Benny Cyr v. R.V. Warehouse Inc., 2015 ONSC 3285

OSHAWA COURT FILE NO.: 69624/10

DATE: 2015-05-22

CORRECTION NOTICE DATE: 2015-05-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Benny Cyr

Plaintiff

– and –

R.V. Warehouse Inc.

Defendant

˗and –

Thor Motor Coach, Inc. formerly Four Winds International Corporation, Freightliner Custom Chassis a subsidiary of Daimler Trucks North America LLC and Days Corporation c.o.b. as Equalizer Systems

Third Parties

Paul D. Mack, for the Plaintiff

K. Digambar, for the Defendant

HEARD: June 17, 2014 and December 15, 2014

SALMERS J.

endorsement

Introduction and Nature of the Motion

[1] On October 16, 2009, the Plaintiff purchased a new recreational vehicle (the Motor-home) from the Defendant. The Defendant was aware that the Plaintiff intended to use the Motor-home with his wife that winter. The Defendant further knew that the Plaintiff and his wife intended to drive the Motor-home from Ontario to Florida, spend the winter living in the Motor-home in Florida, and then drive the Motor-home back to Ontario in the spring.

[2] The Plaintiff and his wife did exactly as they intended. They drove to Florida, leaving Ontario on December 2, 2009. They lived in Florida, in the Motor-home, from their arrival until March 1, 2010, when they flew back to Ontario, leaving the Motor-home in Florida. While back in Ontario, the Plaintiff sent the Defendant a list of problems that he had encountered with the Motor-home.

[3] The Plaintiff and his wife flew back to Florida on April 30, 2010, stayed briefly in the Motor-home, and then drove the Motor-home back to Ontario arriving on May 8, 2010.

[4] Commencing on December 2, 2010, and continuing throughout the entire time that they were out of Ontario in the Motor-home and to the present date, the Plaintiff and his wife experienced a litany of problems with the Motor-home.

[5] Immediately after the Plaintiff returned to Canada, he directed the Defendant that all further communications were to be directed to the Plaintiff’s counsel.

[6] On June 7, 2010, the Plaintiff’s counsel sent a letter to the Defendant. In that letter, the Plaintiff demanded rescission of the contract and damages.

[7] Thereafter, there were some communications between the parties or counsel. However, there was no resolution. On October 25, 2010, the Plaintiff commenced this action for rescission and damages.

[8] Since the commencement of this action, there have been discoveries, cross-examinations, and at least one motion. The Plaintiff brought the present motion in December 2013, at which time the motion was assigned a hearing date of April 1, 2014. After some adjournments, the motion was first argued before me on June 17, 2014. Argument was not completed that day. Argument was completed before me on December 15, 2014.

[9] In this motion, the Plaintiff seeks summary judgment and costs against the Defendant.

[10] When this motion was argued, counsel for one of the Third Parties sat in the courtroom as an observer, but he did not request to participate in the motion. No materials were filed on this motion by any of the Third Parties.

[11] The basis of the Plaintiff’s claim against the Defendant is that section 15.1 of the Sale of Goods Act[^1] has been breached because the Motor-home was not reasonably fit for its intended and known purpose.

[12] In response, the Defendant raises several issues and defences to both the Plaintiff’s claim and this motion for summary judgment. For the reasons that follow, I find that the Plaintiff is entitled to summary judgment.

The Law on Summary Judgment Motions

[13] This is a summary judgment motion brought under Rule 20. The law on such summary judgment motions was addressed by the Supreme Court of Canada in Hryniak v. Mauldin[^2]. Summary judgment must be granted if there is no genuine issue requiring a trial. As stated in paragraph 49 of Hryniak:

“There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

Analysis

[14] I will commence my analysis of whether summary judgment should be granted by first addressing the issues and defences raised by the Defendant during argument of this motion and in the Defendant’s Factum

The Plaintiff’s Entitlement to Bring this Action.

[15] The first issue raised by the Defendant was that the Plaintiff was not entitled to commence this action because the Plaintiff was not a “buyer” as defined in the SGA. For the following reasons, I reject this argument.

[16] I am satisfied that this issue can and should be determined by way of summary judgment motion. All evidence on the issue is before the court now. It is essentially a question of law that can be determined without a trial which would involve significant court time and the expenditure of substantial monies for lawyers, justice system staff, and a judge. A fair and just determination of this issue can be made on the materials before me.

