Automotive News Canada - June 2023 - 26

26
* JUNE 2023
B.C. Tribunal: Nissan can't charge
what wasn't specified in the lease
The $898 'was simply
an administrative
fee' not mentioned in
the lease and, thus,
not collectible, the
decision said
By ERIC FREEDMAN
LEGAL CORRESPONDENT
NISSAN CANADA IS ON THE
hook for damages for breaching a
customer's lease agreement, the
British Columbia Civil Resolution
Tribunal has ruled.
The tribunal said Nissan
wrongfully demanded a lease
buyout fee from the lessee. The
tribunal also rejected the automaker's
argument that the $898
fee was not a lease buyout but
was for a " mandatory safety
inspection. "
The lease had no such provision.
In
2018, Jaqueline Sehmer
signed a 48-month lease for
a Mitsubishi Outlander GT,
according to the March 11 decision.
The Mitsubishi dealership,
which is not part of the suit,
assigned the lease to Mitsubishi
Motors Financial Services,
" the name under which Nissan
Canada Finance, a division of
[Nissan Canada Inc.], offers
financial services for Mitsubishi
vehicles, " the decision said.
At the end of the lease,
Sehmer returned to the store to
exercise her purchase option,
and the dealership charged her
$898 to complete the deal. Nissan
refused to repay it.
" I find it reasonable for
Sehmer to have expected to pay
only the amounts described in
the lease and no more, even
though she arranged to buy the
vehicle through the dealer, as
that was the only means of purchasing
it clearly set out in the
lease, " tribunal member Megan
Stewart wrote in the decision.
The lease buyout fee " was simply
an administrative fee " not
mentioned in the lease and, thus,
not collectible, Stewart said.
The tribunal awarded Sehmer
$1,006 in damages, plus interest
and fees.
CLUTCH CRUMBLED,
SO DOES LAWSUIT
THE SUPREME COURT OF
Newfoundland and Labrador has
ruled in favour of a St. John's
GMC and Buick store that was
sued over the sale of a used vehicle.
The
plaintiff, Gordon Aylward,
said that a few days after he
bought a five-year-old Audi
from Terra Nova Motors, the
clutch assembly disintegrated as
he drove on the Trans-Canada
Highway. The car, which had a
manual transmission, was advertised
as having undergone a 150point
inspection and came with a
30-day, 5,000-kilometre warranty.
Aylward sued the store for
fraudulent representation and
negligent misrepresentation but
lost at trial. He lost again May
5 when the Supreme Court of
Newfoundland and Labrador
found no liability on the dealership's
part.
There was no evidence that
the store's salesperson knew of
any defect in the clutch assembly,
Justice Vikas Khaladkar wrote,
adding that wear and tear was not
covered by Aylward's used-vehicle
limited warranty.
Khaladkar noted that the trial
judge had accepted the service
manager's testimony that the
clutch-assembly failure was probably
due to improper driving -
" riding the
clutch. "
The
Supreme
Court decision
noted the
trial judge's
observation
that " when
buying a
used vehicle, there is an element
of risk; and the maxim of caveat
emptor, or buyer beware, operates. "
For a more comprehensive
warranty, a purchaser " can mitigate
the risk by obtaining better
coverage against potential loss, "
the ruling said.
Also, Aylward had an opportunity
to get a third-party inspection
before completing the deal but
opted not to, the court said.
SPURNED DEALERSHIP
PARTNER PREVAILS
THE ONTARIO SUPERIOR
Court of Justice has upheld a
$254,400 judgment in favour of a
minority shareholder who was
wrongfully frozen out of a promised
20-per-cent stake in a new
dealership.
In a March 16 decision, the
unanimous three-judge appeals
panel upheld a trial verdict
in favour of Roy Bateni, who
claimed that Massoud Jamali
broke a contractual commitment
for a one-fifth stake in a
new dealership in Bolton, near
Toronto.
According to the court, in
January 2011, Jamali and Bateni
discussed acquiring a Chrysler
franchise in Bolton with a third
partner. They agreed that Jamali
would be the majority owner and
that Bateni would get a 20-percent
stake and serve as general
manager and dealer principal.
While the new store was getting
ready to open, Bateni was
to pay for his 20-per-cent capital
contribution by " sweat equity "
- working at a reduced salary
as a manager at another dealership
Jamali owned, North York
Chrysler in Toronto.
They submitted a written
shareholder agreement
to Chrysler Canada and the
Ontario Motor Vehicle Industry
Council, and Chrysler Canada
issued a letter of intent approving
the agreement.
However, the relationship
between Jamali and the 29-percent
shareholder " deteriorated. "
Chrysler Canada learned of the
rift and rescinded its letter of
intent.
Jamali then established the
Bolton dealership, Caledon
Hills Chrysler-Jeep-Dodge-Ram,
through a different corporation.
He excluded Bateni as an owner
and general manager and fired
him as manager of North York
Chrysler.
After an eight-day trial, a judge
ordered Jamali to pay damages to
Bateni.
On appeal, Jamali unsuccessfully
argued that no binding contract
existed. He also failed to
persuade the court that Chrysler
Canada's rescission of the letter
of intent was responsible for
Bateni's financial loss.
The court ruled that Jamali
acted in bad faith and broke the
contract by applying for the new
store to Chrysler Canada in the
name of his other corporation
without Bateni.
