2012 QCCQ 14085, 2012 QCCQ 14085

Zalai c. Gentile (Autowork) 2012 QCCQ 14085 COURT OF QUEBEC Small claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-121963-14 DATE: November 15, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q . ______________________________________________________________________ Stephanus ZALAI […] Rigaud, Québec, […] Plaintiff v.

Claudio GENTILE doing business under the name AUTOWORK 13143 A, Monk Boulevard Pierrefonds, Québec, H8Z 1T4 Defendant AVIVA CANADA 630 René Lévesque Ouest, bureau 900 Montréal, Québec, H3B 1S6 Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Stephanus Zalai, sues Claudio Gentile, who operates an automobile garage under the name AUTOWORK.

He complains because of work allegedly carried out on the two vehicles owed by the Plaintiff and for the theft of one of the automobiles from the Defendant's premises. [ 2 ] In the first matter, involving the Plaintiff's Pontiac Grand AM, he alleges that the repair of the engine was faulty and the engine broke down as a consequence of this and had to be replaced. [ 3 ] He sues for $650, the amount he alleges having paid cash for the repair and $1 300, the amount he alleges it will cost to replace the engine. [ 4 ] In the second matter, he alleges that he left his Plymouth Voyager for repair to the transmission. [ 5 ] He asserts that while the van was left on the Defendant's premises it was stolen. [ 6 ] He holds the Defendant responsible for the theft claiming $2,700 for the value of the vehicle, $161.50 for an automobile part that he had left in the car, as well as $600 for miscellaneous CDs and other effects allegedly in the Van at the time the car was stolen. [ 7 ] He also claims $175 for towing. [ 8 ] With respect to the first matter, the Defendant denies ever having carried out the repairs that are alleged. [ 9 ] In regard to the second matter, he denies any liability for the theft alleging that Mr Zalai removed the vehicle himself to avoid having to pay an invoice. [ 10 ] AUTO WORK issued an invoice for $51.08.

The Defendant states that invoice was for the preparation of an estimate for work to be carried out on the transmission but the Plaintiff decided not to have carried out. The Defendant alleges that the Plaintiff had been

asked to remove his car from the premises and he negligently left it there without any reason and then removed it. [ 11 ] AVIVA CANADA covers the Defendant's operation for civil liability for loss of or damages to customer's automobiles in the care, custody or control of the insured. [ 12 ] AVIVA takes the position that the insurance coverage does not apply because the contractual relationship between the parties ended prior to the time of the alleged theft and therefore the car was not in the care, custody or control of the insured. [ 13 ] Subsidiary AVIVA argues that its insured has no liability because he did not commit a fault causing the theft of the car.

ISSUES [ 14 ] The Court must determine: 1. Can one the Plaintiff demonstrate the faulty nature of the repair by the Defendant and if so, what is the amount of the prejudice? 2. Is the Defendant responsible for the loss of the vehicle through theft while it was on the Defendant's premises? 3. If so, what is the value of the stolen object? 4. Is there a coverage under Aviva's policy for this loss? ANALYSIS [ 15 ] In respect of the Pontiac Grand AM: the Plaintiff testified that the Defendant carried out the replacement of the intake manifold gasket, a repair for which he did not issue any invoice and was paid cash.

He asserts that when the job was completed, the Defendant's mechanic performed a manoeuvre on the engine which had become flooded, and in doing so caused the problem that damaged the head gasket. This damage would require a repair of $990.93 according to an estimate received from Mécanique Gaétan Reid Enr. of Rigaud, Quebec (P7). [ 16 ] The Defendant testified that he diagnosed the problem as requiring a gasket replacement and the Plaintiff opted not to have that work done.

Mr Gentile points out that if he had done any repair, an invoice would have been issued and, clearly there is none. [ 17 ] The Plaintiff has the burden of proof on this matter and, given the conflicting testimony and the fact that there is no invoice that can be produced, the Court comes to the conclusion that he has not established his case for the reimbursement of $650. [ 18 ] His assertion that a mechanic an employee of the Defendant damaged the head gasket cannot be established in the absence of any expert testimony.

The estimate from mechanic Gaétan Reid Enr. establishes only than the repair is estimated to cost the amount of $990.93. He does not establish any fault on the part of the Defendant. [ 19 ] With respect to the alleged theft, there is no evidence of any fault on the part of the Defendant who simply tolerated the presence of the Plaintiff's car on his lot after he had given an estimate for repair and that the repair had not been carried out. [ 20 ] The testimony of Defendant's employee at the time is instructive.

He states that, after the transmission had been examined, he phoned Mr Zalai stating that it would cost $1,000 to replace the transmission. Mr Zalai declined at which point the employee, Wayne Job, instructed him to come in and pick up the Van. [ 21 ] It was only approximately eight days later that he heard from the Plaintiff. The Plaintiff came to the garage with another truck, asked for the key and removed from the Van all of his tools, and other personal effects. Mr Job asked for the key back but did not receive it.

The Plaintiff then left. [ 22 ] He last saw the car on the Friday night and on the following Monday it was no longer on the lot. [ 23 ] The Plaintiff admitted part of the testimony, namely that he took some personal possessions out of the car. He denies having taken the key to do this, alleging that the car was left unlocked. [ 24 ] The Court found Mr Job's testimony to be credible.

He was a disinterested witness as he was no longer an employee of Mr Gentile. [ 25 ] In contrast, the Plaintiff's evidence did not seem plausible i.e. that he would have access to the car without the necessity of unlocking it. [ 26 ] Given the evidence of Mr Job, the Court concludes that the Defendant was no longer a depositary of the car at the time of the alleged theft because he did not have the key, which the Plaintiff had taken. [ 27 ] Not being a depositary, the Defendant does not have a strict liability for the loss of the property under

article 2289 of the Civil code. [ 28 ] For the Defendant to be considered liable it would have to be demonstrated that he committed a fault. By simply tolerating the presence of the vehicle on his property, he did not commit any fault. [ 29 ] The Plaintiff had been invited to remove the vehicle and he failed to do so. [ 30 ] The Court concludes therefore that the Defendant had no liability for the alleged theft of the vehicle.

[ 31 ] Having made that decision it is not necessary for the Court to examine any further the case of AVIVA and its position on coverage. FOR THESE REASONS , THE COURT: DISMISSES the Plaintiff's action against the Defendant; DISMISSES the Third party's proceedings against AVIVA CANADA; CONDEMNS the Plaintiff to pay to the Defendant's judicial costs of $146. __________________________________ DAVID L. CAMERON Date of hearing: October 16, 2012