COURT FILE NO.

: 06-1009-SR DATE: 20080207

SUPERIOR COURT OF JUSTICE

) ) KARL MAUTNER ) ) ) ) Plaintiff ) ) ) - and ) ) CALVIN METCALFE and 993494 ) ONTARIO LIMITED ) ) ) Defendant ) ) ) ) B E T W E E N:

M. Miller, for the Plaintiff

Calvin Metcalfe on his own behalf and for 993494 Ontario Limited

HEARD: February 4 & 5, 2008

M.P. EBERHARD J.:

[1] The Plaintiff sues for breach of contract as the bulldozer he purchased from Calvin Metcalfe leaks oil from the hydrostatic pump transmission by a profusion of leaks. The Defendant counter claims for the income he lost while having to attend court proceedings related to the claim. [2] Although the conflict is angry and accusatorial, most of the facts are not in dispute. My decision requires findings of fact on the condition of the bulldozer when it was delivered and whether that condition was known and hidden by the vendor. [3] It could be that Calvin Metcalfe simply put a flawed bulldozer up for sale as is that the purchaser satisfied himself by inspection, ignored the vendors advice about watching the oil level, operated it without oil and thereby burned the transmissions. It could be that the vendor

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hid the true extent of oil leakage and represented a volume of leakage in the acceptable range such that Karl Mautner did not receive the bulldozer he bargained for.
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[4]

The Plaintiffs claim is founded in contract and fraud.

[5] One case is cited1 for the principle that the As is clause has no application where but for the fraudulent misrepresentation the purchaser would not have entered into the transaction. Much complication and creative judicial response have been devoted to dispute about product defects. I reviewed several western cases where the purchaser failed absent fundamental breach or fraudulent misrepresentation in sales of used equipment.2 The authoritative statement of the law in the Court of Appeal3 that I intend to apply is recently well summarized in a land defects case4 heard in The Small Claims Court context, as many of these reported cases are, that suffices to express the principals at play in this case where law was not argued and both parties emphasized the issue of deceit in their case presentations. Following the cite you will see the principles distilled there from. Of much more difficulty for the Plaintiff are the arguments raised by Defendants' counsel which I summarize as follows: (i) That with respect to transactions involving real property, the law remains firmly "caveat emptor". (ii) That when a buyer retains the services of a home inspector, any liability for defects passes from the seller to the home inspector. (iii) That the exclusionary clause (not relevant here) Counsel for the Defendants argued these points exceptionally well, and I accept first of all that the fundamental rule with respect to the purchase of real property is caveat emptor. The judgment in Fraser-Reid v. Droumtsekas [1980] 1 S.C.R. 720 commences with the observation that, Although the common law doctrine of caveat emptor has long since ceased to play any significant part in the sale of goods, it has lost little of its pristine force in the sale of land, and continues to explain that, The rationale stems from the laissez-faire attitudes of the eighteenth and nineteenth centuries and the notion that a purchaser must fend for himself, seeking protection by express warranty or by independent examination of
1 2

Sugar v Peat Marwick Ltd 1998 O.J. No. 1959 Lemke v. Pulvermacher[2007] S.J. No. 607 3 McGrath v MacLean (1979)22 O.R.(2d) 784 4 Powers-Healy v. Little [2007 O.J. No. 2100 R. McLean Deputy J.

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the premises. If he fails to do either, he is without remedy either at law or in equity, in the absence of fraud or fundamental difference between that which was bargained for and that obtained. In Antorisa Investments Ltd. v. 172965 Canada Ltd., [2006] O.J. No. 3427 (Ont. Sup. Ct.), J.L. Lax, J., bluntly stated [Locus 74, 75]: The common law does not imply any warranty that real estate is sold in any particular state or is fit for any purpose - to the contrary, the governing principle is caveat emptor: ..... The courts have consistently demonstrated an unwillingness to assist purchasers who failed to heed the dictum, 'buyer beware', including those who purchase contaminated lands. Absent contractual protections providing otherwise, a purchaser of real property acquires it "as is". Canadian courts, including the Supreme Court of Canada, have consistently recognized the continuing vitality of the rule of caveat emptor with respect to the purchase and sale of land and have endorsed the principle that, as a matter of public policy, purchasers seeking protection concerning the fitness or quality of land should openly negotiate specific protections as a matter of contract. Following this remark, J.L. Lax, J. quotes from Carleton Condominium Corp. No. 32 v. Camdev Corp. [1999] O.J. No. 3448 (Ont. C.A.): The common law doctrine of "caveat emptor" governs with respect to the sale of real property and the purchaser must generally seek protection either by express warranty or by independent examination of the premises. This leads to the second argument advanced by the Defendants' counsel, namely, that once a purchaser retains the services of an independent inspector, engineer, or other professional, if there is any responsibility regarding defects, it is lifted from the shoulders of a seller and instead the responsibility to discover any defects passes to the independent inspector. First of all, what might be a seller's responsibility regarding defects? Answering that question involves first establishing a defect as either patent or latent. In Belzil v. Bain, [2001] A.J. No. 1350, 2001 ABQB 890 (Alta. Q.B.), the Court accepts the distinction explained in Halsbury's Laws of England, Vol. 42, 4th ed. (London: Butterworths, 1980) at 44, para. 34: Defects of quality may be either patent or latent. Patent defects are such as are discoverable by inspection and ordinary vigilance on the part of a purchaser and latent defects are such as would not be revealed by any
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inquiry which a purchaser is in a position to make before entering into the contract for purchase.
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Subsequently, at para. 61, the Court in Belzil v. Bain, supra, approvingly quotes from Halsbury's Laws of England, supra, at 44, para. 45: The vendor is not bound to call attention to patent defects; the rule is 'caveat emptor'. Therefore, a purchaser should make inspection and inquiry as to what he is proposing to buy. If he omits to ascertain whether the land is such as he desires to acquire, he cannot afterwards complain on discovering defects of which he would have been aware if had taken ordinary steps to ascertain its physical condition. although Kenny, J., in Belzil v. Bain, supra, goes on to point out at para. 63 that, Where there is active concealment of an otherwise patent defect, the general rule of caveat emptor will not apply. With regard to latent defects, the law appears to be explained well by LaForme, J., in Swayze v. Robertson [2001] O.J. No. 968 (Ont. Sup. Ct.) at para. 27, A 'latent defect' as it relates to the case at bar is in effect some fault in the structure that is not readily apparent to an ordinary purchaser during a routine inspection. And ordinarily, if a vendor actively conceals a latent defect, the rule of caveat emptor no longer applies and the purchaser is entitled, at their option, to ask for a rescission of the contract or compensation for damages. In McGrath v. MacLean et al., (1979), 22 O.R. (2d) 784, (Ont. C.A.), quoted in cases that were referred to me by both counsel for the Defendants and counsel for the Plaintiff, the Court refers to a lecture by Professor Bora Laskin in "Defects of Title and Quality: Caveat Emptor and the Vendor's Duty of Disclosure" (1960), Law Society of Upper Canada, Special Lectures, p. 389 at pp. 403-404 wherein the learned author notes: It is to be observed that Coady, J., in the case of Rowley v. Isley et al., [1951] 3 D.L.R. 766 at p. 767, 3 W.W.R. (N.S.) 173, found against the vendor in the following language: The failure to disclose to the plaintiff, however, the true condition of the house, as to the infestation by cockroaches and to the prior fumigation, rendered necessary by reason of the prior cockroach infestation, was, I think, a fraudulent misrepresentation arising from a suppression of the truth. This condition, under the

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circumstances, it was the agent's duty to disclose. (Emphasis added.)

