Thuy Truong v. Phong Le and Quy Pham, 2024 SKPC 5

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2024 SKPC 5 Date: January 3, 2024 File: 176 / 2022 Location: Regina _____________________________________________________________________________ Between: Thuy Truong and Phong Le and Quy Pham Wade St. Onge For the Plaintiff Phong Le For the Defendants ______________________________________________________________________________ JUDGMENT P. DEMONG, J. ______________________________________________________________________________

Summary [ 1 ] This is an action to recover the cost of certain repairs that were made to a used vehicle after it had been purchased by the plaintiff in a private sale. The plaintiff alleges that certain negligent misrepresentations were made by both explicit statement and by omission. The defendants rely on the common law defense of caveat emptor . The plaintiff responds to this defence with the assertion that the defendant Phong Le (hereafter ‘Mr. Le’) was acting as her fiduciary in assisting her to locate and purchase a car. She asserts therefore, that Mr.

Le had the duty to act in her best interests, but failed to be forthright and honest when he failed to disclose all the deficiencies that he knew the vehicle had - including the fact that the vehicle had previously been declared a ‘total loss’.

[ 2 ] The trial of this action was challenging. The plaintiff was represented by her husband who is not legally trained. The defendants were represented by Mr. Le who is not legally trained. The plaintiff originally sought to call a mechanic to prove certain evidentiary aspects of her claim, but the mechanic was never called. [ 3 ] In addition, the plaintiff, who is Vietnamese by birth, and a recent immigrant to Canada, speaks very little English, and the Court has no knowledge of her ability to comprehend English. At trial I was left with the distinct impression that the comprehension level was nominal.

In consequence, one would have thought that the plaintiff would have brought an interpreter to assist her in presenting her case. She did not, and in consequence, much of her evidence was presented by way of referring to text messages between the plaintiff and the defendant which were conducted in Vietnamese and then translated by using what the plaintiff’s husband conceded was a very poor ‘google translate’ software application. [ 4 ] To make matters worse, each of the plaintiff and Mr. Le have made assertions of impropriety one against the other in relation to this sales transaction.

These improprieties relate to a collective participation in a scheme to avoid PST on the sale of this vehicle by manipulating its original sales price - followed by a further revision to increase its price in order to allow the plaintiff to obtain additional social assistance payments from the province. I will speak to this evidence in greater detail shortly. The Pleadings [ 5 ] The plaintiff asserts that on July 12 of 2020 she purchased a second hand 2007 Nissan Maxima (the ‘vehicle’) from the defendant Quy Pham in a private sale in which Pham’s husband Phong Le acted as Pham’s agent.

The plaintiff asserts that the original purchase price was for the sum of $5,200.00 but that the bill of sale indicated that the price would be $2,700.00 and that she would pay an additional $2,500.00 for work that had allegedly previously been done on the vehicle prior to its purchase. [ 6 ] The plaintiff alleges that the defendants did not, in fact, do the $2,500.00 worth of work that was claimed to have been done. She further alleges that Mr. Le represented to her that there were ‘no issues’ with the vehicle at the time of purchase.

Finally, she asserts that the defendants knew that the vehicle had, at one time, been declared a total loss by an insurance company and that the defendants’ collective failure to advise her of this ‘latent defect’ constituted a negligent misrepresentation by omission. [ 7 ] The plaintiff originally claimed damages in the sum of $3,288.65 together with pre-judgment interest on that sum and her court costs. [ 8 ] The defendants have filed a Reply.

They allege that the vehicle was sold ‘as is’ and without any representations as to warranty or condition - and that the plaintiff provided written confirmation to them acknowledging that she understood that the vehicle came without a warranty and that she would be responsible for any repairs that might be required. [ 9 ] The defendants further assert that the rebuilt nature of the vehicle was discussed with her at the time of purchase and that she was provided with a safety inspection report certifying that the vehicle had passed inspection in February of 2020 and could therefore be operated in Saskatchewan. [ 10 ] For all of those reasons the defendants pray that the plaintiff’s claim be dismissed with court costs in their favour. [ 11 ] In response to the defendant’s Reply, the plaintiff seeks to argue that at all relevant times Mr.

Le was acting in the capacity of a fiduciary for the plaintiff and as such he was obligated to look to her very best interests while acting as go-between in the sale of this vehicle – but that he failed to do so. Issues [ 12 ] The Court is called upon to address the following issues:

1. Was the vehicle sold as is and therefore does the common law doctrine of caveat emptor apply? 2. Did the defendants negligently or fraudulently misrepresent the condition of the vehicle, and if so, does that entitle the plaintiff tosue for damages, and if so in what amount? 3. Was the co-defendant Mr. Le acting as a fiduciary for the plaintiff during this transaction, and if so, does that affect the manner inwhich he should have disclosed information about the vehicle to the plaintiff? 4. Which, if either party, is entitled to their court costs, and in what amount?

The Law [13] Before I relate the facts as I have found them to exist, I would like to explain the law as it applies to this action. [14] First, I would like to explain the law of caveat emptor or ‘let the buyer beware’ in the context of selling used vehicles inSaskatchewan in a private transaction. In so doing I refer to my colleague Judge Scott’s decision in Wong v Wruck, 2008 SKPC 116, 342Sask R 179 [Wong]: [16] Because the defendant was not in the business of selling used vehicles, the plaintiff cannot rely on the statutory protectionsunder The Consumer Protection Act, S.S. 1996, c.

C-30.1 or the implied conditions of quality and fitness under

section 16 of The Sale ofGoods Act, R.S.S. 1978, c. S-1. [17] The legal principle to be considered in cases of this kind is that of caveat emptor or “let the buyer beware.” As Lord Denningstated in Bartlett v. Sidney Marcus Ltd. [1965] 2 All. E.R. 753 at p. 755: …A buyer should realize that, when he buys a secondhand car, defects may appear sooner or later; and in the absence of an expresswarranty, he has no redress… [18] In the case of Frey v. Sarvajc (2000), 2000 SKQB 281 , 194 Sask. R. 249 (Q.B.), Wilkinson J addressed the issueof caveat emptor in relation to the sale of a used vehicle.

