Conners v. McMillan, 2020 BCPC 230

Citation: Conners v. McMillan 2020 BCPC 230 Date: 20201120 File No: C-7533 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LLOYD CONNERS CLAIMANT AND: CHERYL MCMILLAN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Appearing on his own behalf: L. Conners Appearing on her own behalf: C. McMillan Place of Hearing: Campbell River , B.C. Dates of Hearing: January 2 and August 4, 2020 Date of Judgment: November 20, 2020 Introduction: [ 1 ] This trial commenced in early January 2020 and required a continuation date.

Unfortunately, due to the COVID-19 pandemic, courts were required to cease in-person attendances in courthouses across the province for several months. A continuation date did not occur until August 4, 2020. As so often occurs in small claims trials, the parties did not have the benefit of counsel to assist them. As a

result, I undertook a review of the law to assist me in reaching a decision. [ 2 ] I thank the parties for their patience in awaiting this judgment. [ 3 ] This case involves the private sale of a used 1984 Ford Motorhome on August 5, 2018, by Mr. Conners to Ms. McMillan. [ 4 ] Sometime later, and likely in November 2018, Ms. McMillan advised Mr. Conners that she had discovered mould in the motorhome, did not want the motorhome any longer; wanted her deposit back and wanted him to pick up the motorhome and take it back. [ 5 ] The seller, Mr.

Conners, brought this action to recover the balance owing under the contract of sale. [ 6 ] Ms. McMillan filed a Reply and Counterclaim seeking the return of her deposit and reimbursement for expenses incurred for mould testing, hydro expenses to heat the motorhome during the winter, the cost of tarps to cover the motorhome during the winter and expenses associated with this trial. [ 7 ] This case raises issues that frequently arise when, after the sale, a buyer discovers defects in the purchased goods. Initial Evidentiary Rulings: [ 8 ] During the trial, I heard evidence from Mr. Conners, his wife, Ms.

Cheryl Carter, Ms. MacMillan and Mr. Norman Hoessmann. At the outset of the trial, I ruled that Ms. McMillan was not entitled to call three of her witnesses because she had failed to comply with a disclosure order made by Judge Crockett at a settlement conference that required Ms. McMillan to provide the name, contact information and a brief

summary of her witness’ evidence to Mr. Conners by a date certain and well before trial. [ 9 ] The purpose of a disclosure order is to ensure that all parties are able to prepare effectively and efficiently for trial and know the case to which they have to respond. Ms. McMillan was required, by the same order, to provide the documents on which she would rely at trial, to Mr. Conners by June 28, 2019. She applied for an extension of that time and for permission to amend her Reply to include a Counterclaim. That application was granted by Judge Gouge on July 9, 2019 who gave Ms.

McMillan an extension of time to provide documents to Mr. Conners and permission to file an amended Reply and Counterclaim by July 31, 2019. [ 10 ] Ms. Conners was aware of the ability to apply for an order to extend the time to provide documents, but did not seek any further extensions of time in relation to her obligation to disclose her witness’ contact information and brief

summary of their expected evidence. At the commencement of trial, she advised the court that she intended to call three lay witnesses but had failed to comply with Judge Crockett’s disclosure order in respect of those witnesses. [ 11 ] The Small Claims Act (the Act ) and Small Claims Rules (the Rules ) govern a small claims action. Judges recognize that people frequently do not have assistance of legal representation and, accordingly, will take a much more flexible approach in procedural and evidentiary matters during a small claims trial. This is reflected in s. 16(1) of the Act .

However, a more relaxed approach and the court’s discretion to apply it must not displace the fundamental principle of trial fairness to both parties. [ 12 ] Disclosure of the names of the witnesses a party intends to call on the morning of trial places an unfair burden on the other party who has prepared his or her case based on the known or anticipated evidence. In such cases, the disadvantaged party may have to request an adjournment or proceed with a trial without being adequately prepared.

This unduly prolongs litigation and wastes valuable and scarce court time. [ 13 ] In the circumstances of this case, the appropriate order, and the one this court made, was to allow the trial proceed but Ms. McMillan was not permitted to call those three witnesses due to her failure to comply with the disclosure order. The authority to make this order stems from Rule 7(15) and the court’s discretion to control the trial process to ensure a fair trial. Positions of the Parties: [ 14 ] Mr. Conners submits that he discharged his obligations as a seller. He says he gave Ms.

McMillan every opportunity to inspect the unit and “took her to every nook and cranny I knew about”. He maintains that he had no knowledge that there was any mould in the motorhome. [ 15 ] Ms. McMillan says that on the day she viewed the motorhome, Ms. Carter used Febreze. She asks me to infer that Ms. Carter and Mr. Conners used the air freshener to conceal the odour of mould. She also submits that Ms. Conners knew about mould in the bedroom and covered it up with wallpaper. [ 16 ] She says that Mr.

