Sunday, October 03, 2010

Car Auction Reveals Seedier Side of Humanity: “A Friend of a Friend is Not Necessarily Your Friend”

In writing trial decisions, judges are typically careful describing witnesses, in an attempt to maintain the utmost professionalism as impartial arbiters of fact and interpreters of law.

Imagine, then, the case before The Honourable Mr. Justice J.W. Quinn, which compelled him to describe defendant Gurnek Singh, as:
  • unblinkingly dishonest
  • no aptitude for the truth
  • without a conscience
  • a devious man
The May 7, 2010 decision of the Ontario Superior Court of Justice in Pirbhai v. Singh et al, 2010 ONSC 2446 (CanLII), also contains several colourful words and phrases to describe how Mr. Singh gave his testimony – evasive, non-responsive, maddeningly unwilling to respond to the simplest of questions, told untruths too numerous to catalogue and insulting in their breadth.

Given the foregoing, there is no need to even mention Mr. Singh’s version of the facts. I’ll restrict my comments to the “truths,” based on a balance of probabilities as determined by Judge Quinn.

The plaintiff, Kalimuddin Pirbhai, is a medical doctor from St. Catharines. He wanted to buy a used, high-end motor vehicle. A friend told him that he had a friend (Mr. Singh) who had access to automobile auctions. Dr. Pirbhai and Mr. Singh spoke, and agreed that Mr. Singh, who owned a motor vehicle sales outlet and auto collision centre, would buy such a car at a Stouffville auction of damaged motor vehicles.

The purchased vehicle turned out to be a 1998 Lexus. The parties agreed that Dr. Pirbhai would pay Mr. Singh the auction price, plus repair costs of $5,000. Mr. Singh assured Dr. Pirbhai that $5,000 could put the vehicle into “showroom condition.”

Dr. Pirbhai was not allowed into the auction premises pursuant to auction house rules. He had his wife and son wait outside while Mr. Singh was bidding. Mr. Singh bought the Lexus for $27,065.65, but told the Pirbhais that it cost $32,913.20. After the auction had ended, Dr. Pirbhai’s wife and son provided Mr. Singh with the requested cheque, having no idea of the actual purchase price. Unbeknownst to Dr. Pirbhai, Mr. Singh used the difference between what he really paid for the Lexus, and what Dr. Pirbhai paid him, to buy a second car at the auction for himself or his company.

After Mr. Singh had received payment from the Pirbhais, the wife and son saw the Lexus for the first time. At trial Mrs. Pirbhai described the car as simply dirty, filthy and damaged. The Pirbhais had no idea of the true extent of the damage. It was at that point that Mr. Singh soothingly reassured them that he could put it into “showroom condition” for $5,000. But at the auction, Mr. Singh had been provided with a four page damage estimate showing that $24,919.69 in repairs was needed. He secretly kept that document from his prey and instead told them that $5,000 would do the trick.

Apart from paying the agreed $5,000 for repairs, Dr. Pirbhai paid an additional $7,000, and then a further $3,000 to Mr. Singh. Mr. Singh demanded the extra payments. Mrs. Pirbhai testified that she and her husband felt “trapped,” having already invested so much money in the vehicle.

Subsequently Mr. Singh arranged for an auto body repair shop to fraudulently certify that the vehicle was structurally safe. Then he had Dr. Pirbhai sign two partially blank vehicle purchase agreements, which ended up showing the purchase price as $50,000. According to Judge Quinn, the agreements were “fraudulently created and altered” by Mr. Singh “in a clumsy attempt to contractually extort $50,000 from the plaintiff.”

Dr. Pirbhai made a final payment of $4,735 to Mr. Singh, before he would release the Lexus. Thereafter the Pirbhais realized that the car had not been properly repaired. Dr. Pirbhai had it test driven and evaluated by a Lexus dealership. He took the vehicle back to Mr. Singh and was assured that he would be refunded the purchase price on the basis that Mr. Singh intended to re-sell the car. It never happened.

Mr. Singh’s deception continued for months. Dr. Pirbhai eventually secured three reports which outlined the full extent of the still existing serious damage to the Lexus. For example, the author of a report which analyzed the Lexus using a specialized piece of equipment that measures deviations from manufacturers’ standards, gave evidence that of the 4,000 inspections performed by his centre, the deviations on the Lexus were among the worst. Armed with the reports, Dr. Pirbhai began his court action.

The judge awarded the plaintiff damages against Mr. Singh and his companies of $33,465.77 for breach of contract, deceit and misrepresentation, plus interest and costs. In addition, he ordered them to pay Dr. Pirbhai the sum of $50,000 for punitive damages. Punitive damages are reserved for those rare cases where a defendant’s conduct can be described as, according to the authority quoted by Judge Quinn, “malicious, high-handed, arbitrary, oppressive, deliberate, brutal, grossly fraudulent, evil, outrageous, egregious, callous, disgraceful, willful, wanton, in contumelious disregard of the plaintiff’s rights, or in disregard of ‘ordinary standards of morality or decent conduct’.” Judge Quinn wrote that at least 12 of these descriptions applied to the conduct of Mr. Singh.

Counsel for the plaintiff advised me that a decision has not yet been released regarding the amount of costs awarded to Dr. Pirbhai, but that the defendants have filed a notice of appeal, meaning that unfortunately for Dr. Pirbhai, the case is not yet over. Pirbhai v. Singh et al. took just over ten years from commencement of proceedings, until judgment. Hopefully it won’t take another ten years for Dr. Pirbhai to receive payment.

Mr. Justice Quinn began his decision with the words, “a friend of a friend is not necessarily your friend,” a life lesson for all of us.
- Alvin Starkman, Oaxaca, Mexico

Alvin Starkman received his Masters in Social Anthropology in 1978. After teaching for a few years he attended Osgoode Hall Law School, thereafter embarking upon a successful career as a litigator until 2004. Alvin, a good-standing member of the Law Society of Upper Canada, now resides with his wife Arlene in Oaxaca, Mexico, where he writes, leads small group tours to the villages, markets, ruins and other sights, is a consultant to documentary film production companies, and operates Casa Machaya Oaxaca Bed & Breakfast.


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