File: SC-2020-006892
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Moldenhauer v. Merlo, 2021 BCCRT 82
Between:
KATHERINE MOLDENHAUER
Applicant
And:
CAMILLE MERLO
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Kristin Gardner |
INTRODUCTION
1. This dispute is about a private used care sale.
2. The applicant, Katherine Moldenhauer, bought a 2005 Chrysler PT Cruiser (car) from the respondent, Camille Merlo, on June 12, 2020 for $2,600. Ms. Moldenhauer says the day after she purchased the car, it was leaking oil, started overheating, and was ultimately diagnosed with a broken head gasket. She says Miss Merlo misrepresented the car was in good condition and Miss Merlo must have known there were issues with it that she did not disclose. She also says the car was not reasonably durable. Ms. Moldenhauer claims $3,000 for the cost of the car repairs.
3. Miss Merlo denies that she misrepresented the car’s condition and says it was in good working order when she sold it. She says she provided Ms. Moldenhauer with the opportunity to have the car inspected and to provide receipts of the car’s maintenance history, which Ms. Moldenhauer declined. Miss Merlo says she does not owe Ms. Moldenhauer anything.
4. Each of the parties is 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). Section 2 of the CRTA states that 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 the dispute’s parties that will likely continue after the CRT process has ended.
6. Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, both parties to this dispute call into question the credibility, or truthfulness, of the other. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. I note the decision in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 28, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.
7. Section 42 of the CRTA says 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.
Preliminary Matter – Anonymization Request
9. Miss Merlo asks the CRT to anonymize her name in this decision. She says that this dispute involves the sale of her late mother’s vehicle and sharing the personal details of the sale will cause her further pain and suffering. The CRT’s decisions generally identify the parties because these are considered open proceedings, and to provide transparency and integrity in the justice system. The CRT generally anonymizes parties only in certain limited situations, such as disputes that involve a vulnerable party, such as a child, or which involve sensitive information, such as medical issues. Other than these circumstances, the CRT generally discloses the parties’ names.
10. While I acknowledge the car’s sale circumstances may have been emotionally difficult for Miss Merlo in light of her mother’s passing, I find she has not established that the need to protect personal information outweighs the goal of having transparent proceedings. I decline to anonymize the published version of my decision.
Preliminary Matter – Late Evidence
11. Ms. Molderhauer submitted late evidence, after this dispute was already referred to me for a decision. The evidence consisted of a January 14, 2021 email attaching 3 photographs of the car, which appear to depict it on fire. I directed CRT staff to provide Miss Merlo with an opportunity to review the late evidence and Miss Merlo provided submissions in response. Consistent with the CRT’s mandate that includes flexibility, I find the late evidence does not result in any prejudice to Miss Merlo, so I allow it and have considered it in my decision below.
ISSUE
12. The issue in this dispute is whether Miss Merlo either misrepresented the car or breached an implied warranty of durability in selling it, and if so, what is the appropriate remedy.
EVIDENCE AND ANALYSIS
13. In a civil proceeding like this one, the applicant Ms. Moldenhauer bears the burden of proving her claims on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.
14. It is undisputed that Ms. Moldenhauer first responded to Miss Merlo’s Craigslist ad about the car on June 8, 2020. Both parties submitted different versions of the Craigslist ad. Ms. Moldenhauer’s submitted version is incomplete, as it is cut off at the bottom, and so I find it is unreliable evidence of the ad as it appeared on Craigslist. However, I also find from the evidence that Miss Merlo updated the ad at some point after Ms. Moldenhauer made an offer on the car, but the extent of the changes made are not clear. Therefore, I do not place much weight on either version of the ad submitted in evidence.
15. In any event, the parties agree that the car’s ad Ms. Moldenhauer responded to, included: a firm $2,800 price, 138,735 kilometres, “new radiator fan assembly, tires & battery”, “regular maintenance”, “lady driven”, and a “good” condition.
16. It is undisputed that the car was uninsured, so Ms. Moldenhauer did only a short test drive within Ms. Merlo’s cul-de-sac on June 12, 2020, the day she purchased and took possession of it. Ms. Moldenhauer says because the car was uninsured, it was impractical to do a longer test drive or to get an inspection. However, I find Ms. Moldenhauer could have requested temporary insurance be put on the car for the purpose of obtaining an inspection and further test drive, had she wished.
17. The parties agree that Miss Merlo reduced the purchase price to $2,600 on account of 3 known defects requiring repair, including: a rear taillight needing replacement, a broken windshield sprayer on one side, and an electric side mirror adjuster that was not working (but that could be moved manually).