The Court summarized the principles which apply, as follows: The application of these principles to the sale of used cars is summarized in the comments of Gow J. in Rusak v. Henneken [1986] B.C.J.No. 3072 (S.C.) where he states: At common law in the absence of a fiduciary or analogous relationship, there is not as between negotiating parties any duty ofdisclosure.

Almost always the seller of a used car knows of its defects, or at least some of them, but he is not under any duty to disclosethem to a potential buyer, unless there has been on his part active concealment, that is, he has done something to the car with the intent toprevent the defect from being discovered. Leeson v. Darlow, (ON CA), [1926] 4 D.L.R. 415 at p. 432; Allan v.McCutcheon (1979), (BC SC), 10 B.C.L.R. 149. Sorensen v. Kay Holdings Ltd. (1979), (BC CA),14 B.C.L.R. 204 per Lambert J.A. at p. 235. The common law rule is caveat emptor.

The underlying philosophy of the law of contract isthat “a party is expected to look out for himself, and make his own bargains. If he has done so foolishly, this is his own fault and he isleft to his own devices.” The distinction between patent and latent defects is described in Halsbury’s Laws of England (3d ed.) Vol 34, page 211, para. 353 asfollows Defects of quality may be either patent or latent.

Patent defects are such as are discoverable by inspection and ordinary vigilance on thepart of the purchaser; latent defects are such as would not be revealed by any inquiry which a purchaser is in a position to make beforeentering into the contract for purchase. As regards patent defects, the vendor is not bound to call attention to them; the rule is caveatemptor; a purchaser should make inspection and inquiry as to that which he is proposing to buy.

[19] To summarize, a seller of a used car is under no duty to disclose its defects unless he has actively concealed them. The seller isnot bound to call attention to defects the purchaser could observe through ordinary inspection and inquiry—the rule is “buyer beware.” [20] However, fraudulent misrepresentation on the part of the seller will have an impact on the principle of caveat emptor. Fraudmay be found when the vendor has actively concealed a latent defect.

However, if the latent defect is unknown to the vendor, there willbe no redress for the purchaser and the principle of caveat emptor or “buyer beware” will apply (McGrath v. MacLean (1979), (ON CA), 95 D.L.R. (3d) 144 (Ont. C.A.) at p. 150.) [21] A fraudulent misrepresentation is a statement known to be false or made not caring whether it is true or false (Waddams, The Law of Contracts, 5th ed. para. 416; Derry v. Peek (1889), 14 App. Cas. 337 (H.L.(E.)).

Such a statement must be material to thedecision of the purchaser to enter the agreement and the misstatement must serve as an inducement to the making of that decision(McCamus, The Law of Contracts, 2005, p. 326). [15] To this, I would also note that the law of caveat emptor is slightly more nuanced than it might first appear. The law does allow theCourt to look to, among other things, the relative sophistication of the parties. In that regard I refer to Madame Justice Wilkinson’sreference in Frey above to the decision of Rowsell v Auto Source Inc. at para 15 of her decision: [15] In Rowsell v.

Auto Source Inc., [2000] N.J. No. 33 (QL) (Nfld. Prov. Ct.), there is a review of the application of these principlesto a commercial transaction for the sale of a vehicle.

The Court notes that the general rule is that the maxim caveat emptor prevails.What is expected of the buyer varies a great deal depending on the circumstances, with particular emphasis being placed on therelative bargaining positions of the parties to the transaction, their experience in matters of that nature, the type of goods they aredealing in and, especially, what opportunity was available to the buyer to inspect the goods before the deal was made. [Emphasis added] [16] Second, I would like to explain negligent misrepresentation in the context of seeking damages.

As noted in Queen v Cognos Inc., (SCC), [1993] 1 SCR 87 [Cognos], in order to found a claim based on negligent misrepresentation, evidence must belead to show show that: there was (1) a duty of care based on a special relationship between the parties; (2) a representation which isuntrue, inaccurate or misleading; (3) the defendants acted negligently in making the representation; (4) he relied, in a reasonable manner,on the negligent misrepresentation and; (5) that the reliance was detrimental to him in the sense that damages resulted. [17] Third, I would like to explain what a fiduciary is, and when a fiduciary relationship can be imputed to certain parties.

InMcIntosh, Re (Bankrupt) (1999), (SK KB), 182 Sask R 197 (Sask QB) Madame Justice Gunn noted: [20] In Frame v. Smith, (SCC), [1987] 2 S.C.R. 99 at 136, Wilson J. in dissent identified criteria indicative of theexistence of fiduciary relationships: Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. The criteria were adopted by the majority of the Supreme Court of Canada in Lac Minerals Ltd. (1986), (ON SC), 53O.R. (2d) 737. [21] In Hodgkinson v. Simms, (SCC), [1994] 3 S.C.R. 377 at 408-09, LaForest J. described the criteria as a usefulrough and ready guide, but clearly indicated that the criteria were not definitive. In that case, a stock broker approached an accountant fortax planning advice in what was apparently a commercial arm's length transaction. The accountant was held to be a fiduciary.

Becausethe accountant was also acting for the developers of a real estate project, the majority found that he breached his fiduciary duty to theappellant when he advised the appellant stock broker to invest in the project and failed to disclose his pecuniary interest in the project.

Writing for the majority about fiduciaries and their duties, LaForest J. stated at p. 405: ... From a conceptual standpoint, the fiduciary duty may properly be understood as but one of a species of a more generalized duty by which the law seeks to protect vulnerable people in transactions with others. I wish to emphasize from the outset, then, that the concept of vulnerability is not the hallmark of fiduciary relationship though it is an important indicium of its existence. Vulnerability is common to many relationships in which the law will intervene to protect one of the parties.

It is, in fact, the “golden thread” that unites such related causes of action as breach of fiduciary duty, undue influence, unconscionability and negligent misrepresentation. At p. 406, LaForest J. stated that undue influence and inequality of bargaining power are not elements which must be present to make a finding that a fiduciary relationship exists. He stated: ... Indeed, all three equitable doctrines are designed to protect vulnerable parties in transactions with others.

However, whereas undue influence focuses on the sufficiency of consent and unconscionability looks at the reasonableness of a given transaction, the fiduciary principle monitors the abuse of a loyalty reposed .... With reference to factual situations which fall within the guidelines provided by Wilson J. in Frame , supra , La Forest J. noted that there are three uses of the term fiduciary, only two of which he considers truly fiduciary. He stated at p. 409-10: ... The first is in describing certain relationships that have as their essence discretion, influence over interests, and an inherent vulnerability.

