Court File and Parties

COURT FILE NO.: 846/01

DATE: 2003-06-13

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)

B E T W E E N:

PAUL JORGE MARIA (Plaintiff/Respondent)

A N D:

SPEEDY MOTORS (Defendant/Applicant)

BEFORE: C. Campbell J.

COUNSEL: Both parties self-represented

ENDORSEMENT

[1] This is an appeal from a Deputy Judge of the Small Claims Court dated November 27, 2001. The claim of the Plaintiff was for damages for breach of a verbal contract for the repair of a car. At trial the Plaintiff was awarded the sum of $2,985.00 together with the cost of setting down of $150 and a counsel fee of $300. It would appear from the oral reasons of the Judge that damages equal to the cost of a replacement used engine were awarded for breach of warranty, namely, that the Plaintiff was not warned that with the performance enhancements being undertaken, there was a risk that without further work not included in the estimate, the engine would excessively burn oil with the risk of damage to it.

[2] On appeal before me the Plaintiff represented himself and the Defendant appeared through Mr. J. Rafik, its proprietor. The primary contact the Plaintiff had with the Defendant was with a mechanic employed by the Defendant, one Luis Paiva.

[3] In addition to the submissions made on appeal, I have read the transcript of evidence. While the reasons of the Small Claims Court Judge might have been more clear, I am satisfied that there was ample evidence to support the conclusion he reached. At page 103 of the transcript Mr.Paiva conceeded that the Plaintiff was not told that there was a risk to the bottom part of the engine when performance enhancement was undertaken to the top.

[4] The Plaintiff paid almost $5000.00 for performance enhancements that in effect did not work, requiring him to purchase another engine. The findings of fact of the Small Claims Judge are entitled to deference. There was ample evidence on which he could reach the conclusion he did, namely that the engine failure was due to a falure to warn the Plaintiff that without futher work to the engine, it might excessively burn oil with the risk of injury which occured.

[5] The appeal is therefore dismissed. As both sides were self represented I do not think this is an appropriate case for costs.

C. CAMPBELL J.

Released: