Helen Kozicki - v. -, 2011 SKPC 95

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 095 Date: June 27, 2011 File: 77/10 Location: Yorkton _____________________________________________________________________________ Between: Helen Kozicki - and - Don Masur Self-Represented For the Plaintiff Self-Represented For the Defendant _____________________________________________________________________________ JUDGMENT K. BAZIN , J _____________________________________________________________________________ OVERVIEW OF THE EVIDENCE [ 1 ] The plaintiff Ms. Kozicki purchased a 1993 Buick from the defendant on January 19, 2010. In addition, as part of the purchase, she gave to the defendant her 1986 Buick.

[ 2 ] The plaintiff and the defendant have had dealings in the past in that the defendant had repaired the plaintiff’s 1986 Buick previously. [ 3 ] The plaintiff’s claim is that she sold her 1986 Buick for $1,800.00, and the defendant purchased her 1993 Buick. She gave the defendant $1,000.00 for the 1993 Buick, and in addition she is saying that she has not been paid the $1,800.00 for the 1986 Buick that she sold to the defendant.

The plaintiff is claiming return of her $1,800.00 and return of her 1986 Buick. [ 4 ] From a review of the evidence, by both the plaintiff, the defendant and the defendant’s two witnesses, it appears what occurred is that the plaintiff purchased a 1993 Buick from the defendant for the sum of $1,800.00. The plaintiff paid for the car by $1,000.00 cash and trading her 1986 Buick, which had a value of $800.00. This is ascertained from the evidence as well as Exhibit D-1 which is the bill of sale dated January 19, 2010, outlining the transaction.

The bill of sale was signed by both the plaintiff and the defendant. [ 5 ] What can be ascertained from the plaintiff’s evidence is that she purchased the 1993 Buick, but she is unhappy with the car. Her complaints are that the car’s window leaked and had to be repaired.

She also indicated that later on, approximately six to eight months after the sale, the window wipers weren’t working, there was problems with the headlights and the doors weren’t closing properly. [ 6 ] The defendant and his two witnesses, one being his common-law partner, and the other being a family friend, testified that the plaintiff was complaining about the car the next day, and that in a day or two, but less than a week, the defendant had advised the plaintiff to return the 1993 Buick, and he would refund her the $1,000.00 and return her 1986 Buick. [ 7 ] The evidence is that the plaintiff never returned the car for a cancellation of the transaction as advised by the defendant.

The defendant later sold the plaintiff’s 1986 Buick. The defendant testified that he advised on more than three occasions that the plaintiff could return the 1993 Buick and he would refund the $1,000.00 and return her 1986 Buick. The defendant’s common-law partner was present for three telephone calls, where she heard the defendant advise who she understood to be the plaintiff, to return the 1993 Buick and the defendant would return her $1,000.00 cash and return her 1986 Buick.

This all occurred before any of the problems complained of by the plaintiff occurred. [ 8 ] The third party, the family friend of the defendant, who the plaintiff also indicated that he was somebody she trusted, also advised that he was at the defendant’s home a couple of days after the transaction, where he heard the defendant advise, who he understood to be the plaintiff, on the telephone, that if she would bring back the 1993 Buick he would return her $1,000.00 and return her 1986 Buick, if she was unhappy with the purchase. [ 9 ] The plaintiff’s main complaint is that the car leaked from the windshield.

The car was bought by the defendant in December 2009 and later sold to the plaintiff in January 2010. [ 10 ] The bill of sale (Exhibit D-1) has on it, and underlined, “as is no warranty”. The defendant states that he had no knowledge that the window leaked, as he only owned it for a short period during the winter months. The plaintiff says that she does not read English well. [ 11 ] The defendant had purchased the car in December 2009 and had sold it to the plaintiff in January 2010.

His testimony was that he did not know the windshield was leaking, as it was winter when he bought and sold the car. [ 12 ] The issues to be decided are: 1) Does the principle of caveat emptor or buyer beware apply in this case?

2) Did the defendant misrepresent the condition of the 1993 Buick to the plaintiff? ANALYSIS [ 13 ] I find that the defendant is not in the business of selling used vehicles, and as such the plaintiff cannot rely on statutory protections under The Consumer Protection Act S.S. 1996, c. C-30.1 or the implied conditions of quality and fitness under s. 16 of The Sale of Goods Act R.S.S. 1978, c. S-1. [ 14 ] Judge Scott of this Court, canvassed these issues extensively in her decisions of Lemke v. Pulvermacher , 2007 SKPC 134 and Wong v.

Wruck , 2008 SKPC 116 . [ 15 ] The facts of this case are such that no warranties or representations were made to the plaintiff, who had ample opportunity to inspect the vehicle. The evidence is that when she complained of the vehicle, the defendant offered to simply void the transaction and give her money and her car back. She chose not to do this. As such, her actions confirm her desire to maintain the contract. Despite the plaintiff’s difficulty with reading English, she had been offered to simply void the transaction which she declined.

Her action now is essentially what she had been offered a day or two after the sale. [ 16 ] The issue of the leaking windshield was a latent defect, which the seller had no knowledge.

As such, this is not a situation where the defendant misrepresented the vehicle, as he had no knowledge of the leaking window, as the vehicle was only owned for a short time by the defendant and he bought and sold the vehicle in the winter. [ 17 ] The other items complained of by the plaintiff as to the windshield wipers and the lights, and the door are simply things that she could have discovered if they were in existence at the time of the purchase of the vehicle, but the evidence is that these issues arose months later. They would be normal wear and tear items in any event.

Her complaints come much later in time, so it is not established that these were issues with the car at the time of purchase. CONCLUSION [ 18 ] I find that the plaintiff has not made out her claim, on the balance of probabilities, in that the evidence does not support her claim that she sold her car the 1986 Buick for $1,800.00, and in return bought the 1993 Buick car for $800.00.

I find that what she had done was purchase the 1993 Buick for $1,800.00, and paid $1,000.00 cash and traded her 1986 Buick to the defendant which was valued at $800.00. [ 19 ] Having regard to the evidence presented at trial and the applicable law in this case, the Court concludes that the plaintiff has failed to prove her claim on a balance of probabilities and the claim is therefore dismissed. There is no order as to costs. Dated at the City of Yorkton, in the Province of Saskatchewan this 27 th day of June 2011. K. Bazin, J