JUDGE DISMISSES
WRONGFUL-DISMISSAL SUIT
FALSIFYING EXPENSE
receipts, even for small amounts,
justified firing a high-level dealer
group executive, a Supreme
Court of British Columbia judge
has ruled.
That was the fate of Todd
Mechalchuk, who had spent his
career as a salesman, sales manager,
sales director and general
manager of dealerships in Alberta
and British Columbia, including
some belonging to Edmontonbased
AutoCanada Inc.
Galaxy Motors, which has
five Victoria-area used-vehicle
stores, hired Mechalchuk
in 2020. He became president of
operations but was fired in 2022
for dishonesty, including collecting
reimbursement for meals
he ate with his wife that were
falsely listed as business-related
expenses with employees,
according to the April 20 opinion
by Justice Gary Weatherill.
Weatherill tossed out
Mechalchuk's wrongful termination
suit, saying that although
the total of falsified meal receipts
(about $225) " was relatively
small, the misconduct went to
the very root of his employment
relationship. He was in the most
senior management positions.
His position commanded a high
level of authority, responsibility
and trust. "
The Galaxy Motors employee
handbook provided for immediate
dismissal for falsifying
records or information.
According to the decision,
AutoCanada in spring 2020
offered Mechalchuk a " lucrative
position " to relocate to British
Columbia from an auto group
in Alberta. Instead, he accepted
a position with Galaxy Motors,
initially as general manager. He
became vice-president of operations,
then president of operations.
Weatherill
held that termination
was justified, saying
Mechalchuk breached the trust
of his employer " by submitting
false expense receipts and
being untruthful about them
when given an opportunity to
explain them. " When confronted,
" instead of confessing what he
had done, he perpetuated the dishonesty
by repeating it. "
After Galaxy Motors fired
Mechalchuk, he was hired as general
manager of an AutoCanada
store, the decision said. - ANC
Tien: " I believe that as a
Canadian, we were trained
to be sensitive to cultural
diversity. ... I have to say
thank you to the Canadian
government and our people in
Canada that we are nurturing
a very tolerant society. "
PHOTO: TOYOTA
In fleeing war, he found
a path, and perspective
Toyota executive's
auto industry
journey got on the
rails in Canada
By KELLY TAYLOR
WINNIPEG CORRESPONDENT
FOR MOST CANADIANS,
the Vietnam War was a distant
conflict. For Hao Quoc
Tien, a Vietnamese Canadian
who is now CEO of the Asia
Region for Toyota Motor
Corp., it became a defining
element for his career.
Fleeing the war and the
Communist regime for
Canada, followed by the difficult
integration into
Canadian society, gave
Tien a new perspective
on overcoming challenges.
" I
think that element
allowed me to
look at very difficult
situations with a
much lighter view,
like an opportunity, "
he said. " I've
seen this before, I've
been in a much worse situation
than here, so why do I
worry? "
After 11 years at Toyota,
Tien was appointed general
manager of Toyota Motor
Corp. in Japan, then vice-president
of Lexus China and then
senior vice-president of sales
and marketing for Toyota
Motor Asia Pacific. From his
base in Singapore, he worked
his way up to COO of sales and
marketing before moving into
various top-level positions in
Malaysia, India, Indonesia and
Thailand, finally returning to
Singapore in his current role.
EYE-OPENING
CANADIANS
ABROAD
Working in the
auto industry in
other countries
Becoming an industry insider,
Tien said, opened his eyes
to the vast scope of the automotive
business, from mining
to manufacturing
to financial services,
marketing and warranty
work. He credits
his insatiable curiosity
for inspiring his
career growth.
" I like to learn different
things about
the industry, so that
encouraged me to
move from job to job, "
he said. " I believe
Today Tien, president of
Toyota Motor Asia Pacific, is
among the automaker's most
senior global executives, but
he got his start working for
the railway. After graduating
from the University of
Waterloo in Ontario with a
bachelor of applied sciences,
in 1990 Tien became manager
of intermodal services for
the Canadian Pacific Railway,
now known as CPKC.
His time at CP Rail sparked
his interest in automotive, as
vehicles were among the key
products his intermodal services
helped ship. Toyota was
one of his clients. Nine years
later, Tien joined Toyota
Canada Inc. as director and
chief information officer.
" Working with them
through the years, I started to
like the Toyota culture, " he
told Automotive News Canada
from Singapore. " So when the
opportunity came in 1999, I
actually joined the company.
So it's not really about automotive;
it's Toyota that attracted
me. "
that curiosity and desire to
learn really fit into Toyota's
job rotation culture. "
Tien said he never had
eyes on the corporate suite in
Singapore.
" I never thought that way.
I always take every opportunity
one day at a time and one
opportunity at a time. "
Tien's role in Asia is vastly
different from those of his
counterparts in Canada or the
United States, where company
presidents deal with regulations
and market conditions
within their borders.
Tien deals with 17 countries,
stretching from India to the
Philippines.
He credits his Canadian
upbringing for his ability to
navigate different cultures.
" As an immigrant, as an
Asian Canadian, I feel comfortable
in different cultures, in
moving around, " Tien said. " I
believe that as a Canadian, we
were trained to be sensitive to
cultural diversity. ... I have to
say thank you to the Canadian
government and our people in
Canada that we are nurturing
a very tolerant society. "
- ANC
Automotive News Canada - June 2023

Table of Contents for the Digital Edition of Automotive News Canada - June 2023
