Registrar's Decision

Registrar's Decision H20-10-003

HEARING FILE NUMBER: H-20-10-003

IN THE MATTER OF THE MOTOR DEALER ACT, RSBC 1996, c 316 and the BUSINESS PRACTICES AND
CONSUMER PROTECTION ACT, SBC 2004, c 2

DATE OF DECISION: September 6, 2023

COMPLAINANT: The Vehicle Sales Authority of BC (the “VSA”)

LICENSEE: Colwood Car Mart Ltd. (Dealer Licence #31034), Deborah England (Salesperson Licence #102298) (together, “the Respondent Dealer”)

INTRODUCTION:

This proceeding arises out of a consumer complaint concerning the purchase from the Respondent Dealer on July 25, 2018 (the “Transaction”) of a 2013 Ford E-350 Econoline Passenger Van (the “Vehicle”). The most significant of the alleged contraventions set out in the Amended Hearing Notice dated May 28, 2021, is that the Vehicle was in a condition not suitable for transportation at the time of the Transaction “due to among other things, extensive rust and corrosion throughout the body of the Vehicle including the electrical components.” 
 
The Deputy Registrar heard a preliminary application in writing on the issue of whether the Transaction was a consumer or a commercial transaction as the Registrar was without jurisdiction to rule in a commercial transaction and adjourned that question to the full hearing of the proceeding.

ISSUES:

The main questions in this proceeding were: was the Vehicle used for personal or commercial use? And was the
Vehicle suitable for transportation at the time of purchase?

The VSA had the burden of establishing that the purchase was a consumer transaction for the proceeding to be
within the jurisdiction of the Registrar. The VSA relied on the evidence of the purchaser that she had intended
to use the 12-seat Vehicle for purely personal use.

The Respondent Dealer argued that the purchaser’s evidence was not credible on this point, particularly in light
of a text message the consumer had sent to the Dealer referring to the consumer’s “daycare kids” and that the
issue could not be properly determined without cross-examination. The Deputy Registrar deferred the question
of whether the Transaction was a consumer or commercial transaction to the hearing of the complaint.

The answer to the first question determined whether the Registrar had jurisdiction to address the second.

OUTCOME

Was the complaint a consumer or commercial transaction?

The Deputy Registrar found that, in order to determine that the Transaction was a consumer transaction, the
Deputy Registrar would have to accept the purchaser’s evidence that the purchaser intended, at the time of the Transaction, to use the Vehicle primarily for personal, household or family use. The Deputy Registrar did not
accept the consumer’s evidence in that regard and found that the intended use of the Vehicle was not personal
such that the transaction did not qualify as a consumer transaction that would engage the jurisdiction of the
Deputy Registrar. Accordingly, the Deputy Registrar agreed with the Respondent Dealer that the complaint was
not within the VSA’s jurisdiction and must be dismissed.

In the circumstances, it was not necessary for the Registrar to consider the substance of the complaint. In the
event the Deputy Registrar’s analysis of jurisdiction was wrong, the Deputy Registrar would, in any event, have
dismissed the complaint on the second question on not suitable for transportation.

Was the Vehicle not suitable for transportation at the time of purchase?

The VSA’s contention that the Vehicle was not suitable for transportation at the time of purchase is predicated
on the assertion that the “evidence shows that the Vehicle had sustained extensive water and corrosion damage
prior to the sale to [the consumer] and that the damage compromised the structural integrity of the Vehicle in the
event of a crash, rendering it unsuitable for transportation.”

The Deputy Registrar accepted the opinion of Dr. Edouard Asselin (“Dr.Asselin”), professor of materials
engineering at UBC, as evidence that it is not possible to determine the age of water damage and corrosion to
metal based on a visual inspection or touch examination of the metal. The Deputy Registrar found that the most
reliable evidence of the condition of the Vehicle at the time of the Transaction were the inspections that took
place in June and October 2018, none of which indicated there was water damage or corrosion.

The Registrar accordingly found that the evidence does not establish that, at the time of sale, the Vehicle had
sustained water and corrosion damage of the nature alleged by the VSA.

This proceeding was dismissed for lack of jurisdiction. Had the Deputy Registrar found jurisdiction to consider
the alleged contraventions on their merits, the Deputy Registrar would have dismissed the proceeding for
failure to establish the contraventions.

LEGISLATION CITED

Motor Dealer Act, RSBC 1996, c 316.
Personal Property Security Act, RSBC 1996, c 359.
Judicial Review Procedure Act, RSBC, 1996, c 241.

 

CASES CITED

Browne v. Dunn, 1893 CanLII 65