[17] The Plaintiff is named as the buyer in the October 16, 2009 agreement of purchase and sale. He signed that agreement without any reference to signing on behalf of any other person or entity. In paragraph 2 of its own statement of defence, the Defendant admits the truthfulness of paragraphs 10 and 11 of the statement of claim wherein the Plaintiff alleged that he purchased the Motor-home from the Defendant and paid the entire purchase price. The Defendant does not allege or plead anywhere in its statement of defence that the Plaintiff is not a buyer as defined in the SGA. In fact, the statement of defence is replete with references to the contract between the parties which could only have been a reference to the October 16, 2009 Vehicle Purchase Agreement in which the Plaintiff is listed and signed as the purchaser. Finally, during oral argument and in paragraph 87 of its Factum, the Defendant agreed that “s. 15(1) of the SGA applies to its sale of the Motor Home to the plaintiff.” How could s. 15(1) apply if the Plaintiff is not a “buyer” as defined in the SGA?

[18] The agreement of purchase and sale was the October 16, 2009 Vehicle Purchase Agreement between the Plaintiff and Defendant. The Plaintiff is clearly a “buyer” and the Defendant is clearly a “seller” as defined in the SGA. The Motor-home was the “goods” purchased by the buyer from the seller. The transaction contemplated by the Vehicle Purchase Agreement was completed. These facts are not changed by the Plaintiff directing title to be put in the name of a corporate entity or by the fact that some of the purchase funds may not have come from the Plaintiff personally.

[19] For all of these reasons, the Plaintiff, the Defendant, and the Motor-home are, respectively, a buyer, seller, and goods as defined in and contemplated by the SGA, including s. 15(1) of the SGA. The Defendant’s first issue is without merit. The Plaintiff has the right to bring this action.

The Implied Condition of Reasonable Fitness – section 15(1) of the Sale of Goods Act

[20] The second issue raised by the Defendant was its submission that there was no breach of s. 15(1) because the Motor-home was reasonably fit for its intended purpose when it was sold to the Plaintiff.

[21] Both parties must put their best foot forward on summary judgment motions. Accordingly, extensive evidence has been put before me on the many problems alleged and the conduct of both parties. The Defendant’s evidence on reasonable fitness is based on the affidavits of Ron Patterson and Christopher Stovold, the only two people employed by the Defendant who dealt with the Plaintiff and/or problems with the Motor-home. The Plaintiff has provided detailed affidavits including some supporting documentation and photographs. There is no reason to expect that the evidence of either party would be better after a trial. For those and the reasons that follow, I am satisfied that on the issue of reasonable fitness, I can make a fair and just determination on the evidence that is before me in this summary judgment motion process.

[22] In paragraph 88 of its Factum, the Defendant stated that the purpose for which the Motor-home was intended was to live in it full-time and to travel around North America. During oral argument, counsel for the Defendant conceded that, generally, the purpose of a recreational vehicle or Motor-home is to live in it and to take extended trips. Christopher Stovold is the Defendant’s president and in paragraph 24 of his affidavit sworn March 19, 2014, he deposed that he knew the Plaintiff and his wife were planning to travel through the United States. The Defendant is in the business of selling recreational vehicles such as the Motor-home. For these reasons, I find that the Defendant is conceding and stating that it knew of this intended purpose when the Plaintiff purchased the Motor-home from the Defendant. Even if the Defendant had not made this concession, I would have found that when the Defendant sold the Motor-home to the Plaintiff, the Defendant knew of the Plaintiff’s intended purpose for purchasing the Motor-home, namely to travel through the United States and live full-time in the Motor-home while doing so.

[23] Further, the evidence is undisputed that the Plaintiff had not previously purchased a recreational vehicle. As stated above, the Defendant is in the business of selling recreational vehicles such as the Motor-home in question, and at the time that the Plaintiff purchased the Motor-home, the Defendant knew that the Plaintiff was purchasing the Motor-home to live in it full-time and travel around North America. For these reasons, I find that when the Defendant sold the Motor-home to the Plaintiff, the Defendant knew that the Plaintiff was relying on the Defendant’s skill and judgment to sell the Plaintiff a recreational vehicle that was reasonably fit for that intended and known purpose.

[24] For the above reasons, the implied condition of s. 15(1) of the SGA is engaged, namely, in this case there was an implied condition that the Motor-home was reasonably fit for the Plaintiff to live in it full-time and to travel around North America.

[25] During oral argument, the Defendant conceded that the test for reasonable fitness of a product pursuant to s. 15(1) of the SGA was accurately set out in paragraphs 59 and 60 of the Plaintiff’s Factum. I agree. For a product to be found not “reasonably fit” for its purpose, either it must be so defective as to be unusable, or it must be consistently below the reasonable expectations of the buyer, having “…defects which are too prevalent as to be excused as insignificant”.[^3] When there is an accumulation of problems with a purchased product, such “congeries” of defects breaches the SGA’s implied condition of reasonable fitness.[^4]

[26] The Defendant submitted that the Motor-home was reasonably fit for its intended purpose because the Plaintiff was able to drive it to Florida, live in it full-time in Florida, and then drive it back to Ontario where the Defendant could have repaired any problems that existed so that there would be no remaining safety issues. For the following reasons, I disagree.

[27] The Motor-home was a luxury recreational vehicle. The Plaintiff paid the Seller almost $200,000 for the Motor-home. The number of problems that the Plaintiff experienced with the Motor-home was astounding. The problems were serious. Some problems were very significant, perhaps life-threatening.

[28] The many problems that the Plaintiff experienced with the Motor-home are detailed in his affidavit sworn December 18, 2013. There is no evidence to suggest the Defendant disputes the Plaintiff’s evidence about the problems that he encountered with the Motor-home. The problems began immediately after the Plaintiff took delivery of the Motor-home and continued and increased in seriousness and number throughout the Plaintiff’s journey to and from Florida and during his stay in Florida. A May 2010 incident, when the stabilizer jacks deployed in a tunnel while the Motor-home was being driven, was potentially life-threatening to the Plaintiff, his wife, and, possibly, innocent others. The Motor-home has remained parked and unused in the yard at the Plaintiff’s home since the Plaintiff finished driving the Motor-home back to Ontario in May 2010.

[29] Paragraph 115 of the Plaintiff’s affidavit sworn December 18, 2013 is a summary and list of the problems that are described earlier in that affidavit. To fully understand the number and nature of the complaints, I have copied them and now insert them into these reasons:

(a) Front of vehicle:

(i) front window blind (driver’s side) – early problem, repaired;

(ii) driver’s side window jammed constantly;

(iii) driver’s side window – excessive noise;

(iv) windshield – significant leaking;

(v) radio antenna faulty – replaced by us;

(vi) radio screen – never functioned;

(b) The heating system:

(i) initial problem of restricted airflow from the furnace – was supposed to have been fixed on November 23, 2009;

(ii) however, the furnace did not provide warm air to the cab of the Motor-home;

(iii) further, the furnace did not provide warm air to the rear (bedroom) area of the Motor-home;

(iv) fireplace – unusable;

(v) the only way to heat this large vehicle was with an electric heater – and the only way to use that was to stop and turn on the generator, to operate the heater and restore heat to the Motor-home;

(c) Air Conditioning:

(i) cab area – the fan operated only intermittently;

(ii) in the rear area, the air conditioning regularly blew fuses;

(d) Septic (“black water”) System- throughout our trip, we had to drive with the windows open, because of the strong smell;

(e) Stabilizer Air Bags:

(i) sometimes, the vehicle would not move forward, or in reverse;

(ii) this problem, which occurred throughout our travel, meant that we had to engage and disengage the stabilizers and emergency brake simply to get going;

(f) Stabilizers (hydraulic jacks – for leveling Motor-home):

(i) by February 8, 2010, the alarm was buzzing, and we heard the sound of hydraulic pumps engaging;

(ii) we were directed to pull and “reset” the yellow fuse;

(iii) after several such events, when we learned that the Stabilizer System was possibly leaking hydraulic fluid, we were unable to use the Stabilizer System to level the Motor-home for the rest of the trip;

(g) Internal and external features:

(i) very early wall panel in bedroom closet was repaired (November 23, 2009);

(ii) washer kept tripping fuses – could not be used;

(iii) dryer emitted a burning smell – could not be used;

(iv) vacuum outside plug – did not function throughout our travel;

(v) vacuum outside suction – did not work throughout our travel;

(vi) outside light – never worked;

(vii) door awning could retract only manually;

(viii) recliner chair – could not be properly secured;

(ix) electrical hot water system – never worked;

(x) light in bathroom hall would cut out after several minutes;

(xi) shower floor unsecured – leaked water;

(xii) bathroom curtain – fell on a regular basis;

(xiii) kitchen – cupboard face fell and cracked;

(xiv) bedroom – carpet tact’s were a safety hazard;

(h) Miscellaneous:

(i) Never received more than one key;

(ii) Early problems repaired on November 23, 2009 – rear compartment door, electrical compartment door, fender skirt, wall panel in bedroom.

In addition to all of the above, there was the dangerous incident when the hydraulic jacks self-deployed.

[30] The problems in the previous paragraph are taken from the Plaintiff’s affidavit as he stated those problems.

