Citation: ☼ Sterczyk v. DFS Motors Ltd.  
2022 BCPC 124  
Date: ☼20220621  
File No.:  
Registry:  
C5679  
Duncan  
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA  
(Small Claims Court)  
BETWEEN:  
PETER ANDREW STERCZYK  
DFS MOTORS LTD.  
CLAIMANT  
AND:  
DEFENDANT  
REASONS FOR JUDGMENT  
OF THE  
HONOURABLE JUDGE J.P. MacCARTHY  
Appearing on his own behalf:  
Appearing for the Defendant:  
Place of Hearing:  
P. Sterczyk  
J. Pambrun  
Duncan, B.C.  
July 2, 2021  
July 14, 2021  
June 21, 2022  
Date of Hearing:  
Date of Written Submissions:  
Date of Judgment:  
Sterczyk v. DFS Motors Ltd.  
Page  
1
INTRODUCTION  
[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.  
Sterczyk v. DFS Motors Ltd.  
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[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.  
Summarizing the Evidence  
[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.  
Sterczyk v. DFS Motors Ltd.  
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Summary of the Undisputed Circumstances and Undisputed Facts Giving Rise to  
the Claim  
[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:  
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Promotion on in-stock units only, while supplies last. **No negotiations,  
serious inquiries only **Mustangs at Cost……Promotion on in-stock units  
only while supplies last **No negotiations, this is dead dealer cost**  
[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.  
Sterczyk v. DFS Motors Ltd.  
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[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:  
You were looking for a 2019 New Ford Mustang for $30,000 all in. You  
said it didn’t matter weather [sic] manual or automatic and colour was not  
important. What was important was the budget that was the focus.  
[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  
Sterczyk v. DFS Motors Ltd.  
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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”:  
$32,855.xx [apparently taken from the MSRP]  
< -5,000> incentive  
$27,885. xx  
<-1824.29> Is. Ford incentive [being the Defendant’s incentive]  
$26,060.71  
All vehicles are subject to $599 Documentation fee and applicable taxes  
Cash O.T.R. $30,000  
[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.  
Sterczyk v. DFS Motors Ltd.  
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[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  
Sterczyk v. DFS Motors Ltd.  
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resulting “Dealer Price” of $34,194. “Dealer Price” was described in the following  
manner:  
Dealer Price shown is net of all manufacturer incentives effective Back  
Friday Sale between November 15 - 27, 2019.  
[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:  
a)  
b)  
c)  
the lower exterior “EcoBeast” stripe decal graphics on the lower part of the  
doors on both sides;  
the performance “black wheels” or otherwise referred to as “black rims”;  
and  
the full leather interior including the leather seats.  
Sterczyk v. DFS Motors Ltd.  
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[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”):  
a)  
b)  
a set of Roush-X exhaust pipes for $632.49 invoiced on June 18, 2019;  
a custom automotive decal ($1,200), window tinting ($500), black tire rims  
($550); leather heated seats ($2,500), plus $50 for miscellaneous supplies  
for a total of $4,800 invoiced on November 30, 2019; and  
c)  
a pedal commander kit for a total of $693 invoiced on December 4, 2019.  
[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.  
Sterczyk v. DFS Motors Ltd.  
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[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  
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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.  
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[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:  
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We understand that you, on behalf of Island Ford, subsequently reneged  
on the agreement and offered a different vehicle in its place, being a green  
Mustang with a manual transmission. This is a “bait and switch”- a  
deceptive act - and a breach of the said agreement.  
[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  
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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.  
Additional Evidence in the Claimant’s Case  
The Fournier Report  
[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:  
…to read selected file material, analyse the data, and research the market  
value of similar 2019 Ford Mustang 100 A Package 2.3 L EcoBoost 10-  
Speed Automatic (Modified) 2 Door Fastbacks to determine the fair market  
value on the date of loss on November 21, 2019.  
[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:  
a)  
b)  
c)  
the MSRP was approximately $32,885;  
it had $6,125.49 in modifications installed;  
there was a $5,000 cash rebate (from Ford Motors) available at the time of  
the loss; and  
d)  
it was equipped with the 2.3L EcoBoost 10-Speed Automatic  
[transmission].  
[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  
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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).  
Other Evidence of the Claimant  
[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.  
Other Evidence of the Defendant  
[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  
Sterczyk v. DFS Motors Ltd.  
