Ondoua Ndzana v Machiskinic, 2024 ABCJ 42

In the Alberta Court of Justice Citation: Ondoua Ndzana v Machiskinic, 2024 ABCJ 42 Date: 20240215 Docket: P2302600040 Registry: Lethbridge Between: Anthony Michael Ondoua Ndzana Plaintiff Defendant by Counterclaim - and - Vanessa Machiskinic Defendant Plaintiff by Counterclaim Judgment of the Honourable Justice P.G. Pharo Introduction [ 1 ] The Plaintiff, Anthony Michel Ondoua Ndzana, who lives in Lethbridge, saw an advertisement on Kijiji for a 2014 Kia Sorento LX SUV (the “Car”), which was posted by the Defendant, Vanessa Machiskinic, who lives in Edmonton. Mr.

Ondoua Ndzana was very interested, so he corresponded with Ms. Machiskinic over Kijiji and text message and decided to fly to Edmonton to look at the Car, and to purchase it if he was satisfied. Mr. Ondoua Ndzana did fly to Edmonton, looked at the car, and made a deal to buy it for $8,500.00. He paid for the Car and started to drive it home to Lethbridge. He got as far as Trochu, where the Car developed engine trouble. It had a faulty drivetrain bearing. He drove it the rest of the way home at a slow speed. Mr.

Ondoua Ndzana then took it to a mechanic, who said the Car needed a new engine, which would cost over $10,000.00. [ 2 ] The Plaintiff brings an action for rescission of the contract, or alternatively, damages for a new engine, in the amount of $10,000.00. [ 3 ] The Defendant/Plaintiff by Counterclaim brought a counterclaim for damages for mental distress, however she called no evidence to substantiate this at the trial, so the counterclaim was dismissed at the end of the trial.

Findings of Fact [ 4 ] The facts of this case are not much in dispute. After considering the evidence of all the witnesses, I accept the following evidence: 1. Ms. Machiskinic testified that she was a “car person”, meaning that her mother and uncles went to car races and car shows, and she always had a fondness for vehicles. She testified that she had bought and sold about ten vehicles in the past. 2. Ms. Machiskinic testified that she bought the Car at the Michener Allen auction near the end of November 2022 for the sum of $6,500.00, which she felt was a very good deal.

She drove the Car home from the auction on the highway, which she said was a distance of about six kilometers. She bought it for personal use but found after she had driven it three or four times to transport her children to their activities, that it was not big enough for her family’s needs. 3. When she bought the Car from Michener Allen, Ms. Machiskinic was provided with a Vehicle History Report, prepared by a business called Carfax, which included a history for the Car with respect to registration, service records and odometer readings (the “Carfax Report”).

This report was dated November 10, 2022, and stated the last odometer reading was 205,414 kilometers. 4. As Ms. Machiskinic was driving the Car home from the auction, she was concerned about one of the tires, so she stopped in at the dealership, Kia North, to have it checked. The dealership said the tire was adequate to drive and filled it with air. Ms. Machiskinic did not have Kia North do any other maintenance on the Car. 5. Ms. Machiskinic did no other maintenance on the Car while she owned it. 6. Ms.

Machiskinic decided to sell the Car because it did not meet her family’s needs, so she decided to list it on Kijiji. She felt it might be worth between $13,000.00 and $15,000.00, but she wanted to list it below market value, so she listed it for $8,900.00. Since she had paid $6,50.000 for it, she felt she would still make a profit, and there was no point having a vehicle sitting unused. 7. Mr. Ondoua Ndzana saw the ad for the Car on Kijiji and contacted Ms. Machiskinic about it. The ad said that the Car was in perfect condition. They communicated by Kijiji and SMS. I accept that Ms. Machiskinic told Mr.

Ondoua Ndzana she had driven the car for several months, and that she was a car person who enjoyed buying and selling cars. I accept that Ms. Machiskinic also told Mr. Ondoua Ndzana that the Car had been maintained by Kia North. I accept that she told him that she had driven the Car on the highway. I accept that Ms. Machiskinic told Mr. Ondoua Ndzana that the Car was in perfect and excellent condition. She also told him that the Car had a DVD player. Ms. Machiskinic sent him the front page of the Carfax Report which had the serial number. 8. Mr.

Ondoua Ndzana was very interested in purchasing the Car so he made arrangements to fly up to Edmonton to look at it. He also obtained a licence plate and insurance so he could drive it home in the event that he purchased it. As evidence of good faith, so Ms. Machiskinic would take it off the market, he sent her a deposit of $500.00. 9. Mr. Ondoua Ndzana flew up from Lethbridge to Edmonton on January 4, 2023. Ms. Machiskinic picked him up at the airport and they went to Ms. Machiskinic’s home to look at the Car. Mr. Ondoua Ndzana looked over the Car. Ms. Machiskinic gave him the Carfax Report.

He noticed that the inside light did not work, and some cracks in the windshield. It also appeared that the DVD player did not work. Mr. Ondoua Ndzana did take it for a short test drive but did not go at a speed of more than 50 kilometres/hour because he stayed in the neighbourhood. Mr. Ondoua Ndzana was there for several hours. Because of these flaws, they negotiated a price of $8,500.00. 10. Ms. Machiskinic prepared a bill of sale for that price which both parties signed. Ms. Machiskinic filled in the odometer reading saying it was 205,420 kilometers.

There were no special conditions on the bill of sale, and nowhere did it say that the sale was on an “as is” basis. Mr. Ondoua Ndzana arranged for an e-transfer to Ms. Machiskinic at that time for the rest of the purchase price. 11. After full payment had been made for the Car, Mr. Ondoua Ndzana left in the Car at about 1:30 p.m. and started driving home to Lethbridge. 12. After Mr. Ondoua Ndzana had travelled about 200 kilometres, the engine developed a knocking noise, and the “check engine” light went on. Mr. Ondoua Ndzana sent a text message to Ms. Machiskinic advising her of the problem.

She maintained that she could not understand why that was happening, and re-iterated that the Car was in excellent condition. Mr. Ondoua Ndzana phoned a mechanic in his home country of Cameroon. The advice he got was to proceed home, but he should not travel at more than 80 kilometres/hour. Mr. Ondoua Ndzana followed that advice. He got home in Lethbridge at about 8:30 p.m. 13. Shortly after he got home, Mr. Ondoua Ndzana took the Car to a mechanic, James Carlson, to have it checked. Mr. Carlson noted that it had a noisy rattle.

He said that the antifreeze was three litres low, and the engine oil was very dirty and had a brass or copper colour. 14. Mr. Carlson was of the opinion that, based on the noises he heard and the colour of the oil, that a bearing had failed in the engine. He said that a new engine was required, which would cost $10,636.68. 15. Mr. Carlson was of opinion that the Car is not reliable to drive, and that the engine could seize up at any time. Mr. Ondoua Ndzana has parked the Car and has not driven it since. The Evidence of the Mechanic – James Carlson [ 5 ] Mr.

Carlson testified that he was a red seal mechanic and has been licenced for over 30 years. He has owned his own business, Carlson Automotive for about 15 years. He said he did the assessment on the Car himself. He testified that when he first saw

the Car it was making a lot of upper engine noise. He recommended an oil change. He noticed that the engine oil had a copper colour toit, which usually indicates that the bearings inside the engine are failing. He said he ran the engine after that and heard a bottom endknock, which confirmed to him that there was a bearing that was failing. He said that he did not pull the engine apart to confirm thatdiagnosis 100%, but based on his experience that was the problem. [6] When asked about if the engine was properly maintained Mr. Carlson said that the anti-freeze was low.

He said the oil levelwas also low, and very dark. He did say that the very dark oil could be because the engine was failing. [7] Mr. Carlson testified that the most likely problem with the engine was that a bearing on the crankshaft had failed. He saidthat the bearings are made of a softer material like brass. He said that because of dirt or heat the bearing will loosen and spin inside thehousing and deteriorate. He said that lack of maintenance is a common reason for it to come loose, or it could be because of amanufacturers defect, or overheating. Mr.

Carlson stated that the knock is caused when the bearing fails, and it then prevents lubricationto the top of the engine, creating the upper engine noises. [8] Mr. Carlson testified that overheating is one of the possible causes of the failed bearing, and that a lack of coolant couldcause overheating. [9] Mr. Carlson was questioned about whether the Car could be driven after it starts making that noise, and he said that theengine could seize up any time. He said he would advise not driving it, and to park it. He said that he thought most mechanics wouldgive that advice. He said the Car is now valueless.

He characterized the bearing failure as a catastrophic engine failure. [10] In

summary, Mr. Carlson could not point to the definite cause of the engine failure. However, based on his experience, andthe fact that there was an upper engine noise, and a lower engine noise, and the copper-coloured substance in the engine oil, he was ofthe opinion that there was a bearing failure. This finding was not disputed at trial, and I accept it. [11] As to the cause of the bearing failure, again Mr. Carlson pointed to several possible causes. He identified that the cause couldbe dirt because of lack of oil changes, overheating because of low coolant levels, or a manufacturer’s defect.

The evidence here was thatthe coolant levels were low, and so were the engine oil levels. Furthermore, the engine oil was not only low, but very dark, indicatingthat it had not been changed recently. I find that it is more likely than not that the bearing failure here was caused by lack ofmaintenance, namely failing to change the oil and to keep the coolant levels topped up. Was there an Innocent Misrepresentation by Ms. Machiskinic? [12] Although at the trial Mr. Ondoua Ndzana suggested that the statements about the condition of the Car by Ms.

Machiskinicwere fraudulent, I do not find that there is any evidence that she knew or was aware of the faulty bearing. Therefore, I do not find as afact that she made any fraudulent misrepresentations about the Car. Any untrue representations that she made about the condition of theCar were therefore to be considered as innocent misrepresentations. Innocent misrepresentations can be either negligent, or non-negligent. However, even if an innocent misrepresentation is non-negligent, in equity, the victim is entitled to rescind, or void, the contract: Andronyik v Williams ((1986), (MB CA), 21 DLR (4th) 557 (MBCA).

It should be stated that for an innocentmisrepresentation to be operative in this way there must generally be a substantial difference between what the victim bargained for andwhat he received, so as to be considered as a total failure of consideration: Alberta North West Lumber Co. v Lewis, [1917] 3 WWR 1007(BCCA). [13] Such an operative misrepresentation has the following requirements: 1. A statement, 2. Intentionally made by the representor, 3. That is false, 4. And that is material, 5. Is communicated, 6. To the representee. With respect to the response of the representee, it must be shown that: 1.

The representee reasonably relied on the statement, and 2. That that reliance on that statement was a contributing factor for entering into the impugned contract. See: Bruce MacDougall, Misrepresentations and (Dis)Honest Performance in Contracts, 2d ed (Toronto: LexisNexis Canada, 2021) at73-74 (MacDougall). [14] In my view, the context of the contract must also be considered. It was represented to Mr. Ondoua Ndzana by Ms.

Machiskinic that she was a “car” person. She explained at the trial that this meant she had an interest in cars since a young age. She andher family had attended car events. She also was experienced in buying and selling cars. If a representor makes it appear that she hassome sort of special expertise, then her opinion may be a representation and she cannot claim that she did not have the knowledge thatshe claimed.

If a reasonable person would say that behind the opinion is a factual foundation that the recipient of the statement can use asa part of a reason to enter into the contract, then it will be a representation: see Hodgins v Nepean (Township) Hydro-ElectricCommission, (SCC), [1976] 2 SCR 501. [15] I will now consider whether the requirements of an operative misrepresentation as set out above in the MacDougall text havebeen met. I find as a fact that Ms. Machiskinic did tell Mr. Ondoua Ndzana that she was a “car person”, which would lead a reasonableperson to believe she had some expertise in cars. I find that Ms.

Machiskinic told Mr. Ondoua Ndzana that the Car had been maintainedby Kia North. I find that she told him that she had driven the Car on the highway and for several months. I accept that Ms. Machiskinictold Mr. Ondoua Ndzana that the Car was in perfect and excellent condition. I will refer to these statements as the “representations”. Ifind that these representations were intentionally made by Ms. Machiskinic to Mr.

Ondoua Ndzana through the Kijiji ad, or throughsocial media messages. [16] With respect to these representations being false, the biggest problem was that the Car had a faulty bearing, so clearly was notin perfect and excellent condition. Another big problem was that it was not maintained by Kia North as represented by Ms. Machiskinic,and in fact was not well maintained by her at all. The oil was dark and low, and the coolant was also low. According to the mechanic,Mr. Carlson, this may well have contributed to the failure of the bearing.

Although she did drive it on the highway once and drove herkids to activities three or four times, that appears to have been the extent of her use of the Car. I find this is also a false misrepresentation,although a less serious one. I find these to be material misrepresentations. After the contract was entered into, the Car only travelled afew hundred kilometres at highway speed before the bearing failed. According to the mechanic, Mr. Carlson, the Car is no longer fit todrive. [17] There was also evidence that Ms. Machiskinic stated that there was a working DVD player in the Car, but in fact there wasnot. Mr.

Ondoua Ndzana also pointed out the kilometers as stated on the Bill of Sale was not correct. Although I accept that evidence, Ifind that these misrepresentations are not material enough so as to give rise to rescission of the contract. [18] The evidence was clear that these representations were all communicated to the representee, Mr. Ondoua Ndzana. [19] The second part of the test as set out in MacDougall relates to the response of the representee, Mr. Ondoua Ndzana. Theevidence of Mr.

Ondoua Ndzana was that he relied on these representations, and because of them was prepared to fly from Lethbridge toEdmonton to make this contract. He also testified that if had known the true facts surrounding the contract, he would not have enteredinto the deal. [20] In

summary, I find that the representations make by Ms. Machiskinic to Mr. Ondoua Ndzana, although innocent and notfraudulent, are operative misrepresentations in accordance with the test set out above. What is the Appropriate Remedy for the OperativeMisrepresentation in this Case? [21] In this case, Mr. Ondoua Ndzana seeks the remedy of rescission, that is the setting aside of the contract, and the return of thepurchase price of $8,500.00, or alternatively, damages in the amount that would cover the cost of repair of the Car, which the mechanictestified would be $10,636.36.

The mechanic testified that it would not be practical or feasible to repair the Car because the cost isgreater than the value. [22] I will therefore consider the remedy of rescission. In the Alberta case of Adams v Canadian Co-operative Implements Ltd,[1979] AJ No 487 (QB) (Adams) the Plaintiff, who was a farmer, bought a haystacker from a dealer, who represented that it would workwith the 540 rpm power take off on the Plaintiff’s tractor. In fact, the haystacker required a 1000 rpm power take off, so it was uselessfor the Plaintiff. The Plaintiff sued for rescission.

Justice McFadyen of the Alberta Court of Queen’s Bench stated as follows: 12 The misrepresentation in this case was a misrepresentation affecting the substantial nature and identity of the consideration to bereceived by the plaintiff. The error was an "error in substantialibus". The plaintiff owned only one tractor. This was equipped with a 540rpm power take-off. He owned a full line of farm equipment, all designed to operate with this tractor.

Any equipment which could not beoperated with this tractor was entirely useless to him. 13 It is my view that rescission is remedy available for innocent misrepresentation even in the case of an executed contract where theresulting error is an error in substantialibus, that is an error as to substantial matters.... [23] Justice McFadyen in the Adams case ordered rescission, being the return of the purchase price for the haystacker. [24] In this case, I find that the operative misrepresentations caused Mr. Ondoua Ndzana to enter into this contract.

I also find, asin Adams, that there was an “error in substantialibus”, which is an error in substantial matters, or in other words, a total failure inconsideration. The Car is not safe to operate. [25] Had these misrepresentations not been made by Ms. Machiskinic and had the bill of sale stated that the sale was made “as is”,the doctrine of caveat emptor may have been applicable. But those were not the facts of this case. [26] Therefore, I grant an order of rescission of this contract, and order that the contract be set aside. The purchase price of$8,500.00 is to be returned to Mr. Ondoua Ndzana forthwith.

Conclusion [ 27 ] Since this Court has granted an order of rescission of the contract, there will be a judgment in favour of Mr. Ondoua Ndzana against Ms. Machiskinic in the amount of $8,500.00. Since the contract has been rescinded, that means the Car belongs to Ms. Machiskinic. I understand that it is parked on Mr. Ondoua Ndzana’s property. In the event that Ms. Machiskinic wishes to recover the Car, I direct that she do so before May 1, 2024. If she decides she wishes to recover the car, I order that she give one week’s notice to Mr. Ondoua Ndzana of her intention to do so.

If she fails to take possession of the Car by May 1, 2024 then I direct that Mr. Ondoua Ndzana can dispose of it as he sees fit. Court Costs [ 28 ] Court costs are in the discretion of this court. After due consideration of all the relevant factors, and hearing the representations of the parties, I order that each party shall bear their own costs. Heard on the 13 th day of December, 2023. Dated at the City of Lethbridge, Alberta this 15 th day of February, 2024 . P.G.

Pharo A Justice of the Alberta Court of Justice Appearances: The Plaintiff/Defendant by Counterclaim, Anthony Michel Ondoua Ndzana Self Represented The Defendant/Plaintiff by Counterclaim, Vanessa Machiskinic Self Represented