Taurus Auto v. Zhou, 2020 ONSC 7127
CITATION: Taurus Auto v. Zhou, 2020 ONSC 7127
COURT FILE NO.: DC-19-0094
DATE: 2020 11 20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
TAURUS AUTO COLLISION INC.
Appellant
- and -
DAOJIN HUAIQING XIE ZHOU
Respondent
COUNSEL:
David. M. Goodman, for the Appellant
Adam Lefler, for the Respondents
HEARD: November 13, 2020, at Brampton
REASONS FOR JUDGMENT
[On appeal from a Decision of Deputy Judge K. Twohig of the Small Claims Court at Brampton delivered August 15, 2019]
BIELBY J.
INTRODUCTION
[1] Before the court is an appeal of the decision of Deputy Judge K. Twohig, dated August 15, 2019, wherein the action was dismissed with costs, in the amount of $2,916.00. The plaintiff, now the appellant, appeals the decision, arguing the learned Deputy Judge made palpable and overriding errors, in finding the respondent did not authorize repairs and/or for failing to award damages on a quantum meruit basis.
[2] By way of a Zoom audio visual conference, the appeal was heard by me as a single judge of the Divisional Court.
OVERVIEW
[3] On October 18, 2012, a BMW motor vehicle (the vehicle) owned by the respondent and driven by the respondent’s son Huai Qing Xie (Mr. Xie) was involved in a motor vehicle accident. The vehicle was towed to the appellant’s place of business. The appellant made repairs to the vehicle, the cost of which the respondent refused to pay alleging the repairs were not authorized. The appellant then brought an action in Small Claims Court claiming the costs of the repair, the towing cost and storage fees.
[4] The trial was held on May 15, 2019, and, as noted above, the action was dismissed.
FACTS
[5] As a result of the accident the vehicle was towed to the plaintiff’s place of business, a decision made solely by the tow truck operator. The evidence disclosed that the tow truck driver, for bringing the vehicle to the plaintiff, would receive a fee, equalling 10% of the total cost of the repairs to the vehicle.
[6] When Mr. Xie arrived at the appellant’s he was required to sign a document identified to be the work order. In the document, where the work to be done and the cost of said work is to be set out, reads, “AS PER THE INS EST”, notwithstanding the insurance company had yet to inspect the vehicle.
[7] The Aviva Insurance Company thereafter did estimate the cost of repairs, inclusive of HST, to be $15,999.98. However, on November 13, 2017, Aviva denied coverage.
[8] It was the evidence of Evelyn Abdelnour, the plaintiff’s owner, that she called Mr. Xie on November 21, 2017, and that during that conversation, he verbally authorized the plaintiff to proceed with the repairs.
[9] Ms. Abdelnour also testified that she called Mr. Xie again on November 22nd, to confirm, however Mr. Xie called her a “scammer” and hung up the phone.
[10] The work order contained a number of notations, written in after Mr. Xie had signed it. There are two hand written notations, including references to the phone conversations set out above. Also added to the work order, are the words, “Not Insured/customer to pay for repairs”.
[11] Ms. Abdelnour then, at some point, wrote on the work order, the plaintiff’s own repair estimate which totalled, inclusive of HST, $18,981.04.
[12] It was the trial evidence of Mr. Xie that he, at no time, authorized the appellant to commence and complete the repairs to the vehicle. He did not want the appellant to do the repair work and asked for the return of his car. It appears that he was told that the parts had already been ordered and that he could not remove the vehicle.
[13] When the repairs were completed Mr. Xie was contacted to come in and pay and pick up the vehicle. He refused to do so. The appellant then responded saying that he would be charged storage.
[14] The additional storage costs and other expenses are now claimed by the appellant bringing the total amount claimed to $24,066.74.
THE TRIAL JUDGEMENT
[15] In his submissions at the end of the trial, counsel for the respondent took the position that nothing was owed to the appellant because it failed to comply with the Consumer Protection Act, 2002, S.O. 2002, c. 3 (CPA), notwithstanding the fact that the respondent failed to plead the CPA. On that point the trial judge opined that the purpose of the CPA is to protect consumers and it may be applied by a court even if it was not specifically pleaded, relying on, Reid v. R.L. Johnston Masonry Inc. O.J. No. 2492 (para. 15).
[16] Deputy Trial Judge Twohig concluded that Mr. Xie was a consumer and that the appellant was the supplier of goods (auto parts) and services (labour) (para. 31).
[17] The trial judge went on to note that the appellant failed to provide Mr. Xie with an estimate in advance of the repairs as required by s. 56(1) of the CPA (para. 33). The repairs costs were added to the work order after insurance coverage had been declined. Nor was there compliance with s. 48 of the CPA, in regard to authorization. In fact, the trial judge ruled that the appellant also breached sections 13(2), 13(3), 56(1), and 58(1) of the CPA.
[18] In regard to authorization, the evidence of Mr. Xie and Ms. Abdelnour conflicted. It was the finding of Deputy Judge Twohig that she preferred the evidence of Mr. Xie (para. 38) and then set out reasons for doing so.
[19] The trial judge found that Mr. Xie was called by Ms. Abdelnour on November 21, 2017 for the purpose of obtaining authorization to order the parts and do the repairs. However, Mr. Xie expressly refused to provide his authorization (para. 41).
STANDARD OF REVIEW
[20] In order to succeed on this appeal, the appellant must establish that the trial judge made a palpable and overriding error or an error in law.
[21] The appellant submits that the trial judge did make a palpable and overriding error in finding that the respondent had not authorized the repairs. With respect, I disagree.
[22] The appellant relies on the wording set out in the work order and the hand- written confirmation that on November 21, 2020, the appellant gave his verbal authorization to proceed. However, it is clear that Deputy Judge Twohig was not impressed with the business practices of the appellant and the fact that Ms. Abdelnour obtained Mr. Xie’s signature on the document and then proceeded, after the fact, to make additions to the document, but then still argue the respondent was bound.
[23] The trial judge went on to find breaches of the CPA relating to providing an estimate and properly obtaining authorization. More importantly, as noted above, after hearing and observing the evidence of Ms. Abdelnour and Mr. Xie and in regard to the issue of credibility, she preferred Mr. Xie’s evidence and ruled that he did not give the required authorization. Nor did he want the appellant to do the repair work and wanted to get the vehicle back.
[24] The trial judge went on to find that there was no agreement for the respondent to pay storage fees or any other sundry fee and that for over five months the appellant held the respondent hostage by completing unauthorized repairs and for charging storage.
[25] Deputy Trial Judge Twohig is entitled to deference in her findings of fact, especially in regard to issues of credibility. She was able to listen to and observe the testimony of the witnesses. She gave reasons for her conclusions and she did not make any palpable and overriding error on the issue of authorization.
[26] Nor did the trial judge make an error in law in regard to her application of the CPA.
[27] Counsel for the appellant also submitted that the trial judge’ decision not to award damages on a quantum meruit basis, was in error and relied on s. 93 of the CPA, which reads,
(1) A consumer agreement is not binding on the consumer unless the agreement if 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 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.
[28] A review of the decision discloses that the trial judge, while not referencing s. 93 specifically, seemed to be aware of it. Section 93, refers to a consumer agreement and equity. At para. 45 of her decision the trial judge wrote:
“This is not a case of a consumer agreement or contract that can be rescinded under the CPA or in equity, because there never was a consumer agreement or contract for any of these services in the first place.”
[29] Further, there is an additional reference to equity in para. 50, which reads:
“I find that Taurus has failed to prove on a balance of probabilities that it had a right to charge storage fees. Considering that Taurus kept the car without legal authority for over five months while it performed unauthorized repairs, there is no equitable basis for allowing storage fees.”
[30] It was suggested by counsel for the appellant that, at the very least, the appellant ought to be compensated for the cost of the parts installed in the vehicle. It can be argued that the respondent was the beneficiary of a windfall by not being required to pay for the repairs.
[31] The trial judge made no error in law when she said there was no consumer agreement between the parties. No agreement was reached because the respondent did not authorize the repairs. Regardless, I am of the opinion that the trial judge made no error in declining to award damages on a quantum meruit basis for other reasons. First, the trial judge concluded that prior to the parts being ordered and the repair work done, the appellant knew Mr. Xie did not provide his authorization.
[32] Secondly, in matters of equity, the party seeking relief needs to come to court with clean hands. In that regard, I take into account the multiple breaches of the CPA as determined by the trial judge. I also take into account the unilateral amendments to the work order, after it was signed. Further, I take judicial notice of the business practices of some unscrupulous towing companies and collision repair companies for conspiring to work together to take advantage of persons involved in car accidents. It is an issue that has been in the press and under consideration by the province. Towing companies compete to be first on the scene of an accident. The damaged vehicles are towed to collision shops which compensate the tow truck drivers. Accordingly, I find that equity does not favour the appellant and that no error was made by the trial judge in that regard.
DISPOSITON
[33] This appeal is dismissed, and the respondent is awarded costs on this appeal, of $3,500.00, all inclusive, an amount agreed to by counsel.
Bielby J.
Released: November 20, 2020
CITATION: Taurus Auto v. Zhou, 2020 ONSC 7127
COURT FILE NO.: DC-19-0094
DATE: 2020 11 20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
TAURUS AUTO COLLISION INC.
Appellant
- and -
DAOJIN HUAIQING XIE ZHOU
Respondent
REASONS FOR JUDGMENT
Bielby J.
Released: November 20, 2020