Brar v. Sunrise Toyota Date:, 2013 BCPC 317

Citation: Brar v. Sunrise Toyota Date: 20131127 2013 BCPC 0317 File No: C15241 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KARMJIT BRAR CLAIMANT AND: SUNRISE SERVICE LTD., doing business as SUNRISE TOYOTA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Claimant: R. Mpania Counsel for the Defendant: W. R. Neufeld Place of Hearing: Abbotsford , B.C. Date of Hearing: October 9, 23, 2013 Date of Judgment: November 27, 2013 Introduction

[ 1 ] The Claimant Kamjit Brar has brought this claim against the Defendant, Sunrise Service Abbotsford Ltd., doing business as Sunrise Toyota. The Claim arises out of the sale of a used 2004 Toyota Sienna minivan from the Defendant to the Claimant. The Claimant alleges that the Defendant sold a vehicle with a significant number of defects and that by doing so the Defendant breached its statutory duty under

Section 18 of the Sale of Goods Act . The Claimant also alleges that vehicle was unfit for the purpose it was sold (as a personal family vehicle). Finally, he alleges that the Defendant was negligent in its failure to disclose to the Claimant that the vehicle had been extensively damaged prior to sale. [ 2 ] The Defendant denies that it was in breach of any warranty to the Claimant, statutory or otherwise. It also denies any negligence, and states that it was diligent in its inspection of the vehicle.

It states that if the vehicle was ever in a prior accident, the Defendant was unaware of this, in spite of its reasonable efforts to investigate this. [ 3 ] This claim was originally commenced in the Supreme Court of British Columbia. It was later transferred to the Small Claims Court in New Westminster and the file was transferred to the Abbotsford registry earlier this year. [ 4 ] At the trial of this matter, five witnesses testified: three on behalf of the Claimant and two on behalf of the Defendant. The Claimant gave evidence himself.

Also testifying on the Claimant’s behalf were Shayne Khan (a mechanic and friend of the Claimant) and Mandeep Bains (the salesman who sold the vehicle to the Claimant, and also the Claimant’s nephew.) On behalf of the Defendant, two witnesses testified: Mark Smith (the Defendant’s General Manager) and Brent Wiebe (a mechanic formerly employed by the Defendant.) [ 5 ] Following is a

summary of the evidence heard at trial, the applicable law, and the reasons for decision in this matter.

Summary of Evidence [ 6 ] The Claimant is employed as a gravel truck driver and has worked in that profession for twenty years. He is married and has three children, who ranged in age from 18 months to 11 years when the vehicle that is the subject of this litigation was purchased. In 2007 he was looking for a reliable vehicle that would provide safe, comfortable and reliable transportation for his family. At the time, his nephew, Mandeep Bains, was a salesman for the Defendant. The Claimant asked his nephew to look for a suitable vehicle for him and his family. [ 7 ] At the time, Mr.

Bains had only been selling cars for a brief period of time, and had just begun working for the Defendant. Mr Bains recalls that the Claimant told him that he was looking for a fully-loaded minivan. Mr. Bains became aware of a 2004 Toyota Sunrise minivan that the Defendant had recently purchased. The van appeared to be similar to what the Claimant was looking for. Mr. Bains drove the vehicle to the Claimant’s home for the Claimant to have a look at. [ 8 ] Mr. Bains testified that it was his understanding that the vehicle had come from Alberta.

The Claimant testified that he took the van for a road test and that it seemed to run good. He put down a deposit of $5000 on the vehicle and decided to buy the vehicle on August 11, 2007. He bought the vehicle for $42,471.40, which included a warranty. At the time of sale, the vehicle had 68,232 kilometres on its odometer.

In the written Motor Vehicle Purchase Agreement, the Defendant declared that the vehicle had never sustained damage requiring repairs costing more than $2000 per incident. [ 9 ] The Claimant was getting the vehicle ready for his wife to use and decided to put a liner on the floor of the vehicle. To do this he had to remove the seats, and when he did so, he discovered that there was some rust under the seats. The hinges were rusty and when he removed the carpet on the floor of the vehicle, he discovered mud and sand underneath.

