Holliston v. Volkswagen Victoria, 2018 BCPC 86

Citation: Holliston v. Volkswagen Victoria 2018 BCPC 86 Date: 20180404 File No: 150322 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LINDA LOUISE HOLLISTON CLAIMANT AND: 1839928 ONTARIO LIMITED doing business as VOLKSWAGEN VICTORIA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Appearing on her own behalf: Linda Holliston Counsel for the Defendant: Paul G. Morgan Place of Hearing: Victoria , B.C. Date of Hearing: July 17, 18 and September 1, 2017 Date of Judgment: April 4, 2018 INTRODUCTION

[ 1 ] Linda Louise Holliston (the “Claimant”) seeks damages against 1839928 Ontario Limited doing business as Volkswagen Victoria (the “Defendant”) as a result of alleged damage caused to her vehicle purchased as new from the Defendant. That damage is alleged to have occurred during the course of a servicing completed by the Defendant. [ 2 ] The Claimant alleges that her vehicle sustained “hoist damage” from the improper placement of her vehicle on a hoist lift in the Defendant’s service repair facility at their Volkswagen dealership in Victoria, BC.

The Defendant is sometimes referred to in these Reasons for Judgment by its business name of “Volkswagen Victoria”. [ 3 ] The Claimant had her vehicle repaired at a body shop in Duncan, British Columbia and the expense of those repairs was for the most part paid by the Insurance Corporation of British Columbia (“ICBC”) under her vehicle insurance policy. [ 4 ] The basis of the Claimant’s present claim is to recover damages from the Defendant arising from what she alleges is the accelerated depreciation of her vehicle caused by the alleged hoist damage. [ 5 ] The Defendant denies that they are responsible for any damage to the Claimant’s vehicle, including any hoist damage.

Furthermore, the Defendant says that if they are responsible for any damage to the Claimant’s vehicle, which is denied, that the Claimant has not sustained any damages and in particular has not sustained any damages for accelerated depreciation. [ 6 ] The task of this court is to determine whether the Claimant has proven that the Defendant caused the alleged damage to the vehicle, and if so, whether the Claimant has proven what damages flow from that liability and what the measure of those damages is.

Summary of the Undisputed Circumstances and Undisputed Facts Giving Rise to the Claim Summarizing the Evidence [ 7 ] I do not intend to describe the minutiae of all of the evidence presented in this case. I have rather taken a more compressed and somewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings. This approach was recently approved by Woods P.C.J. in R. v.

Connell , 2017 BCPC 123 , at paragraphs 5 and 6 . [ 8 ] However, in drawing necessary inferences and in reaching my conclusions, I have carefully considered all of the evidence, even if I have not made specific reference to certain aspects of it. Specifics of Undisputed Circumstances and Undisputed Facts [ 9 ] There are a number of relevant circumstances and undisputed facts that have given rise to the claim.

I have summarized them below. [ 10 ] The Claimant is a resident of the Village of Lake Cowichan, British Columbia, located on Lake Cowichan, in the Cowichan Valley north of Victoria and west of Duncan, British Columbia. She commutes during the workweek to her employment with a non- profit agency in Nanaimo situated north of Duncan. She is dependent upon a reliable vehicle. [ 11 ] On March 31, 2014, she purchased a new 2014 Volkswagen Jetta Highline 1.8 T (the “Vehicle”) from Volkswagen Victoria.

The total purchase price, inclusive of taxes plus an optional extended warranty, was $34,883.15, less what she received for her trade-in, being a 2007 Subaru. Included in her purchase package was a 15,000 km free oil change and a five, once per year, free spas for full detailing of the Vehicle. [ 12 ] Accordingly, the Claimant planned to continue to have her servicing completed at the Volkswagen Victoria’s facility.

Notwithstanding the inconvenience of the required time and distance for her to travel to Victoria from the Cowichan Valley, she did so in the Vehicle on August 2, 2014, October 25, 2014 and March 18, 2015 for regular or warranty servicing or for inspection or for detailing of the Vehicle at Volkswagen Victoria. [ 13 ] The Volkswagen Victoria service facility is equipped with and uses one or more four point stationary lifting hoists upon which a motor vehicle undergoing servicing is placed.

This type of hoist device is designed such that the entire motor vehicle and its weight are raised evenly and, all at the same time, to a height which permits the technician to safely work beneath the motor vehicle. Connected to the hoist are adjustable arms upon which are situated round, flat and further adjustable hoist pads which are themselves padded. These adjustable hoist pads are to be placed in a correct location on the undercarriage of the motor vehicle that is subject to being lifted.

The Vehicle was lifted on this type of hoist (the “Dealership Hoist”) during the services that were performed at Volkswagen Victoria. [ 14 ] However, on December 24, 2014, and again on March 11, 2015 instead of driving to Volkswagen Victoria, the Claimant had a regular oil and lubrication for the Vehicle completed at Mobil 1 Lube Express in Duncan, British Columbia. [ 15 ] As further detailed in the Claimant’s evidence, on or about September 27, 2014, Michael Vandersluys, husband of the Claimant, with the Claimant’s son present, installed pre-mounted winter tires on the Vehicle in order to be in compliance with the October 1, 2014 winter tire requirements of the Ministry of Transportation and Infrastructure that were applicable to the highways on which the Claimant commuted to and from her residence in Lake Cowichan.

Mr. Vandersluys utilized the Vehicle’s car jack that came with the Vehicle to complete this task (the “Vehicle Car Jack”). I understand from the evidence and from the owner’s manual for the Vehicle that the Vehicle Car Jack is of a variety known as a “scissor jack” or a “screw jack”, which consists of a large screw device, which mechanically cranks up two arms attached to a jack claw at the top of the Vehicle Car Jack. The jack claw is designed to grip a vertical sill located on the Vehicle.

The Vehicle Car Jack is designed to lift the Vehicle by positioning the top of the Vehicle Car Jack directly below one of four jack lift points on the undercarriage of the Vehicle such that one wheel of the Vehicle will be lifted at a time to the required height to change the tire. [ 16 ] As further outlined in the Claimant’s evidence, it was on October 31, 2014 that a friend of the Claimant observed the Vehicle parked at the Claimant’s residence, saw something unusual and remarked about what appeared to her to be damage to the Vehicle. Upon

inspection by the Claimant she noted that what had been identified by the friend as damage, appeared to be identical indentations on the running boards (being sometimes referred to in the evidence as the “rocker panels”) on each side of the Vehicle. The Claimant was not overly concerned that what she observed on the Vehicle was in fact damage to the Vehicle. Her lack of concern was mainly because of the observed symmetry of the indentations on each side of the Vehicle. She concluded that it was part of the design of the Vehicle.

She did not contact or make inquiries to the Defendant at that time. [ 17 ] At the time that the Vehicle was brought in for detailing some months later on March 18, 2015 at Volkswagen Victoria, the Claimant sought information and advice from the Volkswagen Victoria’s Service Representative, Michelle Passmore, as to whether the Vehicle had been damaged or whether or not what was being observed was simply the body design of the Vehicle. Ms. Passmore did not know. That resulted in Michelle Passmore making further inquiries; the results of those inquiries were reported by Ms.

Passmore to the Claimant later that day. [ 18 ] In essence, the conclusion reported to the Claimant by Ms. Passmore was to the effect that what was being observed was not the body design of the Vehicle but rather that the Vehicle had suffered fairly extensive body damage symmetrically on each side of the Vehicle. [ 19 ] Thereafter discussions ensued between the Claimant and the Defendant as to the Defendant’s responsibility for that damage.

That issue was ultimately not resolved between the Claimant and the Defendant, notwithstanding in-person meetings and an extensive amount of email communication between the Claimant and various representatives of the Defendant. Those discussions and email communications continued until around May 8, 2015. [ 20 ] During late March 2015, the Claimant obtained two estimates for necessary auto body repair work to repair the damage. The Claimant says that was done at the request of Michelle Passmore. The Claimant then proceeded to have repair work completed by GT Craftsmen Collision.

The cost of the repairs for the Vehicle was paid for under the Claimant’s ICBC policy. The Vehicle repair work was completed on or about May 1, 2015. The Claimant paid an insurance deductible portion of $300. [ 21 ] On June 5, 2015, the Claimant filed the Notice of Claim initiating her action against the Defendant, served the Defendant and obtained a default order on September 9, 2015 as a result of the Defendant not filing a Reply. On November 13, 2015 an order was granted setting aside the default order and directing the matter to a settlement conference.

