ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-099496-00
DATE: 20130617
BETWEEN:
Edward Goldentuler
Plaintiff
– and –
Mercedes-Benz Canada Inc., Francisco Pereira, Chris Cowle, Robert Buschman and Scott McEdwards
Defendants
Karl Girdhari, for the Plaintiff
Robert Ryan, for the Defendants
HEARD: February 27, 2013
REASONS FOR DECISION
EDWARDS J.:
Overview
[1] The purchase of a high end automobile usually results in the enjoyment of a well tuned, enjoyable driving experience. The plaintiff, in this case, purchased a used 2004 Mercedes SL55 (the “vehicle”) for which he undoubtedly had similar high expectations. Unfortunately, the following history might suggest otherwise.
The Facts
[2] On September 12, 2008, the plaintiff took the vehicle to the Mercedes-Benz dealership in Maple, Ontario to have a vehicle inspection conducted. At that time, the plaintiff was experiencing a noise in his brakes when he was coming to a stop. He requested that the dealership inspect his brakes. An inspection was conducted and the dealership advised the plaintiff that his brakes were safe and that he had “one season left on them”. The dealership inquired as to whether the plaintiff wanted to replace the disc/rotors at a cost of $6,000. As he had been advised that the brake disc/rotors were still safe, he opted not to change them. The plaintiff had difficulty believing that the cost he was quoted for the replacement brake disc/rotors was accurate, and therefore conducted research on the internet, which revealed that the price quoted to him was “outrageous” and high.
[3] Approximately one year after the initial inspection, on September 3, 2009, the plaintiff took the vehicle to the Mercedes-Benz dealership in Thornhill, Ontario, to again have the brakes inspected. The plaintiff was quoted $4,500 by the service advisor for the front brake disc/rotors and approximately the same price for the rear brake disc/rotors.
[4] The plaintiff again made his own inquiries with respect to the quoted prices, and ultimately determined that he was being quoted the price for carbon-ceramic brake disc/rotors. The plaintiff’s vehicle could only be fitted with regular metal brake disc/rotors, which as it turned out, were significantly less expensive. The plaintiff therefore advised the service advisor at the Mercedes-Benz dealership in Thornhill to fit the vehicle with the steel brake disc/rotors.
[5] The replacement of the steel brake disc/rotors was completed and when the plaintiff attended at the Mercedes-Benz Thornhill dealership to pick up his vehicle, he found that it was unsafe to drive, as it would shake and shudder whenever the brakes were applied. The vehicle was therefore left overnight at the Mercedes-Benz Thornhill dealership so that the problem could be repaired.
[6] Despite the subsequent overnight service, the brakes continued to make what the plaintiff described as an excessive squealing noise, and as such the vehicle was returned for a third service visit.
[7] The noise with the brakes continued. The plaintiff therefore took the vehicle to the Mercedes-Benz dealership in Maple to see if the cause of the problem could be determined. On November 9, 2009, the vehicle was inspected at the Mercedes-Benz dealership in Maple, at which time, the plaintiff was advised that the driver’s side brake disc/rotor had been “out of round” and as a result, it had been replaced. The cost of this replacement was under warranty. The initial repair job that had taken place in September 2009 was done at a price of $1,952.93.
[8] With the warranty replacement that took place on November 9, 2009, the brakes no longer made a noise and with the onset of the winter season, the plaintiff put his vehicle away in storage on December 15, 2009.
[9] On March 5, 2010, the plaintiff took his vehicle out of storage, at which time the plaintiff decided that his vehicle needed an oil change. As he was unable to obtain an appointment with any of the local Mercedes-Benz dealerships, the plaintiff took his vehicle to a local garage that did service Mercedes vehicles. On March 25, 2010, it was determined by this local garage that the driver’s side front wheel was loose. With the removal of the wheel, it was discovered that the wheel bearing was loose. With further investigation, it was determined that the brake disc/rotor was warped.
[10] The plaintiff presented evidence on the motion before this court, from the mechanic suggesting that the loosening of a wheel bearing was a method used by some unscrupulous mechanics to compensate for noise coming from a warped brake disc/rotor and that it was unsafe to drive a vehicle with a loose wheel bearing. The wheel bearing was subsequently tightened, and the plaintiff suggests in his affidavit that his brakes continued to make an excessive squealing noise when applied.
[11] The plaintiff issued a statement of claim on May 26, 2010. In his statement of claim the plaintiff seeks special damages in the amount of $1,952.93, as well as punitive, aggravated, and exemplary damages in the amount of $1,000,000. The plaintiff also asserts a claim against the various defendants based on an alleged conspiracy. Paragraph 21 through 23 of the statement of claim allege:
Edward states that the defendants intentionally conspired to avoid replacing the defective brake/rotor, and in doing so, made the vehicle unsafe.
Edward states that the defendants’ actions were motivated by spite and malice against Edward who had discovered and exposed their exorbitant pricing policy for brake rotors for this particular model vehicle.
Edward states that the actions of the defendants in risking his safety and the safety of the general road using public was so egregious and high-handed as to warrant the awarding of punitive, aggravated and exemplary damages, in an amount sufficient for these particular defendants as to discourage such behaviour in the future.
[12] The pleading of a conspiracy at paragraph 21 quoted above would appear to flow from an allegation that the defendants had conspired together with respect to an “exorbitant pricing policy for brake rotors”. No other particulars are pleaded with respect to the alleged conspiracy. There is no allegation with respect to who specifically was a party to the conspiracy. Nowhere is there any pleading as to when the alleged conspiracy took place, nor is there any specific pleading as to what the alleged conspirators had allegedly agreed to.
[13] The defendants in their statement of defence deny the existence of any conspiracy and in the affidavit evidence filed by the various defendants, an explanation is advanced with respect to the allegation that the plaintiff was intentionally quoted an excessive price to affect the repair to the brakes on his vehicle.
The Motion
[14] The motion before the court is a motion for summary judgment dismissing the plaintiff’s claim in whole or in part. The defendants take the position that there was no evidence, nor any facts pleaded that could support the allegation that any of the defendants conspired to cause injury to the plaintiff, nor any evidence nor facts pleaded that could support an allegation that any exorbitant pricing policy was uncovered that motivated any conspiracy to injure the plaintiff. It is further argued on behalf of the defendants that there is no evidence that the plaintiff has suffered any damages as a result of any alleged conspiracy to injure the plaintiff, nor any evidence nor facts pleaded that could support an allegation that any exorbitant pricing policy was uncovered that motivated any conspiracy to injure the plaintiff. In essence, the defendants take the position that the plaintiff’s claim is nothing more than bald and unsupported allegations, and as such, this is entirely the type of case where summary judgment should be granted.
[15] The plaintiff in his factum suggests that the case involves ten questions, four of which are factual and six of which are legal. Most of the legal and factual questions arise out of the actual repair of the brake disc/rotor and the allegation with respect to the loose wheel bearing. As it relates to those issues, I am satisfied having reviewed the evidentiary record in this matter, that those claims are not properly the subject matter of a summary judgment motion, and should proceed to trial. Specifically, I refer to the plaintiff’s factum at paragraph 41, and questions 1, 2, 3, 4, 5, 8, 9 and 10 are matters that should properly proceed to trial.
[16] The bulk of the legal argument that was heard by this court on the summary judgment motion focused on the question of whether or not summary judgment should be granted with respect to the question of whether or not there was a conspiracy between the co-defendants to charge an inflated amount for the brake disc/rotors and whether there was a conspiracy to loosen the wheel bearing to cover up the warped brake disc/rotor. For the reasons that follow, I am satisfied that summary judgment should be granted with respect to the claims made arising out of the alleged conspiracy set forth in paragraphs 21 through 24 of the statement of claim quoted above.
Analysis
[17] The word “conspire” has at its heart, an agreement. A conspiracy requires two or more parties to agree to do something, whether explicitly or implicitly, that is wrong or illegal. In a civil action, there are two ways in which the tort of conspiracy can be proven. The leading authority in this regard can be found in the decision of Estey J. in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452 as follows:
I. First, where the plaintiff shows that the predominant purpose of the defendants conduct is to cause injury to the plaintiff, whether the means used by the defendants are lawful or unlawful; or,
II. Second, where the plaintiff shows that conduct is directed towards the plaintiff (alone or together with others), the conduct of the defendants is unlawful and the defendants know or should know when the circumstances that injury to the plaintiff is likely to result.
[18] Regardless of which of the above situations applies, there must be actual damage suffered by the plaintiff. The plaintiff in this case would appear to be arguing that the defendants’ alleged conspiratorial conduct falls within the first type of conspiracy contemplated by Estey J. above, in that he alleges that the purpose of the defendants alleged conduct was to cause injury to him.
[19] There is no evidence in the motion record before me that the plaintiff did, in fact, suffer any damage as a result of the defendants’ alleged wrongdoing. Undoubtedly, it can be said that the plaintiff, assuming that his factual allegations are borne out with respect to the brake job, did suffer the inconvenience of having to deal with two separate dealerships concerning the repairs to his brakes. Other than that inconvenience, however, there is nothing in the record to suggest that the plaintiff paid any anything more than what the repair job contemplated, ie: approximately $2,000.
[20] There is no evidence put before the court on this motion by the plaintiff with respect to any specifics concerning the actual agreement that lies at the foundation of a conspiracy amongst the various defendants, nor is there any evidence put before this court with respect to the specifics of the agreement in terms of when it was agreed to, who was present and what was discussed.
[21] The deficiencies in the plaintiff’s plea of conspiracy were brought home to plaintiff’s counsel, by counsel for the defendant. In response to these concerns, plaintiff’s counsel wrote to defence counsel on January 19, 2012 and stated:
As for the allegations of conspiracy, Jim Kaptsis admitted that there was a problem with the Mercedes quotation program. I find it highly doubtful that Mercedes was quoting the higher price for the ceramic brakes, but charging the lower price when the steel brakes were installed. It is only a matter of time before we locate someone with the documentation to further prove the overcharging. (emphasis added)
[22] It is clear from the aforementioned extract from plaintiff’s counsel’s correspondence to defence counsel that the plaintiff would have been alert to the fact that the plaintiff would have to eventually produce “documentation to further prove the overcharging”. The defendants’ motion for summary judgment was served September 10, 2012 and heard on February 27, 2013. The defendants put before the court by way of affidavit evidence, various affidavits of the individuals involved with the servicing of the plaintiff’s vehicle, and all of these affidavits denied the existence of any conspiracy. The plaintiff did not put any further evidence before the court either by way of affidavit or otherwise to further prove the allegation of overcharging, which was the fundamental underlying fact with respect to the allegations of conspiracy set forth in paragraphs 21 through 24 above.
[23] On a motion for summary judgment, it has been said many times by various courts, perhaps most recently by our Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, (2011) (ONCA), 108 O.R. (3d) that a party is “not entitled to sit back and rely on the possibility that more favourable facts may develop at trial”. See Combined Air Mechanical Services Inc. v. Flesch at paragraph 56.
[24] The motion before this court was not a pleadings motion where it might be suggested that the plaintiff had not properly pleaded the tort of conspiracy. Nonetheless, it is worth considering what the court might have required had such a motion been brought. The requirements for a proper plea of the tort of conspiracy can be found in the Court of Appeal’s decision in Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97 where Justice Findlayson at page 104 stated:
In H.A. Imports of Canada Ltd. v. General Mills Inc. (1983), 1983 1722 (ON SC), 42 O.R. (2d) 645, 150 D.L.R. (3d) 574 (H.C.J.), O’Brien J., dealing with the civil action of conspiracy as pleaded, quoted from Bullen, Leake and Jacob’s Precedents of Pleadings, 12th ed. (London: Sweet & Maxwell, 1975), as follows at pp. 646-47:
The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.
The above is still good law.
[25] If on a pleadings motion to strike a pleading of conspiracy, the court requires a pleading that meets the requirements adopted by Findlayson J. as set forth above, it can be equally said that on a motion for summary judgment, there should be sufficient facts before the court that would underlie the aforesaid allegations. No such facts have been placed before this court by the plaintiff concerning the alleged conspiracy. It is simply not good enough to suggest, as is suggested by plaintiff’s counsel in his letter to defence counsel of January 19, 2012, quoted in paragraph [21] above, that:
It is only a matter of time before we locate someone with the documentation to further prove the overcharging.
[26] In the absence of any evidence to support the allegations with respect to conspiracy, the defendants are entitled to summary judgment dismissing that aspect of the plaintiff’s claims. The balance of the plaintiff’s claims may proceed to trial.
[27] Both parties submitted costs submissions at the completion of the motion for summary judgment. The plaintiff sought costs in the amount of $27,856 plus disbursements of $506, while the defendants sought costs in the amount of $23,369 and disbursements of $1,764.
[28] While the defendants’ motion was largely focused on the conspiracy argument, the plaintiff has had some measure of success in allowing the non-conspiracy claims to proceed to trial. In that regard, I do note however, that the claim pleaded in the statement of claim is for special damages in the amount of $1,952.93, together with the punitive damage claim. Given the dismissal of the conspiracy claim, one may question the extent to which any claim for punitive damages might be successful, and whether or not this action is not now more properly brought in the Small Claims Court. With the divided success in mind, and exercising the discretion that this court has with respect to the awarding of costs as set forth in Rule 57 and more particularly the guidance given by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291, I am fixing costs in the amount of $17,500 plus disbursements of $1,764 to be paid by the plaintiff forthwith.
Justice M.L. Edwards
Released: June 17, 2013