SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: J. CONNELLY RENTAL LTD., Plaintiff
-and-
DAVID LEFEBVRE, Defendant
BEFORE: Mr. Justice Rutherford
COUNSEL: Robert W. Baldwin, for the Defendant (Appellant)
Ian B. McBride, for the Plaintiff (Respondent)
E N D O R S E M E N T
1On June 27, 2001 the appellant rented a “Bobcat diesel loader” from the respondent. He used it to construct a gravel boat launching ramp at the water’s edge. He had used it satisfactorily all the first day but while continuing to use it the second morning, while coming up the ramp, the loader “flipped and went backwards into the water and stalled”.
2The respondent owner recovered the loader and sued the appellant in the Small Claims Court, claiming payment of two days’ rental, one month’s lost rental while the machine was being repaired, and the cost of those repairs which included replacement of the whole engine, together with related expenses. In all, the claim totaled $8,686.27.
3The trial judge awarded the respondent owner the amount claimed, less $200 which the appellant had already paid. He also awarded the respondent owner $500 in costs. The appellant appeals against that awards.
4Counsel for the appellant raised five issues in arguing the appeal. First, he argued that the respondent owner had not proven satisfactorily that the loader that had been repaired was the one the appellant had sunk in the water. There is some confusion about it. The respondent owner had two Bobcat diesel loaders, one described in a purchase invoice dated October 3, 2000 as a Model 443 with serial no. 515013938 and the other described in its purchase documentation dated April 20, 2001 as a Model 463 with serial no. 520011255.
5The president of the respondent owner testified that while the newer Bobcat had a different model number, they were essentially the identical machines. He testified that it was the newer machine, Model 463, which the appellant rented and damaged. Indeed, the rental agreement signed by the appellant on June 27, 2001 referred to the equipment as a Small Bobcat No. BC463J. The invoice from the company that Mr. Connelly said repaired the machine by replacing its engine, appears to refer to it as “Bobcat 443, S/N 515013938”, which would suggest it was the older of the respondent owner’s two Bobcats. Mr. Connelly had no explanation for this apparent confusion as to the machine.
6The trial judge did not analyze this issue in his reasons but found that the machine that was rented was damaged and repaired as the respondent owner claimed. While it would be possible for him to have grappled with the argument that the confusion clouded the claim sufficiently to defeat it, it is apparent that he was satisfied that it did not. The evidence was that there were only two Bobcats and that the one the appellant rented was damaged and that its engine had water in it and had a hole blown in the head and had to be, and was replaced. I cannot find that in passing over the paper details that raise some confusion as to which of the two machines the appellant damaged, the trial judge made the kind of error that would warrant interference on appeal. There was no evidence that the respondent owner’s other machine was also damaged. Mr. Connelly testified that the repairs were done to the machine the appellant damaged and that was sufficient to justify the trial judge’s finding.
7The next issue argued by Mr. Baldwin was that the damage may have been caused by the respondent owner who, when he arrived at the scene some eight or nine hours after the machine had gone into the water, tried to start it. The engine turned over but would not start. The appellant testified that right after the machine went into the water and stalled he too had tried to start the engine to get the machine back out of the water but that it just made a clicking sound and did not even turn over.
8Mr. Mullins, from the company that repaired the machine, testified that the engine had blown because of water getting inside it. He said that, “…there was a great big hole in the block”. In cross-examination he was asked if water could have got into the engine as a result of the efforts of Mr. Connelly to start the engine while the machine was still in the water. His answer was, “Yeah, I suppose”. As to the cracked block, he said:
What I would suppose, the water got into the intake and went through the intake valve and then when on compression stroke, you can’t compress liquid, so something had to give. There was water between the head and the piston.
9The trial judge found the appellant responsible for the damage because it occurred during the time the machine was being used by him. While there was some basis on which to suppose that the cracking of the block resulted directly from the efforts of Mr. Connelly to re-start the machine, it was the appellant who caused it to become submerged and, in any event, I think it more probable that the kind of engine damage described by Mr. Mullins occurred when the running engine first went into the water with its pistons pumping under diesel combustion than much later when Mr. Connelly made the cold engine turn over, presumably under battery power. Again, I cannot characterize the trial judge’s conclusions as palpable or overriding error, given the evidence.
10Mr. Baldwin also argued that the respondent owner had not satisfactorily proven that during the time the Bobcat was being repaired, it could have been rented out, thus justifying the claim for $1,680 for lost rentals. There was no evidence of how much demand there was for such a Bobcat, during the time it was being repaired. I am persuaded by Mr. McBride’s reply to this argument, however, that on the language of the rental agreement, the appellant is liable to pay the rental cost of the machine until such time as it is returned in good condition to the respondent owner. I do not find error in this aspect of the judgment.
11Mr. Baldwin suggested that there was, on the evidence, a basis on which to reduce the damages otherwise payable by the appellant in that the respondent owner was, as a result of the installation of the new engine in the Bobcat, in a position of “betterment”. I do not find much merit in this argument since both Bobcats were less than a year old when the one of them was damaged. Moreover, there was no evidence to support a “betterment” argument in any detail. There was some evidence that the damaged engine had only about 86 hours of use on it although the testimony of the appellant was that its meter showed almost 1,000 hours of use. As the trial judge pointed out, this evidence was at odds with the statement of defence in which the appellant pleaded that he had no idea how many hours of use the machine had on it. Whether this “betterment” argument was raised at trial is unclear. The trial judge did not mention it. In any event, I found it unpersuasive.
12Mr. Baldwin argued, finally, that the respondent owner’s claim should fail because the “damage waiver” provision on the rental agreement was not brought to his attention and he did not therefore accept it as part of the rental contract. It would appear that had he accepted it and paid the required additional amount he would not have been able to be held liable for the damages for which the trial judge found him liable. Mr. Baldwin advanced no statutory or common law basis for this proposition. I do not know if that argument was made at trial. The trial judge makes no reference to it. I regard the lack of any provision waiving damage liability in the contract as nothing more than that there was no such provision in the rental agreement. The fact that such provision was available in print for inclusion in the contract does not, in my view, create any liability for the respondent owner for failure to offer it or draw the attention of the appellant to it. For what it is worth, the clause was there for the appellant to read, although he, like most of us, are not likely to read all the fine print on this kind of rental agreement at the time we sign such pieces of paper. I see no basis on which to interfere with the trial judge’s finding as to liability on this ground.
13In conclusion, I am not persuaded on any of the grounds argued, to interfere with the result at trial. I think the findings of fact and of liability reached by the trial judge are grounded in the evidence and I agree with them. The appeal must therefore fail.
14Costs in Small Claims Court trials are kept to very modest levels so as not to impede access to justice at that level. When, however, a successful litigant is required to defend his success on appeal to the Divisional Court and does so successfully, an award of costs more closely approximating the litigant’s actual legal costs is required or else that party’s success at trial will be seriously eroded and undermined. I think the Small Claims Court litigant who decides to take the successful party on to appeal in the Divisional Court runs that risk.
15On the basis of the information provided by Mr. McBride as to the actual legal costs the preparation and presentation of this appeal, an award of $3,000 on a substantive indemnity basis is appropriate. This includes G.S.T. The respondent will therefore have its costs in that amount on the appeal.
Order Accordingly.
RUTHERFORD J.
DATE: November 10, 2003.
COURT FILE NO.: 02-DV-755
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: J. CONNELLY RENTAL LTD., Plaintiff (Respondent)
-and-
DAVID LEFEBVRE,
Defendant (Appellant)
BEFORE: Justice Rutherford
COUNSEL: Robert W. Baldwin, for the Defendant (Appellant)
Ian B. McBride, for the Plaintiff (Respondent)
ENDORSEMENT
RUTHERFORD J.
DATE: November 10, 2003