Date Issued: January 18, 2022

File: SC-2021-005895

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Pelcz v. Milani & Norman Auto Sales & Leasing Inc., 2022 BCCRT 68

Between:

RICHARD PELCZ

Applicant

And:

MILANI & NORMAN AUTO SALES & LEASING INC. and GLOBAL WARRANTY CORPORATION

RespondentS

INTRODUCTION

1.      This dispute is about a car warranty and compensation for loss of use during repairs. The applicant, Richard Pelcz, says his 2018 Pathfinder vehicle was towed on June 18, 2021 to the respondent Milani & Norman Auto Sales & Leasing Inc. (Milani), which had sold Mr. Pelcz the used car in February 2021. Mr. Pelcz says when he bought the car Milani also sold him a warranty, issued by the respondent Global Warranty Corporation (Global), that he never wanted or authorized. Mr. Pelcz says that since the warranty did not cover the car’s necessary repairs, which Mr. Pelcz also says Milani unreasonably delayed for a month, he should be compensated. Mr. Pelcz claims $375 for 2 car financing payments and $194 for car insurance (as compensation for the alleged repair delay), plus $2,500 for the warranty’s purchase price.

2.      Milani denies it unreasonably delayed diagnosing the car’s problem or repairing it. Milani says the car was repaired by July 15, 2021, but Mr. Pelcz did not pay and pick up the car until July 26, 2021. Milani also says when Mr. Pelcz bought the car, he chose not to have it inspected and agreed he would be responsible for all future repairs. Global and Milani say Mr. Pelcz authorized the warranty purchase and say the warranty did not cover the repairs. The respondents deny responsibility for any of the claims.

3.      Mr. Pelcz is self-represented. Milani and Global are each represented by an employee.

JURISDICTION AND PROCEDURE

4.      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.

5.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find I can fairly hear this dispute based on the submitted evidence and through written submissions.

6.      Under CRTA section 42, 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.

7.      Where permitted CRTA section 118, in resolving this dispute the CRT may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

8.      Milani submitted late evidence, namely an email from one of its employees about its dealings with Mr. Pelcz after the car was towed. I admit this late evidence as I find it relevant, and because the other parties were not prejudiced by it as they had an opportunity to respond to it.

ISSUES

9.      The issues are:

a.    Is Mr. Pelcz bound by the Global warranty terms and in particular was he coerced into buying the Global warranty?

b.    Did Milani unreasonably delay diagnosis or repair of Mr. Pelcz’s car?

c.    To what extent, if any, is Mr. Pelcz entitled to the claimed remedies?

EVIDENCE AND ANALYSIS

10.   In a civil claim like this one, as the applicant Mr. Pelcz has the burden of proving his claims, on a balance of probabilities (meaning “more likely than not”). I have only referenced below what I find is necessary to give context to my decision.

11.   As noted, Mr. Pelcz bought the used vehicle from Milani on February 18, 2021. At the outset, I note that Mr. Pelcz does not argue that Milani sold him a car that was defective or not durable. Rather, this dispute is about the Global warranty that was sold with the car’s purchase and about the length of time Milani spent diagnosing and repairing the car in June and July 2021.

The Global warranty

12.   Mr. Pelcz argues both that he did not realize he was buying the Global warranty when he bought the car from Milani, and, that he was coerced into purchasing the warranty. In the Dispute Notice issued at the outset of this proceeding, Mr. Pelcz said he needed glasses and so I infer he suggested he did not fully read the agreement. However, in his reply submission, he says he did not ask for the warranty and was not told about it “until the paperwork was presented to sign”.

13.   Milani’s February 18, 2021 motor vehicle purchase agreement in evidence shows Mr. Pelcz opted for a Global warranty of “36 months/100000 kms”. There are no other details about the Global warranty in Milani’s documentation. Mr. Pelcz submitted the separate Global warranty document, which on its face describes the warranty as “Ultimate 2 Star/ 3 year / 60,000 kms / $3,000 max per claim”. I find nothing turns on the kilometer difference in the descriptions as there is no suggestion warranty coverage was denied based on kilometers or that Mr. Pelcz relied on the kilometers coverage as described in the Milani agreement.

14.   The Milani motor vehicle purchase agreement also separately itemized $2,500 for “Optional extended veh. Warranty” plus $125 GST for the Global warranty. Mr. Pelcz also initialed under an acknowledgement that he is responsible for “all future repairs”. Further, immediately below his initials, was a pre-typed acknowledgement that Mr. Pelcz declined the opportunity to buy an extended warranty, which Mr. Pelcz did not initial. Next, the “Sales Finance Agreement” portion of the sales agreement also separately sets out $2,500 for the “warranty/service contract” plus the GST.

15.   Given Mr. Pelcz’s admission in his reply submission, I find Mr. Pelcz admits he knew he was buying a warranty (albeit just before signing the paperwork) and chose to proceed with the purchase. I also find the car’s purchase agreement clear on its face that Mr. Pelcz understood he was buying an extended warranty, and if he needed glasses and chose to proceed without them that is not Milani’s responsibility.

16.   As for the alleged coercion, I find Mr. Pelcz essentially argues he bought the warranty under duress. Duress is a defence to the enforceability of a contract. To establish duress, Mr. Pelcz must show that 1) Milani exerted pressure to such a degree that Mr. Pelcz’s true consent did not exist, and 2) there was an improper or illegitimate element to the pressure: see Dairy Queen Canada, Inc. v. M.Y. Sundae, 2017 BCCA 442.

