CITATION: GARY AUTO REPAIR v. VELKE, 2010 ONSC 3183
COURT FILE NO.: DC-09-154
DATE: 2010-06-01
ONTARIO
DIVISIONAL COURT / SUPERIOR COURT OF JUSTICE
B E T W E E N:
GARY AUTO REPAIR
Self-Represented
Plaintiff/Respondent
- and -
WILLIAM H. VELKE
Self-Represented
Defendant/Appellant
Heard 4 May, 2010 and reserved
CRANE J.
[1] The defendant, William H. Velke, appeals to a single judge of the Divisional Court from the judgment of Deputy Judge D. vander Woerd dated 20 August, 2009 granting the claim of the plaintiff and dismissing the defendant’s counterclaim.
[2] The named plaintiff, Gary’s Auto Repair is a proprietorship of Gary Albrecht and Carol Albrecht. Their repair shop carried out repairs to a motor vehicle owned by the defendant/appellant, described as a 1951 TD replicar with a Beetle engine. The plaintiff providing an invoice, exhibit 1 at trial, in the sum of $3,250.53.
[3] The counterclaim of the defendant at trial appears to be upon a misunderstanding of the jurisdiction of the Small Claims Court in terms of executions under the Provincial Offences Act for breaches allegedly committed by the plaintiff of the Regulations proclaimed under the Consumer Protection Act, 2002, O. Reg. 17/05. The counterclaim also alleges negligent repair. No evidence was submitted at trial on the latter allegation.
[4] The appellant, Mr. Velke, submits three grounds of appeal. The first is that:
No estimate of the cost of the repair work was provided by the respondent contrary to the Consumer Protection Act, 2000 S.O. 202, c.30, Sched. A.:
PART VI
REPAIRS TO MOTOR VEHICLES AND OTHER GOODS
Estimates
56.(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.
[5] The evidence of Mr. Gary Albrecht found at page 28 of the transcripts in response to a question is:
Q. Did you ever give me a professional estimate that said for the work that you are requesting here is the cost?
A. No, I never did, but in return you still let me fix the car though, right? Did you or did you not?
[6] The second ground of appeal is that the plaintiff/ respondent failed to obtain the authorization of the appellant in accordance with the Consumer Protection Act, 2002 section 58 and section 59:
Authorization required
58.(1) No repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs.
Authorization not in writing
- 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.
[7] The prescribed requirements quoted above are found in Ontario Regulation 17/05, section 49:
Authorization not in writing
For the purpose of section 59 of the Act, if an authorization is not in writing is given to a repairer who works on or repairs vehicles, the following is required to be recorded in order for the authorization to be effective:
The name of the person giving the authorization.
The date and time of the authorization.
If the non-written authorization is given by telephone, the telephone number of the person giving the authorization, and if the non-written authorization is given by a method other than telephone, information regarding how the person giving the authorization can be contacted using the other method.
[8] There is no evidence that the respondent complied with the terms of the Regulation, section 49. There is considerable evidence that the respondent, namely Mr. and Mrs. Albrecht, believed they had the authorization from the appellant for the repair work done.
[9] The third ground of appeal is that the respondent/plaintiff represented to the appellant, the repair work would and did make the motor vehicle operative.
[10] The evidence at trial was that the vehicle after running for a short distance stopped, never to go again.
[11] There is no evidence before the learned trial judge that there was such a representation made by the respondents.
[12] The evidence that the learned trial judge did accept, was specifically to the contrary.
[13] The learned trial judge states at page two of his reasons:
The Plaintiff’s claim comes down to an issue of credibility. The Plaintiff is a long standing repair shop with what appears to be straight forward consistent business practises. The Defendant concocts an unbelievable story of relinquishing his favoured car to the Plaintiff shop with specific directives for a month with the expectation that no work would be done on it. This story is fraught with consistencies [sic] and unbelievable. This evidence contradicts itself.
[14] The issue on appeal revolves itself to the proposition that although the respondent had the authorization to repair from the appellant, it was obtained in a manner that does not comply with the Consumer Protection Act.
WHAT ARE THE CONSEQUENCES OF THE REPAIR SHOP NOT COMPLYING WITH THE STRICT PROVISIONS OF THE ACT AND REGULATIONS?
[15] There is no evidence in the trial record as to any added value of the work performed by the respondent to the appellant’s chattel. What evidence there is appears to be of a partially assembled intended motor vehicle consisting of used parts.
[16] The respondent has represented in the evidence that the work that was done was competently performed and in accordance with the wishes of the appellant. The appellant in turn has cited in his evidence that the non-operative condition of the vehicle establishes that the work done was negligent or otherwise defective. The respondent’s evidence was that the vehicle was in a derelict condition when received, indeed with mice nests and excrement on the engine, the electrical wiring gerrymandered, and the oil, when drained containing metal pieces of engine bearings.
[17] The trial judge after hearing all the evidence found on the facts emphatically in favour of the plaintiff.
[18] The issue as stated in paragraph [13], comes to whether equitable relief is available.
[19] There is limited jurisprudence, all rejecting a claim in quantum meruit; see Wainwright v. Jia [2009] O.J. No. 1406; and under the predecessor ‘Motor Vehicle Repair Act’ Trudeau Motors Ltd. v. Elliot 1989 4230 (ON SC), [1989] O.J. No. 2601 and Trento Motors v. McKinney (1992) 54 O.A.C. 190.
[20] The rationale that catches this and other non-complaint repairers seeking equitable relief from the unjust enrichment of their customers is the third of the three elements; of (1) the unjust enrichment of their customer; (2) a corresponding deprivation of the repairer of the value of its work or materials; and (3) the absence of a juristic reason for the enrichment. (Pacific National Investments v. Victoria (City) 2004 SCC 75, [2004] 3 S.C.R. 575 at para. 14. The Consumer Protection Act 2002 S.O. c. 30, ss 56, 58 and 59 is the present juristic reason. The evidence at trial establishes elements (1) and (2).
[21] In the result, the appeal is allowed, the judgment at trial granting the claim is set aside. The plaintiff’s action is dismissed. The appellant’s appeal of the dismissal of his counterclaim is dismissed.
[22] There is no order for costs.
CRANE J.
Released: June 1, 2010
CITATION: Velke v. Gary Auto Repair, 2010 ONSC 3183
COURT FILE NO.: DC-09-154
DATE: 2010-06-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLIAM H. VELKE
Self-Represented
- and -
GARY AUTO REPAIR
Self-Represented
BEFORE: The Honourable Mr. Justice D. S. Crane
REASONS FOR JUDGMENT
CRANE J.
DSC:mg
Released: June 1, 2010