Date Issued: October 19, 2023
File: SC-2022-010239
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Nevin v. Baby, 2023 BCCRT 893
Between:
MIA WREN NEVIN
Applicant
And:
JESTIN KARUKAPARAMBIL BABY
Respondent
REASONS FOR DECISION |
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Tribunal Member: |
Christopher C. Rivers |
INTRODUCTION
1. This dispute is about a private used car sale. The applicant, Mia Wren Nevin, purchased a used 2002 Honda Accord (car) from the respondent, Jestin Karukaparambil Baby, for $5,600.
2. Ms. Nevin says approximately one month after buying the car, she discovered it needed transmission repairs. She claims Mr. Baby misrepresented the car’s condition and that the car was not reasonably durable. Ms. Nevin says she has spent $1,100.68 on car repairs and estimates she will need to pay a further $5,000 in parts and labour to rebuild and install the transmission. However, Ms. Nevin limits her claim to $4,900, which is under the Civil Resolution Tribunal’s (CRT) small claims monetary limit of $5,000.
3. Mr. Baby says they did not misrepresent the car’s condition and were not aware of any transmission problems when they sold it. They ask me to dismiss Ms. Nevin’s claim.
4. The parties are each self-represented.
5. For the reasons that follow, I dismiss Ms. Nevin’s claim.
JURISDICTION AND PROCEDURE
6. These are the CRT’s formal written reasons. 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.
7. 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. Here, I find I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.
8. 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.
9. 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.
10. As a preliminary matter, I note the Dispute Notice was issued against Karukaparambil Baby Jestin, based on Ms. Nevin’s application for dispute resolution. However, Mr. Baby identified themselves as Jestin Karukaparambil Baby in their Dispute Response. Ms. Nevin has consented to amend the style of cause to reflect Mr. Baby’s correct name. So, I have amended the style of cause above to show Jestin Karukaparambil Baby as the respondent.
ISSUE
11. The issue in this dispute is whether Mr. Baby misrepresented the car’s condition, failed to disclose a known latent defect, or breached an implied warranty of durability.
EVIDENCE AND ANALYSIS
12. In a civil proceeding like this one, Ms. Nevin must prove her claims on a balance of probabilities. This means “more likely than not.” I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.
13. On September 22, 2022, Ms. Nevin test drove the car after responding to an ad on Kijiji. Ms. Nevin says she did not have any issues with the car during the test drive and chose to buy it. Ms. Nevin says she chose not to pursue a car inspection since the ad included a ‘clean’ inspection report from August 18, 2022.
14. The parties agreed on a sale price of $5,600, an amount that included a $100 reduction from the advertised price to account for cosmetic damage to the front of the car. Ms. Nevin paid Mr. Baby a deposit the same day, and the parties completed the sale on September 23, 2022.
15. Ms. Nevin says she was first alerted to a potential problem when she took the car for an oil change on October 12, 2022. At that time, she says the oil change technician told her the transmission fluid was black and advised her to take the car to a mechanic. On October 25, 2022, she says a mechanic told her the transmission was irreparable, with non-functional 3rd and 4th gears. Ms. Nevin says the mechanic flushed the transmission twice to allow the car to run and replaced the master brake cylinder.
16. I note that there is no evidence from the oil change technician, however Ms. Nevin provided an October 25, 2022 invoice from Jay’s Service, an auto repair company. The invoice notes the transmission fluid is black and in poor condition, but also reads “… the transmission seemed to operate OK on several road tests, if it continues to operate OK, the fluid will require replacement several times due to the significant discolouration – however, the transmission reliability is most likely compromised.”
17. Ms. Nevin also supplied a note she says was prepared by the mechanic that says “Use D3 rather D4 when Driving in town,” but the note contains no information about the author and is on the letterhead of a different company. The note itself seems to suggest that the 3rd gear is functional, contrary to Ms. Nevin’s submission, and there is no other evidence that says the 3rd and 4th gear are non-functional.
The applicable law
18. It is well-established that in the sale of used vehicles, the general rule is “buyer beware.” This means that a buyer is not entitled to damages, such as repair costs, just because the vehicle breaks down shortly after the sale. Rather, a buyer who fails to have the vehicle inspected, as Ms. Nevin failed to do, is subject to the risk that they did not get what they thought they were getting and made a bad bargain.
19. To be entitled to compensation, the buyer must prove fraud, negligent misrepresentation, breach of contract, breach of warranty, or known latent defect (see Mah Estate v. Lawrence, 2023 BCSC 411). As the applicant, Ms. Nevin must show that “buyer beware” does not apply because one of these conditions exists. I find Ms. Nevin argues misrepresentation and latent defect, and breach of implied warranty under the Sale of Goods Act (SGA).
Misrepresentation
20. 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. If a seller misrepresents the vehicle, either fraudulently or negligently, the buyer may be entitled to compensation for losses arising from that misrepresentation.
21. Neither party provided a copy of the original Kijiji ad. Mr. Baby provided a copy of a Facebook Marketplace ad they say is the same. Ms. Nevin does not dispute Mr. Baby’s statement, so I accept it is the same ad.
22. Ms. Nevin says she chose to purchase the vehicle on the basis of Mr. Baby’s verbal representations about the car’s condition and the fact the August inspection report was ‘clean’.
23. Ms. Nevin is inconsistent in how she describes Mr. Baby’s representations about the car’s condition. In one place, Ms. Nevin says Mr. Baby told her the car was in “good running condition.” In other places, Ms. Nevin says Mr. Baby told her the car was in “excellent condition” and “good condition.” Mr. Baby says they drove the car prior to sale without problem and told Ms. Nevin it was “running fine.”