Conners described the motorhome as being in good condition, promised her there was no mould in it and, in reliance on his skill and judgment, induced her to purchase the motorhome. She says this amounts to a misrepresentation and asks for rescission of the contract to put both parties back to their original state. The Evidence: [ 17 ] Mr. Conners had owned the motorhome for a very brief time before selling it to Ms. McMillan and never used it himself. He purchased it in July 2018. It was a private sale and there was no written agreement for sale and purchase of sale.

The sole purpose of purchasing the motorhome was to take it to Powell River where it would be provided as accommodation for an employee. [ 18 ] Mr. Conners’ wife, Ms. Carter, saw the motorhome and described it as "clean and nice for the price" and that when she saw it, it was in "excellent condition." [ 19 ] Mr. Conners described the motorhome at the time he purchased it as being in “fair to good condition”, the mechanics worked well, the interior looked “pretty good” or “fine”, although he saw some staining and some adhesive glue on one side of motorhome but

could not recall which side. He testified that to the best of his knowledge, there was no mould in the motorhome nor did he see any. [ 20 ] According to Ms. Carter, about three or four days after that purchase, the motorhome was driven to Powell River. The employee lived in the motorhome for approximately one month and it was subsequently brought back to Campbell River. Mr. Conners had no use for it and placed it for sale. [ 21 ] Ms. Carter testified that she took photographs of the motorhome on August 1, 2018 and posted those to Facebook where she advertised the motorhome for sale. Ms.

Carter cleaned the motorhome both before and after it was used in Powell River and did not observe any mould, unusual odour or any wetness. [ 22 ] Ms. Carter was a friend of Ms. McMillan. Ms. McMillan had previously told Ms. Carter that she was interested in finding and purchasing a motorhome for her son to live in. Around the time the motorhome was brought back to Campbell River, there was a discussion between them about the unit being for sale and arrangements were made for Ms. McMillan to view it. [ 23 ] On August 5, 2018, Ms. McMillan, accompanied by her mother, inspected the motorhome in Campbell River. Mr.

Conners and Ms. Carter were both present. It was a hot, sunny day and all the windows were open. Ms. Carter sprayed the interior with Febreze to make it smell fresh and they opened all the windows. [ 24 ] Mr. Connor walked around the outside of motorhome and through the interior of the motorhome with Ms. McMillan and her mother. He showed them the mechanical aspects of the motorhome.

He demonstrated the workings of the generator, the air conditioner, the running lights, the engine and told them that it had last been serviced about a month and a half previously, by the prior owner. [ 25 ] He started the engine and explained that the air conditioner ran on the generator and, although it was noisy, it would run. He showed her the light switches, the taps and went through the main functions of the motorhome. He described that Ms. McMillan and her mother were in the motorhome for between one to one and a half hours. He asked her if she wanted to go for a drive in it and she declined. [ 26 ] Ms.

McMillan’s evidence is mostly consistent. She and her mother inspected the motorhome the afternoon of August 5, 2018. She described the things that Mr. Conners showed her as “overall everything”. In addition, she testified that she looked underneath the unit to check for oil leaks (there were none) and climbed the ladder so she could see the roof that, according to her, looked “pretty good”. Her evidence was that the roof looked “pure white” and that Mr. Conners told her the unit had a new rubberized roof. During cross- examination, Mr.

Conners testified that he thought he told her he had not previously inspected the roof but that it appeared to have “some white material on it”. [ 27 ] Ms. McMillan says that she asked Mr. Conners, eight times, if there was any mould in the motorhome and he advised her there was none. Similarly, she says she asked Ms. Carter “probably twice”, if there was mould and was told no. She testified that she asked Mr. Conners if there were any water leaks and he told her there were none. However, she also said that Mr. Conners showed her water stains in the area of the top bunk.

She testified that, at that time, she “saw a little bit of water stains”.

In answer to my question about where she saw water stains, she replied that they were: …in front of the bunk, around the little edges of the motorhome, on the inside, small areas, I don’t know, three or four or five areas – I touched it, they were dry. [ 28 ] She further described that she saw water stains: On both sides I guess, right side and left side along the edges, probably along the front of the door, not so much in the kitchen, the bathroom appeared ok, maybe a little by the shower, back bedroom some more little stains on the outside – on the ceiling – over the window. [ 29 ] Mr.

Conners could not recall Ms. McMillan asking specific questions about the motorhome. He denied that on August 5, 2018, she asked him if the motorhome had mould. He denied that he was aware of any mould, water leaks or wetness or dampness in the motorhome. In cross-examination his evidence is that Ms. McMillan asked him if he thought the motorhome was in good condition and he told her he thought it was. [ 30 ] Ms. McMillan, during cross examination, agreed that she and Mr. Conners went through the interior, she looked through all the cupboards and that everything “looked good”.

