Brandy Tooley - v. -, 2013 SKPC 145

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: August 21, 2013 Citation: 2013 SKPC 145 File: SC#116 of 2013 Location: Saskatoon _____________________________________________________________________________ Between: Brandy Tooley - and - 4 Friends Auto Sales and Showroom Services Ltd. Self For the Plaintiff Mr. Yasir Mehmood For the Defendant _____________________________________________________________________________ JUDGMENT B.G. MORGAN, J Introduction [ 1 ] Ms. Tooley bought a used van from the defendant corporation, and had specific dealings with Mr. Mehmood, a director of that corporation.

Shortly after purchasing that vehicle, she experienced difficulties with it and therefore returned it to the defendant’s business. The defendant undertook repairs although those repairs were not done to the satisfaction of the plaintiff. Therefore, she took

the vehicle to her own mechanic, and now claims the repair cost occasioned by that decision, as well as a claim for a horn that she states was not functioning at the time of the purchase. [ 2 ] The defendant argues that he told Ms. Tooley that he would make good the repairs, and that if she took the van somewhere else, he should not be responsible for it. He also argues that the horn was working when the vehicle left his lot. The Facts [ 3 ] Although there is significant dispute over certain particulars, what follows is not in dispute, and I make the following findings of fact. [ 4 ] On December 13, 2012, Ms.

Tooley went to the defendant’s business in search of a vehicle. Specifically, she did not want to purchase a vehicle from anywhere other than a dealer as she understood there would be no warranty if she purchased a vehicle from an individual. Thus, she wanted to go to a small dealership; the defendant is such a dealership. [ 5 ] Ms. Tooley was with her husband, Justin Tooley, and they took a vehicle she liked, a 2005 Dodge Caravan, for a test drive.

Although there were a few minor problems with it, the plaintiff was satisfied with that vehicle, and purchased it that day for $3,240.00 plus GST, for a total purchase price of $3,402.00. This vehicle had, at that time, 185,073 kilometres on it (Exhibit P-7). Ms. Tooley took the vehicle home that day. [ 6 ] Mr. Mehmood, as a director of the defendant corporation, had purchased that used vehicle from Band City Auto Sales Inc. in Moose Jaw on June 29, 2012, for a total purchase price, including all taxes and fees, of $2,845.50.

The mileage on the vehicle at that point was 185,073 kilometres (see Exhibit D-4). [ 7 ] On December 20, 2012, Ms. Tooley took her vehicle to Great Canadian Oil Change as part of regular maintenance. At that point, although a 21 point inspection check list showed things were generally alright, the following comments were made: “rack & pinion leak, oil pan gasket leak” (Exhibit P-8). [ 8 ] On that day, or shortly thereafter, Ms. Tooley called Mr. Mehmood, told him about this problem with leaking fluid, and he advised her to bring the vehicle back so that he could fix it.

As it was close to Christmas, the vehicle was actually brought in on December 27. Mr. Mehmood told her to leave the vehicle and he would take care of it, in his words “as per warranty”. [ 9 ] As it was the Christmas and New Year’s season it was not until January 3, 2013, that 3 Star Auto Repair, the mechanic Mr. Mehmood’s company used regularly, completed the repair of a power steering hose leak. On January 2, 2013, I note, Mr.

Mehmood had purchased a pressure hose from Partsource, for a price of $56.40, and I find that this is the part that 3 Star installed January 3, 2013, in an effort to repair the leak, at a cost of $157.50 (Exhibit D-2, D-3). [ 10 ] On that day or the next, Mr. Mehmood was also advised by someone at 3 Star that there was a problem with the power steering rack (this was written on D-3). I would note that, on January 4, 2013, Mr. Mehmood ordered a salvaged power steering rack from SGI, which I find was required to address the problem of the rack and pinion leak; Mr.

Mehmood paid $183.75 for this part and I am satisfied that he intended to have 3 Star install it, at his cost (Exhibit D-1). [ 11 ] The essential differences between the parties are that Ms. Tooley insists that Mr. Mehmood called her on January 4, 2013, telling her to come in and pick up her vehicle, as it was ready. She insists that when she arrived, Mr. Mehmood told her that the vehicle wasn’t ready, but that she could leave it, and that he would replace the faulty rack; however, she would have to pay for the parts, or she would have to pay for the labour.

