Islander R.V. Sales & Rentals Ltd. v. Rice, 2013 NLCA 41

Date: 20130619 Docket: 11/81 Citation: Islander R.V. Sales & Rentals Ltd. v. Rice , 2013 NLCA 41 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ISLANDER R.V. SALES & RENTALS LTD. APPELLANT AND : ROBERT RICE and DONETTA MICHELLE RICE RESPONDENTS Coram: Green C.J.N.L., Welsh and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201001G4345 Appeal Heard: October 19, 2012 Judgment Rendered: June 19, 2013 Reasons for Judgment by Welsh J.A. Concurred in by Green C.J.N.L. and Harrington J.A. Counsel for the Appellant: Robert B. Andrews Q.C. and David Hearn Counsel for the Respondents: John Bruce

Welsh J.A.: [1] Mr. and Ms. Rice purchased a used motor home from Islander R.V. Sales and Rentals Ltd. Defects in the vehicle quicklybecame apparent and ultimately resulted in the Rices refusing to accept it. The focus of this appeal is whether the trial judge erred insetting aside the purchase agreement on the basis that the vehicle was not fit for the purpose for which it was bought. A related issue ishow, if at all, the right to reject defective goods is affected by the vendor’s attempts to remedy the defects. BACKGROUND [2] The Rices purchased the motor home on July 23, 2009.

The vehicle came from a lot in Grand Falls and was the third unit,intended to be used for camping, which the Rices had purchased from Islander. Initially, the Rices conducted a cursory inspection todetermine if it was the type of unit they wanted. They did not take a test drive prior to completing the purchase.

On the day of thepurchase, they undertook a second cursory inspection which the trial judge described as “more in the nature of an operationalorientation” (reasons for decision given orally, 2011 NLTD 125 , 2011 NLTD(G) 125, 314 Nfld. & P.E.I.R. 120, at paragraph17). [3] As it turned out, there were many deficiencies in the motor home requiring repair. The trial judge found that Islander admittedresponsibility for correcting the defects: [32] [Islander’s] witnesses confirmed that this purchase was not a case of someone buying a “fixer upper”.

They also agreed that thiswas not a sale on an “as is – where is” basis. The pre-delivery process indicated that [Islander] took responsibility for the condition ofthe vehicle. [4] Identification of the defects occurred over a short period of time. Upon completion of the purchase, within minutes of drivingthe motor home off Islander’s lot, the Rices noticed smoke coming from underneath the vehicle. They immediately parked andcontacted Islander. As it turned out, the smoke was caused by a problem with the brakes which Islander repaired without delay.

However, the trial judge commented on the effect this incident had on the Rices: [23] The brake and smoke incident appears to have seriously shaken the [Rices]. They were quite upset that the vehicle of which theyhad just taken possession should have behaved like this. This was confirmed by Paul Mercer, the sales representative and witness for[Islander], who said they seemed shaken. He also said they seemed concerned that “… they had gotten a lemon”. [5] After the brake problem had been remedied, the vehicle was returned to the Rices.

The trial judge explained: [24] The next series of problems started over that weekend. They received the vehicle after the brakes had been fixed on Friday, July24. That weekend, it rained, and they found a leak in the front bunk. On Monday, July 27 they brought the motor home back to[Islander]. [Islander’s] work order recorded their complaint. [Islander] said it was fixed, and the [Rices] took the motor home back. [25] The following weekend they went camping. It rained again. They found the leak hadn’t been fixed. In fact they reported thatthere were two other leaks, in the bathroom and in one of the windows.

Then they discovered the bunk was infested with bugs. Subsequently they found rot in the wood behind a couch which folds out into a bed. [26] In addition, they noticed a rattle in a window because a track was missing. Then there were several electrical problems,including the back-up lights and the failure of the power mirror to function.

They brought the vehicle back to [Islander] and were givena loaner. [Islander] provided this at no charge to them. [6] When the Rices returned the loaner intending to take possession of the motor home, they concluded, after an inspection, thatthe necessary repairs had not been completed. At that point the Rices refused to take possession of the vehicle.