He reported this to the Defendant and the Defendant cleaned the vehicle. [ 10 ] The Claimant’s wife began driving the vehicle. In early November, the Claimant testified that his wife narrowly avoided an accident after the brakes of the vehicle stopped working. He testified that she drove the vehicle through an intersection on a red light, and ran the vehicle into a curb to stop it. The Claimant had the vehicle towed to his home. The Claimant’s wife did not testify at trial about this incident. [ 11 ] On another occasion, the vehicle developed a rattling noise.

It was discovered that the vehicle’s muffler exhaust pipe was falling apart. This was reported to the Defendant. [ 12 ] On December 13, 2007, the Defendant wrote to the Claimant. (The letter is marked “without prejudice” but the Defendant has waived any privilege by introducing the document as part of its case.) In the letter, which is signed by Mr. Smith, the Defendant relies on its own “Car-Proof” vehicle search to support its position that the vehicle has never been in any accident. Mr.

Smith testified that the Claimant and Defendant had agreed to split the cost of repairs above and beyond the amount covered by warranty, but that the Claimant later reneged on this agreement. [ 13 ] The Claimant believed that he had been sold a “lemon” by the Defendant and he went to see the Defendant with his friend Shayne Khan. Mr. Khan is a reputable mechanic who is contracted to provide his services to the Delta Police Department. The two men met with Mark Smith, the Defendant’s general manager on February 2, 2008. According to the Claimant, Mr.

Smith agreed to replace the vehicle, but the Defendant has never done so. [ 14 ] At the meeting with Mr. Smith, the Claimant’s friend Mr. Khan expressed his opinion that it appeared to him that the vehicle had been in a previous collision. The Claimant had never been told that the vehicle was in any prior accident. Mr. Khan testified that he noticed irregularities in the paint and in the body seam welds. It appeared to him that these were not factory welds, and this suggested to him that the vehicle had been repaired in the past.

He testified that he expressed his concern about this in the meeting that he had with Mr. Smith. Mr. Khan testified that Mr. Smith asked if the Claimant would be satisfied if the Defendant provided a replacement van of the same type instead of refunding him his purchase money. Mr. Khan discussed this with the Claimant and the Claimant said that he would be satisfied with this arrangement. He asked the Defendant how much time it would take to honour this agreement. According to

Mr. Khan, Mr. Smith said “it might take a few weeks, it might take a month.” [ 15 ] According to the evidence of Mr. Smith, he testified that in the meeting held in February with Mr. Khan and the Claimant, Mr. Khan was very forceful and wanted the Defendant to buy the vehicle. Mr. Smith agreed that he would look for a comparable vehicle.

He testified that the Defendant was unable to find a comparable vehicle in the time it was allowed, and that it stopped looking after the Claimant commenced his litigation. [ 16 ] The Claimant continued to press his grievance with the Defendant, but he was told that he was “banned” from coming to the Defendant’s premises and that the Defendant would not honour the warranty which it had sold him. He was paid a refund of $143.73 for his warranty.

He had the brakes on his vehicle repaired by Canadian Tire at a cost of $1,786. [ 17 ] Mark Smith testified that the Defendant bought the van that is at the center of this litigation from a company in Burnaby, BC for $29,680. After payment of commission to its salesman, the Defendant made very little money from the sale of the vehicle to the Claimant.

A search of the vehicle was conducted with the Insurance Corporation of British Columbia (ICBC) and that search disclosed that there were no ICBC claims in respect of the vehicle, but that the vehicle had been imported from outside of BC on July 12, 2007 and the ICBC search would not disclose any prior damage if that damage was unreported, or if it was reported to another insurer. [ 18 ] A more comprehensive search of the vehicle was done with a company called Car-Proof.

The Car-Proof search checks the vehicles in all Canadian provinces to determine if the vehicle was ever registered in another province and if it was stolen, salvaged, rebuilt, abandoned, inspected, as well as some other activity. A Car-Proof search of this vehicle shows that it had been registered in Quebec at one time, but the report does not suggest that the vehicle had even been repaired.