24. The first challenge for Ms. Nevin is that her descriptions of Mr. Baby’s representations about the car’s condition vary. I find she cannot prove she relied upon Mr. Baby’s representations when her description of the representations is so wide-ranging. Even if I were to accept that she relied upon Mr. Baby’s representations, I find each party had different, but reasonable, understandings of what Mr. Baby meant.
25. I accept Mr. Baby honestly believed the car was in fine running condition when they sold it, as it was running without problems. Ms. Nevin herself says she did not notice any problems with the car during the test drive, and that she first learned of potential transmission problems when the car went in for an oil change. I find this supports Mr. Baby’s statement that the car was not showing any problems before sale.
26. Further, I find since Ms. Nevin only discovered the potential transmission issues when she took the car for an oil change, there were no apparent issues in the weeks immediately after the sale.
27. Ms. Nevin also argues that Mr. Baby misrepresented how long they owned the car before sale. She says Mr. Baby verbally told her they bought the car in March 2022, when they actually bought it on August 19, 2022. Ms. Nevin says had she known Mr. Baby had bought the car in August, not March, she would have insisted on her own inspection.
28. Finally, Ms. Nevin says Mr. Baby misrepresented the inspection report. She says Mr. Baby initially told her that Mr. Baby had sought the inspection to help with the car’s sale, meaning the report was done at Mr. Baby’s request. She says Mr. Baby later told her the inspection report was done prior to Mr. Baby’s own purchase of the car in August. Ms. Nevin says if she had known the inspection was not for the purpose of selling the vehicle, she would have insisted on her own inspection, or not completed the sale.
29. Mr. Baby denies Ms. Nevin’s allegations. Mr. Baby says they told Ms. Nevin they bought the car in August and had the inspection done at the same time. Mr. Baby says they uploaded the Carfax and inspection reports to their ads. As noted above, neither party has a copy of the Kijiji ad, but the Facebook Marketplace ad includes a picture of the inspection report. It also includes text stating “Carfax report available” and “Inspection report available (uploaded with the other photos).”
30. Even if Mr. Baby did say they purchased the car in March, or that they had the car inspected for the purposes of sale, Ms. Nevin does not explain why this would have changed her decision about seeking an inspection. I note this position is inconsistent with her original statement that she did not pursue an inspection as one had been done in August.
31. Ms. Nevin admits that she saw both reports, so I find both were available to her. The Carfax report shows ownership changes in each of March 2022 and August 2022. The inspection report is dated August 19, 2022. I find it unlikely Mr. Baby would say they bought the car in March while providing a report that shows the most recent change of ownership was in August.
32. The inspection report does not provide any information about the transmission, other than noting that the fluid levels and condition are ‘OK’. There is no evidence to explain how long it would take for the transmission fluid to turn black or how this would indicate a problem with the transmission, so I find nothing turns on the contents of the report.
33. As a further matter, Ms. Nevin says she only received one page of the inspection report, despite there apparently being more pages available. The photo of the inspection report shows a ‘folded’ corner, which suggests more pages may be attached. However, it is not clear from the photos that any additional pages are part of the report, and there is no evidence Ms. Nevin asked to see any additional pages before sale.
34. I dismiss the misrepresentation aspect of Ms. Nevin’s claim.
Latent defect
35. A latent defect is one that cannot be discovered by reasonable inspection, as opposed to a patent or obvious defect. A seller who is aware of a latent defect and fails to disclose or conceals it may be liable for damages. In Mah Estate, the court applied this concept to a private used car sale.
36. As noted above, Ms. Nevin says she chose not to pursue an inspection as there was a clean inspection report for the car from August 2022. In her argument, however, Ms. Nevin says she requested an opportunity to get an inspection, but that Mr. Baby would not ‘hold the car’ for her. I find that in either case, Ms. Nevin chose to complete the sale without an inspection on the basis of the information she had at the time.
37. The important point is that there is no evidence Mr. Baby was aware of any issue with the transmission at the time of sale. There is no suggestion Mr. Baby concealed any defects.
38. So, I dismiss the latent defect aspect of Ms. Nevin’s claim.
Breach of SGA implied warranty
39. Section 18 of the SGA sets out 3 warranties implied into contracts for the sale of goods. I find only the implied warranty of durability in section 18(c) applies to this private used car sale. That section warranties that goods will be durable for a reasonable period with normal use, considering the sale’s context and the surrounding circumstances. See: Drover v. West Country Auto Sales Inc., 2004 BCPC 454
40. In Sugiyama v. Pilsen, 2006 BCPC 265, the court applied the SGA section 18 warranty to a used car sale. The court noted that the seller of a used vehicle cannot guarantee the vehicle’s future performance, and that a buyer must expect problems at some point. The court also found that the older the vehicle, the more likely it will break down. For an older vehicle, if it is “roadworthy” when purchased, it is likely to be considered reasonably durable, even if it breaks down shortly afterwards. I find these principles apply here, where the car purchased was approximately 20 years old and had been driven approximately 144,000 kilometers.
41. Unlike in Sugiyama and many other used vehicle cases, here there was not a total engine failure or complete breakdown. I find the transmission issues do not establish that the car was not reasonably durable. It drove without issue for over a month after sale, and test drives by Ms. Nevin’s mechanic showed the transmission continued to operated “OK”. With that, I find Mr. Baby did not breach the implied warranty of durability in SGA section 18(c), and I dismiss that aspect of Ms. Nevin’s claim.
42. 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 and I dismiss Ms. Nevin’s claim for CRT fees. Mr. Baby did not pay any CRT fees or claim any dispute-related expenses.
ORDER
43. I dismiss Ms. Nevin’s claims and this dispute.
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Christopher C. Rivers, Tribunal Member |