Le Bel v. ICBC et al Date:, 2016 BCPC 126

Citation: Le Bel v. ICBC et al Date: 20160510 2016 BCPC 0126 File No: 1424399 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PAUL A. LE BEL CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA and CARTER CHEVROLET CADILLAC BUICK GMC NORTHSHORE LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.A. DYER Appearing on his own behalf: Paul Le Bel Counsel for the Defendants: Dan Barber

Place of Hearing: North Vancouver, B.C. Dates of Hearing: April 11 and14, 2016 Date of Judgment: May 10, 2016 [1] Mr. Le Bel commenced this action on September 9, 2014 against both ICBC and on May 21, 2015 added Carter GM(“Carters”), a dealership in North Vancouver, to recover damages by reason of Carter GM allegedly performing negligent repair workinvolving the replacement of his vehicle’s rear axle or differential in January 2012. This repair work was done by reason of an ICBCclaim and was agreed to be a covered event as a result of Mr. Le Bel’s vehicle having been rear ended while parked on St.

George’sAvenue in North Vancouver on November 10, 2010. The vehicle in question is a 2000 GMC Yukon SUV which Mr. Le Bel acquiredused in about 2008 with approximately 120,000 km on the odometer. [2] Mr. Le Bel alleges that the January 2012 repair was not done properly in that Carters’ used a refurbished used rear axle (and nota new GM part) and on installation, failed to inspect it and replace all seals and gaskets. In the result it started he says to make noises asper his Notice of Claim 6-8 months after the January 2012 repair (and in his direct evidence said this started 8-10 months later).

ByAugust 2014 it had failed and need to be replaced. [3] His case against ICBC seems to be that the costs he incurred in 2015 to replace the refurbished differential Carters installed in2012 are really part and parcel of his original claim against ICBC as a result of his November 2010 rear end accident and should becovered by them in this claim. [4] ICBC does not agree with this thesis and refused to pay for the cost of a second differential in August 2014.

Carters denies thatit was in anyway negligent in the work it did at any time. [5] The claimant must prove his case against both defendants or either on the balance of probabilities and if he fails to do so, hisclaim must be dismissed. Our Supreme Court of Canada in F.H. v. McDougall 2008 SCC 53 , [2008] 3 SCR 41 said this onpoint at paragraph 49: “[I] civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.” THE FACTS: [6] Most of the facts in this case are not in dispute but not all. What really is in dispute is the reason why or cause of theclaimant’s rear differential failure in August 2014. In order to be successful against Carters, the claimant must prove that the cause ofthe failure was due to substandard work on the part of Carters’ technicians or other personnel.

The cause of the failure is a differentthing from the result of the failure which here, in my view, would include the rear differential having an unacceptable fluid level toperform its function properly in August 2014. [7] When rear ended, Mr. Le Bel’s vehicle was apparently moved ahead ten feet. He was standing outside it and saw thecollision. On November 10, 2010 the vehicle was owned according to ICBC records by Denali Auto Group Ltd., but it seems that theywere initially a lessor of it to Mr.

Le Bel and on November 26, 2009, that the lease agreement was paid in full and thereafter they had nofinancial interest in it (see Exhibit 1, March 4, 2015 letter). [8] The initial repair work was done at a cost of $3338.86, most of the damage being to the rear. In November 2010, the Yukonhad 209,593 km on the odometer. On November 26, 2010 Mr. Le Bel signed an ICBC “Certificate of Repair” where he agreed “theabove vehicle (his Yukon) appears to have been repaired satisfactorily”. [9] Mr.

Le Bel was at some pains in his testimony to point out that he did not use the Yukon to tow anything before 2010 andthereafter said he only used it minimally about four times to tow small U-Haul trailers. Mr. Le Bel owns a business which providestransportation services. [10] Mr. Le Bel testified that after the November 2010 repairs were done by Centennial Auto Body, the Yukon “pulled” and didn’tdrive the same as before the November 10, 2010 accident. He was advised by 3 mechanics that the problem might be in the rear end andto go and see Carters.

He did so he felt both in 2011 and 2010 having called ICBC who he said told him that the problems he was havingwere likely associated with the earlier motor vehicle accident and that he should go to Carters and have it repaired as part of his earlierclaim. [11] I am satisfied based on all the evidence in this case that Carters has produced all work orders and invoices. However Mr. DeSantis, the Carters shop foreman testified that if a customer’s vehicle didn’t on inspection manifest a noise that was of concern, no workorder on such an inspection would be prepared. Mr.

