Court File and Parties
COURT FILE NO.: 304/07
DATE: 20090408
SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)
RE: robert wainwright o/a puddle duck trading (Respondent/Plaintiff) v. ning (jack) yang jia (Appellant/Defendant)
BEFORE: Justice Low
COUNSEL: Ning (Jack) Yang Jia, the Appellant, in person Robert Wainwright, the Respondent, in person
HEARD AT TORONTO: April 7, 2009
ENDORSEMENT
[1] The appellant Ning Yang Jia appeals from the judgment of Deputy Judge Yee of the Small Claims Court given at Toronto on April 10, 2007 allowing the respondent's claim of $1,628.98 on a claim in contract and for services rendered.
[2] The action arises out of repairs to the appellant's boat performed by the respondent between February and May 2005. The total amount invoiced was $2,628.98. The total paid was $1,000.00.
[3] There is no challenge to the trial judge's findings of fact, including the findings that the work was performed and that the charges were reasonable. These findings are sufficient to support the claim in quantum meruit which would justify the judgment in the absence of a statute or principle barring recovery.
[4] The appellant relies on Part VI of the Consumer Protection Act, 2002, S.O. 2002, c.30, and in particular on sections 55-59:
- In this Part,
"estimate" means an estimate of the total cost of work on and repairs to the goods being repaired; ("devis")
"repairer" means a supplier who works on or repairs vehicles or other prescribed goods; ("réparateur")
"vehicle" means a motor vehicle as defined in the Highway Traffic Act. ("véhicule")
- (1) No repairer shall charge a consumer for any work or repairs unless the repairer first gives the consumer an estimate that meets the prescribed requirements.
(2) Despite subsection (1), a repairer may charge for work or repairs without giving an estimate if,
(a) the repairer offers to give the consumer an estimate and the consumer declines the offer of an estimate;
(b) the consumer specifically authorizes the maximum amount that he or she will pay the repairer to make the repairs or do the work; and
(c) the cost charged for the work or repairs does not exceed the maximum amount authorized by the consumer.
- (1) No repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs.
(2) No repairer shall charge, for work or repairs for which an estimate was given, an amount that exceeds the estimate by more than 10 per cent.
- If an authorization required by section 56, 57 or 58 is not given in writing, the authorization is not effective unless it is recorded in a manner that meets the prescribed requirements.
[5] The trial judge's findings of fact disclose that the respondent did not comply with the repairer's obligations under ss. 56 and 58. In her reasons for judgment, the trial judge did not deal with Part VI of the Consumer Protection Act, 2002 although the statute was alluded to in argument.
[6] Part VI of the Consumer Protection Act, 2002 does not apply. It did not come into force until July 30, 2005. The events which are the subject matter of the action took place between February and May 2005.
[7] Part VI of the Consumer Protection Act, 2002 replaces and expands the Motor Vehicle Repair Act, R.S.O. 1990, c. M.43 which was repealed effective July 30, 2005. Whereas the Motor Vehicle Repair Act covered only motor vehicles, Part VI of the Consumer Protection Act, 2002 applies also to "other goods".
[8] I am of the view that the Motor Vehicle Repair Act did not apply to the repair of the appellant's boat and I come to that conclusion as a result of the definition of "motor vehicle" in that statute which imports the definition from the Highway Traffic Act.
[9] The definition in the Highway Traffic Act is not a true definition. It sets out a number of types of objects that are included and also set out some objects which are not included. Particularly problematic is the fact that the definition is self-referential: "'motor vehicle' includes…any vehicle drawn, propelled or driven …." (Emphasis added).
[10] It is significant that the definition of "motor vehicle" in the Highway Traffic Act does not expressly provide for the inclusion of boats. As "boats" are distinct from the term "motor vehicle" as used in ordinary parlance, one would have expected that they would have been named as an inclusion had the Legislature so intended. The reasonable inference to draw from the absence of this type of object from the list of inclusions is that the Legislature did not intend that boats be caught in the definition.
[11] On the assumption that the fact that a class of objects is neither expressly included nor expressly excluded in the definition is not necessarily the end of the matter, I would construe the term in the context of the statute in which it is found and having regard to the purpose and intent of the statute which is to regulate highway traffic for the safety and convenience of members of the public. In that context, and in the absence of any authority holding that a boat, whether a motor vessel or non-motorized vessel, is a "motor vehicle" as defined in the Highway Traffic Act, I am of the view that the term "motor vehicle" in the Highway Traffic Act does not include a boat. While boats may be traffic upon waterways, they are not traffic on highways and they have no relevance to the purposes of the Highway Traffic Act.
[12] In the absence of Part VI of the Consumers Protection Act, 2002 which, had it been applicable, would have operated as a bar to recovery, there was no prohibition against recovery on a quantum meruit basis.
[13] I am not satisfied that the result was incorrect. The appeal is dismissed.
[14] Mr. Wainwright has not sought costs. There will be no costs.
Low J.
DATE: April 8, 2009