James Turnbull - v. -, 2010 SKPC 160

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2010 SKPC 160 Date: December 15, 2010 File: #14/09 Location: Wynyard _____________________________________________________________________________ Between: James Turnbull - and - Daryl Aldous carrying on business as a sole proprietorship under the name of Cool Time Air Conditioning and Rentals James Turnbull For the Plaintiff Daryl Aldous For the Defendant _____________________________________________________________________________ JUDGMENT J. A.

PLEMEL , J _____________________________________________________________________________ [ 1 ] The plaintiff testified at trial and called no other evidence. The defendant testified on his own behalf and also called one of his employees, Landen Huber, as a witness.

[ 2 ] The defendant sold the plaintiff a stove, referred to as a Quadra-Fire Castile Pellet Stove for $3,217.00. In his Statement of Claim the plaintiff claims he made a down payment of $500.00 on the stove in September of 2006. The evidence at trial suggests it was made in about August of 2007. His Statement of Claim refers to paying the balance of $2,717.00 in February of 2007. This also appears to be an error in drafting since in his Statement of Claim he states the stove was delivered in January 2008.

The evidence presented at trial was to the same effect and also that the payment of the balance was around the time of delivery of the stove. Although these discrepancies warrant mentioning, I find that nothing of significance hinges on them. I am proceeding to judgment on the basis that the plaintiff made a down payment in about September of 2007 and paid the balance in about January of 2008. [ 3 ] The plaintiff resides in St. Gregor, Saskatchewan. The defendant’s place of business is in Melville, Saskatchewan. He was the retail seller of the stove.

The two discussed the purchase of the stove over the phone but did not meet in person. The stove was shipped to the plaintiff via a trucking company at a cost to the plaintiff of $80.00. [ 4 ] The plaintiff installed the stove in his home himself in the winter of 2008. It worked reasonably well for approximately one week, although it did not heat as large an area as the owner’s manual (Exhibit P-1) stated it would. After a week, the plaintiff began to experience problems with the stove and, after continuing to have problems with it over a four month period, he sent the stove back to the defendant.

He again incurred a further cost of $80.00 for trucking fees. [ 5 ] During that four months the plaintiff often spoke over the phone with the defendant about the problems he was experiencing with the stove and the defendant gave him suggestions on how to remedy the problems. [ 6 ] Prior to returning the stove, the defendant told the plaintiff he would accept the stove back and refund his purchase price less a 15% restocking fee.

However, when the defendant received the stove back, due to the state the stove was in, he refused to refund the plaintiff any money. [ 7 ] The defendant describes the stove as having been returned in pieces and in bad shape. He tendered in evidence at trial photographs showing the stove in several pieces still on the truck as it was when he received it from the plaintiff. Other photographs of the stove confirm his testimony that the stove was in terrible condition when it was returned. [ 8 ] The defendant obtained a written quote from a third party on the cost of repairing the stove.

The quote, which was filed as an exhibit and is dated May 15, 2008, was for $1,464.47 with the following caution: “This is a visual quote to repair and clean pellet stove. More parts may be needed to get pellet stove to run and work properly.” [ 9 ] In the owner’s manual it is clear that the fuel to be used in this stove is either wood pellets or shelled field corn or a combination of wood pellets and shelled field corn (page 21). It is not designed for other types of fuel.

A promotional brochure tendered by the defendant as D-1, also states that “All Quadra-Fire pellet stoves are approved to burn wood pellets, or a mixture of wood pellets and shelled corn.” The brochure goes on to state that only one model of Quadra-Fire stoves is approved for additional fuels and the Castile, the model purchased by the plaintiff, is not the one. [ 10 ] However, the plaintiff did not burn either wood pellets or shelled field corn. He burned grain.

He is of the view that the stove should not be sold in Saskatchewan if it cannot burn grain, since Saskatchewan is not known as a corn growing province. [ 11 ] The onus is on the plaintiff to prove his claim on a balance of probabilities. [ 12 ] I am satisfied that all problems which the plaintiff encountered with the stove’s performance were as a result of his burning grain, rather than wood pellets or shelled field corn.

I am also satisfied that all damage caused to the stove was as a result of the plaintiff burning grain. [ 13 ] The defendant led evidence, which I accept, that there was a large ash build-up in the stove when it was returned. This resulted in poor air circulation in the stove which led to damage to the stove. The operator’s manual makes it clear that frequent cleaning

was required for the proper functioning of the stove even when approved fuel was being used. Though the plaintiff testified that he cleaned the stove regularly, I am satisfied that he did not adequately clean out the ash left by burning grain. [ 14 ] The manufacturer’s warranty is found on page 43 of the operation manual. Among other things, the warranty states that the stove “...must be installed and operated at all times in accordance with the Installation and Operating Instructions furnished with this product....

Any alteration, wilful abuse, accident or misuse of the product shall nullify this warranty.” [ 15 ] I am satisfied that by burning grain the plaintiff was not operating the stove in accordance with operating instructions. It was a misuse of the stove which nullified the manufacturer’s warranty. [ 16 ] Nor is the plaintiff’s claim saved by the statutory warranty in

section 48 of The Consumer Protection Act, S.S. 1996 c. C-30.1 which applies to this case since the defendant is a retail seller. The stove was of acceptable quality when it was delivered. Furthermore, I am not satisfied that the plaintiff made it clear to the defendant either expressly or by implication that the stove was being bought for the purpose of burning grain rather than wood pellets or shelled field corn. Finally, there is no evidence before me to suggest that the stove and all its components would not have been durable for a reasonable period of time had it been used as it was designed to be used.

CONCLUSION [ 17 ] The plaintiff’s claim for a total refund of the purchase price plus costs of transportation is dismissed. However, that does not end the matter for the following reasons. [ 18 ] It appears from the evidence that the stove still has some value. It is unclear to me at this point if the defendant still has it as well as the parts sent to him by the plaintiff.

If he does, then I order that they be returned to the plaintiff within the next 30 days with the defendant paying the cost of delivery. [ 19 ] If the defendant no longer has the stove or for any reason does not return it in the time specified, then the plaintiff may notify this Court in writing of that fact within 60 days of today’s date, with notice to the defendant that he is doing so. I will then fix a date for a hearing to determine a value to be placed on it and render final judgment at that time. [ 20 ] I am making no order as to costs. J. A. Plemel, J