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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:  
a)  
b)  
for the Vehicle: a negative Total Dealer Gross Profit of $112.29;  
for the third alternative Mustang: a negative Total Dealer Gross Profit of  
$1,419.29; and  
Sterczyk v. DFS Motors Ltd.  
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c)  
for the superior Mustang: a negative Total Dealer Gross Profit of  
$7,496.29.  
[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.  
Burden of Proof  
[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 (), [2008] 3 S.C.R. 41 at paragraph 49, states:  
In the result, I would reaffirm that in civil cases there is only one standard  
of proof and that is proof on a balance of probabilities. In all civil cases,  
the trial judge must scrutinize the relevant evidence with care to determine  
whether it is more likely than not that an alleged event occurred.  
[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:  
It must carry a reasonable degree of probability but not so high as is  
required in a criminal case. If the evidence is such that the tribunal can  
say: ‘we think it more probable than not’, the burden is discharged, but if  
the probabilities are equal it is not.  
Sterczyk v. DFS Motors Ltd.  
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[see: Miller v. Minister of Pension, [1947] 2 All E.R. 372. at 374 (K.B.)]  
[86] In Smith v. Smith [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:  
… that civil cases may be proved by a preponderance of evidence or that  
a finding in such cases may be made upon the basis of a preponderance  
of probability and I do not propose to attempt a more precise statement of  
the rule. I wish, however, to emphasize that in every civil action before the  
tribunal can safely find the affirmative of an issue of fact required to be  
proved it must be reasonably satisfied, and that whether or not it will be so  
satisfied must depend upon the totality of the circumstances on which its  
judgment is formed including the gravity of the consequences of the  
finding.  
[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:  
[5.52] Simply put, the trier of fact must find that the existence of the  
contested fact is more probable than its nonexistence. Conversely, where  
a party must prove the negative of an issue, the proponent must prove its  
absence is more probable than its existence.  
[5.53] But how does a trier of fact determine if the standard has been met?  
Certainly not based on the number of witnesses or the volume of evidence  
adduced. Also, if the nature of the inquiry is serious or the evidence  
adduced is very unsatisfactory, a jury may not be satisfied as to the  
existence of a disputed fact even though the proponent of the issue  
adduced a preponderance of evidence.  
[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:  
The truth is that, where the law requires the proof of any fact, the tribunal  
must feel an actual persuasion of its occurrence or existence before it can  
be found…  
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[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.  
Analysis  
Assessing Credibility and Reliability of Witnesses  
[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), 4 W.W.R. (N.S.) 171  
(B.C.C.A.) states as follows:  
The test must reasonably subject his story to an examination of its  
consistency with the probabilities that surround the currently existing  
conditions. In short, the real test of the truth of the story of a witness in  
such a case must be its harmony with the preponderance of the  
probabilities which a practical and informed person would readily  
recognize as reasonable in that place and in those conditions.  
[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.  
Sterczyk v. DFS Motors Ltd.  
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Positions of the Parties  
The Claimant’s Position  
[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.  
The Defendant’s Position  
[97] The Defendant submits that:  
a)  
b)  
there was no valid contract because there was “no consensus ad idem  
(meeting of the minds)” between the parties with respect to fundamental  
characteristics of the Vehicle;  
alternatively, if there was a contract, it was an express or implied term that  
the completion of the contract was “fully subject to the Defendant  
acquiring the Vehicle “as equipped in the window sticker, from the third-  
party Mainland Ford;  
c)  
b)  
further and in the alternative, if there was a contract, it was for the “sale of  
the stock Mustang” without the Additional Accessories;  
in the further alternative, if there was a contract both parties made a  
“mutual mistake” with respect Vehicle being the subject matter of the  
contract and relies on the doctrine of mutual mistake;  
c)  
d)  
in the further alternative, if there was a contract for the Vehicle, the  
Claimant was aware the Vehicle “did not in fact match the characteristics  
as outline on the window sticker” and the Defendant relies upon the  
doctrine of unilateral mistake; and  
finally, if there was a contract in place for the Vehicle, the contract was  
frustrated by the fact that significant accessories were installed on the  
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Vehicle by Mainland Ford and pleads and relies upon the Frustrated  
Contract Act, RSBC 1996 c. 166.  
[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.  
The Issues for this Court to Decide  
[99] Therefore main issues for consideration and determination in this action to come  
to a decision are as follows:  
a)  
b)  
c)  
Did the parties intend to create legal relations by way of a contract?  
If so, whether a valid and binding contract exists?  
If so, what was the form of that contract and what were the agreed terms  
of that contract?  
d)  
e)  
If there was a contract, was it breached?  
If it was breached, what is the appropriate remedy for its breach?  
Relevant Principles of the Law of Contracts  
[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:  
321 Courts strive to uphold contractual obligations solemnly and freely  
undertaken. They do not, however, impose them upon parties who have  
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not reached agreement on all essential terms: Catalyst Paper Corp. v.  
Companhia de Navegacao Norsul, 2008 BCCA 336.  
322 For parties to be bound in a contractual relationship there must be a  
manifest meeting of the minds. They must express themselves outwardly  
in a manner that indicates both an intention to be bound and reasonably  
certain mutually agreed terms: Klemke Mining Corporation v. Shell  
Canada Limited, 2007 ABQB 176, affirmed 2008 ABCA 257 ().  
323 These fundamental principles of contract law enable commercial life  
to operate in a fair, predictable and efficient manner. They apply whether  
the purported contract in question is concluded in writing, orally, by  
conduct, or by a combination thereof. The key question in all cases is  
whether an agreement has been reached on all essential terms,  
regardless of its form: Catalyst Paper Corp. supra; Periscan Financial  
Services Inc. v. 519090 B.C. Ltd., 2008 BCSC 707; Leong & Associates  
Actuaries & Consultants Inc. v. Watt, 2003 BCSC 1885.  
The Intention to Create Legal Relations  
[103] In paragraphs 324 to 335, under the heading “Intention to Create Legal  
Relations” Justice Dickson goes on to state as follows:  
324 The test for determining the intention to create legal relations is  
objective. It is explained by G.H.L. Fridman in The Law of Contract, 5th  
ed. (Toronto: Thomson Carswell, 2006) as follows:  
Constantly reiterated in the judgments is the idea that the  
test of agreement for legal purposes is whether the parties  
have indicated to the outside world, in the form of the  
objective reasonable bystander, their intention to contract  
and the terms of such contract. The law is not concerned  
with the parties' intentions but with their manifested  
intentions. It is not whether or not what an individual party  
believed or understood was the meaning of what the other  
party said or did that is the criterion of the agreement; it is  
whether a reasonable man in the situation of that party  
would have believed and understood that the other party  
was consenting to the identical terms.  
325 The objective test serves the main purpose of contract law: to protect  
reasonable expectations created by promises. Accordingly, "the test of  
whether a promise is made, or of whether assent is manifested to a  
bargain, does not and should not depend on an enquiry into the actual  
state of mind of the promisor, but on how the promisor's conduct would  
strike a reasonable person in the position of the promisee": S.M.  
Waddams, The Law of Contracts, 5th ed. (Toronto: Canada Law Book,  
Sterczyk v. DFS Motors Ltd.  
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2005), cited in Hammerton v. MGM Ford-Lincoln Sales Ltd., 2007 BCCA  
188.  
326 If the parties have reduced the alleged agreement to writing, the  
starting point for analysis is the wording of the document itself. The words  
used should be given their plain, literal and ordinary meaning, unless  
absurdity would result, and the contract should be construed in context  
and as a whole: A.L. Scott Financial (FIR) Inc. v. PDF Training Inc., 2004  
BCSC 1646, at para. 105-107; B.G. Checo International Ltd. v. B.C. Hydro  
and Power Authority, [1993] 1 S.C.R. 12; Jardine v. General Hydrogen  
Corporation, 2007 BCSC 119 at para. 23.  
327 If the parties' intent is not clear from the words of a written agreement,  
extrinsic evidence may be considered to assist in interpreting the  
arrangement or to explain, without contradicting, the language of the  
contract. As a last resort, the principle of contra proferentem may be  
applied to construe an ambiguity against the contract's drafter if the non-  
drafting party had no meaningful opportunity to negotiate its terms: A.L.  
Scott Financial, supra; B.G. Checo International, supra; Jardine, supra;  
Hillis Oil & Sales Ltd. v. Wynn's Canada Ltd., [1986] 1 S.C.R. 57, at para.  
17; Duprey v. Seanix Technology (Canada) Inc., [2002] B.C.J. No. 2118  
(S.C.).  
328 The interpretation of oral contracts turns on the same essential  
principles: Lawson Graphics Pacific Ltd. v. Simpson (1987), 12 B.C.L.R.  