On December 3, 2015 a further order was made requiring the Defendant to file its reply within 14 days. A somewhat cryptic hand written Reply, containing a bare denial, which was apparently prepared by the Defendant’s Fixed Operations Manager, Daniel Hewitt, was filed on December 11, 2015. [ 22 ] In preparation for this trial, the Defendant arranged for an expert’s report to be prepared by Bernard Gooding, a principle of Prancing Horse Auto Body (the “Gooding Report”). The Gooding Report is undated but from other documentary evidence and Mr.

Gooding’s oral evidence, it was prepared sometime after January 26, 2017, being the date that Mr. Gooding received photographs of the damage on the Vehicle from the Defendant. In order to complete the Gooding Report, Mr. Gooding examined those photographs of the Vehicle which depicted the damage to the rocker panels of the Vehicle. He also examined a similar 2014 Volkswagen Jetta (the “Similar Vehicle”) which the Defendant “hoisted incorrectly” on the Dealership Hoist “for the sole purpose of comparing the damage incurred as a result”. Mr.

Gooding then compared that hoist damage on the Similar Vehicle to the damage on the Vehicle. [ 23 ] The matter came on for trial before me and was heard on July 17 and 18, 2017 and again on September 1, 2017. Judgment has been reserved to this date.

Summary of Evidence of the Claimant’s Witnesses [ 24 ] The Claimant called a total of four witnesses, namely: 1. Linda Holliston, being the Claimant; 2. Michael Vandersluys, being the spouse of the Claimant; 3. Thomas Cino, who was called by the Claimant as an expert in accelerated depreciation; and 4. Jamie Bowen, an estimator employed by ICBC.

Linda Holliston’s Evidence [ 25 ] The Claimant testified that she has been the only driver of the Vehicle since she acquired it and that it was never in a collision while she was driving the Vehicle. [ 26 ] She testified that nothing eventful occurred on the day her husband, Michael Vandersluys changed the tires on the Vehicle outside their residence in Lake Cowichan prior to the Vehicle being taken to Volkswagen Victoria on October 25, 2014. [ 27 ] The Claimant was primarily inside the family residence when that tire changing work was undertaken by her husband but when outside, she was within 10 feet of the Vehicle.

She said in cross-examination that she did not hear any crushing noise as her husband was jacking up the Vehicle with the Vehicle Car Jack, going on to say that if that had occurred “we would have gone to ICBC and owned up” to it. [ 28 ] Her husband was being assisted on a limited basis by her son who was described as having three year’s experience as a “tire man” and who worked for a well-known chain of tire dealers before becoming a heavy duty mechanic.

She described her son as “not being engaged” with the tire changing performed by her husband. [ 29 ] The Claimant says that the October 25, 2014 appointment had been made with Volkswagen Victoria for some warranty work on a seat, and further, to have an oil and lubrication service.

[ 30 ] The scheduled appointment was for a total of five hours. She arrived at 8:00 a.m. and left the Vehicle at Volkswagen Victoria. She arrived back at 1:30 p.m. only to be told by Ms. Passmore that there was an unspecified problem and an additional couple of hours would be required to complete the work. When she returned at 3:30 p.m. the Vehicle was not ready for pick up. She and her husband observed that the Vehicle was still on the Dealership Hoist. They paid for the servicing and then continued to wait.

Around 4:50 p.m., while standing at the front of the Volkswagen Victoria dealership, they heard a revving engine and then observed the Vehicle being driven from the back of the dealership property along the driveway past the service bays heading towards Douglas Street which fronts the dealership. They had to motion the driver to stop. The brakes were slammed on and the Vehicle came to an abrupt stop. The Claimant took possession of the Vehicle from the Defendant’s employee but did not conduct an inspection of it prior to departing nor did the Claimant observe any damage to the Vehicle.

No mention was ever made to the Claimant by representatives of Volkswagen Victoria about the cause of the delay or what problems had been encountered. At that time she presumed it related to the seat. [ 31 ] On October 31, 2014, Halloween Eve, Amber Hall, a family friend was visiting the Claimant’s residence and made a remark to the effect that it appeared that the Vehicle, at that time parked near the Claimant’s residence, had been hit and body damage was observable.

That damage was identified as being near the lower rear panel in front of the rear wheel well, and in identical locations on each side of the Vehicle. It was further characterized as slight indentations in the vicinity of the running boards on the Vehicle. The Claimant did not observe any flaking or chipping of the Vehicle’s paint in the areas of concern identified to her by Ms. Hall. [ 32 ] The Claimant thereafter spoke to her spouse Michael Vandersluys about these indentations and asked him whether anything had gone wrong to cause the indentations while he was changing the tires.

The Claimant testified that he told her that nothing had occurred, and then he took out the Vehicle Car Jack, showed her a sticker on it and also told her that indentations were the guides to where the Vehicle Car Jack was to be placed on the Vehicle for lifting the Vehicle. In other words, he told her the indentations were part of the body design.

In cross-examination, the Claimant confirmed that she now understands that this was incorrect and that this was not part of the body design but in fact damage to the Vehicle and now, in her view, it was hoist damage. [ 33 ] As noted above, at that time the Claimant was not overly concerned that it was damage and was more accepting that it was simply the design of the Vehicle. She decided to raise the question with Volkswagen Victoria when the Vehicle was next taken to the dealership for detailing. After Ms.

Hall’s comments, at least two co-workers of the Claimant also commented on what they thought appeared to be an oddity in the appearance of the Vehicle. [ 34 ] The Claimant raised the question with Ms. Passmore on March 18, 2015 during the Vehicle’s appointment intake pre- inspection. Ms. Passmore conceded she was unsure whether or not it was part of the design of the Vehicle. She indicated that she would follow-up to receive advice and then advise the Claimant later in the day. The Claimant says that she was subsequently informed by Ms.

Passmore, around 5:00 p.m. that day, that based upon the information obtained by Ms. Passmore, the indentations were not part of the body design, and the Vehicle had therefore been involved in an accident and what was being observed was in fact damage to the Vehicle. [ 35 ] The Claimant says that she continued her discussions with Ms. Passmore about the damage. She said at that point they were joined by a senior salesman, identified in her evidence as “Brent”, who expressed the opinion that what was being observed was “hoist damage”.

He also made a comment to the effect that the Complaint could not prove that Volkswagen Victoria was responsible for the damage. In response to a question from Brent, the Claimant confirmed that her husband had been responsible for putting on the Vehicle’s pre mounted snow tires. Those snow tire rims had been purchased from Volkswagen Victoria. [ 36 ] The Claimant then observed that Ms. Passmore, together with Brent and a third then unidentified representative of Victoria Volkswagen, caucused together and were engaged in discussions out of her earshot for over an hour. [ 37 ] The Claimant says that Ms.

Passmore then re-joined her and told her that the damage was serious, a safety concern and needed to be repaired immediately. She was told by Ms. Passmore to get two body shop quotes and then provide them to Victoria Volkswagen on the understanding that if the Defendant had done any damage to the Vehicle that they would make good on it. The Claimant conceded that Ms. Passmore did not admit that Victoria Volkswagen was responsible for the damage to the Vehicle. Ms.

Passmore further indicated that Victoria Volkswagen would also be getting body shop quotes. [ 38 ] On March 24, 2015, the Claimant was able to obtain a body shop quote for the required repairs of approximately $4,000 from Isherwood Body and Fender in Duncan. She also intended on getting a quote from GT Collision, also in Duncan, but had not yet had the opportunity to do so. The Claimant says that she called Ms. Passmore to provide her with the update on the damage repair quotes. The Claimant said Ms. Passmore seemed dismissive of the Claimant and her concerns about the damage estimates.

Thereafter, the Claimant was able to attend at GT Collision which provided her with a verbal damage repair estimate of some $4,000 to repair the damage. GT Collision indicated that they would send their formal estimate to ICBC. On March 26, 2015, the Claimant met with Jamie Bowen, an ICBC estimator, who both inspected and photographed the Vehicle and the damage to it. Arrangements were made by ICBC to have the repair work done by GT Collision and an appointment was made for April 6, 2015. [ 39 ] In the meantime, the Claimant attempted to contact Ms.

