IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         This case is about a failed sale and purchase of a brand new motor vehicle and the interesting intricacies of the new vehicle sales industry in Canada. Peter Andrew Sterczyk (the “Claimant”) is a licensed real estate sales person and associate broker in the Nanaimo office of national real estate network. At the time of this trial he had moved to another real estate firm. While with the first real estate firm, he entered into negotiations for the purchase of a vehicle with a sales representatives of the defendant, DFS Motors Ltd. (the “Defendant”). The Defendant is a Ford Dealership and carries on its business in Duncan, BC under the name of Island Ford.

[2]         The negotiations occurred during a period in or around November and December of 2019. The subject matter of the negotiations was a new 2019 Ford Mustang, which as between the parties was identified by a specific vehicle identification number (or “VIN”) ending in the numerals 5161 (the “Vehicle”). It is not disputed that at all material times the Vehicle was physically in the possession and under the control of another Ford Dealership located in Surrey, BC, which was identified in the evidence as Mainland Ford.

[3]         The Claimant contends in his Notice of Claim filed on December 17, 2020, that the parties reached an agreement for the purchase and the sale of the Vehicle at an agreed purchase price of $26,060.71 exclusive of all taxes (the “Purported Purchase Price”). The Claimant alleges that pursuant to that agreement he paid a deposit of $2,500 (the “Deposit”) to the Defendant.

[4]         The Claimant further alleges that immediately thereafter the Defendant informed the Claimant that it would not be supplying the Claimant with the Vehicle although, says the Claimant, it was readily available. Furthermore, the Claimant says that the Defendant then attempted to provide him with a “switch vehicle” which he claims to be of a substantially lesser market value of some $6,109, but for the same Purported Purchase Price. The Claimant seeks return of the deposit and damages for the alleged breach of contract.

[5]         In its Reply filed on December 29, 2020, the Defendant denies any breach of contract and any resulting damages on the basis that there were un-met pre-conditions for completion of the sale and purchase of the Vehicle. The Defendant further argues in the alternative that “there was no consensus ad idem or meeting of the minds” with respect to nature of the accessories and equipment installed by a third party on the Vehicle. In the further alternative, the Defendant pleads mutual mistake, or alternatively unilateral mistake or alternatively frustration of contract, relying upon the Frustrated Contract Act, R.S.B.C. 1996 c. 166.

[6]         The task of this Court is to determine whether or not the Claimant has proven the existence of the contract, whether the Claimant has proven that the Defendant has breached that contract and if so, whether the Claimant has proven what damages, if any, flow from that breach.

[7]         The Claimant testified as his own and only witness. In course of his viva voce evidence he introduced several documents.

[8]         Justin Pambrun, who is and was the Defendant’s General Manager at all material times, testified as the sole witness of the Defendant. In the course of his viva voce evidence he also introduced several documents from the Defendant’s business records.

[9]         I do not intend to describe the minutiae of all of the evidence presented in this case. I have rather taken a more compressed and somewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings. This approach was approved by Provincial Court Judge Woods in R. v. Connell, 2017 BCPC 123, at paras. 5 and 6. This approach has been followed in other decisions of our court and recently in my own decision of Vista Leadership Inc. v. Pilon, 2021 BCPC 320; 2021 CarswellBC 4168.

[10]      However, in drawing necessary inferences and in reaching my conclusions, I have carefully considered all of the evidence, even if I have not made specific reference to certain aspects of it.

[11]      According to the Claimant’s evidence he conceived of a 2020 year long promotional contest which he dubbed “Win My Ride” whereby a “lucky client literally wins my vehicle.” The eligible contestants would be the consumers who completed a real estate transaction through him, either as a purchaser or a seller, or a purchaser of one of his listed properties through another agent.

[12]      His plan was to acquire a new car with dealer financing in December 2019, use it during 2020 and then draw the winner on December 31, 2020, pay off the financing balance owing and transfer title to the winner in January 2021. He sought and received tax and legal advice concerning this planned promotion; he also obtained an internet domain name to host and advertise this promotional campaign. He testified that he was attempting to get the entire promotional program in place including the purchase of the motor vehicle by the end of 2019.

[13]      The Claimant was attracted to the Defendant’s own promotion called “Mustangs at Cost” which he apparently noticed while driving by the dealership in early November of 2019.