(2d) 126. If the alleged agreement has not been reduced to writing, the  
Court must consider what the parties said and did and assess objectively  
whether, in context, their words and actions establish an intention to be  
bound: Periscan Financial Services Inc., supra; Leong & Associates,  
supra. The genesis and aim of the transaction is an aspect of the relevant  
context for consideration: Canada Square Corporation, supra. The  
credibility of witnesses will be particularly important and differing versions  
of events will increase the difficulty of establishing that an enforceable  
bargain was made: Anchorage Management Services Ltd. v. 465404 B.C.  
Inc., [1999] B.C.J. No. 2976, 1999 CarswellBC 2947 (C.A.).  
329 When the Court considers the parties' manifest intentions, it may be  
required to determine whether they intended to create a binding contract  
or simply reached a basis for future agreement. This question often arises  
where, as in the Specific Performance Action, the alleged agreement  
contemplates the execution of a further formal contract.  
330 It is not necessary for every conceivable matter to be resolved  
between the parties before an enforceable contract is created. The law  
does not, however, recognize an "agreement to agree". The question for  
determination is whether the parties have reached agreement on all  
matters that are vital or fundamental to the arrangement or whether they  
intended to defer legal obligation until a final agreement has been  
reached: Boult Enterprises Ltd. v. Bissett (1985), 21 D.L.R. (4th) 730.  
Sterczyk v. DFS Motors Ltd.  
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331 The classic statement of the law is found in Van Hatzefeldt-  
Wildenburg v. Alexander, [1912] 1 Ch. 284 at pp. 288-289:  
It appears to be well settled by the authorities that if the  
documents or letters relied on as constituting a contract  
contemplate the execution of a further contract between the  
parties, it is a question of construction whether the execution  
of the further contract is a condition or term of the bargain or  
whether it is a mere expression of the desire of the parties  
as to the manner in which the transaction already agreed to  
will in fact go through. In the former case there is no  
enforceable contract either because the condition is  
unfulfilled or because the law does not recognize a contract  
to enter into a contract. In the latter case there is a binding  
contract and the reference to the more formal document may  
be ignored.  
332 If agreement on all essential terms is established, on occasion the law  
will permit certain terms to be implied to give business efficacy to the  
bargain: Catalyst Paper Corp., supra, at para. 27. For example, in Canada  
Square Corporation, supra, a case involving an agreement to lease, the  
Court implied terms such as the dates for payment of rent. A term should  
not be implied, however, unless it is necessary: Alpine Veneers Ltd. v.  
Reed Lumber Co. Ltd., [1983] B.C.J. No. 2289 (C.A.), para. 33-34. In  
addition, no term should be implied where it would have the effect of  
rewriting the bargain or contradicting its other terms: Alpine Veneers,  
supra, at para. 33.  
333 In some cases where execution of a formal contract is contemplated,  
a draft contract containing additional or different contractual terms may be  
produced and delivered. In such circumstances, if the Court is satisfied, on  
objective analysis, that all essential terms were agreed and the new terms  
do not amount to a repudiation or admission that no agreement was  
reached earlier, the agreement will be binding: Perry v. Suffields, Limited,  
[1916] 2 Ch. 187 (C.A.); Horsnail v. Shute (1919), 27 B.C.R. 474 (C.A.);  
Klemke Mining Corporation, supra; Lake Ontario Cement Co. v. Golden  
Eagle Oil Co. Ltd., (1974), 46 D.L.R. (3d) 659. On the other hand, if the  
Court concludes that key terms remained open for negotiation an intention  
to be create legal relations will not be found: "Bay Ridge" (The), [1999] 2  
Ll.L. Rep 277; Pitt Air Ltd. v. Pitt Meadows Airport Society, [2006] B.C.J.  
No. 1870, 2006 CarwellBC 2031 (S.C.), affirmed [2007] B.C.J. No. 36,  
2007 CarswellBC 34 (C.A.); Bawitko Investments Ltd. v. Kernals Popcorn  
Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.).  
334 In order to determine whether a binding contract was created the  
Court may consider both the parties' conduct leading up to and following  
conclusion of the alleged agreement. For example, if the parties have  
acted on their understanding of agreement and incurred expenses the  
Court may be reluctant to find there was only a non-binding agreement to  
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agree: Leong & Associates, supra. On the other hand, if further  
negotiations took place after the alleged agreement was concluded it may  
suggest that definitive agreement was never achieved. Subsequent  
negotiations are not, however, necessarily inconsistent with a fully formed  
contract: Ridgeway-Pacific Construction Ltd. v. United Contractors Ltd.,  
[1978] B.C.J. No. 478 (S.C.).  
