Jason Davis - v. -, 2014 SKPC 101

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 101 Date: May 1, 2014 File: 87/2012 Location: Swift Current _____________________________________________________________________________ Between: Jason Davis - and - Mainline Sales & Service Co. Ltd. Ms. Marisha Wagner For the Plaintiff Mr. Joel Friesen For the Defendant JUDGMENT L.A.

MATSALLA, J _____________________________________________________________________________ [ 1 ] The plaintiff is claiming the sum of $19,197.59 from the defendant, in part, to compensate him for the cost incurred to further repair a vehicle that was previously repaired by the defendant company. He also seeks the sum of $5,000.00 in lost wages and incidentals. Facts The Plaintiff

[ 2 ] On December 25, 2010, the plaintiff purchased a 1995 Jeep Cherokee Sport vehicle for the sum of $2,000.00. The vehicle is commonly referred to a “4 x 4” vehicle because power can be transferred to both the rear and the front wheels. The Jeep had just over 195,000 kilometres on it at the time the plaintiff bought it and, according to him, was in proper working order. Mr. Davis was advised by the owner at the time of the purchase that the vehicle had been altered in that a lift kit had been installed.

The effect of a lift kit is to lift the body and the suspension of the vehicle so that there is more clearance between the bottom of the vehicle and the ground. He bought the vehicle to enable him to drive it “off-road” or on surfaces other than a typical street, road or highway surface.

He testified that he took proper care of the vehicle however in April of 2011 he came to be hung up on a snowbank in the Cypress Hills and, in the process of extricating himself from his predicament, he believed that the transfer case was cracked and oil had escaped from the case. [ 3 ] On a day at the end of April or the beginning of May, he took the vehicle to Maple Creek to a business owned by the defendant company. He advised an employee that he thought that a new transfer case was needed and he instructed the employees to fix the vehicle.

He was told that a new case could not be found and that a rebuilt case would be adequate. He was also told that the front drive shaft was too long and had caused the transfer case to crack. The shaft enables power to be transferred to the front wheels. The defendant had arranged to have the shaft repaired at a local shop. Mr. Davis testified that he was told that there was a one year warranty on the rebuilt transfer case. [ 4 ] By May 20, 2011, the work was done and he was provided with invoice number 29977 in the amount of $3,612.82.

He believes that the invoice was divided into three sections - the first dealt with repairs to the transfer case, the second related to repairs to the engine leak and the main seal, and the third was for repairs to the drive shaft. The account was paid by the end of July. The invoice showed the mileage on the vehicle at the time to be 196,096 kilometres. [ 5 ] He said that, on the same day, he took the vehicle to Calgary and on the way he noticed a vibration that changed with the speed at which he operated the vehicle.

He stopped for fuel in Calgary where he noticed oil on the back of the vehicle which he identified as red transmission fluid that appeared to be leaking from the area where the transmission was attached to the motor. He also noticed that when he shifted into 4 x 4, he had to slow down and the shifting process was not smooth. He said that the shift lever appeared to be contacting the plastic housing. He returned home by topping up the fluid. He testified that the foregoing were not problems that he had experienced before he took the vehicle to the defendant.

About four to five days later he returned to the defendant and advised the employees as to the location of the leak, that there had been a vibration and that the linkage did not appear to be right. According to an invoice dated July 19 in the amount of $68.00, the transmission pan bolts were tightened and the transmission was cleaned but a leak was not detected. The invoice shows the mileage as 197,042 kilometres. He is not sure that he paid the account. The same day he again took the vehicle to Calgary and he experienced similar vibration and rough shifting. He returned home by adding transmission fluid.

In late July he returned the Jeep to the defendant requesting that the leak be repaired and he expressed concerns about the vibration. He had also purchased some extra parts for the Jeep and instructed the defendant to install the parts. He received invoice number 30636 dated August 25, in the amount of $823.15 and he was told that the motor required a rear main seal, that the front differential had to be repaired and the transmission leak had originated from the motor side but from a different location. The invoice showed the mileage as 196,673 kilometres at the time. [ 6 ] Later in the month, Mr.

