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Daily Archives: January 23, 2018

I was recently successful representing a client at a Trial where they were sued for an alleged misrepresentation of the product they sold the plaintiff. The plaintiff purchased Product A from our client, but claimed they expected Product B. The only difference between A and B was the subtle finishing on the Product. The plaintiff also claimed that they paid the purchase price of Product B, when they were given Product A.

They believed they purchased Product B, because the Product Purchase Agreement identified it as a B, rather than A due to a typo.

The plaintiff sued for the difference in value between the A and B.

The plaintiff pled in the Plaintiff’s Claim and testified at Trial that they always intended on purchasing Product B, despite the plaintiff signing a thick stack of documents relating to the purchase of Product A, and only the Purchase Agreement identified the Product as B.

During the plaintiff’s examination in chief, the plaintiff testified that a friend allegedly told them they overpaid by the amount they sued our client for. Because this was hearsay, the statement was not considered evidence by the Judge.
During cross –examination, I asked the plaintiff what their damages were, since the paralegal representing them at the trial failed to do so. The plaintiff believed that they were entitled to the damages based upon the typo made by our client and the hearsay statement made by their friend. The plaintiff did not prove the amount of the damages they claimed to have suffered as a result of the typo.

I also questioned the plaintiff on what research they did before they bought the Product. The plaintiff had no idea that there was an A and B until after the purchase. This confirmed that the plaintiff was not truthful in their pleadings and testimony that they always believed they purchased B, because they did not know there was a difference.

Part of the plaintiff’s evidence included a bill of sale where a few months later, the plaintiff bought a brand new Product B. They claimed that it showed that the plaintiff because they never wanted the A and as result bought a new Product to replace the one purchased from our client.

What the bill of sale really showed was that they traded in Product A purchased from our client for an amount higher than purchase price from our client.

I argued that the plaintiff had mitigated their damages and had no cause of action. I also argued that even though any damages had been mitigated, the plaintiff failed to prove any damages were even suffered. The Judge agreed.

It is very important to remember that if you are going to sue, you must prove you suffered damages and the amount of those damages, or you will end up losing and paying the other side’s costs.

Murray S. Brown, Paralegal
mbrown@andriessen.ca