Vandal v. Pommer, 2013 MBCA 76

Citation: Vandal v. Pommer, 2013 MBCA 76 Date: 20130823 Docket: AI 13-30-07991 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) L. Pommer ANDY VANDAL ) on his own behalf ) (Claimant) (Respondent) Respondent ) A. Vandal ) on his own behalf - and - ) ) ) Chambers motion heard: LAWRENCE POMMER ) August 15, 2013 ) (Defendant) (Appellant) Applicant ) Decision pronounced: ) August 23, 2013 MARC M. MONNIN J.A. [ 1 ] The applicant, Mr.

Pommer, seeks leave to appeal the decision of a judge of the Court of Queen’s Bench sitting as a small claims appeal judge (the trial judge) under The Court of Queen’s Bench Small Claims Practices Act , C.C.S.M., c. C285 (the Act ). After a trial de novo under the Act , the trial judge gave judgment for the respondent, Mr. Vandal, and damages for the alleged misrepresentation as to the year of manufacture of an all-terrain vehicle (ATV) sold by Mr. Pommer to Mr.

Vandal. [ 2 ] As has been set out in previous decisions of this court, s. 15 of the Act permits an appeal with leave of a judge of this court on a question of law only. In addition, the question of law must be one of importance which merits the attention of the court and the appeal must have arguable merit. [ 3 ] The facts of this case as found by the trial judge were that Mr. Pommer placed an ad on the local website of Kijiji whereby he offered for sale an ATV described as a 1998 Big Bear 4x4. [ 4 ] As found by the trial judge, Mr.

Pommer acknowledged that he had placed the ad on Kijiji, but says that he subsequently realized that it was in error as the vehicle was a 1992 machine. He says he cancelled the ad. He claimed that when Mr. Vandal attended to view the machine and to purchase it, he advised him of the fact that it was not a 1998 vehicle. Mr. Vandal denied that this statement was made to him. [ 5 ] The trial judge concluded as follows: Based on Exhibit 2, the Kijiji ad, and the bill of sale, Exhibit 1, which is dated November 8th, 2012, I believe Mr. Vandal’s account is probably the most accurate one.

Accordingly, I am satisfied that Mr. Vandal relied on the misrepresentation in the Kijiji ad when he purchased the Big Bear 4x4. As he obtained a 1992 machine rather than the 1998 machine which he had contracted to purchase he is entitled to an award of damages. I am satisfied that a fair and just award, under the circumstances, is $300. I am also allowing Mr. Vandal costs of $150, inclusive of disbursements. [ 6 ] At the hearing of the application for leave to appeal, Mr.

Pommer raised what I would consider to be three different grounds, which he says amount to errors of law which should be considered by the court:

a) That he was at all times acting as the executor of his brother’s estate and, therefore, the claim should have been against him in his capacity as executor;

b) That the statement of claim seeks damages as opposed to the nullification of the agreement; he claims that he has offered to reimburse Mr. Vandal if he were to return the vehicle, but Mr. Vandal has refused suggesting that the vehicle is worth more than the $2,000 that Mr. Vandal has paid, thus no damages have been suffered; and

c) The bill of sale given to Mr. Vandal does not stipulate a year for the vehicle reflecting, therefore that, by the time of the actual transaction, Mr. Vandal was aware it was not a 1998 vehicle. [ 7 ] He argues that all these issues were raised before the trial judge. [ 8 ] As to the first ground, namely, that Mr. Pommer was at all times acting as executor of his brother’s estate, I note that there is no such disclaimer on the document which was filed as a copy of the Kijiji ad. Mr.

Pommer argued before me that he attempted to have the change made at the small claim hearing, but was told it was not possible, nor was it possible on appeal to the Queen’s Bench. I do not believe that amounts to an error of law. There is no evidence before me that the funds were paid to the estate or that Mr. Pommer will be unable to recover whatever amount of damages for which he is responsible from the estate of which he is the executor. [ 9 ] As to the second ground, namely, that Mr.

Vandal has not suffered damages due to the misrepresentation, it is a question of mixed fact and law as it requires an assessment of the relative values of a motor vehicle of different vintages. The trial judge found that there was a measure of damages warranted. It is not a ground of appeal solely on a question of law. [ 10 ] Finally, the bill of sale was before the trial judge. He considered it as part of the evidence before him and whether the misrepresentation was relied upon by Mr. Vandal. He concluded that he had been misled.

As a factual determination based upon the evidence before the trial judge, it is not an error of law alone. [ 11 ] In

summary, I am of the view that Mr. Pommer has not raised any issue which amounts to an arguable error of law. Even had I found an error of law raised in the submissions made by Mr. Pommer, I do not believe that this claim raises issues which should be considered by the Court of Appeal. It raises no novel or new issues of law, nor would maintaining the trial judge’s decision amount to an injustice. For these reasons I would dismiss the application for leave to appeal with costs of $150 in favour of Mr. Vandal. J.A.