As the trial judgeexplained, Islander did not accept this refusal or the consequent cancellation of the agreement for purchase: [3] … Within four weeks of the purchase, [the Rices] left the motor home on the lot, and asked for their money back. [Islander]refused, saying that, in essence, a deal was a deal, and that all of the problems were able to be remedied. The [Rices] said that [Islander]refused to perform some of the repairs to their satisfaction. So they sued for return of the purchase price. [7] Relying on

section 16 of the Sale of Goods Act, RSNL 1990, c. S-6, the judge concluded that the agreement for purchase ofthe motor home should be set aside: [63] [Islander] failed in its obligation to properly inspect and prepare the motor home for the [Rices]. Consequently the 2003 FordChateau motor home was not usable by the [Rices]. It was not fit for the purpose for its intended use. It was not of sufficient quality onthe day of delivery to have been used, and it was apparent that the [Rices] were not able to convince [Islander] to make adequate repairs.

The [Rices] relied on the skill, experience and expertise of [Islander]. [Islander] failed to deliver, and in my view the contract ought to beset aside. Accordingly, I find in favour of the [Rices]. [8] The trial judge awarded damages for the purchase price and related costs, and for loss of use and enjoyment of the vehicle. Heordered that title to the motor home be returned to Islander. ISSUES [9] At issue is whether the trial judge erred in his

interpretation and application of

section 16 of the Sale of Goods Act. Were theRices precluded from rescinding the purchase agreement because they should have conducted a more thorough examination of the motorhome before agreeing to take possession? Having taken possession, were the Rices precluded from rescinding the agreement whenIslander failed to remedy the defects? Islander submits that the trial judge erred by making unreasonable inferences unsupported by the

evidence and by failing to properly consider Islander’s evidence regarding repair of the defects. ANALYSIS [10] Islander’s submissions on the appeal address paragraphs 16(

a) and (

d) of the Sale of Goods Act. Wound within thosesubmissions are references to and reliance on case law regarding fundamental breach of the purchase agreement. [11] I begin with

section 16 of the Sale of Goods Act which specifies an implied condition as to reasonable fitness for purpose ofpurchased goods. It provides, in relevant parts: There is no implied warranty or condition as to the quality or fitness for a particular purpose of goods supplied under a contract of sale,except as follows (

a) where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, so asto show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’sbusiness to supply, whether he or she is the manufacturer or not, there is an implied condition that the goods shall be reasonably fit forthat purpose; … (

d) where the buyer has examined the goods, there shall be no implied condition as regards defects which that examination ought to haverevealed; … Paragraph 16(d) [12] Paragraph 16(

d) of the Act must be read in context. Islander, as a vendor of used motor homes, had the fundamentalresponsibility, set out in paragraph (a), to provide a motor home that was fit for the purpose for which it was purchased, that is, as atravel home used, in the case of the Rices, normally for camping. The vehicle had to be not only road worthy, but appropriate as adwelling. [13] The Rices could not have been expected to have discovered defects such as leaks and rotting wood which were not identifiedand corrected by Islander prior to presenting the vehicle for purchase. This was not an “as is, where is” purchase.

Rather, it was apurchase from a reputable dealer in used vehicles of the type being purchased by the Rices. Further, there is no basis on which toconclude that an examination of the vehicle by the Rices ought to have revealed the defects which led them to reject the goods. Indeed,the service manager testified, in response to questions about the failure of Islander to identify the above defects during the pre-deliveryinspection, that “obviously it wasn’t noticeable at the time”.