17.   The factors the courts (and the CRT) weigh related to the first issue of coercion or consent include:

a.  Did the person object,

b.  Did the person have an alternative course available, such as an adequate legal remedy,

c.  Did the person receive independent advice, and

d.  Did the person take steps to avoid the contract?

18.   I find duress unproven. Mr. Pelcz’s alternative course was to simply refuse to buy the warranty. There is also no evidence he objected to the warranty’s purchase at the time he was given the paperwork to sign.

19.   I turn to whether the warranty covered the repairs. As noted, Global and Milani say the car’s repairs (which totalled $3,074 including $1,200 for diagnostics that Mr. Pelcz undisputedly authorized) were not covered by the Global warranty. Mr. Pelcz submitted no evidence or argument that the Global warranty did cover the work. Rather, Mr. Pelcz says when the car was being towed Milani’s “ex-owner” assured him the repairs would be covered. The submitted text message between Mr. Pelcz and the ex-owner did not provide that assurance. Even if the ex-owner had provided that assurance, I find Mr. Pelcz knew that person was not authorized by Milani to make such assurances, given he knew they were the “ex-owner”. So, I place no weight on that alleged assurance. I dismiss Mr. Pelcz’s $2,500 claim against Milani for a refund of the Global warranty purchase price.

20.   On the evidence before me, I also find Global’s warranty did not cover the repairs. Global submitted a copy of the warranty’s terms, which did not include coverage for fuel pumps or fuel injection and distribution pumps, which was what Milani repaired. Further, the Global warranty says Mr. Pelcz could cancel the warranty within 10 days, and so contrary to Mr. Pelcz’s assertion I find he is not entitled to cancellation and a refund now. There is no suggestion Global was responsible for Milani’s repair timeline, which I address below in discussing Mr. Pelcz’s claim against Milani. Given the above, I dismiss all claims against Global.

Delay in diagnosis and repair

21.   I turn then to Mr. Pelcz’s claim Milani unreasonably delayed a month in completing his car’s repair. As noted, the car was towed to Milani on June 18, 2021. Milani says its service manager spoke to Mr. Pelcz on June 21 who authorized 7 hours of diagnosis. On July 9, 2021, Mr. Pelcz’ family member authorized another 3 hours of diagnosis. Milani says the car was ready on July 15, but Mr. Pelcz did not pay and pick it up until July 26, 2021. I accept this evidence, as Mr. Pelcz does not dispute it. His essential complaint is that Milani allegedly took too long overall.

22.   Milani says its service department is busy, and that Mr. Pelcz knew this and could have taken his car elsewhere for service, given Mr. Pelcz knew when he bought the car that Milani was not responsible for the car’s future repairs. I have addressed the warranty issue above.

23.   First, I do not accept Mr. Pelcz’ assertion the car was “not even diagnosed for one month”. The car’s repairs were completed in just under a month of the car’s being towed to Milani on June 18. The evidence indicates the diagnosis process took place between around June 24 and July 9. The car’s repairs were completed on July 15. I find nothing obviously unreasonable about this overall time frame on its face. So, I find that whether the diagnosis or repairs should have been completed more quickly is a matter that requires expert evidence as it is technical and outside ordinary knowledge (see Bergen v. Guliker, 2015 BCCA 283). Here, there is no such opinion evidence critical of Milani’s timeline.

24.   I acknowledge Mr. Pelcz’ submission about mechanics who told him the diagnosis should have been included in the repair cost, but he submitted no statement in evidence. Parties are told to submit all relevant evidence. I decline to accept this hearsay evidence from the mechanics as I find it central to the dispute and there is no reasonable explanation for the absence of a written statement. I also note there is no dispute about the quality of the repair work and no claim for a refund of what Mr. Pelcz paid Milani.

25.   Second, I agree with Milani that nothing prevented Mr. Pelcz from having his car repaired elsewhere if Mr. Pelcz did not want to wait for Milani to get to his vehicle in the queue. I note Global submitted its record of its communications with Mr. Pelcz, showing that on June 21 Mr. Pelcz had called in to say he was looking at taking his car to another shop because Milani could not look at the vehicle for several days. I accept this as Mr. Pelcz did not directly dispute it. Yet, Mr. Pelcz chose to leave his vehicle with Milani and I find in doing so he accepted Milani’s timeline for diagnosis.

26.   Mr. Pelcz argues he was “instructed” by Milani’s ex-owner to have the car towed by a particular towing company and that he could have instead had it towed more locally for a free diagnosis. Yet, the text message submitted shows Milani’s ex-owner only said “I would” have the car towed by that towing company and that the warranty “probably” would cover a tow but that Mr. Pelcz could bill the tow charge to Milani. However, Mr. Pelcz does not claim reimbursement of any towing charge in this dispute. Further, as noted, Milani’s sale agreement stated Mr. Pelcz would be responsible for all future repairs and there is nothing in that agreement that indicated Mr. Pelcz would receive immediate attention if he brought the car in for repair. Further, even if I had found the Global warranty covered the repairs, there is nothing in the Global warranty document that said Mr. Pelcz would receive immediate assistance. So, I find Mr. Pelcz is not entitled to reimbursement of car finance charges or car insurance while he was without use of his car.

27.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. As Mr. Pelcz was unsuccessful, I dismiss his claim for reimbursement of paid CRT fees. The respondents did not pay CRT fees and no dispute-related expenses were claimed.

ORDER

28.   I dismiss Mr. Pelcz’s claims and this dispute.