BARRIE COURT FILE NO.: 08-0734

DATE:

ONTARIO DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PARKWAY COLLISION LTD. Plaintiff/Respondent

• and -

JAMES RYAN Defendant/Appellant

COUNSEL: Victor L. Vandergust, for the Plaintiff/Respondent Lisa M. Carr, for the Defendant/Appellant

HEARD: October 13, 2009

BEFORE: STONG, J.

ON APPEAL OF THE DECISION OF DEPUTY JUDGE E. SYMONS DATED MAY 4, 2008

[1] This is an appeal of the decision of Deputy Judge E. Symons, Deputy Judge of the Small Claims Court sitting in Barrie, Ontario. The judgment was dated May 4, 2008.

[2] The action is an appeal from a judgement awarding Parkway Collision Ltd (hereinafter called “Parkway”) towing and storage costs arising out of a motor vehicle accident in which the appellant’s vehicle was involved. The appellant’s (hereinafter called “Ryan”) vehicle was stopped at the side of the road and was struck from the rear by another vehicle. Ryan’s vehicle was severely damaged and had to be towed from the scene. The towing bill was paid by Parkway to B & B Towing, which had towed the vehicle from the scene of the collision. When reimbursement was sought by Parkway, the appellant, or his insurer on his behalf, determined that the amount of the towing bill was excessive and payment was refused.

[3] The accident occurred on the 3^rd of July, 2006, which was the Monday of the holiday long week-end. The Ryan vehicle was stopped at the side of the road in the Town of Wasaga Beach, Ontario when another vehicle struck it from the rear. It was severely damaged and had to be towed away.

[4] The Ontario Provincial Police attended the scene and called Murray Baker of B and B Towing to the scene of the accident in order to have the vehicle towed from the scene.

[5] When the vehicle had been released from the scene by the police, Ryan instructed Murray Baker of B and B Towing to take the vehicle to Parkway Collision Ltd. in Collingwood. The cost of the towing job was not discussed. The appellant did not ask and the tow truck driver did not offer to provide an estimate of the costs involved.

[6] Since it was a holiday week-end and Parkway Collision was not open, the tow truck operator decided that he could not simply drop the vehicle in an unattended yard so he took the vehicle to the B and B Towing compound.

[7] The vehicle was towed to the Parkway Collision facility the following day. The bill rendered by B and B Towing to Parkway Collision was $525 for the basic towing charge from the scene of the accident to the B and B compound, then a further $200 for the towing from the B and B Towing compound to Parkway Collision Ltd. and two days storage at the B and B Towing compound at $50 per day. B and B Towing’s bill was $874.50.

[8] Parkway Collision paid B and B Towing upon receiving the vehicle at its facility.

[9] An adjuster from the appellant’s insurance company spoke to Mr. Boucher of Parkway Collision Ltd. the following day and indicated that the storage rate being charged was too high and the amount of the towing bill was likewise too high. Parkway would not release the vehicle without payment so an initial Certificate under section 24 of the Repair and Storage Lien Act was acquired which allowed the insurers to remove the vehicle some ten days after it was received by Parkway.

[10] Judgment went in favour of Parkway Collision for the towing bill paid on behalf of the appellant and the charges for storage in the Parkway Collision facilities in the amount of $1,298.50.

STANDARD OF REVIEW ON APPEAL

[11] The Supreme Court of Canada in Paul Housen v. Rural Municipality of Shelbrooke No. 493 [2002] S.C.C. 33 at page 3 held:

It is argued that the trial judge enjoys numerous advantages over appellate judges which bear on all conclusions of fact, and even the absence of these advantages, there are other compelling policy reasons supporting a deferential approach to inferences of fact. We conclude therefore by emphasizing that there is one, and only one standard of review applicable to all conclusions made by the trial judge – that of palpable and overriding error.

[12] The standard of review that applies to factual inferences is therefore “palpable and overriding error” hence there must be an error in law or exercise of discretion on the wrong principles or a misapprehension of the evidence. Where there is no substantial error by the trial judge, and the judgment is a reasonable one, it ought not to be interfered with.

[13] In the case at bar the trial judge carefully reviewed the evidence. He made findings of credibility in favour of Murray Baker of B and B Towing and Glen Boucher of Parkway Collision. He further found that the appellant, James Ryan, had authorized the towing and that the vehicle storage was reasonable and that both were of value to the appellant. The quantum of the amount owing and bill owing was assessed by the trial judge based upon the evidence. Although not pleaded per se, the issue of “quantum meruit” was a live issue throughout the trial and was clearly addressed by the trial judge in finding that the charges were reasonable in the circumstances.

THE FACTS

[14] The trial judge found specifically the following:

(a) At the scene of the accident the appellant Ryan authorized the towing service to take his vehicle to Parkway Collision because he had dealt with that company before;

(b) The appellant had not asked how much the charges would be;

(c) The towing service did not give the appellant a quote because its towing service did not know how long he was going to be on the scene whether it was an hour or three hours;

(d) The accident was on a long holiday week-end and since Parkway Collision was not open on that week-end delivery to parkway Collision had to be effected subsequent to the date of the removal of the vehicle from the accident scene;

(e) The towing service made out its account to Parkway Collision for the towing and storage and the bill was paid by Parkway;

(f) Parkway Collision paid the account of James Ryan who had given the towing service the authorization to bring his vehicle to Parkway;

(g) James Ryan knew that the tow truck driver was expecting to be paid for towing the car for him;

(h) The appellant got the benefit of his car being towed and kept safe and securely.

ISSUES AND THE LAW

Issue #1.

[15] The appellant argues that Deputy Judge Symons erred by improperly interpreting the application of Part 6 of the Consumer Protection Act 2002 to the tow and storage fees charged by B and B Towing and failed to determine the application of Park 6 of the Consumer Protection Act 2002 to the storage fees charged by Parkway Collision Ltd.

[16] Parkway did no work on or repairs to the appellant’s vehicle but rather served as the choice of the appellant to receive the towed damaged vehicle and store it in the event that Parkway would do the repair work to the vehicle. The vehicle was assessed to be irreparable after it had been towed to Parkway Collision’s facilities.

[17] The trial judge specifically rejected the application of Part 6 of the Consumer Protection Act 2002 to the facts at bar. More particularly he refused to apply section 56 to the circumstances that existed in relation to the accident scene from which the appellant’s vehicle was towed. That is, before B and B Towing Services could remove the motor vehicle from the scene of the collision it would be obliged to present to the appellant an estimate of the cost of towing the vehicle from the scene. Notwithstanding that section 48 of the Ontario Regular 17/05 sets out prescribed requirements for section 56 of the Consumer Protection Act 2002 and that the cost of “picking up or delivering the vehicle” and “storing the vehicle” are included in the Regulation as work or repairs that require an estimate under section 56 of the Consumer Protection Act 2002, it is not only impractical but unreasonable in the circumstances of urgency on the side of the road after a collision that the appellant or any other owner be required to enter into negotiations and receive or demand an estimate of the fee to be charged for towing the vehicle away and storing it until it could be appropriately dealt with. The legal maxim of quantum meruit, to which the trial judge was fully alert, covers such an exigency and applies to such circumstances.

[18] Nor did Parkway Collision Ltd. provide an estimate or invoice that set out the cost of storage fees to be charged for the appellant’s vehicle once it was towed to its location to await a determination of the viability of repairing it. The trial judge found that the appellant had directed, at the scene of the collision, that his vehicle be towed to Parkway Collision Ltd.’s facilities, and notwithstanding there is no discussion of payment for storage of the vehicle at those facilities between the parties the trial judge accepted that the appellant knew that he would have to pay for that service. Notwithstanding that towing the vehicle from B and B Towing’s yard to the Parkway Collision Ltd. facility occurred subsequent to the clearing of the collision scene on the side of the highway, the decision to move the appellant’s vehicle to Parkway Collision Ltd.’s facilities was the result of instructions given by the appellant at the scene of the collision. The trail judge found that the appellant did realize that the services provided by Parkway Collision Ltd. would have to be paid for.

[19] The services provided by Parkway Collision Ltd. arose out of circumstances of urgency in as much as the appellant’s vehicle had to be taken from the scene of the collision because it was inoperable. To find that the Consumer and Protection Act 2002 applied in such circumstances would be unreasonable, particularly since it is in the interests of the safety of the mobile public to clear collision scenes as rapidly as practicable and more particularly if the owner/operator of the vehicle were incapacitated in the collision and were unable to consider a proposed estimate for the services to be provided. Notwithstanding that the application of section 56 of the Consumer Protection Act 2002 was not observed in the circumstances of the move of the Ryan vehicle from B&B Towing yard to Parkway Collision Ltd.’s facilities, the charges demanded by Parkway Collision Ltd. for its services are subject to a review on the basis of quantum meruit, which the trial judge did, hence the appellant was not without redress.

[20] In the circumstances, neither the towing service provided by B&B Towing from the scene of the collision and ultimately to the premises of Parkway nor the storage of the vehicle at B&B Towing and subsequently at Parkway were “repairs” as defined in the Act or its regulations. Neither B&B Towing nor Parkway proposed to repair the damaged vehicle.

[21] Had Parkway become a “repairer” by accepting to do the work or repairs to the vehicle, it would have been bound by the provisions of the Consumer Protection Act and would have been required to submit a written estimate of the work. The role of Parkway Collision was not that of a “repairer”. It did no work or repairs but served only as the chosen agent of the appellant to receive the towed damaged vehicle and store it. Parkway Collision had become the designated recipient and custodian of the vehicle as appointed by the appellant James Ryan. Parkway Collision neither asked for the vehicle nor did it do or propose to do any repairs or work upon the vehicle except provide safe storage given the damage to the vehicle.

Issue #2

[22] The appellant argues that Deputy Judge Symons erred by failing to determine if Parkway Collision Ltd. and B and B Towing were in fact a “storer” as defined by the Repair and Storage Liens Act and therefore failed to apply the same Act or determine its application.

Issue #3

[23] The appellant further argues that Deputy Judge Symons failed to turn his mind to the legal obligation to mitigate damages and failed to determine if the Repair and Storage Liens Act entitled the storer to charge for storage while it chose to hold a vehicle as collateral. Both of these issues can be dealt with together. For reasons already discussed, Parkway Collision Ltd. did not stand in the position of a “repairer” having not done or proposed to do any work or repairs on the appellant’s vehicle. Since no written estimate for work done was needed a lien arises under the Repair and Storage Lien Act. Although no evidence was produced to demonstrate that Parkway Collision Ltd. and the appellant communicated with each other with respect to storage fees prior to the appellant’s vehicle being delivered to Parkway Collision, the trial judge found that the appellant expected to have to pay fees for the services rendered by his choice of destination of his damaged vehicle. The trial judge found; (a) the owner authorized the tow (b) the owner authorized the tow to Parkway (c) the car was damaged and had broken windows (d) the owner admitted that towing and storage was of benefit to him. The trial judge committed no palpable or overriding error in relation to these issues

Issue #4

[24] The appellant argues that Deputy Judge Symons failed to determine if an agency relationship was ever established between Parkway Collision Ltd. and the appellant James Ryan, creating a legal obligation to reimburse Parkway for the fees paid to B and B Towing.

[25] The trial judge found that the appellant created an agency relationship with Parkway Collision Ltd. when he observed “Mr. Ryan instructed B and B Towing to take the vehicle to Parkway and that he expected the job to be done at a cost”. This finding was supported by the evidence of both the appellant and the tow truck operator. Parkway Collision Ltd. was justified in paying the fees to B and B Towing on behalf of the appellant. The payment of the appellant’s bill to B and B Towing and the acceptance and storage of the vehicle serves to complete the acceptance of that agency appointment.

Issue #5

[26] The appellant argues that Deputy Judge Symons misapplied the maxim of quantum meruit and failed to provide the appellant James Ryan with an opportunity to address the equitable relief with adequate evidence given that the restitutionary cause of action was not pleaded.

[27] The issue of quantum meruit in respect to the charges was a live issue throughout the trial and indeed was addressed by the trial judge inasmuch as he found the charges for the towing and the storage to be reasonable. In making that finding the trial judge based his decision upon the evidence he accepted from both Baker and Boucher whom he found to be credible witnesses.

Issue #6

[28] Finally the Appellant argues that Deputy Judge Symons erred in rejecting the evidence of By-law tow rates in surrounding areas because the By-law was not produced.

[29] The appellant submits that the best evidence of reasonable rates is evidence of (1) fees charged by competitors, (2) a regulated range of rates. The appellant further argues that the trial judge refused to consider the evidence of M. Lockwood from RBC with respect to a regulated range of rates because the By-laws were not filed.

[30] The trial judge found evidence of reasonable rates as provided by Mr. Baker of B and B Towing and Mr. Boucher of Parkway Collision Ltd., both of whom were directly involved, to be credible.

[31] In rejecting oral evidence of By-laws of other municipalities, which By-laws were not in fact presented to the court, the trial judge was rejecting collateral and hearsay evidence the acceptance of which would have been simply opinion of a third party and not subject to cross-examination.

[32] The request for a new trial based on the assertion that the appellant was not appraised of the equitable relief sought fails in that it is not supported by the finding of the trial judge that the charges for towing and storage were reasonable. The quantum meruit issue appeared to have been a live issue throughout the trial and hence there was no prejudice to the appellant who throughout the trial, challenged the charges on the basis of unreasonableness.

[33] There being no palpable and overriding error, the findings and judgment of the trial judge are confirmed. The appeal is dismissed.

[34] Counsel are invited to submit in writing within two weeks of this date their submissions as to costs in a brief of no more than two double-spaced pages.

STONG, J.

Released: October 16, 2009