He explained that the structure of the vehicle is such that water damage is“not necessarily that noticeable from the outside”. [14] The conclusion follows that paragraph 16(

d) is not engaged on the facts of this case. Paragraph 16(a) [15] The trial judge relied on paragraph 16(

a) of the Sale of Goods Act in determining that the purchase agreement must be setaside. There are two prongs to the analysis. First, the defects at issue must have been such as to render the motor home unfit for thepurpose for which it was purchased. If that criterion is satisfied, the next question is whether the Rices’ conduct in allowing Islandertime to correct the defects precluded them from later rejecting the goods and rescinding the agreement. Effect of Non-compliance with Paragraph 16(a) [16] Before considering the application of paragraph 16(

a) in the instant case, a review of the effect of non-compliance with thatprovision is apposite. This issue was considered in Gerber Scientific Instrument Company v. Bell Northern Research Ltd., (ON CA), 1994 CarswellOnt 1029, 17 B.L.R. (2d) 21 (Ont. C.A.), leave to appeal refused, [1994] S.C.C.A. No. 524. The Courtconcluded that, where non-compliance with the implied condition has been demonstrated, rejecting the goods and rescinding theagreement is a remedy available to the purchaser.

Interpreting language similar to paragraph 16(a), the Court, per curiam, explained: [5] The respondent accepts the trial judge’s finding that it was in breach of s. 15, para. 1, that is, that the goods were not reasonablyfit for the purpose for which they were intended.

The respondent submits, however, that a breach of s. 15, para. 1 does not automaticallyentitle the buyer to rescind the contract where the goods can be made operable by easily repairing them. [6] We agree with the appellant that breach of the implied condition that the goods are fit for the purpose for which they wereintended goes to the root of the contract and entitles a buyer to reject the goods for beach of contract: [authorities omitted]. [17] I accept this as a correct statement of the law.

Without reference to the Gerber Scientific case, Islander submits that it isnecessary to conduct an assessment based on the principles regarding fundamental breach of contract. I do not agree. If that was thecase, paragraph 16(

a) would be either unnecessary, since the common law regarding fundamental breach would apply in any event, orparagraph 16(

a) would have been worded differently to incorporate the requirement for a separate or additional consideration of theprinciples of fundamental breach. [18] The first decision on which Islander relies is Knee v. Humber Motors Ltd. (1993), (NL SC), 107 Nfld. &P.E.I.R. 271 (NLTD), which dealt with a truck that caught fire after it had been used by the purchaser for almost a year. In that decision,Roberts J. had concluded on the facts that paragraph 16(

a) did not apply. He then proceeded with a consideration of fundamental breach:

[20] Dealing firstly with s. 16(a), there is no evidence that the plaintiff made known to the defendant any particular purpose for whichthe truck was required so as to show the defendant that he was relying on its skills or judgment. The subsection, therefore, does notapply. [19] This decision demonstrates that, in circumstances where the purchaser cannot rely on paragraph 16(

a) of the Act, the Courtmay, nonetheless, proceed to consider the possible application of the common law principles regarding fundamental breach of contract. The decision is not of assistance where the issue is non-compliance with paragraph 16(

a) of the Act. [20] The other case upon which Islander relies is Glovertown Shipyards Ltd. v. Hickey (1999), (NL SC), 179Nfld. & P.E.I.R. 1 (NLTD), which dealt with a ship that sank. Regarding Hickey’s claim in contract against the shipyard, Aylward J.concluded: [428] The evidence indicates a series of problems was experienced by Hickey with the operation of the vessel after delivery.

Theseproblems, while frustrating and irritating, were, in my view, operational and repairable problems, all of which were dealt with by theYard and the suppliers of the equipment pursuant to the warranty and presumably under the bond. These problems do not constitute afailure of consideration, nor a fundamental breach of the Construction contract as alleged by Hickey. … [434] … The vessel, at the time of delivery and acceptance, was certified as seaworthy.

I have no hesitation in concluding that thevessel was fit for the purpose required. [435] Considering that the vessel was custom made to Hickey’s requirements, and that Hickey and Bond had ample time andopportunity to inspect and examine, and did inspect and examine the vessel prior to acceptance; I have no hesitation in concluding thatnotwithstanding the operational problems experienced after acceptance, these problems were repairable and were repaired, the “SeaShuttle” was fit for the purpose purchased and was of merchantable quality. On the facts, as with Knee, non-compliance with paragraph 16(

a) of the Act was not engaged. [21] The legislation in this Province also stands in contrast to the approach in some other jurisdictions. For example, in NewBrunswick, the legislation requires the purchaser to give the vendor a reasonable opportunity to rectify the breach of a warranty unlessthe breach is “a major breach” (Savoie v. René’s Service & Trailer Sales Ltd., 2009 NBCA 15, 341 N.B.R. (2d) 267, at paragraph 9).

InSavoie, at paragraphs 26 and 27, the Court of Appeal identified factors that may be relevant to determining whether a breach constitutes a“major breach”: seriousness of the defect and its impact on the principal use of the product; ease with which the defect can be remedied;seriousness of the consequences of any damages caused by the defect; impact of the defect on the residual value of the product (whetherlife expectancy of the product has been shortened or trade-in value reduced); nature and cost of the product; and length of time thepurchaser has possession of the product before rejecting it.

These factors are broader in scope than would apply to assessing reasonablefitness for the intended purpose under paragraph 16(

a) of the Act. [22] In

summary, a vendor has the obligation to provide goods reasonably fit for the intended purpose provided certain pre-conditions are satisfied: the purchaser, at least by implication, indicates the intended purpose for which the goods are being purchasedand demonstrates reliance on the vendor’s skill and judgment, the goods being those the vendor supplies in the ordinary course ofbusiness.

Where these pre-conditions are satisfied and the goods are not reasonably fit for the intended purpose, subject to specialconsiderations, such as are discussed below, the purchaser has the right to reject the goods and rescind the purchase agreement. In suchcircumstances it is unnecessary to proceed with a broader analysis to establish fundamental breach of contract, such as was undertaken inKnee.

Unfit for the Intended Purpose [23] Turning, then, to the first prong of the analysis, the question is whether the deficiencies were such that the motor home was notreasonably fit for the purpose for which it was bought. Some of the deficiencies were minor in nature, such as back-up lights notworking, and, while they required correction, these could not be said to render the vehicle unfit for purpose.

It is unnecessary to addressthe question of the smoking brakes because that is not the basis on which the Rices rejected the motor home. [24] However, other defects such as leaks and rotting wood were such as to interfere with the functionality of the vehicle as a travelhome suitable for trips such as camping. In Savoie v. René’s Service & Trailer Sales Ltd., supra, which dealt with leaks in a campingtrailer, the Court of Appeal found no error in the trial judge’s conclusion that leaks would interfere with the functionality of the camper“which was intended to serve as a dwelling” (paragraph 27).

It was not sufficient that the motor home be road worthy. It also had tosatisfy the requirements related to its use as a shelter. [25] Islander’s explanation that leaks are “not uncommon in used RVs and that wear and tear from regular use of such vehicles is tobe expected” does not address the fitness for purpose requirement at the time of sale. As noted above, this vehicle was not submitted forpurchase on an “as is, where is” basis.

Indeed, if defects such as leaks are not uncommon in similar circumstances, it could be expectedthat Islander would have done a more thorough inspection of the vehicle before offering it for purchase. [26] In the circumstances, based in particular on the leaks and rotting wood, purchase of the motor home could have been rejectedbecause of non-compliance with paragraph 16(

a) of the Act. A leaking travel home is not fit for the intended purpose, that is, providingshelter. [27] However, the Rices did not immediately refuse to accept the motor home when the defects were discovered. Rather, theyallowed Islander to attempt to remedy the deficiencies. It is necessary, then, to proceed to the second prong of the analysis, the questionbeing, were the Rices thereby precluded from later rejecting the motor home and rescinding the purchase agreement? The Sale ofGoods Act provides context within which to consider this question.

I note that there is no statutory requirement for the purchaser toprovide the vendor with an opportunity to remedy defects that result in goods that are not reasonably fit for the intended purpose.

Remedying Deficiencies [28] I begin with Islander’s submission that the deficiencies were, in fact, remedied before the day when the Rices finally refused totake the vehicle. The trial judge did not accept this. Rather, he accepted Mr. Rice’s testimony that, upon inspecting the motor home, hefound that the defects had not been corrected. On appeal, such a finding of fact by the trial judge is entitled to deference. An exceptionto this principle is if the trial judge makes a palpable and overriding error regarding the factual determination.