She testified that the motorhome “was clean but there was [sic] water stains there”. [ 31 ] Mr. Conners and Ms. McMillan negotiated the terms of sale. The handwritten agreement for sale dated August 5, 2018, included terms that the motorhome was being sold to Ms. McMillan for $8,000 and "as is". It was signed by Mr. Conners and Ms. McMillan. After 2 deposits totalling $2,000 were paid on August 5 and 7, 2018, the balance of $6,000 was to be paid in full by Ms. McMillan by February 5, 2019. [ 32 ] About one week later, Mr. Conners delivered the motorhome to Ms. McMillan at her residence. Both Ms.

McMillan and her husband walked through the motorhome and Mr. Conners showed her husband how everything worked. They looked under the bed where there was storage, at the bathroom and the vents in the roof. Mr. Conners estimated that Ms. McMillan's husband was inside the motorhome for somewhere between forty-five minutes to one and one half hours. [ 33 ] Ms. McMillan’s evidence is that the motorhome did not smell good on the day it was delivered. She also testified that she saw “black powder residue” on the kitchen window and the back bedroom and so she cleaned the entire motorhome. According to Ms.

McMillan, the motorhome “still didn’t smell (very) good” the next day and she called Mr. Conners and told him that based on “the way it smells” she couldn’t use the motorhome. [ 34 ] She testified that when she viewed the motorhome the week before, she didn’t notice any odour because all the windows and doors were open and the motorhome smelled “perfumey” presumably due to Febreze.

[ 35 ] Ms. McMillan testified that she kept cleaning the motorhome, saw the wallpaper in the rear bedroom was peeling and, although it was dry on the outside, the “walls were wet inside”. According to Ms. McMillan, as she peeled back more wallpaper, all the walls were wet underneath. About one week after the motorhome had been delivered, she had “probably pulled off the whole left side of the wall and saw mould”. She says that she called Mr. Conners that day and told him about this. Ms. McMillan says that Mr. Conner reminded her that she had bought the unit “as is”. [ 36 ] In contrast, Mr.

Conners’ evidence is that it was not until sometime in November 2018, approximately four months after the motorhome had been delivered, that he received a telephone call from Ms. McMillan telling him that she found mould and asked him what she should do. He thinks Ms. McMillan said she found mould in the bedroom after they took panelling off the walls. [ 37 ] He advised the Court that he told her to remediate it to the best of her ability but that he couldn't help her otherwise. She asked him if he knew the mould was there and he told her that he did not. He also told the Court that he understood that Ms.

McMillan wanted to return the motorhome, that she and her husband had taken the motorhome apart, specifically the wood panelling on the walls, and found mould. He suggested that she clean it up and paint it but that he was not a mould expert. He reminded her that this was an “as is” sale and reminded her that they had embarked on a full discussion of what that meant on August 5, 2018.

During the phone conversation, he reiterated that he sold it in the condition it was in at the time; he did not represent anything more; and that what she saw was what she got. [ 38 ] Afterwards, he thinks he had a message on his phone from her but didn’t respond and, according to him, there was no more communication until the balance of the sale price was due on February 5, 2019. When he called asking for payment, she refused and asked him to take the motorhome back. [ 39 ] When asked by the Court why she had placed tarps over the motorhome, Ms.

McMillan testified that she put them up at the end of September or the beginning of October for the winter months, “in case there were leaks”. According to her evidence, it was a very hot summer that year as was September but in November and December it started to rain and snow. [ 40 ] I asked her if there were any leaks at that time (in November and December): Yes – some – around the windows – I believe it was in the front on the right hand side – over the bunk. The roof began to crack in mid September or October…it was disintegrating. [ 41 ] After Mr. Conners served his Notice of Claim upon Ms.

McMillan, she took photographs of the interior of the motorhome. During the trial, he reviewed the photographs taken by Ms. McMillan that show the panelling and wallpaper had been removed from the walls and discolouration in the exposed portions of the walls. His evidence is that he did not see anything like that at the time he sold her the motorhome and described that it was in 1994 condition and was, in his words, “fading”. [ 42 ] His Notice of Claim was served on March 19, 2019 and, based on Ms.

McMillan’s evidence, I find that the photographs were taken after service of the Notice of Claim and several months after the sale and not remotely representative of the condition of the motorhome as it appeared on August 5, 2018. Mr. Norman Hoessmann – Mould Expert: [ 43 ] Ms. McMillan called evidence from Norman Hoessmann, an expert with training and experience in the remediation of mould in homes and motorhomes.

