CITATION: Yan v. Riglube, 2017 ONSC 5872
COURT FILE NO.: DC-17-08
DATE: 20171003
ONTARIO
SUPERIOR COURT OF JUSTICE
(SMALL CLAIMS COURT APPEAL)
B E T W E E N:
Xin Yan
Xin Yan, in person
Appellant (Plaintiff)
- and -
Riglube
Gerard Thompson, for the Respondent
Respondent (Defendant)
HEARD: September 22, 2017
REASONS FOR JUDGMENT
[On appeal from a Decision of Deputy Judge Barycky of the Small Claims Court at Brampton delivered December 23, 2016]
PETERSEN J.
Introduction
[1] This is an appeal from a Small Claims Court decision dated December 23, 2016, in which Deputy Judge Barycky dismissed Mr. Yan’s Claim.
[2] Mr. Yan was originally represented by a paralegal named Rohit Kumar Singh, but he terminated Mr. Singh’s retainer mid-way through the trial proceedings (and subsequently complained to the Law Society about Mr. Singh’s conduct and commenced legal proceedings against Mr. Singh and Mr. Singh’s employer, Canmax Legal Consulting Inc.).
[3] In the appeal before me, Mr. Yan is self-represented. Due to his unfamiliarity with court procedures, lack of knowledge of jurisprudence, absence of legal advice, and a language barrier, his arguments are not always clear, coherent or on point. Riglube’s counsel, Mr. Thompson, acknowledges that he sometimes finds Mr. Yan’s submissions to be confusing and difficult to follow. This creates challenges for Riglube in responding to Mr. Yan’s Notice of Appeal.
[4] At the appeal hearing, however, Mr. Yan presented his oral submissions with the assistance of a certified Mandarin interpreter, which enabled me to follow his arguments. As set out below, his submissions reflected a fundamental lack of understanding about rules of evidence and court procedure, but his position did crystalize and became clear to me during the hearing. I am confident that I have captured his arguments in this decision.
[5] Mr. Yan’s grounds for appealing Deputy Judge Barycky’s decision can only be fully understood in the context of the facts that prompted him to commence his Claim, as well as the lengthy and complex procedural steps in this proceeding over the past 6 years.
Background Facts
[6] The factual trajectory of the litigation began on April 16, 2011, when Mr. Yan, a truck driver by occupation, took his tractor-trailer rig to Riglube’s facility for “full service”, including an oil change, oil and fuel filter change and lubrication. He had purchased the truck (used) a few months earlier. It had approximately 839,000 km on the odometer when he acquired it. By the date of the service by Riglube, he had driven it an additional 41,000 km (approximately).
[7] Riglube performed the work and Mr. Yan paid for the service. Mr. Yan then drove off Riglube’s premises with his truck in apparent good working order.
[8] Within a kilometre, the truck stalled. Mr. Yan contacted Riglube from the side of the road where his truck was stopped. Riglube is not a licensed diagnostic or repair facility – it merely does oil and lube changes – but on this occasion, it dispatched a technician to Mr. Yan’s location for a roadside inspection.
[9] The technician discovered an air lock in the fuel system, causing the fuel pump to lose prime. He solved the problem by opening the fuel filter canister and adding two cups of diesel fuel to top it up. He was able to get the truck started again and Mr. Yan was on his way.
[10] In the ensuing weeks, Mr. Yan’s truck experienced mechanical difficulties.
[11] The first problem occurred in Indianapolis, Indiana, when his truck lost engine power and the police forced him off the road for travelling too slowly and creating traffic havoc. He took the truck to Stoops Freightliners, a licensed facility, where tests and repairs were performed over a 5 day period.
[12] Mr. Yan suspected that Riglube had been negligent in the performance of its services and had caused the mechanical difficulties with his truck. He drove back to Canada on April 26, 2011 and went to the Riglube facility to speak to a manager. He requested reimbursement of the cost of the repairs performed in Indianapolis. He provided the manager with a copy of a service report from the Stoops facility. That report shows that the Stoops mechanic identified a problem with the canister that was housing the fuel filter in the truck (“the housing”). The Stoops report states, “The housing itself is the problem.”
[13] Mr. Yan followed up with a letter to Riglube on April 28, 2011, accusing Riglube of negligence and demanding reimbursement of his expenses. Riglube refused to compensate him, taking the position that it was not responsible for the mechanical problems with his truck.
[14] Mr. Yan’s Plaintiff’s Claim was prepared on May 6, 2011 and was issued on August 2, 2011.
[15] Mr. Yan continued to experience mechanical difficulties. He was required to have his truck serviced on August 19, 2011 in Albany, New York, on August 30, 2011 in Boucherville, Quebec, on September 15, 2011 in Pennsylvania, and on October 3, 2011 in New Jersey. The truck broke down repeatedly. The injectors failed and each was replaced in turn. A fuel pump was also replaced. Mr. Yan incurred towing charges, service charges, and expenses related to work interruptions and meals and accommodations required while the truck was not operational.
[16] Mr. Yan attributes all of these mechanical difficulties to Riglube’s alleged negligence and seeks compensation from Riglube in the amount of $25,000.
[17] Mr. Yan’s theory of the case may be summarized briefly as follows: During the oil change service, Riglube failed to re-secure a part that seals the housing, which is what caused his truck to stall in the first place (shortly after leaving Riglube’s premises). Mr. Yan recalls that it was raining heavily when the Riglube technician provided him with roadside assistance. He claims that the technician performed the repairs in “open rain”, allowed rain water to enter the fuel filter canister (i.e. the housing), which in turn allowed water to enter the fuel system and resulted in gradual degradation of his truck’s engine performance and damage to the injectors and pump.
[18] Riglube denies any and all liability for the mechanical difficulties experienced by Mr. Yan.
The Antecedent Legal Proceedings
[19] When the original Plaintiff’s Claim was issued on August 2, 2011, Mr. Yan was seeking damages in the amount of only $5,000 from Riglube (relating to expenses he incurred while his truck was being serviced by the Stoops facility in Indianapolis).
[20] Riglube filed a Defence on August 17, 2011, in which it argued that its technician could not have failed to secure the cap on the housing when he performed the oil filter change on Mr. Yan’s truck because Mr. Yan was able to drive the truck off Riglube’s premises. Riglube contended that, had the cap on the housing not been properly sealed, Mr. Yan would not have been able to start the engine, let alone drive away. Riglube further argued that the engine performance problems experienced by Mr. Yan were a sign of a faulty (leaking) fuel system, “as was proven when the truck was taken for repairs”. The Defence referenced the Stoops report, which states that the problem was a faulty housing. Riglube argued that nothing its technicians did could have caused the housing to fail or to be damaged. Riglube asserted that “water cannot cause a housing problem.”
[21] The parties attended a Settlement Conference on September 21, 2011. Mr. Yan was then represented by Mr. Singh. The Matter was not settled. Mr. Yan was advised by the presiding Deputy Judge that he should retain a certified mechanic to testify as an expert witness in support of his position that service work performed by Riglube led to the damages claimed. The Deputy Judge ordered that the matter could proceed to trial.
[22] On November 29, 2011, Mr. Yan issued an Amended Plaintiff’s Claim, seeking increased damages in the amount of $23,367.73 (based on additional expenses incurred throughout the fall of 2011 as a result of ongoing mechanical difficulties). His Amended Claim contained several documents, including section 4.8 of the 2011 Detroit Diesel Corporation’s Unit Fuel Injectors and Unit Pumps Technician’s Guide relating to Fuel Water Contamination (“the FWC Report”), which he obtained from the internet. The FWC Report states that it is essential to prevent water from entering the fuel system of a truck because unit injector, unit pump and nozzle failure can result.
[23] Mr. Yan believed that the FWC Report disproved Riglube’s assertion, in its Defence, that “water cannot cause a housing problem.” (The admissibility and probative value of the FWC Report are contested by Riglube, but it is noteworthy that, even assuming the admissibility of the FWC Report, it does not address the specific issue of whether the housing problem diagnosed by the Stoops mechanic could have been caused by water in the fuel filter canister.)