[ 12 ] Mr. Mehmood’s evidence is that he did not call Ms. Tooley to advise her to come and get her vehicle. Rather, just having learned the day before from the mechanic that a rack was leaking, he had arranged to have that rack replaced, by his mechanic. However, he says that Ms. Tooley was not impressed by the mechanic Mr. Mehmood was using, based on the leaking that still appeared to be a problem, and having no confidence in that mechanic, she insisted on taking the van to her own mechanic. That business, Speedtech, was a business that Ms. Tooley and her husband were familiar with, as Mr.

Tooley raced stock cars, and Speedtech assisted him in that endeavour; that is, based on Mr. Tooley’s hobby, he and Ms. Tooley had confidence in the capabilities of Speedtech, hence the decision to go to that particular location. [ 13 ] Mr. Mehmood is adamant that he told Ms. Tooley that he would make good the repairs, although he would do it through his mechanic; if she chose to take it to her own mechanic, he would not be responsible for the cost of that. [ 14 ] Ms. Tooley paid $57.75 to have her vehicle towed from the defendant’s lot to Speedtech (Exhibit P-3).

The total cost of the repairs at Speedtech came to $2,392.26 (Exhibit P-4), the cost of which included the replacement of the problematic power steering rack, as well as a general service, replacement of the struts and significant work on the front end, as well as a wheel alignment. [ 15 ] I find as a fact that Mr. Mehmood is substantially correct on what occurred and what he said. I believe him when he says that he was prepared to do the work through his mechanic, and that he was prepared to pay for it “under warranty”.

I find that he was prepared to honour his commitment to repair the vehicle, and that he in fact would have paid for the labour for the power steering rack, as he had already paid the parts and labour for the hose. [ 16 ] I am also comforted in this belief by the evidence of Mr. Mehmood, both in-chief and on cross-examination. Throughout the trial, all parties were referring to “a warranty”. After some considerable questioning on that issue, it became clear that Mr. Mehmood was talking about the statutory warranty under The Consumer Protection Act , SS 1996 c.C-30.1 (the Act ).

It is evident from the evidence of Mr. Mehmood that that is the warranty he was referring to. I am satisfied that this is the type of warranty Ms. Tooley was looking for, that is, that is the reason she went to a small dealer. Mr. Mehmood’s evidence on that point was that he thought the statutory warranty was for a 30 day power train warranty, and he candidly acknowledged at the trial that the rack and pinion problem fell within that warranty.

Thus, his evidence, which I accept, coupled with the purchase of the part from SGI Salvage, the day after he learned of the problem with that from his mechanic, satisfies me that he was ready and willing to fix the problem with the steering. [ 17 ] There was a collateral problem with the horn not working on the vehicle. Ms. Tooley said it did not work at any point, and although it appears that she and her husband did not actually check out the horn itself when they took the test drive, she is adamant that it never worked. [ 18 ] Mr.

Mehmood testified that a horn is required in a vehicle if it is being sold, and he maintains the horn was working on the date it was sold, stating that he checked it. However, it is not clear on what date he checked it. [ 19 ] With respect to the events of January 4, both Mr. Tooley and Ms. Tooley maintain that Mr. Mehmood called them to say they could come in and pick up the vehicle. Mr. Mehmood is adamant that he happened to be at the business when they came in and he in fact did not call them; rather, they just showed up. [ 20 ] Ms. Tooley argues that Mr.

Mehmood has no credibility, claiming that, in cross-examination, she caught Mr. Mehmood in a lie. That alleged lie would be that he said he was present at his shop from 9:00 a.m. to 5:00 p.m. all day long, although he also acknowledged driving a cab during the day, which of course, would take him away from his auto sale business at certain times, such that he would not in fact be at his shop from 9:00 to 5:00. However, that is not how I interpreted the evidence. Clearly Mr.

Mehmood, when asked if he was at the shop between 9:00 to 5:00, stated a number of times that although sometimes “we” can be closed, “we” are generally open 9:00 to 5:00. As he put it, if he wasn’t present, one of the other principals of the business would be there. He said he wasn’t necessarily there from 9:00 to 5:00 everyday, as he might be driving a cab at any particular point. However, there are four directors, and he was clear, in my mind, that someone would be there during regular business hours. That makes sense; it is clear that this is a small business, and that Mr.