[31] The Defendant does not dispute any of the problems about which the Plaintiff complains. That makes sense because almost all of the problems occurred in the United States, far from the Defendant’s place of business. The Defendant did not have the opportunity to observe the problems. Further, since the Plaintiff has returned the Motor-home to Ontario, he has refused to allow the Defendant to inspect the Motor-home. However, there was no evidence of any attempt by the Defendant to obtain any order from the court allowing the Defendant to inspect the Motor-home.

[32] The evidence included an affidavit of Ronald Patterson, sworn April 4, 2014. Mr. Patterson has been the service manager of the Defendant since before the Plaintiff purchased the Motor-home. His affidavit is somewhat vague and in it he deposes that he cannot remember exact dates or the order of phone calls that the Plaintiff and/or the Plaintiff’s wife made to him. Further, he deposes that all of his email communications concerning the matter have been destroyed by a computer virus. However, he does recall receiving numerous calls and emails. He specifically recalls receiving a call only a few days after the Plaintiff had left Canada.

[33] Although his affidavit is vague, Mr. Patterson’s affidavit does corroborate the Plaintiff’s evidence that the Plaintiff made numerous and frequent complaints to the Defendant about problems with the Motor-home. Further, Mr. Patterson’s affidavit does corroborate several of the particular complaints that the Plaintiff alleges were made by him or his wife. Very importantly, Mr. Patterson’s affidavit corroborates the Plaintiff’s evidence and allegations about the stabilizer jacks deploying while driving.

[34] As stated earlier, the evidence before me also included an affidavit, sworn March 19, 2014, of Christopher Stovold, the Defendant’s president. In that affidavit, Mr. Stovold acknowledges that, on or before December 4, 2009, he received a complaint about the Motor-home from the Plaintiff’s wife after she and her husband had left Canada. Mr. Stovold deposed that his next communication was an April 25, 2010 email from the Plaintiff’s wife.

[35] Paragraphs 26 and 27 of Mr. Stovold’s affidavit are hearsay that he received from Mr. Patterson. It must be remembered that Mr. Patterson’s memory for details was admittedly and relatively vague. Accordingly, I give little if any weight to paragraphs 26 and 27 of Mr. Stovold’s affidavit. Mr. Stovold’s reliance on this hearsay lessens the reliability of his evidence in general.

[36] Additionally, at paragraph 35 of his affidavit, Mr. Stovold provides a repair estimate for the Motor-home. Mr. Stovold has not seen the Motor-home since it left Canada in December 2009. Considering the many complaints, I find that Mr. Stovold could not possibly provide an accurate repair estimate. His credibility is lessened by him swearing to a repair estimate that could not possibly be accurate, except by happenstance.

[37] During oral argument, counsel for the Defendant specifically did not dispute the truthfulness of the Plaintiff about the many problems were alleged. Defendant’s counsel merely submitted that the Plaintiff must prove the problems at trial.

[38] The Plaintiff’s affidavit setting out the problems is very detailed. There is documentation supporting some of the alleged problems. There are photos supporting some of the alleged problems. The alleged problems are materially consistent with the lists of problems prepared by the Plaintiff and /or his wife during and very shortly after the fateful trip to Florida. It is true that the number of alleged problems increased as the lists were prepared. However, I do not consider it to be unusual to remember additional problems as time passes when one is being more careful and detailed, particularly in this case where the additional problems were added to lists only a very short time after the problems were encountered.

[39] The Motor-home was the first, and no doubt last, recreational vehicle purchased by the Plaintiff. The number, nature, and seriousness of the problems are astounding. The Plaintiff received very little assistance from the Defendant when complaints were made. The Plaintiff paid almost $200,000 for a brand-new luxury recreational vehicle. The Defendant should have jumped to provide assistance. But, the nature of assistance offered was pitiful. Just some examples are the Defendant’s suggestions to the Plaintiff: to look at a website; to contact suppliers for parts of the Motor-home; and, most unreasonable of all, was the advice to drive eight and one-half hours to someplace in Indiana to try to get something fixed. Mr. Stovold thought that was only two or three hours out of the way, but based on my experience driving to Florida, it was much further. In any event, after so many serious problems, I totally understand the Plaintiff refusing to drive there and his desire to just get home.

[40] The Plaintiff and his wife made lists of problems both before and shortly after their return to Ontario. They have documents and photos.

[41] The evidence of Mr. Patterson and Mr. Stovold is significantly less detailed than that of the Plaintiff. Mr. Patterson acknowledges that his memory of the number and nature of communications is imperfect. Mr. Patterson’s emails on the matter have been destroyed. Mr. Stovold relies heavily on Mr. Patterson’s hearsay because it was Mr. Patterson who had most communications with the Plaintiff and his wife about the problems. Mr. Stovold had only one communication with the Plaintiff’s wife in early December 2009 and no further communications with the Plaintiff and/or his wife until he received an email on April 25, 2010. There is no evidence that Mr. Stovold communicated with the Plaintiff and his wife in response to that email. There is evidence that Mr. Stovold may have been aware of matters thereafter, but no evidence of any communications between him and either the Plaintiff and/or his wife.

