{"id":22872,"date":"2024-09-10T09:05:00","date_gmt":"2024-09-10T13:05:00","guid":{"rendered":"https:\/\/www.virtulexavocats.com\/?p=22872"},"modified":"2026-09-18T17:49:03","modified_gmt":"2026-09-18T21:49:03","slug":"sale-of-property-of-another-vehicle-auction-merchant-liability","status":"publish","type":"post","link":"https:\/\/www.virtulexavocats.com\/en\/sale-of-property-of-another-vehicle-auction-merchant-liability\/","title":{"rendered":"Selling What Isn’t Yours: When a Vehicle Auction Pays the Wrong Seller"},"content":{"rendered":"

A sales manager quietly sells 30 of his employer’s vehicles on an online auction platform and pockets $400,675. The Quebec Superior Court holds the auctioneer liable: when you buy in order to resell, you must make sure the seller actually owns the goods, or you answer for the fraud you made possible.<\/em><\/p>\n

Picture a business that buys cars to resell them, pays the seller within 24 to 72 hours, and only checks afterwards, once the money is gone, who actually owned the vehicle. Add a seller who is not the owner of the vehicles but an employee of the owner. Multiply by 30 vehicles. You get Aviva, Compagnie d’assurance du Canada c. Groupe Gr\u00e9gor inc.<\/em>, decided by the Honourable Marie-Paule Gagnon of the Superior Court on August 19, 2024 (2024 QCCS 5215).<\/p>\n

The judgment is a rich one. It revisits fundamental rules of the law of sale, such as the warranty of ownership and the sale of the property of another, and connects them to extra-contractual civil liability, that is, the duty not to harm others even in the absence of a contract. It also shows, in striking fashion, that a court measures a merchant against the standards of its trade.<\/p>\n

The facts: an employee, a shell company and an auction that moved too fast<\/h2>\n

A Mazda dealership in Ajax, Ontario, hires a manager for wholesale used-vehicle sales in July 2019. Management knows the man: he worked for the dealership’s previous owner from 2015 to 2018. Nothing at the time suggests a problem.<\/p>\n

Between April 2, 2019 and February 4, 2020, the employee lists 30 vehicles belonging to the dealership, through his own company (let’s call it EO), on the online auction platform operated by Groupe Gr\u00e9gor inc., better known as Wholesale Express. The platform is reserved for dealer-to-dealer sales. The sale price of those 30 vehicles, $400,675, is paid to EO or to the employee personally, never to the dealership. The dealership only uncovers the scheme in January 2020, during an annual meeting where the book value of its used-vehicle inventory looks abnormally high compared to other dealerships. Pressed with questions, the employee confesses.<\/p>\n

The dealership’s insurer, Aviva, pays out $250,000 under an employee dishonesty coverage. Aviva, which steps into the dealership’s shoes for that amount (this is called subrogation), and the dealership itself, for the remaining $150,675, sue Wholesale Express and its insurer, Lloyd’s. The dishonest employee, for his part, admitted the claim against him without reservation.<\/p>\n

Sale of the property of another and the warranty of ownership<\/h2>\n

The Civil Code of Qu\u00e9bec lays down a simple rule: you cannot sell what you do not own. The sale of property by a person who is not its owner, and who is neither charged with nor authorized to sell it, may be annulled. The seller must also warrant to the buyer that a genuine right of ownership is being transferred (art. 1716 C.C.Q.) and that the property is free of any rights, such as a hypothec (the Quebec equivalent of a mortgage or lien) or a reservation of ownership (art. 1723 C.C.Q.).<\/p>\n

The court draws a practical consequence for any buyer-reseller of used vehicles: to avoid acquiring and reselling someone else’s property, it must make sure that it is buying from the true owner, that the vehicle is free of any security, and that it pays the price to the true owner or to the person the owner designates. In Quebec, this involves a search of the Register of Personal and Movable Real Rights (RDPRM). In Ontario, the evidence showed that a search with the Used Car Dealers Association (UCDA) reveals the last registered owner in a few minutes and at little cost, and that a Carfax report shows any liens on the vehicle in a matter of seconds.<\/p>\n

Wholesale Express did none of these checks before listing a vehicle for auction or before paying the seller. It simply collected the registration certificate after payment, at the time of transferring the vehicle to the buyer. Its vice-president of operations at the time justified this practice by pointing out that the company is based in Quebec, that verification is pointless between dealers, and that most of its business comes from Quebec and the Maritimes. The judge was not persuaded, finding these explanations surprising and, above all, not a valid justification for the absence of verification.<\/p>\n

The bridge to extra-contractual liability<\/h2>\n

The dealership’s claim against Wholesale Express is not based on a contract between them; it is extra-contractual. It rests on article 1457 of the Civil Code of Qu\u00e9bec, the general rule of civil liability: every person has a duty to abide by the rules of conduct incumbent on them, according to the circumstances, usage or law, so as not to cause injury to another. Whoever fails in that duty and thereby causes injury must repair it.<\/p>\n

This is where the law of sale and civil liability meet. The seller’s obligations (to warrant ownership, to warrant the absence of liens) define what a prudent buyer-reseller must verify. A business that skips those checks does not merely breach its obligations to its own customers: it makes the sale of another’s property possible and becomes liable to the true owner who has been stripped of the goods. The court states the standard plainly: Wholesale Express had to behave as a normally prudent and diligent buyer-reseller of used vehicles would have.<\/p>\n

The burden of proving fault and its causal link with the loss lay on the dealership and Aviva (art. 2803 C.C.Q.). They met it. In the judge’s view, the absence of prior verification amounts to negligence, and requiring the registration certificate only after paying the seller is insufficient to protect all the parties to the transaction.<\/p>\n

The mandate you assume, the fault you commit<\/h2>\n

Wholesale Express knew that the vehicles sold by EO belonged to the dealership. Its defence: during a conversation in 2017, the employee had told it that he had an arrangement with the dealership to sell its used vehicles on the platform and that payment was to be directed to EO. In legal terms, this is a mandate, the Quebec civil-law concept for a person acting on behalf of another with that person’s authority (roughly, agency).<\/p>\n

The problem is that nobody at Wholesale Express ever validated this arrangement with the dealership’s management. The court recalls that whoever deals with a purported mandatary must verify the extent of that person’s powers by reasonable means, and that the mandatary’s own conduct cannot suffice to establish the mandate. In other words, taking the word of the person who claims to be authorized is burying your head in the sand. Nor does a sales manager have, by virtue of his position, the apparent authority to personally collect the price of his employer’s vehicles.<\/p>\n

Two details make the picture worse. First, the dealership changed hands in November 2018: even if an arrangement had existed in 2017, it bound the former company, not the new operator. Second, Wholesale Express’s own internal system did raise the alarm: in April 2019, an employee flagged to her superior that the registration certificate for a 2016 Toyota Camry was in the dealership’s name rather than EO’s. The superior, relying on his 2017 conversation, confirmed that payment to EO was authorized. No further transactions were ever questioned. The court adds that other red flags were ignored, including the employee’s certificate from the Ontario motor vehicle regulator, which identified him as a representative of a different dealership, and the fact that EO had never been registered there as a dealer at all.<\/p>\n

The judge closes by noting that the contracts produced by Wholesale Express were not correctly dated, were signed by only one side and did not include the seller’s tax numbers, and concludes that this is an organization that attaches no importance to contractual documentation and lacks rigour.<\/p>\n

Was the victim itself negligent?<\/h2>\n

Wholesale Express argued that the dealership had failed to supervise its employee and to control its inventory. The court examined this defence through the lens of the victim’s duty to mitigate its damages (art. 1479 C.C.Q.), applying the same standard of the reasonably prudent and diligent person. This time, the burden lay on Wholesale Express.<\/p>\n

The court acknowledges that more frequent physical inventories, or an alert system for vehicles taking too long to sell, might have allowed the fraud to be detected earlier. But it points out that the burden was not to show that the fraud could have been discovered sooner: Wholesale Express had to prove that failing to implement such measures was a fault, which requires evidence of what a prudent and diligent dealership actually does. No such evidence was offered. As the judge put it, it is not enough to prove that a fraud occurred. The relative scale of the scheme (about 1% of total annual sales and about 8% of the used cars sold in a year), spread over ten months, did not support a finding of wilful blindness either.<\/p>\n

Two side issues: insurance and solidary liability<\/h2>\n

Wholesale Express’s liability policy with Lloyd’s covered only property damage occurring at its premises. The loss of possession of the vehicles does qualify as property damage under the policy, but the vehicles never passed through any Wholesale Express place of business: they were shipped directly from the dealership to the buyers. The policy, found to be clear, therefore does not apply. Wholesale Express bears the judgment alone.<\/p>\n