335 In The Law of Contract, 11th ed. (London: Sweet & Maxwell, 2003) Sir  
Guenther Treitel described the analytical approach to be adopted where  
subsequent negotiations form part of the relevant factual matrix. He wrote:  
When parties carry on lengthy negotiations, it may be hard to  
say exactly when an offer had been made and accepted. As  
negotiations progress, each party may make concessions or  
new demands and the parties may in the end disagree as to  
whether they had ever agreed at all. The court must then  
look at the whole correspondence and decide whether, on its  
true construction, the parties had agreed to the same terms  
... the Court will be particularly anxious to reach such a  
conclusion where the performance which was the subject-  
matter of the negotiations has actually been rendered ...  
Business men do not, any more than the courts, find it easy  
to say precisely when they have reached agreement, and  
may continue to negotiate after they appear to have agreed  
to the same terms. The court will then look at the entire  
course of the negotiations to decide whether an apparently  
unqualified acceptance did in fact conclude the agreement. If  
it did, the fact that the parties continued negotiations after  
this point will not normally affect the existence of the  
contract; it will do so only if the continuation of the  
negotiations can be construed as an agreement to rescind  
the contract. A fortiori, the binding force of an oral contract is  
not affected or altered merely by the fact that, after its  
conclusion, one party sends to the other a document  
containing terms significantly different from those which had  
been orally agreed.  
as cited in Norske Skog Canada Limited v. Companhia de Navegacao  
Norsul, 2007 BCSC 610.  
Certainty of Terms  
[104] Under the heading “Certainty of Terms” Justice Dickson provides the following  
additional guidance at paragraphs 339 to 341:  
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339 The Court cannot enforce an apparent bargain if its terms are  
unclear: Anchorage Management, supra. This is so because it cannot be  
said that the parties came to a meeting of the minds where the terms of  
the alleged agreement are vague, ambiguous or incomplete: Klemke,  
supra. As Viscount Maughm explained in G. Scammell & Nephew Ltd. v.  
Ouston, [1941] A.C. 251 (H.L.):  
In order to constitute a valid contract the parties must so  
express themselves that their meaning can be determined  
with a reasonable degree of certainty. It is plain that unless  
this can be done it would be impossible to hold that the  
contracting parties had the same intention; in other words,  
the consensus ad idem would be a matter of mere  
conjecture.  
340 As noted, however, there are enforceable contracts in which some  
matters are left to be determined in the future. The contract will not fail for  
uncertainty so long as an effective mechanism for their determination is  
agreed. In Hillas & Co., Ltd. v. Arcos, Ltd., [1932] All E.R. 494 the House  
of Lords stated:  
Business men often record the most important agreements  
in crude and summary fashion; modes of expression  
sufficient and clear to them in the course of their business  
may appear to those unfamiliar with the business far from  
complete or precise. It is, accordingly, the duty of the court to  
construe such documents fairly and broadly, without being  
too astute or subtle in finding defects ... that ..., however,  
does not mean that the court is to make a contract for the  
parties, or to go outside the words they have used, except in  
so far as there are appropriate implications of law, as for  
instance, the implication of what is just and reasonable to be  
ascertained by the court as a matter of machinery where  
contractual intention is clear but the contract is silent on  
some detail. Thus in contracts for future performance over a  
period, the parties may not be able nor may they desire to  
specify many matters of detail, but leave them to be adjusted  
in the working out of the contract. Save for the legal  
implication I have mentioned, such contracts might well be  
incomplete or uncertain; with that implication in reserve they  
are neither incomplete nor uncertain.  
341 Although courts will not enforce unclear contracts, they do not expect  
commercial documents to be drafted with strict precision. On the contrary,  
courts strive to preserve bargains if, on close analysis, definite meaning  
can be discerned from their terms. This approach is reflected in Canada  
Square Corp., supra, where Morden J.A. stated:  
Sterczyk v. DFS Motors Ltd.  
In this case there is no doubt that the document of October  
Page  
27  
14, 1969, as an agreement to lease, is crudely expressed  
and contains some very loose language. Further, a more  
sophisticated document would probably have covered  
several other matters in addition to those dealt with in it.  
Nonetheless, accepting that the parties intended to create a  
binding relationship and were represented by experienced  
businessmen who had full authority to represent their  
respective companies, a Court should not be too astute to  
hold that there is not that degree of certainty in any of its  
essential terms which is the requirement of a binding  
contract.  
Mistake  
[105] Under the heading of “Mistake” Justice Dickson says as follows at paragraphs  
360 to 361  
360 A contract is void if it is concluded based on a common and mistaken  
assumption as to the existing facts: Seppanen v. Seppanen, 1991  
1874 (BC SC) [1991] B.C.J. No. 2165 (S.C.). The doctrine of mistake does  
not apply, however, where the parties have allocated the risk of a  
particular eventuality.  
361 In Stellar Properties Ltd. v. Botham Holdings, Ltd., 1994 3184  
(BC CA) (para 51) ., [1994] B.C.J. No. 639 Rowles J.A. explained the  
doctrine of mistake by quoting from Chitty on Contracts as follows:  
The question of the effect of mutual mistake in the law of  
contract is basically one of the allocation of risk. In most  
situations one or other of the parties will be considered to  
have assumed the risk of the ordinary uncertainties which  
exist when an agreement is concluded. Where contracts of  
sale of goods are concerned, for example, the purchaser will  
normally be held to have assumed the risk that the goods  
may be defective, except in so far as the vendor has  
assumed that risk by giving an express or implied warranty  
to the contrary effect. A mutual misunderstanding, equally  
reasonable on the part of each party, will not nullify the  
agreement. Cases may, however, arise in which the mistake  
is such that the obligation which it is sought to enforce is  
fundamentally different from that which was originally  
contemplated in the agreement. If, then, the terms of the  
contract, construed in the light of circumstances existing at  
the time it was made, do not indicate that one or other of the  
parties took the risk that the facts might be otherwise than as  
Sterczyk v. DFS Motors Ltd.  
both had assumed them to be, the contract will be void for  
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mistake.  
Findings With Respect to Facts in Dispute  
[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.  
Sterczyk v. DFS Motors Ltd.  
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[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.  
Analysis and Application of the Law to the Facts  
[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.  
Sterczyk v. DFS Motors Ltd.  
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30  
[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:  
a)  
On an objective reasonable bystander test that there was an outward  
expression of and a communication of the parties’ intention to create a  
contract and the terms of that contract;  
b)  
c)  
d)  
The parties have evinced clear agreement on the essential terms of the  
intended contract;  
The overall conduct of both parties when considered assists in  
establishing a binding contract; and  
On an objective test basis, the acceptance of the Offer to Purchase may  
be implied from the conduct of both the Claimant and the Defendant.  
[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  
Sterczyk v. DFS Motors Ltd.  
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31  
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] B.C.J. No.  
2165 wherein he states as follows:  
The three types of mistake in contract are described by the authors of  
Cheshire, Fifoot and Furmston's Law of Contract (11th ed.) (London:  
Butterworths, 1986) at pp. 217- 218:  
In common mistake, both parties make the same mistake.  
Each knows the intention of the other and accepts it, but  
each is mistaken about some underlying and fundamental  
fact... In mutual mistake, the parties misunderstand each  
other and are at cross purposes...  
In unilateral mistake, only one of the parties is mistaken. The  
other knows, or must be taken to know, of his mistake.  
Suppose, for instance, that A agrees to buy from B a specific  
picture which A believes to be a genuine Constable but  
which in fact is a copy. If B is ignorant of A's erroneous  
belief, the case is one of mutual mistake, but, if he knew of it,  
of unilateral mistake.  
[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:  
Should I be wrong in my classification, I would-nevertheless strike down  
the contract on the reasoning expressed by McLachlin C.J.S.C. (as she  
then was) in First City Capital Ltd. et al. v. British Columbia Buildings  
Corp. (1989), 43 B.L.R. 29 (S.C.) at p. 37:  
In summary therefore, the equitable jurisdiction of the Courts  
to relieve against mistake in contract comprehends  
Sterczyk v. DFS Motors Ltd.  
situations where one party, who know or ought to know of  
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another' s mistake in a fundamental term, remains silent and  
snaps at the offer, seeking to take advantage of the other's  
mistake. In such cases, it would be unconscionable to  
enforce the bargain and equity will set aside the contract.  
[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.  
Conclusion and Orders  
[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.  
__________________________________  
The Honourable Judge J.P. MacCarthy  
Provincial Court of British Columbia  


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