Date Issued: February 13, 2023

File: SC-2022-004764

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Skeet v. Bannister Ventures Ltd. (dba Chilliwack Kia), 2023 BCCRT 131

Between:

WAYNE SKEET and HAYDEE SKEET

 

ApplicantS

And:

BANNISTER VENTURES LTD. (Doing Business As CHILLIWACK KIA)

 

Respondent

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      The applicants, Wayne Skeet and Haydee Skeet, bought a Kia Soul EX+ model vehicle from the respondent motor vehicle dealership, Bannister Ventures Ltd. (dba Chilliwack Kia) (Bannister). The Skeets say Bannister overcharged them unexpected and extra fees. The Skeets claim a refund of $2,204.40: $1,395 for an “All Weather Package” (which they say they did not fully receive) and $600 for a “5 Year Key & Fob Protection” fee, plus applicable taxes. Mr. Skeet represents the applicants.

2.      Bannister says it disclosed all fees and packages during the parties’ negotiation and in the final contract of sale. Bannister says it owes the Skeets nothing. Bannister is represented by an employee.

3.      For the reasons that follow, I dismiss the Skeets’ claim.

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). CRTA section 2 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.

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. Although the parties’ submissions each question the credibility of the other party to some extent, I find I can properly assess and weigh the written evidence and submissions before me, and that an oral hearing is not necessary in the interests of justice. In the decision Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not always needed where credibility is in issue. As the CRT’s mandate includes proportional and speedy dispute resolution, I find I can fairly hear this dispute through written submissions.

6.      CRTA section 42 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.

7.      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.

8.      Prior to this CRT dispute, the Skeets pursued a complaint with the Vehicle Sales Authority (VSA). Apart from a now-refunded $100 freight overcharge, the VSA did not find Bannister’s conduct was inappropriate. In any event, the VSA’s findings and conclusions are not binding on me in this contractual dispute and I have not relied on them. Contrary to the Skeets’ apparent suggestion, I also have no jurisdiction under the Business Practices Consumer Protection Act to declare that Bannister engaged in deceptive business practices.

ISSUE

9.      The issue in this dispute is whether Bannister overcharged the Skeets for their vehicle purchase, and if so, whether the Skeets are entitled to the claimed $2,204.40 refund.

EVIDENCE AND ANALYSIS

10.   As the applicants in a civil proceeding like this one, the Skeets must prove their claims on a balance of probabilities (meaning “more likely than not”). I have read all the submitted evidence and arguments but refer only to what I find relevant to provide context for my decision.

11.   On February 11, 2022, the Skeets bought a new blue Kia Soul EX+ model vehicle from Bannister, although only Mr. Skeet signed the agreement. Originally, the parties had discussed the Skeets buying a new white 2022 Kia Soul EX, but on February 2, 2022 they emailed Bannister’s salesperson CD that they wanted a blue vehicle. So, they bought the blue EX+ instead, which has more expensive trim.

12.   As noted above, at issue in this dispute are 2 items: a $1,395 “All Weather Package” and a $600 “5 Year Key & Fob Protection Fee”, plus applicable taxes. Essentially, the Skeets say these 2 things were not disclosed to them until the last minute and that they were overwhelmed at the time they signed the formal sales contract and picked up the car. The Skeets say they did not want either item and that the $600 was just an additional administration fee “disguised” as the fob protection fee. I note that before this CRT dispute began Bannister refunded the Skeets $112 for a freight overcharge.

13.   I turn next to the applicable law. Without naming it, it appears the Skeets allege Bannister failed to comply with the Motor Dealer Act Regulation (Regulation). Sections 26 and 26.1 of the Regulation say a motor dealer cannot advertise a new vehicle’s price unless the price is “the total asking price”, inclusive of accessories and optional equipment items physically attached to the vehicle, transportation charges for delivery to the dealer, and any pre-delivery and inspection service charged by the dealer. The dealer is also required to list certain information including an itemized list describing each accessory and optional equipment item attached to the vehicle. I note the CRT has no jurisdiction to assess any penalties under the Regulation.