18. Ms. Moldenhauer says she discovered oil leaking from the car and that it overheated while driving on June 13, the day after she bought it. She says she had to stop 3 times to put water in the radiator and let it cool down before carrying on. The evidence shows that Ms. Moldenhauer continued to drive the car on June 14, when she says it overheated again. Ms. Moldenhauer say the car stalled on the way to a service centre on June 15, but she was able to get the car restarted.
19. Ms. Moldenhauer submitted a June 17, 2020 invoice from the service centre’s initial inspection of the car. The comments on the invoice stated that a visual inspection found no issues, but after a test drive the car overheated under load. It also stated that coolant was leaking into the combustion chamber. I infer from the other invoice comments that a blown head gasket was thought to be the likely cause.
20. Ms. Moldenhauer also submitted a June 17, 2020 quote from the service centre for repairs totaling $3,813.25. The quote included replacing the engine head gasket, replacing the timing belt, charges for miscellaneous hoses and clamps, and other charges for “re-torque” and “machine” that are not otherwise explained. Ms. Moldenhauer says she found a “backyard mechanic” that verbally quoted her $800 to $1,200 for the repairs, so she had the car towed to his garage. Ms. Moldenhauer says she paid over $2,000 for the towing costs and repairs, but she does not specify what repairs were completed, and she did not submit a statement from the mechanic or an invoice showing the exact amount she paid.
21. Ms. Moldenhauer submits that despite the repairs done, the car is still not drivable because the tires are not roadworthy, the car stalls while driving, and it is leaking oil. As noted above, Ms. Moldenhauer also submitted late evidence of an email attaching photographs of the car showing smoke coming from under the hood and one with firefighters around the car after apparently dousing it with water. Ms. Moldenhauer’s email stated that she had insured the car to have it looked at because it was “leaking”. However, I find there is no evidence before me about how much the car had been driven before the photographs were taken and there is no evidence about what caused the apparent fire. Therefore, I place very little weight on the late evidence.
22. Ms. Moldenhauer says that Miss Merlo misrepresented the car’s condition and it was not reasonably durable. She seeks $3,000 for her repair expenses.
23. I turn to the relevant law.
Buyer Beware and the Sale of Goods Act
24. Apart from misrepresentation that I discuss below, the ‘buyer beware’ principle largely applies to a private used vehicle sale. This 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.
25. 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.
26. 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.
27. Applying the factors in Sugiyama, I find that Ms. Moldenhauer has not proven Miss Merlo breached the implied warranty of durability. The car was 15 years old, had almost 140,000 kilometres on the odometer, and was purchased for only $2,600. Ms. Moldenhauer test drove the car and drove it home after the purchase without any concerns about its roadworthiness. I also find from the parties’ submitted text messages leading up to the car’s purchase, Ms. Moldenhauer knew the car had belonged to Miss Merlo’s late mother and it had essentially been undriven for 2 years.
28. Further, the evidence shows that Ms. Moldenhauer’s mechanic advised her that the car’s initial problem was a faulty thermostat. Miss Merlo argues that Ms. Moldenhauer may have caused the blown head gasket by continuing to drive the car when it was overheating, and that a faulty thermostat is a relatively inexpensive repair. While neither party filed any expert evidence about what caused the blown head gasket, bearing in mind that Ms. Moldenhauer bears the burden of proof, I find she has not proven the cause of the car’s blown head gasket was not the result of her own actions.
29. I note that in Wanless v. Graham, 2009 BCSC 578, a case involving a 10-year old car sold for $2,000, the court held 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. Moldenhauer’s used car purchase. Within the context of this sale, I find the car was reasonably durable and there was no breach of warranty under the SGA.
Misrepresentation
30. 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.
31. Ms. Moldenhauer says she relied on Miss Merlo’s representation that Miss Merlo’s father had recently done a lot of work on the car and that several people had looked over the car and were impressed with its condition. I infer that Ms. Moldenhauer is suggesting Miss Merlo misrepresented that the car was in good condition, as stated in the ad. Ms. Moldenhauer relies primarily on documentation about the car’s maintenance history that she received after the sale, which she says shows the car had pre-existing issues that were not disclosed to her.
32. I pause to note that Miss Merlo says she offered this documentation to Ms. Moldenhauer before the sale. Miss Merlo says Ms. Moldenhauer declined to take the receipts at the time of purchase, but Ms. Moldenhauer says she understood they were in the car’s glove compartment. Either way, I find Ms. Moldenhauer knew the receipts were available but chose not to review them before purchasing the car. Therefore, I find Miss Merlo was not attempting to hide the car’s maintenance history, so her failure to mention specifics of the documents’ contents to Ms. Moldenhauer before the sale does not itself constitute a misrepresentation.