Passmore and provide her with the updates to the quotes and about her discussions with ICBC. Voice messages left for Ms. Passmore remained unanswered. [ 40 ] The Claimant delivered the Vehicle to GT collision on April 6, 2015. The Claimant understood that the damage repairs would take approximately 10 days. During the second week after the delivery the Claimant learned from GT Collision that the Vehicle’s damage was more serious than had originally been estimated, arising from the discovery of additional frame damage.

Accordingly there would be additional expense and time required in order to complete the repairs. All of this had been approved by ICBC. [ 41 ] The Claimant eventually received her repaired Vehicle back on May 1, 2015 after being in the GT Collision shop for some 21 days. The final bill for the repair work was $5,689.25. The Claimant paid a $300 deductible amount and the balance was paid from her ICBC insurance coverage. Some follow up warranty work performed by GT Collision over an additional three day period was required.

She had a courtesy car throughout the period that the Vehicle was being repaired. [ 42 ] The various discussions that the Claimant had with representatives of the two body shops and the ICBC estimator confirmed, in her mind, that the repairs to her Vehicle were necessitated as a result of sustained hoist damage. In the Claimant’s view, that could only

have occurred while the Vehicle had been hoisted at Volkswagen Victoria and nowhere else, and further, that the hoist damage must have occurred when the Vehicle was being serviced and repaired at Volkswagen Victoria on October 25, 2014. [ 43 ] The Claimant did not tender any evidence from the representatives of the various body shops with whom she spoke about the nature or the cause of the observed damage to the Vehicle.

She said there was a reluctance by both representatives to become involved. [ 44 ] The Claimant testified that Mobil 1 Lube Express in Duncan, being the only other service facility that she used for the Vehicle, did not have and did not use a hoist system to complete the oil and lubrication services. Rather they utilize a below grade “grease pit” system which allows the technician servicing the Vehicle to stand beneath the Vehicle and for the Vehicle to be serviced at ground level rather than hoisted.

She further testified that she personally drove the Vehicle into the service area over the grease pit and sat in the Vehicle during the relatively brief periods that the Vehicle was being serviced at Mobil 1 Lube Express. [ 45 ] The Claimant denies that the Vehicle was ever placed onto a hoist, except at the Defendant’s location.

All of this was made known to the Defendant in the course of her numerous communications with them. [ 46 ] Prior to any repair work being started on the Vehicle and having received no communication from Volkswagen Victoria on April 10, 2015, the Claimant sent a detailed formal complaint to Volkswagen Canada about what she considered to be a very unsatisfactory experience with Volkswagen Victoria. That resulted in an immediate email response from Daniel Hewitt, then Fixed Operations Manager of Volkswagen Victoria, suggesting a meeting.

His duties included overseeing the dealership’s service department. [ 47 ] After some scheduling delays, a meeting was set and proceeded on April 17, 2015. The Claimant and her parents attended on time and were kept waiting for an hour by Mr. Hewitt. The Claimant testified that Mr. Hewitt was poorly prepared, presented inaccurate factual information and apparently gleaned from his discussions with Ms. Passmore about the arrangements made after the damage was discovered and what steps she had taken in accordance with those discussions. Mr. Hewitt refused to have Ms.

Passmore join the meeting as requested by the Claimant. He stated that he was “independent” and was seeking to gather required information. He denied that he had knowledge about the damage to the Vehicle. However, in the course of the meeting, Mr. Hewitt confirmed that he was the third individual caucusing with Ms. Passmore and the unidentified salesman, known only as “Brent”, which occurred following Ms. Passmore’s confirmation of the existence of damage to the Vehicle on the evening of March 18, 2015. [ 48 ] According to the Complainant’s evidence, Mr.

Hewitt was noncommittal about any responsibility of Volkswagen Victoria for the damage. He dismissed the Claimant’s father’s suggestion that the Vehicle be replaced with another car by Volkswagen Victoria. Mr. Hewitt concluded by indicating that he would contact GT Collision in order to obtain further information from them about the damage and the necessary repair work. He indicated that he would then present all of the information to the General Manager of Volkswagen Victoria and get “right back” to her. [ 49 ] The Claimant concedes that Mr.

Hewitt, on behalf of the Defendant, did not assume responsibility for the damages to the Vehicle or for any necessary repairs but did indicate to the Claimant that that the Defendant did have a “garage policy to take care of this sort of thing”, which I take to mean repairing any damage that Volkswagen Victoria may have caused and for which it was responsible. [ 50 ] With the assistance of her family who attended the meeting, the Claimant kept and produced what she said were accurate minutes of the meeting with Mr. Hewitt. The minutes were typed up and were entered into evidence.

In those minutes she records that she told Mr. Hewitt that she had “never known the [Vehicle] to look any other way” and that “the indentations were so subtle” that even Ms. Passmore did not recognize the rocker panels to be damaged. [ 51 ] The Claimant heard nothing from Mr. Hewitt by April 21, 2015 and then contacted him by email. In the course of the email exchanges she asked for the matter to be turned over to the General Manager, who was Peter Trzewik, such that she could deal with him directly. Therefore she requested his contact particulars. [ 52 ] Thereafter, the Claimant and Mr.

Trzewik commenced an ongoing email exchange from April 30 to May 8, 2015, which failed to resolve the Claimant’s concerns, or for that matter, convince Mr. Trzewik that Volkswagen Victoria should assume responsibility. [ 53 ] In Mr. Trzewik’s email of May 1, 2015 to the Claimant, he described the various steps taken and inspections made by Volkswagen Victoria from the arrival of a new motor vehicle on their lot, its delivery to their customer, and then during ongoing servicing of that motor vehicle. He described the high quality of machinery and technicians used to perform the work.

He made particular mention that Volkswagen Victoria would assume responsibility if every single servicing on the Vehicle had been performed by them but noted that such was not the case, being a reference to servicing by Mobil 1 Lube Express. In a subsequent May 1, 2014 email, he made specific mention to the Claimant’s husband changing the Vehicle’s tires. Mr.

Trzewik indicated that he understood that ICBC was in the process of “investigating” this issue and it was his intention to follow up with them and “if they can say it was our fault, I will be touch”. [ 54 ] By May 8, 2015, the email exchanges confirmed that parties had reached a total impasse. The Notice of Claim was filed on June 5, 2015. Michael Vandersluys’ Evidence [ 55 ] The Claimant’s husband, Michael Vandersluys, has worked in the logging industry since 1981. His present employment consists of running heavy equipment, generally in remote locations.

Accordingly, he says that although he did not have any formal mechanical training, he has practical experience necessary in order to start and maintain heavy duty equipment in remote locations. [ 56 ] He recalled installing the mounted winter tires on the Vehicle and testified that that it occurred prior to the October 1, 2014 deadline requiring the use of snow tires, which deadline is set by the Ministry of Transportation and Infrastructure. He testified that on that day he installed the pre-mounted snow tires on both the Vehicle, as well as his daughter’s car.

From start to finish the two motor vehicles each required an hour to complete. He testified that although his son was around, he did not help. He described it as an “uneventful day”.

[ 57 ] Immediately before he started the jacking up of the Vehicle in order to mount the snow tires on the Vehicle, he consulted with the Vehicle owner’s manual kept in the glove compartment of the Vehicle. He also retrieved and used the Vehicle Car Jack which came with the Vehicle and which was stored in its trunk.

He has a floor jack at home but he denies that he used that floor jack to complete the tire changes. [ 58 ] He testified that the owner’s manual for the Vehicle contained diagrams that showed the location of the jacking points to be used for the proper placement of the Vehicle’s Car Jack on the body frame of the Vehicle.

He testified that he looked for, observed the jack points under the Vehicle’s frame and then used those jacking points in order to jack up the Vehicle and thereafter completed the tire changes on each side of the Vehicle. [ 59 ] He stated that he did not observe any damage to the Vehicle when he completed the first snow tire change in September 2014. I understand that those were the same observations both before and after he completed that task. [ 60 ] Mr. Vandersluys further testified that he never heard any crunching noise from the Vehicle while jacking it up on that occasion.

In fact he says that he also changed the Vehicle’s tires in 2016. He says he used the same jacking points on each occasion and the same Vehicle Car Jack. He further testified that no damage was caused to the Vehicle on either occasion. On cross-examination he says that he did not notice any indentations on the running board areas of the Vehicle when he did the tire change in September 2014. [ 61 ] He testified that he first became aware of the existence of any damage when Amber Hall made her observations and presented them to the Claimant and to him on Halloween Eve of 2014.