[24] Riglube filed a Defence to the Amended Claim on December 8, 2011. In it, Riglube asserted that the malfunctioning housing and the problems with the truck’s injectors were well-known and common problems resulting from defective manufacturing. Riglube asserted repeatedly and emphatically that “it was not raining at the time of [roadside] service call”, “at no time of the service call did it rain”, “no water ever got in [the fuel filter canister]”, “definitely no water from any source got in”, and there “was no report of finding water in fuel housing”.
[25] During his oral submissions at the appeal hearing, Mr. Yan argued that Riglube effectively changed its position in its December 8, 2011 Defence to his Amended Claim. He submitted that the original defence pleaded was essentially that “water cannot cause a housing problem” and that Riglube changed to a different defence of “there was no water in the housing”.
[26] I do not agree with this submission, since it was apparent in the Defence to Mr. Yan’s original Claim that Riglube was challenging Mr. Yan’s allegation that water had entered the housing. Although Riglube was less emphatic about it in the first Defence filed, it did plead (in the Defence to the original Claim) that, “if it were raining outside, the rain would not be able to reach the fuel filter canister, since it is covered.” It is clear from this pleading that Riglube was not conceding that it had been raining on the day in question, and was taking the position that no water had entered the housing. It also took the position that water could not cause a housing problem in any event. These were alternative pleadings, asserted from the outset of this proceeding.
[27] A trial date was scheduled for April 30, 2013. The parties appeared on that date, but the trial did not proceed. Mr. Yan was still represented by Mr. Singh at that time. Deputy Judge Fellman’s Endorsement shows that Mr. Singh requested an adjournment so that Mr. Yan could obtain a written report of a qualified mechanic to give expert opinion evidence. The adjournment was granted, but with costs against Mr. Yan, and the new trial date was made peremptory on Mr. Yan because he had previously been advised, at the Settlement Conference, to retain an expert witness and because Riglube was ready to proceed with the trial.
[28] In his April 30, 2013 Endorsement, Deputy Judge Fellman imposed additional conditions on the adjournment. Those conditions are central to Mr. Yan’s appeal submissions, which will be explained below. The key condition reads: “The Plaintiff shall serve and file his Expert’s Report on or before June 21, 2013.”
[29] Shortly after this court appearance, Mr. Yan terminated Mr. Singh’s retainer and began to represent himself.
[30] Mr. Yan incorrectly understood that Deputy Judge Fellman was requiring him to file an expert report. His misunderstanding is likely attributable to a combination of not having the benefit of legal advice and his limited English language fluency. Although Deputy Judge Fellman used the expression “shall serve and file”, his Endorsement, read as a whole, was clearly intended simply to create a timetable for the litigation. It imposed a deadline of June 21, 2013 on Mr. Yan to file an expert report, if Mr. Yan elected to do so. It did not require him to file an expert report.
[31] In any event, Mr. Yan believed that he had already complied with what he understood to be a mandatory directive to file an expert report. His view was that the FWC Report attached to his Amended Claim constituted an expert report with respect to the issue of whether the presence of water in the truck’s fuel system can cause damage. He communicated this position in writing to Riglube in July 2013. Riglube responded with written confirmation of its contrary position that the FWC Report (an excerpt of a Guide available on the internet) does not constitute an expert report.
[32] It appears that Mr. Yan misconstrued Riglube’s correspondence. He thought the ground was shifting based on what he perceived to be a change in Riglube’s defence strategy. He believed that his burden of proof had changed and that Riglube (and Deputy Judge Fellman) were expecting him to obtain and produce an expert report to prove conclusively that water had in fact entered the housing of his truck’s fuel filter during the roadside service back in April 2011. This incorrect belief reflects a misinterpretation of Riglube’s position, as well as a fundamental lack of understanding about rules of evidence and the standard of proof applicable to this proceeding.
[33] On July 9, 2013, Mr. Yan filed a further Amended Plaintiff’s Claim, which included the following pleading:
“On April 30, 2013 in trail (sic) in Court, the defendant lied to Judge that the plaintiff should be showed the expert report (checked truck by professional dealer now and wrote), which pointed out very clearly the Riglube done the wrong things. The Plaintiff knew after 28 month later, no expert can check what things happened in my truck and the Judge never need this proof.”