Le Bel said on one of his visits to Carters, the noise that was of concern to himcould not be reproduced. I doubt very much that ICBC so advised Mr. Le Bel as above. Their documents disclose that he called them onJanuary 11, 2012 advising that his differential was broken and they then authorized an inspection, not a repair. [12] In a letter dated September 9, 2014 to ICBC, Mr. Le Bel stated that “ICBC put in a used rear end in my Yukon and (sic) was toldthat it was not recommended”. It is not clear who was told this. [13] There is no evidence in this case that anyone at Carters ever told Mr.

Le Bel that a used differential was not recommended. Mr.Le Bel testified in his direct evidence at trial that there was no discussion with Carters as to the source of the part and said he assumedthey put in a new part. Mr. Le Bel gave no evidence as to why he assumed a new part would be installed. I find there was no reasonablebasis for such an assumption if he held it at all. Mr. Le Bel seemed to portray himself as having some limited knowledge about cars and

their inner workings at the material times. Such a person would know a new GM part would be more expensive than a used one. Had this been an important issue for Mr. Le Bel, I find he should have clearly raised it with Carters and obtained an estimate in 2012. I find he did not do so. I find there was no duty on the facts of this case for Carters to have raised it with him. Mr. Le Bel had no basis to assume Carters or ICBC would put a brand new

part in a 12-year old Yukon with 223,041 kms on the odometer. [ 14 ] Mr. Le Bel said the first time he learned it was not a new part was 8 to 10 months later when he apparently looked at his January 16, 2012 Carters invoice for the first time which states several times on page 1 that his differential was to be replaced with a used part. This used differential according to Mr. Jacquart called by the defence was from a 2001 vehicle and was thus sourced from a newer vehicle than Mr. Le Bel’s Yukon - a 2000 model year vehicle. [ 15 ] According to Mr. De Santis in 2012 any used

part including the differential installed in Mr. Le Bel’s Yukon was first inspected before installation. The used part obtained from Ideal Auto Wrecking at a cost of $649.60 was installed on January 16 and was found on inspection to be leaking at the “axle seal” and thus two axle seals were replaced as well as a gasket as per Carters’ Body Shop invoice dated January 17, 2012. [ 16 ] Mr. Le Bel also finds fault with Carters on the basis that in January 2012, they did not after the used differential went in instruct him as to what maintenance and inspections were required.

He seemed to suggest by implication that had they done so, the advice would have been to inspect the fluid levels in the differential regularly and that he would have done so, discovered the leak he says later occurred and rectified the problem so that he did not need a new differential in 2015 - or at least a used one. He really did not so testify. Mr. De Santis did testify as to what should have been done had proper maintenance been done by a competent mechanic on the differential after 2012. [ 17 ] I should mention that on or about January 17, 2012 when Mr.

Le Bel picked up his Yukon he would have received copies of the Carters’ invoice/work order No. GMIS 306175 showing that the cost of the rear axle assembly described as RECYCLED was $725.00 and that the total cost of the repair paid by ICBC was some $1356.64. He then again agreed that the vehicle appeared to have been repaired properly. I find that he then knew or ought to have known that no new GM differential had been installed and that had he wanted one, he would not have signed this document. [ 18 ] Mr. Le Bel said the Yukon drove OK for 8-10 months and then started to make noises.

This would have been at about mid- September to mid-November 2012. [ 19 ] He took it to a mechanic, one Jack, who felt the problem might be something he described as “his front -end” so he spent $1200.00 on this area. It was unclear on what. The noise persisted. Thus this advice did not diagnose his problem. [ 20 ] Later another mechanic he regularly used, one Paul Newsome, questioned whether the noise was due to his brakes. So he redid all his brakes - he didn’t say how or when with any exactitude, however, the noise continued and worsened.

When doing the rear brakes, Paul testified he saw evidence of oil leakage on the differential housing and told Mr. Le Bel. It is unclear when this event occurred and for how long Mr. Le Bel drove the Yukon before having this issue dealt with. Paul then said he felt the problem was in the Yukon “rear end” and suggested Mr. Le Bel go to Carters which he did he thought 13-14 months after January 12, 2012 but in fact went in on August 20, 2014. He left it there to be assessed. [ 21 ] The Yukon then had 240,000 kms on the odometer and had been driven some approximately 17,000 kms over some 31 months.

Carters inspected the vehicle and their work order states as follows: COMMENTS: BODY SHOP MADE APPT, ROBERT INVOLVED WITH CUSTOMER CUSTOMER MAYBE ADDING OTHER CUSTOMER PAY CONCERNS UNRELATED TO ICBC OR BODY REPAIRS C/V INSPECTION AS PER BODY SHOP REPLACED LEAKING REAR DIFFERENTIAL GASKET UNKNOWN WHICH SEAL OR GASKET IS LEAKING, REFILL DIFF AND DRIVE, CUSTOMER IS HEARING A SQUEALING NOISE WHEN TAKING TURNS AND THINKS ITS COMING FROM THE REAR END, IF NOISE IS RELATED TO USED REAR DIFF AND IS NOT CAUSED BY FLUID LEAK ROBERT TO GET IN TOUCH WITH ICBC FOR FUTHER AUTHO.

ICBC CC# PO34999-5 “B” BRAKE INSPECTION CHECK ALL BRAKES AND ADVISE CUSTOMER HAS A PROBLEM WITH A BRAKE JOB DONE AT ANOTHER SHOP, MAYBE RELATED TO NOISE ON JOB#1, CUSTOMER ADDS THAT PITMA ARML, AND IDLE ARM REPLACED BY OTHER SHOP. [ 22 ] Mr. Le Bel said that he had the Yukon regularly serviced in the above 31 months by either Jack or Paul, however, he did not file in evidence any invoices for such work. He said he didn’t check the oil level in the Yukon rear end and in essence that he didn’t know how to do it.

Nor did anyone testify on his behalf that any servicing done in this period as part of regular maintenance involved an inspection of the fluid level in the differential.

[ 23 ] Mr. De Santis called on behalf of Carters testified without any challenge that the regular maintenance of this Yukon vehicle should have involved this differential fluid level test every 12,500 kms or 6 months whichever came first. This would have involved by my calculation approximately four (4) such tests in the 31-month period. He said this test took one minute and involved removing a screw in the side of the differential cover and checking the fluid level and that it could be done with the vehicle up on jack stands in Mr. Le Bel’s driveway. Mr.

Le Bel gave some evidence that he had gone online and ascertained visiting some website that the differential fluid should be changed every 100,000 miles or 5 years - whichever came first. This evidence is hardly responsive to the need to check the level of fluid therein in a timely, regular way. [ 24 ] On August 22, 2014 Mr. Le Bel spoke to someone at ICBC. The ICBC file note suggests he told them that “GM told ICBC not to put in recycled parts but just OEM GM parts”. ICBC’s representative then told Mr. Le Bel that in his view - the problem was “wear and tear”.

I find that there is no admissible evidence in this case to support the above allegation. [ 25 ] It appears that Mr. Le Bel must have recovered his Yukon from Carters on August 20, 2014 but returned with it on September 2014 when an invoice or work order dated 09/09/14 was made out showing I believe a “P.O. date” 08/20/14 and an odometer reading of 260,600 kms. No witness commented on this document also disclosing total parts and labour of $115.53, of which $35.97 is said to be for three “gear lubr”.

This document also states in part after repeating all of the second paragraph of the August 20, 2014 invoice, the following: CAUSE: RE/RE THE DIFF. COVER & INSPECT THE INTERNAL GEARS. THE REAR AXLE LOCKING PIN IS DAMAGED & HAS ELONGATED THE DIFF. CASE REQUIRES REPLACING THE DIFF. ASSEMBLY. REINSTALL DIFF. COVER. CORRECTION: REAR DIFF. IS DAMAGED. ROBERT AT BODY SHOP HAS SSEN & IS LOOKING INTO IT. ROBERT CONTACTED ICBC. ICBC DECLINES RE-OPENING CLAIM. TOPPED UP WITH FLUID. CUSTOMER DECLINES ANY FURTHER REPAIRS. CUSTOMER ADVISED VEHICLE IS UNSAFE TO DRIVE . COMMENTS: BODY SHOP MADE APPT.