[42] Mr. Patterson was and is the Defendant’s service manager. At the relevant time and over the years before and since then, he would have dealt with many recreational vehicles that needed servicing, repairs, or had problems. The Plaintiff’s Motor-home was and is probably just one of many that would have been seen or dealt with by Mr. Patterson. It is understandable that he has little memory of details.

[43] Similarly, Mr. Stovold was and is the president and owner of the Defendant. He would have many responsibilities – including direct and indirect involvement in and/or supervision of sales, administration, finance, and servicing. He would not be able to handle everything. Understandably, he must delegate matters as he apparently did with the problems about which the Plaintiff complains. It is understandable that he had little involvement in and has limited knowledge and little memory of details about the Plaintiff’s problems with the Motor-home.

[44] Further, both Mr. Patterson and Mr. Stovold thought that problems as significant and numerous as were suffered by the Plaintiff were normal and should have been expected and tolerated. This was a $200,000 vehicle. No reasonable person would expect to experience the number and nature of problems encountered by the Plaintiff. Also, Mr. Patterson and Mr. Stovold should not have regarded as satisfactory and reasonable the lack of assistance, nature of assistance, and unreasonable suggestions that were provided to the Plaintiff.

[45] Additionally, Mr. Stovold’s credibility and the reliability of his evidence was further lessened for reasons discussed earlier, namely his reliance on hearsay and his willingness to give a ballpark repair estimate for the Motor-home without actually seeing the vehicle.

[46] For these reasons, the credibility, reliability, and weight to be given to the evidence of Mr. Patterson and Mr. Stovold are very significantly reduced.

[47] Further, for the reasons that I have discussed, with respect to the evidence about problems encountered by the Plaintiff, the credibility and reliability of the Plaintiff’s evidence is very high and far exceeds that of the Defendant. The Plaintiff’s evidence about the problems is very detailed and sometimes supported by other evidence including documentation, photos, and, sometimes, by evidence of the Defendant. The Defendant’s evidence does not in any material way challenge the Plaintiff’s evidence about problems suffered. There is nothing to suggest that the Defendant’s evidence will improve. Considering these factors and due to the Defendant’s lack of knowledge and recollection about the problems, I am satisfied that further evidence at trial, including cross-examination of the Plaintiff by counsel for the Defendant or any of the Third Parties, would have very little, if any, effect on the Plaintiff’s evidence before me about the problems that he encountered with the Motor-home. Accordingly, I am further satisfied that for purposes of this action, the evidence before me allows me to make the necessary findings of fact about the existence and nature of the problems with the Motor-home that were encountered by the Plaintiff.

[48] For all of these reasons, with respect to the problems suffered by the Plaintiff, I accept the evidence of the Plaintiff and I find that he did suffer the problems that are deposed in his affidavit sworn December 18, 2013, which problems were summarized in the list at paragraph 115 of that affidavit.

[49] As just stated, I have found as facts that the Plaintiff encountered the problems as deposed in his affidavit. I am also satisfied that those facts are sufficient and all that are necessary for me to apply to the relevant law and determine whether there has been a breach of the implied condition under s. 15(1) of the SGA. I will now analyze and determine whether such a breach has been proven.

[50] The Plaintiff paid almost $200,000 (including taxes) for the Motor-home. It was sold as a luxury recreational vehicle for the Plaintiff and his wife to live in full-time as they travelled through the United States. As they were on this journey, the Plaintiff and his wife encountered the numerous and often very serious problems that are deposed in the Plaintiff’s affidavit, which I have listed above. I reject the Defendant’s submissions that the Motor-home was reasonably fit for its intended purpose because the Plaintiff was able to carry out his journey as he had intended. The problems started immediately. They increased in number and seriousness. The vast majority of the problems could not be repaired during the course of the Plaintiff’s time in the U.S.A. The number, seriousness, and persistence of the problems are such that they cannot be excused as insignificant. The Defendant represented the Motor-home to the Plaintiff as a luxury recreational vehicle. Yet, throughout their journey and while in Florida, the Plaintiff was unable to enjoy many of the amenities of the Motor-home that a reasonable buyer would have expected of a luxury recreational vehicle that cost almost $200,000. Due to the many problems, I find that the Motor-home was certainly not a luxury vehicle during the Plaintiff’s journey to and from Florida and while the Plaintiff lived in the vehicle. The repair suggestions provided by the Defendant in response to the problems were almost always ineffective and/or unreasonable. To suggest that the Plaintiff drive 8 ½ hours out of their way to attempt to effect a repair was unreasonable. The stabilizer deployment while driving through a tunnel was life-threatening and must have been horrifying.

[51] In these circumstances, a reasonable buyer would have very good reason to question that the Motor-home could be repaired in a reasonable time and manner that one would expect after the purchase of a $200,000 luxury recreational vehicle.

[52] For all of these reasons, I am satisfied on a balance of probabilities that the accumulation of problems encountered by the Plaintiff were such that there is a breach of the implied condition of reasonable fitness in s. 15(1) of the SGA.

Fundamental Breach and Remedies

[53] The Defendant’s fourth argument was that there was no fundamental breach of its contract with the Plaintiff. This engages the Defendant’s third argument which was that if there was a breach of the implied condition of reasonable fitness, the Plaintiff is limited to the remedies as set out in the SGA. I disagree and for the following reasons I find that there has been a fundamental breach of contract.

[54] The Supreme Court of Canada has stated that the doctrine of fundamental breach is no longer applicable in relation to exclusion clauses in contract cases.[^5] However, in this case, the Defendant did not argue that its liability was limited by any exclusion clause contained in the contract. Further, it was not argued before me and I am unaware of any authority for the proposition that the doctrine of fundamental breach no longer has general applicability to contracts cases.

[55] Fundamental breach has been found to occur where the buyer is left with “something totally different from that which the contract contemplates” or “a situation fundamentally different from anything which the parties could as reasonable men have contemplated.”[^6] The consequences of the breach are more complex than the quality of the breach, in determining whether or not the breach is fundamental.[^7] An accumulation or congeries of problems can constitute a fundamental breach.[^8]

[56] In this case, it would have been reasonable for the Plaintiff to expect to encounter some problems with the Motor-home. But, the problems encountered by the Plaintiff went much further than could reasonably have been expected.

[57] The Defendant knew that the Plaintiff was taking a lengthy trip through the United States. Being able to live full-time in the Motor-home while on the American trip was a fundamental purpose of the Plaintiff’s purchase of the Motor-home. The Motor-home was sold as a luxury recreational vehicle. Throughout their American trip, the Plaintiff encountered numerous and serious problems with the Motor-home. The vast majority of the problems could not be corrected while the Plaintiff and his wife were on their trip in the United States. For the entirety of their American trip, the Plaintiff and his wife were forced to live in the Motor-home in very difficult conditions. The furnace did not function properly and they had to buy an electric heater. The washer and dryer never worked. The toilet system smelled terribly. The list of problems goes on and on. The incident of the stabilizers deploying in a tunnel was the culminating incident.

[58] For these reasons, it is without hesitation that I find that the consequences of the breach of the condition of reasonable fitness were so numerous and serious that the Plaintiff and his wife were forced to live in a situation and drive a recreational vehicle that was totally different from anything which the parties could as reasonable men have contemplated when they entered into the contract for the sale of the Motor-home to the Plaintiff. The Plaintiff did not get the luxury recreational vehicle that he bargained for when he purchased the Motor-home from the Defendant. Accordingly, the breach of the condition of reasonable fitness was a fundamental breach of the parties’ contract. With fundamental breach, the Plaintiff’s damages are not limited to those permitted by the SGA for breach of a term or condition.

Conclusion on Liability

[59] For all of the above reasons, I am satisfied that based on the materials and evidence before me on this motion for summary judgment, I am able to make the necessary findings of fact required to make a fair and just determination on the issue of the Defendant’s liability in an expeditious, proportionate, and just manner.

[60] I must also consider the advisability of summary judgment in the context of the litigation as a whole[^9]. In this case, there are third party claims and, possibly crossclaims amongst third parties. As stated earlier, neither the Defendant nor any third party placed before me any evidence disputing the Plaintiff’s allegations and evidence of the many problems that he encountered with the Motor-home. Further, neither the Defendant nor any third party has alleged or is in the position to be able to allege any dispute with facts deposed or evidence submitted by the Plaintiff about the problems. In these circumstances, findings of facts about the existence and nature of the problems with the Motor-home must be based entirely on the evidence submitted by the Plaintiff. Therefore, when determining claims as between the Defendant and third parties, a judge does not require a trial to determine facts about the nature of the problems that the Plaintiff encountered with the Motor-home. Accordingly, in the context of the litigation as a whole, there is no risk that although summary judgment is being granted in this motion, the determination of third party claims and cross-claims involving the Defendant and third parties will involve duplicative proceedings or inconsistent findings of fact about the existence and nature of problems with the Motor-home. Resolution of the Plaintiff’s claims against the Defendant will advance the litigation as a whole. Furthermore, making the determination about the Defendant’s liability in this summary judgment motion process will require far less time, as well as less legal, and justice system resources, than a trial. At the same time, a fair and just result can be reached.