In submitting that is whatoccurred here, Islander points to work orders constituting business records which were entered in evidence, and which were, in fact,considered by the trial judge. [29] Records kept in the ordinary course of business are admissible as evidence and often provide helpful information about workperformed regularly during business operations. However, the trial judge is not bound to accept them as conclusive.

The weight of suchevidence, as with any evidence adduced at trial, will depend on the circumstances and, in particular, any testimony related to thosedocuments or gleaned from other witnesses. [30] The rationale for accepting business records in evidence is referenced in Bryant, Lederman and Fuerst, Sopinka, Lederman andBryant, The Law of Evidence in Canada, third edition (Markham, ON: LexisNexis, 2009), at pages 293 to 294: 6.214 … The trustworthiness of business documents is based on the reliability placed on such records by the commercial world.

In theabsence of routineness, there exists the danger that the maker of the record may not be motivated to be accurate. It is the mercantilenature of the record which attracts trustworthiness, not just the fact that the document was prepared in the regular course of business. [31] Regarding documents recorded and stored on a computer system, such as were adduced in the instant case, the authors note, atpage 306, that the focus will be on their authenticity and reliability with consideration being given to “standards used to ensure thereliability and integrity of the system”.

Factors that may be relevant would include: “contemporaneous recording of information anddata; routine business data and entry; reliance on the data by the business organization; software reliability; processing verification ofdata in records …”. [32] In the instant case, a review of the transcript indicates that the service manager who gave evidence on behalf of Islander wasextensively questioned about how work orders were ordinarily generated and entered onto the computerized system.

I note in passingthat the service manager admitted that at least one item had been incorrectly checked off on the pre-delivery inspection, which he hadperformed. Such evidence is one factor the trial judge could take into account in determining the reliability of the documentaryevidence. [33] More importantly, the testimony indicated some difficulties in ascertaining when work was done because the information wasnot recorded contemporaneously with the performance of the work, but was entered at a later date.

The form filled out by the employeewho did the work, which was later entered onto the computer, was not in evidence. That employee did not testify. Further, the witnesstestifying on behalf of Islander could not satisfactorily explain the dates on the computer-generated work orders. The first work orderincludes two dates: “Sched. Date July 24, 2009” and “Close Date July 29, 2009”. The second work order, which identifies the Rices’complaints after they had taken the vehicle on a camping trip, includes three dates: “Sched. Date August 04, 2009”, “Promise DateAugust 31, 2009” and “Close Date October 07, 2009”.

Without a sufficient explanation as to the meaning of these dates, thedocumentary evidence could not be relied upon to determine when the work specified in the work order was completed. In thecircumstances, it was open to the trial judge to accept the testimony of Mr. Rice that the defects had not been corrected when Islanderattempted to return the vehicle to him. [34] In addition, it is unclear from the information on the work order whether the corrective action actually dealt with thecomplaints.

For example, regarding the complaint that “The area behind the pull out couch (which was not showed to us during theinspection) has severe water damage to the point that the wall is warped”, the corrective action states: “Removed couch, window and toptwo cupboards, removed old panel and replaced with new. Reinstalled cabinets, repaired wiring, and reinstalled window and couch”. There is no indication that the source of the water damage was addressed or that the bulge was either not apparent or was corrected.

Similarly, regarding the complaint that “There is a piece missing off the main sliding window on the side at the bottom. This may bewhat caused the leak resulting in the water damage behind couch”, the corrective action states: “Recaulked side window with blackwindow adhesive – no leaks noticeable”. There is no indication that the missing piece on the window was replaced. The comment onthe form that there were “no leaks noticeable” does not confirm that any water leaks had been remedied.

Nor is there any indication thatthe employee considered a possible connection between the water damage behind the couch and the leak around the window. [35] In the result, the documentary evidence was not sufficient to establish Islander’s claim that the deficiencies had been remediedbefore the Rices arrived to retrieve the vehicle. After considering the evidence, the trial judge accepted Mr. Rice’s testimony that, infact, the necessary remediation had not occurred.

