CITATION: Brindley Farm Equipment Ltd. v. Robillard, 2018 ONSC 6015

COURT FILE NO.: DC-17-81

DATE: 20181018

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Brindley Farm Equipment Ltd. and Brindley Auction Services Ltd.

Appellants

• and -

Wayne Robillard

Respondent

M. Armstrong, for the Appellants

P. Chin and E. Contino, for the Respondent

HEARD: September 28, 2018

REASONS FOR JUDGMENT

[On appeal from the judgment of Deputy Justice R. C. McLean dated August 23, 2017]

FRAGOMENI J.

STATEMENT OF APPEAL

[1] This is an Appeal by the Defendants, Brindley Farm Equipment Ltd. and Brindley Auction Services Ltd., from the Judgment of the Honourable Deputy Justice Ross C. McLean, of the Ontario Superior Court of Justice, Small Claims Court, at Owen Sound, dated August 23, 2017, where the Defendants were found liable to the Plaintiff, Wayne Robillard, for $12,509.29 inclusive of H.S.T.

[2] The issues on appeal are identified by the Appellants at paragraph 2 of their factum as follows:

a. Whether the Honourable Mr. Deputy Justice Ross C. McLean erred at law in failing to uphold the enforceability of the term “Everything Sold as is, Where is.” as a term of the final sale from the Appellants to the Respondent;

b. Whether the Honourable Mr. Deputy Justice Ross C. McLean erred in giving considerable weight to documentary evidence at trial when the putative author of such evidence was not called as a witness to enter the documentary evidence; and

c. Whether the Honourable Mr. Deputy Justice Ross C. McLean erred in finding Section 15(3) of the Sale of Goods Act, R.S.O. 1990, c. S.1 applied in the circumstances.

[3] The facts giving rise to this action are set out in the Respondent’s factum at paragraphs 6 to 53 as follows:

• On or around February 18, 2016 Mr. Robillard responded to an advertisement posted by the Appellants regarding the sale of a L4310 Kubota tractor.
• On the same day they did not respond, so the Respondent called the Appellants and asked to see the tractor.
• Mr. Robillard made it known to the Appellants that he planned to use the tractor in his farming business and the purpose of use for tractor and offered a trade in.
• The Appellants made representations to the Respondent about the condition of the tractor and that they had put in a reconditioned battery just to get it running.
• Upon inspection, the Respondent noticed the following deficiencies with the tractor: there was a missing side mirror, missing rear wiper blade, a broken rear right lens.
• Tom Brindley, representing the Appellants, proclaimed when attempting to demonstrate that the tractor worked that “Something was wrong here”.
• Tom Brindley represented [assured] to Mr. Robbillard that the “problem would be fixed”.
• Subsequently, based on Tom’s representation which induced Mr. Robillard to enter negotiations, Mr. Robillard then proceeded to Tom’s office to discuss purchasing the tractor.
• Mr. Robillard agreed to pay the full price of the tractor based on the representation that the problems would be fixed.
• Mr. Robillard requested to have the tractor delivered and that they repair or replace the missing side mirror, the rear wiper blade, the broken rear light lens and repair the joystick controls, and give it an oil change and filter. Tom accepted this offer.
• Mr. Robillard was unable to test out the tractor because the Appellants were trying to figure out what was wrong with the bucket controls.
• Mr. Robillard put down a $500 deposit for the tractor.
• The Appellants handed Mr. Robillard information from “Brindley Auction Services” when Mr. Robillard had been represented to be purchasing the tractor from “Brindley Farm Equipment”.
• Mr. Robillard was given a receipt after he had agreed to purchase the tractor for $21,470.00.
• The receipt given to Mr. Robillard by the Appellants was unilaterally drafted.
• Mr. Robillard certified on the document that he signed that the equipment was to be used in farming and that he was in the business of farming.
• Mr. Robillard testified that the document was not given to him until after he had agreed to purchase the tractor and referred to it as a receipt.
• Mr. Robillard was provided information by the Appellants to send his payment to “Brindley Auction Services.”
• The tractor was paid for the same day, being February 18, 2016 and before delivery.
• The tractor was delivered 4 days later or around February 22.
• The tractor was delivered in unfit and unsafe state which included that there was no top to the tractor, there was a large “softball sized” hole in the top left corner of the roof, and it would only operate in one range and wouldn’t move in either high or low ranges and only in mid range.
• The roof came off the tractor during transport and flipped on the highway and the hole was present in the roof.
• Mr. Robillard upon delivery immediately notified the sellers of the deficiencies with the tractor and his call was returned the following day.
• Mr. Brindley denied that there was anything wrong with the tractor and Mr. Robillard requested to return the tractor less his deposit for a refund.
• Mr. Brindley did not accept this and said he would get back to Mr. Robillard.
• Mr. Robillard noticed that the tractor moved in neutral when the hydro pedal was engaged and this was a major safety concern.
• Mr. Robillard filed a complaint with the Better Business Bureau.
• Mr. Gordon Brindley eventually returned Mr. Robillard’s call and complaint and inquired as to what was wrong with the tractor.
• Mr. Robillard stated that the issues were hour meter no longer worked, rear missing light, and the tractor would only work in one range.
• Mr. Gordon Brindley represented that he would discuss the issue with his mechanics.
• Mr. Robillard continued to investigate the capabilities of the tractor and hooked up his snow blower to it and discovered it moved in the neutral position when you touched the hydro pedal and this was a huge safety concern.
• Mr. Robillard decided to hire Earth Power Tractors and Equipment and Equipment for a second opinion.
• On or around March 14, 2016 it was admitted by the Appellants that they had lost the rooftop to the tractor during transport.
• Earth Power Tractors and Equipment and Equipment performed tests on the tractor transmission.
• Earth Power Tractors and Equipment and Equipment noted several safety deficiencies which included: “170 PSI under load, should be 340-370 PSI”, “Tractor Drives with ranger shifter in neutral”, “transmission is stuck in high range”, “Hydro pedal will not return to neutral”.
• Earth Power Tractors and Equipment and Equipment estimated the cost of repair initially to be $11,045.05 inclusive of HST.
• Mr. Robillard requested that Earth Power Tractors and Equipment perform the repairs.
• The final price of the repairs was $13,393.54
• The Appellants visited the premises of Earth Power Tractor and Equipment to repair the deficient range shifter, they had represented would be fixed prior to delivery, on or around November 9, 2016 and that despite this it was still unsafe.
• There was damage done to the pistons and transmission components.
• The repairs put the tractor back into usable condition except for the “bucket controls”
• Mr. Robillard maintained the position that the transmission should be able to perform what he purchased it for.
• The Appellants had written “As is, Where is”, after the fact and contrary to their representations that the issues would be fixed.