In these types of relationships, there is a rebuttable presumption, arising out of the inherent purpose of the relationship, that one party has a duty to act in the best interests of the other party. Two obvious examples of this type of fiduciary relationship are trustee-beneficiary and agent-principal. In seeking to determine whether new classes of relationships are per se fiduciary, Wilson J.'s three-step analysis is a useful guide.

As I noted in Lac Minerals , however, the three-step analysis proposed by Wilson J. encounters difficulties in identifying relationships described by a slightly different use of the term “fiduciary”, viz., situations in which fiduciary obligations, though not innate to a given relationship, arise as a matter of fact out of the specific circumstances of that particular relationship; see at p. 648.

In these cases, the question to ask is whether, given all the surrounding circumstances, one party could reasonably have expected that the other party would act in the former's best interests with respect to the subject matter at issue. Discretion, influence, vulnerability and trust were mentioned as non-exhaustive examples of evidential factors to be considered in making this determination. Thus, outside the established categories, what is required is evidence of a mutual understanding that one party has relinquished its own self-interest and agreed to act solely on behalf of the other party.

This idea was well-stated in the American case of Dolton v. Capitol Federal Sav. & Loan Ass'n , 642 P.2d 21 (Colo. App. 1982), at pp. 23-24 , in the banker-customer context, to be a state of affairs ...which impels or induces one party “to relax the care and vigilance it would and should have ordinarily exercised in dealing with a stranger.” ... [and] ... has been found to exist where there is a repose of trust by the customer along with an acceptance or invitation of such trust on the part of the lending institution.

In relation to the advisor context, then, there must be something more than a simple undertaking by one party to provide information and execute orders for the other for a relationship to be enforced as fiduciary.... [22] The hallmark of a fiduciary duty would appear to be loyalty reasonably reposed in another, abuse of which would constitute a breach of the duty of loyalty or the fiduciary duty.

To determine whether loyalty had been reasonably reposed in another one would have to examine the circumstances to see whether “one party could reasonably have expected that the other party would act in the former's best interests with respect to the subject matter at issue”. [Emphasis added] Evidence Analysis and Findings of Fact [ 18 ] While some of the evidence is undisputed much of it is. Only where the evidence conflicts will I explain why I prefer to accept some evidence and reject other evidence. I will explain that assessment having to regard to the credibility and reliability of the parties.

My determination of what constitutes a fact on the evidentiary basis of ‘more likely than not’ will be made in accordance with the law as expressed by this Court in its most recent decision – Taylor v Berger , 2023 SKPC 25 at para 9 : [9] That stated, where the evidence of Mr. Berger conflicts with the evidence of Mr. Taylor I prefer the evidence of Mr. Taylor.

While each of the parties had difficulty identifying, with precision, the date of occurrence of many of the matters in dispute, I found Mr.Taylor to be more credible. I say this fully cognizant of the fact that, as Madame Justice Wright, in Snider v Karpinski, 2009 SKQB394 at paras 103 -105, 342 Sask R 235 discussed: [103] … The assessment of credibility is not a science and, as pointed out in R. v.

Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17 atpara. 20, it is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching andlistening to witnesses and attempting to reconcile the various versions of events.” Assessing credibility is “a difficult and delicate matterthat does not always lend itself to precise and complete verbalization”. (R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at para. 49). Thereis no requirement that a trier of fact must accept or reject the evidence of a witness in its entirety.

None or part of a witness’s evidencemay be accepted, and different weight may be attached to various parts of the testimony. (R. v. D.R., (SCC), [1996] 2S.C.R. 291 at para. 93 and R. v. J.H. (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 44). [104] There are, nonetheless, certain principles, or tools, that have emerged from the jurisprudence that can assist the trier of fact whenassessing credibility. These factors were summarized in Novak Estate (Re), 2008 NSSC 283, 269 N.S.R. (2d) 84 (N.S. S.C.) at para. 36:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, priorinconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness' testimony.

c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v.Chorny, (BC CA), [1951] B.C.J. No. 152, 1951 CarswellBC 133, it is "in harmony with the preponderance ofprobabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but indoing so I am required not to rely on false or frail assumptions about human behavior.

d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done withcaution (R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99, paras. 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider themotive that witnesses may have to fabricate evidence. R. v. J.H., (ON CA), [2005] O.J. No. 39 (Ont. C.A.), paras. 51-56). [19] The plaintiff (hereafter ‘Ms. Truong’) is presently 36 years old. She came to Canada from Vietnam in 2017 and presently residesin Estevan.

Based on the difficulty that she had with giving her evidence at trial, I find that she has extreme difficulty communicating inthe English language and that her comprehension of English is likely equally poor. [20] Prior to coming to Canada, she had never purchased, owned, or driven a car. She did have experience driving a moped inVietnam. She was married to Mr. St. Onge, but in 2019 they separated and then reconciled in or about 2021. She obtained her Canadiandriver’s licence in 2019. I do not know what her level of education is or what she does for a living.

I accept that she is not mechanicallyinclined, and I accept her evidence to the effect that when considering the purchase of this vehicle she: - had almost no knowledge as to how a car works - mechanically speaking; - did not know what to look for in assessing the value of a used vehicle; - did not know how to ascertain when tires on a vehicle need replacing; - did not know how to and where to look for rust on a vehicle; - did not know how to search for an accident history of a used vehicle or even if that was possible. [21] I further accept that when she first started to look for a vehicle in the latter part of 2019 she talked to a friend at the CatholicVietnamese church that she attended, and that he in turn suggested she speak to Mr.

Le - because Mr. Le was someone who had somefamiliarity with buying and selling cars. I am also satisfied that she had known Mr. Le through her association with her church since herarrival in Canada, and that he was very actively involved in a senior position with that church.

[ 22 ] I accept that while she and Mr. Le were not close friends, they were acquaintances and that Mr. Le had, in the past, assisted her (through the auspices of the church) in dealing with her marriage breakdown with Mr. St. Onge. For reasons which will soon follow, I have no reason to doubt that she had, prior to the purchase of this vehicle, reposed trust in him in providing her with advice and assistance in determining what kind of vehicle to buy and how to avoid purchasing vehicles that might otherwise be described as ‘lemons’.

