Sherry Lee Orozco - v. -, 2013 SKPC 123

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 123 Date: July 30, 2013 File: 77-12 Location: Moose Jaw _____________________________________________________________________________ Between: Sherry Lee Orozco - and - Walmart Canada Corp. Steven Haichert For the Plaintiff Jeremy Ellergodt For the Defendant _____________________________________________________________________________ JUDGMENT M.

GORDON , J _____________________________________________________________________________ [ 1 ] The plaintiff sues for the repair costs to her vehicle and associated costs alleging that the defendant’s employee was responsible for brake fluid contamination in her vehicle. The plaintiff had insurance coverage and therefore SGI initiated and continued the action on the plaintiff’s behalf.

[ 2 ] The plaintiff had the oil changed in her 2007 Pontiac Grand Prix on September 30, 2010 at Walmart in Moose Jaw. About two to three weeks later, she noticed that the brakes seemed to go down a bit too much. The problem got worse and two or three days later she took the vehicle to Moose Jaw Ford. The plaintiff stated that she is the only driver of the vehicle and she has the oil changed in her vehicle approximately every 5,000 kilometres and always goes to Walmart or the Ford dealership. She has never changed the oil herself nor has anyone else.

She does not check or top up any of the fluids except perhaps the washer fluid. When she gets gas, she does not allow the attendant to top up these fluids except again the washer fluid. [ 3 ] On November 2, Nicholas Guthrie was working at Moose Jaw Ford and inspected the plaintiff’s vehicle. Exhibit P-2 is an invoice from this inspection. He verified the plaintiff’s concern about the brakes. Mr. Guthrie observed that the cap on the brake fluid reservoir was swollen and he concluded the brake fluid had been contaminated by another fluid. It could have been power steering fluid, hydraulic fluid or engine oil.

He did not send the contaminated fluid away for analysis however the composition and colour of the liquid in the brake reservoir appeared “not right” and he definitely felt that the fluid had been contaminated. He admitted that the fluid level was high in the reservoir and it had the viscosity of oil. Exhibit P-3 is the estimate he had prepared to flush out the system from all contaminants and remedy the problem. Exhibit P-8 is a colour photograph of the cap. The plaintiff also filed the qualifications for Mr. Guthrie as Exhibit P-7 in order to have the Court qualify him as an expert.

However, the defence objected as the plaintiff had not given any notice or particulars as required by the judge at the case management and therefore the defendant said he was not prepared for this witness. Therefore I did not qualify him as an expert although it is clear from his CV that he is an experienced and specialized service technician. [ 4 ] The plaintiff contacted Walmart to advise of the situation. The plaintiff also reported this to her insurer SGI and sometime later the vehicle was adjusted by Alana Parker and then towed to Moose Jaw Ford for the necessary repairs.

Under the terms of her SGI insurance policy, the plaintiff had loss of use coverage and therefore she rented a vehicle for 23 days. Moose Jaw Ford had to order some of the parts from the U.S.A. and therefore this necessitated the vehicle being in the shop that long. Alana Parker is a general auto adjuster at SGI and she adjusted this vehicle. She approved the repair work and in fact authorized payment to Moose Jaw Ford as well as for the rental vehicle. [ 5 ] Mr.

Craig Muz was qualified as an expert in the area of auto mechanic repair including the working of a vehicle’s engine, braking systems and the effects of oil and oil products in the braking system and the cost of repairs that would be required. Mr. Muz had been a technical adviser at SGI since 2007 and is a journeyman mechanic. He has worked at SGI for over 20 years. He said that SGI is seeing more of these types of cases where there has been contamination of the fluid in the brake reservoir.

In his opinion, it is quite easy to make a mistake and someone topping up the fluids could have put the wrong fluid in this brake reservoir or they could have opened up the wrong cap. He said that power steering fluid, hydraulic fluid, trans-hydraulic fluid and oil are all petroleum or oil based products and could cause this problem. He said that if oil or an oil product is added to the brake fluid in the brake reservoir, the rubber cap will swell. The brakes fade and eventually can fail.

He identified P-5, the final estimate, from December 20, 2010, by SGI as to accurately describe the type of repairs that would have to be done. In his opinion, after a contaminant is added to the brake reservoir, problems can be noticed within one to two weeks and it gradually gets more noticeable. Based on the evidence that he had heard, namely the plaintiff’s description of events and assuming that no one else topped up or added fluid to the brake reservoir and the driving occurred as the plaintiff described, it was quite feasible for the problem to occur in the time frame described by the plaintiff.

Even if the plaintiff had brought the vehicle into Ford earlier, there would have been no difference in parts as the whole system had to be replaced. He testified that even a small amount of the contaminant liquid can affect the braking system. It would just take longer to have its way worked into the system. He concluded the use of the vehicle and the amount of contaminant would affect the timing as to when problems would develop. [ 6 ] The defendant called Rocky Deziel. Mr. Deziel has worked at Walmart for a number of years and is presently employed in the Moose Jaw store.

His title is Service Writer Technician which includes making the shop orders, double-checking work done on vehicles and sometimes even working on a vehicle. He worked three years as a technician and then was promoted to his current position. He did not work on the plaintiff’s vehicle. Mr. Deziel was the service manager at the time and checked the plaintiff’s vehicle during and after the oil change. However, Mr. Deziel did not specifically remember the plaintiff’s vehicle.

The incident report by the former manager which is filed as D-3 identifies the plaintiff’s complaint and make, model and mileage as well as particulars as to who performed the service work (it showed a Mr. Reed did) and who did the double-check. It also includes information as to whether check lists were completed and the length of employment of the individuals. Mr. Reed had worked at Walmart for one year at the time. Mr. Deziel describes Mr. Reed as hardworking and conscientious. Mr. Deziel referred to the Walmart check list which would have been done at the time, which is Exhibit D-4.

It indicates the services to be provided, what was done and it is signed by the customer. This form is just a sample blank form. Mr. Deziel described the procedure in the shop and the quality control that is done. Walmart does not do any work or servicing with respect to brakes. They do not check the brakes or top up any fluids. They don’t even store brake fluid in their shop. This store has never provided that service according to Mr. Deziel. He also testified that the location of the brake fluid reservoir and the power steering reservoir for example are obvious.

Any experienced technician would know the difference. Mr. Deziel also described in some detail the training that employees such as the technician Mr. Reed would have had. There is two week, 20 module computer training, then job shadowing for two weeks and then being the second person on the job. Four to five weeks after hire,

the employee can work on their own but still be subject to the checks by the manager. Mr. Deziel admitted that he has no personalknowledge of how well Mr. Reed did on these exams. All he knows is he was qualified to work on his own. There are four service baysthat Mr. Deziel is responsible for and he was certainly not aware of any employee putting fluid into a brake reservoir. [7] The plaintiff submits that it is clear that the oil change at Walmart is the only possible source of the contamination.

It ispointed out that the Court did not have the benefit of any evidence from the technician who actually did the work on the plaintiff’svehicle. Other than Mr. Deziel testifying as to the general procedures there was no information with respect to Mr. Reed or anyexplanation of why he had not been called as a witness. The plaintiff asserts that the only explanation is that when the plaintiff had theoil change done at Walmart, the employee mistakenly topped up the brake fluid in the reservoir with a contaminant. The plaintiff pointsto the case of Snell v.

Farrell, (SCC), [1990] 2 S.C.R. 311 and says this case is distinguishable from the Clow v.Walmart Canada Corp., a decision of Judge Bogdasavich reported at 2003 SKPC 106. In that case the actual automotive technician wascalled and did recall the oil change on the plaintiff’s vehicle. [8] The defendant submits that the plaintiff has not proved causation. The defendant notes that Walmart had a system orprotocol in place for the steps to be followed before and after a technician has done the oil change. There was also technician training.

There was a protocol, technician training and quality assurance procedures in place. He notes that Walmart does not do anything withbrakes, so the only inference is that the technician would have no reason to uncap the brake reservoir which is clearly identified from theother areas where fluid can be added. The defendant suggests that when the plaintiff got her washer fluid put in that perhaps an error wasmade at that time. [9] The only issue is whether the plaintiff has proved on the balance of probabilities that the defendant’s employee contaminatedthe brake fluid in her vehicle.

In other words, has the plaintiff proven “causation” on the balance of probabilities. ANALYSIS [10] In Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311, Mr. Justice Sopinka speaks for the Court and discusses theprinciples of the legal concept of “causation”. He notes that the traditional approach to causation has been criticized. He discusses theconcern at paragraph 11 as follows: The legal or ultimate burden of proof is determined by the substantive law "upon broad reasons of experience and fairness": 9 Wigmoreon Evidence, {SS} 2486, at p. 292.

In a civil case, the two broad principles are: 1. that the onus is on the party who asserts a proposition, usually the plaintiff; 2. that where the subject matter of the allegation lies particularly within the knowledge of one party, that party may be required to proveit. [11] After a review of cases from the House of Lords and a review of Canadian cases subsequently decided including: NowscoWell Service Ltd. v. Canadian Propane Gas and Oil Ltd. (1981), (SK CA), 7 Sask.

R. 291 (S.C.A.) which states atparagraph 27: Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to thevictim in order to justify compensation of the latter out of the pocket of the former. [12] He goes on to say at paragraph 30: I am of the opinion that the dissatisfaction with the traditional approach to causation stems to a large extent from its too rigid applicationby the courts in many cases. Causation need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd.v.

Woodward, [1972] 2 All E.R. 475, at p. 490:

... Essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory. [ 13 ] He concludes at paragraph 33: These references speak of the shifting of the secondary or evidential burden of proof or the burden of adducing evidence. I find it preferable to explain the process without using the term secondary or evidential burden. It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant.

Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as an imposing on the defendant a provisional or tactical burden (see Cross 6 th ed. at page 129).

In my opinion this is not a true burden of proof and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted. [ 14 ] At paragraph 34: The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. [ 15 ] On the facts in this case, I am prepared to infer causation. I accept the plaintiff’s evidence that she is the only person that drives and has regular servicing done on her vehicle.

She has the oil changed by a qualified technician either at Walmart or Moose Jaw Ford where she purchased the vehicle. I accept that she does not allow anyone else to top up the fluids in her car except for the windshield wiper fluid. There was no evidence of any forced entry under the hood or tampering with her vehicle. The plaintiff does not put many kilometres on her car and uses it mainly for local errands and the odd trip to Regina. During this time period she had also taken a trip to Kennedy, Saskatchewan in October to visit her father. [ 16 ] Mr.

Guthrie testified that the fluid in the brake reservoir was over filled. This lends support for my conclusion that the brake reservoir had been topped up by an oil based product. As well, Mr. Muz was of the opinion that given the type of driving and the number of kilometres on the car, that it could certainly take close to a month for any problem with the brakes to show up. [ 17 ] Mr. Deziel’s evidence is that he does not recall this specific situation and understandably so. Therefore, I find his evidence of limited value.

He testified in some detail in a general sense as to the training any new employee would receive and that he worked with Mr. Michael Reed who was the individual that had performed the work on the plaintiff’s vehicle. Mr. Deziel also testified as to the protocols in place to ensure the work was done correctly. However, it concerns me there was no further evidence about this service technician Michael Reed as to his whereabouts or why he was not called to testify. As a result, in my view, this case is distinguishable from the Clow v. Walmart case in many respects.

In the Clow case, the brake damage was not noticed until almost four months after the Walmart oil change. The vehicle had been driven over 9,000 kilometres. As well, and I think this is crucial, the actual service technician testified in the Clow case denying that he did anything wrong. In the Clow case, Judge Bogdasavich found at best the probabilities were equal.

Given the above noted differences and the evidence that I have accepted, I conclude that the plaintiff has proven her case. [ 18 ] I am satisfied that the plaintiff followed the correct procedures in a timely manner once she detected the problem and took it to Mr. Guthrie at Moose Jaw Ford. Mr. Guthrie described the condition of the brake reservoir cap as swollen and that the fluid looked and felt as if it had an oil based product in it. It was not pure brake fluid in any event. Mr. Guthrie prepared a repair estimate.

In addition he noted that some parts had to be ordered in and therefore the vehicle was in their shop for 23 days. Mr. Muz of SGI stated that he has seen this type of problem more frequently in recent years. Therefore, the defendant shall pay the plaintiff the sum of $2,758.71, being the rental car ($1,265.00), the towing ($70.00) and the cost of repair at Moose Jaw Ford ($1,423.71). I heard no evidence to indicate it was necessary to have the engine oil changed by Moose Jaw Ford. Therefore the claim for the cost of an oil change being $36.75 is dismissed. There shall be no order as to costs.

M. Gordon, J