[4] In their factum the Appellants set out the following additional evidentiary review at paragraphs 10-19 as follows:

• On February 18, 2016 the Plaintiff purchased what was then a 17-year-old used Kubota tractor from Brindley Farm Equipment Ltd.
• The invoice for the sale, dated February 18, 2016, contains bold lettering stating: “Everything Sold as is, Where is.”
• The evidence of George McInnis was that the Kubota tractor was in good working order, as inspected at the time of its consignment and when it was purchased by the Defendant Brindley Auction Services Ltd. from Rockford Auction Centre, where Mr. McInnis worked.
• The evidence of Thomas Brindley was that he met with the Plaintiff at that time and did demonstrate the operation of the tractor, prior to purchase, acknowledging that the Plaintiff declined the opportunity to drive or operate the tractor himself.
• The evidence of David Lisk, who worked on the tractor at Brindley’s and delivered the tractor to the Plaintiff was again that the tractor was in good working order, and that the tractor drove off of the flat bed trailer he had transported it upon on its own power, without issue, and that he left the tractor idling on the Plaintiff’s property.
• The evidence of the Plaintiff’s own witness, his employee of 8 years, Zaac Pauze, was that on the day of delivery he observed the tractor to sit and idle, not moving, for an hour.
• The evidence of Mr. Pauze was also that the Plaintiff’s main intended use of the tractor was to blow snow and to do some hay lifting. It was Mr. Pauze’s evidence that he did not work for the Plaintiff in any capacity as a farmer, but that he worked for the Plaintiff’s “Wayne Robillard Stone Masonry” business; however, he noted the Plaintiff had an older tractor that he used mainly to blow snow and to do some hay lifting on his home property.
• The Plaintiff’s own evidence was that sometime after delivery of the tractor he attempted to blow snow with a 6 foot blower. Later evidence from the mechanic, Jason Clark, was that this Kubota tractor was rated to a blower of 5 ½ to 6 feet maximum.
• The Plaintiff called his neighbour, John Moniz, to give evidence. Mr. Moniz’ evidence was that he saw the tractor on one occasion, describing its state in or about the month of March 2017 when he saw it disassembled, “split-in-half” in his words by the Plaintiff’s mechanics at Earth Power. Mr. Moniz’ also stated of the tractor: “In neutral it was moving”, but he later confirmed on cross examination that he had not witnessed the tractor other than in its disassembled, “split-in-half” state, and so confirmed he had not witnessed the tractor move while in neutral, and that he was simply attempting to advance evidence of what others told him.
• Jason Clark, a mechanic of Stewart Equipment, gave evidence of his inspection of the tractor in or about the month of November 2016. His evidence was that upon his initial inspection of the tractor, after retrieving the tractor from behind various parts where it was stored by the Plaintiff at Earth Power, he determined that a pin had moved out of place in the linkage between the transmission and gear shift. He repositioned the pin and found then that the tractor operated without issue. He ran the tractor then in idle and neutral, observing no forward or backward movement. He test-drove the tractor without incident. He pressure tested the tractor’s transmission and component parts and found no issue.

THE BILL HARVEY LETTER

[5] I will deal with the letter of Bill Harvey and the weight the Deputy Judge attached to it.

[6] The Appellants submit that the learned Deputy Judge erred in law in receiving and giving significant weight to the letter of Bill Harvey. The Bill Harvey letter was submitted as evidence. The letter is unsworn and unsigned. The letter does not appear on letterhead, despite the fact that the invoices filed at Exhibit 2, Tabs 4 and 5 from Earth Power Tractors and Equipment Inc. each appear on letterhead. At paras. 29 and 30 of their factum, the Appellants set out the following:

• The Honourable Deputy Justice Ross C. McLean states at page 6 of the Decision on Appeal: “The Court believes the witnesses who saw the tractor moving when it should have been in neutral and not moving.” The fact is, at trial only the Plaintiff Wayne Robillard testified to having observed the tractor moving when in neutral. Neither of the other two witnesses called by the Plaintiff testified to observing this; rather, the Plaintiff’s neighbour John Moniz confirmed that he only observed the tractor when it had already been disassembled, and the Plaintiff’s employee Zaac Pauze, testified in fact to observe the tractor rest in a neutral position while idling.
• The only other evidence of the tractor moving in neutral came from the Bill Harvey letter. As Honourable Deputy Justice Ross C. McLean state: The Court believes the witnesses (plural), it would appear considerable weight was put behind this letter.

[7] The Respondent on the other hand submits that the letter was relevant and its probative value outweighed any prejudicial effect.

[8] The Respondent points out that the letter of Mr. Harvey was corroborated by the evidence of other witnesses including Mr. Robillard and Mr. Lisk and the invoices.

[9] The Respondent submits that the learned Deputy Judge properly exercised his discretion to admit the letter.

[10] At paragraphs 91, 92 and 93 of his factum, the Respondent states:

• Counsel for the Appellants did not object to admissibility of the letter of Mr. Harvey at the time it was entered as an exhibit and at all during the times it was referenced during the trial.
• Justice McLean specifically commented on this issue in his reasons for judgment.
• Justice McLean expressed that Mr. Harvey’s letter “ought to bear less weight” in his reasons for judgment.

REASONS OF DEPUTY JUDGE ROSS MCLEAN:

[11] On pages 3 and 4 of his Reasons, Deputy Judge McLean states:

Apart from the Farm Implements Act, the Court accepts that a tractor is not fit for purpose if it is not safe to operate. The Document Brief filed by the Plaintiff contains, at Tab 6, a statement from Bill Harvey, “Service Manager Earth Power Tractors”. Bill Harvey was unavailable for trial and the Plaintiff, preferring to get on with the trial rather than seek an adjournment, proceeded anyway. The statement by Bill Harvey requires serious scrutiny. As pointed out by the Defendants’ counsel in argument, “This letter was submitted as evidence, but its content, comments, and genesis should be met with serious scrutiny by this Honourable Court and be given no weight. The letter is unsworn and unsigned.” Counsel for the Defendants suggested that the Court “should seriously question whether the letter from Mr. Harvey was prepared by him at all.”

It would have been better if the Defendants’ strenuous objections to the letter had been made prior to its admission as evidence. The Court is certainly prepared to assess its weight, but the letter is part of the record; it has to be considered. Additionally, the assertion that the Court should question whether the letter was prepared by Mr. Harvey at all brings into question, at least by implication, the integrity and professional standards of the party’s representative who prepared the Document Brief which described Tab 6 of Exhibit 1 as “Letter written by Bill Harvey, Service Manager from Earth Power Tractors and Equipment Inc”. Deliberately or carelessly allowing fabricated evidence is an extremely serious wrong by any office of the Court. Any suggestion that this might be the case should be dealt with at trial when the impugned representative has full opportunity to speak to the matter, not raised in argument after the trial, particularly in written submissions filed after the trial, as was the case here.

The Court accepts the letter from Mr. Harvey as genuine, although the Court does give it lesser weight due to the fact that it could not be fleshed out on direct examination nor tested on cross examination. The matters mentioned in the letter are very important. The letter is brief and worth repeating. It reads, “This letter is to state that the Kubota L4310 serial number 60508 was not safe to operate due to the fact That [sic] the hydrostatic transmission would not return to neutral when the pedal was released. The initial inspection was done in April 2016. Brindley was at our shop November 9, 2016 and repaired the range shifter. This did not solve the problem of the hydro returning to neutral. The tractor would still move when the hydro pedal was released.”

Did the tractor roll in neutral? David Lisk, an employee of the Defendants who delivered the tractor to the Plaintiff, says it did not. The Plaintiff says it did as soon as the tractor was unloaded onto his property. A mechanic with the Defendants, Jason Clark, and Gordon Brindley went to see the tractor after it had been taken to a Kubota dealer, “Earth Power Tractors and Equipment Inc.” (“Earth Power”) and as it was sitting in the Earth Power yard did not see the creeping movement. Conversely, Mr. Harvey from Earth Power clearly says it did.

[12] And at page 6 he states:

Mr. Clark fixed a problem with the range shifter. The range shifter sets the speed of travel – low, mid, and high – when the tractor is travelling. It does not dictate if the tractor will travel. It is the pedal for the hydrostatic drive that dictates that. When released, the pedal is in “neutral” and the tractor should not move. Engage the pedal and the tractor moves. Disengage the pedal and it should return to the neutral position and the tractor should not move. Mr. Harvey indicates that the pedal would not return to neutral when the pedal was released. In order to release the pedal, it would first have to be engaged. We know that Mr. Harvey did this and that the pedal did not return to neutral. The pedal is a different part of the mechanism from the range shifter.

The Court believes the witnesses who saw the tractor moving when it should have been in neutral and not moving. Mr. Clark and Mr. Brindley say the tractor did not move. Did they engage the pedal then release it to see if it returned to neutral? We don’t know. Given the bitter cold described by Mr. Clark, did ice or other environmental factors prevent the tractor from demonstrating the creeping motion described by others? We don’t know that either. The Court accepts that some people may have witnessed the tractor moving in neutral while others did not. It does not mean that anyone was giving false evidence. What the Court does find, as an absolute fact, is that the tractor’s moving in neutral under any circumstances rendered it unsafe. The risks to the operator and others who may be proximate is far too great to accept anything else. The Court further accepts that, at least under some circumstances, the tractor did move in neutral.

One other issue which the Court considered with regard to Mr. Harvey’s letter is whether his evidence, particularly his evidence as to what was “safe” ought to bear less weight, given that it was not presented as expert evidence. The letter contains observations, and apart from a determination as to “safe”, no opinion evidence. The Court is satisfied that it is within any layperson’s knowledge to find that a vehicle or piece of equipment which, in a manner of speaking, has a mind of its own, is not safe to operate. The Court agrees with Mr. Harvey that the tractor was not safe.

ANALYSIS & CONCLUSION ON THIS ISSUE

[13] The April 19, 2017 transcript sets out the following at page 10 in relation to the Document Brief filed at trial and the proposed witnesses to be called by the Plaintiff:

THE COURT: This is always the standard issue we have with document briefs. They are appreciated, but then, you see, if I reserve and I’m going through here, do I use a document as evidence just because it’s in the exhibit, or do we, at this stage, require identification each by each as if they were going in…

MR. BERTRAND: Yes.

THE COURT: …on a singular basis?

MS. BERTRAND: I can also advise Your Honour that each document will be identified by the witnesses as well.

THE COURT; Well that’s your safe bet, but you know, I just don’t want to leave it a loose end.

MR. BERTRAND: Certainly.

MR. ARMSTRONG: I don’t have an objection. Whatever works in the most efficient way for the Court. I’m a fan of collecting documents in a single tab for the witnesses; it just makes things easier for us. One alternative would be to simply refer to the document brief and then to identify the documents inside that as individual exhibits, if necessary. I’m open to either process. I don’t object to anything my friend is putting before the Court right now.

THE COURT: Okay, and that’s what I anticipated. Okay. So exhibit number one will proceed on the basis that there are no objections to the evidentiary admission of the seven items therein….

[14] One of the documents contained in the Document Brief is the letter of Bill Harvey, Service Manager, Earth Power Tractors dated March 17, 2017. This letter is not signed and not sworn to and it states the following in full:

March 17, 2017

To Whom It May Concern

This letter is to state that the Kubota L4310 serial number 60508 was not safe to operate due to the fact

That the hydrostatic transmission would not return to neutral when the pedal was released.

The initial inspection was done in April 2016.

Brindley was at our shop November 9 2016 and repaired the range shifter.

This did not solve the problem of the hydro returning to neutral.

The tractor would still move when the hydro pedal was released.

Bill Harvey

Service Manager

Earth Power Tractors

[15] Further, the Amended List of Proposed Witnesses included Bill Harvey for the Plaintiff.

[16] It is important to state at the outset that the trial judge has a gate keeper function to ensure that the evidentiary record is comprised of properly admissible and relevant evidence. In this case the letter of Bill Harvey is hearsay and it was being introduced to prove the truth of its contents. The letter is not sworn, nor is it signed.

[17] The defendants were not able to cross-examine Mr. Harvey on his reliability or credibility in authoring this letter.

[18] The defendants did not object to the Documents Brief being filed initially as the Plaintiff represented to the Court the following: “I can also advise Your Honour that each document will be identified by the witnesses as well.”

[19] After the trial the parties prepared for the court written submissions. In their written submissions the defendants set out the following at paras. 24 and 25:

The Plaintiff did not call a mechanic to give evidence. The Plaintiff indicated in his Amended List of Proposed Witnesses, dated March 16, 2017, his intention to call Bill Harvey, an employee of Earth Power Tractors & Equipment Ltd., and Alex Marchildon, a mechanic. No submissions were made by the Plaintiff to suggest his subpoenas went unanswered, or that his ability to bring his case was prejudiced by their absence.

The Plaintiff did offer at Exhibit 1, Tab 6, a letter purported to be in the name of Bill Harvey. This letter was submitted as evidence, but its content, comments, and genesis should be met with serious scrutiny by this Honourable Court and be given no weight. The letter is unsworn and unsigned. The letter does not appear on letterhead, despite the fact that the invoices at Exhibit 1, Tabs 4 and 5 from Earth Power Tractors and Equipment Inc. each appear on letterhead. It cannot be determined that the statement written in this letter is the voice of Mr. Harvey; moreover, as the Plaintiff’s sole intention in calling Mr. Moniz as a witness appears to have been to have him provide statements to the Court of things he did not himself witness, the alleged creep of the tractor being an important example, this Honourable Court should seriously question whether the letter from Mr. Harvey was prepared by him at all.

[20] In deciding the issues before him the Deputy Judge relied heavily on the letter submitted by Bill Harvey. It is clear from the excerpts of his Reasons I have referred to that Bill Harvey’s letter was a significant piece of evidence in forming his decision.

[21] Although the Deputy Judge alerts himself to the difficulties with the letter when he states: “The Court accepts the letter from Mr. Harvey as genuine, although the Court does give it lesser weight due to the fact that it could not be fleshed out on direct examination nor tested on cross-examination”, he then proceeds to rely on it heavily. On page 6 of his reasons he states: “The Court agrees with Mr. Harvey that the tractor was not safe.” He also states on page 6:

Mr. Harvey indicates that the pedal would not return to neutral when the pedal was released. In order to release the pedal it would first have to be engaged. We know that Mr. Harvey did this and that the pedal did not return to neutral. The pedal is a different part of the mechanism from the range shifter.

The judge also stated that “the matters mentioned in the letter are very important.”

[22] As I already indicated, the letter of Mr. Harvey is hearsay. The Deputy Judge considered and accepted the contents of the letter for the truth of its contents. He was not entitled to do so and I am satisfied that in doing so he erred in law. He then relied heavily on this letter to support the position of the Plaintiff. The defendants did not have an opportunity to test this testimony by way of cross-examination of Mr. Harvey.

[23] I am satisfied on this basis alone that a new trial is warranted. Having determined that a new trial is warranted on this basis it is not necessary for me to engage in an analysis of the other two grounds of appeal.

DISPOSITION

[24] The Appeal is allowed. The judgment of the Honourable Deputy Judge Ross L. McLean of the Small Claims Court at Owen Sound dated August 23, 2017 is set aside. The Plaintiff’s claim shall proceed to a new trial before a different Deputy Judge.

[25] The Appellants shall serve and file written submissions on the costs of the appeal within 20 days. The Respondent shall serve and file his response within 20 days thereafter. The Appellants shall serve and file any Reply within 10 days.

Fragomeni J.

Released: October 18, 2018

CITATION: Brindley Farm Equipment Ltd. v. Robillard, 2018 ONSC 6015

COURT FILE NO.: DC-17-81

DATE: 20181018

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Brindley Farm Equipment Ltd. and Brindley Auction Services Ltd.

Appellants

• and -

Wayne Robillard

Respondent

REASONS FOR JUDGMENT

Fragomeni J.

Released: October 18, 2018