33. In any event, the documentation includes a 2017 repair quote for issues including a coolant leak, engine overheating, oil leaks, and a leaking radiator. Ms. Moldenhauer submits this shows the car had known problems, as there is no evidence these repairs were completed. Miss Merlo submits the repairs were completed in 2017, although she did not provide evidence of those repairs. Miss Merlo relies on a January 10, 2018 invoice for an oil change, that included a 21-point inspection. The relevant inspection points noted that the car’s oil and oil filter were changed, the radiator and transmission fluid levels were okay, and in the comments section, it specifically noted “no leaks”. I find it is more likely than not that the issues in the 2017 quote were repaired, given none of the issues were noted in the 2018 oil change inspection.
34. Ms. Moldenhauer submits that 2 mechanics told her that the car’s issues would have been apparent to the previous owner (Miss Merlo). However, Ms. Moldenhauer did not provide statements from these mechanics. Further, Miss Merlo says she drove the car on a temporary permit for at least 40 minutes a few weeks before listing the car for sale, had the engine running for about an hour the weekend before the sale, and drove the car around the block twice herself before Ms. Moldenhauer bought it. Miss Merlo says there were no issues with the car she was aware of, other than the 3 she disclosed to Ms. Moldenhauer at the time of purchase.
35. Miss Merlo specifically denies there was any evidence of an oil leak before Ms. Moldenhauer bought the car. Miss Merlo filed a photograph of the driveway where the car had been parked and a video that she took of Ms. Moldenhauer driving the car away. I find there is no obvious evidence of an oil leak on Miss Merlo’s driveway when Ms. Moldenhauer purchased the car. Overall, I find Ms. Moldenhauer has not proven Miss Merlo misrepresented that the car was in good condition.
36. Ms. Moldenhauer also says Miss Merlo stated the car had a new battery and tires in the ad, but that this turned out not to be the case. Ms. Moldenhauer relies on an invoice in the car’s maintenance records for a battery purchased in 2014. However, she provided no evidence that the 2014 battery was still installed in the car. Miss Merlo filed a receipt for a battery purchased in 2019, and it is undisputed that the car was not driven between then and listing it for sale. On the evidence before me, I find that Miss Merlo did not misrepresent the battery.
37. Ms. Moldenhauer also filed what appears to be a quote or invoice for tires with the comment: “front tires are worn out and at wear bars-cracking-appears lack of rotation-rear tires have lots of tread but are hardening-all tires were manufactured in 2013”. However, there is no information on the document identifying that the comments relate to the car here. Yet, even if I did find the car’s tires were old or worn at the time of sale, I find that would be a patent defect, which is a defect that can be discovered by conducting a reasonable inspection and making reasonable inquiries. A seller is not obligated to disclose patent defects to a buyer, but they must not actively conceal them: Cardwell v. Perthen, 2007 BCCA 313. It is undisputed that Ms. Moldenhauer had the opportunity to inspect the tires for herself when she purchased the car and there is no evidence that she questioned the tires’ condition at the time. I find Ms. Moldenhauer has not proven Miss Merlo attempted to conceal or misrepresented the age or condition of the tires.
38. Finally, Ms. Moldenhauer submits that Miss Merlo failed disclose that the car had been in an accident with over $2,000 damage, which she discovered after obtaining a Carfax report. However, Ms. Moldenhauer did not file a copy of the Carfax report or the Transfer/Tax Form where Miss Merlo allegedly made the misrepresentation. Even if Ms. Moldenhauer had proven Miss Merlo made this misrepresentation, I find it unlikely that Ms. Moldenhauer would have decided not to buy the car if that fact had been disclosed. In other words, I find Ms. Moldenhauer has not proven she relied on that representation in deciding to purchase the car.
39. I acknowledge that Ms. Moldenhauer sought assurances from Miss Merlo that there were no foreseeable issues with the car’s working order before the purchase. However, I find there is no evidence Miss Merlo knew or should have known the car had any defects. I find the evidence does not show Miss Merlo fraudulently or negligently misrepresented the state of the car.
40. In summary, I find Ms. Moldenhauer has failed to prove a breach of warranty or a misrepresentation. I dismiss Ms. Moldenhauer’s claims.
41. 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. Miss Merlo was successful but did not pay fees or claim expenses. I dismiss Ms. Moldenhauer’s claim for reimbursement of CRT fees.
ORDER
42. I order Ms. Moldenhauer’s claims and this dispute, dismissed.
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Kristin Gardner, Tribunal Member |