A subsequent Car-Proof search did show repairs to the vehicle, but those repairs occurred in 2010 when the vehicle was in the Claimant’s possession. [ 19 ] Mark Wiebe is a licensed mechanic and was employed by the Defendant at all times relevant to this action, until 2009. On July 18, 2007, prior to the sale of this vehicle to the Claimant, Mr. Wiebe conducted a 127 item inspection of the vehicle, which included an inspection of the body of the vehicle. According to the evidence of Mr.

Wiebe, and according to the document recording his inspection made at the time, there was no visible damage or signs of any previous repairs to the vehicle. [ 20 ] By September of 2011, the odometer reading on the vehicle was 149,282 kilometres, which means that during the time that the four year period that the Claimant had owned the vehicle, it had been driven for over 81,000 kilometres (or an average of just over 20,000 kilometres a year).

As of August 14, 2013, the vehicle’s odometer read 196,000 kilometres, indicating that it had been driven about 128,000 kilometres in six years (an average of over 21,000 kilometres a year). Position of the Parties [ 21 ] Counsel for the Claimant argues that the Defendant has breached its contract of sale with the Claimant and specifically that it has breached the conditions set out under

section 18 of the Sale of Goods Act . Specifically, it is in breach of the condition that the vehicle sold must be reasonable fit for the purpose intended, which is as a family van. He also agues that the van was not of merchantable quality, nor was it durable, as required by the warranties set out under

section 18. [ 22 ] The Claimant’s counsel also argues that the Defendant committed a deceptive practice under the Business Practices and Consumer Protection Act, in that it knew or ought to have known that the vehicle had been in a previous accident, but that this was never disclosed to the Claimant prior to sale. He also argues that the Defendant is in breach of its agreement to replace the vehicle.

The Claimant’s counsel argues that the Claimant is entitled to damages for these breaches and is also entitled to punitive damages for emotional distress. [ 23 ] Counsel for the Defendant argues that the Claimant has not suffered any damages, especially when one considers that the Claimant purchased a used van, and was able to drive the van 128,000 kilometres in 6 years. He argues that the Claimant has only proven repair costs of $1,429.75 over those six years and this is not out of line for a used vehicle.

He takes issue with the Claimant’s basic position that the vehicle is a lemon, given the amount of usage that the Claimant’s family has gotten out of the van and the small amount that he has paid to maintain the vehicle. [ 24 ] Defendant’s counsel also argues that the Claimant has not provided any evidence to support the claim. He argues that there is no evidence that the van was ever in a previous accident, only the suspicion of his friend.

He points out that the Claimant has had years to obtain an expert opinion that the van was in a previous accident and has had control of the van throughout that time, but he has failed to produce such an opinion and asks that an adverse inference be drawn from this. He also notes that there is no evidence in support of the claim for emotional distress.

There are no medical, psychiatric or psychological reports supporting the assertion that the Claimant suffered any distress above and beyond that normally experienced by a person who is dissatisfied with a purchase. [ 25 ] Counsel for the Defendant states that his client never promised the Claimant that it would replace the Defendant’s vehicle, only that it would provide a replacement vehicle if one was found. One was never found and therefore the Defendant has lived up to its bargain. Applicable Law 1. Sale of Goods Act [ 26 ]

Section 18 of the British Columbia Sale of Goods Act sets out a number of conditions and warranties that form a part of the sale of goods in this province.

Section 18 reads in part as follows: 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. [ 27 ] The meaning of the various warranties and conditions under

section 18 of the Act must be considered within the context of the item sold. For example, used goods do not attract the same expectations as new goods when it comes to considering what is reasonable. For example, when it comes to used vehicles, the expectations of what is reasonable are not the same as in the case of new vehicles. I agree with the following statement made by the Honourable Judge Gulbransen of this court in Sugiyama v. Pilsen 2006 BCPC 265 , at paragraph 45 : Very much depends upon the particular circumstances of the case.

The dealer who sells a used car is not a guarantor of the car’s future performance. Anyone buying a used car knows that some problems will inevitably occur. The older a car is and the more kilometres it travels, the more likely it is that something will break down. [ 28 ] In that case, Judge Gulbransen noted that a number of factors must be taken into consideration when the question of what the purchase of a used vehicle can reasonably expect.

These include the age of the vehicle, the mileage at the time of purchase, how the vehicle was used by its previous owners, the price paid for the vehicle, the use of the vehicle made after purchase, and the reasons for any breakdown. 2. Business Practices and Consumer Protection Act [ 29 ]

Part II of the British Columbia Business Practices and Consumer Protection Act describes what are “deceptive acts or practices” in consumer transactions. These include any false representation made by a supplier or seller. Interestingly,

section 5 of the Act places a supplier who is accused of committing a deceptive act or practice in a reverse onus position. The supplier must prove that the deceptive act or practice was not committed or engaged in. It is an offence under

section 189 of the Act to commit a deceptive act or practice. 3. The Motor Dealer Act Regulations [ 30 ]

Section 23 of the Motor Dealer Act Regulations ( B.C. Reg. 447/78 ) requires every seller of motor vehicles to disclose whether or not, to the best of the seller’s knowledge, a vehicle that is being sold has sustained damages requiring repairs over $2000. In this case the Defendant’s contract of sale contained a provision purporting to make this disclosure. 4. Emotional Stress and Punitive Damages [ 31 ] Emotional stress and punitive damages are different concepts.

In the former case, damages are awarded when a defendant owes a duty of care to a claimant, the duty of care is breached, and the claimant suffers an emotional trauma as a result which manifests itself in a physical disorder or illness. This is often referred to as “nervous shock.” Damages for emotional distress can also be awarded in contract if an important part of the contract is to give pleasure, relaxation or peace of mind and the substance of the contract is not provided or if the contrary result occurs.

Punitive damages are intended to punish a wrongdoer for egregious conduct and provide additional deterrence. (

a) Emotional Stress [ 32 ] The law regarding when a court can compensate someone for emotional stress or nervous shock as a tort is summarized by the author Philip Osborne in “The Law of Torts”, 2000, Irwin Law Publishing, at page 75 as follows: “Nervous shock is defined as a severe emotional trauma that manifests itself in a physical disorder or in a recognized psychiatric illness such as clinical depression or post-traumatic stress disorder.

It does not include emotional upset, mental distress, grief, sorrow, anxiety, worry, or other transient and more minor psychiatric injury.” [ 33 ] This description of nervous shock does not cover what has occurred here. The Claimant has not presented any medical evidence supporting any physical or psychiatric illness arising as a consequence of the actions of the Defendant.

It would be rare, if ever, for a court to award damages in an amount requested by the Claimant based on a claimant’s self-reporting, and I do not find any evidence to support a claim for nervous shock. [ 34 ] The law also permits recovery of damages for emotional distress resulting from the breach of a contract in limited

circumstances. In Wharton v. Tom Harris Chevrolet Oldsmobile Cadillac Ltd. [2002] B.C.J. No. 233 (B.C.C.A.), the court set out theseprinciples concerning when a court can award damages for mental distress resulting from the breach of a contract: (

a) A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation,tension, or aggravation which the breach of contract may cause to the innocent party. (

b) The rule is not absolute. Where a major or important part of the contract is to give pleasure, relaxation orpeace of mind, damages will be awarded if the fruit of the contract is not provided or if the contrary result isinstead procured. (

c) In cases not falling within the "peace of mind" category, damages are recoverable for inconvenience anddiscomfort caused by the breach and the mental suffering directly related to that inconvenience anddiscomfort. However, the cause of the inconvenience or discomfort must be a sensory experience asopposed to mere disappointment that the contract has been broken.

If those effects are foreseeably sufferedduring a period when defects are repaired, they sound in damages even though the cost of repairs is notrecoverable as such. [35] Here again, I am not able to find, on the evidence presented that damages on this basis should be awarded for this cause ofaction under these circumstances. This head of damages contemplates something more that dissatisfaction over the purchase of a“lemon”. The Claimant’s wife did not testify, and I can not ascribe any greater support for this type of damages based on the Claimant’shearsay evidence of how his wife may have felt. (

b) Punitive Damages [36] Punitive damages do not compensate for a specific injury. They are designed to punish a party for egregious conduct. In Vorvisv. ICBC (SCC), [1989] 1 S.C.R. 1085, the Supreme Court of Canada held (at para. 27) that “punitive damages may onlybe awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensibleand malicious nature.” In Voss v. Crooks et. al. [2002] BCPC 0003, the Honourable Judge M. J. Brecknell of this court summarized thetests used in determining when punitive damages are appropriate. These include: (

a) whether the defendants' conduct was malicious or high-handed; (

b) the degree of the defendants' culpability; (

c) whether nominal damages would be an invitation to violate property rights and amount to a license fee, and as such, a substantialamount for punitive damages should be considered. [37] To award punitive damages in this case, I must be satisfied, firstly that the Defendant has committed some wrongful conductand that such conduct falls into one of the categories set out above. Application of the law to these facts [38] In the case at bar, I must first decide if the Defendant has breached any of its warranties under the Sale of Goods Act.

I mustdecide if the vehicle sold was reasonably fit for use as a family vehicle, whether it was of merchantable quality and was durable for areasonable period of time, having regard to its use. There are two difficulties in addressing this question. The first is a lack of evidence asto the specific defects in the vehicle and what caused them. The Claimant did not present any mechanical evidence as to the cause of anyproblems with the brakes, muffler or any other problem with the vehicle.

The Claimant has simply testified that the problems occurred.There is no evidence on which it can be determined whether the problems were pre-existing, or whether they were contributed in wholeor in part from the manner in which the vehicle was operated after purchase by the Claimant. [39] The second issue is whether or not the Claimant has proven that the problems with the vehicle interfered with his use of thevehicle. As stated by Judge Gulbransen in Sugiyama v. Pilsen, supra, it is not reasonable for the purchaser of a used vehicle to expect thatthe vehicle will be problem free.

The seller of a used vehicle does not guarantee that the vehicle will be problem-free and it is notreasonable to hold the seller of a used vehicle to such a high standard. In this case, where the Claimant has been able to drive the vehicle128,000 kilometres in 6 years and has only proven repair costs of $1,429.75 over those six years, it is difficult to understand how muchhis use of the vehicle has been interfered with. [40] The burden of proof in a civil case rests with the Claimant to prove her case on a balance of probabilities. As the Supreme Courtof Canada stated in F. H. V.

McDougall 2008 SCC 53 , [2008] 3 S.C.R. 41, at para. [49]: “[I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.” [41] In this case, the Claimant has failed to prove, on a balance of probabilities, either that the Defendant has breached any of thewarranties under

section 18 of the Sale of Goods Act, or that any such breaches have interfered with the Claimant’s use of the vehicle toany significant degree. The Claimant has testified that the brakes of the vehicle failed when his wife was driving it and that he paid tohave the brakes repaired. No evidence has been presented as to the cause of this or any other problem with the vehicle, as to whether theproblems were something that the Defendant had caused or should have been aware of. There has been a complete absence of evidenceon this point from the Claimant.

Conversely, the Defendant has proven that the vehicle underwent a thorough inspection by a qualifiedmechanic and that none of these problems were apparent prior to the sale of the vehicle. In spite of the problems, the Claimant was stillable to derive considerable use from the vehicle. On a consideration of all of the evidence, I find that the Claimant has failed to meet theburden of proof of showing that the Defendant has breached any of its statutory remedies under the Sale of Goods Act, or under its

contract of sale. [ 42 ] A second ground for this claim concerns the issue of whether or not the Defendant was in breach of its warranty that this vehicle had never been in a motor vehicle accident in which damage exceeded $2000. Clearly the evidence shows that the Defendant made such a representation. What is in issue is (1) whether or not the vehicle ever had sustained such damage, and (2) if so, whether the Defendant reasonably ought to have known that. [ 43 ] The Claimant has not proven that the vehicle had ever sustained such damage prior to his purchase of it.

He has raised a suspicion of this, based on the evidence of Mr. Khan. But the Claimant was unable to provide any expert’s report or opinion as to such damage. Although Mr. Khan is a mechanic, counsel agree that in giving his evidence as to what he observed, he was not giving opinion evidence or expert evidence. He was not tendered nor qualified as an expert witness. Although the Claimant has had the vehicle in his possession throughout the life of this claim, he has not obtained an expert’s report confirming Mr.

