McKee v. Abuosba, 2023 NSSM 43

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: McKee v. Abuosba , 2023 NSSM 43 Date: 202306 07 Docket: SCCH 519760 Registry: Halifax Between: Christopher McKee Claimant and Kefah Abuosba Defendant REASONS FOR DECISION AND ORDER Adjudicator : Eric K. Slone Heard : Via zoom on June 1, 2023 in Halifax, Nova Scotia Appearances : For the Claimant, self- represented For the Defendant, self- represented BY THE COURT : [ 1 ] This Claim concerns the purchase and sale of a 2009 Ford Focus automobile on June 1, 2022. [ 2 ] Before considering the claim, I need to sort out the proper identity of the Defendant.

The Claimant named “Kefah ‘Abdul’ Abuosba c/o Quick Fix Auto” as the Defendant. There is no such precise person. The car was actually bought from “Kefah Abuosba.” Abdul Abuosba is Kefah’s son. Kefah Abuosba does in fact use the business name of Quick Fix Auto for some of his activities, with a shop on Cherry Lane in Spryfield. [ 3 ] At the time of this sale the vehicle was registered to a company called CanKurd Automotive Service which is located on Old Sambro Road in Harrietsfield, Nova Scotia.

Kefah Abuosba used to be a partner in that business, and still has some type of arrangement with that company when he engages in the purchase and sale of vehicles. [ 4 ] For the purposes of this Claim, I have amended the style of cause to reflect that Kefah Abuosba is the proper Defendant.

[ 5 ] The Claimant was looking for a vehicle for his teenaged son Vincent McKee, who was just on the verge of obtaining his licence. The vehicle in question was being advertised for $5,750.00 (including HST). The price was negotiated down to $5,300.00 including HST. [ 6 ] The vehicle had a Motor Vehicle Inspection Certificate dated May 16, 2022, which showed the owner as “CanKurd Auto.” It disclosed no safety issues.

The Bill of Sale was made out from CanKurd Automotive Service. [ 7 ] Vincent McKee was instructed to view the car at the Quick Fix Auto shop, and dealt exclusively with Abdul Abuosba. [ 8 ] Vincent tried to pay the money by bank draft made out to CanKurd but was instructed to do an e-transfer to Abdul. Kefah admitted that the money was passed on by his son to him. [ 9 ] The vehicle was driven minimally for the first couple of weeks as Vincent did not yet have a full licence.

He started driving it on or about June 17, 2022. [ 10 ] On June 29, 2022, the left front axle became dislodged and the vehicle ground to a halt. This revealed a serious rusting problem in the sub-frame. The car was towed at a cost of $138.00. Repairs were done at a cost of $1,546.42. [ 11 ] Fortunately, no one was hurt. [ 12 ] The Claimant was rightly concerned that this vehicle had passed an inspection just five weeks previously.

He made a complaint to the Department of Transportation, which inspected the vehicle and determined that there were serious rusting problems that ought to have been flagged by the May inspection. This led to disciplinary charges against the CanKurd mechanic who had performed the inspection. There is still an active investigation into the matter as CanKurd advised that, notwithstanding the invoice, they did not sell the car. [ 13 ] The Claimant has sued the Defendant for the cost of repairs plus rescission of the sale and the return of the purchase price.

Unfortunately, this court does not have the equitable jurisdiction to rescind the transaction. It can only award damages. [ 14 ] Normally, private sales of vehicles are caught by the buyer beware principle, unless the Claimant can prove that there was deliberate or negligent misrepresentation on the part of the seller.

Here, we know nothing about the state of the Defendant’s knowledge of problems with the vehicle. [ 15 ] However, the rules are different when it comes to sellers who deal with vehicles as a business activity. [ 16 ] I find that the Claimant believed he was buying this vehicle from a dealer, CanKurd. Even if Kefah was the seller, and not CanKurd, I find that he qualifies as a “dealer” within the meaning of s.2 (

j) of the Motor Vehicle Act , which defines a dealer as follows: “dealer” means a person who carries on or conducts, either for the whole or part of his time, the business of buying, selling or dealing in motor vehicles, trailers or semi-trailers [ 17 ] He is also a “seller” within the meaning of s.2 (

n) of the Consumer Protection Act , which defines seller as: a person who is in the business of selling goods or services to buyers and includes his agent, but does not include a person or class of persons to whom this Act is by the regulations declared not to apply; [ 18 ] The reason that the Consumer Protection Act is relevant is that it contains implied warranties that would not otherwise apply in

the case of a sale between private individuals. The relevant parts of the Consumer Protection Act are these: 26

(1) In this

Section and

Section 27, "consumer sale" means a contract of sale of goods or services including an agreement of sale as well as a sale and a conditional sale of goods made in the ordinary course of business to a purchaser for his consumption or use ....

(2) In this

Section and

Section 27, "purchaser" means a person who buys or agrees to buy goods or services.

(3) Notwithstanding any agreement to the contrary, the following conditions or warranties on the part of the seller are implied in every consumer sale: ….. (

e) where the purchaser, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the purchaser relies on the seller's skill or judgement and the goods are of a description which it is in the course of the seller's business to supply, whether he be the manufacturer or not, a condition that the goods shall be reasonably fit for such purpose; provided that, in the case of a contract for the sale of a specified

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

h) a condition that the goods are of merchantable quality, except for such defects as are described; ....... (

j) a condition that the goods shall 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. [ 19 ] No one would suggest that these implied warranties are strong, but as I observed in Tingley v.

Sapp, 2017 NSSM 4 : 15 All vehicle dealers in Nova Scotia are subject to the terms of the Consumer Protection Act , and in particular the implied warranties of reasonable fitness, merchantability and durability. 16 These implied warranties are intended to supply a minimum level of protection for purchasers of used merchandise, including vehicles.

Where the seller provides an express warranty, such as is the case here, the implied warranties establish something of a floor, in the sense that the express warranty cannot be less protective than the implied warranty. [ 20 ] This vehicle was seriously lacking in the attributes of reasonable fitness, merchantability and durability. As such, the Claimant has a right to damages. [ 21 ] In my view damages should be set at $1,717.94, which were the immediate costs to get the vehicle back up and running. I understand that further expensive repairs have since been required, but these problems emerged much later.

I believe the very limited protection offered by the Consumer Protection Act would not extend that far. [ 22 ] I award the Claimant damages of $1,717.94 plus costs of $294.35, for a total of $2,012.29. ORDER [ 23 ] It is ordered that the Defendant Kefah Abuosba pay to the Claimant the sum of $2,012.29.

Eric K. Slone, Adjudicator