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After reviewing this authority, Power, J., in Moore v. Page, [2002] O.J. No. 2256 (Ont. Sup. Ct.) states: I am prepared to assume that, in an appropriate case, a vendor may be liable to a purchaser with respect to premises which are not new if he knows of a latent defect which renders the premises unfit for habitation. But, as is pointed out in the lecture above referred to, in such a case it is incumbent upon the purchaser to establish that the latent defect was known to the vendor, or that the circumstances were such that it could be said that the vendor was guilty of concealment or a reckless disregard of the truth or falsity of any representations made by him. It is to be observed that that is quite a different case than the one founded on the principle of M'Alister (or Donoghue) v. Stevenson, supra. Similarly, I am prepared to assume that there is a duty on the vendor to disclose a latent defect which renders the premises dangerous in themselves, or that the circumstances are such as to disclose the likelihood of such danger, e.g., the premises being sold being subject to radioactivity. Again, however, under such circumstances the cause of action is not dependent on the principles enacted in M'Alister (or Donoghue) v. Stevenson. Accepting that there are some circumstances when a seller might be liable for a defect, I return to the proposition put forward by the Defendants' counsel, namely, that any such liability is extinguished by a buyer's retaining a property inspector, and that the responsibility for finding and pointing out any defects rests with such inspector. Defendants' counsel refers to a frequently cited case, Hoy v. Lozanovski (1987), [1987] O.J. No. 1986, 43 R.P.R. 296 (Ont. Dist. Ct.) wherein Conant, D.C.J., states: However, if the purchaser chooses to not rely on the vendor and requests inspections, including professional inspectors (e.g. Home Inspection Service), then reliance for completion of the deal (the waiver in this case, is shifted to the inspector whom the purchaser has chosen. The purchaser has relied on the inspector's report, not the vendor's silence, to formulate his decision whether or not to complete the deal. In that case, responsibility of the vendor is released and assumed by the purchaser or transferred to his agent, the Home Inspector, at the time of the raking of the deal (which, in this case, was the signing of the waiver at which time the deal became firm). Similarly, in Antorisa Investments Ltd. v. 172965 Canada Ltd., supra, J.L. Lax, J., concludes at para. 65,

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In Belzil v. Bain, supra, the purchaser discovered, after closing, that there was a bulge in a basement wall which had been concealed by an interior wall erected so as to conceal the bulge. The Court noted at para. 57 that, Even though the defect itself, namely the bulge, may not have been visible at the time of the sale of the House, there were ample 'clues' which would have prompted concern for further inquiry, and went on to state at para. 67, Even if Mr. and Mrs. Belzil could prove that the defect was present at the time the wall was built and that this wall fully concealed the otherwise patent defect, their claim would fail on the basis that Mr. and Mrs. Belzil did not rely on this active concealment when deciding to purchase the House. Rather, they relied upon the inspection of Mr. Quinn. While clearly there is a shift of responsibility from a vendor to a home inspector, is that shift of responsibility absolute? Are there any circumstances when a purchaser who has hired a home inspector might still have recourse to the vendor? If the answer is no, then indeed the Defendants' motion for summary judgment must succeed as there is no way the Plaintiff could succeed in this action. I do not answer this question in the negative, however. In Hoy v. Lozanovski, supra, it was noted that "... if the vendor made representations to the purchaser or the purchaser's inspectors that were fraudulent, then the responsibility for disclosing the latent defect would remain with the vendor". I note that in Belzil v. Bain, supra, the presence of "clues" was sufficient to allow responsibility to detect the defect to pass to the home inspector. Fraser v. Knox, [1998] O.J. No. 4379, also talked about "clues" available to a home inspector. While these cases do not discuss where responsibility would lay if there were no clues, it seems reasonable to me to conclude that in a case where there are no "clues" and no reasonable means of testing for defects (such as soil testing, which was the issue in Antorisa Investments Ltd.v. 172965 Canada Ltd., (supra) that liability for actively concealing defects, whether patent or latent, actively not disclosing latent defects, or fraudulently misrepresenting facts relating to latent defects, remains with the seller, subject to the requirement

2008 CanLII 3969 (ON S.C.)

The law is clear that where a purchaser of real estate hires professional inspectors, the purchaser relies on its inspector's report and not on the vendor. In these circumstances, a professed reliance on a vendor is unreasonable.

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Home inspectors and other professionals hired by purchasers ought to know what they are doing and ought to do the job properly. They have knowledge, expertise, and experience well beyond the average purchaser; that is what they are paid for. They cannot, however, be expected to be guarantors of the condition of every aspect of a property. There are some things they cannot determine, even with a thorough inspection of the property and appropriate testing, given that some features of the property simply cannot realistically be accessed for inspection or testing. These are the aspects of the property which, I find, may give rise to liability on behalf of the seller, should the conditions reviewed above come into play. In Swayze v. Robertson, supra, the Court imposed liability on the sellers, recognizing the limitations of the home inspection report provided to the plaintiffs. At paras. 56, 57 the Court states: Having reached the above conclusion, I am of the view that the visual inspection of the home inspector does not assist Mr. and Mrs. Robertson. As I have previously found, the defect was not apparent to an ordinary purchaser during a routine inspection. Given the nature of a home inspection, the limitations under which they carry such inspections out, and the clear limits expressed to Dr. Swayze and Dr. Wall, it was unreasonable to expect that the structural problem that existed would have been detected. I am satisfied that any concerns that Mr. Pettigrew [the home inspector] pointed out to both Dr. Wall and then to Dr. Swayze were qualified. First, I accept that his ability to know the precise nature and extent of any water problems in the basement were limited and could only be made as a result of visual observation ... The last of the Defendants' submissions is that all representations of the sellers (and in this case, there were representations in both the listing and in the Vendors Property Information Statement) were water under the bridge upon the signing of the agreement of purchase and sale with its standard exclusionary clause in para. 25, which states, "This Agreement including any Schedule attached hereto, shall constitute the entire Agreement between Buyer and Seller. There is no representation, warranty, collateral agreement or condition, which affects this Agreement other than as expressed herein. [6] In summary, these are the extracted principles I intend to apply:

2008 CanLII 3969 (ON S.C.)

with respect to active concealment or active non-disclosure that the same constitute a fraud on the purchaser the same as a fraudulent misrepresentation would. See 688350 Ontario Ltd. v. Piron, [1994] O.J. No. 2844, supra, at paras. 125 to 129.

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(a) the vendor is not bound to call attention to patent defects; the rule is 'caveat emptor'; (b) where there is active concealment of an otherwise patent defect, the general rule of caveat emptor will not apply; (c) if a vendor actively conceals a latent defect, the rule of caveat emptor no longer applies and the purchaser is entitled, at their option, to ask for a rescission of the contract or compensation for damages; (d) a vendor may be liable to a purchaser with respect to premises which are not new if he knows of a latent defect which renders the premises unfit for habitation. But, as is pointed out in the lecture above referred to, in such a case it is incumbent upon the purchaser to establish that the latent defect was known to the vendor, or that the circumstances were such that it could be said that the vendor was guilty of concealment or a reckless disregard of the truth or falsity of any representations made by him; and (e) where there are no "clues" and no reasonable means of testing for defects that liability for actively concealing defects, whether patent or latent, actively not disclosing latent defects, or fraudulently misrepresenting facts relating to latent defects, remains with the seller, subject to the requirement with respect to active concealment or active nondisclosure that the same constitute a fraud on the purchaser the same as a fraudulent misrepresentation would. [7] Such findings turn on the credibility of the three principle witnesses who testified at trial. Karl Mautner himself could not speak to the main points in issue but I found him at all times truthful. I accept his evidence, but the dispute mainly turns on the evidence of Douglas Varcoe and Calvin Metcalfe. [8] The exhibits presented were either demonstrative to make sense of the testimony about the bulldozer5, records of transactions constituting the contract and damages6, a summary of the damages claimed by the Plaintiff 7 and the notes of witness Douglas Varcoe8 which he used to refresh his memory. He made those notes contemporaneous with events but only one of them9 before he realized there were problems with the bulldozer. I do not intend to use those notes for proof of their contents but they assist in the assessment of Douglas Varcoes credibility. [9] A large portion of the testimony involved speculations and accusations about the conduct and motivations of the parties. That heightened the temperature of the dispute but merely diverted focus from the real issues. Many of the facts asserted in the Plaintiffs case were challenged in cross examination but the defence case made the same assertion.
5 6

Exhibits 1-18, 19; 2 and 3 Exhibits 1- 1,2,4,5,9,10,11,12,13,14,15,16,17 7 Exhibits 1-20 8 Exhibits 1-3,6,7,8 9 Exhibits 1-3

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[11]
[12]

Douglas Varcoe attended to inspect the bulldozer.