Davis testified that he drove the vehicle to Cypress Park and discovered that the vehicle was leaking motor oil and, once again, a vibration was present. He returned to the defendant a couple of days later and he requested that the transmission be removed. It was discovered that it did not have fluid in it. Both the plaintiff and the defendant undertook to find a replacement transmission. Mr. Davis purchased the

part in Havre, Montana on October 3, for which he paid $1,633.49. He also purchased a brake system and plugs and he delivered all of the parts to the defendant. The defendant installed the transmission, a transmission cooler and repaired a broken ground wire and, by invoice dated October 5, billed the plaintiff the sum of $833.81. The mileage on the invoice is shown as 200,760 kilometres. Mr. Davis paid $341.01 on the outstanding invoice and he was credited with a sum of $492.80. The brake parts and plugs were not installed but rather were stored in a shed on the defendant’s property. Mr.

Davis picked up his vehicle but he was very unhappy when he left the business. It was his evidence that the defendant’s employees said that they did not want to deal with him any further. Another invoice dated October 28, in the amount of $147.84 was sent to him but he does not believe that he paid it. [ 7 ] After picking up the vehicle, he drove to his cousin’s residence and, while doing so, he could smell antifreeze, he detected a vibration and he was not certain that the engine heat gauge was working. The vehicle broke down at Walsh, Alberta and with a boost he was able to get home.

He then discovered an antifreeze leak and, in late October, he took the vehicle to a service firm in Medicine Hat, Alberta where the vehicle was inspected and, along with an oil change and filter, considerable work was done to it including:

a) an oil leak was discovered and repaired,

b) numerous burnt bulbs were diagnosed and replaced,

c) a faulty blower motor was diagnosed and replaced,

d) a cylinder head was replaced and repaired and a tune up was done,

e) the front and rear drive shafts were removed and reinstalled to determine the cause of the drive line vibration,

f) the front and rear brakes were serviced,

g) a missing bolt on the crank shaft sensor was installed, and

h) an RV venting system was fabricated. The firm could not identify the cause of the drive line vibration. The cost to the plaintiff was $2,583.94 and the mileage on the invoice was 205,034 kilometres. The entire account was eventually paid. [ 8 ] He picked up the vehicle in early December and approached the defendant about the antifreeze leak and he was told that the thermostat was unplugged resulting in the leak. The plaintiff said he did not disconnect it himself. [ 9 ] He then travelled to British Columbia where he detected the same vibration as before and he had problems with shifting.

On March 12, 2012, while in Kamloops, B.C., he had repairs done to his exhaust system and it was noted that a transmission mount was worn out. He paid an invoice in the amount $522.55. On August 10, 2012, he then had another firm in Medicine Hat replace the worn front drive shaft on the vehicle at a cost to him of $490.82. He continued to detect vibrations and the vehicle still would not shift properly. [ 10 ] He took the Jeep to a mechanical shop in Calgary where the steering pump was replaced at a cost of $181.31.

The firm also did work to the radiator and alternator and seals were replaced for which he was billed $944.40 by invoice dated October 31. In November, at a time when the vehicle had 241,275 kilometres on it, significant repairs were made to the vehicle including:

a) replacing the steering linkage, the thermostat, radiator hoses and heater,

b) replacing the rear drive shaft and ball joint assemblies, and

c) installing a slip yoke eliminator (S.Y.E.) kit. On November 3, 2012, he was billed $3,597.01. On December 17, a wheel alignment was done at a cost of $167.95. In January of the following year a rebuilt transfer case assembly was installed and a steel shim and a bolt in the rear spring were replaced. In addition, the upper control arm with bushings was replaced due to the extremely high castor angle.

The vehicle had 243,131 kilometres on it and the invoice amounted to $2,110.21. [ 11 ] He told the Court that he had not driven the vehicle “off road” where driving conditions would be very difficult on a vehicle and the impact on mechanical parts would be significant. He said that he operated the vehicle on gravel and pavement. He claimed that he had not driven the vehicle through water or snow. [ 12 ] Considerable mechanical evidence was adduced by both parties. Each of the mechanics are qualified journeymen - with varied experience and backgrounds. I accepted their evidence as expert testimony. [ 13 ] Mr.

