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Gambling With Car Purchases or Repairs

One of the main things that make us all alike in these modern times is the purchase of a motor vehicle, be it new or used, we all have to face the car salesman or private car seller at some point and of course when we do every car we look at is in great condition, mechanically sound and/or only driven by a little old lady to church on Sundays in the summer!   Once we have purchased our vehicle either new or used another fact of life that make us the same is that eventually we will have to have the vehicle repaired either at the dealership from which we purchased it or by a mechanic that we have been told is great or that was simply close and available.

The hope is that when we purchase a vehicle either new or used or have that vehicle repaired that everything will be as stated and the repairs will be what we have been told they will be and cost what we have been told they will cost.  The problems arise when the vehicle does not live up to the representations and the repairs either do not fix the problems or cost much more than promised.  If these unfortunate events happen and the vendor of the car or the repairer of same denies any liability your only recourse is the Courts and that can be a complicated and stressful procedure.

In terms of the purchase and sale of a motor vehicle it is important to remember whether there is a written agreement or otherwise, the representations of the vendor, whether express or implied, being it a dealership or a private vendor, have consequences.  This position is outlined in the case of Cain et al.  v. Bird Chevrolet Oldsmobile Ltd.  et al., 1976 CanLII 615 (ON SC)  at pages 12 to 14 which held:

I am perfectly satisfied on the evidence that Cain has accurately described the many other complaints and that these were real complaints.  The vibration problem seemed to have been solved by the replacement of bearings and the complaints as to the tie-rod, speedometer cable and engine roughness were met, eventually, under the manufacturer's warranty.  Nevertheless, in the meantime, the truck was wholly unsatisfactory.  A driver for the plaintiffs drove it one day and refused to drive it again.  He said that it was hard to drive; that it shook continuously and was hard to work.  It is all very well for the defendant to say that the "bogey hop" was an unusual problem and that it was not unreasonable for the defendant to take so long to discover it but that however long it took, it would be covered by the manufacturer's warranty.  The plaintiffs were not concerned with the defendant's problems.  They had bought a new truck and expected it to operate like a new truck and it did not.  It had a problem which Cain could not have discovered on a short test drive which he took before purchase but which ought to have been discovered on any reasonable pre-delivery inspection.  All of this happened during the busiest time of the year.  Mr.  Bird conceded that Cain would be justified in being worried.  I am satisfied the case comes well within the definition of a fundamental breach of contract, and that the plaintiffs were entitled to terminate the contract as they did.

The plaintiffs are entitled to recover damages for all loss resulting from the breach by the defendant of its fundamental obligation to deliver a workable truck.  The plaintiffs are entitled to the value of the turned-in truck.  They were allowed an inflated value of $9,640, less an encumbrance of $3,850.  That truck was sold by the defendant.  It ought to have been returned to the plaintiffs when they terminated the contract.  I think the only practical thing is to treat the turn-in as a separate sale from the plaintiffs to the defendant for the net sum of $5,790.  Costs of a licence, the new tires, lettering, installation of radio and air-conditioning, all seem to have been taken care of in the G.M.A.C.  contract which the defendant has paid off.

In addition, the plaintiffs lost profits for nine days when the truck did not work during the period July 18th to August 10th.

The situation on August 10th was that the contract for the purchase of the new truck was at an end.  The defendants owed the plaintiffs $5,790 for the turned-in truck.  Despite the obvious fact that the plaintiffs had no money, they must be taken to have been able to purchase a new truck immediately.  It was 13 days from the date of the purchase order to the date of delivery, so I think it not unreasonable to allow the plaintiffs another two weeks to get a new truck.  I assess their total damages for loss of profits at $1,250, keeping in mind that the new truck probably earned more per day than the old truck would have.

The same type of contractual terms, express or implied, are codified by the Consumer Protection Act, 2002, S.O.  2002, Chapter 30, Schedule A in respect to the repair of vehicles and the damages resulting therefrom.  Thus if you believe that the car you bought is other than the car you were sold, or the repairs you paid for were improperly completed, get in touch!                               

Ian Shemesh Paralegal Services

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