[CITATION]: 1179640 ONTARIO LIMITED v. DaSILVA, 2020 ONSC 5456
COURT FILE NO.: DC-19-00000112-0000
Sc-16-4274-00RS
DATE: 2020 09 11
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N:
1179640 ONTARIO LIMITED o/a 1st CHOICE AUTO CENTRE
Timothy David Affoo, Fatima Noorullah Qamar and Arjun Vishwanth, for the Plaintiff/Respondent
Plaintiff (Respondent)
- and -
JASON DA SILVA
Clarence Lui and Ryan Tinney, for the Defendants/Appellant
Defendant (Appellant)
HEARD: July 28, 2020 via Zoom videoconferencing
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] The Appellant Jason Da Silva (“Da Silva”) appeals the decision of Deputy Judge Rochelle Greene of the Small Claims Court, dated December 18, 2019, wherein she ordered that the Respondent 1179640 Ontario Limited o/a 1st Choice Auto Centre (“the Auto Centre”) was entitled to the sum of $10,997.22 being held in court pursuant to the Repair and Storage Liens Act, R.S.O. 1990, c.R.25 (“RSLA”).
Background
[2] On June 21, 2016, Da Silva was driving his Dodge Durango (“the Vehicle”) when he was involved in a multi-vehicle rear-end collision on Highway 401 near Renforth Drive, in the Region of Peel. Shortly after the accident, a number of tow trucks appeared. The parties agree that Da Silva was approached by a driver named Zach Cartier (“Cartier”) who operated a tow truck owned by the Plaintiff/Respondent 1179640 Ontario Limited, but operating under a different name, 1st Choice Towing. As the Vehicle could no longer be driven, and the police officer in attendance wanted to clear the highway, Da Silva authorized Cartier to tow the Vehicle to a place designated by the police to fill out the necessary paperwork, and then to a car rental company. After renting a replacement vehicle, Da Silva followed Cartier who towed the Vehicle to the Auto Centre.
[3] The parties agree that on June 21, 2016, Da Silva signed a document that was later identified as a work order (“the Work Order”). The parties’ evidence differs on the circumstances in which the Work Order was signed.
[4] The tow truck driver, Cartier, claims that he towed the Vehicle from the accident site to the reporting site, then to the car rental agency, and finally to the Auto Centre. He stated that he and Da Silva went into the offices of the Auto Centre, and after some conversation with Mr. Gill, the owner of the Auto Centre, Da Silva signed the Work Order. Cartier testified that he filled out the vehicle identification number, the license plate number and the words “as per insurance estimate” on the Work Order before it was given to Da Silva to sign. He admits that there was no insurance estimate in existence at that time. He stated that he observed Da Silva fill out his insurance information, his vehicle information, his name, phone number and the date and then signed it.
[5] Baljinder Gill (“Gill”), on behalf of the Auto Centre, indicated that Da Silva came into his shop on the day of the accident when the Vehicle was towed in. Gill testified that he explained to Da Silva that they repair as per the insurance estimate and that he would only use “OEM” parts on the Vehicle. He said Da Silva filled out his name, address and insurance company name. He confirmed that Cartier wrote the VIN and “as per insurance estimate” on the Work Order. Gill said he wrote the claim number on the Work Order two or three days later, after speaking to Jeff Wade, a representative of Da Silva’s insurer, who gave him the claim number after learning that the Auto Centre had a signed Work Order.
[6] In contrast to this evidence, Da Silva testified that he never even went into the Auto Centre premises on the day of the accident. After retrieving a rental vehicle, he followed the tow truck to the Auto Centre, retrieved his personal items from the Vehicle and drove to work. He testified that he made it very clear to Cartier that he wanted to call his insurance company to see where they would prefer the repairs to be done, and that he wanted it to be repaired in Milton, where he lived. The only forms he remembers signing that day were at the car rental agency. The document which is now identified as the Work Order, he was led to believe was an authorization to store the Vehicle at the Auto Centre until it was determined who would repair it, which he signed at the rental car agency. Da Silva claims he wrote nothing on the Work Order other than the date at the bottom and his signature. He denies filling out his name and address at the top, especially given the address listed is not his address, and indicates a residence in Mississauga. He has lived in Milton for 11 years. Obviously, he testified, he wouldn’t get his own address wrong.
[7] Everyone agrees that from at least June 23nd or June 24rd, the Auto Centre was aware that Da Silva did not want his car repaired by the Auto Centre, but that it refused to release the Vehicle because the Work Order was signed. It is also agreed that no actual repairs started until at least June 27, 2016, after the insurer sent their appraiser to review the damage and provided an estimate. The Auto Centre maintains they ordered parts on June 21st or June 22nd, before they knew that Da Silva didn’t want his car repaired there, despite the parts invoice being dated June 29, 2016. This contradicts Da Silva’s evidence that he tried to contact the Auto Centre by phone at least 25 times on the day of the accident, leaving messages that he wanted the Vehicle back, and that he was coming with the police to retrieve his vehicle. The Auto Centre gave no evidence about the messages left by Da Silva except to indicate that they had no idea Da Silva wanted to have the Vehicle repaired elsewhere until the police showed up several days later.
[8] It is also agreed that on or about June 27, 2016, an appraiser came to the Auto Centre to inspect the vehicle, and the same day delivered a detailed estimate on the parts and service required to repair the Vehicle. On the estimate, the following statement appeared:
THIS IS NOT AN AUTHORIZATION FOR REPAIRS. THIS ESTIMATE WILL ONLY BE VALID FOR A 30-DAY PERIOD AND CANNOT BE CONSIDERED FINAL. THE ESTIMATE MAY INCLUDE REBUILT, RECYCLED AND QUALITY REPLACEMENT PARTS COVERED BY THE MANUFACTURER’S GUARANTEE. THE INSURER HAS THE RIGHT TO NEGOTIATE WITH THE REPAIRER, AND DEMAND AT ALL TIMES INVOICES FOR PARTS. REGISTRANT IS RESPONSIBLE FOR APPLICABLE TAXES UPON PRESENTATION OF INVOICES. REPAIRS ARE TO BE AUTHORIZED SOLEY BY THE POLICYHOLDER/CLAIMANT.
[9] It was the evidence of Jeff Wade, a representative of the insurer, that the purpose of the preliminary estimate is to determine the amount of damage on the Vehicle, what parts would be needed and what needed to be repaired to put the Vehicle same condition as before the accident. He indicated that the estimate states clearly that it is not an authorization for repairs and repairs need to be authorized solely by the policy holder/claimant. He said the insurer doesn’t own the vehicle or therefore has no right to choose where the work gets done. They provide the insurance-approved estimate, and if the owner so chooses to proceed, the garage knows the scope of work and the amount they will be paid. Mr. Wade stated that estimate gets prepared regardless of whether repairs have been authorized.
[10] This estimate was delivered to the Auto Centre. Da Silva never saw it. At no time did the insurer ever specifically authorize the Auto Centre to proceed with the repairs. There was no evidence that verbal authorization was given. On June 27, 2016, the Auto Centre commenced the repairs set out in the detailed estimate. The Auto Centre then requested that more work be done and at least two supplemental estimates were prepared after an appraiser from the insurer attended at the Auto Centre, both estimates being dated July 22, 2020. These estimates contained the same disclaimer as on the first, that they were not authorizations and that the owner of the vehicle had to authorize the repairs. In or around July 25, 2020, the Auto Centre contacted the insurer and advised them that the car had been ready since July 18, 2020. Rather than pay for the work, the insurer paid the disputed monies into court, including the towing fee, and had the Vehicle released to their garage of choice to have the Vehicle further inspected. Further repairs were made at their preferred garage.