[34] This pleading was clarified by Mr. Yan’s submissions at the appeal hearing before me. Mr. Yan interpreted Deputy Judge Fellman’s April 30, 2013 Order as a requirement that he take his vehicle to be inspected by a certified mechanic so that the mechanic could produce a written report attesting to the fact that rainwater had entered the fuel system during the roadside service in April 2011. Mr. Yan views this requirement as impossible to satisfy because no mechanic who inspected his vehicle more than two years after the impugned roadside service incident would be able to determine conclusively whether there was water in the housing at the time.
[35] Mr. Yan believes that Deputy Judge Fellman’s order was wrong in law and violated his constitutional rights. He has been perseverating about this issue for over four years. It was raised (tangentially) in his proceedings against Mr. Singh and Canmax. His arguments in the appeal before me are largely focused on the alleged invalidity of the April 20, 2013 Order, even though there were multiple court proceedings thereafter, and the decision under appeal before me is that of Deputy Judge Barycky dated December 23, 2016.
[36] The remaining procedural history of this case is complicated. It is not necessary to recite it in detail. Briefly, a trial was scheduled for August 8, 2014. On that date, Deputy Judge McCabe dismissed Mr. Yan’s Claim, not based on an assessment of the merits of the Claim, but rather because Mr. Yan failed to appear in court. Deputy Judge Fellman subsequently dismissed a motion to re-open the case on August 26, 2014.
[37] Mr. Yan then appealed both Deputy Judge McCabe’s default judgment and Deputy Judge Fellman’s August 26, 2014 decision to the Divisional Court. He also asked the Divisional Court to set aside Deputy Judge Fellman’s earlier April 20, 2013 Order that he serve and file an expert report by June 21, 2013.
[38] In a decision dated October 6, 2014, Justice Lemon allowed the appeal and ordered a new trial (on the basis that Mr. Yan had not been given proper notice of the trial date). With respect to Mr. Yan’s request that he set aside Deputy Judge Fellman’s April 20, 2013 Order, Justice Lemon ruled,
In my view, that order simply provides a deadline for the production of any report for use at trial. Failure to produce a report by that time will likely result in the trial judge ruling that the report is inadmissible. Such an order, however, does not prevent the plaintiff from proceeding with the trial.
Mr. Yan confirms that he is not relying on any other reports than as provided to date. He understands that his report is disputed by Riglube. He confirms that he is ready for trial. There is no basis or need for me to set aside the April 2013 order.
[39] As I read this portion of Justice Lemon’s decision, he was confirming that Deputy Judge Fellman’s April 2013 Order did not impose a requirement on Mr. Yan to produce an expert report, but rather simply imposed a deadline in the event that Mr. Yan chose to do so. Since the deadline had passed, Justice Lemon made inquiries to ascertain whether Mr. Yan needed an extension of time in order to submit an expert report. Once Justice Lemon was satisfied that Mr. Yan understood that the FWC Report on which he intended to rely was being disputed by Riglube, and Mr. Yan confirmed that he was electing not to file any additional reports as expert evidence, Justice Lemon concluded that it was unnecessary to relieve Mr. Yan from the (expired) June 21, 2013 deadline that had been imposed by Deputy Judge Fellman.
[40] Mr. Yan understood Justice Lemon’s decision to mean that the April 20, 2013 Order (as he understood it) requiring him to produce an expert report was still in effect. As noted above, he understood the Order to require him to have his truck inspected by a mechanic for the presence of water in the fuel filter housing – a pointless exercise years after the roadside service incident.
[41] After the Divisional Court decision by Justice Lemon, a new trial was commenced before Deputy Judge McCabe, but it ended in a mistrial on August 4, 2015. The reasons for the mistrial are not particularly germane to this appeal.
[42] The case then finally ended up before Deputy Judge Barycky, whose decision is the subject of the current appeal.
Decision of Trial Judge
[43] A four day trial was conducted.
[44] In his reasons for judgement, Deputy Judge Barycky carefully reviewed the evidence and summarized the parties’ respective submissions. He found that, whether in contract or tort, Riglube owed a duty of care to Mr. Yan to perform work on his truck in a competent manner. However, he concluded that Mr. Yan had not demonstrated, on a balance of probabilities, that Riglube was negligent or that Riglube’s actions were the cause of the mechanical deficiencies in his truck (and other resulting losses flowing therefrom).
[45] On the issue of whether it was raining during the roadside assistance, Deputy Judge Barycky found deficiencies in Mr. Yan’s evidence, which consisted of a printout of weather satellite maps and an hourly data report from Toronto’s Lester B. Pearson International Airport for April 16, 2011. He described the maps as “unhelpful, unreadable and inconclusive” and noted that “there was no evidence linking the airport weather to the truck’s road location” on the date in question. He preferred and accepted the evidence of two defence witnesses, including the technician who performed the roadside assistance, both of whom testified to their clear recollection that it was not raining that day. Ultimately, Deputy Judge Barycky ruled that he was not satisfied on a balance of probabilities that it was raining at the relevant time at the truck’s location.
[46] Deputy Judge Barycky then stated that, even if he was “wrong on the water issue”, “there was not a shred of evidence proffered by the plaintiff, other than his own speculative, ungrounded and unsupported theories on the cause of injector failure in his truck.” He found that the reports submitted by Mr. Yan (including the FWC Report) were “unidentified printouts of general material garnered from the internet” that had no evidentiary value. He noted that the best evidence before him consisted of the testimony of witnesses who serviced truck, as well as the repair shop invoices and reports, with their diagnostic commentary.
[47] Deputy Judge Barycky reviewed the Stoops Report at length in his reasons. He noted that there was no indication by Stoops (or anyone servicing Mr. Yan’s truck) of water in the fuel system or water causing any damage to the truck’s engine or injectors. He concluded that “Any such suggestion is purely speculative and unfounded conjecture by the plaintiff and unsupported by the evidence.”
[48] Deputy Judge Barycky commented on the absence of any evidence regarding the truck’s condition when Mr. Yan purchased it and the truck’s maintenance and service history. He remarked that the truck had a very high odometer reading. He found that, based on the evidence before him, without evidence of the truck’s prior condition and “absent any expert evidence” to support Mr. Yan’s claims, “in all likelihood, the canister housing the fuel filter was the cause of all of the plaintiff’s claimed problems and troubles and not any work or lack thereof by the defendant”.
[49] Deputy Judge Barycky noted that, “Mr. Yan was afforded at trial the opportunity to introduce expert evidence, subject to any comments or position that the defendant might put forward and that the Court would permit, but he chose not to do so.”
[50] Deputy Judge Barycky concluded,
While I am extremely sympathetic to the plaintiff’s situation and understand the plaintiff’s suspicion about the defendant’s roadside service, for the above stated reasons, I am neither convinced on a simple balance of probabilities that the plaintiff was in fact negligent nor that the defendant was the cause of the subsequent damages claimed by the plaintiff to his truck or other resulted (sic) losses flowing therefrom.
[51] Deputy Judge Barycky dismissed Mr. Yan’s Claim and ordered him to pay Riglube’s costs fixed at $4,500.
Grounds for Appeal
[52] Mr. Yan’s appeal rests primarily on an argument that Deputy Judge Barycky erred in his reasoning when he stated,
Mr. Yan was afforded at trial the opportunity to introduce expert evidence, subject to any comments or position that the defendant might put forward and that the court would permit, but he chose not to do so.
[53] Mr. Yan submits that this was an error for two reasons: (1) The FWC Report introduced by Mr. Yan constituted an expert report on the issue of whether water presence in a fuel system can cause damage to a truck’s engine and injectors. (2) Since it would not be possible for any mechanic to inspect the truck years after the fact and thereby confirm that water had been present in the fuel filter canister in April 2011, it was impossible for Mr. Yan to comply with the April 20, 2013 Order (as he understood it) and Deputy Judge Barycky therefore ought not to have made an adverse finding against him based on his failure to produce such a report.
[54] Riglube takes the position that Deputy Judge Barycky made no errors in his decision.
Analysis and Conclusion
[55] The standard of review on appeal is correctness in regards to questions of law and palpable or overriding error on questions of fact. See Scaduto v. City of Toronto, 2015 ONSC 5214 at para.9.
[56] I am not persuaded that any error of law or palpable error of fact was committed by Deputy Judge Barycky.
[57] Deputy Judge Barycky conducted a careful review of the relevant evidence, assessed the credibility of witnesses in accordance with applicable legal principles, made findings of fact based on the best evidence before him, applied the correct standard of proof and burden of proof, and arrived at the conclusion that Mr. Yan had not met his onus.
[58] Deputy Judge Barycky dismissed Mr. Yan’s Claim because he concluded that Mr. Yan failed to prove causation between work performed by Riglube’s employees and his truck’s subsequent mechanical problems. One factor cited in support of that conclusion was Mr. Yan’s failure to call expert evidence. This was not the only factor cited by Deputy Judge Barycky in his reasons. Moreover, Deputy Judge Barycky did not make a finding that Mr. Yan had failed to comply with a mandatory Order to submit an expert report; rather he commented on the weakness of Mr. Yan’s overall evidence, and made remarks to the effect that the unrepresented plaintiff had been given a fair opportunity to call expert evidence to prove his claim, but elected not to do so.
[59] This did not constitute an error of law, nor did it result in a palpable or overriding error of fact.
[60] Mr. Yan bore the onus to prove the elements of the defendant’s negligence that he was asserting. The FWC Report that he submitted does not constitute expert opinion evidence about whether his truck’s mechanical issues were likely caused by water in the fuel system, and/or by any actions or omissions of Riglube’s employees. The author of the Report was not called to testify, was not available to be cross examined, and his or her credentials and qualifications were not before the Court. Moreover, the FWC Report is not specific to Mr. Yan’s vehicle. As noted by Deputy Judge Barycky, the information in the FWC Report constitutes generic advice in the nature of a User Manual, not expert or probative evidence that could assist the Court. Deputy Judge Barycky did not commit an error of law when he concluded that the FWC report had “no evidentiary value” and did not constitute an expert report.
[61] In his oral submissions, Mr. Yan argued that he could not possibly provide an expert report because “477 days after the incident, they ask me to open the housing to find water.” He likened this to throwing a needle into the ocean and then asking him to find it.
[62] I understand the challenge that Mr. Yan faced. Any inspection of his truck years after the fact would not be able to ascertain conclusively whether water was, in fact, present in the fuel filter canister after the roadside stop in April 2011. However, a qualified expert could have reviewed the service reports relating to the subsequent mechanical difficulties and provided an opinion as to whether water was a probable cause of the problems diagnosed by other mechanics at the time. Such expert evidence would have assisted the Court. Deputy Judge Barycky was not wrong to note its absence as a factor in his conclusion that Mr. Yan had failed to meet his burden of proof.
Conclusion
[63] There is no basis for this Court to interfere with Deputy Judge Barycky’s decision, which was made after careful weighing of the evidence in accordance with the applicable standard of proof and burden of proof.
[64] For these reasons, I conclude that the appeal should be dismissed.
[65] Mr. Yan had requested that, if his appeal were allowed, his case be sent to the Ontario Court of Appeal for a fresh hearing. This unusual remedial request reflects Mr. Yan’s ignorance about court procedures and jurisdiction. It is, however, unnecessary for me to address it since the appeal is dismissed.
[66] If the parties are unable to resolve the issue of costs, they may make brief written submissions to the Court (no more than 2 pages in length, exclusive of any costs outline). Riglube will have until October 13, 2017 to serve and file its costs submissions and Mr. Yan will have until October 27, 2017 to serve and file his responding costs submissions. There will be no reply costs submissions unless requested by me.
Petersen J.
Released: October 3, 2017
CITATION: Yan v. Riglube, 2017 ONSC 5872
COURT FILE NO.: DC-17-08
DATE: 20171003
ONTARIO
SUPERIOR COURT OF JUSTICE
(SMALL CLAIMS COURT APPEAL)
B E T W E E N:
XIN YAN
Appellant (Plaintiff)
- and –
RIGLUBE
Respondent (Defendant)
REASONS FOR JUDGMENT
PETERSEN J.
Released: October 3, 2017