Date Issued: February 20, 2020

File: SC-2019-009839

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Rogers v. Calder, 2020 BCCRT 203

Between:

MICHAEL ROGERS

Applicant

And:

GORDON CALDER

Respondent

INTRODUCTION

1.      The applicant, Michael Rogers, bought a used car from the respondent, Gordon Calder. Seven days after buying the car, the applicant noticed an issue with the car’s air conditioner (AC) compressor, namely the defrost function did not work. A leak in the AC condenser was later discovered when the car was disassembled to replace the AC compressor.

2.      The applicant claims $4,159.85, the amount he paid to have the AC compressor replaced. The applicant says the respondent advertised the car as being in perfect condition when it was not, and that it was not durable for a reasonable length of time.

3.      The respondent says he was unaware of any defect in the AC system when he sold the car, which he considered to be in perfect running order. So, the respondent says he does not owe the applicant for AC repairs.

4.      Both the applicant and the respondent are self-represented.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions only, as there are no significant issues of credibility or other reasons that might require an oral hearing.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Where permitted by section 118 of the CRTA, the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

ISSUE

9.      The issue in this dispute is whether the respondent owes the applicant $4,159.85 or another amount for AC compressor repairs, because the respondent misrepresented the car’s condition and the car was not reasonably durable.

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant bears the burden of proving its claim, on a balance of probabilities. I have read all the parties’ evidence and submissions, but I have only addressed the evidence and arguments to the extent necessary to explain my decision.

11.   The applicant cited several different decisions of the tribunal and the courts in support of his arguments. I considered these decisions, although I note most are of limited applicability to this case as they involved mechanical breakdowns rather than climate control issues, and involved different types and ages of vehicles, as well as non-vehicle sales. In any event, other tribunal decisions are not binding on me, though they may provide useful guidance.

12.   The applicant says the respondent misrepresented the car’s condition. The applicant argues that the respondent advertised the car as being in perfect condition, but it was not because the AC compressor failed shortly after purchase and a condenser leak was discovered. The applicant submitted a copy of an online advertisement for the car that includes the words “perfect condition.” The applicant says he relied on the respondent’s assurance that the vehicle was in perfect condition, rather than having it professionally inspected, because there was no conveniently located service centre capable of properly inspecting the car.

13.   If a seller misrepresents a car’s condition before selling it, the buyer may be entitled to compensation. A misrepresentation is a false material statement of fact that the buyer relies on when making a purchase (see O’Shaugnessy v. Sidhu, 2016 BCPC 308).

14.   Before purchasing the car, the applicant personally inspected it and took a short test drive. The applicant says he noticed the odometer reading was higher than advertised, that there was body damage to the front bumper, and that the upholstery was soiled. Therefore, I find that the applicant knew the car was not in “perfect condition” before he purchased it, and so he did not rely on that advertisement in buying the car. Given the presence of easily noticeable defects, and the fact the car was approximately 5 years old, I also find the applicant must have known there could be other defects present. Yet he chose to purchase the car without first obtaining a professional inspection. Therefore, I find the applicant accepted the risk that there could be other problems with the car.

15.   As a result, I place little weight on the applicant’s argument that he relied on the respondent’s advertisement of a car in perfect condition. I am satisfied advertising the car in “perfect condition” was the respondent’s opinion about its overall condition given its age, and was not a warranty against all possible defects.

16.   The applicant also suggests there was a problem with the AC system when he purchased the car, and that the respondent knew about it. In contrast, the respondent says he did not think anything was wrong with the AC when he sold the car.

17.   In support of this argument, the applicant says he obtained service records for the car from a dealership, showing previous service visits. This refers to a document containing a list of “vehicle histories” for the car. A June 5, 2017 warranty service entry is titled, “A/C compressor (mechanical/electrical) Unpleasant noises”. The applicant says this is evidence that the respondent knew about an existing AC issue.