I note that he also offered her advice from time to time in assessing the relative worth of other vehicles that she had considered buying. [ 23 ] I accept that Mr. Le is a savvy business consultant in IT and, in addition, owns several businesses including a company known as Regina Dent Ltd. which carries on the business of repairing vehicles. [ 24 ] In early 2020, Ms. Truong contacted Mr. Le asking him if he was aware of any cars that she might be able to buy - in and around the $2,000.00 region - and that he advised that this was too low a price to find something worthwhile. Mr.

Le also assisted her in February of 2020 by reviewing certain potential vehicles that she was interested in purchasing and dissuaded her from purchasing them because they were either scams or not worthy of purchase. However, in or about July 2, she contacted him again and indicated that she was wondering if he could help her find a car in the region of $4,000.00 to $5,000.00. He was obviously prepared to do so, because after some texting back and forth, Mr. Le advised that he had a car that she could buy from him for $5,400.00. This was the 2007 Nissan Maxima which is the subject of this action.

She then advised him that she had borrowed $5,000,00 from her mother to buy a car and wondered if the price could not be reduced. [ 25 ] In further texts Ms. Truong asked to see photos of the car and asked whether it would be expensive to repair if it broke down. In reply, Mr. Le texted that “ [the vehicle] is okay, it’s an old car ”, [emphasis added] and then sent photographs of the interior and exterior of the vehicle. Following further discussion Mr. Le reduced the selling price to $5,200.00.

He advised her that if it broke down, he would assist in fixing it and she in turn thanked him profusely for his willingness to sell the car to her and to help fix it in the future. He also texted Ms. Truong prior to the sale indicating that he “[hoped that] the car runs well because the car is old, but condition is very good, as you said: the car has leather seats and everything”. That stated, Mr. Le was careful to reiterate that it was an old car and that if it broke down it would be her responsibility to pay for the repair. He also advised her that he was not warranting the car at all.

She in turn texted that she understood both points but indicated that she felt secure knowing that he would be the one doing the repairs. Ms. Truong then purchased the vehicle without test driving it and without having it inspected by a mechanic - or for that matter - anyone else familiar with vehicles. She did not have it checked over because, she says, she “trusted everything that he said”, and she felt that there would not therefore, be any problems.

That stated, she indicated at trial that had she known of all the problems that the car had, she would not have bought it. [ 26 ] At this point I feel compelled to refer to the ‘improprieties’ that I referred to in paragraph 4. During their discussions, Ms. Truong expressed concern about having to pay PST on the sale of this vehicle and asked whether Mr. Le could reduce the sales price on the bill of sale to $2,700.00 and then reflect that the remainder of the price paid ($2,500.00) could be reflected as monies he had paid for work done on the vehicle in preparation for it being sold to her. Mr.

Le makes much of this in asserting that Ms. Truong is dishonest and should not be believed, but the knife cuts two ways. Mr. Le was amenable to her suggestion and did as she asked, and was, thereby, an active participant in this potential tax evasion scheme. Later, and after she had bought and registered the vehicle, Ms. Truong asked him to prepare another invoice indicating that the purchase price was for the full $5,200.00 because, she stated, this would help her in obtaining social assistance. Once again, Mr. Le complied and was once again complicit in Ms.

Truong’s impropriety. [ 27 ] At the end of the day I am not particularly concerned about these shenanigans because they do not affect the matter which I am bound to determine. That said, it speaks poorly of each of them if the intent behind these endeavors was to evade tax and take advantage of the social assistance programs available in Saskatchewan. It also adversely impacts on my view of their honesty. Finally, it forces me to question a repair bill that Mr. Le presented into evidence indicating repair work done to the car in February of 2020 (Exhibit P-13) and which I will soon discuss. Simply put, if Mr.

Le was prepared to manufacture bills of sale which were less than candid, it is reasonable to assume that he might do the same thing with a repair bill. [ 28 ] Before proceeding further I must again backtrack. The evidence suggests that the car was owned by Quy Pham, Mr. Le’s wife. However, while she was present throughout the trial she did not testify, and I question whether her ownership was simply beneficial as opposed to real. I say this because the evidence before the Court is that Mr. Le (presumably on Ms.

Pham’s behalf) purchased the vehicle at a Saskatchewan Government Insurance salvage auction sometime prior to February 15 of 2020 for $1,782.65. At that time, it was identified by SGI as a previous total loss. Mr. Le says that he had some work performed on the vehicle and had originally intended to use it as a loaner at the dent repair company he owned. The work ostensibly done to the car is set forth in Exhibit P-13 and included the following: - paint rear bumper $1,000.00; - change battery $150.00; - install used summer tires $700.00; - mechanical inspection $308.00;

- total inclusive of taxes $2,483.68. [ 29 ] Mr. St. Onge urges the Court to conclude that this repair bill is a fake and that the work was not actually done. In so suggesting, he notes that the costs incurred (other than a third party mechanical inspection) are all conveniently rounded to an even number, which is odd; that the invoice number seems to suggest that it is out of line with other invoices issued by the company that ostensibly did the repairs (which is owned by Mr.

Le); that within two years of purchase the new battery that he had presumably put into the vehicle had to be replaced; and finally, that he had repeatedly asked for this invoice between the time of the vehicle’s purchase and Ms. Truong’s commencement of this lawsuit, and was only given this invoice on the day before the case management conference - ostensibly because Mr. Le ‘could not find it’. I do find these things unusual - particularly a $1000.00 cost to paint a bumper and $700.00 to put used summer tires on the vehicle. I cannot conclusively say that the work was not done, but I am skeptical.

One wonders why Mr. Le would spend $700.00 to put used summer tires on a vehicle when the evidence at trial shows that the plaintiff had new all-season tires put on the vehicle in 2022 for less than $600.00. One wonders why a new battery would fail within two years of having been installed into a vehicle. Finally, and as I have said, it seems most unusual that one would spend $1,000.00 to paint a rear bumper.