He was candid that he has only inspected about six or seven motorhomes but, in cross-examination, described that the growth of mould in surfaces is from the same cause whether it be a house or motorhome - moisture. [ 44 ] He has been in the building trades all his life and moved into house inspections followed by mould inspection and remediation. He has taken courses in mould remediation. [ 45 ] On April 9, 2019, he inspected the motorhome at Ms. McMillan's residence. It was outside the home and covered by a tarp.

He testified that upon entering the motorhome, he noted a very musty and mouldy odour which would be difficult to mask with an air freshener, like Febreze. He also indicated that the wall cavities had been opened up which would have intensified the odour. [ 46 ] He testified that, based on his observations, the structures behind the walls of the motorhome were mouldy, were black and rot was present in some areas.

He testified that moisture on the inside of the walls was still present with visible water under the mattress in the sleeping bunk above the front driver and passenger seats, as well as alongside exposed walls located across from the entrance door. [ 47 ] His report to Ms. McMillan stated: Motorhome has visible mould throughout most areas. Headliner shows previous leaks at roof, walls have rot in areas…forward bunk on bottom is soaked with water. Wall areas are still wet at sides. The rotted wood has been in unit for quite a while [sic]. Recommend a total remediation of unit.

Recommend not using motorhome until remediated. [ 48 ] He couldn't recall how extensive the wet wall was but stated it was not covering the whole wall. He testified that rot is usually in the corners, could not recall which corner the rot was in but recalled seeing rot in different areas of the exposed surfaces. [ 49 ] In response to questions in direct examination, he testified that it appeared that Ms. McMillan had torn the walls apart to see what was behind them. [ 50 ] He took two air samples and two surface samples which were sent to a lab.

A sample from the rear bedroom wall was misplaced by the lab and there is no report regarding that area. The interior air sample showed elevated spores which were a little over three times the control sample taken outside the motorhome. The sample from the wall of the forward bunk (over the driver and passenger compartment) indicated mould was present but without a particular measurement.

[ 51 ] According to Mr. Hoessmann, rot would take longer than a few months to develop and, based on his experience, at least a year. [ 52 ] He testified that as soon as he walked into the motorhome, he was able to see that the headliner (the area in the sleeping cab over the driver and passenger seats) had water stains. In fact, those water stains are visible in the photographs taken by Ms.

Carter prior to the sale of the motorhome. [ 53 ] His evidence is that the first sign that something would be going on behind the wall is staining. [ 54 ] He testified that if someone wanted an inspection, he could test for mould without having to remove walls. His inspection would include air and surface sampling for mould spores and moisture checking. He works in Courtenay as well as Victoria and can be available at any time. [ 55 ] From this evidence, I accept that Mr. Hoessmann was available to inspect the motorhome in August 2018.

The Legal Framework: [ 56 ] The starting point is that in a civil action, the person asserting a claim must establish the claim on a balance of probabilities. This applies to the claimant and a defendant who is a claimant by way of counterclaim. Facts required to prove a claim or a defence, must be established by the evidence at trial. The trial judge will consider all the evidence and determine whether it is more likely than not that the event, fact or statement occurred: Clayton v. North Shore Driving School , [2017] B.C.M.

No. 1295, at para. 77. [ 57 ] This case raises a number of issues relating to a buyer’s responsibilities before completing a purchase agreement and a seller’s obligations when selling goods. That path takes me to a consideration of the common-law and the legislation that is in place to protect consumers. Sale of Goods Act , RSBC 1996,

Chapter 410 : [ 58 ] This legislation provides a framework designed to protect a purchaser of goods and sets out sellers’ obligations. I first consider whether Ms. McMillan can rely on implied conditions under the Sale of Goods Act (the Act ). Under that legislation, the definition of “goods” includes all personal chattels. A motorhome, like any vehicle, is within the broad description of goods which includes “all chattels personal, other than things in action and money…”.

Accordingly, the Act applies to the sale and purchase of a vehicle and provides that certain implied conditions of quality or fitness will form part of the contract. However, the extent of those conditions depends upon whether a contract of sale is between two private consumers or a sale between a consumer and a business, such as a car dealership. Implied conditions as to quality or fitness 18. Subject to this and any other Act , there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale or lease, except as follows: (

a) if the buyer or lessee, expressly or by implication, makes known to the seller or lessor the particular purpose for which the goods are required, so as to show that the buyer or lessee relies on the seller's or lessor's skill or judgment, and the goods are of a description that it is in the course of the seller's or lessor's business to supply, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are reasonably fit for that purpose ; except that in the case of a contract for the sale or lease of a specified

article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose; (

b) if goods are bought by description from a seller or lessor who deals in goods of that description, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are of merchantable quality; but if the buyer or lessee has examined the goods there is no implied condition as regards defects that the examination ought to have revealed; (

c) there is an implied condition that the goods will be durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of the sale or lease; (

d) an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade; (

e) an express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent with it. [Emphasis Added] [ 59 ] This was a private sale by Mr. Conners and the motorhome was not something that was in his usual course of business to supply or sell. Therefore,

section 18 (

a) does not apply and there is no implied warranty or condition that the motorhome was reasonably fit for a particular purpose. [ 60 ] Sections (b), (

d) and (

e) are also not applicable to the facts in this case. Those sections relate to a purchase of goods based on inspection of samples from someone in the business of selling those goods (s. 18(b)), implied conditions based on trade practices (s. 18(d)), and contracts containing express warranties or conditions related to quality or fitness that are inconsistent with the Act ( s. 18 (e)). [ 61 ]