Drew Hoszouski, the major principal of the company in Calgary that performed the last repair work described above gave evidence for the plaintiff by telephone. He is a Jeep dealer who specializes in repairing 4 x 4 vehicles. He had worked as a journeyman mechanic since 2003 and he had been doing mechanical work on vehicles for 18 years. In addition to his provincial qualifications that he obtained in 2003, he had a certificate as an inter-provincial journeyman. His evidence was accepted as that of a person familiar with the workings of a 4 x 4 vehicle including the workings of a transfer case.

Before directing his attention to the facts of the case, he explained the function of a transmission, a transfer case and a differential to the Court. He is familiar with the plaintiff’s Jeep since he had occasion to examine and repair it at various times from September of 2012 to January of the following year. He added an S.Y.E. kit. He had also

installed upper adjustable control arms because the front axle of the vehicle had been adversely affected in that the castor angle exceeded the manufacturer’s specifications by two to three percent which then had an impact on the steering of the vehicle. The transfer case was removed to check seal leaks and the seals were replaced on the output end of the case. According to Mr. Hoszouski, a shim had been improperly installed where the case was secured to the vehicle. In the process of installing the S.Y.E., it was discovered that the incorrect bearing was previously installed on the output of the transfer case.

The transfer case installed by the defendant was then replaced however when the case was removed it was noted that the interior was badly contaminated by rust. Mr. Hoszouski concluded that the transfer case was a used case because a new case is sealed and should not have rust in it. Handwritten markings on the exterior caused him to conclude that the markings must have been made by an auto-wrecker. There was rust on the rear output bearing.

There seemed to be an excessive amount of silicone sealant on the outside of the case which was then painted and some of the paint was peeling off which caused him to conclude that the surface was not cleaned properly before painting. Silicone sealant was found on the inside as well. Inside the case, the output shaft was covered with a coating of rust as was the planetary gear unit. At the rear of the case, the chain was loose and apparently had been under strain and as such could cause vibration. There was rust and wear points along the gear in the oil pump drive unit and the gear wobbled in the case.

The front of the transfer case where the shift assembly is located had bright red fluid residue in it indicating that there was no contamination in that area. Areas of the inside wall were smooth to indicate that the chain had been rubbing against the case. There were shavings present on the bearings and the bearings were covered in rust. At the rear of the case at a spot where a bolt could be inserted, wear was evident.

As is usually the case, there is a magnet in a transfer case that is intended to attract metal particles that otherwise would cause wear in the interior of the case and, in this case, the magnet had small pieces of metal adhering to it causing Mr. Hoszouski to conclude that rust particles must have travelled to the rear output bearing. [ 14 ] He said that the presence of rust in the case indicated to him that the case was in operation while low on fluid or that there was water in the case.

Rust will cause pitting on the surfaces and extra wear on the mechanism - even causing metal to flake off resulting in further damage. The result could be vibration and internal damage. If there is sufficient lubrication, there should be no rust. He drove the Jeep before another transfer case was installed and he found that shifting into four wheel drive while the vehicle was moving was difficult. He had to shift when the vehicle was stopped because, he said, there was significant noise coming from the case. It was his conclusion that the transfer case was the source of the vibration and the noise.

The loudest noise came from the chain jumping the sprockets and from the contaminated bearing within the case. The vibrations could cause the seal to weaken and damage the internal parts of the transmission. [ 15 ] Since the repairs were made, the transfer case enabled shifting to take place as originally intended without vibration.

He told the Court that, in his experience, a transfer case should last the life of a vehicle however he acknowledged that he only provides a 12 month or 20,000 kilometre warranty for the transfer cases that he rebuilds. [ 16 ] He advised the Court that when a transmission runs out of oil, the components heat up due to friction causing further damage to the parts. Usually if there is a smell in the vehicle then that is an indication that the transmission is slipping, and that it should be replaced with rebuilt parts. [ 17 ] Mr. Hoszouski gave evidence as to his knowledge of lift kits.

