CITATION: Dean v. Mister Transmission (International) Limited, 2011 ONCA 670
DATE: 20111027
DOCKET: C53351
COURT OF APPEAL FOR ONTARIO
Sharpe, Armstrong and Karakatsanis JJ.A.
BETWEEN
Douglas Dean
Plaintiff (Appellant)
and
Mister Transmission (International) Limited
Defendant (Respondent)
Brian Osler and Glyn Hotz, for the appellant
William D. Black and Byron Shaw, for the respondent
Heard: August 22, 2011
On appeal from the judgment of Justice C. William Hourigan of the Superior Court of Justice dated January 31, 2011 with reasons reported at 2011 ONSC 553, [2011] O.J. No. 414.
Karakatsanis J.A.:
[1] The appellant appeals from the judgment granting the respondent’s motion for summary judgment and dismissing this class action.
[2] The class action was brought on behalf of consumers who had their motor vehicle transmissions repaired at Mister Transmission. The claim alleges that the respondent breached the statutory prohibition against charging a fee for an estimate of the cost of repairs that are authorized and carried out. The claim alleges that the fee for an “Inspection Service” offered by Mister Transmission is a fee for an estimate. The appellant seeks return of the Inspection Service fees.
[3] The motion judge dismissed the action, finding that the consumers had not been charged a fee for an estimate and thus Mister Transmission did not breach the statute. As a result, the derivative claims of conspiracy and unjust enrichment also failed.
[4] The appellant challenges the motion judge’s finding that there was no fee for an estimate.
[5] The main issues on appeal are as follows:
Did the motion judge err in his interpretation of s. 3(2) and (3) of the Motor Vehicle Repair Act, R.S.O. 1990, c. M. 43 (MVRA) and s. 57 (2) and (3) of the Consumer Protection Act, 2002, S.O. 2002, c. 30 (CPA)?
Did the motion judge err in apprehending the evidence and determining there was no genuine issue requiring a trial?
Did the motion judge err in refusing to permit an amendment of the claim?
[6] For the reasons that follow, I would dismiss the appeal. First, I conclude that the motion judge did not err in his interpretation of the relevant statutory provisions and that it was open to him, on that interpretation, to find that Mister Transmission did not charge a fee for an estimate. Further, it was open to the motion judge to make such a finding on the evidence before him, and to find that there was no genuine issue requiring a trial. Finally, I conclude that the motion judge made no error in exercising his discretion to refuse an amendment of the claim.
BACKGROUND
[7] The respondent operates a franchised system of independently owned and incorporated transmission repair shops in Ontario. Mister Transmission charges a fee for an “Inspection Service” to remove and dismantle the transmission, determine any necessary repairs, and reassemble and reinstall the transmission. The fee is based on industry-wide databanks for the labour cost of removing and reinstalling the transmission. The representative plaintiff paid a fee of $552.42 for the Inspection Service.
[8] A transmission repairer must remove and dismantle the transmission in order to identify any problems, provide customers with the price of repairs, and undertake any repairs. If Mister Transmission customers elect not to proceed with the repairs, they pay the Inspection Service fee and receive their vehicle back with the transmission re-installed without any repairs. If customers choose to proceed with repairs, they are advised they will have to pay the Inspection Service fee as well as the additional cost of repairs.
[9] The franchisee training manual suggests that the Inspection Service includes, among other things, a charge for diagnosis. Mister Transmission franchisees gave evidence that the Inspection Service charge is for diagnosis in order to provide an estimate. However, the respondent’s president, Mr. Moore, provided evidence that although the Inspection Service fee covers the labour time for a diagnosis, there is no charge for either identifying the problem or providing an estimate.
[10] There is no dispute that customers knew the total cost to repair the transmission and authorized all amounts. The appellant’s position is that the fee for the Inspection Service was necessarily a “fee for an estimate” for the purposes of s. 3(3) of the MVRA and s. 57(3) of the CPA, and therefore prohibited.
THE LEGISLATION
[11] During the class period, the provisions of the MVRA were repealed, and incorporated into the CPA. While not identical, both statutes prohibit repairers from charging a fee for an estimate when repairs are authorized and undertaken.
[12] The relevant provisions of the MVRA stated:
- In this Act, …
“estimate” means an estimate of the total cost of work on and repairs for a vehicle;
- (1) No person shall charge a fee for an estimate unless the customer is told in advance that a fee will be charged and the amount of the fee.
(2) A fee for an estimate shall be deemed to include the cost of diagnostic time and the cost of reassembling the vehicle and the cost of parts that will be damaged and must be replaced when reassembling if the work or repairs are not authorized by the customer.
(3) No person shall charge a fee for an estimate if the work or repairs in question are authorized and carried out.
[13] These provisions were replaced with the following provisions in the CPA:
- In this Part,
“estimate” means an estimate of the total cost of work on and repairs to the goods being repaired;
“repairer” means a supplier who works on or repairs vehicles or other prescribed goods.
- (1) Subject to subsection (3), no repairer shall charge a fee for an estimate unless the consumer is told in advance that a fee will be charged and the amount of the fee.
(2) A fee for an estimate shall be deemed to include the cost of diagnostic time, the cost of reassembling the goods and the cost of parts that will be damaged and must be replaced when reassembling if the work or repairs are not authorized by the consumer.
(3) A repairer shall not charge a fee for an estimate if the work or repairs in question are authorized and carried out.
[14] A “fee for an estimate” is not otherwise defined in the statutes.
[15] The French version of s. 3(2) of the MVRA clearly differed from the English version. It provided:
Les frais exigés pour un devis sont réputés comprendre le coût du temps consacré au diagnostic et le coût du réassemblage du véhicule et, si les travaux ou réparations ne sont pas autorisés par le client, le coût des pièces endommagées qui doivent être remplacées au cours du réassemblage.
[16] As noted by the parties, this provision translates as follows:
The fees charged for an estimate are deemed to include the cost of the diagnosis time and the cost for reassembling the vehicle and, if the work and repairs are not authorized by the client, the cost of the damaged parts that require replacement during reassembly.
[17] The French version of s. 57(2) of the CPA is substantially the same as the English version.
ANALYSIS
ISSUE 1: Did the motion judge err in his interpretation of s. 3(2) and (3) of the MVRA and s. 57(2) and (3) of the CPA?
Fee for an Estimate
[18] The appellant’s position is that the fee for the Inspection Service constitutes a fee for an estimate that was improperly charged to customers who proceeded with repairs. The appellant submits that the evidence clearly establishes that the labour to remove, examine and re-install the transmission as part of the Inspection Service is necessary to provide an estimate. In addition, the appellant argues that since s. 3(2) of the MVRA and s. 57(2) of the CPA explicitly include the cost of diagnostic time, the cost of reassembling goods, and the cost of parts that must be replaced when reassembling as part of the “fee for an estimate,” the fee for the Inspection Service was necessarily also a “fee for an estimate” for the purposes of s. 3(3) of the MVRA and s. 57(3) of the CPA.
[19] The appellant submits that the motion judge erred in finding that s. 3(2) of the MVRA and s. 57(2) of the CPA do not determine which charges are included in an estimate fee on a completed repair under s. 3(3) of the MVRA and s. 57(3) of the CPA.
Legislative Purpose, Legislative Scheme, and Good Commercial Sense
[20] I agree with the motion judge that these statutes, and in particular the provisions dealing with estimates for the cost of repairs, were designed to afford consumers protection in their dealings with automobile repairers. The legislation aims to ensure that consumers know in advance both the fee for an estimate and the total cost of repairs, and that consumers are only charged for work they have authorized.
[21] In particular, s. 3(1) and (2) of the MVRA and s. 57(1) and (2) of the CPA require that the consumer knows in advance the full cost of obtaining an estimate if the consumer does not proceed with the repairs. By providing that the various costs are deemed to be part of the estimate fee, the statute protects the consumer who does not proceed with the repairs from additional charges for reassembling the vehicle and paying for parts that are necessarily required to provide an estimate. As well, it permits the repairer to recover the full cost of the labour for providing an estimate, even if the consumer does not proceed with the repairs.
[22] Sections 3(3) of the MVRA and 57(3) of the CPA do not permit a fee for an estimate where the consumer proceeds with the repairs. Thus, the legislation ensures that the consumer pays only for the total costs of repairs. The consumer is protected by being told in advance the total cost of repairs, within a specified margin, and pays only for the repairs authorized.
[23] These provisions promote transparency, avoid confusion and prevent double billing for the same work.
[24] I agree with the motion judge that s. 3(2) of the MVRA and s. 57(2) of the CPA apply only when the consumer does not authorize the repairs to be undertaken. The English versions in both statutes and the French version of s. 57(2) of the CPA explicitly deem certain costs to be included in an estimate fee only if the consumer chooses not to proceed with the repairs. These provisions do not purport to define an estimate fee in general terms, nor do they define an estimate fee if the consumer authorizes the work. A fee for an estimate is not defined in the legislation.
[25] The appellant’s proposed interpretation would preclude the repairer from recovering the substantial labour cost necessary to effect repairs simply because the labour cost is also necessary to provide an estimate. Such an approach does not make commercial sense. If the repairer could not charge for the labour and parts necessary to carry out repairs simply because they are deemed to be part of the “fee for the estimate” when the customer does not proceed with repairs, they would essentially be providing the significant labour required for the removal and reinstallation of the transmission for free.
[26] The appellant argues that the repairer would not be prevented from recovering these significant costs because the repairer could include them as part of the estimate of repair costs.
[27] Such an argument implicitly recognizes that the Inspection Service fee includes more than a fee for an estimate and includes the cost of labour that is necessary to carry out repairs. Furthermore, the appellant’s suggestion that the labour costs could be recovered through the repair costs is inconsistent with his position that labour costs must be returned to consumers because they are part of the fee for providing an estimate. Finally, it would require the refund of significant charges that the motion judge found to be a necessary part of the repairs; customers who were clearly aware of and authorized the entire cost would receive a windfall.
Bilingual Statutory Interpretation
[28] The appellant submits that based upon a proper bilingual statutory interpretation of s. 3(2) of the MVRA, the grammatical construction and words of both the English and French versions have a shared meaning. The qualification in the French version of s. 3(2), that it applies if the customer does not proceed with the repairs, relates only to the cost of the damaged parts that require replacement during reassembly. The appellant submits that the lack of a comma before that qualification in the English version creates ambiguity. As a result, he suggests the cost of diagnostic time and the cost of reassembling the vehicle are deemed to be included in a fee for an estimate, whether or not the consumer authorizes the repairs.
[29] When interpreting bilingual statutes, the court must determine whether there is an ambiguity. Generally, when there is ambiguity in one version of a provision but not the other, the court should look for the meaning that is common to both versions: R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at para. 28. If there is a common meaning, the court must then determine whether it is consistent with the legislature’s intent, using the ordinary rules of statutory interpretation: see Daoust, at para. 30. Courts are obliged to give effect to the law as the legislature intended to enact it.
[30] Even if there were some shared meaning in this case, based upon a comparison of both language versions, I do not accept the interpretation proposed by the appellant. As Binnie J. stated in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 2 S.C.R. 339, at para. 39, when interpreting a bilingual statute:
Linguistic analysis of the text is the servant, not the master, in the task of ascertaining Parliamentary intention. A blinkered focus on the textual variations might lead to an interpretation at odds with the modern rule because, standing alone, linguistic consideration ought not to elevate an argument about text above the relevant context, purpose and objectives of the legislative scheme. [Citations omitted.]
[31] In Doré v. Verdun (City), 1997 CanLII 315 (SCC), [1997] 2 S.C.R. 862, at para. 25, Gonthier J. held: “the principle of preferring the interpretation that leads to a shared meaning is, in any event, not absolute. The Court can reject that meaning if it seems contrary to the legislature’s intention in light of the other principles of interpretation.”
[32] Legislative history is relevant in this case to determine the legislative intent. The MVRA was repealed, and s. 3(2) was replaced with s. 57(2) of the CPA. The French text of s. 57(2) of the CPA is consistent with the English text of s. 3(2) of the MVRA. The legislature has demonstrated an intent to clarify what is included in a “fee for an estimate” when repair work is not authorized.
[33] I agree with the conclusion of the motion judge that the English version of s. 3(2) of the MVRA and both versions of s. 57(3) of the CPA better reflect the legislature’s intent. The interpretation urged by the appellant is not consistent with the legislative purpose of the provisions, the legislative scheme, and the commercial context in which it operates.
Interpretation of ss. 3(3) of the MVRA and s. 57(3) of the CPA
[34] For these reasons, I agree with the motion judge that the significant labour costs involved in removing and reinstalling the transmission, as well as the costs of parts that will be damaged and must be replaced when reassembling, are not necessarily included in a fee for an estimate for the purposes of s. 3(3) of the MVRA and s. 57(3) of the CPA.
[35] On the correct interpretation of the legislation, it was open to the motion judge to making a finding of fact on this record that the fee charged for the Inspection Service did not include a fee for an estimate when the customer proceeded with the repairs.
[36] Finally, I do not accept that this was a novel legal issue that should not have been resolved on a summary judgment motion. The legal issues raised in this case involved straightforward statutory interpretation.
ISSUE 2: Did the motion judge err in apprehending the evidence and determining there was no genuine issue requiring a trial?
[37] The motion judge found on the evidentiary record before him that customers are not charged a fee for an estimate when they proceed with repairs. The Inspection Service fee is a fee for the labour required to remove and re-install the transmission.
[38] The evidence established that the fee for the Inspection Service is based upon industry-wide databanks for the labour cost of removing and reinstalling the transmission. The labour time is between 3 and 12 hours, depending upon the vehicle.
[39] Mr. Moore gave evidence that although the Inspection Service fee covers the time for diagnosis, there is no charge for identifying the problem and providing an estimate.
[40] Mister Transmission franchisees gave evidence that the Inspection Service charge is for diagnosis in order to give the estimate. The franchisee training manual advises franchisees to tell customers that the Inspection Service includes, among other things, a charge for diagnosis. Furthermore, the manual advises that if a consumer specifically asks if he or she is obliged to pay the Inspection Service fee, the franchisee should respond: “Yes, but only if you do not authorize us to perform the additional service when I call you.”
[41] The appellant submits that the motion judge erred in interpreting the agreement between Mister Transmission and the consumer based on form rather than substance. Since the Inspection Service is undertaken to determine the problem and the cost of repairs, and since the car is returned without repairs if the consumer chooses not to proceed, the substance of the Inspection Service fee is necessarily a fee for an estimate, whether or not repairs are carried out. The appellant submits that any ambiguity regarding the interpretation of a consumer agreement provided by the supplier to the consumer ought to be resolved in favour of the consumer in accordance with s. 11 of the CPA.
[42] I do not accept this argument.
[43] As noted by the franchisees, the Inspection Service is necessary to provide an estimate of the total costs of the repairs. However, it does not follow that there can be no other purpose for the Inspection Service where the customer proceeds with the repairs. Indeed, it is not disputed that the labour involved in the Inspection Service is also a necessary part of effecting the repairs. Further, it was common ground that the Inspection Service involves the removal, disassembly and reinstallation of the transmission and that the fee is based upon industry standards for labour costs and “book time” for that labour. Customers are told that they have to pay the Inspection Service fee whether or not they proceed with the repairs. If the customer authorizes repairs, the customer is charged for the Inspection Service as well as any additional repair costs. In substance, the consumers understand that the cost of the Inspection Service is part of the total cost of repairing the transmission.
[44] Although the training manual suggests that the Inspection Service covers the “removal, dismantling and diagnosing” of the transmission as well as the “installation of the transmission,” the motion judge was entitled to accept Mr. Moore’s explanation that no estimate fee is actually charged and that the Inspection Service involves the removal, dismantling and reinstallation of the transmission which is part of the cost of the repairs. Despite the question and answer in the training manual, there is no evidence from the franchisees that the Inspection Service fee has ever been waived.
[45] Further, I do not accept the appellant’s submission that the motion judge misapprehended the evidence by failing to consider the evidence of double billing. Indeed, the invoices distinguish between labour and parts and provide no evidence that there was double billing for fluid or gaskets. While the appellant speculated that there was potential for double billing for “reassembly labour” as part of the “bench time” or “rebuilding fee,” the statement of claim does not assert double billing, nor is there evidence of such a practice.
[46] Given the undisputed evidence that the Inspection Service fee is based upon industry standards for the labour cost of removing, dismantling and reinstalling the transmission and that the significant labour involved is a necessary cost of repairs, it was open to the motion judge under the new Rule 20 to assess the evidence, accept Mr. Moore’s evidence and explanation, find as a fact that there was no fee charged for an estimate, and conclude there was no genuine issue requiring a trial on these facts.
ISSUE 3: Did the motion judge err in refusing to permit an amendment of the claim?
[47] I am satisfied that the motion judge made no error in principle and reasonably exercised his discretion in denying the appellant leave to amend the statement of claim.
[48] The action is based upon the claim that the fee for the Inspection Service constituted a “fee for an estimate” pursuant to s. 3 of the MVRA and s. 57 of the CPA.
[49] The appellant sought to amend the pleadings to claim, as an alternative, breach of the obligation under the legislation to provide “estimates” before charging for any work on the vehicles. Under the legislation, the remedy for such a breach is to refund any monies paid by consumers for the repairs. While the appellant did not accept the respondent’s position that no estimates are actually provided by Mister Transmission, the alternative claim was sought on the basis of Mr. Moore’s evidence that Mister Transmission does not provide “estimates” but rather a price for the repairs.
[50] As noted above, the legislation defines an estimate to be “an estimate of the total cost of work on and repairs” for a vehicle. Whether it is characterized as an “estimate” or a “price,” it is clear on this record that Mister Transmission advises customers in advance of the “total cost of work on and repairs” in respect of a vehicle.
[51] As a result, the motion judge was entitled to refuse to permit an amendment to the statement of claim over what was essentially a dispute over terminology.
THE COSTS APPEAL
[52] The costs appeal was not raised in oral argument. The motion judge carefully considered the relevant factors and exercised his discretion to award costs to the successful party. I would not grant leave to appeal costs in this case.
CONCLUSION
[53] For these reasons, I would dismiss the appeal. I would deny leave to appeal costs.
[54] I would allow the respondent its costs of the appeal fixed in the amount of $30,000.00 inclusive of taxes and disbursements.
RELEASED: October 27, 2011 (“R.J.S.”)
“Karakatsanis J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree Robert P. Armstrong J.A.”