[11] As required, the Auto Centre commenced an action in the Small Claims Court, seeking payment to them of the monies being held as compensation for the work they performed on the Vehicle.
[12] After hearing the evidence, the Deputy Judge made the following findings of fact:
a) Da Silva tried to retrieve his vehicle within a short time of allowing it to be towed to the Auto Centre;
b) the Auto Centre did not act in good faith because it did not return the Vehicle to Da Silva even though he requested the vehicle shortly after it was in the Plaintiff’s possession;
c) By not returning the vehicle to Da Silva when he first asked, the actions of the Auto Centre can be characterized as an “unfair practice” or an “unconscionable practice” pursuant to the Business Practices Act, R.S.O. 1990, c.B.18 or Consumer Protection Act, 2002, S.O. 2002, c.30, Schedule “A” (“CPA”).
d) The insurance company aggravated the situation by not conveying to the Auto Centre, on behalf of Da Silva, that Da Silva did not want his vehicle repaired by the Auto Centre. Instead, the insurer sent an appraiser to the Auto Centre, inspected the Vehicle, prepared not one, but two additional estimates for repairs, and once the repairs were complete, refused to pay the Auto Centre relying on Da Silva’s objections to the Auto Centre repairing the vehicle;
e) Although DaSilva did not want the Auto Centre to complete the repairs, Da Silva signed an authorization;
f) The insurance company prepared several estimates and a “preliminary supplement” that permitted the Plaintiff to repair the Vehicle and make additional repairs.
g) Even if Da Silva did not authorize the repairs, there was authorization by the insurance company when they examined the Vehicle at the premises of the Auto Centre, prepared estimates and supplementary estimates of the work to be done (which is the standard practice in the industry) and then provided the estimates to the Auto Centre.
[13] There was no finding of fact regarding where the work order was signed and what was on it when Da Silva did sign it.
[14] After hearing the evidence and considering the submissions, the Deputy Judge granted judgment to the Auto Centre. Da Silva appealed this decision with respect to the repair costs only.
Issues
[15] Da Silva raises three grounds of appeal:
a) That the Deputy Judge erred by misinterpreting the requirements of the CPA when she found that these requirements had been met;
b) That the Deputy Judge erred in making a decision that relied on the principles of agency, which was not a theory of liability before the court;
c) That the Deputy Judge improperly distinguished a relevant and binding precedent.
Standard of Review
[16] When considering potential errors of law, the standard of review is one of the correctness. Where an error of law is found, the appellate court is free to replace the opinion of the trial judge with its own: Housen v. Nikolaisen, 2002 SCC 33, at para. 8.
[17] When considering potential errors of fact, the standard of review is that an appeal will not be granted, unless it can be established that the trial judge made a palpable and overriding error. Absent such a finding, deference is given to the trier of fact who was able to observe witnesses and hear the evidence first hand: Housen, at para. 10.
[18] A palpable and overriding error is where a finding of fact is clearly wrong, unreasonable or unsupported by the evidence and the error affected the result of the motion or trial. This applies whether there is direct proof of the fact in issue or indirect proof of facts from which the fact in issue has been inferred: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56.
Analysis
[19] With great respect to the Deputy Judge, I conclude that this appeal should be allowed. I find that she made an error in law by misinterpreting the requirements of the CPA in two respects: (1) she found that authorization for repairs can be given by referencing a detailed estimate to come, before it is given to the consumer; and (2) that an insurer can step into the shoes of a consumer in these circumstances and authorize repairs on behalf of the consumer, not in a manner authorized by the CPA, and without the consumer’s knowledge or consent.
[20] These misinterpretations fly in the face of a plain reading of the obligations of repairs as set out in the CPA. In s. 1 of the CPA, it states:
- In this Act,
“consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes;
[21] This definition indicates that the CPA is designed to protect individuals such as Da Silva, and not those acting for business purposes, such as insurers.
[22] The Act continues:
- (1) No repairer shall charge a consumer for any work or repairs unless the repairer first gives the consumer an estimate that meets the prescribed requirements. 2002, c. 30, Sched. A, s. 56 (1).
(2) Despite subsection (1), a repairer may charge for work or repairs without giving an estimate if,
(a) the repairer offers to give the consumer an estimate and the consumer declines the offer of an estimate;
(b) the consumer specifically authorizes the maximum amount that he or she will pay the repairer to make the repairs or do the work; and
(c) the cost charged for the work or repairs does not exceed the maximum amount authorized by the consumer. 2002, c. 30, Sched. A, s. 56 (2).
(1) No repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs. 2002, c. 30, Sched. A, s. 58 (1).
If an authorization required by section 56, 57 or 58 is not given in writing, the authorization is not effective unless it is recorded in a manner that meets the prescribed requirements. 2002, c. 30, Sched. A, s. 59.
[23] Regulation 17/05, states as follows:
For the purpose of subsection 56 (1) of the Act, an estimate of the total cost of work on and repairs to a vehicle shall be in writing and shall set out the following information:
The name of the consumer.
The name of the repairer and, if different, the name under which the repairer carries on business.
The telephone number of the repairer, the address of the premises from which the repairer conducts business, and information respecting other ways, if any, in which the repairer can be contacted by the consumer, such as the fax number and e-mail address of the repairer.
The make, model, vehicle identification number and licence number of the vehicle.
The odometer reading of the vehicle at the time of the estimate.
An exact description of the work to be done on and the repairs to be made to the vehicle.
An itemized list of the parts to be installed and a statement as to whether each part is a new part provided by the original equipment manufacturer, a new part not provided by the original equipment manufacturer, a used part or a reconditioned part.
The amount that the consumer will be charged for each part listed under paragraph 7.
The number of hours to be billed for doing the work and making the repairs, the hourly rate to be charged, any flat rate that will be applied in respect of any of the work or repairs and the total charge for labour.
An itemized list of all other goods and services, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis other than services to which Part VI.1 of the Act applies, that are to be provided to the consumer in connection with the transaction and for which the consumer will be charged, and the amount to be charged for each such good or service.
If the consumer has declined the return of any parts to be removed in the course of work on or repairs to the vehicle,
i. a statement to that effect, and
ii. the resulting reduction, if any, in price.
The total amount to be billed to the consumer.
The date on which the estimate is given and the date after which it ceases to apply.
The date by which the work and repairs will be completed.
That the repairer will not charge the consumer an amount that exceeds the amount estimated under paragraph 12 by more than 10 per cent.
For the purpose of section 59 of the Act, if an authorization that is not in writing is given to a repairer who works on or repairs vehicles, the following is required to be recorded in order for the authorization to be effective:
The name of the person giving the authorization.
The date and time of the authorization.
If the non-written authorization is given by telephone, the telephone number of the person giving the authorization, and if the non-written authorization is given by a method other than telephone, information regarding how the person giving the authorization can be contacted using the other method. O. Reg. 17/05, s. 49
[24] Da Silva is the consumer who is entitled to an estimate that meets the prescribed requirements as set out in the applicable regulations: CPA, s. 56(1). While there are situations in which an estimate is not required, they are limited to the circumstances set out in s. 56(2). There are three very clear conditions that must be met in order to waive the requirement of a written estimate. At no time in the trial was there any evidence proffered that the Auto Centre offered Da Silva an estimate of the work done, which estimate was declined. It was not contested that the estimate prepared by the insurer was never provided to Da Silva. While this estimate may have satisfied the requirements of the regulations, Da Silva was never given a chance to review it and authorize it. The Auto Centre was very much aware that Da Silva would not authorize any repairs that were suggested by the Auto Centre. Despite the very clear indication on the estimate that it does not constitute an authorization to repair, the Auto Centre proceeded to complete the repairs.
[25] The Auto Centre maintains that the actions of the insurer were such that they believed they had authority. The Deputy Judge agreed and made a finding that the insurer authorized the repairs on behalf of Da Silva. Again, this is a clear misinterpretation of the CPA. The only time authorization can be given, that is not in writing, is when it is in compliance with s. 49 of the regulations. No evidence was ever presented with showing this compliance. Again, s. 49 of the regulations is in reference to s. 59 of the CPA, which references the authorization given by the consumer.
[26] It is a misinterpretation of the CPA to find that a consumer can authorize repairs of which they have no specific knowledge – as to scope of work or price. Proceeding with repairs based on a blank work order, or a work order lacking any specificity, and then demand payment, is the exact practice that the CPA is designed to prevent.
[27] It is also a misinterpretation of the CPA to find that an insurer can be an agent for a consumer and grant authorization in a manner inconsistent with the CPA. Despite the attendance of the estimator at the Auto Centre, at no time was the Auto Centre advised that the insurer was Da Silva’s agent. In fact, Auto Centre knew the insurer was not Da Silva’s agent due to the explicit disclaimer to this effect on the estimate provided by the insurer. Whether or not the Auto Centre thought the insurer was Da Silva’s agent, there was no evidence of a written authorization by the insurer to complete the repairs. There was no evidence of a non-written authorization in the manner prescribed by s. 49 of the regulations. The Deputy Judge disregarded the requirements of authorization either from the consumer himself or through his insurer, written or otherwise.
[28] This interpretation of the CPA is supported by the case of Gary Auto Repair v. Velke, 2010 ONSC 3183 (Div. Ct.), a leading authority on this issue. At the trial level, the deputy judge found that the repairer was entitled to payment for the repairs that were made. The Deputy Judge found that the consumer Velke lacked credibility and that Velke’s claim that he left the car with the repairer a month with no directions to work on it, unbelievable. The Divisional Court overturned that decision and found that the repairer was not entitled to payment. Despite the court finding considerable evidence that the repair garage believed they had authority from the consumer for the repair work done, the repairer did not comply with the strict provisions of the CPA. In replying to the appeal, the repairer sought equitable relief, claiming that the consumer was unjustly enriched by their repairs. This argument was also rejected. While the repairer was able to show that the consumer received the benefit of the repairs and the repairer suffered the corresponding deprivation of the value of their services, there was a juristic reason for this enrichment – namely ss. 56, 58 and 59 of the CPA: at para. 20.
[29] Also instructive is the case of Hoffman v. 2229152 Ontario Ltd., 2017 ONSC 2405 (Div. Ct.). In this case, the Plaintiff’s car was towed to the Defendant garage following an accident. Given that the Plaintiff’s car was new, she wanted it repaired by the dealership, to ensure her warranty was not invalidated. The repairer argued that authority for the work they did was given by the Plaintiff’s fiancé, or by the insurer who prepare an estimate and a supplemental estimate, similar to what was prepared in the case at hand. The insurer actually issued a cheque to the repairer, which was made payable to both the repairer and the consumer. The repairer cashed the cheque without the consumer signing the cheque, or in fact, ever knowing it was issued. At the trial level (see [2016] O.J. No. 4110), the Deputy Judge ordered that the cost of the repairs be returned to the consumer because she did not give authority for the repairs. This decision was upheld at the Divisional Court.
[30] The Auto Centre relies on the case of Horizon Custom Cycles v. Lefurgey, 2011 ONSC 5168, in support of the proposition that a consumer’s knowledge that the insurance company had placed a limit on the cost of the repairs is sufficient to fall within the ambit of s. 56(2) of the CPA.
[31] This is not an accurate description of what the case states, nor does it support the position put forward. In Horizon, during the course of the repairs, the repairer spoke predominantly with the consumer. The consumer gave the repairer detailed estimates of what needed to be done, which were prepared by the insurer. It was the consumer who authorized the repairs after discussing the detailed estimate with the repairer. Accordingly, Shaughnessy J. found that the consumer had an estimate and in that he was aware of the limit on the amount the insurer would pay. In this case as well, there was no dispute that the repairer had the authorization of the consumer. The issue before the court had more to do with the timing of the repairs and an excess amount charged by the repairer. In Horizon, Shaughnessy J. found that the consumer gave consent after having a detailed estimate and knowing the maximum amount that would be paid. This shows compliance with the CPA, not a situation where an estimate from an insurer constitutes consent on accordance with s. 56(2). This is also clearly distinguishable on the facts before me, where there was no consent by the consumer after the cost of repairs was disclosed, and in fact, the maximum amount that the insurer would pay was not even known to Da Silva when he signed the Work Order.
[32] Although the Deputy Judge referred to Daytona Auto Centre Ltd. v. Pugliese, 2013 72708 (Ont. S.C.S.M.), and Gary Auto Repair v. Velke, 2010 ONSC 3183, in support of the finding that the repairer was not entitled to equitable relief, she failed to follow the clear authority of these cases that stands for the premise that strict compliance with the substantive and procedural rights given under the CPA must be afforded to the consumer, or else they are not liable for the cost of the repairs.
[33] With respect to s. 93(2) of the CPA, I do not find that this is an appropriate circumstance in which to waive compliance with the CPA and its regulations.
[34] Section 93 states:
- (1) A consumer agreement is not binding on the consumer unless the agreement is made in accordance with this Act and the regulations.
(2) Despite subsection (1), a court may order that a consumer is bound by all or a portion or portions of a consumer agreement, even if the agreement has not been made in accordance with this Act or the regulations, if the court determines that it would be inequitable in the circumstances for the consumer not to be bound.
[35] The inequity of not enforcing a contract was addressed in Connect Electric Inc. v. Pullen, 2013 ONSC 1837. In this case, Conlan J. found that non-compliance with the CPA was not a bar to the Plaintiff contractor recovering the money was owed, as the consumer was bound by the contract under s. 92(2).
[36] In so determining, Conlan J. reviewed the case law and outlined some of the factors that the court should consider in deciding whether to apply s. 93(2). When considering whether to apply s. 93(2), the court is to consider the consequences of invalidating the contract, the social utility of those consequences, the class of persons for whom the prohibition has been enacted, whether the contract was negotiated at arm’s length, whether the consumer had been unfairly taken advantage of, whether the agreement was wholly or substantial completed, the benefit derived by the consumer and whether it would be inherently wrong or contrary to public policy to enforce the contract: Connect Electric at paras. 55-60, citing Morrell v. Cserzy, [2002] O.J. No. 698 (S.C.), at para. 11, and Agasi v. Wai, [2000] O.J. No. 3087 (S.C.), at para. 46-47.
[37] In these circumstances, I find that equity requires that the consumer be relieved of its obligations to pay for the following reasons:
a) The Auto Centre knew the consumer did not consent to the Auto Centre doing the repairs;
b) Despite being specifically asked by the consumer shortly after the accident to return the Vehicle, the Auto Centre refused to do so, even though repairs had not even been commenced;
c) The Deputy Judge found that the conduct of the Auto Centre in this regard amounted to unfair or unconscionable business practices;
d) The Auto Centre commenced repairs one week later despite receiving an estimate from the insurer which specifically stated that the estimate was NOT an authorization and that work had to be authorized by the consumer;
e) The power of the repairer under the Repair and Storage Act to retain a vehicle puts the consumer at a significant disadvantage, which disadvantage the CPA was designed to address;
f) The Auto Centre took advantage of Da Silva by having him sign the Work Order shortly after an accident and before an estimate was ever provided;
g) The Auto Centre also took advantage of Da Silva after he immediately asked that his Vehicle be returned; even if the Auto Centre ordered parts a week before the work commenced, it should have released the Vehicle to DaSilva when requested upon payment into court of an amount sufficient to cover the cost of the parts allegedly ordered and the towing fee; instead it retained the vehicle and knowingly performed repairs on the Vehicle over the objections of Da Silva, requiring more to be paid into court before the Vehicle was released;
h) The Auto Center proceeded with the attitude of asking for forgiveness, rather than permission, which permission it knew it would not get.
[38] It is a matter of public policy that a repairer should not be paid for repairs against the express wishes of the only party who could give authorization for such repairs, and that it proceed with these repairs prior to giving the owner a detailed estimate of what it would cost. Da Silva did not take advantage of the Auto Centre by allowing the repairs to proceed and then refuse to pay. He made his intentions clear. The insurer did not take advantage of the Auto Centre by giving an estimate because it was clear that the estimate was not an authorization. Had Da Silva subsequently given his consent after seeing the estimate, then the money would be owing. Da Silva never did, and the Auto Centre knew he never would. It proceeded nonetheless.
Costs
[39] I have reviewed the cost endorsement of Deputy Judge Greene dated March 9, 2020. The costs requested by the Auto Centre exceeded the sum that was awarded. She indicated that the amount sought by each party was reasonable, but reduced to 15% of the amount sought, due to the conduct of the Auto Centre. I do not have access to the costs requested at the trial level, but Da Silva should have his costs at the trial level. I will encourage the parties to agree upon these costs as I am not privy to the sums requested.
[40] With respect to the costs of this appeal, Da Silva is entitled to his costs. I have reviewed the Costs Outlined by both parties and find that they are reasonable. There is no reason though to award Da Silva anything over and above partial indemnity costs, plus his provable disbursements.
Conclusion
[41] In summary, I find that the Deputy Judge made an error in law in her interpretation of the relevant provisions of the CPA and applicable regulations. Upon the proper application of the law, it is clear that the Auto Centre performed the repairs to the Vehicle without the appropriate authorization and it would be inequitable to require payment in these circumstances.
[42] Accordingly, I make the following orders:
a) The appeal is allowed;
b) The judgment of Deputy Judge Greene reflected in her reason of November 18, 2019, is set aside;
c) The claim of the Auto Centre is dismissed with respect to the repairs in the sum of $10,997.33 plus pre-judgment and post-judgment interest, and these funds paid into court by Da Silva should be returned to him;
d) Any interest earned on the funds paid into court on the sum of $10,997.33 shall be paid out to Da Silva;
e) The Endorsement on Costs of Deputy Judge Greene, dated March 9, 2020 is set aside;
f) Da Silva shall have his costs of this appeal, fixed in the sum of $9,500 inclusive of fees, disbursements and taxes, payable in 30 days;
g) Da Silva is entitled to his costs of trial; if the parties are unable to decide the issue of costs at the trial level, DaSilva shall serve and file his written submission on the costs of the trial on or before 4:30 p.m. on September 18, 2020. The Auto Centre shall serve and file its responding submissions on or before 4:30 p.m. on September 25, 2020. Da Silva, if he chooses, shall file reply submissions on or before 4:30 p.m. by October 2, 2020. All written submissions are restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle. All costs submissions shall be e-mailed to scjtrialofficebrampton@ontario.ca, and directed to my attention. No submissions may exceed 10 MB.
Fowler Byrne J.
Released: September 11, 2020
[CITATION]: 1179640 ONTARIO LIMITED v. DaSILVA, 2020 ONSC 5456
COURT FILE NO.: DC-19-00000112-0000
Sc-16-4274-00RS
DATE: 2020 09 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
1179640 ONTARIO LIMITED o/a 1st CHOICE AUTO CENTRE
Plaintiff (Respondent)
- and –
JASON DA SILVA
Defendant (Appellant)
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: September 11, 2020