THE POSNER PAGE

Previous Issues of The Posner Page

In This Issue of the Posner Page

CAR DEALERS- PERILS OF REPRESENTATIONS

MARITAL RECONCILIATION AND RELEASES

GRANDPARENTAL RIGHTS

A POT POURRI OF LEGAL NEWS

IMPORTANT ANNOUCEMENT ABOUT FUTURE NEWSLETTERS

CAR DEALERS- PERILS OF REPRESENTATIONS

It is likely true for most people that buying a car is not an easy thing to do and it is often an experience that carries with it some difficulties for the consumer. But, the dealer has much to worry about as well. He or she had better make sure that there are no misrepresentations. Recently, a British Columbia court dealt with a case where a lady had been induced as a result of a misrepresentation to buy an expensive car unsuited to her needs. She sued later and the court ordered her to receive $ 20, 000. 00 and that amount included $ 5, 000.00 for emotional distress.

What was important to this particular Plaintiff, Cheryl Vavra was the ability of the vehicle to tow a large trailer. She had been assured that it would be able to do the job. But, in fact when push came to shove, the car sold by Victoria's Suburban Ford dealership, it failed and the court said that the dealership had committed "negligent misrepresentation or alternatively a breach of a fundamental condition inducing contract"

Mr. Justice Ronald Holmes noted that the Plaintiff had bought the trailer "on the assurance of Suburban's sales representative and personnel that the problem would be remedied. The problem was not remedied. The dealer denied responsibility and proposed only remedies providing full profit to Suburban with the total cost to the Plaintiff. Her planned leisure lifestyle had not been possible for more than two years. She has had the expense of maintaining the trailer with virtually no ability to enjoy its use".

The evidence disclosed that the Plaintiff had in fact paid $ 52, 000. 00 for the vehicle but had done so after several assurances from the salesperson that this particular vehicle had the towing capacity of 8,000 pounds. But, in fact it could only tow 6, 800 pounds. To resolve this difficulty, the dealer offered to give her another vehicle that could tow the necessary weight but at an extra cost of $ 11, 000.00 . What the judge said was instructive to issues of this kind. He found that this kind of representation was a type of statement that was fundamental to the entire contract and that the Plaintiff treated it as if it were a condition of the contract that that this vehicle could in fact tow the needed weight. In truth, had she known it could not tow the trailer, she would not have purchased the vehicle.

The judge even commented that this kind of information re the capacity of the vehicle purchased to tow certain weights, was the kind of information that salespeople were trained in providing or at least in knowing where to obtain or at least how to verify the information. The trial judge noted that the salesman "clearly was aware of the Plaintiff's concern with towing capacity of any vehicle which she might purchase and was looking for accurate advice. It was entirely appropriate for her to rely upon him in the circumstances as it was his job to provide information and answer questions regarding the product being sold".

He went further and found that this representation was "inaccurate, untrue, and misleading and that it was insulting to the Plaintiff that Suburban's method of helping her was to require her to pay another $ 11, 000. 00 to obtain what she had already contracted for". He also added that the" defence by Suburban of exclusion of any promise not contained in the Bill of Sale is in present context the thinnest of gruel. The breach in issue was of a fundamental condition inducing the contract itself:

What one can take from this case is that in these kinds of situations where there is a fundamental or material condition tied into a contract, if that condition, even if not specifically written into the contract but acknowledged as having been made, then that condition or term will have to be satisfied or there can be consequences to the person making the representation or condition.

MARITAL RECONCILIATION AND RELEASES

A recent decision of the Ontario Court of Appeal has stated that mutual releases contained in separation agreements between spouses are deemed to continue in force even after the reconciliation of the spouses unless the agreement has a clause in it that says the releases do not survive after reconciliation. Now, that is a mouthful but one that affect many people in Ontario and possibly elsewhere. What had happened here was that the wife was trying to get an equalization payment from her husband { her third husband as it turned out} but the husband resisted because there were mutual releases between the spouses in a separation agreement dated February 29, 1996.

The couple had in fact reconciled two years or so after they had signed the separation agreement but parted for the final time in October 1998. In the agreement of 1996, the wife transferred her interest in the family home to her husband for $ 115, 000. 00 and she uses that money to buy her new place. The agreement had a clause contained within it which is common to many agreements of this type which stated "it was final and conclusive with respect to all issues" re the marriage and would operate as a defence to any future claims.

