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Registrar's Decision 13-11-003

File Number: 13-11-003

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: GLENN HELD

Licensee/Unlicensed person:

SPARTAN AUTO GROUP LTD. and ROGER MUSHALUK

Issues:

A hearing was called due to an allegation that Spartan Auto Group Ltd. (“Spartan”) and Roger Mushaluk breached the Business Practices and Consumer Protection Act (“BPCPA”) by representing to Mr. Glenn Held (the “Consumer”) that a 2009 Porsche Carrera S (the “Porsche”) had $2,650 of prior repaired damage when in fact the Porsche had more damage than was declared. There was also an allegation that Spartan and Mr. Mushaluk failed to disclose known repairs and damage at the time of sale.
While attending the ADESA auto auction, Spartan and Mr. Mushaluk noted a Porsche was going to be auctioned. Mr. Mushaluk did some research and determined the Porsche had prior damage declared in the amount of $2,650. The Consumer admitted knowing the Porsche had a $2,650 damage declaration before Mr. Mushaluk agreed to bid on the Porsche at the auction.
Mr. Mushaluk had the auction do an inspection on the Porsche and realized that it was a very basic inspection. The Consumer attended Spartan and had an opportunity to inspect the Porsche and agreed to finalize the sale.
The Consumer drove the Porsche a short time and then stored if for the winter. Some months later he insured the Porsche and replaced the tires.
The Consumer received a recall notice for the fuel pump and drove the Porsche to Vancouver to have warranty work completed. The Consumer was advised that the Porsche had approximately $15,000 – $20,000 worth of damage.
The Consumer claims that the damage to the Porsche was misrepresented as was the quality. He is seeking to have the transaction unwound and a refund of the purchase price and certain other costs.

Outcome:

The second allegation was not pursued and the Registrar found no misrepresentation regarding failure to disclose known repairs and painting of the Porsche.
Spartan and Mr. Mushaluk declared damage of $2,650 on the Porsche. This was supported by the CarProof vehicle history report and by direct evidence.
The claim by the Consumer that the Porsche suffered $15,000 – $20,000 of damage was based on hearsay. There was no direct evidence to support the Consumer’s claim. The Registrar cannot accept the hearsay evidence of the Consumer over contrary direct evidence.
The Registrar also found the Consumer’s failure to disclose a November 2013 accident and subsequent repairs, except mid-way through the hearing, was prejudicial to Spartan and Mr. Mushulak’s ability to defend the case against them.
The direct evidence before the Registrar was that the Porsche had suffered damages requiring repairs costing $2,650 to $3,919. Spartan and Mr. Mushaluk declared this damage as required by the Motor Dealer Act Regulation. The Consumer’s claim must fail: Motley v. Regency Plymouth Chrysler Inc. 2002 BCSC 1885 (BC Supreme Court).
Spartan and Mr. Mushaluk have met the burden of proof placed upon them by the BPCPA.
Absent a finding of a misrepresentation, the Registrar has no jurisdiction over a claim that the Porsche was not to a quality that the Consumer had hoped. The Consumer had an opportunity to look at the Porsche before completing the transaction and by his own evidence, the quality of the repairs were apparent even in pictures.
The Consumer’s claim is dismissed.

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Registrar's Decision

Registrar's Decision 13-11-003

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