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Contract - SOGA - Implied General [s.13]. Meyknecht Lischer Contractors Ltd. v. Stanford
In Meyknecht Lischer Contractors Ltd. v. Stanford (Div Ct, 2006) the Divisional Court concluded on Sale of Goods Act grounds that a fence company selling and installing a fence at the instruction of the property owner has no responsibility to ensure that it comply with local by-laws:[14] With respect to Mr. Stanford’s arguments relating to the Sale of Goods Act, the Trial Judge correctly rejected this argument. Section 13 of the Sale of Goods Act is intended to guarantee the integrity of the purchaser’s titular interest in the property in question. There was no evidence to indicate that Mr. Stanford’s title to the fencing material that made up the fence was defective.
[15] With respect to the application of s. 15.1 of the Sale of Goods Act, a condition of that section is that the purpose for which the good is purchased must be communicated to the seller. The purpose of the 2002 fence was to enclose the entire back yard and pool of Mr. Stanford. The fence met that purpose. Furthermore, based on the facts found by the Trial Judge that Mr. Stanford made the decisions to purchase the chain link fence and the location of its installation on his own, there was no evidence to show that Mr. Stanford was relying on the expertise of the MLC to help him choose either the type of fence or its location, which would be a stipulated condition of the application of s. 15.1 of the Sale of Goods Act.
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[27] Finally, I can find no error in the rejection by the Trial Judge of Mr. Stanford’s arguments regarding ss. 13 and 15.1 of the Sale of Goods Act. The Trial Judge rightly found that Mr. Stanford, in all of the circumstances of the case, bore the responsibility for ensuring that the pool installation and the enclosure complied with all of the applicable by-laws. That being the case, it could hardly be concluded that MLC deprived Mr. Stanford of the use and quiet possession of his property, namely the fence.
[28] In Humen v. Le Baron Outdoor Products Ltd, [1989] C.L.D. 1196, Hoilett D.C.J. establishes the intention of s. 13 of the Sale of Goods Act. He states at para. 9:...It is clear from a reading of the other two subparagraphs of Section 13, which I have hereafter cited for ease of reference, that what Section 13 is intended to guarantee is the integrity of the purchaser’s titular interest from any other competing property…… [29] On the facts as found by the Trial Judge in this case, there was no defect in the title to the fencing material sold that made up the fence. Mr. Stanford’s difficulties arose not out of the fence itself but out of the installation of the fence, which was done on his own instructions in ignorance of the applicable by-laws with the responsibility for ensuring that the applicable by-laws were complied with resting with him. I find the facts of this case quite distinguishable from those found in Gencab of Canada Ltd. v. Murray-Jensen Manufacturing Ltd. (1980), 1980 CanLII 1629 (ON SC), 29 O.R. (2d) 552 (H.C.J.).
[30] With respect to Mr. Stanford’s arguments regarding s. 15.1 of the Sale of Goods Act, I find the reply arguments of MLC found at paras. 59 to 67 persuasive. On the facts as found by Trial Judge, the purpose of the fence can be found to have been to enclose his entire back yard. It met that purpose. The Judge made no error in coming to this conclusion in light of the fact that she also found that Mr. Stanford was responsible for ensuring that the fence complied with the applicable by-laws.
[31] Furthermore, there was evidence on which the trial judge could reasonably conclude that, given the active role Mr. Stanford played in choosing the nature of fence, obtaining the necessary permits and directing the location of the installation of the fence, he did not rely on MLC’s expertise in either helping him to choose the type of fence or to determine its location.
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