Date Issued: November 13, 2020

File: SC-2020-004483

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Medley v. Osman, 2020 BCCRT 1280

Between:

VERONA MEDLEY

Applicant

And:

SHERIF OSMAN and ISSA ANASSALEM MOHAMMAD

Respondents

INTRODUCTION

1.      This dispute is about a private used car sale. The applicant, Verona Medley, bought a used Mazda 5 vehicle (car) from the respondents, Sherif Osman and Issa Anassalem Mohammad. Ms. Medley identified Issa Anassalem Mohammad as the named respondent car owner, which is reflected in the style of cause above. However, this individual identified themselves as Anas Salem Mohammad Ghaleb Issa in their Dispute Response filed at the outset of this proceeding. So, I will refer to this respondent as Anas Issa in my decision.

2.      Anas Issa was the car’s registered owner and Mr. Osman represented them both in the transaction. Ms. Medley says Mr. Osman misrepresented the car as being in good condition but the car required $1,698.59 of repairs shortly after purchase. She also says Mr. Osman misrepresented the car as being a 2012 model when it was allegedly a 2011 model. Ms. Medley asks for reimbursement of the $1,698.59 repair costs.

3.      Mr. Osman says he was not aware of any problems with the car when it was sold. The respondents deny responsibility for Ms. Medley’s repairs.

4.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT 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 CRT 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, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

7.      The CRT 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 CRT 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, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Did the respondents breach an implied warranty of durability in selling the car? If so, what is the appropriate remedy?

b.    Did the respondents misrepresent the car? If so, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, as the applicant Ms. Medley bears the burden of proof, on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.

11.   It is undisputed that the respondents privately sold a used Mazda 5 car to Ms. Medley. Mr. Osman says the car had over 250,000 kilometers on the odometer. Ms. Medley says the car was advertised as being a 2012 model but she later discovered that the car was allegedly manufactured in 2011. As discussed below, I find that the car was a 2012 model.

12.   The parties agree that Anas Issa was the registered owner and the car’s seller but Mr. Osman communicated with Ms. Medley on Anas Issa’s behalf. The respondents say Mr. Osman previously owned the car and he was more familiar with it than Anas Issa. Based on these submissions, I find that Mr. Osman was acting as Anas Issa’s agent. As such, the respondents are jointly and severally responsible for Mr. Osman’s conduct.

13.   It is undisputed that Ms. Medley met with Mr. Osman on April 22, 2020 to view the car. Ms. Medley took a test drive and she says she heard a sound coming from a wheel and the car accelerated quickly when she pressed the gas pedal. Ms. Medley says she asked Mr. Osman about these issues and he replied that this may have been the result of the car not being driven recently. In the absence of a mechanic’s opinion, I am unable determine that the car was defective when Ms. Medley purchased it based solely on these test drive observations. I find expert opinion evidence is necessary, because the subject matter is technical and outside the knowledge and experience of the ordinary person (see Bergen v. Guliker, 2015 BCCA 283).

14.   Mr. Osman says he told Ms. Medley everything he knew about the car. He says he told her that he recently repaired the car including changing the front brake pads, repairs to the CV axles, and replacing an air intake sensor. Mr. Osman says these repairs were done by a mechanic. Based on the parties’ submissions, I find that Mr. Osman told Ms. Medley about these recent repairs.

15.   It is undisputed that Ms. Medley purchased the car for $4,000 on April 22, 2020 without getting a mechanical inspection. The transaction was confirmed with a handwritten receipt signed by Ms. Medley and Mr. Osman.

16.   Ms. Medley says the check engine warning light was displayed on April 30, 2020 and her nephew, who is training to become a mechanic, tested the car at his high school. On May 7, 2020, Ms. Medley sent Mr. Osman vehicle diagnostic scan results showing error codes in the car’s rain sensor, all 4 wheel units, the tire pressure monitor, the intake manifold runner control, the variable tumble shutter valve and the antilock brakes.

17.   Ms. Medley says she went to a car dealership on May 21, 2020 and they told her that a part Mr. Osman replaced had jammed. The dealership provided a diagnostic report that said the solenoids had been replaced and the intake runners were stuck which caused fuel to trim off. Although Ms. Medley did not provide a mechanic’s statement explaining the nature of these mechanical issues, I accept that interference in the car’s fuel supply was problematic. However, I find that the diagnostic report does not show that the car was defective when purchased, and as discussed below, I find that the car was reasonably durable when it was sold.

18.   Ms. Medley provided an invoice of $1,514.98 from the dealership to replace the manifold and the intake manifold solenoid. The invoice also included unrelated repairs which Ms. Medley is not claiming compensation for. Ms. Medley provided a receipt showing that she paid for the repairs on June 6, 2020.