While that was not dealt with at trial, I simply note that even if the painter was charging $50.00 per hour for this service, it would mean that someone took 20 hours (or two and one-half days) to remove a bumper, paint it and put it back on. [ 30 ] On July 12 the plaintiff purchased the car for $5,200.00. I have no evidence as to whether, prior to the actual sale, Mr. Le advised Ms. Truong of the specific work that he alleges he put into the car in February of 2020. Nor is there any evidence that he provided her with a copy of the invoice referring to this work prior to the agreement being executed.

I believe Mr. St. Onge when he says that he first became aware of those repairs just prior to the case management conference. On that basis I am satisfied that Ms. Truong was not advised of the nature of the work that had allegedly been done on the vehicle by Mr. Le before she purchased the vehicle. [ 31 ] When it came time to register the vehicle Mr. Le attended with her at an insurance agent’s office to assist her in that endeavor. I am satisfied that he did so because of her poor English and lack of experience in owning vehicles. In fact, Ms. Truong indicated that when it came time to register the vehicle Mr.

Le did most of the talking and that she did not understand anything that they were talking about. [ 32 ] Mr. Le indicated that at the time of registration (but after the purchase of the vehicle) he provided her with an SGI Light Vehicle Inspection Certificate evidencing that the vehicle in question had passed a safety inspection, and that it had previously been characterized as a ‘total loss’ vehicle. While the evidence was not as clear as I would have liked, Mr. Le asserts that the plaintiff was made aware of the previous ‘total loss’ nature of the vehicle prior to the sale, but Ms.

Truong is sure that he did not. There is no corroborative evidence to lead me to conclude that Mr. Le did in fact do so, and I am not inclined to believe him.

It was not brought up in any of the pages and pages of texts between the two relating to the vehicle generally, and it would seem to me that this would have been the most logical place to engage in that kind of discussion. [ 33 ] I also note that while there is no question that the vehicle had been sold to the defendants as a total loss vehicle, there is no evidence before the Court as to why it was determined to be a total loss - and whether it was an ‘absolute total loss’ or a ‘constructive total loss’. I will discuss these two terms shortly. [ 34 ] Ms.

Truong asserted that she began to have problems with the vehicle almost immediately after purchasing it. Within four days of the purchase, she had driven it twice. On the second occasion it would not start, and she phoned Mr. Le who attended and, according to him, tightened a battery cable. The car started working after that. [ 35 ] Ms. Truong had been given only one key and one fob and, not only did the fob not work and would cost $400.00 to replace, but the ignition key was also difficult to use. Mr. Le then indicated that the key would have to be turned a full 180 degrees in order to start the car.

This rather unusual process did seem to work for Ms. Truong. Ms. Truong then contacted Mr. Le because she had been advised by her landlord that the tires of the vehicle were so worn as to be dangerous. Mr. Le responded by indicating that he would help her look for ‘all season tires online, but that in his estimation the tires were still good for a year and one half of use’. This advice was fairly accurate since the tires were not changed out until June of 2021. [ 36 ] Twelve days after the purchase she contacted Mr. Le because the air conditioning was not working. She brought the vehicle to Mr.

Le who said he would fix the air conditioning and ultimately returned the vehicle to her on August 7 indicating that the air conditioning had been fixed. She stated, however, that it broke down again and it was returned to Mr. Le for further work. Ms. Truong alleges that the air conditioning never was fixed, and she says she never bothered to bring it back to Mr. Le a third time. [ 37 ] Ms. Truong also indicated that the vehicle had problems with the gas tank, Apparently the locking mechanism on the handle

would lock up when the vehicle was being filled up resulting in a rather time-consuming process of filling it with gas. In addition, Ms. Truong also advised that the check engine light was constantly on - something that Mr. St. Onge also noted. [ 38 ] In cross-examination Ms. Truong declined to accept Mr. Le’s assertion that she had been driving the vehicle continuously over the next few months for several thousands of kilometres. I agree with her.

A February 2022 repair invoice (Exhibit P-7) indicated that the odometer showed only 188,590 kilometres - an increase of only 4,000 kilometres from the time she purchased the vehicle 18 months earlier. She also conceded that she had been in an accident with the vehicle on July 1. Although the nature of the damage was not made clear at trial, it appears that the damage was cosmetic rather than mechanical. [ 39 ] Mr. St. Onge gave evidence at the trial. He indicated that he first saw the vehicle in November of 2020.

He also noted problems with filling the car up, and the difficulty in manipulating the key to start the vehicle. He also concluded that the tires were very worn. He and Ms. Truong reconciled in January of 2021, and he indicated that they did not immediately insure the vehicle again after the original six-month insurance lapsed. He stated that they did so in April or May of 2021 and took it to a mechanic for inspection in June of 2021. That inspection, (Exhibit P-5) done at Canadian Tire, indicated that the engine fault code had to be re-programmed.

The mechanic also suggested replacement of all four tires, an oil and oil filter change, and the replacement of the right rear brake pads. An inspection report was provided, and it indicated that in almost all other respects the vehicle was in OK condition. [ 40 ] In August of 2021 (Exhibit P-6) Ms. Truong paid $458.96 in parts plus $80.00 in labour to install four new all-season tires.

She replaced a block heater end cord at a cost of $25.29; removed and replaced the rear brake pads at a cost of $174.99; evacuated and recharged the air conditioning at a cost of $189.08; dealt with the difficulty starting the car by changing a solenoid at a cost of $49.99; all for a total, inclusive of tax equal to $1,164.60. [ 41 ] In February of 2022, additional work was done. The intake manifold was replaced, a canister vent control valve was replaced, and a control arm on the ball joint assembly was replaced. This work cost an additional $1,221.16 inclusive of taxes.

In December of 2022 the plaintiff replaced the battery at a cost of $225.31. [ 42 ] The plaintiff acknowledges that the battery replacement was normal wear and tear but seeks recovery for the other expenses incurred which equate to $2,386.76. However, in final argument, the plaintiff was prepared to concede that these repairs created what is known in law as a ‘betterment’ in the sense that the vehicle that is now in her possession was better than what she had purchased. On her behalf, Mr. St.