Section 18(

c) is applicable to a contract of sale between two private individuals and, subject to s. 20 (2) of the Act , there is an implied condition that the goods (a vehicle for example) will be “durable for a reasonable period of time”, considered in the context of the normal use of the goods and all the surrounding circumstances of the sale. [ 62 ] Section 20(2) provides that parties to a contract related to goods cannot exclude the application of the implied warranty or conditions under s. 18 except when the goods are used. [ 63 ] The application of these provisions were summarized succinctly in Clayton ( supra ) at paragraph 78:

[78] In British Columbia the Sale of Goods Act contains provisions which imply certain conditions and warranties into contracts forthe sale of goods. In particular, s. 18 of the Sale of Goods Act implies certain conditions regarding fitness for a specified purpose,merchantable quality, and durability for a reasonable period. The import and applicability of the provisions of the Sale of Goods Act willbe discussed in more detail in my analysis.

Section 20 of the Sale of Goods Act in essence prohibits parties to a contract regarding theretail sale of goods from excluding the application of the implied warranties under s. 18. However, s. 20 does not apply to the sale ofused goods. In other words, the seller of used goods can exclude the implied conditions contained in s. 18 by way of a term in thecontract of sale: see Sugiyama v. Pilsen, 2006 BCPC 265. If the seller intends to contract out of the implied conditions found in s. 18, theseller must do so in clear and unambiguous language: see, Trethewey v. Girard, (BC SC), [1983] B.C.J.

No. 1918;Queen Charlotte Lodge Ltd. v. Hiway Refrigeration Ltd., [1998] B.C.J. No. 13; and Sygiyama v. Pilsen. [64]

Section 69(

a) of the Act allows a seller and buyer to exclude implied terms or conditions, including as to quality, fitness anddurability, by agreement: Exclusion of implied terms and conditions 69. Any right, duty or liability that would arise under a contract of sale by implication of law may be negatived or varied (

a) by express agreement, (

b) by the course of dealing between the parties, or (

c) by usage, if the usage is such as to bind both parties to the contract. [65] A seller and a buyer of used goods can exclude implied conditions in their contract, providing the language is clear andunambiguous. [66] The contract of sale between Mr. Conners and Ms. McMillan was subject a condition that the motorhome was sold “as is”, a termcommonly utilized in private sales of used goods. [67] The meaning and understanding of the term “as is” has been considered in other decisions. In Floorco Flooring Inc. v. Blackwell,[2014] B.C.J.

No. 2632, a case involving the sale of a truck at auction, the court said this: [67] The terms "as is, where is" and caveat emptor have been discussed in various court decisions in a variety of jurisdictions acrossCanada. With regard to the terms "as is, where is" the Newfoundland District Court in Allen v. Allen 1976 Carswell Nfld. 151 had thefollowing comments at paragraph 70: [70] However, I do not feel that the finding that there was a bill of sale containing the expression "as is, where is," is a critical finding offact.

That term is in common usage in such private transactions though its legal significance is somewhat dubious. The expressionhowever is not without some significance in that it surely indicates an understanding between the seller and the buyer that the seller ismaking no representations and giving no warranties or guarantees and that the buyer takes the chattel with all its defects-both latent andpatent.

I rather suspect that it is the layman's way of expressing the maxim caveat emptor. [68] I agree with those comments and conclude that, in private sales, the term “as is” with or without the term “where is”, is meant toconvey that the buyer is purchasing goods without any attached conditions respecting the quality, durability or fitness of those goods.The “as is” term is also meant to make it clear that the buyer is assuming the risk if any problems appear after the sale. The plainmeaning of those words could not be construed otherwise.

The use of the term “as is” is so common that if a member of the public wereasked what a sale with the condition ‘as is” means, I have no doubt the answer would be that the buyer is buying goods in the conditionthey are in at the time of sale. [69] This places an obligation on a buyer to perform an adequate or reasonable inspection of the goods. If a specific quality, orcondition, of the goods is important to a buyer, and a buyer fails to conduct an inspection, they cannot later complain about problems thatarise after the goods are delivered.