Calvin Metcalfe told him much relevant information about the bulldozer, including that it leaked oil. This type of bulldozer is known in the industry to leak oil and both Douglas Varcoe and Calvin Metcalfe knew this. No request was made to remove the plate covering the box in the mainframe that holds the transmissions to view them. Douglas Varcoe looked for oil where it would usually go when such transmissions leak namely, into the belly plates which he misnamed as rock guards and on the ground around the bulldozer. No oil was detected indicative of a leak. However Calvin Metcalfe told him there was a leak. He gave Douglas Varcoe tips to reduce the leaking with Lucas Oil Stabilizer, a sealant. [13] At issue is the extent of the leak that Calvin Metcalfe told Douglas Varcoe. Douglas Varcoe recalls it as 1.5 gallons a week from the right hand transmission at the hydraulic pump seal, which he found acceptable. Calvin Metcalfe says he told him 2.5 gallons a day. [14] This point was so pivotal that I did not rely on my notes but obtained a transcript of a point in cross-examination when Douglas Varcoe appeared to depart from his consistent assertion, supported by his notes, that Calvin Metcalfe told him 1.5 gallons per day: Q. Did you state to him before he operated the machine that there was a leak in that machine? Take your time. A. The only other may I expand here, Your Honour? THE COURT: You can, yes. If it is responsive to the question then you can answer it. A. The only way I can help was pushing it its kind of two parts by I will try and handle it. When I was at.... Q. I actually think its fairly straight forward. Did you inform Mr. Mautner that there was a leak in the machine before he operated it? MR. MILLER: I think he was trying to answer the first question and now hes got a second question. THE COURT: It is the same question. MR. MILLER: Thank you.

2008 CanLII 3969 (ON S.C.)

[10] Fundamentally, this was a caveat emptor let the buyer beware case. The Plaintiff knew this throughout. He was buying used equipment. Although Karl Mautner was an experienced equipment operator and had owned a similar bulldozer for 20 years, when he need mechanical advice he customarily relied on his friend Douglas Varcoe for insight.

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A. Okay. I am going to try my best. To my memory when I was at your place then I went home....
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MR. METCALFE: Q. Did you or did you not.... THE COURT: Stop. He is trying to answer, okay? You have asked him the question. It is pretty clear what the question is. Now, we are going to give him a chance to answer. MR. METCALFE: Sorry, Your Honour. THE COURT: Thank you. A. I think when I got back home I talked to Karl about the machine I was looking at. This is not the first time I talked about it, and then I think I mentioned to Karl on the phone that it was leaking you said it was leaking a gallon now, were referring to the first time I heard about the leak from you. I told Karl it was leaking a gallon and a half a week if you worked it hard, as you told me. Based on that information and knowing that Karl might not use the bulldozer some, some years maybe 10, 20, 30 hours, there would be no problem with us assuming a gallon and a half a week leak hard work. Is that helpful? Q. So, youre stating that you did inform Mr. Maulner of a leak in the machine? A. The one you told me about at your place, yes. Q. And you are also stating that I informed you it was a gallon and a half a week... A. Yeah.... Q. ... not two and a half gallons a day? A. Pardon? No, a gallon and a half a day if you really pushed her hard to work. Q. A gallon and a half a day if you pushed it really hard now? A. Thats what you told me. Q. You just stated two seconds ago or three minutes ago that it was a gallon and a half a week. Which is it?