Onge, as her representative, agreed that an accommodation of 50% of the value of those repairs would constitute a fair assessment of the betterment obtained. On that basis the amount actually sought was reduced to $1,193.38. [ 43 ] Mr. Le testified but Quy Pham did not. He confirmed that he was acting as Ms. Truong’s agent to assist her in searching for a used vehicle. He stated that he had “been nice to her since 2017”. He is adamant that the plaintiff knew that the vehicle was being sold ‘as is’ and without any warranty.

He asserts that all the repairs that were done by the plaintiff arose through normal wear and tear but did not lead any expert evidence in that regard. [ 44 ] In cross-examination he fairly conceded that he “could not recall” if he ever referred to the vehicle as a former ‘total loss’ when discussing it with Ms. Truong prior to her purchase of the vehicle. He stood fast in his assertion that he invited her to test drive it, but that she refused to do so because she trusted him.

He indicated that he did, in fact, do the work that was earlier referred to in February of 2020 but noted that the battery that he said was replaced for $150.00 was a used one. [ 45 ] There is one last piece of evidence that should be discussed because it goes to my assessment of Mr. Le’s credibility. In the spring of 2022 the plaintiff, with the assistance of Mr. St. Onge, requested that Mr. Le provide them with copies of any work invoices he had in relation to the car because these would assist the plaintiff in attempting to sell the vehicle. Mr.

Le indicated that he would help, and on April 20, he sent a text with a supporting invoice. The text read “Hi Wade, as mentioned, I created this invoice just to help you increase the selling value”. The invoice in turn indicated that on June 1, 2021, the battery was replaced at a cost of $150.00, the front and rear brakes were replaced at a cost of $350.00 and used tires were replaced for the sum of $700.00. The invoice purports to come from Mr. Le’s company Regina Dent Ltd. and invoiced to the plaintiff Thuy Truong. PST and GST were added for a total of $1,332.00. This invoice is absolutely a fake.

Clearly the work was not done and while the defendant may assert that he was just trying to help the plaintiff, had the invoice been used by the plaintiff upon any eventual re-sale, this would clearly have been a perpetuation of a fraud with the active participation of the defendant Mr. Le. It speaks very poorly of Mr. Le’s honesty that he would proceed in this fashion. [ 46 ] I now wish to summarize the facts which I feel are relevant to the issues referred to above:

1. The plaintiff was, at all material times, a relatively recent immigrant to Canada who has only a marginal grasp of the Englishlanguage. She had never previously purchased or owned a car and had no familiarity whatsoever about how to purchase a vehicle, whatto look for in assessing its value, nor did she have even a basic understanding of car mechanics; 2. The defendant is a savvy businessman with close ties to the Catholic Vietnamese church. He is familiar with vehicle mechanicsand, when he purchased the vehicle in question, he knew that it had been declared a total loss by SGI.

He alleges that he put in somerather rudimentary fixes to the vehicle after purchasing it, but it is questionable whether or not he did so, and even more questionable,whether the amount allegedly paid for those services was reasonable or inflated. If in fact this work was done, then it included amechanical inspection at a cost of in excess of $300.00 and in that event, Mr. Le would have a rather comprehensive understanding of allthe vehicle’s deficiencies; 3.

The defendant agreed to act as an agent for the plaintiff on a gratuitous basis for the purposes of vetting - and ultimatelyrecommending - a vehicle for the plaintiff to purchase. The plaintiff sought his assistance because she trusted him and because her friendhad indicated that Mr. Le was familiar with the purchase and sale of vehicles; 4. I find that Mr. Le was very much aware that the plaintiff was wholly lacking in experience when dealing with used car purchasesand vehicle mechanics; 5. Ultimately the defendant recommended that the plaintiff purchase a vehicle that he (or his wife) owned; 6.

Prior to purchasing the vehicle, the defendant did not overstate the condition of the vehicle. He advised the plaintiff that it was“okay, for an old car”; that the vehicle came “without a warranty” and “that any repairs that we required would be her responsibility”, buthe would help her in doing those repairs; 7. The plaintiff indicated that she understood all of this and although she was offered the chance to take the vehicle for a test drive,she decided against it because she “trusted everything he said”; 8. Mr. Le did not alert the plaintiff to any specific problems in relation to the car.

Specifically, he did not tell her that it had previouslybeen declared a total loss, nor did he comment on the quality of the tires, the air conditioning system, the fob, the ignition system, thebrake pads, the battery, or the front ball joint assembly; 9. I find as a fact that Mr. Le was aware of the condition of the tires when the vehicle was sold, and that they were very old andrequired replacement within a relatively short period of time.

I also find that he knew that there were problems with the air conditioningand the ignition system and the fob because he had easy answers for her about how to deal with these problems once she took possessionof the vehicle. I have no evidence before me as to whether he was familiar with the condition of the front ball joint assembly or the brakepads; 10. I accept that had the plaintiff been made aware of all these problems, and the potential cost of these repairs, and the fact that it hadbeen designated as a former total loss vehicle, she would not have purchased the vehicle.

Her evidence in this regard is credible and isconsistent with her professed limited ability to fund the purchase, its licensing, and its maintenance. Simply put, I am satisfied that it wasa financial stretch for her to purchase this vehicle, that she did so with money borrowed from her mother, and that more likely than not,she had little in the way of excess funds to finance subsequent repairs; 11. There is no evidence whatsoever to show why the vehicle had been declared a total loss, but more likely than not it a was aconstructive total loss rather than an absolute total loss.

I say this because shortly after the vehicle had been purchased at auction it hadbeen checked for safety and had passed, allowing it to be driven on highways in Saskatchewan. In passing, a constructive total losssimply means that the cost of repairing the damage to the vehicle will, in the opinion of insurer (who must pay for the repair) exceedwhat the vehicle is actually worth.

Comparatively speaking, an absolute total loss takes place when the object that was insured whollyperishes – meaning that any effort to repair would have the effect of making it substantially different than what it was originally. (Seegenerally: Commercial Credit Corporation Limited v Mushanski, (SK KB), [1971] 4 WWR 628 (Sask QB) and thecases cited therein); 12. While Mr. Le indicated that he had put in about $2,500.00 in repairs to the vehicle in February of 2020, there is no evidence to thesuggestion that the plaintiff was made aware of those presumed repairs before she purchased the vehicle; 13.

