Parsons v. Cheeseman et al., (2015) 370 Nfld. & P.E.I.R. 56 (NLPC)

• Judge: Orr, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: June 30, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 370 Nfld. & P.E.I.R. 56 (NLPC)

Parsons v. Cheeseman (2015), 370 Nfld. & P.E.I.R. 56 (NLPC);

    1153 A.P.R. 56

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JL.029

Leon Parsons (plaintiff) v. Charles Cheeseman (first defendant) and F.A. Maher Limited (Maher's Garage)

(second defendant)

(Docket: 0114C00260)

Indexed As: Parsons v. Cheeseman et al.

Newfoundland and Labrador Provincial Court

Small Claims Division

Orr, P.C.J.

July 15, 2015.

Summary:

Parsons purchased a used pickup truck from Cheeseman. When he purchased the vehicle, it was inspected and certified as roadworthy by Maher's Garage, which was operated by F.A. Maher Ltd. A little more than a month after Parsons purchased the truck, it broke down. Parsons asked the Highway Inspectors to look at the vehicle. He received an inspection slip which had written on it "As a result of safety defects on vehicle, plates were removed until a motor vehicle Inspection provided with defects corrected." Parsons brought a claim against Cheeseman and F.A. Maher Ltd. He alleged breach of contract as the vehicle was not fit for use. In addition, Parsons alleged that Cheeseman acted as agent for F.A Maher Ltd. and represented the vehicle had been properly inspected. F.A. Maher Ltd. did not file a defence and judgment had been entered against it.

The Newfoundland and Labrador Provincial Court, Small Claims Division, dismissed the claim against Cheeseman.

Fraud and Misrepresentation - Topic 4044

Practice - Evidence and proof - Burden of proof - [See Sale of Goods - Topic 8806 ].

Sale of Goods - Topic 4068

Conditions and warranties - Warranties - Disclaimer - "As is" clause - [See Sale of Goods - Topic 8806 ].

Sale of Goods - Topic 4106

Conditions and warranties - Implied or statutory terms as to quality or fitness - Fitness or suitability of goods - [See Sale of Goods - Topic 8806 ].

Sale of Goods - Topic 4115

Conditions and warranties - Implied or statutory terms as to quality or fitness - Respecting used goods - [See Sale of Goods - Topic 8806 ].

Sale of Goods - Topic 8806

Actions by buyer - Evidence - Burden of proof - Parsons purchased a used pickup truck from Cheeseman with the intention of using it commercially as a snow plow - When he purchased the vehicle, it was inspected and certified as roadworthy by Maher's Garage, which was operated by F.A. Maher Ltd. - A little more than a month after Parsons purchased the truck, it broke down - Parsons asked the Highway Inspectors to look at the vehicle - He received an inspection slip which had written on it "As a result of safety defects on vehicle, plates were removed until a motor vehicle Inspection provided with defects corrected" - Parsons brought a claim against Cheeseman and F.A. Maher Ltd. - He alleged breach of contract as the vehicle was not fit for use - In addition, Parsons alleged that Cheeseman acted as agent for F.A Maher and represented the vehicle had been properly inspected - F.A. Maher did not file a defence and judgment had been entered against it - The Newfoundland and Labrador Provincial Court, Small Claims Division, dismissed the claim against Cheeseman - The vehicle was a 16 year old used vehicle sold "as is where is" - Although it may have been in poorer condition than the parties believed, the vehicle was not so defective as to be essentially different in character and unworkable - There was no evidence to establish that Cheeseman believed that the inspection prepared by F.A. Maher was not accurate or that he had any relationship with F.A. Maher other than as a customer - Parsons testified that Cheeseman had misrepresented the prior ownership of the vehicle and its usage - Cheeseman denied that he did - Consequently, there was a conflict in the evidence that he deliberately or negligently misrepresented the character of the vehicle - The burden of proof was on a balance of probabilities - Parsons failed to meet the burden of proof.

Cases Noticed:

Knee v. Humber Motors Ltd. et al. (1993), 107 Nfld. & P.E.I.R. 271; 336 A.P.R. 271 (Nfld. T.D.), refd to. [para. 8].

British Tramways, etc., Carriage Co. v. Fiat Motor Ltd., [1908-10] All E.R. Rep. 113, refd to. [para. 8].

Rice v. Islander R.V. Sales and Rentals Ltd., (2011), 314 Nfld. & P.E.I.R. 120; 977 A.P.R. 120; 2011 NLTD(G) 125, refd to. [para. 10].

Carter v. Elm Mercury Sales (1976) Ltd. (1990), 82 Nfld. & P.E.I.R. 130; 257 A.P.R. 130 (Nfld. T.D.), refd to. [para. 11].

Pollock & Co. v. Macrae, [1922] S.C. (H.L.) 192 (Scot.), refd to. [para. 11].

Hedley Byrne & Co. v. Heller & Partners, [1964] A.C. 465 (H.L.), refd to. [para. 13].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 14].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 17].

Statutes Noticed:

Sale of Goods Act, R.S.N.L. 1990, c. S-6, sect. 16 [para. 7]; sect. 36 [para. 9].

Counsel:

Emily Young, for the plaintiff;

Defendant appeared on his own behalf.

This claim was heard on June 30, 2015, at St. John's, N.L., before Orr, P.C.J., of the Newfoundland and Labrador Provincial Court, Small Claims Division, who delivered the following decision on July 15, 2015.