem appeared to be caused by physical damage, and is invariably caused by physical damage is compelling.

It is more compelling when, as stated, I simply cannot account for the large (contextually speaking) number of kilometres that had been put on the vehicle since its purchase ... 330 kilometres as opposed to Mr. Talash’s evidence that he only put on, at best, 100 kilometres, and then only in the city. [ 50 ] While I am utterly sympathetic to the position the plaintiff finds himself in, by abandoning a vehicle and suffering the potential financial consequences which flow from that decision, I can come to no other conclusion than, more likely than not, Mr.

Talash caused physical damage to the vehicle while driving it in some manner for an extended period of time. As a result, I believe that Mr. Talash, suffering from the buyer’s remorse that the defendant referred to in closing argument (purchasing an expensive vehicle without the financial means to do so) has attempted to place an

interpretation on the original negotiations in a light which would best advance his decision to abandon the vehicle .... an

interpretation which is so utterly broad as to belie common sense. [ 51 ] I conclude therefore that there was no oral warranty granting Mr. Talash the right to return the vehicle within either 30 or 90 days if for any reason he was dissatisfied with the vehicle. I am satisfied that there was no breach of warranty of a substantial character which would allow Mr. Talash to rescind the agreement and get his money back. I conclude that the repair was necessitated by an occurrence causing physical damage to the vehicle as opposed to mechanical failure which would otherwise be covered under the existing warranty.

As such, Mr. Talash’s claim is dismissed in its entirety. [ 52 ] As I stated in the beginning of this decision, this claim was brought in pith and substance as a claim for breach of warranty or breach of an oral representation, notwithstanding this self-represented plaintiff’s less than exacting attempt to draft a statement of claim. In the result I exercise my discretion 16 under

section 37 of The Consumer Protection and Business Practices Act and conclude that while Mr. Talash’s claim was without merit, it was neither frivolous or vexatious, and I decline to award costs in favour of the defendant. P. Demong, J