18.   According to the June 5, 2017 service entry, mechanics recharged the car’s battery and tested the car, but there is no record of an AC problem being diagnosed or AC repairs being performed. Further, there is no evidence before me showing that the respondent owned the car on June 5, 2017, or that there were any further AC symptoms until after the respondent sold the applicant the car more than 2 years later. I find the evidence does not show the respondent was aware of any AC issues at the time he sold the car. In addition, the applicant did not notice any AC problems until after he bought the car and had driven it for 7 days. This supports the conclusion that the respondent was not aware of any problems, since they were not readily apparent until at least 7 days after purchase.

19.   The applicant admits the AC condenser leak was a latent defect, which was not discoverable until the car was disassembled to replace the AC compressor. Also, if there was an unknown AC compressor defect at the time of purchase, I find it was either a patent defect that the applicant could have discovered by a professional inspection, or a latent defect that the respondent was unaware of. The respondent is not responsible for either type of unknown defect.

20.   Therefore, on the evidence before me, I find the applicant has not proven the respondent misrepresented the condition of the car’s AC system.

21.   What about the applicant’s argument the car was not reasonably durable? Private car sales, such as this one, are generally “buyer beware.” This means the buyer is expected to assess the vehicle’s condition before purchasing it (see Rusak v. Henneken [1986] B.C.J. No. 3072 (S.C.) at paragraphs 17-18).

22.   In contrast to the applicant’s submission, I find the “buyer beware” principle is applicable to this sale. However, it is limited by section 18(c) of the Sale Of Goods Act (SGA). That section states that goods sold must be durable for a reasonable period with normal use and considering the surrounding circumstances of the sale. The applicant says the car’s AC should not have stopped working so soon after the car was purchased, and that the respondent violated the implied warranty of durability under section 18(c).

23.   Determining whether the car was reasonably durable under the SGA involves an assessment of the facts in the circumstances of this dispute. In Sugiyama v. Pilsen, 2006 BCPC 265, the court identified several factors to consider when determining whether a vehicle is durable for a reasonable period, including its age, mileage, type of use, price, reason for defective performance, and any express warranties. In Sugiyama, the court determined a vehicle was durable for a reasonable time despite breaking down after driving little more than 600 kilometres, because it was 8 years old, had been driven more than 140,000 kilometres, and was sold for $5,000.

24.   The applicant says the AC problem rendered the car undriveable because of reduced visibility due to poor defroster performance, which was dangerous. I place little weight on this submission because it is not supported by photographs, mechanic statements, or any other evidence. The applicant did not explain why he could not scrape or wipe the windows if necessary, which would be inconvenient but would not render the car undriveable.

25.   The applicant also says his mechanic advised him not to use the vehicle without repairing it, as he risked even greater failure and repair expense. The mechanic’s submitted repair estimate and invoices do not recommend against driving the vehicle. In text messages to the applicant, the mechanic suggested repairing the condenser leak, or refrigerant would slowly escape, which would place additional stress on the newly replaced compressor. I find that even if the applicant had performed no AC repairs, the AC compressor failure and condenser leak did not render the car undriveable or present a risk of additional AC failure. The evidence only shows a risk of future AC failure if the AC compressor was replaced without also repairing the AC condenser leak.

26.   There is no evidence that the car had any mechanical problems after the applicant bought it. The only apparent defect it developed was an AC failure 7 days after purchase. While I acknowledge this might have rendered the car’s defrost function less effective than usual, I find the car remained safe to drive and mechanically sound. According to the applicant, the car was 5 years old and had been driven approximately 90,000 kilometres when he purchased it for $20,000, which was in the usual price range for cars of that model and age. The car had visible defects in the front fender and upholstery. Despite these defects, the applicant was satisfied with the state of the vehicle following a personal inspection and short test drive, and declined to have it professionally inspected. Overall, although an AC issue arose 7 days after purchase, I find the car was durable for a reasonable period, and so there was no breach of warranty under the SGA.

27.   To summarize, the applicant has not proven a misrepresentation or a breach of an implied warranty. Therefore, he is not entitled to reimbursement of costs related to replacing or repairing the car’s AC compressor. I dismiss the applicant’s claims.

28.   The applicant was unsuccessful. In accordance with the CRTA and the tribunal’s rules, I find the applicant is not entitled to reimbursement of tribunal fees. No dispute-related expenses were claimed.

ORDER

29.   I dismiss the applicant’s claims and this dispute.