He also testified that he thought what was being observed by Ms. Hall was part of the body design of the Vehicle. He did not think that the Vehicle looked out of the ordinary. I presume that was based upon his ongoing observations he made of the Vehicle after it had been acquired by the Claimant. He said that he only really became aware of the damage when it was pointed out to him by the body shops and by the representative of ICBC. Jamie Bowen’s Evidence [ 62 ] Jamie Bowen was called as a witness by the Claimant.

However, the Claimant or her former solicitor in this matter did not comply with Rule 10(3) of the Small Claims Rules and failed to serve the Defendant with a

summary of an expert’s evidence in order to have Mr. Bowen called and qualified as an expert witness. Thus the Defendant objected to Mr. Bowen being tendered as an expert witness because it did not have the

summary in order to prepare for cross examination. The court did not exercise its discretion under Rule 10(3)(

b) to permit Mr. Bowen to be called and qualified as an expert witness. However, he was permitted to testify but not as an expert. [ 63 ] Mr. Bowen is presently an estimator with 12 years employment experience in that role with ICBC. In that capacity he assesses damage on motor vehicles in order to determine whether or not they are repairable and also to determine whether or not the cost of repairs exceeds the value of the motor vehicle. [ 64 ] Prior to joining ICBC, he worked for 21 years as a body man in three different body shops on Vancouver Island, including his own shop.

Accordingly, he does have considerable experience in motor vehicle damage and repairs. [ 65 ] Mr. Bowen was responsible for initially assessing the body damage to the Vehicle on behalf of ICBC on March 25, 2015 and for personally inspecting and for photographing the Vehicle. [ 66 ] He testified that he observed a total of four fairly large dimple like dents on the Vehicle’s rocker panels, being the area below the doors of the Vehicle. There were two dents on each rocker panel which were in the same locations on both sides and similar in appearance on both sides of the Vehicle.

Those dents were evenly spaced apart on each side. [ 67 ] I understand that in addition to the dimple dents on the rocker panels, Mr. Bowen observed ripple dents on the “dog leg portion” of each rocker panel, being the area extending above the rocker panel behind and adjacent to the rear doors such that the ripple dents extended part way into the rear doors, and again on each side of the Vehicle. [ 68 ] Besides making his own observations about the Vehicle, photographing it and reviewing those photographs, Mr. Bowen had the opportunity to review the photographs taken in the GT Collision body shop.

I understand that those photographs were taken in aid of GT Collision obtaining a supplemental authorization from ICBC for additional work as a result of the discovery of more damage than originally estimated. [ 69 ] Initially when he first saw the Vehicle he was uncertain about the cause of this damage. He said that he spoke to the Claimant. Thus based on all of his personal observations and the information obtained and presented to him, including information received from the Claimant, Mr.

Bowen stated his view was that the damage was consistent with damage caused by an industrial jacking system such as a heavy duty jack used in a body shop or caused by a motor vehicle hoist system. As I understand Mr. Bowen’s evidence, he did not think that lifting the Vehicle with the Vehicle Car Jack would be sufficient to cause the observable damage to the Vehicle. [ 70 ] Mr.

Bowen explained that to cause the observed dent damage in identical locations, that is the front and back and on both the left and right sides of the Vehicle, the jacking or lifting system would have to raise the four corners of the Vehicle up at the same time with equal pressure and with lifting points equally distant or symmetrically distant on each rocker panel located on each side of the Vehicle. [ 71 ] Mr. Bowen confirmed that the Vehicle had what is described as a unibody construction. He is familiar with this type of Volkswagen motor vehicle.

He stated that the four jacking points on this type of motor vehicle are located on what he described as the four “torque boxes”, which is a body shop term, meaning the four points on a motor vehicle where it is acceptable to jack up that vehicle. [ 72 ] The torque boxes on the Vehicle were identified by Mr. Bowen in the following manner: at the front of the Vehicle just behind the fenders and “more inboard” towards the centre of the Vehicle and the rear torque boxes are in similar locations at the rear of the

Vehicle. In other words the torque boxes are more under the Vehicle than the rocker panels. [ 73 ] He said that the damage evident on the Vehicle was in the general area of the torque boxes. He indicated that there is no place on the rocker panel in order to place the Vehicle Car Jack and to then jack up the Vehicle. Therefore a jack should never be placed on the rocker panel for the purpose of lifting the Vehicle. Mr.

Bowen stated that it is possible to improperly get the Vehicle Car Jack onto the rocker panel but since there is nothing to affix the head of the jack to it, the jack could slip out and, also, it could damage the Vehicle.

He stated that for those reasons it is a bad place to jack up the Vehicle. [ 74 ] He also stated that he has observed damage on motor vehicles where individuals report that they had attempted to jack up their motor vehicle using the rocker panel and that such damage is consistent with the damage that he observed on the Vehicle. [ 75 ] He testified that similar damage could result by improperly lifting a motor vehicle on a hoist with a lift pad improperly placed upon the rocker panel.

A motor vehicle will not slip off while it is on a hoist even if the pad is on the rocker panel because it would be held in position by the pad on the opposite side. This is unlike the situation where a motor vehicle is on a jack being improperly lifted on the rocker panel. [ 76 ] Mr.

Bowen further said that damage similar to what he observed on the Vehicle in identical locations was consistent with damage from improperly lifting a motor vehicle with a single jack placed on the rocker panel at the four locations and also with an improper single lift of a vehicle on a hoist with the hoist pads improperly placed on the rocker panels. [ 77 ] Mr. Bowen was asked to view a photograph taken of the Vehicle which showed paint chipping on the rocker panel and the door above it.

He further stated the paint chipping on the top of the Vehicle’s rocker panel and the paint chipping on the door, directly above the chipping on the rocker panel, was a result of the “flexing” of the Vehicle that occurred at that rocker panel location and when, during the course of flexing, the rocker panel went up and touched the door.

He stated that this was consistent with flexing damage resulting from the Vehicle being improperly lifted either on a single jack or on a hoist. [ 78 ] Based upon his knowledge of the Vehicle as an ICBC estimator and based upon a review of the ICBC records relating to the repair of the Vehicle’s damage, Mr. Bowen said that to complete the necessary repairs to the damage to the unibody of the Vehicle, GT Collision was required to expend 14 hours of work for each side of the Vehicle. [ 79 ] He indicated that the damage to the Vehicle was not “life threatening” in nature, even though there was a structural issue.

Rather, it produced some cosmetic concerns, particularly in connection with the loss of the manufacturers rust inhibitors on the damaged rocker panels. Hence there is a loss of the manufacturer’s warranty relating to the rust inhibitors which is important because of the exposure of the repaired rocker panel areas to Vancouver Island weather. While GT Collision provides a “life time warranty” for the benefit of the Complainant, that body shop warranty is not transferable to any person who purchases the Vehicle from the Complainant.

Thomas Cino’s Evidence Qualification as an Expert [ 80 ] Thomas Cino was called as an expert by the Claimant. Mr. Cino authored a report through his business known as TC Consultants, dated July 11, 2017 (the “Cino Report”) upon which the Claimant sought to rely as an expert report. Furthermore, the Claimant sought to have Mr. Cino’s evidence accepted as expert evidence, all as contemplated by Rule 10(3) of the Small Claims Rules . In the Cino Report, Mr.

Cino stated his recognition of his duty to assist the court and that he was aware that he was not to be an advocate for either party and further acknowledged that the Cino Report was made in conformity with that duty and, if he was called upon to give oral or written testimony, it would be in accordance with that duty. [ 81 ] Based upon his experience gained in a number of related fields, and specifically for periods from 1971 up to 1995, experience in new and used car sales and car appraisals; experience as a Total Loss Expediter for ICBC from1980 to 1984; as an ICBC contractor from 2002 to 2009; and as late as 2012, tasked with inspection, appraisal and settling of motor vehicle total loss claims, Mr.

Cino has been accepted and has given expert evidence in the British Columbia Supreme Court and Provincial Court regarding used motor vehicle valuations, including diminished value and accelerated depreciation. [ 82 ] Based on all of the above and having made its own inquiries this court accepted that Mr. Cino was an expert and allowed him to provide expert evidence in motor vehicle valuations and appraisals and specifically in determining diminished value and accelerated depreciation. [ 83 ] As a Total Loss Expediter, Mr. Cino has experience as an estimator with ICBC.