[14]      As part of the Claimant’s documentary evidence he entered an archived web page from the Defendant’s website for a time period around when he started his negotiations with the Defendant. The banner stated: Mustangs at Cost. It featured a new 2019 Ford Mustang GT Coupe with a manufacturer’s suggested retail price (“MSRP”) of $42,589 which could be acquired from the Defendant for $37,094 plus a $509 documentation fee. The pricing excluded licensing and taxes. According to the webpage, manufacturer’s financing could be available at 0% up to sixty months. The webpage described a number of the features and accessories for that particular featured car. Contained within the webpages were various applicable conditions and disclaimers. It included the following:

[15]      According to the evidentiary documentation submitted by both parties, the term “MSRP” is explained as a price that has been “developed” as a guide. Dealers may sell for less and are not under any obligation to accept this suggested retail price.

[16]       It is not clear from the Claimant’s evidence whether or not he saw this archived web page during or at the time that he started dealing with the Defendant to negotiate his agreement or at some time thereafter.

[17]      The Claimant made contact with and then only dealt with Abraham Lee, who was at that time a salesperson with the Defendant. Mr. Lee was not called as a witness by either the Claimant or the Defendant, although I understand he still lives and works on Vancouver Island and now works as a business manager at another local vehicle dealership.

[18]      According to the Claimant’s evidence, all of his communication with Mr. Lee was by telephone, text or email. Except for a very few, no copies of the text messages were entered as exhibits because the Claimant did not think they were relevant. Some emails were entered as exhibits, but for the most part, they relate to the time period after the parties were at odds.

[19]      The Claimant testified that when he was speaking with Mr. Lee, he explained the nature of his promotional contest, the required promotional vehicle, its budget, and the timelines for the promotional contest.

[20]      According to the Claimant, he provided Mr. Lee with the “rough parameters” for the promotional vehicle indicating that the colour had to be red, white or blue in order to be consistent with the colour branding of the national real estate network with which he was then affiliated; it was important to have an automatic transmission and that his budget for acquisition of that promotional vehicle was under $30,000 inclusive of all taxes and fees.

[21]      No confirming correspondence or exchanges of written documentation were entered as documentary exhibits to confirm these “rough parameters” and specifically there is no correspondence from Abraham Lee provided to the Court confirming these “rough parameters.”

[22]       As part of the Claimant’s documentation there is an email from Abraham Lee sent to the Claimant, dated November 25, 2019, when unhappy differences were arising between the parties which says in part:

[23]      The Claimant disputes the accuracy of that statement of Abraham Lee as it relates to the type of transmission.

[24]      According to the Claimant, after an initial communication exchange, Abraham Lee then contacted the Claimant by telephone within about two weeks, likely around November 21, 2019, to indicate that he could buy a suitable car from another Ford dealership, but he did not specify which dealership it was. In fact, as it turned out, it was Mainland Ford. The suitable car of which Abraham Lee spoke of was the Vehicle.

[25]      According to the Claimant, he also spoke by telephone with an individual whom he understood to be the sales manager at Island Ford, who told him that the name of the actual dealership which had the Vehicle would not be shared with the Claimant because the Defendant did not want the Claimant going directly to that other dealership. As it turns out, according to the evidence of Justin Pambrun, that individual was Mitch James, the sales manager at the time, who was not called as a witness at trial because he no longer works for the Defendant and he has relocated to Ontario.

[26]      Upon Abraham Lee contacting the Claimant, around 3:46 p.m. on November 21, 2019, Mr. Lee sent a text message to the Claimant with a partial photograph of a document known as a “window sticker” for the Vehicle. As I understand it, when a motor vehicle is built, it is issued a “window sticker” apparently produced from the manufacturer’s details about the motor vehicle, including environmental and fuel consumption information and other important details. The Vehicle’s window sticker sent by Abraham Lee to the Claimant (the “Vehicle’s Original Window Sticker”) contained a description of the Vehicle including a portion of the details of the VIN and its exterior colour being “Velocity Blue”, as well as information about the Vehicle’s “standard equipment”, “warranty” and “optional equipment” which in this case included the 10-speed automatic transmission valued at $1,500 and “17 Sparkle Silver Alum Wheel” with no value referenced. It also contained the MSRP for the Vehicle which was shown as $32,885.

[27]      Pursuant to discussions between the Claimant and Mr. Abraham Lee , Mr. Lee sent the Claimant a form document that he prepared which was headed “Offer to Purchase”, including within it the Defendant’s name and business location. It was addressed to the Claimant and contained within it a reference to a 2019 Ford Mustang, the last digits of the VIN, a reference to it being “new” and with odometer reading stated as “250”. The date appearing on the Offer to Purchase was “11/21/2019” being November 21, 2019.

