Ennis v. Klassen, (1990) 66 Man.R.(2d) 117 (CA)

• Judge: Monnin, C.J.M., Huband and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 27, 1990
• Jurisdiction: Manitoba
• Citations: (1990), 66 Man.R.(2d) 117 (CA)

Ennis v. Klassen (1990), 66 Man.R.(2d) 117 (CA)

MLB headnote and full text

Carl Ennis (plaintiff/appellant) v. Richard H. Klassen (defendant/respondent)

(Suit No. 256/89)

Indexed As: Ennis v. Klassen

Manitoba Court of Appeal

Monnin, C.J.M., Huband and Twaddle, JJ.A.

April 27, 1990.

Summary:

The plaintiff immediately attempted to repudiate the purchase of a BMW car when he learned it was a different model than advertised. The seller refused to accept repudiation. The plaintiff sued the seller for fraudulent misrepresentation. The trial judge held that there was no fraud and dismissed the plaintiff's claim. The plaintiff appealed.

The Manitoba Court of Appeal, Twaddle, J.A., dissenting in part, allowed the appeal. The court held that there was innocent misrepresentation and allowed rescission of the contract.

Sale of Goods - Topic 6508

Breach - Remedies of buyer - Rescission - Innocent misrepresentation - The plaintiff bought a BMW model 728 that was advertised and represented to him as a 733 model - The 728 was not sold in Canada, parts were not readily available and trade-in value was considerably lower than for the 733 - The Manitoba Court of Appeal held that the innocent misrepresentation was fundamental in nature and the plaintiff was entitled to rescission.

Sale of Goods - Topic 6508

Breach - Remedies of buyer - Rescission - Innocent misrepresentation - The Manitoba Court of Appeal stated that rescission was available for misrepresentation of a fundamental nature even where the contract was executed if the purchaser acted within a reasonable time - See paragraphs 25 to 46.

Sale of Goods - Topic 6509

Breach - Remedies of buyer - Rescission - Substantial breach - Error in substantialibus - The Manitoba Court of Appeal discussed but did not apply the remedy of rescission for "error in substantialibus" - See paragraphs 47 to 50.

Cases Noticed:

Leggett v. Taylor (1965), 50 D.L.R.(2d) 516, refd to. [para. 26].

Solle v. Butcher, [1950] 1 K.B. 671, refd to. [paras. 34, 84].

Leaf v. International Galleries, [1950] 1 All E.R. 693, refd to. [paras. 35, 63].

Long v. Lloyd, [1958] 2 All E.R. 402, refd to. [para. 40].

Diamond v. British Columbia Thoroughbred Breeders' Society (1965), 52 W.W.R.(N.S.) 385, refd to. [para. 43].

F. & B. Transport Ltd. v. White Truck Sales Manitoba Ltd. (1965), 49 D.L.R.(2d) 670, refd to. [para. 44].

Bevan v. Anderson et al. (1957), 12 D.L.R.(2d) 69, refd to. [para. 45].

Redican v. Nesbitt, [1924] S.C.R. 135, refd to. [para. 48].

Hyrsky et al. v. Smith (1969), 5 D.L.R.(3d) 385, refd to. [para. 48].

Adams v. Canadian Co-Operative Implements Limited (1980), 20 A.R. 533, refd to. [para. 48].

Long v. Lloyd, [1958] 1 W.L.R. 753, refd to. [para. 65].

Woods v. Borstel (1962), 34 D.L.R.(2d) 68, refd to. [para. 74].

Statutes Noticed:

Court of Queen's Bench Act, R.S.M. 1987, c. C-280; C.C.S.M., c. C-280, generally [para. 52].

Misrepresentation Act (U.K.), 1967, c. 7, generally [paras. 43, 66].

Sale of Goods Act (U.K.), 1893, sect. 35 [para. 35].

Sale of Goods Act, R.S.M. 1987, c. S-10; C.C.S.M., c. S-10, sect. 13(3) [para. 67]; sect. 37 [paras. 35, 40, 68].

Authors and Works Noticed:

Fridman, Error in Substantialibus, A Commedy of Errors (1978), 58 Can. Bar Rev. 603 [paras. 48, 62].

Fridman, Sale of Goods in Canada (3rd Ed. 1986), pp. 422-423 [para. 43].

Fridman, The Law of Contracts in Canada (2nd Ed. 1986), p. 734 [para. 25].

Waddams, The Law of Contracts (2nd Ed. 1984), pp. 312 [para. 47]; 315 [para. 62].

Counsel:

G.M. Wood, for the appellant;

M.T. O'Neill, for the respondent.

This appeal was heard on November 20, 1989, before Monnin, C.J.M., Huband and Twaddle, JJ.A., of the Manitoba Court of Appeal.

On April 27, 1990, the decision of the Court of Appeal was delivered and the following opinions filed:

Huband, J.A. (Monnin, J.A., concurring) - see paragraphs 1 to 54;

Twaddle, J.A. (dissenting in part) - see paragraphs 55 to 90.