He dealt extensively with body shops to determine whether the cost of repairs would exceed the value of a motor vehicle. He testified that included within his expertise, that was accepted by this court, is his experience and his expertise in the determination of the cost of motor vehicle repairs and the determination of “diminished value by insurance” of a damaged and repaired motor vehicle, which flows from the quality of body shop repairs and the quality of the parts utilized in those repairs. Mr. Cino does not have expertise as a qualified body man nor as a technician.

I understand from his evidence that he had work experience as a body shop estimator back in 1995. Evidence About Damage to the Vehicle [ 84 ] Mr. Cino never viewed the Vehicle in its damaged state. He did personally inspect the Vehicle after the repairs had been completed by GT Collison. He also had an opportunity to view photographs taken both at ICBC and GT Collision prior to the completion of any repairs. He also looked at a number of photographs that formed part of the Gooding Report. [ 85 ] Mr. Cino had reviewed the Gooding Report obtained by the Defendant. Mr. Cino expressed concerns about Mr.

Gooding being asked to prepare a report that was placed before the court as an expert’s report. The first concern was based upon Mr. Cino’s understanding and knowledge from years of involvement in the Victoria body shop industry and, as subsequently confirmed, from his various inquiries he made by and from information obtained from third parties, including the receptionist at Volkswagen Victoria. That

information caused him to conclude that Mr. Gooding’s body shop company did substantially all of the body work generated by Volkswagen Victoria. Accordingly it was suggested by Mr. Cino in his testimony that “it was not fair to Mr. Gooding” for the Defendant to ask him to prepare the Gooding Report saying he could not be independent in reaching his conclusions contained in the Gooding Report because of his financial connection with the Defendant. The second concern was about the accident recreation staged by the Defendant, noting that Mr. Gooding was not present at the recreation.

Mr Cino then stated in his testimony that it was not possible to recreate the accident when nobody at Volkswagen Victoria knew what had occurred. [ 86 ] Mr.

Cino was asked by the Claimant whether he agreed or disagreed with the statements made in the Gooding Report to the effect that the damage to the Vehicle as depicted in the photographs was not consistent with the incorrect usage of a standard floor jack or the lifting pads that are typically found on a two point and four point stationary lifting hoists, like the Dealership Hoist. [ 87 ] He was also asked whether he agreed or disagreed with the further statement in the Gooding Report that the damage to the Vehicle as depicted in photographs “is consistent with a much smaller jacking device which has been used incorrectly to lift” the Vehicle. [ 88 ] Mr.

Cino’s response to these questions was to the effect that the only thing he could state as a fact was that in 41 years of dealing with automobiles and damaged automobiles, he had never seen a motor vehicle, including a unibody or the older body-on-frame construction, damaged by a jack to the extent that the Claimant’s Vehicle was damaged. Later in his evidence, he qualified his answer by saying that if the proper jacking points on a motor vehicle are used, there will not be any damage.

He went onto say further that, in his opinion, one cannot exert enough force to a unibody construction to cause the observable damage from the use of a single car jack (I presume that to be the improper use of such a jack). [ 89 ] Mr. Cino was also asked about the following statement contained in the Gooding Report and whether he agreed: The hoist used at Volkswagen Victoria is a 4 point system which raises the weight of the vehicle evenly on all 4 lifting pads.

The hoist pads, even if place incorrectly on a particular vehicle, will not produce the same type of damage that was incurred on the [Vehicle] as the hoist pads are round and padded. [ 90 ] In response, he testified that as a sales manager of a dealership, over the years there were cases at his dealerships when motor vehicles were damaged by the improper placement of a four point hoist.

He did not speak about the type of damage that was done to the other motor vehicles that he had observed or knew about by the improper placement on the hoist nor did he comment on the suggestion that the “hoists pads are round and padded” and thus “will not produce the same type of damage that incurred” on the Vehicle. [ 91 ] An important factual assumption in the Cino Report is that the Vehicle suffered major structural damage to the undercarriage of the Vehicle and that the Vehicle “had been bent in the middle by what appears to have been a poorly placed hoist”.

In addition to this structural damage there was some cosmetic damage done when the Vehicle was pulled and squared on the frame machine at GT Collision. [ 92 ] From the perspective of his oral evidence, as well as in the Cino Report, I understand that this factual assumption was based on his observations made from the various photographs about the existence of marks “right across the bottom of” the Vehicle that is in identical locations on rocker panels on each side.

In cross-examination he conceded he was not sure if it was in identical locations on each side and he re-characterized it as the being “similarly located on each side” or “being in the same relative location” on the front and back on the Vehicle. I further understand that this damage only became evident when the Vehicle was lifted up for further examination at GT Collision. [ 93 ] This similarly located damage on each side of the Vehicle was also partly confirmed by:

a) Mr. Cino’s review of the ICBC CL 14 Repair Sheet and the equal time required to complete repairs on each side;

b) his observations of paint chipping both on the left side rear door and the rocker panel below it, which he stated was consistent with “over flexing” of the Vehicle; and

c) from his discussions with Jamie Bowen of ICBC and with a representative of GT Collision who was not called as a witness. [ 94 ] I understand Mr. Cino’s evidence to be that all these marks were caused by the poor placement of the Vehicle on the Dealership Hoist and the exertion of enough pressure on the underside of the Vehicle, as it was being lifted on the hoist, to actually bend the Vehicle in the middle. In other words, it is his view that the Vehicle flexed more than it was meant to because of the improper placement on the Dealership Hoist causing the over flexing at a fulcrum point. Again, Mr.

Cino spoke to Mr. Bowen and to the representative from GT Collision who was not called as a witness and who apparently also made the suggestion that the observable damage was hoist damage. [ 95 ] Mr. Cino further testified that minor damage can be caused by improper jacking of a motor vehicle with a car jack, such as the Vehicle Car Jack, but says that such jacking would not cause the extensive damage that is evident in the photographs because when using a car jack and jacking one side at one location at a time then three wheels of the motor vehicle will remain on the ground.

Thus, there will not be an opportunity for too much flexing of the motor vehicle to occur. Again, Mr. Cino says that this type of lifting with the Vehicle Car Jack would not exert enough pressure to cause the structural damage on the Vehicle observable in the photographs. [ 96 ] Mr.

Cino also indicated that if somebody were to attempt to use a car trunk jack, such as Vehicle Car Jack, to lift a motor vehicle at improper locations such as on the rocker panel, rather than using the actual jacking points, it would be difficult to do so because there is no place to affix the car jack and the car jack would be unstable and would able to slip off of the motor vehicle and end up with the car jack flying towards the person using the car jack.

Again, if jacked up on the rocker panel with the Vehicle Car Jack rather than at the actual jacking points, he says that the resulting noise from the damage caused would be immediately noticeable. [ 97 ] Therefore, Mr. Cino expressed the view that what he observed on the Vehicle was hoist damage that could have occurred one of two ways:

a) the Vehicle was lifted up on a hoist, like the Dealership Hoist, without the hoist pads being utilized such that the Vehicle isbeing lifted up and the body of the Vehicle then comes into contact with a bar on the Dealership Hoist and hence all of Vehicle’s weightis incorrectly supported on that bar; or

b) the hoist pads were not positioned in the correct location on the structure of the Vehicle to support the weight of the Vehicle asit was being lifted. [98] He further disagrees with the conclusion in the Gooding Report that damage to the rocker panels which is evident inphotographs attached to Appendix A of the Gooding Report and marked therein as “sharp” (and which may be described as “peaked roofdamage” presenting as an upward shaped triangle dent into the rocker panel) was caused by the use of the Vehicle Car Jack or a rolejack. Rather, Mr.

Cino opined that this “sharp damage” could occur by not placing the flat surfaced and padded hoist lift pads of theDealership Hoist in the correct location on the Vehicle and then lifting it. He said that the Vehicle weight will cause this type of damagewhen the incorrectly supported Vehicle on the hoist comes down onto the structural components of the Dealership Hoist. Evidence About Accelerated Depreciation of the Vehicle [99] As previously indicated, the Cino Report was admitted into evidence and Mr. Cino provided viva voce evidence about the CinoReport. Mr.

