A person who sold a fake cellphone through Facebook marketplace must give the buyer’s money back despite claiming that “no refunds” was a term of the sale, B.C.’s Civil Resolution Tribunal has decided.
The dispute dates back to 2024 when Derek Garner arranged to purchase a Galaxy S23 Ultra from Kulwinder Khangura, according to the decision.
When the pair met up, Garner tested the phone by taking a couple of photos, putting in a SIM card and making a call. He then handed over $500 for the device – which came in a box that indicated that it was the make and model advertised, complete with a serial number, the tribunal was told.
“About 10 minutes later, the applicant looked closer at the phone and concluded it was counterfeit. They texted the respondent that they wanted a refund because of this,” tribunal member David Jiang’s decision said.
“The respondent replied, ‘Unfortunately there will be no returns accepted. Sorry for the inconvenience.’ The respondent did not deny the phone was counterfeit or otherwise respond after that.”
The decision explained that the law around a private sale of this nature is laid out in the province’s Sale of Goods Act.
Items sold in transactions like the one in question are considered to have an implied warranty which “requires that the goods sold be durable for a reasonable period, considering how the goods would be normally used and the sale’s surrounding circumstances.”
This also allows for the implied warranty to be “excluded” from a sales contract which is what Khangura was arguing happened in this case.
The tribunal disagreed.
“I find that ‘no refunds’ is insufficient language to show that the parties agreed to exclude the implied warranty,” Jiang wrote.
“I find this language was insufficient to show that the parties agreed the applicant would bear the risk that the phone was counterfeit. For example, the parties did not explicitly agree that the applicant was responsible for verifying the phone was genuine,” the decision continued.
Given that the phone was an “undisputed counterfeit” the tribunal determined it likely had “no value.”
Khangura was ordered to refund Gardner the full $500.