Mehmood (and I somewhat assume the others) all had other employment, such that between them they made sure someone was there between regular working hours. [ 21 ] As to how it was precisely that the parties all got together on January 4, I can’t say for sure how it is that occurred. However,

it doesn’t matter a lot in the long run. I find it unlikely that Mr. Mehmood would call the individuals to pick up the vehicle, when he knew the vehicle wasn’t ready. It may be that one or more of the parties have forgotten that detail, or it may be that someone is being convinced, after the fact, of the correctness of their position. However, I do not find that is a significant issue respecting credibility, as I have already determined that Mr. Mehmood’s version of the main details is correct.

The Law [ 22 ] Each of the parties were of the view that there is some kind of warranty, and the defendant specifically stated that his understanding was that he was bound by the provisions and offered the protection of the Act .

Part III deals with consumer product warranties and I find that Ms. Tooley is a “consumer”, the defendant is a “retail seller”, and the motor vehicle is a “consumer product” in these circumstances. [ 23 ] Pursuant to s. 42 of the Act the motor vehicle is a second-hand consumer product. [ 24 ] Statutory warranties are contained in s. 48 of the Act (I find that there are no additional written warranties or express warranties given in this case), and the relevant statutory warranties in this case are:

d) that the 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) where the consumer examines the product before the contract is made, respecting defects an examination ought to have revealed; ...

g) that the 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 product; ii) the purchase price; . . . iv) the necessary maintenance the product normally requires and the manner in which it has been used. [ 25 ] Under s. 57 of the Act , if there is a breach of one of those statutory warranties in s. 48, Mr. Mehmood’s company is required to make good the repairs. Specifically, that obligation is set out in s. 57(1)(a)(i): s. 57(1)(a) . . . and where 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 of the consumer but, where the breach has not been remedied within a reasonable period, the consumer shall be entitled to have the breach remedied elsewhere and to recover from the party in breach all reasonable costs incurred in having the breach remedied. [ 26 ] In this case, Mr. Mehmood, on behalf of the defendant, has acknowledged that the problem with the steering is part of the power train, and falls within what he believes the statutory warranty period to be. [ 27 ] I am satisfied that Mr.

Mehmood initially thought the problem was a leaking hose, and took steps to remedy that. He was then informed that the steering gear needed replacement and took steps to obtain that part, and was prepared to have his mechanic repair it. [ 28 ] The defendant was, I find, at all times willing and prepared to honour his obligations. I find it was not reasonable for the consumer, Ms. Tooley, to take the vehicle to another mechanic, on the grounds that “the breach has not been remedied within a reasonable period”, as referred to in s. 57 of the Act .

In my view, her lack of faith in the mechanic the defendant employed, being the reason she wanted to use her own mechanic, was not reasonable in these circumstances. I appreciate that the pressure hose was cross- threaded but I also note that at no time was the defendant’s mechanic given a chance to remedy what is a fairly simple error to fix, that

is, even if the pressure hose was not properly attached, which was the initial complaint, it certainly could have been remedied very simply by the same mechanic. [ 29 ] With respect to the power steering rack, Exhibit P-4, the repair bill from Speedtech, shows that was a significant part of the total bill. Specifically, with respect to the portion of that bill that refers to the tie-rods, the front end work, I find as a fact that Mr. Tooley was aware of those shortcomings, and I am sure that he passed that knowledge on to his wife, the plaintiff, with whom he was taking the test drive.

Specifically, in cross-examination, he stated that he thought the vehicle needed struts when he went for the test drive, and the reason the vehicle was purchased is that “it wasn’t that big a deal”. He went on to say that, generally speaking, the vehicle purchase wasn’t such a good deal when you had to fix everything. [ 30 ] With respect to Exhibit P-4 generally, the overall cost of that, including the shop supply that the defendant takes such exception to ($194.88) was $2,392.26. I note the purchase price was not that much more than the repair bill.

Section 42 of the Act refers to second-hand products, which this van certainly was. In such a case, “the description and the purchase price are material facts in determining the characteristics and qualities that consumers can reasonably expect that product to have”. In my view, the plaintiff purchased a 2005 vehicle, with over 185,000 kilometres on it, at a low price. It is unreasonable, in my view, for the plaintiff to expect the vehicle to be in tip-top shape, considering that price, which is a relevant factor. [ 31 ] During her examination of Mr. Mehmood, the plaintiff was asking Mr.