[61] For all of these reasons, the Plaintiff has satisfied me that there is no genuine issue requiring a trial to determine the Defendant’s liability to the Plaintiff. As stated above, I am satisfied on a balance of probabilities that the accumulation of problems encountered by the Plaintiff were such that there is a breach by the Defendant of the implied condition of reasonable fitness in s. 15(1) of the SGA. Furthermore, the consequences of the breach of the condition of reasonable fitness were so numerous and serious that the breach of the condition of reasonable fitness was a fundamental breach by the Defendant of the parties’ contract. Accordingly, the Plaintiff is entitled to summary judgment against the Defendant for the Plaintiff’s damages resulting both from the breach of s. 15(1) of the SGA and from the Defendant’s fundamental breach of the contract between the parties.

Damages

[62] The Defendant argued that the Plaintiff had accepted the goods and, therefore, pursuant to s. 12(3) of the SGA, the Plaintiff’s damages were limited to remedies for breach of warranty as contained in the SGA. I disagree.

[63] In this case, s. 34(c) of the SGA is applicable with respect to determination of acceptance. I accept the undisputed evidence of the Plaintiff that he complained to the Defendant multiple times in a timely fashion as problems with the Motor-home were encountered. The Plaintiff was in the U.S.A. with the Motor-home and assumed that he would be able to successfully return to Canada. While in the U.S.A., he received very minimal assistance from the Defendant. Throughout his trip to and from Florida, the Plaintiff endured multiple serious problems that made living in the Motor-home very unpleasant and certainly far from the luxury that he had expected and bargained for when he purchased the Motor-home from the Defendant. The culminating incident was the unexpected and dangerous deployment of the stabilizers while driving through a tunnel. It was very shortly after that incident that the Plaintiff made it clear to the Defendant that the Plaintiff was rejecting the Motor-home and demanding rescission. In these circumstances, I find that it was within a reasonable period of time that the Plaintiff intimated to the Defendant that the Plaintiff was rejecting the Motor-home. Accordingly, I find that there was no deemed acceptance by the Plaintiff pursuant to s.34(c) of the SGA. Therefore, because the Plaintiff is not deemed to have accepted the goods, s. 12(3) of the SGA does not apply to limit the Plaintiff’s remedies. In any event, I have found fundamental breach on the part of the Defendant. For those reasons, the Plaintiff’s damages are not limited as submitted by the Defendant. The Plaintiff is entitled to recover damages from the Defendant for all loss resulting from the breach by the Defendant of its fundamental obligation to deliver the luxury recreational vehicle that the Plaintiff had bargained for when he purchased the Motor-home from the Defendant.

[64] A key question with respect to remedies and damages is whether rescission is appropriate.

[65] In all of the circumstances of this case, a trial is not required to determine whether rescission is an appropriate remedy. The undisputed facts and facts, as found by me, enable me to apply the law and arrive at a fair and just determination that is expeditious and appropriate and would not differ from the determination after trial. There is no genuine issue that requires a trial in order to determine whether rescission is appropriate. There is no risk of duplicative proceedings or inconsistent findings and rulings on the crossclaims and third party claims.

[66] I have found that the constellation or congeries of defects and problems were so numerous and so serious that they went to the root of the contract, thus resulting in a fundamental breach of the contract by the Defendant. I have also found that the Defendant provided minimal, sometimes unreasonable, and rather ineffective assistance to the Plaintiff concerning the problems with the Motor-home. I am satisfied that rescission is the appropriate remedy.

[67] As monetary damages, based on the undisputed evidence before me, I am satisfied that there is no genuine issue requiring a trial on the issue of the Plaintiff’s damages and that the Plaintiff is entitled to the following monetary damages:

(a) purchase price $195,788.74

(b) satellite system for internet &TV connections $9,932.85

(c) surge protector installed by Defendant $885.92

(d) November 24, 2009 insurance premium $2,270.00

(e) replacement radio antenna $65.50 USD

(f) repair bill $561.59 USD

TOTAL: $209,504.60

[68] The total in the previous paragraph does not take into account any variation between US and Canadian currency. The US dollar expenses are relatively minimal. For purposes of expediency, I am taking the US dollar to have been at par with the Canadian dollar.

[69] There was insufficient evidence to satisfy me that the other items or expenses in paragraph 117 of the Plaintiff’s December 18, 2013 affidavit were necessary or proven as damages. Some of the items (items d, e, f) may be removable and usable for other purposes by the Plaintiff. Insurance premiums (item g, for 2010 to the present) should be lower for a recreational vehicle that is parked on private property and not being driven. There is no evidence to verify the accuracy of other items (items j, k, and l).

[70] Ordinarily, the Defendant might be entitled to offset depreciation of the Motor-home from the amount owing as damages for the purchase price. On motions for summary judgment, all parties must “put their best foot forward.” The Defendant has put no evidence before me about the depreciated value of the Motor-home. This evidence should not have been difficult to obtain. Further, in the five years since the Plaintiff returned to Canada with the Motor-home and since this proceeding was commenced in the autumn of 2010, the Defendant has taken no steps to inspect the Motor-home or to request that the Motor-home be returned to the Defendant. Accordingly, there is no evidentiary basis before me from which I could make findings of the depreciated value of the Motor-home or about the Defendant’s entitlement to an offset for depreciation of the Motor-home.

[71] In his statement of claim, the Plaintiff claimed damages for loss of use and enjoyment of the Motor-home. However, in his factum for this motion, the Plaintiff made no reference to this claim. The affidavits made little reference to this claim and provided very little detail about the facts that would support the claim. Undoubtedly, the Plaintiff suffered considerable annoyance and discomfort due to the Motor-home’s many problems. However, considering the paucity of evidence, only a nominal award of $2,000 will be made.

[72] In this motion, the Plaintiff requested damages for the Defendant failing to disclose material facts, pursuant to the Consumer Protection Act. This claim was not pled in the Statement of Claim. In any event, there was insufficient evidence to satisfy me that this claim had been proven or that the Plaintiff suffered damages as a result of any alleged failure to disclose material facts. Accordingly, neither the claim nor any damages for it have been proven.

[73] The Plaintiff also requests and is entitled to pre-judgment interest on his damages.

[74] There is insufficient evidence to satisfy me that the Plaintiff has any entitlement to exemplary or punitive damages. The conduct of the Defendant was not so high-handed as to offend the public and warrant such damages.

Summary

[75] The number and seriousness of the problems with the Motor-home would not have been expected by any reasonable person. Nobody would buy a recreational vehicle if they were told or knew that such problems were to be expected. The Plaintiff and his wife endured these problems, but, the Motor-home was certainly nowhere near the luxury recreational vehicle that the Plaintiff had bargained for when he purchased it from the Defendant. If there was ever a vehicle that one would call a “lemon”, it was the Motor-home that the Defendant sold to the Plaintiff.

[76] For all of my reasons, the motion succeeds and the Plaintiff is entitled to summary judgement on the following terms:

(a) a declaration that the Defendant breached the implied condition of s. 15(1) of the Sale of Goods Act that the Motor-home would be reasonably fit for its intended purpose;

(b) a declaration that the Defendant fundamentally breached the contract for the sale of the Motor-home to the Plaintiff, and such fundamental breach repudiated the contract;

(c) the Defendant shall pay to the Plaintiff as damages:

i) $209,504.60, as found above;

ii) For loss of use and enjoyment, $2,000.00; and

iii) interest on the above pursuant to the Courts of Justice Act;

(d) if the parties cannot agree on interest or costs, or if other matters remain to be dealt with, then the parties are to contact the Oshawa trial coordinator to schedule a hearing before me.

Order to go accordingly.

Salmers J.

Released: May 22, 2015

CORRECTION NOTICE DATE: May 26, 2015

[^1]: R.S. O. 1990, c. S.1 (“SGA”)

[^2]: 2014 SCC 17

[^3]: Satin Finish Hardwood Flooring Ltd. v. Sico Inc., (1999) CarswellOnt 824 at para 131and 132, (Ont. C.J. General Division).

[^4]: Kelly v. Mack Can. Inc., (1988) CarswellOnt 1061 at paras 4 and 5; 1988 4562 (ON CA), 66 O.R. (2d) 68 (Ont. C.A.)

[^5]: Tercon Contractors Ltd. V. British Columbia (Minister of Transportation & Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at para. 62.

[^6]: Sale and Supply of Goods, 2d ed. Kevin P. McGuiness, Markham:LexisNexis 2010, at page 509, para 101.

[^7]: Cain et al v. Bird Chevrolet Oldsmobile Ltd. Et al. (1976), 1976 615 (ON SC), 12 O.R. (2d) 532 (Ont. H.C.J.), at para 8.

[^8]: ibid, para 7.

[^9]: Hryniak, at para 60; Baywood Homes Partnership v. Haditaghi, [2014] O.J. No. 475, C.A.