Within 18 months of purchasing the vehicle, and after having been driven approximately 4,000 kilometres, the plaintiff spent,inclusive of taxes, the sum of $2,386.76 to which she is seeking recovery for, together with a new battery and an oil change which she isprepared to accept as reasonable wear and tear.

Her claimed expenses are: - replace the old tires with new all-season tires; - replace a block heater end cord; - replace the rear brake pads; - recharge the air-conditioning; - change a solenoid for the starter; - replace an intake manifold; - replace a cannister vent control valve; - replace a control arm on the front ball joint assembly.

14. Through her counsel in final argument, the plaintiff concedes that these repairs created a betterment in the sense that as a result of those repairs, she is in a better situation since these are ‘new’ additions to the vehicle and as such, they make the vehicle more valuable than what she could reasonably have expected when buying a used vehicle. She concedes that the betterment would be a fifty percent improvement in her situation and the defendant did not challenge that number.

In consequence, if the plaintiff is successful, her claim of $2,386.76 should be reduced by fifty percent to give effect to her bettered position – meaning that the actual claim is for $1,193.38 plus pre-judgment interest and court costs; 15. Neither Ms. Truong nor Mr. Le come to this Court with perfectly clean hands. Ms. Truong sought to manipulate the sales price of the vehicle to assist her financially in an attempt to pay less PST and to access social assistance funding and Mr. Le assisted her in those endeavors. Mr.

Le also ‘created’ a false invoice for alleged work that had been done to the vehicle in June of 2021 which he said could be used to assist her in re-selling the vehicle if she was so inclined; 16. Quy Pham and/or her husband Mr. Le made a significant profit by flipping this car. Having purchased it in or around the start of 2020 for the sum of $1,782.65, it was sold about six months later for $5,200.00 – almost three times what it had been purchased for.

This does not include the alleged $2,438.65 worth of repairs alluded to earlier which, I have difficulty in accepting as having been done, or alternatively, which I think was, more likely than not, an inflated cost. Analysis and Resolution of the Plaintiff’s Claim [ 47 ] The plaintiff’s claim for misrepresentation is predicated on two grounds. First, the plaintiff asserts that she somehow relied on a representation that approximately $2,500.00 had been spent by Mr. Le in repairing the vehicle after he had purchased it at auction - when in fact that work had not been done.

On that basis, the representation was either fraudulent or negligent. While I am uncertain as to whether the repairs were in fact done, an allegation of fraud is serious. In the absence of compelling corroborative evidence - as opposed to speculation - I am unwilling to conclude, more likely than not, that Mr. Le attempted to perpetuate a fraud in this regard. [ 48 ] Nor can I conclude that the assertion that these repairs were done constitutes a negligent misrepresentation which would entitle the plaintiff to the damages that she seeks.

I say this because, in accordance with Cognos referred to at paragraph 16 above, certain conditions must be met before a litigant can successfully advance a claim for negligent misrepresentation. While there is no question that the relationship between the two - buyer and seller - created a special relationship and therefore a duty of care arose. the plaintiff purchased this vehicle before being made aware of these alleged repairs and as such, I cannot conclude that she reasonably relied on any representation as to them having been done as a pre-condition to purchasing the vehicle.

Since detrimental reliance is an essential feature of a claim for damages for negligent misrepresentation, and because this detrimental reliance is missing, this aspect of the plaintiff’s claim must fail. [ 49 ] The plaintiff next argues that because Mr. Le failed to alert her to the fact that the vehicle had previously been determined to be a ‘total loss’, that failure amounts to the active concealment of a latent defect – something which would entitle her to damages, because, had she known otherwise, she would not have purchased the vehicle.

She points to the decision in Wong (cited at paragraph 14 infra ) as authority for that proposition. [ 50 ] In Wong , the plaintiff had purchased a used truck in a private sale. He asserted that the defendant had advised him that the truck was in good condition and that the engine was under factory warranty. He also asserted that the defendant did not advise him - when asked - that the truck had been in an accident and was a ‘total loss’ vehicle. The defendant denied these allegations and asserted that the truck was sold ‘as is’, as reflected on the bill of sale.

After purchase, the plaintiff discovered that in fact, the vehicle had been involved in an accident and that SGI had designated the truck to be a total loss.

Judge Scott found as a fact that the defendant did know that the vehicle had been involved in an accident and declared to be a total loss, and that the engine was not under warranty. [ 51 ] After reviewing the relevant authorities, Judge Scott (at paras 19 and 20) acknowledged that a private seller is under no duty to disclose defects unless they are actively concealed, and that the seller is not bound to call attention to defects the purchaser could observe through ordinary inspection and inquiry.

She noted, however, that fraudulent misrepresentation of the part of the seller will have an impact on the principle of caveat emptor - and that fraud may be found to exist when the vendor has actively concealed a latent defect that they are aware of. [ 52 ] Judge Scott concluded that the defendant had actively concealed that the factory warranty on the engine was void, and actively concealed its previous status as a total loss vehicle. She further found that had the buyer been made aware of these problems, he would not have purchased the truck.

At para 38 she acknowledged that there are circumstances in which silence or non-disclosure is treated as a misrepresentation, thereby providing a basis for rescission of the agreement. She cited Thomas v Blackwell, 1999 SKQB 168 at paras 18 and 22 : [18] … The defendants had knowledge of a problem with the east wall and of the repairs performed and did not impart that knowledge to the plaintiffs. Failure to disclose, or silence, is

an act of concealment of a material fact that has the same effect as an

express misrepresentation. …That knowledge, and the failure to disclose it, is sufficient to attract liability. … [22] In Frost v. Stewart , [1998] O.J. No. 2021 (Q.L.) (Ont. Gen. Div.) it was pointed out that silence about a known major latent defect is the equivalent of an intention to deceive.

As the trial judge put it, “the suppressing of a truth and the telling of a falsehood are first cousins”. [ 53 ] At paras 42 - 45, Judge Scott came to the following conclusions: [42] To reconcile the line of cases which hold there is no duty on the part of the seller to disclose and those cases which appear to hold that silence or non-disclosure of a material fact may oust caveat emptor , a distinction may be made.

A seller has no duty to disclose patent defects but must inform the purchaser of known latent defects such as the rebuilding of an engine voiding the warranty or having been in an accident to the extent of being written off. In this Court’s view, non-disclosure of a latent defect is tantamount to active concealment. [43] In the present case, the Court finds that the invalid warranty on the engine and the status of the truck as a “total loss” are latent defects that required disclosure. Ordinary inspection would not have disclosed these defects. The defendant withheld information regarding these defects.