Finally, the dealership had undertaken not to enforce the judgment against the employee before making reasonable attempts to enforce it against Wholesale Express. Wholesale Express saw this as a waiver of solidarity, the rule that allows a creditor to claim the whole debt from any one of several co-debtors; such a waiver would have forced it to absorb the employee’s share if he is insolvent (art. 1538 C.C.Q.). The court answers that this is merely an enforcement arrangement, which does not deprive Wholesale Express of its own recourse against the employee. In the end, the employee and Wholesale Express are condemned solidarily to pay $150,675 to the dealership, with liability apportioned between them at 100% for the employee and 0% for Wholesale Express, and Wholesale Express alone is condemned to reimburse $250,000 to Aviva, all with interest from the demand letter of May 29, 2020.<\/p>\n

Why this case stands out<\/h2>\n

The contrast between the two merchants is striking. The dealership, victim of a dishonest employee, was found free of fault. The intermediary, which stole nothing and was deceived by the same fraudster, is ordered to pay the entire loss, more than $400,000. Why such a difference?<\/p>\n

The answer lies in the standard of conduct. The court does not measure Wholesale Express against an ordinary person, but against a competent buyer-reseller of used vehicles, who must keep informed of the rules of its trade. The verification tools existed, cost next to nothing and took a few minutes. Setting them aside in favour of fast payments is a business risk taken with full knowledge, at the expense, as the judge noted, of measures capable of preventing theft and fraud. The dealership, by contrast, had no specific duty to run a check on every transaction; it had to be shown that a prudent dealership would have done better, and that showing was never made.<\/p>\n

One can certainly ask whether the outcome is harsh. The 100% to 0% apportionment in Wholesale Express’s favour, as between it and the fraudster, shows the judge regards it as a victim too. But between two victims, civil law places the burden on the one that had the means to prevent the loss and chose not to use them. Some will say that a business selling dealer-to-dealer should be entitled to rely on its professional customers. The judgment closes that door: between professionals, more rigour is expected, not less.<\/p>\n

Key takeaways<\/h2>\n

If you buy goods in order to resell them, vehicles in particular, you must verify before paying who the owner is and whether the goods are encumbered. In Quebec, search the RDPRM; elsewhere, use the equivalent tools. Speed of transaction is no excuse for skipping verification.<\/p>\n

If someone claims to act on behalf of a business, validate it with that business’s management, and validate again when the business changes hands. A “manager” title does not carry the power to collect the employer’s money.<\/p>\n

If your own alarm system goes off, do not silence it on the strength of a two-year-old conversation. Document your contracts, date them and have every party sign them: the judge drew a general conclusion about the company’s lack of rigour from that carelessness.<\/p>\n

If you are the victim of employee fraud, expect the other side to blame you for poor supervision. That defence requires concrete evidence of what a prudent employer would have done; without it, it fails. And if you settle with the fraudster, have the agreement drafted carefully to avoid an unintended waiver of solidarity.<\/p>\n

Finally, read your liability policy before you need it. Coverage limited to damage occurring at your premises will not protect you against a claim involving goods you never had in your possession.<\/p>\n

\n

This column is published for general information purposes only and does not constitute legal advice. Because every situation is unique, you should consult a lawyer for advice tailored to your own case. Feel free to contact Virtulex avocats to discuss your situation.<\/em><\/p>\n

William Desrochers, Attorney, Virtulex avocats \u2014 www.virtulexavocats.com<\/a><\/p>\n

Reference:<\/strong> Aviva, Compagnie d’assurance du Canada c. Groupe Gr\u00e9gor inc.<\/em>, 2024 QCCS 5215 (Superior Court of Quebec, District of Quebec, the Honourable Marie-Paule Gagnon, J.S.C., August 19, 2024) \u2014 Read the judgment on CanLII<\/a> (French only)<\/p>\n","protected":false},"excerpt":{"rendered":"

An employee sells 30 of his employer’s vehicles on an online auction and pockets $400,675. The Quebec Superior Court holds the platform liable: sale of the property of another, warranty of ownership and a merchant’s duty to verify.<\/p>\n","protected":false},"author":3,"featured_media":22491,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":"","_et_gb_content_width":"","inline_featured_image":false,"footnotes":""},"categories":[58,21],"tags":[],"class_list":["post-22872","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-business-law","category-civil-law"],"yoast_head":"\nSelling What Isn't Yours: When a Vehicle Auction Pays the Wrong Seller - Virtulex Avocats<\/title>\n<meta name=\"description\" content=\"An employee sells 30 of his employer's vehicles on an online auction. 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