14.   Contrary to the Skeets’ argument, I find the parties’ initial pricing discussions about the white EX model irrelevant to this dispute. I say this because it is undisputed the EX+ model cost more and because the parties’ sale agreement was for the EX+ model. I do not agree with the Skeets that there is a pattern of deception or misrepresentation by Bannister.

15.   When the Skeets decided to buy the blue Kia, they say CD quoted a $27,240 pre-tax price over the phone, which the Skeets say was based on the “Kia Canada” website pricing: $25,095 as the base price, $250 for paint, $100 for “other”, and $1,795 for delivery. However, the Skeets further submit that Bannister’s general manager NB confirmed that the $27,240 was the “full price” including freight and dealer fees but excluding taxes.

16.   The Skeets also point to a 1-page handwritten Bannister document that CD completed on February 11, 2022, which the Skeets refer to as a “financing” document and which Mr. Skeet signed. They say this was also CD’s confirmation that the “total price” was $27,240. I disagree. The document lists the vehicle’s “sale price” as “$27,240++”. I find the “++” indicated that there would be additional charges. Further, directly above that “sale price” there are typed fees listed in a box, including $500 for “finance” and $599 for “document”, along with a handwritten addition for the “All Weather Package” for $1,395. While the Skeets say they question whether the handwritten addition was on this document when Mr. Skeet signed it, I find this speculative and unproven. I also find the All Weather Package’s addition is consistent with the other documents Mr. Skeet signed on February 11, discussed below.

17.   In any event, in this contractual dispute over debt or damages, I find what matters is the parties’ signed agreement. In particular, the parties’ formal February 11, 2022 Motor Vehicle Purchase Agreement (contract) says the “total purchase price” for the EX+ was $33,400.08. Apart from the already refunded freight overcharge, it is undisputed this was the total price the Skeets paid. On the right hand side of the page, there is an itemized typed breakdown above the $33,400.08 total, including $499 for “Administrative/documentation fees”, $600 for “5 Year Key & Fob Protection”, and $1,395 for “All Weather Pkg”. This document also set out the portion of the vehicle’s price that the Skeets agreed to have financed. Bannister’s financial services manager LM and Mr. Skeet each signed the contract. Contrary to the Skeets’ apparent argument, I find the contract complied with the Regulation. While the description of what the $600 was for changed from CD’s handwritten document (discussed further below), the total price was correct.

18.   Notably, above Mr. Skeet’s signature, the contract’s 1^st page said in capital letters “THIS IS A LEGAL AND BINDING CONTRACT, READ THE ENTIRE DOCUMENT BEFORE YOU SIGN”. In this same signature area, the contract also said that Mr. Skeet acknowledged that salespersons (such as CD) did not have authority to accept an agreement on Bannister’s behalf. Further, it said that Mr. Skeet declared that he had read and understood the contract’s terms, including paragraphs 1 to 22. I note neither party provided a copy of the contract’s reverse side which I infer set out paragraphs 1 to 22. Given my conclusion below, nothing turns on it.

19.   Next, Mr. Skeet and LM also signed a separate “Agreement” with Platinum Autocare. This was apparently the formal financing agreement, which set out that Royal Bank of Canada was the secured lender. At issue is a section on the 1^st page titled “Platinum Key & Remote Exchange Service”, which set out a 60-month term for 2 keys and 2 remotes, with a handwritten “600”, which I infer refers to the $600 fob protection charge set out in the contract. The Skeets question whether the 600 was on the document when Mr. Skeet signed it. Again, I find this speculative and find the $600 charge is consistent with the other signed documentation.

