In the matter of THE MOTOR DEALER ACT R.S.B.C.1996 C.316 and THE BUSINESS PRACTICES AND CONSUMER PROTECTION ACT S.B.C. 2004 c.2
Complainant: JONATHON THOMPSON
Licensee/Unlicensed person:
APPLEWOOD KIA
Issues:
The dealer and the consumer sought an interpretation of the Registrar’s Compliance Order of July 28, 2008, VSA File No. 08-70070. Original Decision: Read More
The parties wanted an interpretation of whether:
The consumer was to recover the cost of optional life and disability insurance purchased at the same time as the vehicle.
The consumer was entitled to recover the cost of towing, storage and storage insurance for the vehicle for the period after the July 28, 2008 Compliance Order.
The consumer was responsible for the costs to return the vehicle to the dealership.
Outcome:
The optional life and disability insurance was not part of the consumer’s original complaint nor was it advanced at the hearing. On this point, the Registrar was functus officio and could not re-litigate what in fact was a secondary claim by the consumer: Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848 (Supreme Court of Canada). It was probably also an inappropriate bifurcation of the consumers claim.
The decision to delay compliance of the order was the dealer’s. The consumer was entitled to recover the storage costs and the towing costs. The decision to insure the vehicle while stored was the consumers and he cannot recover this amount.
No fraud was found in this case and the effect of the order was to cancel the contract (rescission). The general principle in rescission is that each party will be required to pay their own costs when taking steps to undo the transaction; absent fraud. In this particular case, there was no reason to depart from the general rule and the consumer was responsible to return the vehicle to the dealership at his own cost.