Cino both testified and stated in the Cino Report that he was asked to provide a report “on the effect of the damage that hasbeen done to the Vehicle and the subsequent repairs that were completed if the Vehicle were to be traded in on a new car or soldprivately”. Notably in his oral evidence, he indicated that he was not asked to determine what caused the damage to the Vehicle. [100] Under the heading of “Summary”, the Cino Reports contained the following conclusions about the accelerated depreciation ofthe Vehicle based upon identified documents and photographs:

a) the majority of the damage [to the Vehicle] was major structural damage;

b) there were no actual parts used during the repair [of the Vehicle];

c) the [Vehicle] was repaired by a qualified repair facility;

d) the [Vehicle] appears to have been returned to pre-accident condition; and

e) the factory warranty [for the Vehicle] will continue until the end of its original term. [101] The Cino Report then goes on to conclude as follows: This car is unique due to the fact that the damage was all structural. While the repair was done by a qualified repair facility that hasgiven the owner a lifetime warranty on the work, it is not transferable so any prospective purchaser whether a dealer or a private personwill have no warranty on the repair.

It is my opinion that due to the type of damage that was done to this car, the fact that the warranty on the repair does not include the nextowner, the car will lose between $6,000 and $7,500 depending on who buys the car. [102] In cross-examination, Mr.

Cino explained “accelerated depreciation”, otherwise referred to recently by the courts as “diminishedvalue”, will come into effect when a motor vehicle is damaged in an accident, through no fault of the owner of the motor vehicle, andthen the motor vehicle is repaired and loses value because of the damage declaration that is subsequently made when the motor vehicleis sold or transferred. He clarified that when he says “no fault of the owner” he was speaking about damage in this case that was notcaused by a motor vehicle collision but was from some other accidental cause.

However, he says that for the purposes of his analysisand for the Cino Report and its conclusions, it does not matter the source or cause of the damage. [103] Mr. Cino testified that the damage declaration (sometimes called an insurance declaration) must be made if there are repairs inexcess of $2,000, but there is apparently no legal requirement to specify the exact amount over that figure. In the present situation Mr.Cino says that the pre-tax amount of the repairs based on ICBC records indicates an amount of $4,189.50 and after GST and ProvincialSales tax it totals $5,389.20. [104] Mr.

Cino further explained that there are three different types of accelerated depreciation namely:

a) insurance diminished value;

b) inherent diminished value, and

c) repair related diminished value. [105] He did not provide an explanation of the differences among each type, although I note parenthetically that those differences areexplained in Brown v. Hermann, 2014 ABPC 122 at paragraph 4, which cites King v. Satchwell, 2013 ABPC 358 . Mr. Cito didstate that all three types of the diminished value may occur when a motor vehicle is repaired but not brought back to its previous perfectcondition. He stated all three types apply to the Vehicle. [106] According to Mr. Cino’s evidence, the factors that will give rise to diminished value are:

a) the type of damage sustained by the vehicle;

b) the quality of the repairs done to the vehicle; and

c) the parts that are used in completing the repairs.

[ 107 ] Therefore, if a damaged motor vehicle is properly repaired and there is no structural damage, such that the damage is effectively only cosmetic in nature, then there will be no accelerated depreciation or diminished value, even if the cost of repairing the cosmetic damage may be more than the cost of structural damage.

If on the other hand the motor vehicle is not repaired properly by the body shop, and therefore, it is not returned to pre-accident condition, then accelerated depreciation will occur with respect to that motor vehicle. [ 108 ] In this case there was major structural damage to the Vehicle but virtually no parts were required other than paint materials and shop materials which, including applicable taxes, totalled approximately $952. [ 109 ] Mr.

Cino testified that diminished value figures contained within the Cino Report, being between $6,000 and $7,500, represents the range of the amounts over and above the actual repair amounts required to bring the Vehicle back to its perfect pre-accident, factory specifications condition. Thus, to achieve that condition, the cost of the repairs would be in the range of $11,000 to $12,500. It is Mr. Cino’s view that to have done the repairs to the Vehicle correctly, all of the damaged portions should have been removed and replaced with new factory parts, including such things as the floor.

All of this would have increased the expense for parts alone by some 35 to 40%, plus some additional labour expense. In this case, the body repair shop was only authorized by ICBC to repair damaged portions rather than replace the damaged portions. Here, the body repair shop only “pulled and squared” the Vehicle, then did some body work and, in Mr.

Cino’s words, “that was it.” He went on to say that the cost of properly repairing the Vehicle would have made it a “structural write off” for ICBC. [ 110 ] Furthermore, that figure of between $11,000 and $12,500 is the cost of the amount of the necessary proper repairs so that a car dealer would not then discount the value of the Vehicle on a trade-in because of the major structural damage that was sustained; he characterized it as “the worst damage you can possibly do to a motor vehicle”.

He also testified that repaired cosmetic damage, even being at a higher repair cost amount, may be much less stigmatizing for a motor vehicle that has suffered repaired structural damage at a lower cost amount. [ 111 ] That said, considering the “stigma factor” attached to a motor vehicle that has sustained major structural damage, Mr.

Cino expressed the view that based on his extensive experience in all facets of the motor vehicle industry, a car dealer, and especially the major new-car dealerships, would not likely take the Vehicle in trade at all because of the major structural damage, adding that as a dealer he personally would not. Mr. Cino says that to confirm his opinion to that effect he spoke to Darrell Howe, a used car manager at one of the major new-car dealerships who agreed with Mr. Cino and then went on to describe a motor vehicle having that level of major structural damage as being “sale proof”.

The same used car manager told Mr. Cino that he would not take such a car at any price since there are enough cars traded in without damage declarations so “they (being the dealership) did not need the hassle”. These comments were mentioned in the Cino Report. Mr. Cino conferred only with this one new car dealership in the course of preparing the Cino Report. [ 112 ] Thus, I understand all of this to mean that that the Vehicle now suffers from a “stigma” because of the extent of the structural damage it has sustained. I further understand from Brown v.

Hermann at paragraph 4 that such a “stigma” is a feature of what is referred to as “Inherent Diminished Value”. [ 113 ] Mr. Cino also testified that private sales of structurally damaged and repaired motor vehicles are also significantly negatively impacted by damage declarations and especially because of the ready availability and common use of Carfax reports or similar reports in private sales. As I understand it, these types of reports provide historical details about motor vehicles which include information on collision damage, damage declarations, and the repair costs of damage. [ 114 ] I also understand Mr.

Cino’s opinion to be that the accelerated depreciation figure will also be a comparative figure of the value of a structurally damaged and repaired motor vehicle with the value of a similar motor vehicle that has not been damaged and repaired. [ 115 ] Mr. Cino’s opinion of the amount of accelerated depreciation of the Vehicle as set out in the Cino Report is stated as at the date of the accident, which I take to be at October 25, 2015. That particular date is based on the Claimant’s conclusions as to when the damage on the Dealership Hoist occurred. Mr.

Cino went on to testify that the actual amount of the accelerated depreciation will be less over time but it will remain, as I understand it, relatively the same percentage value of the Vehicle. [ 116 ] Mr. Cino conceded that in arriving at an accelerated depreciation figure, his methodology does not utilize a line by line cost analysis to arrive at the figure for the actual expense of properly repairing the Vehicle’s structural damage.

Rather he bases it on his years of experience in all facets of the automobile industry and his experience as a car appraiser, a national insurance adjuster, and from completing numerous accelerated depreciation reports. He says that with this experience he gets “really close” to determining the accelerated depreciation figure, which I understand to be in comparison to the values realized in the actual market setting for various damaged and repaired motor vehicles.

Summary of the Evidence of the Defendant’s Witnesses [ 117 ] The Defendant called a total of three witnesses, namely: 1. Daniel Hewitt, during the material times was the Fixed Operations Manager for Volkswagen Victoria and who initially dealt with the Claimant’s concerns about damage to the Vehicle; 2. Patrick Grierson, a technician employed by Volkswagen Victoria who serviced the Vehicle at the Defendant’s dealership; and 3. Bernard Gooding, who was called by the Defendant as an expert in auto body repairs.

Daniel Hewitt’s Evidence [ 118 ] Daniel Hewitt was called by the Defendant in his capacity as the Service Manager which he continued to be at the time he initially gave evidence on July 18, 2017. By the time he continued his evidence on September 1, 2017, Mr. Hewitt had left the

employment of the Defendant and relocated to Edmonton. [ 119 ] Mr. Hewitt was called to introduce the Defendant’s documentary evidence and to provide oral evidence regarding the history of the Vehicle’s servicing at Volkswagen Victoria beginning with the pre-delivery inspection on March 31, 2014 before it was turned over to the Claimant upon completion of her purchase and continuing up to March 18, 2015 and about the procedures used by the Defendant and its employees. [ 120 ] There is no dispute about the dates the Vehicle was in repair facilities of Volkswagen Victoria.