In the circumstances, there is no basis on which to conclude that the trial judge erred inthis determination. [36] The final remaining question is, did initially providing Islander with the opportunity to remedy the deficiencies have the effectof precluding the Rices from ultimately rejecting the goods and rescinding the purchase agreement? This issue is discussed in Fridman,Sale of Goods in Canada, fifth edition (Toronto: Carswell, 2004), at pages 234 to 235 and 252 to 253.

At pages 234 and 235: In a number of instances it has been held that keeping and using goods for some time, in the hope that they might be made to work, orwould be repaired and put right by the seller, did not constitute acceptance [by the buyer]. As was said by Munroe J. in Barber v. InlandTruck Sales Ltd. [(1970), (BC SC), 11 D.L.R. (3d) 469 (B.C.S.C.), at page 475], referring to the facts in that case: The plaintiff … gave the defendant every reasonable opportunity to correct the defects which appeared in the truck, and made an honesteffort to use the truck in the work for which he had purchased it.

In that case, therefore, the buyer was not acting as someone capricious who had rejected the purchase and sought to get out of thecontract for a frivolous reason. A buyer who points out the defects in the goods he has bought, and attempts to have the seller rectifythose defects over a period of time, does not accept the goods for the purposes of the exercise of his right to reject them for failure to be

of the right quality . … The buyer is entitled to a reasonable time within which the seller has an opportunity to make the goods function in accordance with the quality they ought to have under the contract. Until such reasonable time has elapsed, and while the efforts by the seller are taking place, the buyer’s conduct in retaining the goods does not amount to acceptance . (Emphasis added.) [ 37 ] I agree with this

summary of the law. In the instant case, after the Rices took possession of the motor home, for the most part, it was in Islander’s possession as attempts were made to remedy defects. It cannot be said that there was any unreasonable delay by the Rices in deciding not to accept the motor home and to rescind the agreement. [ 38 ] As to remedying the deficiencies, the trial judge concluded that “it was apparent that the [Rices] were not able to convince [Islander] to make adequate repairs” (paragraph 7, above). The basis for this conclusion is Mr. Rice’s evidence which was accepted by the judge. Mr.

Rice testified: That weekend, the first weekend that we actually had the RV it rained and we didn’t camp in the RV, and we noticed a leak up in the front bunk. That the, you know, it rained and there was a leak up in the front bunk in the sleeping quarters over the driver’s cabin. So, on that Monday we called Islander, told them there was a pretty big leak up in the front and brought the RV back into them. Then what happened they, over a matter of a couple of days, I guess, they fixed, they told us they had fixed the leak in the front and there was no problem. Come and get it.

So, we went and got the RV, and the following weekend was the first time that we camped in it, and we camped out in Butterpot Park. And again, we were anxious to get, you know, back out camping. It rained that weekend; nevertheless, on Friday we went out and got a site and camped in Butterpot. So now we’re in the motor home during the, you know, the rain all Friday night and Saturday. It was at that point in time that we noticed that there was also – that, first of all, the leak in the front bunk that we had just put [the vehicle] back in for [repair] wasn’t fixed.

There was another leak in the bathroom in the skylight. In the skylight dome in the bathroom there was another leak. We noticed that the top bunk was infested with little bugs. We noticed that there was rot along the sides of the – along the whole side, behind there is a pullout couch in the RV that pulls out into a bed, and when you pull that out you could see the side walls were bulged and were rotted out and this was something we had not seen, you know, before. We also noticed, we started to notice other things.

There was a piece of track missing from one of the windows which caused a side-to-side window to rattle and to leak. I had also noticed that the, like the radio was intermittent. The lights and the radio and the sound was cutting in and out, which I was thinking to myself this looks like an electrical problem. [ 39 ] Upon returning home with the above list of defects, the Rices became aware that the reverse lights on the vehicle were not functioning. Mr.

