Pechout v. Potorocza, (1998) 217 A.R. 377 (QB)

• Judge: Lomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 26, 1998
• Jurisdiction: Alberta
• Citations: (1998), 217 A.R. 377 (QB)

Pechout v. Potorocza (1998), 217 A.R. 377 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MR.033

Seigfried Pechout (appellant) v. Frederic A. Potorocza (respondent)

(Action No. 9701-11703)

Indexed As: Pechout v. Potorocza

Alberta Court of Queen's Bench

Judicial District of Calgary

Lomas, J.

February 26, 1998.

Summary:

The plaintiff purchased a used motorcycle from the defendant. Shortly thereafter, the plaintiff discovered that the piston was damaged. The plaintiff sued the defendant for the cost of repairs, alleging that the defendant represented that the motorcycle was in good condition. The trial judge held that the plaintiff was entitled to damages for innocent misrepresentation. The trial judge also held that the Unfair Trade Practices Act did not apply, because the sale was a private sale. The defendant appealed.

The Alberta Court of Queen's Bench allowed the appeal and set aside the award of damages.

Consumer Law - Topic 5

General - Application of consumer pro­tection legislation - Unfair Trade Practices Act - The plaintiff purchased a used mo­torcycle from the defendant at a private sale - Shortly thereafter, the plaintiff discovered that the piston was damaged - The plaintiff sued the defendant for the cost of repairs, alleging that the defendant represented that the motorcycle was in good condition - The trial judge held that the Unfair Trade Practices Act did not apply because it was a private sale, but that the plaintiff was entitled to damages for innocent misrepresentation - The de­fendant appealed - The Alberta Court of Queen's Bench affirmed that the Unfair Trade Practice Act did not apply to private sales - The court set aside the award of damages, because damages could not be awarded for innocent misrepresentation.

Damages - Topic 5835

Contracts - Sale of goods - Breach by seller - Misrepresentation - [See Con­sumer Law - Topic 5 ].

Fraud and Misrepresentation - Topic 2506

Misrepresentation - General principles - Innocent misrepresentation - [See Con­sumer Law - Topic 5 ].

Cases Noticed:

Ronak v. Jones et al. (1995), 177 A.R. 206 (Q.B.), refd to. [para. 8].

Kooiman v. Nichols (1991), 75 Man.R.(2d) 298; 6 W.A.C. 298 (C.A.), refd to. [para. 11].

Chisling and Hatcher v. Frame (1990), 98 N.S.R.(2d) 417; 263 A.P.R. 417 (Co. Ct.), refd to. [para. 11].

Waxman v. Yeandle et al., [1953] O.W.N. 286 (C.A.), refd to. [para. 11].

Podavin v. Grant et al. (1965), 50 D.L.R.(2d) 565 (B.C.S.C.), refd to. [para. 11].

Ross (Frank T.) & Sons (1962) Ltd. v. Con-O-Lab Ltd. (1971), 3 N.B.R.(2d) 647 (C.A.), refd to. [para. 11].

Heilbut, Symons & Co. v. Buckleton, [1913] A.C. 30 (H.L.), refd to. [para. 11].

Bentley (Dick) Productions Ltd. v. Smith (Harold) (Motors) Ltd., [1965] 1 W.L.R. 623 (C.A.), refd to. [para. 11].

Newbigging v. Adam (1886), 34 Ch.D. 582 (C.A.), refd to. [para. 11].

Kupchak v. Dayson Holdings Co. (1965), 53 W.W.R.(N.S.) 65 (B.C.C.A.), refd to. [para. 12].

Redican v. Nesbitt, [1924] S.C.R. 135, refd to. [para. 12].

Leaf v. International Galleries (A firm), [1950] 2 K.B. 66 (C.A.), refd to. [para. 12].

Beavan v. Anderson (1957), 12 D.L.R.(2d) 69 (Alta. S.C.), refd to. [para. 12].

O'Flaherty v. McKinlay, [1953] 2 D.L.R. 514 (Nfld. S.C.), refd to. [para. 12].

Wade v. Hussein et al. (1995), 166 A.R. 49 (Q.B.), refd to. [para. 16].

Director of Trade Practices (Alta.) v. Edanver Consulting Ltd. (1993), 10 Alta. L.R.(3d) 433 (Q.B.), refd to. [para. 16].

Statutes Noticed:

Unfair Trade Practices Act, R.S.A. 1980, c. U-3, sect. 1(a)(i), sect. 1(c)(i) [para. 14]; sect. 1(h)(i), sect. 1(h)(ii) [para. 15]; sect. 1(h)(iii) [para. 14].

Counsel:

William E. Gagnon, for the appellant;

Gerald F. Quigley, for the respondent.

This appeal was heard before Lomas, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing judgment on February 26, 1998.