Mehmood the price of other vans that were on the lot at the time she purchased her van. It was clear from her questioning, which of course is not evidence, that she felt there were a number of other vans available at a higher cost. I raise this only because, if true, it demonstrates the point made in the legislation that a relevant factor in a case such as this is the purchase price of the product. That is, the condition that van could have been expected to have been in is dictated, to a certain degree, by the price.

If there were in fact similar vans for sale on the defendant’s lot, for a higher price, one would assume the reason those vans were being offered at a higher price than the plaintiff paid for her van was because those vehicles were in better shape. [ 32 ] Further, as indicated earlier, the vehicle was taken for a test drive, and the plaintiff’s husband was certainly aware of the problems with the struts. If he shared this information with the plaintiff, as I’m sure he did, then she was aware of the state of the vehicle she was purchasing.

In the unlikely event that he didn’t share that information with his wife, the fact remains that one would not expect a vehicle, at this price, to have brand new struts. [ 33 ] I conclude that the plaintiff examined the vehicle, knew what she was getting, and whereas she could not have known about the problem with the power steering rack, the defendant was willing and able to repair that.

It was unreasonable for the plaintiff to remedy the problem on her own, without giving the defendant a reasonable opportunity to do so, and to in addition have other work done that was beyond the responsibility of the defendant to repair, and expect the defendant to bear the costs of her decision. [ 34 ] With respect to the horn, s. 113 of The Traffic Safety Act , SS 2004, c.-T 18.1, states that: “No person shall operate ... a vehicle that is not equipped in accordance with this Act and the regulations”.

Further, s. 114 of that Act prohibits any person engaged in the business of selling vehicles from selling a vehicle “...if the vehicle is not equipped in accordance with this Act and regulations”. [ 35 ] The Vehicle Equipment Regulations , 1987 , c V.2-1 Reg 10 , s. 28(1) states that: “ The vehicle shall have a horn that emits a sound that is audible under normal conditions from a distance of at least 60 metres”. [ 36 ] In this case, although I am satisfied that Mr.

Mehmood checked the horn at some point, I am not satisfied that he knows, as he claims to know, that the horn was in operating condition at the time he sold the vehicle. I find on the facts of this case that there was no horn that was in working condition on the vehicle at the time it was purchased and I find that it would not be reasonable to expect that to be discovered by someone on a test drive. Damages [ 37 ] The defendant has paid $183.75 for a used steering gear, including the rack, from salvage.

I find that is a reasonable expenditure to make on a 2005 vehicle, and while there was no direct evidence of what actually happened to that rack, I am satisfied that

it was available to the plaintiff and that she either took it, or could have taken it with her, if she chose to. I find that the power steering rack needed to be replaced, and that the defendant was prepared to replace it. However, the defendant was not afforded a reasonable opportunity to do so, due to the actions of the plaintiff. [ 38 ] Although I have no evidence as to the hourly labour rate of either 3 Star Auto Repair or Speedtech, Exhibit P-6 is an estimate from Auto Clearing as to the cost of providing and installing a new horn.

That firm’s hourly labour rate at the time of that estimate being provided was $129.00. I have no evidence as to how long it might take to replace the steering rack. I am therefore estimating $200.00 in labour costs to have that problem remedied, as the defendant, had it been given the opportunity to have its mechanic do the work, would have had to pay something.

As the defendant purchased a used part which was available to the plaintiff, I am not prepared to award the plaintiff compensation for what she may have paid Speedtech for that part. [ 39 ] With respect to the horn, P-6 indicates that the price of the part would be $184.44, and the labour charge would be .80 hours. I don’t think it is reasonable for the plaintiff to expect a brand new horn on an eight year old vehicle (P-6 shows a parts cost of $184.44). I am assuming that a used horn would have been available through salvage, although again, I have no information respecting the cost of a salvaged horn.

In my view, a satisfactory compensation amount for a used horn, and installation thereof, would be $150.00. [ 40 ] The defendant is not responsible for the cost of towing the vehicle to Speedtech, nor is it responsible for the Speedtech bill. [ 41 ] In total, the plaintiff shall have judgment for $350.00, the cost of $28.00 for issuance of the claim, and pre-judgment interest from January 4, 2013 to date of judgment. __________________________ B.G. Morgan, J