Sale of Goods Act

19.   Ms. Medley does not address why she did not request a mechanical inspection of the car. I find Ms. Medley chose to buy the car without having a mechanical inspection done.

20.   Apart from the alleged misrepresentations that I discuss below, the principle of ‘buyer beware’ largely applies to a private used vehicle sale. It means that the buyer assumes the risk that the purchased vehicle might be either defective or unsuitable to their needs (Rusak v. Henneken [1986] B.C.J. No. 3072 (S.C.) at paragraphs 17-18).

21.   However, in British Columbia the ‘buyer beware’ principle is limited by the warranties set out in section 18 of the Sale of Goods Act (SGA). Section 18(c) applies to private sales like this one and requires that the goods sold be durable for a reasonable period with normal use, considering the sale’s surrounding circumstances. Whether or not the car was reasonably durable as required by the SGA involves an assessment of the facts in context to determine what is reasonably durable in the circumstances (Drover v. West Country Auto Sales Inc., 2004 BCPC 454).

22.   In Sugiyama v. Pilsen, 2006 BCPC 265, the BC Provincial Court applied section 18(c), and said there were a number of factors to consider when determining whether a vehicle is durable for a reasonable period of time, including the age, mileage, price, the use of the vehicle, and the reason for the breakdown. In Sugiyama, the claimant bought an 8-year old car with over 140,000 kilometers on the odometer. After driving it for only 616 kilometers, the car broke down. The court determined that the car was roadworthy and could be safely driven when it was purchased. There were no apparent defects in the car. Therefore, even though the car broke down after very little driving, the court found that it was durable for a reasonable time.

23.   I find that the facts before me are similar to Sugiyama. The car was 8-years old, had a high odometer reading with over 250,000 kilometers and a relatively low cash value. In this dispute, the check engine light came on after 8 days. Ms. Medley says she did not drive long distances before the check engine light came on. While I accept that the car developed problems after little driving, given the car’s age and high mileage I find that car was durable for a reasonable time.

24.   I have also considered the decision in Wanless v. Graham, 2009 BCSC 579, a case involving a 10-year old car sold for $2,000. The BC Supreme Court said that people who buy old used vehicles must expect defects in such vehicles will come to light at any time. I find this applies to Ms. Medley’s used car purchase.

25.   Within the context of this sale of an old car with high mileage, I find the car was reasonably durable and there was no breach of warranty under the SGA.

Misrepresentation

26.   Ms. Medley says Mr. Osman misrepresented the car’s condition. If a seller misrepresents a vehicle’s condition, the buyer may be entitled to compensation for losses arising from that misrepresentation. A “misrepresentation” is a false statement of fact made during negotiations or in an advertisement that has the effect of inducing a reasonable person to enter into the contract. The seller must have acted negligently or fraudulently in making the misrepresentation, the buyer must have reasonably relied on the misrepresentation to enter into the contract, and the reliance “must have been detrimental in the sense that damages resulted” (see Queen v. Cognos Inc., [1993] 1 SCR 87 at paragraph 110).

27.   Ms. Medley says that Mr. Osman described the car as being in good condition and recently repaired. Based on the evidence and the parties’ submissions, I am satisfied that Mr. Osman made these statements.

28.   Ms. Medley says she relied on Mr. Osman’s knowledge of the vehicle. However, this sale was buyer beware except for the implied durability warranty discussed above. There is no evidence that Mr. Osman knew or ought to have known the car was defective. So, I find that Ms. Medley has failed to prove that Mr. Osman misrepresented the car’s condition.

29.   Ms. Medley also says Mr. Osman mispresented the car’s model year. Ms. Medley says the car was advertised as a 2012 model but it was actually a 2011 model. Ms. Medley provided a photograph of a seatbelt which says it was manufactured in 2011. However, the dealership service records and the vehicle diagnostic code scan results say the car is a 2012 model. Mr. Osman also says the vehicle registration records, which were not provided, show that the car is a 2012 model. The only evidence that Ms. Medley provided to show the model year was the seatbelt which I do not find persuasive because there is no evidence before me showing that the manufactured date of the car’s seatbelts is the same as the car’s model year. Based on dealership service records and the diagnostic scan results, I find that the car was a 2012 model as advertised.

30.   For the above reasons, I dismiss Ms. Medley’s claim.

31.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Since Ms. Medley was not successful in this dispute, I find that she is not entitled to reimbursement of her CRT fees. The respondents did not pay fees or claim dispute-related expenses.

ORDER

32.   I dismiss Ms. Medley’s claims and this dispute.