For example, if a buyer purchases a used vehicle and does not have the expertise or experience toassess the condition of the vehicle, a reasonable buyer would have it inspected by someone who does. A buyer who fails to do so will besubject to the risk that they did not get what they thought they were getting and made a bad bargain. [70] This situation is one of caveat emptor – buyer beware. [71] The doctrine of caveat emptor was discussed in Floorco: [68] The term caveat emptor has been discussed by a number of courts in various jurisdictions across Canada.

One of the leadingcases on the point is the decision of Rushak v. Henneken [1986] B.C.J. No. 3072 (B.C.S.C.) affirmed (BC CA), [1991]59 B.C.L.R. (2d) 250 (B.C.C.A.) which has been referred to and followed in several subsequent decisions. [69] In Rushak the court dealt with the term caveat emptor at paragraph 167 when it said (citations excluded): 167... At common-law in the absence of a fiduciary or analogous relationship, there is not as between negotiating parties any duty ofdisclosure.

Almost always the seller of a used car those of its defects, or at least some of them, but is not under any duty to disclose themto a potential buyer, unless there has been on his part active concealment, that is, he is done something to the car with intent to preventdefect from being discovered. The common- law rule is caveat emptor. The underlying philosophy of the law of contract is that 'a partyis expected to look out for himself, and make his own bargains.

If he has done foolishly, this is his own fault and he is left to his owndevices' Fridman, The Law of Contract page 113. [72] I conclude, upon considering the plain meaning of the term “as is”, that the intention of the parties in the contract of sale for the1984 motorhome was that the sale was not subject to any conditions or warranties. The doctrine of caveat emptor applies.

[73] Ms. McMillan testified that when she first inspected the motorhome she did not see any mould. However, she also testified thatthe day the motorhome was delivered, she saw black powder residue on the window in the kitchen and bedroom. There is no evidencethat this was mould, if it existed. Even if it was mould, it would have been present when she inspected the motorhome one week earlier.As Mr. Hoessmann testified, mould takes a lengthy time to develop. [74] The photographs taken by Ms. Carter show a used motorhome that appears to be in clean and good condition.

There is visiblestaining evident in the headliner which forms the bed over the front of the cab and it would have been visible to Ms. McMillan on August5, 2018. Indeed, during her own evidence she concedes that she saw evidence of water stains there as well as in other areas of themotorhome. [75] She testified that she was very concerned about mould on August 5, 2018, because her son is allergic to it. Mr. Hoessmann wasavailable to perform an inspection and does so in Courtenay and Campbell River.

When I asked her why she did not hire someone toinspect the motorhome if mould was of such a concern, her response was that she relied on “their” promise, referring to Mr. Conners andMs. Carter. [76] If she was specifically concerned about mould, Ms. McMillan had an obligation to conduct an appropriate inspection. Mr.Hoessmann testified that mould is caused by moisture. The existence of the water stains ought to have alerted her that moisture waspresent at some point in time and to have the unit inspected. It would have been simple to arrange, but she failed to do so. Themotorhome was sold to Ms.

McMillan on an “as is” basis and the doctrine of caveat emptor applies. Ms McMillan has no legal remedy.Rescission of the contract would not have been available in any event because she had removed many of the interior walls and themotorhome was not in the same condition it was in at the time of purchase. It would have been impossible to place the parties in thesame position they were in prior to the sale. [77] Even if I am incorrect, and Ms. McMillan is able to rely on the implied condition of durability pursuant to s. 18 (

c) of the Act, Iam of the view that the used 1994 Ford Motorhome was durable after taking into account the surrounding circumstances of the sale. Thescope and extent of an implied condition of fitness or durability will, logically, depend upon whether the vehicle is new or used. A usedvehicle is reasonably fit for the purpose if it is in a roadworthy condition, and can be driven along the road in safety, even though not asperfect as a new vehicle: Bartlett v. Sydney Marcus Ltd., [1965] 2 All E.R. 753, p. 755. [78] How strictly that approach is applied depends upon all the circumstances. When it was sold to Ms.

McMillan, the motorhomewas twenty four years old with mileage of over 100,000 miles. The concept of durability must reflect the age and nature of the goods, inthis case a used motorhome. Ms. McMillan knew the age of the motorhome and cannot have the same expectations had she purchased amuch newer motorhome. In this case, the motorhome was capable of being driven and was roadworthy. It appeared to be in cleancondition as shown in the photographs taken just before the sale. As indicated by Mr. Hoessmann, the mould in the motorhome can beremediated.

For all these reasons, I conclude that the motorhome meets the condition of durability which, in this case, is limited by theage of the unit. Is There a Remedy for Fraudulent Misrepresentation? [79] That is not the end of the inquiry. Notwithstanding that the contract contained a term that the motorhome was sold “as is”, andthat, even if applicable, Ms. McMillan cannot rely on the implied condition of durability, Ms. McMillan may be entitled to damages ifshe can establish, on a balance of probabilities, fraudulent misrepresentation. [80] A representation means a statement of fact.

A fraudulent representation is a false statement which, when made, the representordid not honestly believe to be true. Cheshire, Fifoot & Furmston’s Law of Contract, Fourteenth edition, Butterworths LexisNexis, at p.294 & 301. [81] In other words, if the evidence established that Mr. Conners knew of the existence of the mould in the motorhome, took steps toconceal it from Ms. McMillan but told her there was no mould present, he would be liable for damages caused by his misrepresentation. [82] This analysis requires as assessment of what Mr. Conners actually knew on the date of the sale to Ms.

McMillan. [83] Furthermore, the circumstances of this case require me to consider Mr. Conners’ legal duty to disclose defects to Ms. McMillan,such as the presence of mould. [84] A similar issue was before the Honourable Judge Phillips in Issler v. Wall, 2002 BCPC 494 . Ms. Issler purchased amobile home from the defendants. It was only after she moved into the mobile home that she began to find mould and condensation onthe windows as well as water stains on the walls in one of the additions and on the hallway ceiling. [85] Ms.

Issler had walked through the mobile home and had not seen or noticed any staining, adding that she wasn’t looking at thewalls but what would fit into the home. A building inspector inspected the property and, in relation to Ms. Issler’s photographs ofexposed blackened wood taken after the purchase, testified that he was not aware of mould and could not expose the inside of wallsduring the course of a house inspection. [86] The defendants testified that they had repaired some leaks in the mobile home, but once repaired had no further leakage problemsand the staining was cosmetic only.

They had completed a property disclosure statement indicating that they were not aware of anydamage due to water, roof leakage or unrepaired damage. [87] I can do no better than to summarize Judge Phillips’ succinct

summary of the law involving the requirement of a vendor todisclose certain facts to a purchaser: [15] The general law relating to the disclosure of facts by the vendor is still that of caveat emptor - let the purchaser beware. Defectsare regarded as being of two kinds - latent or patent. Patent defects are those that can be discovered by inspection on ordinary vigilanceon the part of the purchaser and with respect to them the ordinary rule is caveat emptor. Latent defects are those which would not be

revealed by any inquiry which a purchaser is in a position to make before entering the contract. Where a vendor knows of the latent defect but fails to disclose that latent defect to a perspective purchaser, the vendor may be liable for fraudulent misrepresentation. On the other hand, there is no duty on the part of a vendor to disclose patent defects to the purchasers. It is up to the purchaser to ascertain patent defects by conducting reasonable inspections of the premises and making reasonable inquiries into its qualities. The vendor must not act so as to mislead the purchaser or allay her suspicions.

A purchaser will be held to a fairly high standard of inspection. [See Anderson v. Kibzey

(1996) B.C.J. No. 3008 B.C.S.C., Mr. Justice Edwards @ para. 10; and Khaira v. Nelson and Lidder

(2002) B.C.S.C. 1045, Mr. Justice Chamberlist @! para. 31.] [Emphasis added] [ 88 ] Issler involved the sale of a mobile home and because it is a purchase akin to a land purchase, did not involve consideration of the Act . However, the discussion and analysis of a seller’s obligations are applicable to the circumstances of this case and Mr. Conners’ obligations to Ms. McMillan. Analysis and Discussion: [ 89 ] The law is clear. A seller of goods has an obligation to disclose any defects of which she is aware, unless those defects are obvious.

In other words, if a seller is aware of a hidden defect, the seller has an obligation to tell the buyer about that defect. This is to protect a buyer who, despite taking reasonable care in their inspection of the goods, would not be expected to see the defect. The corollary to the seller’s obligation is that a buyer has an obligation to make a reasonable inspection of the goods they are purchasing and cannot complain later when a defect that was obvious becomes apparent after the sale is completed.

In such circumstances, the well- known principle of “ caveat emptor ” (buyer beware) applies. [ 90 ] If this were not so, private contracts of purchase and sale, like this one, could be subject to unilateral termination of contracts and extensive litigation. The law favours an approach that promotes certainty of contracts. It also places responsibilities on both the seller and buyer. [ 91 ] However, a seller cannot rely on the doctrine of caveat emptor if he is found to have fraudulently misrepresented a fact or if he is aware of a latent (hidden) defect and does not disclose it to the buyer. [ 92 ] Ms.

McMillan has the burden of proof to establish that Mr. Conners had knowledge that there was mould in the motorhome. The evidence I accept is that the mould did not become apparent until Ms. McMillan started removing wall paper and wood panelling which then revealed an extensive problem. Although it was suggested by Ms. McMillan that Mr. Conners placed, and covered up, wallpaper over the parts of the wall in the bedroom, there is no evidence to support that assertion. [ 93 ] Mr. Hoessmann detected the odour of mildew but explained that with all the walls opened up, the odour would be intensified. [ 94 ] When Ms.

