Murch v. Leonard (Dan) Auto Sales Ltd. et al., 2013 SKQB 314

• Judge: Barrington-Foote, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 28, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 314;(2013), 429 Sask.R. 16 (QB)

Murch v. Leonard Auto Sales Ltd. (2013), 429 Sask.R. 16 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. SE.039

Robert Murch (plaintiff) v. Dan Leonard Auto Sales Ltd. and Dan Leonard (defendants)

(2009 Q.B.G. No. 616; 2013 SKQB 314)

Indexed As: Murch v. Leonard (Dan) Auto Sales Ltd. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barrington-Foote, J.

August 28, 2013.

Summary:

Murch wanted to buy a truck with a 7.3 litre engine. He contacted Leonard Auto Sales. All of his dealings with Leonard Auto Sales were through the company's president (Mr. Leonard). Mr. Leonard advised Murch that he had a 7.3 litre engine truck. Murch purchased the truck for $21,000. Due to operating problems, Murch had the truck looked at by a mechanic, who advised him that it actually had a 6.0 litre engine. Murch told Mr. Leonard that he wanted to return the truck. He commenced an action against Leonard Auto Sales and Mr. Leonard for the return of the purchase price and damages. He alleged that Leonard Auto Sales breached express and implied warranties in the contract of sale, and statutory warranties under the Consumer Protection Act. He alleged misrepresentation by Mr. Leonard, and that both defendants committed unfair practices under the Act.

The Saskatchewan Court of Queen's Bench held that Murch was entitled to rescind the contract and did rescind the contract. Accordingly, he was entitled to the return of the purchase price. He was awarded damages of $344 for Leonard Auto Sales' breach of the implied condition that goods shall comply with their description (Sale of Goods Act, s. 15). Mr. Leonard could not be found personally liable, and Murch had no claim under the Consumer Protection Act. Defence counsel was ordered to pay Murch costs of $1,750.

Barristers and Solicitors - Topic 852

Duty to court - Liability for costs - For causing delay or costs to be incurred without reasonable cause - The plaintiff commenced an action against the defendants in November 2009 - It was set for trial on January 25, 2013 - The defendants did not attend as a result of an inadvertent error in scheduling by their counsel - The trial was accordingly adjourned to March 18, 2013, at the request of defence counsel - The Saskatchewan Court of Queen's Bench noted that rule 11-24 of the Queen's Bench Rules had a broader reach than the court's inherent jurisdiction to award costs against a lawyer - In this case, defence counsel had caused costs to be incurred by the plaintiff through his neglect - There was no issue as to solicitor-client privilege, as defence counsel readily admitted that the issue arose as a result of his inadvertent error - The court awarded costs of $1,750, payable forthwith by defence counsel - See paragraphs 26 to 30.

Company Law - Topic 4665

Officers and agents - Liability to third parties - For torts - [See Fraud and Misrepresentation - Topic 4084 ].

Consumer Law - Topic 5

General - Application of consumer protection legislation - Murch wanted to buy a truck with a 7.3 litre engine - Leonard Auto Sales (defendant) advised Murch that it had such a truck - Murch purchased the truck for $21,000 - Due to operating problems, Murch had the truck looked at by a mechanic, who advised him that it actually had a 6.0 litre engine - Murch told the defendant that he wanted to return the truck - He commenced an action for the return of the purchase price and damages, alleging that, inter alia, the defendant had breached statutory warranties and committed unfair practices pursuant to the Consumer Protection Act (CPA) - The Saskatchewan Court of Queen's Bench held that Murch had no claim under the CPA - Murch did not plead that the truck fell within the definition of "goods" or a "consumer product", or that it would be ordinarily used for personal, family or household purposes - In fact, there was evidence that Murch had purchased the truck for the purpose of creating a mobile welding unit - That suggested a business use - See paragraphs 18 to 21.

Consumer Law - Topic 1602

Sale of goods and services - General - Consumer product - What constitutes - [See Consumer Law - Topic 5 ].

Contracts - Topic 4183

Remedies for breach - Rescission - When available - General - Murch wanted to buy a truck with a 7.3 litre engine - Leonard Auto Sales (defendant) advised Murch that it had such a truck - Murch purchased the truck for $21,000 on November 8, 2008 - Due to operating problems, Murch had the truck looked at by a mechanic, who advised him that it actually had a 6.0 litre engine - Murch told the defendant that he wanted to return the truck - He commenced an action on November 28, 2008, for the return of the purchase price and damages, including $3,734 that he paid for registration and insurance while the truck was registered in his name - The defendant picked up the truck in August 2009, made repairs, and ultimately sold it to someone else - The Saskatchewan Court of Queen's Bench held that Murch was entitled to rescind the contract as a result of the defendant's misrepresentation that the truck had a 7.3 litre engine - Murch moved promptly to attempt to effect the rescission as soon as he became aware that the truck had a 6.0 litre engine - Further, the defendant accepted the rescission - Murch was accordingly entitled to the return of the purchase price - Given that this was a sale of goods by description, the defendants had breached the implied condition in s. 15 of the Sale of Goods Act - While the appropriate remedy for such a breach was damages, the court would only award damages for the initial registration and insurance costs ($344) - Murch was aware that the truck did not correspond to the description within 10 days of purchase - There was no evidence or explanation as to why he continued to pay for its registration and insurance for several years after that, despite rescinding the contract in November 2008 and giving up possession in August 2009 - See paragraphs 22 to 25.

Contracts - Topic 4188

Remedies for breach - Rescission - Time for - [See Contracts - Topic 4183 ].

Contracts - Topic 4192

Remedies for breach - Rescission - Grounds - General - [See Contracts - Topic 4183 ].

Damages - Topic 101

General principles - Evidence and proof - General - [See Contracts - Topic 4183 and Fraud and Misrepresentation - Topic 4084 ].

Fraud and Misrepresentation - Topic 4084

Practice - Pleadings - What must be pleaded - Murch wanted to buy a truck with a 7.3 litre engine - He contacted Leonard Auto Sales - All of his dealings with Leonard Auto Sales were through the company's president (Mr. Leonard) - Mr. Leonard advised Murch that he had a 7.3 litre engine truck - Murch purchased the truck for $21,000 - Due to operating problems, Murch had the truck looked at by a mechanic, who advised him that it actually had a 6.0 litre engine - Murch told Mr. Leonard that he wanted to return the truck - He commenced an action against Leonard Auto Sales and Mr. Leonard for the return of the purchase price and damages, including the amount he incurred to have the truck made operational - He alleged that Mr. Leonard had made misrepresentations and committed unfair practices under the Consumer Protection Act - The Saskatchewan Court of Queen's Bench held that Mr. Leonard could not be found personally liable - Murch did not plead that Mr. Leonard had committed either a fraudulent or negligent misrepresentation - Further, the purchase price of the truck did not constitute damages that arose as a result of Mr. Leonard's representations, and there was no evidence that Murch had spent any money to make the truck operational - See paragraphs 16 and 17.

Practice - Topic 7103

Costs - Party and party costs - Special orders - Conduct by party or counsel (incl. breach of court rules) - [See Barristers and Solicitors - Topic 852 ].

Sale of Goods - Topic 4346

Conditions and warranties - Sale by description - Failure to comply with description - [See Contracts - Topic 4183 ].

Sale of Goods - Topic 6503

Breach - Remedies of buyer - Damages - General - [See Contracts - Topic 4183 ].

Cases Noticed:

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 Q.A.C. 1, refd to. [para. 16].

Cudworth Drilling Ltd. v. MacDonald et al. (1998), 174 Sask.R. 225 (Q.B.), refd to. [para. 16].

Mann et al. v. Hawkins et al. (2011), 385 Sask.R. 59; 536 W.A.C. 59; 2011 SKCA 146, refd to. [para. 20].

Ennis v. Klassen, [1990] 4 W.W.R. 609; 70 D.L.R.(4th) 321; 66 Man.R.(2d) 117 (C.A.), refd to. [para. 22].

Waters et al. v. DaimlerChrysler Services Canada Inc. et al. (2011), 371 Sask.R. 153; 518 W.A.C. 153; 2011 SKCA 53, refd to. [para. 27].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 27].

Hawrish, Re - see Boyko v. Sitter.

Boyko v. Sitter (1964), 49 D.L.R.(2d) 464 (Sask. C.A.), refd to. [para. 27].

Nazmdeh v. Ursel et al., [2010] 9 W.W.R. 437; 285 B.C.A.C. 66; 482 W.A.C. 66; 2010 BCCA 131, refd to. [para. 28].

Counsel:

Jessie C. Buydens, for the plaintiff;

Sterling G. McLean, for the defendants.

This matter was heard before Barrington-Foote, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on August 28, 2013.