CITATION: Gajtani v. D’Muffler Mechanix Inc., 2017 ONSC 2314
COURT FILE NO.: DC-16-112-00
DATE: 20170413
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JETON GAJTANI
T. Reybroek, for the Appellant
Appellant
- and -
D’MUFFLER MECHANIX INC.
No one appearing on behalf of the Respondent
Respondent
HEARD: March 24, 2017, at Brampton
REASONS FOR JUDGMENT
[On appeal from a Decision of Deputy Judge da Silva of the Small Claims Court at Brampton dated September 29, 2016]
ANDRÉ J.
[1] The appellant Jeton Gajtani (“Mr. Gajtani”), appeals the September 29, 2016 decision of Deputy Judge da Silva reducing damages awarded to Mr. Gajtani from $7,497 to $3,749 on the ground of contributory negligence.
[2] The appellant also appeals Deputy Judge da Silva’s decision not to award costs to Mr. Gajtani.
BACKGROUND FACTS
[3] On January 25, 2015, Mr. Gajtani hired D’Muffler Mechanix Inc. (“Mechanix”) to install a custom muffler in his vehicle.
[4] Mechanix had sole custody of Mr. Gajtani’s vehicle from January 25, 2015 to March 19, 2015.
[5] When Mr. Gajtani picked up his vehicle form Mechanix on March 19, 2015, Mechanix’s employee advised Mr. Gajtani of an oil leak that he cleaned. The employee told Mr. Gajtani that any smoke from the vehicle was normal.
[6] Bradson Palloo, a co-owner of Mechanix, testified during the trial that neither he nor his employee cautioned Mr. Gajtani about any potential problems regarding the oil leak. Neither cautioned Mr. Gajtani against operating his vehicle with an oil leak.
[7] Mr. Gajtani drove his vehicle on a highway when it suddenly started to smoke. Mr. Gajtani pulled over to the side of the road. He sent an email to Mechanix’s employee inquiring whether the smoke coming from his vehicle was normal. Mechanix’s employee advised Mr. Gajtani that his vehicle could be operated safely. He told Mr. Gajtani: “[I]ts going to be like that for a couple days. It should clear up with, after everything burns out of the exhaust”.
[8] As a result of receiving this advice, Mr. Gajtani proceeded to drive home.
[9] Mr. Gajtani’s vehicle continued to smoke. At some point the oil light indicator came on and the car suddenly stalled.
[10] Mr. Gajtani’s car was ultimately towed to his home. An inspection of the vehicle by a licenced automobile mechanic determined that the engine had been damaged because of the oil leak and had to be replaced.
[11] Mr. Gajtani filed a claim in Small Claims Court seeking damages of $7,497, based on the cost of a new engine and its installation costs.
DECISION OF DEPUTY JUDGE DA SILVA
[12] Deputy Judge da Silva concluded at page 6 of his decision that Mechanix had a responsibility to warn Mr. Gajtani not to drive with an oil leak once they became aware of it. Their failure to do so amounted to negligence.
[13] Deputy Judge da Silva found that once Mr. Gajtani was advised of the leak he “took responsibility for his decision to drive, knowing there was a problem”. The Deputy Judge therefore found Mr. Gajtani contributorily negligent and reduced Mr. Gajtani’s damages of $7,497 by fifty percent (50%) to $3,749.
[14] The Deputy Judge made no order for costs because of “a division of liability in this case” (at page 7).
POSITION OF THE PARTIES
[15] Mr. Gajtani submits that:
(1) Deputy Judge da Silva erred in fact and in law by reducing the amount of damages awarded to Mr. Gajtani on the grounds of contributory negligence.
(2) Deputy Judge da Silva erred in his factual finding that Mr. Gajtani “took responsibility for his choice to drive the vehicle”, after Mechanix’s employee advised him of the oil leak.
(3) Deputy Judge da Silva erred in failing to award costs to Mr. Gajtani.
ANALYSIS
[16] This appeal raises the following issues:
(1) What is the appropriate standard of appellate review?
(2) Did the Deputy Judge err in fact and in law in finding Mr. Gajtani to have been contributorily negligent by driving his vehicle after being informed of an oil leak in his vehicle?
(3) Did the Deputy Judge err in law by failing to award costs to Mr. Gajtani?
ISSUE NO. ONE: What is the appropriate standard of appellate review?
[17] The standard of review of a trial judge’s factual findings is “palpable and overriding error”: Huisman v. McDonald, 2007 ONCA 391, 280 D.L.R. (4th) 1. The standard of review regarding a trial judge’s interpretation of the law is one of “correctness”.
ISSUE NO. TWO: Did the Deputy Judge err in fact and law in finding Mr. Gajtani contributorily negligent by driving his vehicle, after being advised of an oil leak in his vehicle?
[18] In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, the Supreme Court of Canada noted at paras. 6 – 8 that to successfully establish a negligence claim a plaintiff must prove, on a balance of probabilities, that “but for” the negligence of the defendant, the damage would not have occurred. In making this determination, scientific evidence of the defendant’s precise contribution to the injury or damage is not required.
[19] Deputy Judge da Silva determined that Mechanix was indeed negligent in that the company had a duty or responsibility to warn Mr. Gajtani not to drive with an oil leak, yet failed to do so.
[20] However, in my view, Deputy Judge da Silva erred in law in finding that Mr. Gajtani was contributorily negligent by choosing to drive the car after being advised of the oil leak. There was no evidence indicating that Mr. Gajtani knew the risks of driving the vehicle, yet proceeded to drive anyway. Indeed, when Mr. Gajtani initially saw the smoke, he pulled over on the side of the road and contacted Mechanix’s employee. Assured by the employee that the smoke was nothing to worry about, Mr. Gajtani proceeded to drive the vehicle. This was therefore not a case of the voluntary assumption of risk. To the contrary, Mr. Gajtani drove the vehicle because he was assured by the employee of Mechanix, which held itself to the public to be an auto body mechanic business, that driving the car would pose no risk. Mr. Gajtani relied on this advice from Mechanix’s employee to his detriment.
ISSUE NO. THREE: Did the Deputy Judge err in failing to award costs to Mr. Gajtani?
[21] Rule 19.01(1) of the Rules of the Small Claims Court provides that a successful party is entitled to have the party’s reasonable disbursements paid by the unsuccessful party, unless the court orders otherwise.
[22] Section 29 of the Courts of Justice Act, R.S.O, 1990, c. C.43 limits costs awards in Small Claims Court, other than disbursements, to 15% of the amount claimed unless “the Court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding”.
[23] Mr. Gajtani, being the successful party, was entitled to his costs and disbursements.
[24] Mr. Gajtani seeks costs of $5,587 on a partial indemnity basis and disbursements of $3,179.41 for his Small Claims Court trial.
[25] In my view, the costs and disbursements sought by Mr. Gajtani are excessive. First, they exceed the ceiling for matters in the Small Claims Court by a wide margin. Second, they are way out of proportion to the claim for damages made by Mr. Gajtani. Third, the issues in this matter were relatively simple and did not require a great deal of preparation or trial time. Indeed, the trial was heard in one day and the decision given on the same day.
[26] Mr. Gajtani claimed $7,497 against Mechanix. The amount of costs he should have been awarded, subject to the Deputy Judge’s discretion to penalize Mechanix for unreasonable behaviour, was $1,124.55. This amount represents 15% of Mr. Gajtani’s entire claim against Mechanix.
[27] The amount claimed for disbursements, $3,779.41, is also excessive and in my view, should not have exceeded $300.
CONCLUSION
[28] The September 29, 2016 order of Deputy Judge da Silva granting Mr. Gajtani damages in the amount of $3,749 is varied by increasing the amount of damages payable by D’Muffler Mechanix Inc. to $7,497.
[29] The September 29, 2016 order of Deputy Judge da Silva awarding Mr. Gajtani disbursements of $175 is varied by awarding Mr. Gajtani costs in the amount of $1,124.55 and disbursements in the amount of $300.
[30] Costs of this appeal, payable by D’Muffler Mechanix Inc. to Mr. Gajtani, are fixed at $500 inclusive.
André J.
Released: April 13, 2017
CITATION: Gajtani v. D’Muffler Mechanix Inc., 2017 ONSC 2314
COURT FILE NO.: DC-16-112-00
DATE: 20170413
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JETON GAJTANI
Appellant
- and –
D’MUFFLER MECHANIX INC.
Respondent
REASONS FOR JUDGMENT
ANDRÉ J.
Released: April 13, 2017