File Number: 19-11-005
In the matter of Motor Dealer Act R.S.B.C. 1996 C.316
and Business Practices and Consumer Protection Act, S.B.C. 2004
Complainant: Cheryl Chang and the Vehicle Sales Authority of BC
Darryl’s Best Buys Auto Sales Ltd. (#11019), Darryl Gregory Wardrop (#105073), Jonathan Blaine Watt (#212397), Jaret Cameron Babin (#111879)
Key factual and legal findings:
On the evidence, the Registrar found Jonathan Watt wrote the wrong mileage on the purchase agreement in error. The Registrar further found Ms. Chang knew the actual kilometers traveled on the Acura and would not have been misled by the misrepresentation on the purchase agreement.
(b) Failing to declare a material fact – mechanical condition
Generally, a material fact: (a) can be deemed by legislation, such as disclosures; (b) can be communicated by a consumer as a key term for purchasing a specific motor vehicle; or (c) is recognized at common law as any fact that a reasonable person would find important to consider in making a decision. The Registrar found the vehicle’s mechanical condition and Ms. Chang’s concern about the vehicle’s condition would be a material fact for a purchaser. The question was, were these material facts present at the time of the sale?
Court cases have stated a vehicle failure after sale, is not proof that the problems existed at the time of the sale. Applying that principle here, the mere existence of the suggested repair items noted on the Acura dealership’s repair order about two months and over 2,500 km after purchase is insufficient to say these issues were present at the time of purchase. Therefore, there was no evidence that the Acura’s mechanical issues found two months after purchase existed at the time of the sale. Thus, a failure to state a material fact was not shown which is required before the burden moves to the dealer to prove there was no deceptive act or practice.
(iv) Aiding, abetting or causing a person to breach the law or the conditions of a licence or registration and not acting with honesty and integrity
Section 32(2)(i) of the MDA-R prohibits persons from aiding, abetting or causing a person to breach the law or the conditions of a licence or registration. Given the previous findings of the Registrar, it cannot be said that any of the Respondents aided, abetted or caused another Respondent to breach the law or a condition of a license or registration. The Registrar found the allegation of not acting with honesty and integrity under section 33(2)(a) of the MDA-R, was not properly particularized so the respondents could defend themselves.
(v) Similar Fact Evidence
The Authority put forth similar fact evidence before the Registrar that Darryl’s Best Buys’ has various court cases where it has been sued. This evidence was advanced to show Darryl’s Best Buys’ propensity to conduct itself in a specific way and show an established pattern of behavior. However, the evidence did not provide details of why people sued Darryl’s Best Buys and the Registrar could not properly assess whether those cases have sufficient similarity to the case involving Ms. Chang.
Legislation considered/referred to: