SUPERIOR COURT OF JUSTICE TORONTO SMALL CLAIMS COURT. LS Ntoukas DJ REASONS FOR JUDGMENT

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1 SC SUPERIOR COURT OF JUSTICE TORONTO SMALL CLAIMS COURT BETWEEN: JOSHUA A. LINDZON AND CARRIE E. LINDZON a.k.a CARRIE E. SAUL (Plaintiffs) V. BMW CANADA INC. a.k.a. BMW GROUP CANADA a.k.a. BMW CANADA; BMW GROUP FINANCIAL SERVCICES CANADA, A DIVISION OF BMW CANADA INC., and ONTARIO LTD. c.o.b. PARKVIEW BMW a.k.a. PARKVIEW BMW (Defendants) LS Ntoukas DJ Heard: May 315L, September 11th, 2012 &January 29th & 30th, 2013 Appearances: Sobel, J., Solicitor for Joshua A. Lindzon and Carrie E. Lindzon Myndiuk, R., Solicitor for BMW Group Canada and BMW Financial Services Blackburn, J., Solicitor for Ontario Itd. c.o.b. Parkview BMW a.k.a. Parkview BMW REASONS FOR JUDGMENT THE UNDISPUTED FACTS In August, 2009, the Mr. and Mrs. Lindzon (the "Lindzons") attended at the dealership owned by Ontario Ltd., c.o.b. as Parkview BMW ("Parkview BMW"). They spoke to a sales representative, Mr. Milonakis, and test drove a used 2006 BMW 3231 Sedan. On August 31, 2009, the Lindzons signed an offer to finance. On September 4, 2009, the Plaintiffs entered into a Conditional Sale Agreement (the "CSA")with Parkview BMW for the purchase of the 2006 BMW 323i Sedan (the "Vehicle") and took possession of the Vehicle. The CSA was subsequently assigned to BMW Group Financial Services Canada, A

2 2 Division Of BMW Canada Inc. ("BMWFS"). There were no written representations in the CSA as to the accident history of the Vehicle. A standard manufacturer's warranty was provided for the first 50,000 kms or 4 years of the Vehicle. A Certified Protection Plan ("CPP") extended that warranty to six years or 160,000 kms. The warranty and the CPP provided coverage for repairs associated with the unexpected failure of a covered component resulting from a defect in material or workmanship. BMW Canada Inc. a.k.a. BMW Group Canada a.k.a. BMW Canada ("BMW Canada") administers and backs up the CPP. During the first two years of ownership, the Plaintiffs brought the Vehicle in for servicing on 24 occasions. The Plaintiffs were not required to pay for any repair work performed under the CPP on these occasions. In February, 2011, the Lindzons became aware that the Vehicle had been reported to have been in an accident prior to their purchase. Specifically, they obtained a CarFax Report which indicated that an accident had occurred in February, The Lindzons subsequently discovered that the former lessee of the Vehicle, Ms. Gurevich, had reported a collision to the police through aself-reporting Centre. By letters dated February 23, 2011 and March 7, 2011, the Plaintiffs wrote to Parkview BMW and BMWFS detailing various alleged misrepresentations and complaints with the Vehicle and requesting rescission of the CSA. In February, 2011, based upon offers made by the Director of Sales for Parkview BMW, Mr. Sobara, attempts were made to resolve the Lindzons' complaints by offering them the ability to trade in the Vehicle and purchase another car. These offers were not accepted by the Lindzons. In October, 2011, the Lindzons placed the Vehicle into storage. By this time, the vehicle had been driven approximately 50,000 kms by the Lindzons. POSITION OF THE PLAINTIFFS In their closing submissions, the Plaintiffs rely on several, alternative causes of action as follows: 1. Fraudulent misrepresentations and active concealment by all of the Defendants with respect to the accident history of the Vehicle; 2. Negligent misrepresentation or innocent misrepresentation by Parkview BMW with respect to the accident history of the Vehicle;

3 3. Fraudulent or negligent misrepresentations by Parkview BMW with respect to the prior use of the Vehicle as a 'demo', the number of prior owners and the Vehicle being in "mint condition"; 4. Fraudulent or negligent misrepresentation by Parkview BMW with respect to an alleged switching of vehicles between the time of the test drive and the time the Plaintiffs took possession; 5. Fraudulent or negligent misrepresentation by Parkview BMW with respect to the completion of the 360-Degree Inspection Checklist necessary for the Vehicle to be covered under the CPP; 6. Fraudulent or negligent misrepresentation by Parkview BMW with respect to an alleged further accident history search in February, 2011; 7. Negligence on the part of Parkview BMW, BMWFS and BMW Canada in failing to ensure that the Vehicle was adequately serviced pursuant to the warranties; 8. Breach of Warranty by BMW Canada based upon breaches of the manufacturer's warranty and/or the CPP; 9. Breach of the Sale of Goods Act, s.15 and s.51(1), by Parkview BMW; 10. Breach of the Consumer Protection Act, s.14 and/or s.15, by Parkview BMW. Based upon the foregoing, the Plaintiffs seek rescission of the CSA and its assignment and compensatory, special and exemplary, punitive and aggravated damages. ANALYSIS The issues for the Court to determine are as follows: 1. Does this Court have the jurisdiction to order rescission ab initio and nunc pro tunc of the CSA? 2. Were any fraudulent misrepresentations made by the Defendants with respect to the accident history of the Vehicle or did the Defendants actively conceal the accident history of the Vehicle? 3. Were any negligent misrepresentations made by Parkview BMW with respect to the accident history of the Vehicle? 4. Were any innocent misrepresentations made by Parkview BMW with respect to the accident history of the Vehicle which would entitle the Plaintiffs to rescission of the CSA? 5. Were any fraudulent or negligent misrepresentations made by Parkview BMW with respect to the prior use of the Vehicle as a 'demo', the number of prior owners and the Vehicle being in "mint condition"? 6. Did Parkview BMW fraudulently or negligently misrepresent that the vehicle purchased by the Lindzons was the same one which they had test driven a few days earlier when it was, in fact, a different car?

4 7. Was any fraudulent or negligent misrepresentation made by Parkview BMW with respect to the completion of the 360-Degree Inspection Checklist (necessary for the Vehicle to be covered under the,cpp)? 8. Was any fraudulent or negligent misrepresentation made by Parkview BMW with respect to an alleged further accident history search in February, 2011? 9. Are the exclusionary sections of the CSA enforceable with respect to any negligent or innocent misrepresentations? 10. Were Parkview BMW, BMWFS and BMW Canada negligent in failing to ensure that the Vehicle was adequately serviced pursuant to the warranties? Did BMW Canada breach the terms of the manufacturer's warranty and/or the CPP? 11. Did Parkview BMW breach sections 15 and/or 51(1) of the Sale of Goods Act? 12. Did Parkview BMW breach sections 14 and/or 15 of the Consumer Protection Act? 13. Did the Plaintiffs properly mitigate their damages, if any? Issue #2: Were any fraudulent misrepresentations made by the Defendants with respect to the accident history of the Vehicle or did the Defendants actively conceal the accident history of the Vehicle? find that the Defendants did not make any fraudulent misrepresentations and that there was no active concealment by the Defendants with respect to the accident history of the Vehicle. Mr. Lindzon testified that he had been searching for a BMW vehicle for some time prior to the subject purchase. He stated that he had been verbally advised by the Parkview BMW sales representative, Mr.Milonakis, that the subject Vehicle had never been in an accident, that it had only one prior owner, that it had never been utilized as a 'demo' and that the Vehicle was in "mint condition". According to Mr. Lindzon these oral representations were material to both himself and his spouse, Carrie Lindzon, and induced them to enter into the CSA. Mr. Lindzon testified that he became aware in February, 2011, through a CarFax Report, that the Vehicle had been in a prior accident while in the possession of a former lessee, Ms. Gurevich. The Lindzons rely upon the following to support their position that the Defendants knew or ought to have known that the Vehicle had been in a prior accident and that they actively concealed the accident history of the Vehicle: a. the CarFax Report; b. the DataScan Report (a report on the condition of the Vehicle created by BMW Canada upon its return off lease by Ms. Gurevich) and c. the repairs performed to the Vehicle and invoiced to Ms. Gurevich. The evidence of the witnesses in the employment or former employment of the BMW Defendants was clear that all documentation in their possession at the time of the sale, including the above-

5 J noted, was consistent with and indicated that the Vehicle had not been in an accident. The witnesses indicated that the industry standard, at the time of the sale of the Vehicle, was to rely on a CarProof Report in order to ascertain the accident history. The CarProof Report in the possession of Parkview BMW at the time of sale to the Lindzons did not disclose any accident. In addition, Ms. Gurevich, upon returning the Vehicle to Parkview BMW at the lease end had advised Parkview BMW, in writing, that the Vehicle had not been in an accident. Although the DataScan Report created upon the return of the Vehicle by Ms. Gurevich indicated some damage was present, accept the evidence of Mr. Rempol and of Mr. Coates that this damage was minor in nature and consistent with normal wear and tear (as opposed to accident damage) on a Vehicle coming off lease. The photographic evidence which forms part of the DataScan Report is consistent with this evidence of Mr. Rempol and Mr. Coates. Mr. Coates was the only expert witness at trial. Mr. Lindzon did not provide any expert evidence with respect to the damage on the DataScan Report being consistent with an accident. The evidence does not support that the Defendants knew or ought to have known that the prior history of the Vehicle was other than accident-free. There is no evidence, testimonial or documentary, to support Mr. Lindzon's allegation that by repairing the Vehicle, Parkview BMW was attempting to conceal accident damage knowing that no one "could possibly find out about the Gurevich collision". This allegation was purely speculative. The mere fact that there was some repairs were made to the Vehicle which were billed to Ms. Gurevich is insufficient to conclude that the Defendants, collectively or individually, had knowledge that the Vehicle had been in an accident and were attempting to actively conceal it. Based upon the foregoing, I am satisfied that there is no evidentiary basis upon which the claim of fraudulent misrepresentation or active concealment with respect to the accident history of the Vehicle may succeed. Issue #3: Were anv negligent misrepresentations made by Parkview BMW with respect to the accident history of the Vehicle? The Lindzons submit that Mr. Milonakis negligently misrepresented that the Vehicle had not been in a prior accident by failing to conduct any due diligence to satisfy himself that this was accurate. In order to succeed on this ground, the Lindzons must establish that Parkview BMW owed a duty of care, made a misleading or inaccurate representation, was negligent in the making of that representation and the Lindzons relied to their detriment upon the representation. Assuming that a representation was made that the Vehicle had not been in an accident and that this representation was inaccurate, I am satisfied that Parkview BMW used reasonable care and due diligence in the making of any such representation. For the reasons given above, I find that the Defendants did not have information in their possession at the time of the sale upon which they, would have known or ought to have known that the Vehicle had been in an accident (if in fact it was in an accident). I find that the Defendants acted in good faith in all their dealings with the

6 Lindzons. I am, therefore, satisfied that Parkview BMW was not negligent in the making of any representation with respect to the accident history of the Vehicle. Accordingly, there is no basis to support the claim of negligent misrepresentation of the accident history of the Vehicle. Issue #4: Were any innocent misrepresentations made by Parkview BMW with respect to the accident history of the Vehicle which would entitle the Plaintiffs to rescission of the CSA? With respect to innocent misrepresentation, Mr. Lindzon takes the position that the Vehicle was, in fact, in an accident and therefore he is entitled to rescission of the CSA and the assignment of the CSA. In order for rescission to be available, several requirements must be met including that the breach must be serious or fundamental, it must be feasible to return the parties to their precontractual positions, and the plaintiff must rescind within a reasonable time. As indicated above, the only expert evidence at trial was that of Mr. Coates. He testified that the damage to the Vehicle was minor and consistent with normal wear and tear for an off lease vehicle. The mere fact that an incident occurred during the lease of the Vehicle by Ms. Guverich does not constitute a serious or fundamental breach. The incident, as described in the report completed by Ms. Guverich for the self-reporting centre and in her testimony, was a minor one where the other vehicle backed or bumped into her vehicle at an approximate speed of zero (0) km per hour. Other BMW witnesses testified that the value of the Vehicle was not, in their opinion, affected by the minor damage. No documentary or expert evidence was led on behalf of Mr. Lindzon to support his allegations that the value of the Vehicle was diminished, in any way, based upon the incident which occurred during Ms. Guverich's ownership. Accordingly, I am satisfied that, if there was any misrepresentation with respect to the accident history of the Vehicle, it was not serious or fundamental. In addition, the Lindzons drove the Vehicle for a period of approximately one and a half years before indicating their desire to rescind the CSA in February of Although Mr. Lindzon, at trial, stated that he attempted to rescind the CSA on September 4, 2009 when he believed that there had been a switch of cars, as discussed below, I find that this evidence is not credible. The Vehicle was driven at least approximately 50,000 km while in the possession of the Lindzons. Given this, find that it is not feasible to return the parties to their pre-contractual positions and that the Lindzons did not attempt to rescind within a reasonable time. Accordingly, I am satisfied that the Lindzons are not entitled to rescission on the basis of innocent misrepresentation. It is, therefore, unnecessary to address Issue #1 with respect to the jurisdiction of the Small Claims Court to order rescission. There is no claim made in the Plaintiff's written submissions that the alleged innocent misrepresentation became a term of the CSA for which damages in contract may be available. In

7 any event, as discussed, no documentary or expert evidence was led on behalf of the Lindzons to support their allegations that the value of the Vehicle was diminished, in any way, based upon the alleged accident. In the absence of such evidence, I am not satisfied, on the balance of probabilities, that the Lindzons have proven any damages. Further, as discussed below, I am satisfied that the exclusionary language found in sections 15 and 19 of the CSA protect the Defendants from any liability based upon oral representations, negligent or innocent. Issue #5: Were any fraudulent or ne~li~ent misrepresentations made by Parkview BMW with respect to the prior use of the Vehicle as a 'loaner' or 'demo' the number of prior owners and the Vehicle being in "mint condition"? find that no fraudulent or negligent misrepresentations were made by Parkview BMW with respect to the prior use of the Vehicle of a'loaner' or `demo', the number of prior owners or the condition of the Vehicle being "mint". Mr. Lindzon testified that Mr. Milonakis verbally made fraudulent or negligent misrepresentations, as described, which induced them to enter into the CSA. With respect to the prior use of the Vehicle as a 'loaner' or 'demo', on cross-examination it became apparent that Mr. Lindzon had misunderstood the CarFax Report obtained by him as indicating that the Vehicle had been driven for 22,000 km while owned by Parkview BMW. On cross examination and in his closing submissions, Mr. Lindzon subsequently alleged that the CarFax Report indicated that the Vehicle had been driven approximately 651 km while in the possession of BMW Autohaus prior to leasing it to Ms. Guverich. The witness from BMW Autohaus, Mr. Ismaele, testified that loaners and demos are typically driven far in excess of this number of kilometers. In the absence of any other evidence of the Vehicle being used as a loaner or a demo, I do not accept that it was, in fact, used as a loaner or a demo at any point in time. Any statement as to the prior use of the Vehicle which may have been made by Mr. Milonakis' was, therefore, not a misrepresentation. With respect to the prior ownership, a Ministry of Transportation search disclosing the ownership of the Vehicle was not provided by Mr. Lindzon. Instead, he relied on the CarFax Report, a document which originates in the United States. Even presuming that this is a reliable source of ownership information, this Report indicates that the only other owner, besides Ms. Gurevich, was the original dealer. According to the Report, the original dealer had ownership for only 13 days prior to the leasing it to Ms. Gurevich. I find that this prior ownership of the Vehicle by the original dealer was negligible and that it is not of sufficient duration to constitute there being more than one prior owner for the purposes of any representation which may have been made in response to an enquiry by the Lindzons. With respect to the Vehicle being in "mint condition", Mr. Lindzon testified that his prior automobile, an Acura, had been in an accident but had a significantly reduced value on resale even though it was in "mint condition" at the time of the sale. Even presuming that the incident reported

8 by Ms. Gurevich was an 'accident' as that term is normally understood, it is apparent from Mr. Lindzon's own evidence that an automobile which has been repaired after an accident is capable of still being considered to be in "mint condition". Further, Mr. Milonakis testified that he did not use the word "mint" to describe vehicles as a general rule. For the reasons given with respect to credibility, as discussed below, I find that no representation was made that the Vehicle was in "mint condition" and that, even if made, the Vehicle came within Mr. Lindzon's own understanding of the term "mint condition". Accordingly, I am satisfied that there is no evidentiary basis upon which the claim of fraudulent or negligent misrepresentation of the use of the Vehicle as a 'loaner' or a `demo', the prior ownership of the Vehicle or the "mint condition" of the Vehicle may succeed. Issue #6: Did Parkview BMW fraudulently or ne~li~ently misrepresent that the Vehicle purchased by the Lindzons was the same one which they had test driven a few days earlier when it was, in fact, a different car? At trial, Mr. Lindzon testified that the Vehicle he purchased on September 4, 2009, pursuant to the CSA, was a different one than the car which he and Mrs. Lindzon had test driven a few days earlier. He referred to certain problems with the automobile, such as a cracked windshield, which were allegedly not present on the test driven car as evidence that there had been a switch of cars. He further stated that, despite believing that the car was different, he felt intimidated and forced to take possession of the Vehicle because he had signed the CSA. Despite the lengthy history of this matter, there is no mention made by the Lindzons in any or demand letter or in the Plaintiff's Claim or Amended Plaintiff's Claim of a switching of cars. This allegation was first brought forward in Mr. Lindzon's testimony on the third day of trial. find that Mr. Lindzon's testimony lacks credibility. Again, this allegation with respect to the switching of cars was made by Mr. Lindzon for the first time at trial. It is not credible, given the lengthy history of the dealings between these parties, that there would have been no prior mention of this allegation in any , letter or Claim (original or amended) before trial. In addition, Mr. Lindzon's testimony was generally vague and/or contradictory on key aspects such as the sequence of events. His evidence was primarily uncorroborated by any documentary evidence or the evidence of other witnesses. Mrs. Lindzon did not testify at trial despite the evidence showing that she was present at the critical times of testing driving the Vehicle, entering into the CSA and taking possession of the Vehicle. I draw a negative inference from the failure of Mrs. Lindzon to testify. The evidence of Mr. Decola, the New Car Sales Manager for Parkview BMW, directly contradicted that of Mr. Lindzon. Mr. Decola testified there was no indication or mention was made by the Lindzons of any switching of cars on the day that they took possession of the Vehicle. It is reasonable to expect that some mention would have been made had the Lindzons actually believed that a switch of cars had occurred. Further, the Lindzons violated the rule in Browne v. Dunn by

9 having Mr. Lindzon testify after five key witnesses, including BMW employees and a former employee, had completed their testimony. Critical allegations made by Mr. Lindzon were not put to the previous witnesses as required by the Rule. For these reasons, where the evidence of the parties is contradictory, I prefer the evidence in the support of the Defendants given by the other witnesses. The evidence of the other witnesses was clear that there was no switch of cars. Based upon the foregoing, I find that the Vehicle which was purchased by the Lindzons and which they took possession of on September 4, 2009 was the same car which they had test driven a few days earlier. Accordingly, there is no basis upon which to find a fraudulent or negligent misrepresentation with respect to the Vehicle which was purchased being a different car from the one test driven. Issue #7: Were fraudulent or ne~li~ent misrepresentations made by Parkview BMW with respect to the completion of the 360-Degree Inspection Checklist (necessary for the Vehicle to be covered under the CPP)? Did Parkview BMW fabricate and/or tamper with the dealer copy of the Checklist? The Lindzons submit that Mr. Coates falsely or negligently represented that the Vehicle was fit for the CPP by signing the 360-Degree Inspection Checklist when it was not. They allege that Mr. Coates signed the 360-Degree Inspection Checklist without either inspecting the Vehicle or having completed the inspection and was unconcerned as to the truthfulness of the certification. They also allege that the Checklist was tampered with and/or fabricated. Mr. Lindzon relied primarily on certain apparent differences between the white, customer copy and the yellow, dealer copy to support his position. At trial, it was apparent that there were some differences between the two copies. However, the evidence of Mr. Rempol, a Parkview BMW employee who deals with vehicles coming off lease, was that there was no reason to believe that the white and yellow copies of the 360-Degree Inspection Checklist came from different documents and that one copy had been fabricated. The differences between the two copies was fully explained away as relating to the fact that the Checklist was carbon-copy but only one-way. In addition, Mr. Coates, Mr. Ismale and Mr. Rempol all testified that the Checklist was properly completed. Their evidence was that it was common to sign the Checklist and have certain repairs subsequently completed. No evidence was provided on behalf of the Lindzons as to the standard practice in completing the 360-Degree Inspection Checklist being different from that described by the BMW witnesses. In any event, in fact, the CPP was provided for the Vehicle and all covered repairs were completed at no cost to the Lindzons. D

10 10 Accordingly, I find that there is no evidence to support the claims made with respect to the 360- Degree Inspection Checklist. Issue #8: Were fraudulent or negligent misrepresentations by Parkview BMW with respect to an alleged further accident history search in February, 2011? The Lindzons allege that Mr. Coates agreed to acquire a new collision history report in February, 2011 and that he advised them that the report was `clean', either having either seen a further report to the contrary or having not actually obtained one, in order to actively conceal the accident history of the Vehicle. This allegation was not put to Mr. Coates at trial. For the reasons on credibility set out above, including the breach of the Rule in Browne v Dunn, I give no weight to this evidence of Mr. Lindzon's with respect to this allegation and find that no such representation was made by Mr. Coates. Issue #9: Are the exclusionary clauses in the CSA enforceable with respect to any ne~li~ent or innocent misrepresentations? In the event that I am found to be wrong with respect to the claims of negligent and innocent misrepresentations, I am satisfied that the entire agreement language found in sections 15 and 19 of the CSA specifically exclude any oral representations which may have been made by Parkview BMW or other Defendants. In determining the enforceability of the exclusionary sections, it is necessary to apply the test set out in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), [2010] S.C.J. No. 4: i) that the exclusionary clauses are applicable, ii) that they were not unconscionable at the time the CSA was entered into and iii) that there is no overriding public policy reason for not enforcing them. am satisfied that the first part of the test, the applicability of the exclusionary language to the negligent and innocent misrepresentations allegedly made by the Defendants, is met. am also satisfied that the sections were not unconscionable at the time the CSA was entered into. The evidence of Mr. Lindzon was that he had just graduated from law school. Given this educational background, it is reasonable to expect that he would understand the importance of reading any agreement which he was entering into and including, in writing, any critical representations being relied upon. I do not accept that he was rushed into entering into the CSA as he alleged. In fact, at the time that the Lindzons took possession of the Vehicle, the CSA was amended to include the repairing of some minor dents at the request of the Lindzons. It is reasonable to expect that any oral representations of importance to the Lindzons would have been reduced to writing at this

11 point in time. There is, therefore, no evidentiary basis for finding that the exclusionary sections were unconscionable at the time the CSA was executed. As there is no overriding public policy to refuse to enforce them, I am satisfied that sections 15 and 19 of the CSA protect the Defendants from liability based upon negligent and/or innocent misrepresentations. Issue #10: Were Parkview BMW, BMWFS and BMW Canada ne~li~ent in failing to ensure that the Vehicle was adequately serviced pursuant to the warranties? Did BMW Canada breach the terms of the manufacturer's warranty and/or the CPP? The Lindzons submit that the Vehicle was not properly serviced and that Parkview BMW were negligent in failing to diagnose and fix "an ongoing lifter problem, oil/transmission leak problem, starter problem and engine noise problems" and other "breaks [sic], starter and electrical components". They also submit that BMW Canada breached a duty to ensure that repairs were properly made by Parkview BMW and that it breached the manufacturer's warranty and/or the CPP by failing to ensure that proper repairs were completed. As indicated above, the only expert evidence given at trial was that of Mr. Coates. It was his evidence, based upon all of the service records, that, at the time of the last service record, the Vehicle did not need any repair other than a crank vent hose replacement which was not covered by the CPP. He stated that there was no engine problem, no indication of an oil problem and that there was nothing which would have prevented the Lindzons from using the Vehicle if the crank vent hose had been replaced on the last service attendance. He was certain that the crank vent valve problem was not there at the time of sale and stated that there was nothing to show that the engine was defective or needed to be replaced. He gave reasonable alternative explanations for certain complaints, including engine noises, mentioned by Mr. Lindzon and indicated that the fact that certain complaints could not be replicated it does not necessarily mean that there is a problem with the Vehicle. It was Mr. Coates' evidence that the Vehicle was fit and safe to drive and required only to the crank vent hose being replaced. Ms. Gurevich's evidence supported that of Mr. Coates. She stated that she had never had any engine problems with the Vehicle during the entire term of her lease. The Lindzons did not provide any independent, expert evidence to support their allegations that there had been a failure to repair or that the Vehicle was unfit or unsafe to drive; this despite the fact that they had and continue to have possession of the Vehicle. The evidence of Mrs. Lindzon would also have been relevant with respect to their position that the Vehicle had not been properly repaired and was unfit and unsafe to drive. Again, I draw a negative inference from her failure to testify.

12 Further, the manufacturer's warranty and CPP do not guarantee that there will not be any problems with the Vehicle. The warranties provided that any covered components which break as a result of defects in materials or workmanship will be repaired or replaced at no cost to the car owner. Mr. Coates testified that all repairs that were covered by warranty were completed at no cost to the Lindzons, including the waiving of the deductible on numerous occasions. There was no independent, expert evidence led that any repairs which should have been covered by the warranty had not been covered. Accordingly, I am satisfied that Parkview BMW, BMWFS and BMW Canada were not negligent with respect to any duty they may have had to ensure that the Vehicle was properly repaired pursuant to the warranties and that there was no breach the terms of the manufacturer's warranty or the CPP. Issue #11: Did Parkview BMW breach sections 15 and/or 51(1) of the Sale of Goods Act, R.S.O. 1990, c. S.1? The Lindzons submit that Parkview BMW breached section 15 of the Act. Section 15 of the Act, if applicable, would imply a condition that the Vehicle was "reasonably fit" for its purpose. As I have found that the Vehicle was fit to be driven, there is no evidentiary basis for finding a breach of section 15. Section 51(1) of the Act applies where there has been a breach of warranty. As I have found that there was no breach of warranty, I am satisfied that this section is inapplicable. Issue #12: Did Parkview BMW breach sections 14 and/or 15 of the Consumer Protection Act, 2002, S.O. 2002, c.30, Schedule A? The Lindzons submit that Parkview BMW breached section 14 of the Act by committing an unfair practice when it made a false, misleading or deceptive representation that the Vehicle had not been in an accident. As I have found that there were no fraudulent misrepresentations made with respect to the accident history of the Vehicle, there is no basis for finding a breach of section 14. The Lindzons also submit that Parkview BMW breached section 15 of the Act when it sold the Vehicle at a price which grossly exceeded the price at which similar goods, being a car which had been in an accident, would be readily available to a consumer. The evidence of the employees and former employees of the various BMW Defendants was that the value of the Vehicle was not, in their opinion, affected by the minor damage shown on the DataScan Report. No documentary or expert evidence was led on behalf of the Lindzons to support their allegations that the value of the Vehicle was diminished, in any way, based upon the incident which occurred during Ms. Guverich's ownership. The evidence of Mr. Lindzon that the value was diminished and that the Vehicle was value of the use of the Vehicle was $ per month was purely speculative and unsubstantiated. am not prepared to find that the price paid by the Lindzons greatly exceeded the price at which a 12

13 13 similar vehicle is readily available. Accordingly, there is no evidentiary basis to support the alleged breach of section 15 of the Act. Issue #13: Did the Plaintiffs properly mitigate their damages, if any? find that the Lindzons have failed to mitigate their damages. The evidence of Mr. Coates was that the Vehicle was fit to be used and that the only repair required as of November 29, 2011 (the last day the Vehicle was serviced) was the replacement of the crank vent valve hoses. Instead of choosing to replace the hoses, the Lindzons state that they stopped using the Vehicle and put it into storage at a cost of $ per month. Apparently, they did not take the Vehicle to any other repairer to have its condition as unfit verified and to have it repaired. Further, it was apparent at trial that reasonable offers to trade in the Vehicle and purchase another comparable car were made by Parkview BMW but rejected by the Lindzons. It appeared that Mr. Lindzon did not take reasonable steps to properly understand the offers and had not made any genuine attempts to mitigate. Accordingly, I am satisfied that by failing to make attempts to have the Vehicle repaired by a third party, by storing the Vehicle and by rejecting reasonable offers to purchase another car, the Lindzons failed to mitigate any damages. Having failed to properly mitigate, the Lindzons are not entitled to any potential damages. JUDGMENT Based upon the foregoing, the Plaintiff's Claim is dismissed in its entirety. The Defendants shall have 30 days to serve and file written submissions on costs. The Plaintiffs shall have a further 14 days from receipt of the cost submissions of all Defendants to serve and file written submissions on costs. Dated this 14th day of June, Deputy Judge L.S. Ntoukas