Kijiji, iPhones and the small claims court
Q. I bought an apple iPhone for $330 off a seller I found on Kijiji. He had advertised it as a 3GS but after I made the purchase I realized it was a 3G which is considerably slower. I don’t have his address, and he is not responding to my calls. Now what?
Kijiji is a popular website featuring local classified ads. While it, overall, provides a great service to Canadians, it does have its fair share of “shady” sellers, and a buyer really has to beware.
Before even deciding if you have a case, there are a number of considerations you must make. First, you need an address to serve the debtor with the claim. Assuming you have tried to do a reverse search by phone number to locate the debtor without success, there is little you can do. There is an option known as “skip tracing” that helps locate debtors, but you need some basic information, and even if you have that, it can be expensive and would probably eat into the cost of your claim.
Even assuming you can find a way to locate the debtor, you have to determine if it would be worthwhile to file a claim. Sure, $330 is a lot of money, but let’s consider this in context. Let’s assume you will do this on the cheap without a lawyer or paralegal because, let’s face it, a legal professional’s services will cost more than the claim. It will cost you $75 to file a claim with the small claims court. Then, assuming the debtor does not wish to settle, it will cost you $100 to set the matter down for trial. That’s over half the amount owing already. Plus, even if you win at trial, the debtor will likely no pay the judgment and then you have to enforce. There are various costs associated with enforcement.
Note, you can claim legal expenses back from court but there are many judges who would not award more legal expenses to a Plaintiff than the amount of the claim (though arguably they should).
Turning to the actual merits of the case, you would need to have a printout of the advertisement showing that the clearly the seller falsely advertised the iPhone. The seller may try and claim buyer beware and that you had an opportunity to inspect the iPhone prior to making the purchase. This argument may or may not succeed depending on factors such as whether or not the iPhone was in the proper packaging when you made the purchase.
Note, you may not be able to simply keep the model you bought and claim for full reimbursement at the same time. Because you have an obligation to mitigate, i.e. lessen your damages to the extent possible, a court may expect you to immediately list the iPhone for sale (Kijiji!). Then, you would have to deduct whatever monies you make on the sale and that would leave you with the amount of the claim.
However, often small claims courts are more lenient in this regard and realize that as long as you are ready, willing and able to return the iPhone, you will not be blamed for holding onto the iPhone while still making a claim for full reimbursement.
Overall, it would seem that the amount of the claim coupled with you not having his address will make collecting very difficult in this case. At least you can use this as a learning experience, and I would make the following suggestions:
1) Whenever buying from services such as Kijiji, always keep a copy of the ad so that you can prove your case;
2) Thoroughly inspect the item before making payment; and
3) Prior to making the purchase, insist on obtaining a copy of the seller’s pertinent information with photo id proof. If a seller refuses, then refuse the deal.
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