[28]      Under the heading “New Vehicle” the following information appeared all hand written except for reference to the “Documentation fee and taxes noted below”:

[29]      At the bottom of that document (hereinafter the “Offer to Purchase”) appeared separate lines for the “Seller’s Acceptance Signature and “Buyer’s Signature” and both containing the above noted date. No signatures appear on the Offer to Purchase.

[30]      The Claimant testified that he “verbally accepted the offer” notwithstanding that the form of the “Offer to Purchase” is fashioned such that it is the buyer who is making the offer. He also testified that he provided Abraham Lee with his credit card for a required deposit of $2,500 (the “Deposit”). That amount was transacted on his credit card by the Defendant around 4:20 p.m. on November 21, 2019, and a hand written receipt dated November 21, 2019, (the “Receipt”) was issued by the Defendant which contained an inserted notation “ST Locate”. The Claimant says he did not know what “ST Locate” meant, nor did he authorize it to be put on the Receipt.

[31]       It is now accepted by the parties that “ST Locate” means “subject to locating”, that being subject to the Defendant “locating” the Vehicle which was subject of the Deposit, and that being in the sense of obtaining that Vehicle for sale to the Claimant.

[32]      According to Justin Pambrun’s evidence, the purpose of the “Offer to Purchase” and the receipt of the Deposit was to put the Defendant in the necessary position to approach Mainland Ford in order to acquire the Vehicle for resale to the Claimant.

[33]      There was no specific discussion between the Claimant and Abraham Lee about the nature of the Deposit, but it appears to be common ground that the Deposit was to be applied to the Purported Purchase Price and would be refundable to the Claimant if the Defendant was unable to provide the Vehicle.

[34]      Although the Claimant does not have a business background in the automotive sales business, his evidence is that he was very familiar with the existing stock of Ford motor vehicles in British Columbia from accessing the manufacturer’s Ford.ca website. As I understand it, having received the photo containing a portion of the Vehicle’s Original Window Sticker, which included the Vehicle’s make and model and the reference to “Velocity Blue” and the VIN number, he tracked down the Vehicle and found it on the Mainland Ford website.

[35]      From the Mainland Ford website he learned that the Vehicle was shown to have a MSRP of $39,194 and Mainland Ford was advertising “Savings” of $5,000 with a resulting “Dealer Price” of $34,194. “Dealer Price” was described in the following manner:

[36]      As I understand it, the Claimant was also able to view photographs of the Vehicle on the Mainland Ford website and to learn that the “Features” included “Equipment Group 100 A” and a “10-Speed SelectShift Automatic Transmission”. No specific prices or values were stated for these “Features.”

[37]      The evidence supports the conclusion that the Claimant did not disclose to Abraham Lee or any other representative of the Defendant that he had obtained this additional information about the Vehicle from the Mainland Ford website. The timing of its receipt by the Claimant is not clear on the evidence.

[38]      A copy of the Mainland Ford’s website containing information about the Vehicle was downloaded and printed on November 23, 2019, based upon the printed version that appears in Exhibit 1, although it is possible that the Claimant viewed it earlier than that date. The viva voce evidence of the Claimant certainly supports that inference because the Claimant said in his evidence that in the context of the Mainland Ford’s website information and the photographs of the Vehicle, he viewed and obtained and included in Exhibit 1, that he “made the comparisons” about what features were on the Vehicle.

[39]      He specifically noted that he could see the following features from those photographs which included:

[40]      At some unspecified later time the Claimant also was able to confirm in discussions with a representative of Mainland Ford, that the Vehicle was also equipped with a “performance upgrade package” which included an exhaust system and an enhanced automatic electronic speed control enhancement attached to the foot pedal.

[41]      It is noteworthy that the Vehicle’s Original Window Sticker sent to the Claimant by Abraham Lee specifically made mention of “seats cloth bucket” and the “17 Sparkle Silver Alum Wheel” and made no mentioned of the enhancements noted above nor the “performance upgrade package.”

[42]      The Defendant contacted Mainland Ford following the service of the Claimant’s Notice of Claim and in preparation for this trial and well after the negotiations between the Claimant had collapsed. The Defendant was thereby able to obtain from Mainland Ford’s four internal service invoices rendered as between, their service and sales departments, June 18, 2019, and December 4, 2019, which detailed the costs relating to the various upgrades. These documents were admitted into evidence.

[43]      Those documents confirm that prior to the time period of the Parties negotiations, the following upgrades were installed on the Vehicle at a total cost of $6,125.49 ( the “Vehicle Upgrades”):

[44]      These upgrades mostly occurred in late November and early December of 2019 and therefore were not reflected on the Vehicle’s Original Window Sticker that Abraham Lee provided to the Claimant.

[45]      The evidence supports the conclusion that neither Abraham Lee nor any other representative of the Defendant saw the information about the Vehicle on the Mainland Ford website at the time they were dealing with the Claimant on the Vehicle.

[46]      According to Justin Pambrun’s evidence, the Defendant and its sales representatives and the standard industry procedures for Ford dealerships is to use and rely upon an internal computerized system available to all Ford dealerships. This is in order to obtain necessary information about the Ford dealerships’ network inventory and full details about available Ford motor vehicles, network wide. According to Justin Pambrun, this internal system provides more detailed information than what is available to the general public on the Ford.ca website. Thus, through this internal system a dealer may find out the MSRP of any motor vehicle and the actual dealer invoice price, being what Ford, as the manufacturer, has charged a dealership for a particular motor vehicle and any Ford motor vehicle in Canada. The use of the internal website eliminates the impractical requirement for a Ford dealer looking at the websites of other Ford dealers to find a motor vehicle of a certain kind, description, features and price.

[47]      However, dealership sales persons like Abraham Lee do not have open and general access to this internal dealership system; they must seek available information from a dealership’s sales manager or other level of management in the dealership to obtain such information. It is the sales manager who must ultimately “approve the deal”. The information on this internal system informs their decision.

[48]      As part of the Defendant’s documentary evidence is a copy of the actual dealer invoice for the Vehicle as at June 20, 2018, (the “Actual Dealer Invoice”) which shows the dealer invoice price as $31,472 and the MSRP at $32,885. The Actual Dealer Invoice lists the equipment shown on the Vehicle’s Original Window Sticker for the Vehicle that Abraham Lee sent to the Claimant. It does not show any of the Vehicle Upgrades nor the cost of them.

[49]      Again, according to Justin Pambrun’s undisputed evidence, upgrades to a motor vehicle like the Vehicle Upgrades, are used by some Ford dealerships to increase the market value and the retail price and to thereby limit and to dissuade the export of popular motor vehicles (such as “small displacement Mustangs”) outside of Canada. Such exports may be contrary to a dealership’s agreements with Ford Canada. Apparently a “black list” exists of individuals who commonly seek to export popular Ford motor vehicles and with whom dealers will avoid dealing with. There was no suggestion that the Claimant was on such a “black list” and hence that was not an impediment for the Defendant seeking to procure the Vehicle for him. In any event, it is most likely that in keeping with Ford Canada’s requirements that the Claimant would have been required to sign a “Non-Export Agreement.”

[50]      As I understand it, the Defendant’s sales manager contacted and sought to obtain the Vehicle from Mainland Ford following the delivery of the Offer to Purchase and the payment of the Deposit. They learned of the existence of the Vehicle Upgrades and the fact that they could not obtain the Vehicle for the Claimant at the prices set out in the Actual Dealer Invoice and that the MSRP was not that as set out in the Vehicle’s Original Window Sticker sent to the Claimant.

[51]      It was at this point, Abraham Lee informed the Claimant of that fact. Furthermore, and as I understand it, Mr. Lee provided an explanation and stated that the Vehicle was not available at the price which had been discussed because of the Vehicle Upgrades, about which neither Abraham Lee nor the Defendant’s sales manager were aware.

[52]      Thereafter, Abraham Lee continued to search for motor vehicles that would be available and would meet the parameters of a new Ford Mustang for $30,000 “O.T.R.” and presented them to the Claimant.

[53]      Abraham Lee sent the Claimant window stickers for other motor vehicles which the Claimant rejected on the basis that these vehicles were of “lesser value” because they did not have all of the options contained in the Vehicle Upgrades. He was basing this on his own research and primarily on the MSRP’s he was seeing on other dealer’s websites. Therefore the MSRP for the Vehicle on the Mainland Ford website was $39,194 and he was being presented with an alternative new Ford Mustang with an MSRP of $33,085 and hence a difference of some $6,109.

[54]      The Claimant testified that he did not compare the features of each of the alternate vehicles on an item by item basis in order to reach this conclusion.

[55]      He rejected the first alternative new Mustang because it was green in colour and had a 6-speed manual transmission, which he contends failed to satisfy the important specifics of his parameters for a new Ford Mustang.

[56]      The Claimant rejected a second alternative of another new Ford Mustang. It was offered to him by Abraham Lee for $30,000 “on the road” but rejected by him because the MSRP was some $4,746 less than the MRSP for the Vehicle, as it appeared on the Mainland Ford website. The second alternative Ford Mustang was another shade of blue which was acceptable, but he rejected it on the basis of what he said was “its lesser value.” Specifically it did not have the “EcoBeast” options although he was not certain about all that was included in that particular package. However, without specifically knowing that, he concluded that this second alternative vehicle was missing the Vehicle Upgrades.

[57]      Abraham Lee’s email of November 25, 2019, to the Claimant offered him an alternative Mustang for a price of “$30,000 all in”. It further indicated that if this was not acceptable to the Claimant then the Defendant would return the Deposit to the Claimant by way of a credit back to his credit card and requested credit card particulars from the Claimant. Those particulars never were provided and the Claimant thereafter refused to accept the return of the Deposit.

[58]      The Claimant consulted legal counsel. On or about December 2, 2019, the Defendant received a letter dated November 29, 2019 (the “Solicitors’ Demand Letter”) sent on behalf of the Claimant. It demanded specific performance of the alleged contract for the delivery of the Vehicle and required that the Defendant provide confirmation that the Defendant would be providing the Vehicle or before 4:00 p.m. on December 3, 2019. Failing that, it threatened legal action against the Defendant for “serious adverse financial implications” caused to the Claimant. The Solicitors’ Demand Letter was addressed to the attention of Abraham Lee. It cited the Offer to Purchase for the Vehicle identified as having a VIN ending in 5161 and the payment of the Deposit as being the basis of the agreement between the parties. In addition the Solicitors’ Demand Letter indicated as follows:

[59]      The Claimant testified that he instructed his lawyers to prepare the Solicitors’ Demand Letter and that he agreed with its contents and in fact, he personally sent it to the Defendant via fax.

[60]      The Defendant did not provide the demanded confirmation and did not deliver the Vehicle, but of course did offer the two alternative Mustangs to the Claimant, which he rejected.

[61]      I understand that negotiations continued between the parties, with and without the assistance of lawyers, but no settlement resolution was reached.

[62]      There was apparently a third alternative Mustang located at the Applewood Ford Dealership in Port Hardy, which was available to the Defendant for sale to the Claimant. By way of email exchanges between legal counsel on December 6, 2019, that third alternative was offered to the Claimant for the $30,000 “on the road price” but it was also rejected by the Claimant in the course of the negotiations between legal counsel.

[63]       As I understand it from the documentary evidence and the Ford Motors internal documentation, this third alternative was Kona Blue Mustang and with a 10-speed automatic transmission, but did not have the EcoBeast options or the Vehicle Upgrades. The total Dealer invoice price was $32,770 and the MRSP was $34,299.

[64]      The Claimant’s Notice of Claim was filed December 17, 2020.

[65]      Based upon the documentary evidence presented to the court, the Vehicle was ultimately sold by Mainland Ford on August 22, 2020, to another third party buyer. The details are set out in a formal “Motor Vehicle Purchase Agreement” (the August 2020 MV Purchase Agreement). The “Total Purchase Price” was shown to be $32,048 with a disclosed “Price of the Vehicle” at $24,696, plus accessories with a value of $4,800 for a total of $29,496, plus an additional $ 2,552 in administration fees, a “protection package”, a fuel fee and a tire disposal fee. Mainland Ford accepted a trade in of a 2013 Hyundai with an allowance given of $8,000.

[66]      The Claimant commissioned an expert’s report from The Fournier Auto Group Ltd. which was completed June 10, 2021, (the “Fournier Report”). It was admitted into evidence as an expert’s report as part of the Claimant’s case. The author of the Fournier Report, Robert Fournier was not called as a witness.

[67]      The stated purpose of the Fournier Report was as follows:

[68]      The motor vehicle subject of the Fournier Report was the Vehicle.

[69]      The Fournier Report and the opinion of the fair market value of the Vehicle was based upon the following relevant facts about the Vehicle:

[70]      The Fournier Report concluded that it was the author’s opinion that the Vehicle had a fair market value as at November 21, 2019, “in the range of $32,960 Canadian Dollars” plus taxes (the “Opinion of FMV Figure”).

[71]      The Claimant testified that his measure of damages suffered as a result of the Defendant failing to provide him with the Vehicle should be calculated as the difference between that Opinion of FMV Figure of $32,960 and what the Claimant says was agreed net amount of the Vehicle shown on the Offer to Purchase, being the Purported Purchase Price of $26,060.71, which equals $6,899.29 (all before taxes).

[72]      In cross-examination, the Claimant stated that he presumed that the Defendant was selling him a Mustang “at their cost” but he had no idea how “their cost” was being calculated. He suggested it would be “their business’ cost”. He did not discuss this with Abraham Lee nor any other representative of the Defendant. He contends that he had no reason to question the price contemplated in the Offer to Purchase, despite the fact that at some point he had become aware of the all of the Vehicle Upgrades nor did he ever discuss those with Abraham Lee.

[73]      The Claimant testified that he did not require any dealer financing to complete the purchase of the Vehicle, as he had available cash. He asserts that he was ready, willing and able to complete the purchase of the Vehicle at all material times up to and including the time that Vehicle was eventually sold by Mainland Ford in August 22, 2020. The Claimant never directly approached Mainland Ford about the Vehicle.

[74]      The Claimant says that he abandoned his “Win My Ride” promotional scheme in the middle of December of 2019. He never did purchase a Mustang for it or thereafter for himself.

[75]      Justin Pambrun’s further evidence is that the third alternative Mustang available from the Port Hardy dealership was “nearly identical” in terms of its options and pricing as set out in the Vehicle’s Original Window Sticker sent to the Claimant by Abraham Lee on the afternoon of November 21, 2019.

[76]       Specifically, both Mustangs had the same engines and the same 10-speed automatic transmissions as well as the same exterior, interior, functional, safety/security and warranty features. The blue colour was a different shade. The MSRP shown on the Vehicle’s Original Window Sticker received by the Claimant from Abraham Lee on November 21, 2019, was $32,885 and the MSRP on the third alternative Mustang was $34,299.

[77]      Of course, no mention was made on the Vehicle’s Original Window Sticker received by the Claimant on November 21, 2019, of the Vehicle Upgrades such as the EcoBeast package that had been installed by Mainland Ford. No such upgrades had been installed on the third alternative Mustang.

[78]      Justin Pambrun’s further evidence is that based upon the documentary evidence provided by Mainland Ford, when the Vehicle was eventually sold by Mainland Ford in August 2020, it had been on the lot for close to two years. That sale price was actually some $2,300 less than the amount that the Defendant had offered to pay to Mainland Ford at the outset to obtain the Vehicle.

[79]      Justin Pambrun provided details of the Defendant’s calculations of their “Total Dealer Gross Profit” on the Vehicle, on the third alternative Mustang and on another Mustang vehicle on the Defendant’s lot, which had several superior features than the stock version of the Vehicle, or the stock version of third alternative Mustang. The Claimant sought to obtain this superior Mustang as a settlement vehicle; that proposal was rejected by the Defendant.

[80]      Using the original Dealer Invoice Costs for each of the three Mustang vehicles (which for the Vehicle was $31,472.00) and then adding in the transportation fees and deducting the Ford Delivery Allowances (being the manufacturer’s allowances) produces a separate “Dealer Cost” figure for each of the three vehicles. When each of these Dealer Cost figures has been deducted from it the negotiated Purported Purchase Price of $26,060.71, which was used to produce the “$30,000 O.T.R.” figure discussed by the parties, the resulting negative Total Dealer Gross Profit Figures are as follows:

[81]      Justin Pambrun testified and the documentary evidence supports that the Defendant eventually issued its cheque to the Claimant as a full refund of the Deposit on March 10, 2021, instead of continuing to attempt to credit it back to the Claimant’s credit card, for which the Defendant did not have details.

[82]      The burden of proof in a civil case rests with a claimant to prove their case on the standard of a balance of probabilities. The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41 at paragraph 49, states:

[83]      Therefore, the Claimant must prove the existence of the facts and other essential elements upon which he relies in order to succeed in his claim against the Defendant. If he fails to do so, he cannot succeed.

[84]      What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt. That standard of proof applies only in criminal trials. In civil trials the party who has the burden of proof on an issue must convince the finder of fact (here being the Court) that what she or he asserts is more probable than not, or to put it another way that the balance is tipped in his or her favour [see: F.H. v. McDougall, supra].

[85]      The degree of probability required to meet the standard and to discharge this burden of proof has been defined by Lord Denning in the following terms:

[86]      In Smith v. Smith 1952 CanLII 3 (SCC), [1952] 2 S.C.R. 312; [1952] S.C.J. No. 25 (S.C.C.) Justice Cartwright ( as he then was) of the Supreme Court of Canada articulates the applicable test as follows:

[87]      Sopinka, Lederman & Bryant: The Law of Evidence in Canada, Third Edition (LexisNexis Canada Inc., 2009) [“Sopinka et al.”] at ss. 5.52 and 5.53 provide the following useful summary:

[88]      Sopinka et al. in section 5.53 at footnote 135 go on to cite Dixon J. in Briginshaw v. Briginshaw (1938), 60 C.L.R. 336 at 361 to 362 (H.C.A.) for the proposition that there must be a subjective belief by the tribunal of the fact, expressed in the following words:

[89]      If the evidence on an issue is evenly balanced, such that the trier of fact is unable to say where the balance of probabilities lies, then the decision on that issue must be made against the party who has the burden of proving it.

[90]      In deciding whether an issue has been proven on a balance of probabilities, the trier of fact must consider all of the evidence relevant to that issue, no matter who produced it.

[91]      In this case, I have heard evidence that is conflicting on some material matters. Therefore, I must assess the credibility of the witnesses who provided this conflicting evidence.

[92]      The Court can accept some, all or none of the evidence of a witness. In many cases credibility assessment is reasonably straightforward. However, in others it is not. In most respects, this case falls into the first category.

[93]      The test for assessing the credibility of a witness is well known, if not always easy to apply. O'Halloran J.A. in Faryna v. Chorny (1951), 1951 CanLII 252 (BC CA), 4 W.W.R. (N.S.) 171 (B.C.C.A.) states as follows:

[94]      In this case, I do find at the end of the day that credibility of either of the two witnesses has been significantly impugned nor is either attempting to deceive the Court. Any material disputes on the evidence are therefore best resolved by me considering both witnesses’ evidence in the context of the whole of the evidence to determine what makes sense.

[95]      The Claimant submits that there was a breach of a contract by the Defendant whereby he agreed to purchase and the Defendant agreed to sell him a “specified new model year EcoBeast Ford Mustang” which is alleged to be the Vehicle. He seeks specific performance or damages in lieu and the recovery of the Deposit and additional cost “incurred” to bring the matter to trial.

[96]      The basis of his damages is described above, but also includes alleged damages for his incurred legal fees for the lawyers he consulted about the alleged breach of contract and who wrote the Solicitors’ Demand Letter, the cost of the Fournier Report; BC On-line searches and costs of unsuccessful service attempts upon a witness who worked for Mainland Ford.

[97]      The Defendant submits that:

[98]      The Defendant further submits that the Claimant has suffered no damages or losses, but if so, then the Claimant has failed to mitigate, and further that such damages and losses are not reasonable and are too remote and not recoverable in law.

[99]      Therefore main issues for consideration and determination in this action to come to a decision are as follows:

[100]   In making the required determinations this court must consider several fundamental principles of the law of contracts and ultimately apply them to the facts that that the Court finds have been proven.

[101]   In Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc. 2009 BCSC 1303 (“Le Soleil”), the Honourable Justice Gail Dickson, then of the Supreme Court of British Columbia, at paragraphs 321 to 341 provides a comprehensive summary and guide to the law of contracts which I find to be very useful. I have relied upon it in my analysis and in reaching my conclusions. In doing so, I have not necessarily been required to consider or apply all of the principles that have been enunciated in Le Soleil.

[102]   In paragraphs 321 to 323, states the following fundamental principles of contractual relationships and obligations:

[103]   In paragraphs 324 to 335, under the heading “Intention to Create Legal Relations” Justice Dickson goes on to state as follows:

[104]   Under the heading “Certainty of Terms” Justice Dickson provides the following additional guidance at paragraphs 339 to 341:

[105]   Under the heading of “Mistake” Justice Dickson says as follows at paragraphs 360 to 361

[106]   Based on all of the evidence that I accept, the parties were negotiating for the sale and purchase of a new Ford Mustang with certain features and characteristics set forth in the Vehicle’s Original Window Sticker sent by Abraham Lee to the Claimant on November 21, 2019. The sale and purchase price was $30,000 “On the Road.”

[107]   The Offer to Purchase dated November 21, 2019, was sent by the Defendant’s sales representative to the Claimant setting out the proposed financial terms of the transaction. The Offer to Purchase also contained reference to the last 4 digits of the Vehicle’s VIN. Neither party ever signed the Offer to Purchase.

[108]   The features and characteristics of the Vehicle set forth in the Vehicle’s Original Window Sticker received by the Claimant as part of a text message sent on or about 3:46 p.m., November 21, 2019, did not include nor refer to the “EcoBeast” package nor to any of the other the Vehicle Upgrades nor any references to these or any other enhancements.

[109]   There is no doubt that the Ford Mustang that was the subject of the negotiations was the Vehicle. It was understood by both parties that the Vehicle was in the possession of another Ford dealer and would have to be acquired from that third party dealer by the Defendant in order to complete the sale. It is also quite apparent that neither the Claimant nor any representative of the Defendant had ever viewed or inspected the Vehicle in person. The name of the third party Ford dealer (in this case Mainland Ford) was not disclosed to the Claimant. He was not invited nor told by the Defendant’s representatives to view the Vehicle on line or in person.

[110]   The Deposit amount was processed through the Claimant’s credit card at 4:19 p.m. on November 21, 2019.

[111]   Using the limited amount of disclosed information about Vehicle’s VIN number the Claimant was adept enough to actually find and view the Vehicle on the Mainland Ford’s website. It is not entirely clear when that occurred but I find that it most likely occurred after the conclusion of the negotiations and the Deposit had been processed on the Claimant’s credit card.

[112]   Thereafter, when the Claimant viewed the Vehicle on line, he became aware of the significant number of additional upgraded features possessed by the Vehicle, such as the EcoBeast package, that did not appear in the Vehicle’s Original Window Sticker for the Vehicle that he had received Abraham Lee.

[113]   Significant reliance is place by the Claimant on the fact that the Offer to Purchase and of course the Vehicle’s Original Window Sticker provided to him referenced the Vehicle’s VIN. The Claimant apparently reasons that it was the specific Ford Mustang with that VIN which forms the basis of the negotiations and any resulting contract. Thus, as I understand this argument, it is the Vehicle’s features and accessories that are to be actually found on that particular Ford Mustang at the time of the consummation of the sale and purchase and not as such are described on the Vehicle’s Original Window Sticker provided to him.

[114]   With the greatest of respect, I find that such reasoning has no merit. I am quite certain that the Claimant would not be adopting that reasoning (and rightly so) if it turned out to be that the features and accessories described in the Vehicle’s Original Window Sticker had actually been removed from the Vehicle or were of lesser quality or fewer in number. In other words, on the basis of this faulty reasoning, although the Vehicle being purchased by Claimant would be of lesser quality or value than described in the Vehicle’s Original Window Sticker, the VIN would be entirely decisive of the subject matter of the negotiations or any resulting contract. In my view, the parties did not reach such an agreement.

[115]   On the whole of the evidence that I accept, I conclude that a contract was formed between the parties. I do so on the following basis and a determination that the following exists:

[116]   Specifically, I find that the contract in this case was partially in writing and partially oral. It was for the sale and purchase a new 2019 Ford Mustang for an agreed inclusive purchase price of $30,000 “on the road” as set out in the Offer to Purchase. It was agreed to have the accessories and features described in the Vehicle’s Original Window Sticker provided to the Claimant on November 21, 2019. Those accessories and features did not include the EcoBeast package nor any of the other Vehicle Upgrades. Thus the subject matter was to be what has been characterized in the evidence and in submissions as a “stock” Ford Mustang.

[117]   The Vehicle, as it turned out, was not that “stock” Ford Mustang. It was something substantially more because of the addition of the Vehicle Upgrades and thereby putting it beyond the scope of what the parties agreed to as the subject matter of the sale and purchase.

[118]   I have concluded that by way of the Defendant’s offerings to make available for purchase by the Claimant, either the second or third alternative Mustangs, the Defendant fulfilled its obligations under the contract. It was the Claimant who wrongly and unreasonably rejected those alternative Mustangs and caused the breach.

[119]   If I am wrong in my conclusion that the parties entered into such a contract, then on the basis of all of the evidence that I can accept, this matter may be decided by application of the principles of mistake in contract. The contract would then be set aside on this basis.

[120]   In addition to the above cited provisions of paragraphs 360 and 361 of Le Soleil , I have the guidance of Justice Donald in Seppanen v. Seppanen, 1991 CanLII 1874 (BC SC), [1991] B.C.J. No. 2165 wherein he states as follows:

[121]   On the whole of the evidence that I accept, I can also conclude that both parties were mistaken about some underlying and fundamental fact, namely the subject matter and the nature of the Ford Mustang that was the object of their negotiations. The Claimant thought it was a Ford Mustang with the EcoBeast package and the Defendant thought it was a stock Ford Mustang. Therefore, I can find that this would fall into the category of common mistake.

[122]   If I am wrong in my classification of the type of mistake, I would then also follow the reasoning of Justice Donald in Seppanen stated as follows:

[123]   Therefore, the contract should be set aside on this basis.

[124]   I reject the Claimant’s contention that the Defendant’s offerings of the second and third alternative Mustangs amounted to “a ‘bait and switch’- a deceptive act.” Furthermore, I reject any suggestion that that the Defendant’s advertising offering for sale “Mustangs at Cost” was misleading.

[125]   The Claimant’s claim against the Defendant is dismissed in its entirety.

[126]   The Defendant is entitled to receive forthwith from the Claimant its filing fee for its Reply and reasonable service expenses as determined by the Registrar.