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A. A gallon and a half a day is what you told me. .... [15] Based on the transcript and my observations of the participants during this exchange, I find as a fact that Douglas Varcoe uttered a day in an unintended echo of the question put in a vigorous exchange. Otherwise he was consistent in expressing the volume of leakage a week and I find as a fact that he is honest in stating that is what Calvin Metcalfe told him. Lack of clarity around whether pushing it hard increased or decreased the volume raises the possibility of innocent mistake or hearing only what he wanted to hear but the reliability of his evidence is enhanced by his care to take notes. [16] The reliability of Calvin Metcalfes evidence is eroded by his defensive demeanour. Accepting fully that the courtroom was not a comfortable milieu for him and his concern expressed in advance that he felt intimidated by counsel for the Plaintiff, it was nevertheless striking that he rarely gave a direct answer on any of the points in issue. Counsel conducted very restrained cross-examination and did not attempt to exploit his courtroom experience to bully the defendant. Nevertheless Calvin Metcalfe was evasive in his answers. He fully expressed his theories and repeated his assertions with clarity but it was hard to extract a simple answer on a simple fact. The net result is an impression of preparing his testimony in support of his theories and ignoring the detail which constitutes the difference between let the buyer beware and active concealment of an otherwise patent defect. [17] Calvin Metcalfe specifically did not tell Douglas Varcoe that he had stuffed rags into 2 holes at the base of the box. On his own testimony, he would drain collected oil from those holes at convenient times thereby avoiding oil leaking messily at customers properties. He testified that he did so 2-3 times a year. If the volume of leakage was 2.5 gallons a day, it makes no sense that emptying the box 2-3 times a year would accomplish that purpose. [18] On the point of what Calvin Metcalfe told Douglas Varcoe about the volume of leakage, I prefer the evidence of Douglas Varcoe and therefore find that the Plaintiff agreed to purchase a bulldozer that he believed leaked 1.5 gallons per week. [19] These rags stopping the holes were not seen in Douglas Varcoes inspection. The draw bar effectively blocked a view of the location. [20] The holes would be initially plugged from the manufacturer and could be bolted by an owner for attachments, so the fact that the oil was prevented from flowing out those holes is not itself indicative of a deceitful attempt to mask the extent of oil leakage. [21] It is however a highly relevant consideration if the collecting of, then draining off of leaking oil prevents oil from leaking to places where a competent inspection would reveal leakage in excess of the reported volume.
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[22] I find as a fact that there was leakage in excess of the reported volume. I understand the evidence and theory of the Defendant, that operation of the bulldozer by the Plaintiff after delivery of the bulldozer caused the profuse leakage. [23] Although he gave much evidence about the rough terrain and road at the Plaintiffs ranch, the Defendant withdrew from the assertion that the drive in from the main road would be so rough as to shake loose the transmission components to account for the profusion of leaks. [24] There is no evidence that Karl Mautner operated the bulldozer after noting the oil level was below the sight glass. The evidence of the John Deere witnesses, a mechanic and the service representative, who inspected the bulldozer with the transmission box made accessible, does not support the theory of recent profusion resulting from blowing the transmission by running it without oil. None of the informed witnesses adopted the Defendants theory of dry seals from months of not being used accounting for a temporary leakage which would cause the flood of oil that flowed out of the box when the rags were discovered and removed. [25] I therefore find that the Plaintiff has met the onus of proving that the profusely leaking transmission was the condition of the bulldozer at the time of the representation that it leaked l.5 gallons per week. This was a misrepresentation [26] The presence of the undisclosed rags is good evidence that the Defendant knew the representation was false. The effect of the rag procedure was to conceal the evidence of leakage so the Plaintiff, through his agent Douglas Varcoe, was unable to discover the true facts about the significant defect. [27] The Defendant is not excused by his admonition to the Plaintiff to keep an eye on the oil levels. Such a warning loses its urgency where the Plaintiff believed, as represented, that the oil loss was 1.5 gallons per week. Karl Mautner did not check the oil level before first starting the machine up briefly on the Saturday night of his return from Mexico nor the half hour Sunday morning before noting the jerking in the performance of the bulldozer. The gauges were fine and when he noted the absence of oil in the sight glass, his genuine reaction was to look around for where the oil could have gone. Calvin Metcalfe might say he warned him, but the warning is worthless where the magnitude of the problem is concealed. I have no evidence that a prudent operator knowing the oil leaked at 1.5 gallons per week should have done something different than Karl Mautner did. [28] It is by now apparent that I find that there was active concealment of a defect that would otherwise have been patently apparent. Had it been apparent, the Plaintiff would not have agreed to purchase the bulldozer. Caveat emptor does not apply. [29] Damages are proven as set out at exhibit 1-20 less $666.00 which is $600 for the purchase of replacement transmissions which was not a result of the misrepresentation at an exchange rate of $1.11. [30] Prejudgment interest is similarly reduced and applied by me to the mitigated figure.
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[31] I dismiss the claim for punitive damages. The conduct simply does not meet the criteria for such relief.
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[32] No distinction was drawn between Calvin Metcalfes personal conduct and the other Defendant, the numbered company to whom funds were paid. This judgment binds both. [33] I grant judgment to the Plaintiff in the amount of $16,077.57 together with prejudgment interest of 4.5% for 502 days in the sum of $723.49 for a total of $16,801.06 [34] The counterclaim is dismissed as unproven and disclosing no cause of action.

[35] If parties cannot agree as to costs, a brief of 2 pages may be filed by March 1, 2008 and, if requested by that date, a telephone conference call may be set up by the Barrie trial coordinator to permit the parties to speak to costs. [36] It may be prudent for both parties to include submissions as to how long the Plaintiff is obligated to retain the bulldozer for retrieval by the Defendant following payment on the judgment. ___________________________ EBERHARD J.

Released:

February 7, 2008