Khan’s suspicion, and no such evidence was presented at the trial of this matter. [ 44 ] If the Defendant had been aware that the vehicle had sustained damage at this level prior to the sale and failed to disclose this to the Claimant, I believe that this may constitute a “deceptive act or practice” within the meaning of the Business Practices and Consumer Protection Act .

Section 5 of that Act places a supplier who is accused of committing a deceptive act or practice in a reverse onus and requires that supplier must prove that the deceptive act or practice was not committed. In this case however, I do not find that this helps the Claimant. Firstly, it is arguable that this reverse onus only applies in the case of a prosecution under the Act, and not to a civil case such as this. But even if the reverse onus applies in civil cases, I find that the Defendant has discharged that onus.

It conducted a search of the vehicle and that search did not disclose any previous accidents of this level involving the vehicle. Subsequent searches have generated the same result. In addition, the Defendant had the vehicle inspected by a licensed mechanic, and in that inspection, no signs of a previous accident were found according to Mr. Wiebe, the mechanic.

The evidence does not show any basis on which the Defendant ought to have known that its representation about the lack of prior damage over $2000 was false. [ 45 ] The last basis on which this claim might achieve a measure of success arises out of the subsequent agreement which was reached between the Claimant and the Defendant in their meeting of February, 2008, when Mr. Khan was present. Mr. Khan testified that, on behalf of the Defendant, Mr. Smith agreed to provide the Claimant with a replacement van of the same type, and that it would do so within a month. Mr.

Smith testified that he agreed to do so only if a suitable vehicle could be found, but that he was unable to do so. The only written acknowledgement of this agreement is in a letter dated September 23, 2008, written by Mr. Smith to the Claimant’s former lawyer, in which the Mr. Smith writes: “Mr.

Brar then requested Sunrise Toyota’s assistance in locating a comparable replacement vehicle (meaning he would be trading in this vehicle) for him, which we have been unable to do (these Sienna configurations are rare packages.)” [ 46 ] A problem will often arise with oral agreements that are not recorded in writing shortly after they are made, because the parties often have different recollections of what was actually agreed upon.

This may sometimes indicate that one party is mistaken, or more often, it means that the agreement meant different things to each party and the parties were never really of the same mind as to what was being agreed upon. In this case, the Claimant understood that he would be receiving a replacement vehicle within a month, while the Defendant understood that he would provide a replacement vehicle only if one could be found. It is Mr.

Smith’s evidence that he looked for a replacement vehicle, but could not find one. [ 47 ] As stated earlier in these reasons, the burden of proof rests with the Claimant on a balance of probabilities in a civil case. Here the burden rests with the Claimant to prove what the agreement was and to show that the Defendant has breached that agreement. On the evidence presented, I am unable to conclude what agreement, if any, was reached between the Claimant and Defendant in February of 2008 regarding a replacement vehicle.

At best, the parties each left the meeting with a different understanding of what their agreement was, and therefore they never actually reached any agreement. I am therefore unable to rest liability on the Defendant on this basis. Order [ 48 ] For the foregoing reasons, I find that the Claimant has failed to prove his claim on a balance of probabilities, and the claim will therefore be dismissed. [ 49 ] Normally, the successful party is entitled to recover costs from the other party, in accordance with Rule 20 of the Small Claims Rules , unless a judge orders otherwise.

In this case, while I am unable to find precisely what agreement the Claimant and Defendant reached in February of 2008, the evidence of Mr. Smith does suggest that the Defendant was willing to make some concession. For example, if Mr. Smith had been able to find a comparable van in the time contemplated, it would haven taken the Claimant’s van off his hands and would have borne the cost of getting than van ready for its next owner.

Since the Defendant was willing to make some concession to the Claimant in this matter, it seems fair and reasonable that the Defendant can forego any claim for costs against the Claimant. [ 50 ] Accordingly, it is ordered that this Claim is dismissed and that no costs will be awarded against either party. Dated at the City of Abbotsford, in the Province of British Columbia this 27 th day of November, 2013. __________________________________________ (The Honourable Judge K. D. Skilnick)