There is no dispute that the only technician employed by the Defendant that did all of the work on the Vehicle was Patrick Grierson. Mr. Grierson’s duties included the hoisting of the Vehicle on the Dealership Hoist at the dealership repair facility. Nobody else hoisted the Vehicle at Volkswagen Victoria. [ 121 ] Mr. Hewitt testified that the pre-delivery inspection of the Vehicle on March 31, 2014 was quite a thorough inspection completed by its technician to ensure that the Vehicle was free from defects and was operating as designed. Any defects would be remedied before delivery to the customer.

To complete the pre-delivery inspection, the Vehicle is lifted on a hoist and is also road tested. I understand that another purpose of the pre-delivery inspection was to look for any damage that may have occurred in the course of the transportation of the Vehicle to the dealership. No issues were detected in the course of this pre-delivery inspection of the Vehicle. [ 122 ] Mr. Hewitt described the dealership protocols and procedures when any motor vehicle arrives for servicing. He stated that the customer is always greeted by the service advisor or by a junior service staff member referred to as a “greeter”.

A walk around inspection of the motor vehicle is conducted and observations are made to detect any pre-existing damage. An inspection form called a “Vehicle Check-In Report” is always filled out which would note any pre-existing damage. Mr. Hewitt conceded on cross-examination that the March 18, 2015 Vehicle Check-In Report for the Vehicle could not be located. [ 123 ] Mr. Hewitt also stated that there are occasions where pre-existing damage is not initially detected during the pre-inspection walk around.

In that situation dealership’s protocol and its staff training is to ensure that the customer is informed as soon as possible. Mr. Hewitt conceded that from time to time accidents do occur while a motor vehicle is in the care of Volkswagen Victoria in which case the customer is informed and the dealership reaches out to be customer to “make it right”. [ 124 ] Mr.

Hewitt testified that the damage, being the subject matter of this lawsuit, would definitely have been noticed on the pre- delivery inspection or by a service representative when the Vehicle was brought in to the dealership for servicing or by the service technician in the course of completing the servicing of the Vehicle. [ 125 ] Mr. Hewitt said that he first became aware of the damage to the Vehicle on March 18, 2015. He was told by Michelle Passmore that the damage had been noted as part of the service check in procedure. He found out later in the evening about the damage to the Vehicle.

He confirmed that he was the third individual in the caucus, which included Michelle Passmore. He stated that he did not inspect the Vehicle’s damage and believed it to be only cosmetic in nature.

He says that at that time the cause of the damage was not discussed and he does not recall having a conversation to that effect with Brent, the salesperson involved in the caucus. [ 126 ] In cross-examination, he explained he requested the April 17, 2015 meeting with the Claimant, indicating that the purpose was “to get more details” about the damage to the Vehicle because he did not know the “full extent of the damage” and did not want to “turn a blind eye” to a customer complaint. He conceded that the April 17, 2015 meeting had occurred after the Claimant had made her complaint to Volkswagen Canada.

He further indicated that he was of the belief that the Claimant had been dealing with Michelle Passmore. He stated that he did not call Ms. Passmore into the meeting as requested by the Claimant because he did not want her to be subjected to the “hostile tone” and the “accusations” being directed at him by the Claimant and her parents. [ 127 ] He further suggested that he only contacted the Claimant after her complaint to Volkswagen Canada because he understood, presumably from discussions with Ms.

Passmore, that the Claimant was not interested in pursuing the matter because she did not follow up and provide quotes for the auto body repairs to the Vehicle, and so far as, he was aware she never did. As noted elsewhere, although still an employee of the Defendant and very much involved with the apparent discovery of the damage, Ms. Passmore was not called as a witness in this trial. [ 128 ] Mr.

Hewitt was evasive and unclear in his evidence about both the reasons for the Defendant’s failures and its delays in taking required actions to comply with the Small Claims procedures once the Defendant had been served with the Claimant’s Notice of Claim. Patrick Grierson’s Evidence [ 129 ] Patrick Grierson is a technician employed by the Defendant and has been for four years. He has been a technician or an apprentice for some 10 years. [ 130 ] Generally he services between 5 and 10 vehicles per day at Volkswagen Victoria.

In doing so, he utilizes the Dealership Hoist system for almost every vehicle, except if he is dealing with a software update or a radio concern. [ 131 ] He describes the Dealership Hoist as a “two post hoist” which has attached to each post, two arms and with two feet attached to each arm. He has used this type of two post hoist while in high school in 2007 and ever since as both an apprentice and as a qualified technician. [ 132 ] Mr.

Grierson was asked about whether or not he has hoisted a motor vehicle incorrectly and in reply stated “not to my knowledge” and in cross-examination confirmed that he does not know if he has ever incorrectly hoisted a motor vehicle. I understand the whole of his evidence to be that he did not cause any of the damage depicted in the photographs of the Vehicle while hoisting the Vehicle or otherwise. [ 133 ] He says that he has damaged three motor vehicles in his four years at Volkswagen Victoria. None related to damage on a hoist.

All of these incidents were “fender benders” which occurred when the vehicles were being moved within the Defendant’s dealership location and thus quite minor in nature. [ 134 ] He outlined the protocol that applies in such a situation where he causes damage to a vehicle which he is servicing. He is required to report the damage to the service manager, which up until recently was Mr. Hewitt. He understands that as part of the protocol, the service manager then deals with the customer and informs them of the damage and then arranges to have it repaired. There are no personal financial repercussions for Mr.

Grierson if he damages a motor vehicle. In other words, he is not personally financially responsible for any of the resulting repairs and, therefore, there is no incentive for him not to report to the service manager about any damage that he has caused. [ 135 ] Mr. Grierson testified that it is common for him to see damage on a motor vehicle that he is servicing. If it appears to be fresh damage and in particular fresh damage from being moved around the lot, then as part of the protocol, he informs the service manager. If it is obvious and old damage, then he may on occasion not report that damage.

Old damage would include damage that had some rust on it or damage that was covered with dirt. [ 136 ] Mr. Grierson outlined the various sequential steps taken by him when putting a car onto the Dealership Hoist and then hoisting the motor vehicle at the Volkswagen Victoria facility. They are as follows:

a) drive the motor vehicle into the service bay between the two arms of the hoist and leave the motor vehicle in neutral;

b) centre the motor vehicle between the two upright posts and leave the motor vehicle in neutral and exit the vehicle;

c) push and roll the motor vehicle back and forth in order to position the motor vehicle so that the arms on the hoist can be swung underneath the motor vehicle;

d) if necessary, adjust the height of the pads on the arms by turning the pads on the threading to an appropriate height for the motor vehicle;

e) position the pads for all four corners on the motor vehicle’s pinch welds (being the subject lift location on the subject Vehicle which is a Jetta) or the actual lift location on other models;

f) lift the hoist up to make contact with the vehicle but without raising the vehicle and then re-check the pads on each of the lift locations;

g) once the placement of the pads has been verified, raise the motor vehicle on the hoist about one foot, then jounce the vehicle by pushing on its bumpers to ensure the motor vehicle’s stability and to make sure the motor vehicle is completely seated on the four pads and therefore properly balanced on the hoist; and

h) thereafter, the motor vehicle can be raised on the hoist. [ 137 ] Mr.

Grierson confirmed that the pads can be adjusted up or down depending on the model of the motor vehicle but he noted that adjustment of the pads from the medium height location that he maintains for the pads is not required on the 2014 Jetta, being the subject model of the Vehicle. [ 138 ] He says that he personally uses this same hoisting process 5 to 10 times per day on each motor vehicle he services and he does so in that order to properly lift the motor vehicles and to ensure his own safety, an especially since he will be working underneath the hoisted motor vehicles.

Accordingly, he does not entrust the hoisting process of a motor vehicle that he is going to be working under to any co-worker. [ 139 ] Mr. Grierson testified that there is no room for error if this hoisting process is utilized and he believes that this hoisting process is the one that is still presently being taught to apprentices and future technicians. [ 140 ] Mr.

