COURT FILE NO.: DC 2-05
DATE: 20060118
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fernando Chaves v. Cambridge Toyota Inc.
BEFORE: The Honourable Mr. Justice R. C. Sills
COUNSEL: Filomena Andrade, for the Appellant
Nicole C. Jedlinski, for the Respondent
E N D O R S E M E N T
[1] This is an appeal from the decision of Small Claims Court Deputy Judge J. Breithaupt made April 29, 2005.
[2] The plaintiff’s claim arises from the breakdown of his 2001 Lexus automobile on August 19, 2002 on Highway 401 as the result of the drainage of fluid from the transfer case or transmission. Upon inspection, the drain plug was missing from the transfer case.
[3] The plaintiff alleged that the loss of fluid from the transfer case was caused by the failure of the defendant to properly tighten the drain plug when the defendant last changed the fluid in the transfer case on September 27, 2001 at 47,389 kilometers and that the plug was subsequently shaken loose by vibration. The breakdown occurred August 19, 2002 at 86,056 kilometers.
[4] The trial judge concluded that he “cannot find on the balance of probabilities, that the loss of the drain plug was directly the result of any manufacturing defect, or by anything done by the defendant some 11 months before the event.” He went on to comment that “the plaintiff had a duty to protect his warranty by having regular inspections done and he did not do so in the area of 64,000 or 80,000 kilometer mark”.
[5] The trial judge found there was no evidence that the routine inspections were done elsewhere, or that any oil leaks were seen by the parties. The trial judge relied on exhibit three being the description of the sequence of services for this automobile.
[6] In the result the trial judge held that the plaintiff had simply not proven his case and the claim was dismissed.
[7] Counsel for the plaintiff takes the position that this appeal should be allowed because there was no pleading of failure to maintain the car as against the plaintiff and therefore the evidence introduced by the defendant by way of downloading the Lexus manual from the Internet should not have been admitted. Further that evidence should not have been admitted because an amendment to the statement of defence had neither been sought nor granted.
[8] The defendant had downloaded from the Internet portions of the Lexus operation manual dealing with the maintenance schedule for that vehicle and delivered copies to the plaintiff two weeks in advance of the trial. The trial judge relied upon this evidence in his judgment. The plaintiff had introduced the maintenance issue in his own pleadings. The evidence was properly admitted under Section 27 of the Courts of Justice Act. The plaintiff was not taken by surprise by the provision to him of the downloaded copy of the operations manual which would be admissible if provided in the form of the printed manual acknowledged by the plaintiff to be in his possession but left at home on the day of the trial.
[9] The findings of fact by the trial judge deserve deference unless there is shown to be an overriding palpable error in the conclusions arrived at.
[10] The application of the manufacturer’s warranty is not in issue except as an adjunct to the maintenance issue. In this regard the finding of the trial judge as to no manufacturer’s defect is of no particular import in this case.
[11] The evidence tendered is admissible. The only question to be determined is whether the trial judge’s finding that the plaintiff has not proven his case against the defendant is reasonable and supportable.
[12] There is no question on the evidence and/or raised by the parties but that the breakdown of the defendant’s automobile was caused by the lack of fluid in the transfer case. The trial judge could not find on the evidence, on the balance of probabilities, that the loss of the drain plug was directly the result of anything done by the defendant 11 months before the event. According to exhibit three as shown in the appeal book, the defendant did an inspection of the plaintiff’s vehicle on May 18, 2001 at 24,000 kilometers, June 27, 2001 at 31,976 kilometers, August 22, 2001 at 39,393 kilometers and September 27, 2001 at 47,389 kilometers. On this latter date the fluid was changed in the transfer case and it appears probable that any leakage around the drain plug would have been detected. A further inspection was done by the defendant on January 8, 2002 at 63,057 kilometers, another on March 20, 2002 at 72,000 kilometers and another on June 10, 2002 at 80,009 kilometers. The drain plug disappeared on August 19, 2002 at 86,059 kilometers.
[13] The plaintiff tendered evidence (exhibit two) from three independent mechanics. Their unanimous view was that the drain plug of the transfer case was probably not tightened and improperly torqued, probably fracturing the gasket or the gasket on the drain plug which would eventually loosen and fall out. Their evidence was that there was no way to know how long it would take for the plug to fall out but when it did fall out, the loss of fluid would be immediate.
[14] The evidence offered by the plaintiff with respect to the opinions of the mechanics, exhibit two, appears to demonstrate what could have happened or might have happened but does not satisfy the degree of proof required of the plaintiff as against the defendant in this case.
[15] In all of the circumstances I can find no reason to disagree with the conclusions reached by the trial judge that the plaintiff has not proved his case as against the defendant.
[16] The appeal will be dismissed with costs fixed in the amount of $400.00.
R. C. Sills J.
DATE: January 18, 2006