At the trial, Mr. Justice Thomas Granger ruled that the assets pertinent to the issue at hand was the value of those assets acquired in the few months between the date of the reconciliation { February, 1998} and the date of the final split { October, 1998}. As a consequence, the wife was not allowed to get an equalization payment since they couple had not acquired anything during that period. The wife took the case to the Court of Appeal and took the position that the judge at trial had erred in finding that the division of property as set out in the separation agreement could survive the reconciliation of the parties. Madam Justice Katheryn Feldman in her decision stated "The separation agreement is void upon reconciliation, subject to a specific clause in the agreement that would override the common law or a clause that would be implied from the agreement that the intent of the parties was that the transaction carried out under the agreement will remain in place".

In short, the judge found that the release in the agreement so typical of most agreements was satisfactory enough to indicate that the parties had indeed intended that their separation agreement contained clauses that went beyond just the agreement and that this kind of release would survive any reconciliation. Now, it would be open to show that this intent was not there but short of evidence of that kind, she favoured the interpretation expressed. Hence, she found that the transfer of the matrimonial home with compensation to the wife, was a clause that was intended by each of the parties to be final and binding and as a result no future claims under the appropriate statute could be made successfully with respect to that matrimonial home.

GRANDPARENTAL RIGHTS

You would like to think that being a grandparent would be a ticket to a relationship with your grandchildren but it is not always so easy as a couple in B. C, discovered recently. It was not the case that they had no relationship with their grandchildren but that they wanted more. In this case, the custodial parent was the father and the grandparents seeking more access to the children were the mother's parents. The court in B. C. hearing the case found as fact that the father had been wiling to allow his children to visit their grandparents regularly during the day but not overnight. What these grandparents wanted was to have them overnight and further to take them on a trip to Manitoba.

Now, the court did not reject the value of a trip to Manitoba with grandparents as being devoid of benefits to the children. But, at the same time, the court was reluctant to make that kind of decision saying it was for the custodial parent to decide taking into account what was in the best interests of the children. That reference to the best interests of the children was the paramount factor in cases of this kind but in so doing so, much emphasis must be paid to the ability of the custodial parent to make that decision. What the court said was as follows on this interesting point

"Ordinarily, the grandparents of that child are entitled to access at the time and for the duration and under the conditions that the custodial parent may allow. The limits to the Courts deference will be reached where the custodial parent is acting against the children's best interests. "

In this particular case, there was no evidence the father was acting against his children's best interests and so the court was reluctant to interfere with the parental decision. I am not sure I agree with this decision as it seems to me that a fuller relationship with grandparents is always something to be desired and would be in the best interests of the children.

A POT POURRI OF LEGAL NEWS

In no particular order, I bring to your attention the following little odds and ends, none of which is earth shattering but perhaps of some interest

1. The legislation that had previously been on the books for proclamation by the Manitoba government relating to common law spouses did not get proclaimed prior to the last election and it is somewhere I suppose in the legislative bowels of the NDP. My best guess is that it will be brought back but not before there is some notice given to the public to have some input to the intended new law. I suggest that you be alert to any information that the Government issues re this piece of legislation.

2. The Manitoba Bar Association is doing another musical in May, 2004 but for various reasons I have decided not to participate although I sure gave it a lot of consideration. This year the show that is being performed is "The Little Shop of Horrors".

3. I had a chance to take part in a panel discussion recently at the Italian Centre on Wilkes Avenue for guests of the CIBC and in particular relating to issues of estate planning as it pertains to cottage succession. As many of you know, there has been a run up of prices for recreational properties particularly in certain areas of the Kenora area. That fact has triggered potential capital gains and many people have questions regarding the steps to be taken if any to avoid this possible tax hit.

4. IMPORTANT ANNOUCEMENT - If you do not know, I have a Web Page and it is www.ptlaw.mb.ca. I mention that fact because next year will be the last one for this newsletter to be delivered by regular mail. I will be sending the newsletter in the future by way of Email address. I ask you to let me have your Email address. If you do not have Email, but you still have access to a computer, you should be able to read the newsletter on the internet by accessing my Web Page. I do put my newsletters on the Web Page. If you have no access to a computer, then the best I can say is that you will have to contact me to make arrangements to get a copy of the newsletter.