ROBERT INVOLVED WITH CUSTOMER. CUSTOMER MAYBE ADDING OTHER CUSTOMER PAY CONCERNS UNRELATED TO ICBC OR BODY REPAIRS TAX

SUMMARY PST 7.56 RECOMMENDATIONS ADVISED CUSTOMER VEHICLE IS NOT SAFE TO DRIVE. REAR DIFF MAY SIEZE AT ANY TIME WHILE DRIVING. CUSTOMER UNDERSTANDS AND FULLY AWARE OF POTENTIAL SAFETY CONCERN. ADVISE CUSTOMER TO HAVE VEHICLE TOWED FROM LOT. CUSTOMER DECLINES RECOMMENDATION. REQUIRES REAR DIFF. GM QTD $ 3740.44 INSTALLED. USED DIFF QTD $2800.00 INSTALLED INCLUDING TAX.

ICBC DENIES CLAIM AND WILL NOT RE-OPEN. [ 26 ] The ICBC documentation included in Exhibit 2 indicates that on August 26, 2014 an ICBC representative spoke to one Oliver at Carters who advised ICBC: THAT THE SCREW HOLDING THE LOCKING PIN BROKE OFF AND CAUSED THE LOCKING PIN TO WEAR OUT. I ASKED IF THIS WOULD HAVE BEEN CAUSED BY THE LOSS AND HE SAID NO. IT IS JUST WEAR AND TEAR . [ 27 ] Contrary to Carters’ advice, Mr.

Le Bel drove his Yukon home and said he did so because he needed a car, he drove it until mid-April 2015 when it ceased working and he had it towed home where it sat in his driveway for some 31/2 months until he was able to source a used rear axle at Action Auto Wrecking

(1984) Ltd. in Surrey which he acquired on July 13, 2015 at a cost of $600.60. This seems to have been a 2002 part according to Mr. De Santis’ evidence. The claimant also incurred towing expenses of $99.52 as well as costs of $150.00 relating to transporting the differential from Surrey to North Vancouver where it was eventually installed. [ 28 ] His total claim in this action is thus $1522.12 plus costs. [ 29 ] Mr. Le Bel really had no mechanical expertise to bring to bear in his testimony in this case. He called two witnesses in support of his claim. The first was Paul Newsome. Mr.

Newsome said he was not formally trained as a mechanic but had worked on a lot of machinery over the years. He has done repair work for some 6 years for Mr. Le Bel’s various vehicles including the Yukon and various trucks he owned or leased as part of his business. When Mr. Le Bel told him the Yukon was “pulling”, he did the brakes for him. He estimated this work was done 2-3 years ago. No date was given. Clearly this diagnosis did not fix the problem Mr. Le Bel was then

experiencing. [ 30 ] I repeat, at the time Newsome did the brakes, he saw oil leaking around the differential or evidence of same and so advised Mr. Le Bel. He refused to touch it (the differential) and told Mr. Le Bel to go to Carters who had installed it. [ 31 ] Mr. Le Bel later told him the differential was blown out. [ 32 ] Mr. Newsome testified that it was clear to him that a gasket had gone and the seepage was out of the seals area.

He saw this seepage when he did the rear brakes. [ 33 ] I understood his evidence to be that after the differential was replaced in 2015 that he saw a photo of the damaged Carters differential and based on that and the evidence of oil leakage he saw earlier, he was of the view that the damage to Mr. Le Bel’s differential was caused because it had no oil in it. The photo he saw is attached to his very brief opinion December 4, 2015 Exhibit One (1). In this letter he says he viewed the differential after it was replaced in July 2015 - not a photo of it.

This same report says: It is quite clear that the differential was defective or seals were damaged when installing. I was the one who topped it off a couple times after GM diagnosed the problem of no fluid due to leaking seal or gasket. I know GM filled it up the first time when they diagnosed the problem the first time. [ 34 ] Insofar as this purports to be an opinion as to the case of the low level of fluid in the differential, it is really guess work on his

part in my view. There is no evidence Mr. Newsome ever examined the seals on the old differential Carters installed. [ 35 ] On cross-examination, Mr. Newsome said he had not had a lot of experience with differentials and was not a rear end specialist. He agreed he had never taken the Carters differential apart to look at it. [ 36 ] He believed Mr. Le Bel was using his Yukon to tow trailers rented from U-Haul in 2015 as he had told Newsome this was a more cost effective way to move goods. He had no idea how often he did so.

While he felt the oil leaked out because a seal had been put in wrong, he agreed there were dozens of reasons why Mr. Le Bel’s differential could have blown up and in essence seemed to agree that “we would never know why this occurred”. [ 37 ] Mr. Bob Schildt testified for the complainant. His evidence really adds nothing to this case. Much of his evidence really is a repetition of what Mr. Le bel told him. This does not strengthen Mr. Le Bel’s claim in any way. His memory of things was very poor. [ 38 ] The defendants called Mr. De Santis, a 15-year employee of Carters, the last 5 as shop foreman.

Prior to working at Carters he took a 4-year auto mechanics course at BCIT and in 1997 received his red seal qualification. He worked as a general technician before joining Carters in about 2001. Since 1997 he has been doing auto mechanics. He had repaired approximately 500 rear differentials. [ 39 ] He inspected the work done on Mr. Le Bel’s Yukon in January 2012. The replacement part and various gears therein were all inspected before the used part was installed. Part of this job involved installing new left and right axle seals - the left is shown on Exhibit 2, page 54 (part #22).

This was done as they were seen to be leaking on the replacement part. He said if there was a leak, a note would be placed on the work order. No such notes were made concerning other seals leaking. The differential cover gasket (#16) was also replaced. After a test drive and when the vehicle was up on the hoist, he inspected the new seals with the wheels and rotors (#28) off to check for leaks and saw none anywhere including at the rear pinion seal (#35) which was not replaced on the used part.

This seal was not replaced as to do so could have adversely affected the functioning of the differential and it was not seen to be leaking. In other words, when the differential was inspected on the shop floor prior to installation, there were no other leaks detected other than above. [ 40 ] Mr. De Santis said a used differential cost approximately $750.00 whereas a new GM part would cost approximately $3,500.00 - considerably more. Carters installed what ICBC directed them to install. Whether the customer got a new or used part was a matter he and the ICBC claims representative resolved.

In his experience with a 12-year old vehicle, ICBC would only approve of a new differential being installed if a used one was not available. [ 41 ] He did not know where the 2012 differential came from but believed Carters only dealt with reputable suppliers of used parts. [ 42 ] Mr. De Santis was also involved in the August 2014 inspection of Mr. Le Bel’s Yukon differential. At the time, its rear wheels were not turning smoothly.

When up on the hoist and with the differential cover removed, he observed that the pinion shaft (#47) which was supposed to fit snugly in a round hole in the housing (#45) and which shaft held 2 pinion gears in place (#14) was in an oblong shaped hole and had a lot of play in it. When not snug, it allowed the pinion gears to bash back and forth on the axle gears (#2).

This would cause the rear wheels not to run smoothly and would cause a lot of noises. [ 43 ] When asked why the pinion hole would go from round to oblong in shape, he said the usual cause was aggressive driving, for example, hard acceleration from a stop or slamming on and locking brakes. This type of driving would cause the pinion shaft to rock back and forth as it was attached to gears. He had seen this issue before, probably two dozen times.

He gave as an example that it is not an uncommon condition in RCMP vehicles which tend to be driven aggressively and said they had replaced as a result of such driving quite a few I understood pinion shafts or related parts on their cars. He also said towing overweight loads could cause the pinion hole to go out of shape. [ 44 ] Carters was not instructed to replace the differential and replaced the old rear differential gasket and filled the differential casing with oil. Mr. Le Bel was told it was dangerous to drive as it was. [ 45 ] In Mr.

De Santis’ opinion, the rear differential gasket and axle seals had nothing to do with the problem Mr. Le Bel experienced that he looked into in August 2014. While he had not observed the fluid level in the differential case, he could not agree that a low fluid level would cause the pinion shaft to go oblong in shape. Gears would seize first. [ 46 ] Mr. De Santis was also of the opinion that when a Yukon was serviced, a competent mechanic would check the level of fluid in

the rear differential using his finger - a test that took about one minute and involved removing an inspection screw on the rear differential cover. [ 47 ] On cross-examination, in support of his opinion that a low level of oil in the differential had nothing to do with the pinion shaft damage, he testified that if the fluid was too low he would have seen damage to the gears (#4) on the August 2014 inspection - but saw none. He could see these gears with the differential cover removed. [ 48 ] Mr. Jacquart was called on behalf of ICBC.

Since July 2012 he has been a material damage estimator at ICBC and before that, was the body shop manager at Carters in North Vancouver. Before that he worked a further 12 years with them - mostly in the parts department. He was involved in Mr. Le Bel’s January 2012 repairs. [ 49 ] He said ICBC’s policy in 2012 was to attempt to obtain the cheapest used

part in a situation like Mr. Le Bel’s. The

part installed was from a 2001 model Yukon as the 10 th digit in the VIN was a one. Sourcing a used part was standard procedure for such a vehicle. His usual practice was to tell a customer the difference between the cost of a new and used differential and ascertain if he wanted to pay the difference for a new part. He had no reason to believe he had not followed his usual practice in 2012 when dealing with Mr. Le Bel. He would also tell the customer the warranty was the same with a new or used part.

On cross-examination he said he agreed that the customer should be given the choice to obtain a new or used differential when this part had to be replaced. Neither Mr. De Santis nor Mr. Jacquart’s evidence was seriously challenged in cross-examination by Mr. Le Bel. POSITION OF THE PARTIES The Claimant: [ 50 ] Mr. Le Bel argued that he should have been given the choice to put in a new GM part and pay the difference but did not testify that if given this choice, he would have jumped on it and paid the additional money.

This assertion on the part of the complainant is really an effort on his part after the fact to find fault with Carters and for which there is not sufficient evidence to substantiate it. [ 51 ] There is no compelling evidence that he was not given this choice by Mr. Jacquart. I find that if he was, he would not likely have leapt at the prospect of paying according to Mr. De Santis another approximately $2750.00 to acquire a new differential. Clearly in July 2015 he had this option and again elected to acquire a used differential.

There is also no evidence that had he acquired the new differential, the same problem would not have occurred if he drove the Yukon aggressively thereafter. [ 52 ] Mr. Le Bel argued that he should have been advised that the rear pinion seal (#35) was not upgraded or changed on the differential Carters installed in January 2012. Mr. De Santis said this was not replaced as no leak was detected there on inspection of the used part on the shop floor and as above, that to do so might have affected the performance of the part. The Carters invoice (01/16/12) that Mr.

De Santis testified that the claimant would have received does not state the pinion seal was replaced. The Carters body shop invoice of 01/17/12 does not refer to a pinion seal. There is thus no basis for Mr. Le Bel to assume anything other than the fact that the pinion seal was not replaced. Mr. Le Bel was not asked in his cross-examination if on January 12, 2012 he even knew what a pinion seal was. Mr. Le Bel testified that he didn’t know how to test the fluid level in his Yukon differential - a simple one minute test according to Mr. De Santis.

I have no confidence that in January 2012 he knew what a pinion seal was. Mr. Le Bel didn’t really testify about this issue. He didn’t say, for example: “Had I been told when I picked up my vehicle they did not replace the pinion seal, I would have demanded they do so”. There is no evidence that the failure of Carters to do so was actionable carelessness on its part. No person trained in auto mechanics has opined that on every differential replacement all seals on the used part whether leaking or not should always be replaced before the new

part is installed. No person has testified that if all these seals were replaced initially, that the problem Mr. Le Bel later experienced would not have occurred if he drove the Yukon aggressively thereafter. [ 53 ] Mr. Le Bel felt he was misled by Carters and thought or assumed all new gaskets, seals and gears were in the used differential. As to why he thought this - in his closing argument, he could not really answer but said he was really referring mainly to gaskets and seals. The Defendants [ 54 ] Mr. Barber argued that while it was clear that Carters owed a legal duty of care to Mr.

Le Bel in doing the differential replacement work in January 2012 and to do so to the standard of what would be expected of a reasonably prudent mechanic - there was no evidence as to what this standard was. Hence the Court could not find Carters’ conduct was below the standard or substandard to such an extent that the claimant was entitled to recover damages as a result. He argued that Carters’ work was in essence in accordance with standard practice and not substandard. [ 55 ] Mr. Barber further argued that in order to be successful in this negligence action, Mr.

Le Bel needed to show that some fault or substandard work done by Carters in January 2012 caused the problems Mr. Le Bel experienced later that led to Carters’ inspection in August 2014. There is no such evidence if I accept as he invited me to do the evidence of Mr. De Santis that aggressive driving or pulling overweight trailers likely caused the pinion shaft hole to become elongated thereby allowing fluid to leak out among other things including internal gears bashing about. He emphasized the fact that Mr.

Le Bel could drive his Yukon for over 2 years after the 2012 Carters invoice was itself evidence that they had done a proper job. [ 56 ] He argued I should prefer the evidence of Mr. De Santis to that of Paul Newsome who really gave no evidence based on any credible experience working on differentials as to the standard of care required on Carters’

part in 2012. [ 57 ] In my view, the claimant can only hope to recover against ICBC if he is successful against Carters and can demonstrate that it failed to effect a proper repair to his vehicle in 2012 and that a further repair (the one he did in July 2015) was necessary in order for ICBC to have handled his initial 2010 claim properly. Thus I intend to deal with his claim against Carters first. THE LAW

[ 58 ] As often occurs in this Court Skilnick PCJ has written two helpful decisions on point. In Panaich v. Abbotsford Truck and Trailer Repair Ltd., 2016 BCPC 34 , the claimant alleged as here that the defendant had negligently performed repairs to his truck. I can do no better than quote paragraphs 33-37 of his reasons as to the applicable legal principles in the case at bar as follows: 1. Negligence [ 33 ] The three generally accepted essential elements of claim for negligence are: (

a) A duty of care that is owed by the claimant or plaintiff to the defendant; (

b) Breach of that duty (a failure to meet the standard of care required in the circumstances) and (

c) Damage suffered by the claimant or plaintiff that flows from the defendant’s breach of the duty of care. (

a) Duty of Care [ 34 ] A duty of care arises in situations where there is a sufficient relationship between the alleged wrongdoer and the party who has been wronged such that the former would reasonably understand that carelessness on his or her part may be likely to cause damage to the latter. In a case such as this, it is reasonable for a mechanic to understand that a duty is owed to the mechanic’s customers to perform mechanical repairs to the standard of care required by law, namely to the standard of a reasonably prudent mechanic .

As the authors state in Canadian Tort Law, 7 th edition, at page 149: “Professional people, for example, cannot escape by performing merely up to the capacity of the ordinarily prudent lay person; more is expected of them and more should be demanded of them. After all, they hold themselves out as being possessed of extra skill and experience. This is why people consult them. That is why they are usually paid for their advice and service. But here too, negligence law has striven for an objective standard.

Rather than asking whether the performance was to the best of the defendant’s ability, the courts assess whether the defendant’s conduct was up to the standard of the person of average competence exercising a particular calling.” (

b) Breach of the Duty of Care [ 35 ] In meeting the standard of care, perfection is not expected . Surgeons are not expected to save every patient, lawyers are not expected to win every case and motor vehicle mechanics are not expected to guarantee that every repair they perform will result in no more problems for that vehicle. What is expected is that the professional will do their job in a reasonably prudent manner and will meet the standard of care reasonably expected of persons in their field .

The law requires a fair and reasonable standard of care and competence. [ 36 ] Every profession has its own individual standard, and therefore in cases of negligence, it is usual to present evidence of what the standard of competence which is reasonably expected in that profession is, as was done in this case. Evidence of what is habitually done in similar circumstances by persons in that field is relevant to establish what the standard of care in that field is.

In order to prove a breach of that standard of care, evidence must be provided of what the standard is and how the defendant failed to meet that standard. (

c) Damages Resulting From the Breach [ 37 ] A defendant is not liable for negligence unless the plaintiff or claimant has suffered damage which flows from the defendant’s breach. The measure of damages is that sum of money which will put the party who has been injured in the same position as he or she would have been in if he or she had not sustained the wrong for which he is now getting his compensation or reparation. (My own emphasis added) [ 59 ] In Campbell v.

Downey Transmission Service 2013 BCPC 171 , Judge Skilnick dealt with a case of a defendant having allegedly negligently repaired the claimant’s transmission and said this in paragraph 25 of his reasons: [ 25 ] In order to succeed in this claim, the Claimant must prove on a balance of probabilities that the damages to his vehicle were caused by the negligence of the Defendant. He must show that the Defendant failed to meet the standard of care required of a reasonably prudent mechanic who was repairing the transmission of a 2004 vehicle in 2011, a vehicle which had been driven for around 200,000 kilometres.

This standard does not require perfection, nor is it a guarantee against any future problems. DISCUSSION [ 60 ] No useful purpose would be served in my dealing with the unique facts of these two cases. [ 61 ] I wish to comment on the two witnesses in this case who gave what might be called expert opinions. [ 62 ] I was not very impressed with the evidence given by Mr. Newsome called by the claimant. I have no doubt that he has much varied experience in dealing with various engines and motor vehicles. He is however not a qualified ticketed journeyman auto mechanic.

He readily admitted he had not a lot of experience with differentials and was not a rear end specialist. By counter point Mr. De Santis was a fully qualified red seal auto mechanic with close to 20 years experience as such having repaired approximately 500 differentials including those on RCMP vehicles driven aggressively. I had some concern about the extent to which Mr. Le Bel had participated in the formulation of the views expressed in Court by Mr. Newsome. Mr. Newsome is not really an objective expert. He

has worked for Mr. Le Bel seemingly fairly regularly over the last 6 years and thus the prospect of possible bias creeps into my assessment of his evidence. Having said this, Mr. De Santis is also not an independent expert. He is now employed by the defendant Carters and to some extent it is the quality of his work in

part in 2012 that is challenged by Mr. Le Bel. I note that Mr. Newsome failed to diagnose Mr. Le Bel’s problem the first time in 2012 recommending he redo all his brakes. Mr. Le Bel seems to have been unhappy with this recommendation as per the above note on the Carters invoice or work order. I also have some concerns as to the basis of Mr. Newsome’s opinion. It seems to be formulated based on what Mr. Le Bel told him and his review of an undated photo of Mr. Le Bel’s Carters differential, rather than any inspection he did of the

part in issue on or after 2014 unlike Mr. De Santis who had what I would call “hands-on” experience with the

part in issue as described above both in January 2012 and August 2014. [ 63 ] I find based on all the evidence in this case that I prefer the evidence of Mr. De Santis to that of Mr. Newsome as to the cause of Mr. Le Bel’s problems. Mr. Newsome seemed to focus on the issue in this case being that there was no oil in Mr.

Le Bel’s differential in August 2014 and thence reasoning backwards said Carters must have done something wrong in January 2012 to bring about this state of affairs - a leak of oil - which caused damage to it and suggested the cause of the leak was a seal being put in the wrong way, which he had seen hundreds of times. But again he concluded his testimony in cross-examination that there were dozens of reasons why the leak occurred and that in essence we will never know the reason. [ 64 ] I find Mr.

De Santis gave his evidence in a truthful, reliable way and made a sincere effort using the diagram of a differential to explain exactly what he found in August 2014 and what Carters did in 2012 before the used part was installed. [ 65 ] On all the evidence in this case, I find that he best dealt with the real issue in it - why did oil leak from Mr. Le Bel’s differential so that his vehicle failed in August 2014? I accept that the cause of this unfortunate event was indeed wear and tear on this part most likely caused by aggressive driving and/or pulling overweight trailer loads. Insofar as Mr.

Le Bel testified he did neither, I prefer Mr. De Santis’ evidence to his. Hence the claimant has failed to prove on the balance of probabilities that the defendant Carters was negligent and responsible for the damages claimed. His action against Carters is dismissed. [ 66 ] There is no legal basis therefore to support his claim against ICBC and I find there was no breach of any insurance coverage Mr. Le Bel had with ICBC at any material time on his Yukon motor vehicle. This claim is also dismissed.

The defendants will recover all costs or expenses within Rule 20(2) of the Small Claims Rules against the claimant which are to include the costs of their court briefs and law brief. If the parties cannot agree upon the same in writing by June 10, 2016, these costs are to be settled by a Registrar of this Court pursuant to Rule 20(4) upon counsel for the defendants providing to the Registrar a written submission on same with any relevant invoices attached thereto not later than June 15, 2016.

The complainant will not be a part of this process unless the Registrar shall determine otherwise. _____________________________ The Honourable Judge B.A. Dyer Provincial Court of British Columbia