McMillan saw the motorhome on August 5, 2018, the walls were intact. All the photographs showing mould were taken several months later, after the outer walls had been removed. Has Ms. McMillan Established Failure to Disclose a Latent Defect or Fraudulent Misrepresentation? [ 95 ] Mr. Conners owned the motorhome for a short period of time and had never used it personally. It was purchased solely for an employee to live in for a short time. [ 96 ] I have reviewed the photographs of the motorhome that were posted on Facebook at the time of sale to Ms. McMillan.

They show that the unit was in what I would describe as good condition. It was clean and there is no sign of black mould on the walls or windows. [ 97 ] The evidence of Ms. McMillan, Mr. Conners and Ms. Carter is consistent with that finding. Ms. McMillan agreed that she had looked through the motorhome extensively –inside and outside. She checked the roof and inside cupboards. Her inspection of the motorhome last about one and a half hours. She did not see any signs of mould. [ 98 ] The photographs clearly show staining, likely from water at some point, in the bunk area over the driver and passenger compartment.

Ms. McMillan also testified that she saw other water stains in the interior of the unit. [ 99 ] Ms. Carter testified that she cleaned the unit at the time of the original purchase in July and again before selling it to Ms. McMillan and did not see any signs of mould. Mr. Conners also testified that he did not see mould when he originally purchased the motorhome. Most importantly, Mr. Conners testified that he was not aware of the presence of mould when he sold it to Ms. McMillan. [ 100 ] Ms.

McMillan’s photographs show a black substance which appears to be mould and which is visible because the walls have been removed. This is consistent with Mr. Hoessmann’s evidence that, when he looked at the motorhome, the walls were torn apart and the odour of mould was, as a result, much stronger. [ 101 ] The presence of mould behind the walls is a latent defect. It was not visible to either Mr. Conners or Ms. McMillan. If Mr. Conners had been aware of the mould, he would have been obligated to disclose this to Ms. McMillan. After a consideration of all the evidence, I accept Mr.

Conners’ evidence that he did not know that mould was present in the motorhome. I also find, in keeping with that conclusion, that he did not take steps to conceal mould from Ms. McMillan. The use of Febreze is not something so unusual that it raises a red flag. The fact the windows were open is consistent with the day being very hot as described by all the witnesses. There is no evidence to suggest that the wall paper in the bedroom was placed there by Mr. Conners, or Ms. Carter, recently prior to the sale to Ms. McMillan.

The photographs show a bedroom that appears to have some staining in the corners and the wallpaper looks somewhat faded which is expected given the age of the motorhome. [ 102 ] Ms. McMillan testified that she asked Mr. Conners and Ms. Carter numerous times if there was any mould. I find that unlikely.

Mr. Conners and Ms. Carter were both straightforward witnesses. Mr. Conners agreed he told Ms. McMillan that the motorhome was in good condition. That is consistent with the photographs taken before the walls were torn apart by Ms. McMillan. [ 103 ] Ms. McMillan has not established that it is more likely than not that Mr. Conners knew that mould was present behind the walls of the motorhome and that he took steps to conceal that from her. Moreover, based on all the evidence, I am unable to conclude that Mr. Conners told Ms. McMillan there was no mould present.

He told her that it was in good condition and that is consistent with the evidence of Ms. McMillan when she first inspected the motorhome and the photographs taken days before the sale. Conclusion: [ 104 ] This entire event has been unfortunate for both parties. Mr. Conners attempted to be fair by giving Ms. McMillan several months to pay the remaining balance of the purchase price and which remains outstanding. [ 105 ] Ms. McMillan bought a used twenty four year old motorhome without taking steps to have it inspected for problems with water leakage or mould.

It would have been easy to do and relatively inexpensive - the cost of Mr. Hoessmann’s assessment and report was $650. The doctrine of caveat emptor applies. [ 106 ] The contract of sale was on an “as is” basis and removed the implied condition of durability as found in s. 18 (

c) of the Act . Alternatively, I would have found that the condition of the used motorhome met this condition. [ 107 ] I have concluded that the presence of mould behind the walls was a latent, or hidden, defect and that Mr. Conners was not aware of its presence. Ms. McMillan has not established that there was fraudulent misrepresentation, or any misrepresentation, by Mr. Conners. [ 108 ] Ms. McMillan is responsible for payment of the balance of the sale price of the motorhome in the amount of $6,000. In addition, Mr. Conners will have his costs of filing and service of the Notice of Claim which total $216.

Total judgment for Mr. Conners is $6,216. Mr. Conners will have post judgment interest on the $6,000 in accordance with the Court Order Interest Act. [ 109 ] Ms. McMillan’s counterclaim is dismissed. ____________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia