Martens v. Snow City Leisure et al., (1996) 111 Man.R.(2d) 262 (QB)

• Judge: Clearwater, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 11, 1996
• Jurisdiction: Manitoba
• Citations: (1996), 111 Man.R.(2d) 262 (QB)

Martens v. Snow City Leisure (1996), 111 Man.R.(2d) 262 (QB)

MLB headnote and full text

Wendy Jeanne Martens (plaintiff) v. Snow City Leisure, Ernest J. Kokorudz, Carol W. Kokorudz, and Todd Kokorudz (defendants)

(File No. CI 95-02-323)

Indexed As: Martens v. Snow City Leisure et al.

Manitoba Court of Queen's Bench

Brandon Centre

Clearwater, J.

July 11, 1996.

Summary:

The plaintiff purchased a used boat motor from the defendants in 1994. The motor was used twice in 1994 and for five to 10 hours in 1995. The lower end gears failed in 1995. The plaintiff had the motor repaired and sued the defendants for $1,875.71. The motor was allegedly defective or not of a merchantable quality at the time of the sale.

A small claims hearing officer allowed the action. The defendants appealed.

The Manitoba Court of Queen's Bench allowed the appeal in part and reduced the damage award to $850 plus disbursements and costs because the plaintiff failed to miti­gate her damages.

Consumer Law - Topic 1728

Sale of goods - Statutory warranties - Particular warranties - Of fitness for pur­pose - Martens purchased a boat motor in 1994 - During use in 1994, the motor hit mud - In 1995, the motor's lower end gears failed - The failure occurred not as a result of the motor hitting the mud but likely as a result of an earlier, more severe collision - Martens had the motor repaired and sued the defendants - The Manitoba Court of Queen's Bench allowed the action because the motor was not, according to s. 58(1)(h) of the Consumer Protection Act (Man.), "reasonably fit for the purpose" for which Martens bought it - See paragraphs 13 to 17.

Consumer Law - Topic 1804

Sale of goods - Breach - Remedies of buyer - Damages - Martens purchased a used boat motor from the defendants in 1994 - The lower end gear oil was replaced at the end of the 1994 season - The old oil was metallic gray - This warned a mechanically knowledgeable person of problems with the lower end gears - Martens, who was "obviously" not mechanically knowledgeable, used the motor in 1995 - The lower end gears eventually failed - Martens had the motor repaired and sued the defendants for $1,875.71 - The Manitoba Court of Queen's Bench allowed the action but awarded only $850 plus disbursements and costs because Martens failed to mitigate her loss - Any reasonable person should have known, upon observing the old oil's metallic gray colour, that there was some­thing wrong with the motor's lower end - See paragraphs 7, 13 to 17.

Damages - Topic 1002

Mitigation - General principles - Duty to mitigate - [See Consumer Law - Topic 1804 ].

Cases Noticed:

Andrews v. Hopkinson, [1956] 1 Q.B. 229, refd to. [Appendix A].

Freeway Sales and Distributors Ltd. v. Hogan (1979), 5 Man.R.(2d) 51 (Co. Ct.), refd to. [Appendix A].

Desautels v. Zeemel Enterprises Ltd. (1981), 8 Man.R.(2d) 91 (Q.B.), refd to. [Appendix A].

Statutes Noticed:

Consumer Protection Act, R.S.M. 1987, c. C-200; C.C.S.M., c. C-200, sect. 58(1)(h), sect. 58(5) [para. 13].

Counsel:

Plaintiff, appearing in person;

Donald S. Fjeldsted, for the defendants.

This appeal was heard by Clearwater, J., of the Manitoba Court of Queen's Bench, Bran­don Centre, who delivered the following decision on July 11, 1996.