Rice’s testimony continues: So we called Islander and told them the list of problems, and they told us, okay, bring the machine back in and we will fix the problems. So, we were pretty upset, as you can imagine, with the, you know, the list of things that we had just run into with this. So we brought the RV back to them, and they provided us with a, for a day or two they provided us with a loaner which we didn’t use, and there is a reason why we didn’t use the loaner.

Maybe not relevant to the story but we’ve got two big dogs and the dogs shed, and I didn’t – and it was virtually a new motor home loaner they had given to us and we didn’t feel right about putting the dogs into the motor home because the dogs would come with us, … and it would be covered in fur from front to back. Nevertheless, so we didn’t actually camp in the RV. We got a call from Islander telling us that the RV was ready, and this is after, the time frame I’m not sure but probably a week, ten days, maybe, you know, within the two-week period anyway.

So we went back into the dealership, brought the loaner in, drove the loaner in to pick up our motor home and after the second set of “repairs”. So we went inside the motor home and looked. The first thing I did was pulled back the couch, the fold-down couch, and the wall that had been water damaged and was bulged out hadn’t been repaired. It had just been covered with a piece of mismatching wallpaper. I looked at the side window carriage, the piece was still gone. So the window was still rattling, so that hadn’t been repaired. And so I was getting a little bit upset at that point in time.

So the next thing I did was I jumped up into the front bunk and peeled back the mattress and again watched dozens of small insects scatter all over the place. That’s when I jumped down off the bunk and said I’m done with this. Find us another motor home. This is totally unacceptable. And that’s when the brief discussion started between us and – between myself and Islander R.V. about finding us another motor home, and we were told, no, they wouldn’t find us another motor home.

This was ours and they would fix it for us, to which I told them, well, this is your, this is the – your third attempt, really, if you include the brakes, at attempting to fix this motor home. And I spoke with the owner, Pat Squires, on the phone, and I asked him point-blank, I said the sides, the front bunk is rotted out. The sides are rotted out. They need to be replaced. Are you going to replace the front bunk, meaning the exterior shell on the side wall, and he told me flat out “no.” Then I said, well, you’re not going to fix all the problems with this RV to which there was no response.

And I asked him again, I said, are you going to replace the rotted side and to which, again, he told me “no”. [ 40 ] It is clear that the Rices were refusing to accept the motor home at this point. They had twice provided Islander with an opportunity to remedy the leak related defects. The trial judge concluded that Islander failed to satisfy its responsibility to address the deficiencies. He was satisfied that the leak identified on the first weekend had not been remedied when Islander returned the motor home to the Rices.

Similarly, he found that the list of defects identified by the Rices during their first camping trip, and which Islander undertook to remedy, had not, in fact, been fixed when Islander attempted to return the vehicle to the Rices. [ 41 ] While some of the deficiencies were minor in nature and would not have supported the conclusion that the motor home was unfit for the purpose for which it was purchased, other defects such as the leaks and rotting wood resulted in a failure of the vehicle, as a travel home, to comply with paragraph 16 (

a) of the Sale of Goods Act . The Rices’ concession to allow Islander time to attempt to remedy the deficiencies did not amount to acceptance of the motor home such that the Rices were precluded from ultimately rejecting the vehicle and rescinding the purchase agreement because, at that time, the deficiencies had not been remedied.

SUMMARY AND DISPOSITION [ 42 ] In

summary, the trial judge did not err in concluding that Islander failed to provide a motor home that was fit for the purpose for which it was purchased. The vehicle had to be both road worthy and appropriate as a dwelling. The Rices could not have been expected

to identify the defects prior to the purchase. There is no basis on which to conclude that the trial judge erred in determining that Islander failed to remedy the deficiencies before the Rices rejected the vehicle and rescinded the purchase agreement. [ 43 ] Accordingly, I would dismiss the appeal with costs to the Rices on a party and party basis. ______________________________ B. G. Welsh J.A. I Concur: ___________________________ J. D. Green C.J.N.L. I Concur: ___________________________ M. F. Harrington J.A.