20.   A party who signs a contract is generally bound by its terms, even if the signing party may not have read or understood the contract. There are certain exceptions to this, such as fraud, misrepresentation, or mistake. Another exception is the legal concept of non est factum, where a party must show that the document signed is fundamentally different from what the person believed they were signing (see: Loychuk v. Cougar Mountain Adventures Ltd., 2011 BCSC 193 at paragraphs 27 to 28). However, the Skeets must also show that they took reasonable precautions to ensure the accuracy of the document before signing it (see Araki v. Wlodyka, 1983 CanLII 3631 (BC SC)). 

21.   The Skeets say instead of charging just the $499, Bannister effectively charged them a $1,000 administration fee. They say they questioned this, noting also they never wanted to pay for key fob protection. They say Bannister’s LM told them they charge everyone this $600 fee, but that Bannister was “throwing in” the fob to soften the “non-negotiable” finance fee. Bannister says essentially the same thing: that instead of just charging them a $600 finance fee (in addition to the $499 administration fee), it offered fob protection for the $600. Bannister says it explained all the fees to Mr. Skeet, which Mr. Skeet denies though as noted he also says LM provided the explanation above. On the evidence before me, I find Bannister offered a $600 fob protection fee (replacement keys if either key was lost or stolen), and Mr. Skeet accepted it.

22.   The Skeets say that when they went to pick up the car on February 11, 2022, they were “distracted’ by the unexpected additional finance/administration/fob protection fee of $600 on the invoice. They note they had paid a $500 deposit, driven the vehicle and completed insurance and financing paperwork, and felt pressured to return to work. So, they say Mr. Skeet “signed the papers”.

23.   In short, the difficulty for the Skeets is that Mr. Skeet went ahead and signed the contract documents and completed the sale, despite having seen and questioned the $600 fob fee charge and the $1,395 All Weather Package charge. Subject to the issue of duress discussed below, I find Mr. Skeet is bound by the agreements he signed.

24.   Without using these words, the Skeets appear to argue Mr. Skeet was coerced or forced to sign the contract under duress, because they say the additional fees at issue were added “at the last minute” when they went to sign the paperwork and pick up the car. Duress is a defence to the enforceability of an agreement. In other words, if Mr. Skeet signed the contract under duress, it will not be a binding agreement. To establish duress, Mr. Skeet must prove that Bannister put him in a position where he had no realistic alternative to accept the offer (see Dairy Queen Canada Inc., v. M.Y. Sundae, 2017 BCCA 442). I do not find that to be the case here. While I accept the Skeets felt like they had made an emotional investment in buying the car and were ready to pick it up, the Skeets had a choice. They did not have to buy the car. I find duress unproven.

25.   In summary, while the Skeets suggest the paperwork they signed was confusing and inconsistent, I disagree. The $600 charge for the “5 Year Key & Fob Protection is clearly set out in the documents Mr. Skeet signed.

26.   Finally, the Skeets say that they never received the nitrogen in their tires, which they say were part of the All Weather Package, though the evidence shows they have the rubber floor mats, wheel locks, and a cargo tray that were included in the package. The Skeets say the fact their tires’ air valve cap should be green if it has nitrogen added, and not black, proves the nitrogen was not added. However, I find this is insufficient to prove the nitrogen was not added, and in any event there is no evidence before me about the nitrogen’s value. Next, it is undisputed mudflaps were not provided with the All Weather Package, which the Skeets say LM mistakenly told them were included. However, I have no evidence that the $1,395 the Skeets paid was intended to include mudflaps or that the Skeets understood mudflaps were included when Mr. Skeet agreed to pay the $1,395. I also have no evidence about the value of mudflaps. So, I find the Skeets are not entitled to any refund based on the nitrogen or the mudflaps.

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 the Skeets were unsuccessful, I dismiss their claim for reimbursement of CRT fees. Bannister did not pay CRT fees and neither party claims dispute-related expenses.

ORDER

28.   I dismiss the Skeets’ claim, and this dispute.