Grierson explained that it would be very difficult to have one pad in the wrong location on a 2014 Jetta, being the subject model of the Vehicle, and he could not imagine setting a motor vehicle so wrong to have say two, three or four pads set in the wrong location because part of hoisting procedure involves walking around the motor vehicle at least twice to set and verify the pad locations. [ 141 ] During questions from the court following cross-examination, Mr.

Grierson indicated that if, for example, a SUV type of motor vehicle was serviced immediately prior to a Jetta vehicle, then it would be necessary to raise up the pads prior to lifting. Once the SUV vehicle was lowered and the arms moved away, and the SUV vehicle moved out and the Jetta moved in, the lift pads would not fit under the Jetta and would come up to side the of the motor vehicle and the lift pads would have to be lowered before they would go under the Jetta. In other words it would not be possible to get the arms and pads under the Jetta vehicle without first lowering the pads. Mr.

Grierson further confirmed that when he is finished servicing a vehicle it is moved into the “wash line up” but that there is no hoisting of a motor vehicle involved in completing the wash procedure. He had no knowledge whether or not a motor vehicle sent to the third party contractor by Volkswagen Victoria for detailing would be hoisted. [ 142 ] Mr. Grierson reviewed each of the Volkswagen Victoria’s invoices rendered for servicing on the Vehicle and also the Vehicle Service History for the Vehicle.

He confirmed that his technician number appeared on each of the invoices and the Vehicle Service History and no other technician numbers appeared, and hence, no other technicians had worked on the Vehicle during the servicing represented by those invoices. [ 143 ] He also confirmed that he was responsible for completing the Volkswagen Pre-delivery Inspection (the “PDI”) for the Vehicle upon its arrival at Volkswagen Victoria and for completing the necessary form.

In four years he can only recall two occasions in which he discovered damage to a motor vehicle during the PDI, one being a “curbed wheel” being relatively minor damage, and the other was a motor vehicle with a broken oil pan which required replacement of the engine and was therefore major in nature. He testified that the

protocol requires him to report any damage discovered on the PDI to the service manager. [ 144 ] Upon viewing the photographs of the Vehicle with the damage that it had sustained to the rocker panels prior to the repairs, Mr. Grierson confirmed that he would report that extensive damage to the service manager, write it down or show a co-worker to confirm the damage had occurred before it came into the service area and before the Vehicle was placed up on the Dealership Hoist.

He indicated in cross-examination that another reason he would report the type of damage shown in the photos is because of the existence of visible damage in four locations on the Vehicle. Mr. Grierson confirmed that on the occasion of October 25, 2014 servicing, he spent approximately 1.35 hours working under the Vehicle. None of the damage depicted in the photographs of the Vehicle was observed by him. Bernard Gooding’s Evidence Qualifications as an Expert [ 145 ] Bernard Gooding was called as an expert by the Defendant. Mr. Gooding authoured the Gooding Report referred to above.

The Defendant sought to rely on the Gooding Report as an expert report. Furthermore, the Defendant sought to have Mr. Gooding’s evidence accepted as expert evidence, all as contemplated by Rule 10(3) of the Small Claims Rules . In the Gooding Report, Mr. Gooding stated his recognition of his duty to assist the Court and not to be an advocate for any party. He further acknowledged that the Gooding Report was made in conformity with that duty. It is my understanding that the oral evidence provided by Mr. Gooding was done so also in conformity with that duty. [ 146 ] Mr.

Gooding has been in the automotive collision repair industry for 38 years. He is a licensed automotive technician. As part of his certification, he and his staff of licensed automotive technicians receive annual training and updating on technical changes in the body shop industry. This type of training permits his shop, known as Prancing Horse Auto Body, to maintain the certification with ICBC.

He testified that Prancing Horse Auto Body is known for repairing many European makes and models of cars as well as higher end motor vehicles. [ 147 ] Based on all of the above and having made its own inquiries, this court accepted Mr. Gooding as an expert in the field of auto body repair and allowed him to provide expert evidence in auto body repairs and specifically in assessing and repairing damage to the body of automobiles. Evidence About the Damage to the Vehicle [ 148 ] The Gooding Report provides the following conclusion: In

summary, it is my opinion that the damage incurred to the subject vehicle was the result of being improperly raised/lifted using a standard car jack or roll jack and more importantly, not using the proper jacking points on the vehicle as specified in the owner’s manual when raising/lifting the vehicle. Accordingly, it is also my opinion that the damage incurred to the subject vehicle was not the result of being improperly hoisted by the 4 point hoist system used by Volkswagen Victoria. [ 149 ] Mr.

Gooding never viewed the Vehicle in its pre-damaged or damaged state nor did he view the Similar Vehicle in its damaged state or in its state prior to the intentional hoist damage being inflicted upon it by the Defendant in the re-creation. He was not present when the re-creation was staged. As noted above, the Gooding Report and the conclusions reached in it, were based on Mr. Gooding’s review of certain information provided to him by Mr. Hewitt about the re-creation and based upon his review of the photographs sent to him by Mr.

Hewitt showing the damage done to the Vehicle and then comparing it to the photographs of the damage to the Similar Vehicle, which he understood had been intentionally hoisted incorrectly at the Volkswagen Victoria’s service facility. He concluded that the damage was different. [ 150 ] Mr. Gooding’s opinion is that the four point lift (being the Dealership Hoist) or the floor jacks utilized at Victoria Volkswagen could not cause the damage depicted in the photographs of the Vehicle.

He noted that a motor vehicle can be incorrectly put onto a four point hoist but he noted that because of the lift pads and the distribution of the weight of the motor vehicle over a wide area, it becomes a “flat lift”. Therefore the damaged area becomes a “flat push” over a wide area of the motor vehicle and occurs where the actual lifting piece of the hoist is in contact with the motor vehicle.

An improperly placed floor jack with pads will cause a similar type of damage over a wide area and an improperly placed floor jack without pads will cause direct marks on the motor vehicle usually in the form of holes punctured into the motor vehicle. Wide flat push damage was evident in the photographs of the improperly hoisted Similar Vehicle. [ 151 ] Wide flat damage from a hoist was not evident in the photographs of the damage to the Vehicle. What was evident in the photographs of the Vehicle was the “sharp” or “peaked roof” type of damage to the rocker panels of the Vehicle. Mr.

Gooding says this type of damage is consistent with damage caused by improper jacking with a trunk jack at locations other than at the torque boxes on the Vehicle. It is not consistent with a collision but it is consistent with soft impact such as the Vehicle being raised improperly on a trunk jack or some other jack with a narrower lifting area. This conclusion is based upon his experience in the body shop industry.

He says he has seen this type of damage, and from that particular cause, 40 to 50 times over the past 20 years, noting it usually stems from a failure to read the owner’s manual before jacking up the motor vehicle. [ 152 ] Mr. Gooding described the features of the Vehicle’s unibody construction and noted that the structural integrity of the Vehicle is provided by the reinforced high strength steel incorporated into the four pans of the body of the Vehicle which are located underneath the Vehicle. The “inner leading edge” of the unibody is located behind the rocker panels.

The rocker panels, like the fenders and quarter panels, are simply relatively light weight accessories attached to the unibody and do not have much strength to support the weight of the Vehicle. The torque boxes of the Vehicle are incorporated into and form part of this unibody construction. These are the locations where all of the components of the unibody, such as the pillars and the frame rails and side members, become integrated to provide the lateral and longitudinal strength and support for the Vehicle.

These torque boxes, which are located at each of the four corners of the Vehicle and behind, and in closer to the centre of the Vehicle, are the ideal locations for either lifting a motor vehicle on a hoist or jacking up a vehicle.

[153] Mr. Gooding explained the correct method of placing a motor vehicle onto a hoist. That explanation was consistent with thedescription provided by Mr. Grierson. Once the motor vehicle is on the hoist, the hoist pads are placed on the inner leading edge at thetorque boxes which are designed to permit the motor vehicle to be balanced and raised evenly and safely, and without damaging themotor vehicle, such that it can be worked on. Improper placement of the pads could result in damage to the underbody of a motorvehicle but again it will be the flat, wide damage.

He has seen the results of hoist damage by both improper placement of pads and alsoby a motor vehicle being lifted on the arms of hoist rather than the pads. Again, the result is flat damage or damage marks on the motorvehicle which marks match the arms of the hoist. [154] Mr. Gooding was asked by the Defendant to provide an estimate to repair the damage on the Similar Vehicle

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