His failure to disclose amounted to a misrepresentation or active concealment thereby ousting the application of caveat emptor and making him liable for the damages which flow from the misrepresentation. [44] A person induced to enter into a contract by a misrepresentation is entitled to either (1) compensation for damages resulting from the misrepresentation or; (2) rescission or setting aside of the contract (Waddams, supra , para. 416; Groneau, supra , para. 18). [45] In the present case, the plaintiff has not sought rescission, or setting aside of the transaction, but rather damages related to the repair of the rebuilt engine. [ 54 ] At paras 49 and 50, Judge Scott then concluded that: [49] The purpose of damages for breach of contract is to put the injured party, so far as money can do so, in the same position as if his rights had not been violated; damages should arise naturally from the breach ( Hadley and Another v.

Baxendale and Another (1854), 156 E.R. 145 at 151 (Exch.) ). Had the warranty been in place, as the plaintiff believed, he would have ultimately received a working engine at no cost to him. Instead, the plaintiff paid $6,069.68 to have a remanufactured engine installed in the truck, according to an invoice from Auto Clearing dated November 24, 2006. Mr. Anderson, from Auto Clearing, testified this was the most cost-effective way of proceeding and carried the desired warranty protection.

A causal link exists between the defendant’s misrepresentation that the engine was covered by warranty and the plaintiff’s costs to repair the engine. Had the defendant informed the plaintiff of the true situation, he would not have incurred the costs that he did. [50] While the Court has also found the defendant misrepresented the status of the vehicle as a “total loss”, no damages flowed from that misrepresentation. [ 55 ] Paragraph 50 of Judge Scott’s decision is particularly applicable in the instant circumstances.

Simply put, in the present case the Court does not know why the vehicle was determined to be a total loss - nor whether any of the problems that the vehicle had - impacted on that total loss decision. In consequence, I cannot find any damages arising naturally from that breach of this contract. For these reasons, the plaintiffs claim for damages arising from the defendant’s failure to disclose a latent defect - the fact that it had previously been found to be a total loss, must fail. [ 56 ] However, this does not end the matter.

The plaintiff argues that had she known of this latent defect or the other problems that came with the vehicle she would not have purchased it – and she would not have had to incur certain costs to make repairs. She maintains that by virtue of Mr. Le’s willingness to act as her gratuitous agent in locating a used vehicle for her, (something which I have found as a fact to be the case) he was acting as her fiduciary and had the legal obligation to look to her best interests in exercising that role.

She argues, therefore, that his failure to alert her to all the problems that this vehicle had, and of which he was obviously aware, constitutes a breach of that fiduciary duty and that breach in turn entitles her to the damages that she seeks.

[57] At para 17 of this decision I had previously referred to the comments of Laforest J, in Hodgkinson v Simms, (SCC), [1994] 3 SCR 377 wherein he indicated that there are three uses of the term fiduciary, only two of which he considered trulyfiduciary at para 31: [31] … The first is in describing certain relationships that have as their essence discretion, influence over interests, and an inherentvulnerability. In these types of relationships there is a rebuttable presumption, arising out of the inherent purpose of the relationship, thatone party has a duty to act in the best interests of the other party.

Two obvious examples of this type of fiduciary relationship or trustee-beneficiary and agent- principal. … [58] While Mr. Le was under no obligation to act as a gratuitous agent for the plaintiff when he decided to assist her in locating a usedvehicle, having once adopted that role, he cannot thereafter rebut the presumption that he had a duty to act in her best interests.

There isno question that he had a vested financial interest in selling the vehicle (that was owned either by him or his wife) and there is noquestion that he was aware of the plaintiff’s inherent vulnerability arising from her lack of knowledge about vehicles generally.

Underthese circumstances, I am satisfied that he failed to look to the plaintiff's best interests when he sought to sell her a vehicle that he knewhad been a total loss and which had a number of mechanical problems - and then failed to direct her attention to those specific problemsas a pre-condition to selling her that vehicle. [59] I believe the plaintiff when she asserts that she would not have purchased the vehicle had she known of all its defects.

I amsatisfied that the defendant was in breach of his duty as a gratuitous agent when he failed to look to her best interests by making heraware of these defects as a pre-condition to the sale of the vehicle. I conclude that the repair costs incurred by her would not have beenincurred by her had she known of these defects - because she would not have purchased the vehicle. As a result, I am satisfied that theserepair costs arise naturally from Mr. Le’s breach of his duty to act in her best interests. In consequence I find that Mr.

Le is responsiblefor the costs incurred by the plaintiff in repairing the vehicle and I award judgment in favour of the plaintiff against Mr. Le in the sum of$1,193.39. I am unable to find any liability against Quy Pham and the claim against her is dismissed. [60] The plaintiff is entitled to pre-judgment interest on this sum which I calculate as running from the date of the last repair, which ison or about February 22 of 2022, and which equates to the sum of $69.87. [61] As the plaintiff has been successful in this action, she is also entitled to her court costs.

Section 36(3) of The Small Claims Act,2016, SS 2016, c S-50.12 and that Act’s regulations grant to this Court the discretion to award general costs up to, but not more than 10%of the amount of the judgment obtained. I see no reason that full 10% should not be awarded and therefore award general costs in thesum of $126.29. Section 36(1) of the Act also authorizes the Court to award out of pocket expenses incurred for the purposes ofadvancing this claim. I am prepared to award $100.00 for the cost of the plaintiff’s filing fee together with a further sum of $15.00 forservice fees.

Because the plaintiff resides in Estevan and had to travel to Regina for this trial, I am prepared to award the cost of travelingto and from Estevan at the rate of $0.57 per kilometre over a distance of 402 kilometres for the further sum of $229.14. In total theplaintiff is granted costs in the sum totaling $344.14. [62] For all of the foregoing reasons the plaintiff is awarded judgment in the principal sum of $1,193.39; interest in the sum of $69.87;and court costs in the sum of $344.14 for a total of $1,607.40. [63] I direct that this judgment be paid immediately. ________________________ P. Demong, J.