NORMAN COLHOUN PLAINTIFF - v. -, 2003 SKQB 154

2003 SKQB 154 Q.B.G. A.D. 2001 No. 922 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: NORMAN COLHOUN PLAINTIFF - and - FORD MOTOR COMPANY OF CANADA, LIMITED , BENNETT-DUNLOP FORD SALES

(1993) LIMITED and FORD MOTOR VEHICLE ASSURANCE COMPANY DEFENDANTS Kenneth J. Brodt for the plaintiff Kenneth A. Ready, Q.C. for the defendants JUDGMENT MATHESON J. April 1, 2003 [ 1 ] In early October 1999 the plaintiff purchased, in Alberta, a 1999 Ford F3150 one ton diesel truck. The odometer revealed that it had been driven 34,641 kilometres.

[ 2 ] When the truck was initially sold, the owner was provided, by the defendant, Ford Motor Company of Canada Limited (“Ford”), with a new vehicle limited warranty, referred to as “bumper to bumper coverage”. The warranty was for a period of three years or 36,000 miles, whichever occurred first.

Ford dealers were authorized, during the coverage period, to repair, replace or adjust all parts on the vehicle (except tires) that were defective in factory-supplied materials or workmanship. [ 3 ] A diesel vehicle was also provided with a power stroke diesel engine warranty covering specified engine components against defects and factory-supplied materials or workmanship for a period of five years or 100,000 miles, whichever occurred first.

After the expiration of the bumper to bumper warranty, the owner was required to pay a $100.00 deductible for each repair visit under the diesel engine warranty. [ 4 ] On October 4, 1999 the truck was taken to the service department of the defendant, Bennett-Dunlop Ford Sales

(1993) Limited (“Bennett-Dunlop”) for a Saskatchewan safety inspection. After the inspection was completed, the plaintiff was issued a light vehicle inspection certificate, which permitted the licensing of the truck in Saskatchewan. [ 5 ] The plaintiff was required to pay to Bennett-Dunlop the cost of the inspection, but several minor repairs, such as connecting faulty wiring, were covered by the bumper to bumper warranty. [ 6 ] The plaintiff has deposed that, for the most part, the truck performed well over the first eight months that the plaintiff owned it.

However, in late August 2000 the truck was difficult to start and was running rough. Repairs were effected by Percival Ford Lincoln Ltd. under the diesel engine warranty. At that time the odometer read 76,644 kilometres. [ 7 ] After a couple of months the truck was experiencing the same problems. On October 24, 2000 Bennett-Dunlop replaced the ECP regulator and injector driver module. The work was performed under the diesel engine warranty, subject to the $100.00 deductible.

The odometer reading was 81,669 kilometres. [ 8 ] The truck was apparently performing well enough thereafter that the plaintiff sent two of his employees, with the truck, to Lafayette, Georgia to deliver agricultural parts. On the way back the truck began to lose power. It was taken to a Ford dealer in Chattanooga, Tennessee, at which time one fuel injector, the rocker arm cover and oil filter were replaced. Subject to the $100.00 deductible, the work was performed under the diesel engine warranty.

The odometer reading was 87,659 kilometres. [ 9 ] On November 8, 2000, after travelling only 915 kilometres from Chattanooga, the truck broke down again in Fort Wayne, Indiana. The Ford dealer, to whom the truck was taken for repairs, noted on the invoice: T/SHOOT FOR ENGINE RUNNING ROUGH UNIT WAS JUST WORK ON IN TENN. MILEAGE IS IN KILOMETERS ...

BOTH BATT’S ARE UN HOOKED THE RIGHT ONE IS HOT AND STEAMING REMOVED AND ORDERED A NEW ONE HOOKED THE OTHER ONE UP WAS DEAD PUT THE CHARGER ON IT PERFORMED THE DIAG TEST HAS A MAP SENSOR CODE ACTIVE AND CYL#5 FAILED THE TEST AND THE IPR FAILED 9406 STARTED TO CHECK OUT THE IPR FAULT FOUND 5 QTS LOW REMOVED THE FUEL FILTER FOUND FULL OF OIL DECIDED TO RESEAL ALL 8 INJECTOR’S REMOVED THE PIPE ON THE RIGHT

WAS FULL OF OIL REMOVED THE LEFT OIL RAN OUT THE CAC TOOK THE INTAKE PIPE OUT WAS FULL OF DIRT BIG TIME LOOKED AT THE TURBO THE FINS ARE WORN MOST OF THE WAY OFF PERFORMED THE BLOW BY TEST HAS 11" COLD AT IDEL WASNT GOING TO HEAT TO FULLOPP TEMP LET KEN AND TAS KNOW STATUS WAITING ON CUSTOMER TO DECIDE WHAT THEY WANT DONE REINSTALLED TWO PIPES, ONE HOSE, & FILTER COVER. TRUCK WOULD NOT START. ADVISED, PUSHED TRUCK BACK OUTSIDE. ADVISED OWNER IN CANADA THAT ENGINE PROBLEMS ARE NOT WARRANTABLE. UNIT WAS NOT SERVICED PROPERLY AND ENGINE INJESTED DIRT THUS VOIDING ANY ENGINE WARRANTY.

OWNER DECIDED TO TAKE UNIT BACK TO DEALER IN CANADA .... [ 10 ] The plaintiff sent two other employees to Fort Wayne to bring the truck back to Regina. He has asserted that it cost $1,262.35 to rent another truck to haul the one ton truck back to Regina, plus $500.00 with respect to the employees’ expenses. The expenses of the two employees who were stranded in Fort Wayne totalled, he has stated, $3,581.37. [ 11 ] On November 15, 2000 the truck was delivered to Bennett-Dunlop. The plaintiff requested the truck be repaired under warranty.

However, a few days later he was informed by Bernie Gaetz, fixed operations manager of Bennett-Dunlop, that warranty coverage was being denied. Water damage was suspected, which led to a belief that the truck had not been properly maintained. [ 12 ] Mr. Gaetz testified that when a representative of Bennett-Dunlop telephoned Ford’s technical hotline he was informed that warranty coverage had already been denied, as a result of the report of the Fort Wayne Ford dealer. The truck had not, of course, been operated after warranty coverage had initially been denied.

The decision to deny warranty coverage was that of Ford; Bennett-Dunlop had no authority to overrule that decision. [ 13 ] Ed Linard, district service manager for Ford, is responsible for warranty administration on behalf of Ford. He has deposed that the Bennett-Dunlop examination of the truck revealed “that the leading edge of the turbo fins is shiny and pitted (a dusting condition). At least 6 injectors need replacing and the cylinder walls are quite worn with some rings busted.

A new engine is required.” [ 14 ] When the plaintiff was informed that the foregoing problems were not covered by the warranty, the plaintiff was incensed and demanded that the truck be repaired under warranty. Mr. Linard thereupon sent the eight injectors to Saskatoon Diesel Services Ltd. for an independent inspection.

When the inspection report was received from Saskatoon Diesel Services Ltd., Ford maintained its stance that the cost of repairs to the truck was not covered by the warranty by virtue of improper maintenance. [ 15 ] The plaintiff was then requested to provide documents relating to the maintenance of the truck. A list was prepared by the plaintiff’s accountant of purported dates of oil and filter changes. The defendants have pointed out that most of the items relate to “over- the-counter sales” of oil and filters, which do not specifically refer to the truck.

It has been stated that the plaintiff owns several trucks or motor vehicles. CLAIM OF PLAINTIFF [ 16 ] The plaintiff has alleged a breach of an express warranty which is not remediable and is of a substantial character. Consequently, the plaintiff has claimed to be entitled to the remedies provided under The Consumer Protection Act , SS 1996, c. C-30.1 (the “ Act ”). [ 17 ] A “consumer” is defined in the Act as an individual that participates in a transaction involving goods or services. “Goods” is defined as personal property ordinarily used for personal, family or household purposes.

And “services” is defined as services ordinarily provided for personal, family or household purposes.

[ 18 ] In a memorandum prepared by Ed Linard, and annexed to his affidavit, it is stated that “Customer uses this unit to run airplane parts from Regina to the US.” The Linard affidavit was sworn June 5, 2002. [ 19 ] The plaintiff, in his affidavit sworn on November 4, 2002, did not deny the foregoing statement. In addition, he alluded to the fact that he was a farmer, and, with reference to the report from Bennett-Dunlop that there was considerable chaff in the radiator of the truck, “The fact is that the Truck had not been in the fields after October 24, 2000”.

Consequently, it cannot be concluded that the truck was ordinarily used for personal, family or household purposes.

Thus, the plaintiff is not a “consumer” as defined in the Act . [ 20 ] The plaintiff has also alleged that it was an implied condition of the warranty and of the purchase and sale agreement with Ford that the truck was reasonably fit for the purpose of operating as a motor vehicle, but that Ford was in breach of the said agreements in that the truck was not reasonably fit as a motor vehicle and, in particular, the diesel engine had a defect in materials and workmanship. [ 21 ] The plaintiff was not a party to the original agreement for sale of the truck.

The evidence is undisputed that he purchased the truck in Alberta after it had been driven 34,641 kilometres. The plaintiff has acknowledged that the truck performed well at least until August 2000. [ 22 ] The report submitted by Saskatoon Diesel Services Ltd. revealed significant wear damage on the eight injectors submitted for inspection, occasioned by dirt ingestion. Mr. Gaetz testified that he was positive that the injectors failed because of abrasions caused by dirt. He stated that the problem was caused by dirt getting into the engine and thereafter lack of maintenance. [ 23 ] When it was pointed out to Mr.

Gaetz that one of the injectors had been replaced in Chattanooga, as well as the oil filter, Mr. Gaetz responded that “the damage had already been done”. [ 24 ] The diesel engine warranty covered specified “direct injection diesel engine components against defects and factory- supplied materials or workmanship”.

Not only was there no evidence which revealed that the failure of the truck engine was attributable to defects in factory-supplied materials or workmanship, Ford adduced evidence—which was not rebutted, notwithstanding that the plaintiff has asserted that he “requested and was given two of the injectors to have tested independently”—that the engine failure was caused by the ingestion of dirt. Consequently, the claim of the plaintiff must be dismissed, with costs.

COUNTER-CLAIM [ 25 ] Bennett-Dunlop counterclaimed against the plaintiff for the sum of $10,021.86 “for the work it performed on the engine in accordance with (his) instructions”, plus storage fees of $3.00 per day and interest. [ 26 ] The plaintiff has denied that he instructed Bennett-Dunlop to disassemble the engine at his expense. Although admitting that he authorized the disassembly of the engine, he asserted that the purpose thereof was to determine whether or not warranty coverage would be provided, [ 27 ] The plaintiff did not address the matter of the counter-claim at trial.

Bennet-Dunlop merely referred to the authorization and the invoice. [ 28 ] The authorization was handwritten: Jan 22/2001 To Bennet Dunlope Ford This is your authorization to dismantle the desiel [ sic ] truck engine to determine the cause of the engine failure. Ed Linard offered 50% warranty. It is my belief that Ford Motor Company is responsible for 100% warranty. And expense incorred [ sic ] by the delay caused by dening [ sic ] warranty.

Signed this 22 nd day of January 2001 @ 10:45 a.m. [ 29 ] It is evident that the authorization does not constitute an unequivocal authorization to dismantle the truck engine at the plaintiff’s expense. Further, the copy of the invoice annexed to the affidavit of Bernie Gaetz is almost indecipherable, to the extent that someone has written, in ink, the total amount of the invoice. The copy of the invoice does reveal, however, a charge of $2,194.20 for labour and $6,622.91 for parts.

One may wonder why dismantling the engine would entail an expenditure of over $6,000.00 for parts, particularly when the conclusion of Bennett-Dunlop was that the engine required replacing. [ 30 ] The truck was retained by Bennett-Dunlop pending payment of its account. The evidence revealed that the engine is not in the truck; the truck is not operable. But there was no evidence that the “engine” represents a rebuilt, or new, engine, or whether the “parts” portion of the invoice related to repairing the original engine or rebuilding it, none of which appears to be covered by the foregoing authorization.

Thus, because the question of the validity of the counter-claim was not thoroughly canvassed at trial, it is not possible to adjudicate thereon. Bennett-Dunlop is therefore entitled to pursue the claim if it so desires. J.