A lift kit is installed in a vehicle to cause the vehicle to sit higher than normal so that the owner of a vehicle can use tires that are larger than that recommended by the manufacturer. Installed improperly, vibrations can also result. In this case, he thought that the lift kit was installed properly except for a shim that was not properly installed which could cause a vibration or a “clunking” sound to occur. [ 18 ] Mr. Chad Stahl, a journeyman mechanic, gave evidence for the plaintiff. He is a journeyman mechanic and has maintained that status since February of 1986. Mr. Davis took his vehicle to Mr.

Stahl’s business in Medicine Hat on November 30, 2011 for a general examination. The vehicle had 205,034 kilometres on it. It was discovered that a temperature gauge was unplugged. A dye was put into the engine oil and a leak was detected at the cylinder head which was repaired at a significant cost to the plaintiff. He investigated the vibration that, he said, usually comes from the front or rear drive shafts in the case of 4 x 4 in about 90% of the cases. In this case however, neither drive shaft appeared to be the source of the vibration.

He admitted that wear could cause the vibration and he concluded that the vibration must have originated somewhere else. He said that the lift kit on the vehicle would “definitely” place more strain on the U-joints. The Defendant [ 19 ] Mr. Robert Lockard testified for the defendant. He is a journeyman mechanic with an inter- provincial ticket. He has been licenced as such since 1978 and he had worked at the defendant’s business since 1973. He is also part owner of the firm.

[ 20 ] In May of 2011 he recalled the plaintiff bringing in the Jeep on a trailer. A hole was discovered in the transfer case. The transfer case was replaced with a rebuilt case and in the process of putting the vehicle back together on the hoist, it was discovered that the front drive shaft could not be installed because it was too long and, Mr. Lockard concluded, it had punched a hole in the transfer case. He explained that a lift kit has the effect of lifting the vehicle and thereby changing the angles at which the body sits in relation to the rest of the vehicle.

Essentially, the lift kit pushes the axles in a downward direction and the front drive shaft is forced toward the transfer case. He concluded that the lift kit, in this case, had been improperly installed and that the drive shaft had to be shortened. In addition to replacing the case and correcting the drive shaft, a rear U-joint was replaced. The mechanic did not think that there was anything out of the ordinary about the case when he installed it. It was in the same condition as other transfer cases that he had worked on and had been supplied by a NAPA autoparts dealer. [ 21 ] He recalled that Mr.

Davis called a few days after the transfer case had been installed claiming that the defendant had damaged the front seal on the transmission. At that point, the defendant had not yet worked on the transmission. He also complained that the pan bolts were loose and, after they were tightened, a test drive did not indicate any leaks. The plaintiff subsequently brought the vehicle back to complain that the transmission was leaking. It was discovered that a shift seal was leaking and, due to the fact that the defendant could not get parts from the manufacturer, the employees attempted to patch the existing seal.

The matter was discussed with him and he was made aware that the fix was temporary. [ 22 ] The plaintiff came to the shop once again complaining of an oil leak. The rear engine seal was replaced because a previous seal was too hard to be effective and did not seal properly. [ 23 ] Mr. Davis returned to the defendant in the late fall of 2011, once again claiming that the transmission was leaking. Mr. Lockard recommended that he replace the transmission. The mechanic told Mr. Davis that heat was causing the oil to be pushed out.

The impact of the front drive shaft against the transfer case had caused damage to the case and may have affected the transmission. Mr. Davis obtained a transmission and instructed the defendant to install it. There was an oil leak that was also repaired. He did not recall the plaintiff making any complaints about the transfer case until October or November. He did, however, notice that the vehicle was in rough shape insofar as its general appearance was concerned. He noted that Mr. Davis appeared to have been drinking. [ 24 ] The defendant called Mr. Darrell Bierback.

He is a journeyman who has had inter-provincial qualifications since 1993 and he is the owner and operator of a mechanical business in Medicine Hat that rebuilds transmissions, transfer cases and differentials. He told the Court that he rebuilds and installs from 75 to 100 transfer cases a year. Typically, the exterior is the original housing but the interior parts are new. He was familiar with a firm known as Western Power Train in Edmonton, Alberta from which he ordered most of his standard parts including transfer cases and transmissions. He does not install used parts.

He admitted that his firm does not specialize in lift kits but he testified that the firm does see many vehicles with lift kits and drive line problems. [ 25 ] He is familiar with the 1995 Jeep in question because he owns a similar 1994 model that at the time had 250,000 kilometres and he works on many other such Jeeps. His experience with the Jeep is that when an aftermarket addition, such as a lift kit, is installed the drive line is not aligned as it should and a vibration can result.

In technical terms, the manufacturer designs the vehicle so that the drive line slips in and out of the slip yoke at the rear of the transfer case at a certain angle. The total of the angles should be 180 degrees to avoid vibration. If an S.Y.E. kit is installed with a lift kit then the drive line is held securely to the transfer case and the drive line can move in and out without binding to avoid vibration. In addition, a wedge shim is installed at the rear differential to lessen the angle of the drive line so as to eliminate vibration.

He went on to say that Jeeps have a short wheel base and if a lift kit is installed the shorter rear drive line can create an extreme angle. He told the Court that it is possible for the vibration in a lifted vehicle to crack a transfer case and, in addition, to cause damage to the transmission. Furthermore, mismatched tire sizes (even as little as a quarter of an inch difference) can stretch the chain in the transfer case causing unnecessary wear. The tires of a four wheel drive vehicle should be rotated every 7,000 to 8,000 kilometres.

Damage can result if such a vehicle is operated over a distance of 47,000 kilometres without proper maintenance. [ 26 ] He went on to testify as to the condition of the interior of the transfer case. Typically, the internal parts of a transfer case are new and there should not be rust present since the interior is well lubricated. He said that it is advisable to promptly replace the oil in the transfer case if the vehicle has been in water because oxidation can take place in a short period of time. He testified that all rebuilt transfer cases are sealed together using silicone sealant.

He has purchased rebuilt transfer cases from Western Power Train for 13 years and he believes that all of the rebuilts are done with new parts. He would not expect rust in a rebuilt case. He examined photographs of the exterior and interior of the transfer case in question. He identified a handwritten set of numbers on the exterior of the case as part numbers that were likely placed on the case not by an auto-wrecker but by Western Power. He agreed that the case showed a lot of rust. The chain was severely worn and the inside of the case was scraped.

He said that operating the vehicle in up to two feet of water can result in water entering the case. He also told the Court that a loose chain would cause vibration only if the vehicle was in four wheel drive. In essence, the purpose of a transfer case is to enable the operator of the vehicle to shift from two wheel drive to four wheel drive. [ 27 ] He admitted that his firm had dealings with the defendant business prior to the date of trial. It was his position that a transfer case

that is hot is more likely to take in water. He said that the operator of a vehicle can “play” but the oil must be drained afterward. I take it from his comment that if a vehicle is driven in difficult conditions (especially in water) the oil should be promptly replaced. He concluded his testimony by saying that the only explanation for the rust in the transfer case was that the vehicle had been operated in water while in four wheel drive. [ 28 ] Mr. Roger Lewis is part owner and manager of the defendant business. He deals with customers and he was the parts man on the dates in question.

His recollection was that Mr. Davis came in with the Jeep on a trailer and he said that he thought that he needed a transfer case. Such a case could not be obtained from the manufacturer so he purchased a rebuilt case from a firm known as Transmission Express of Camrose, Alberta. He understood that the part had originated from Western Power Train. Mr. Davis asked the defendant to look at some oil leaks. A transfer case arrived at the defendant’s business and it did not appear damaged. The same was installed and Mr. Davis was provided with a one year/20,000 kilometre warranty. Mr.

Davis later contacted the defendant on a number of occasions complaining that the transmission was leaking and, after tightening some pan bolts, the defendant could not detect any further leaks. Mr. Davis did not complain about the operation of the transfer case or of vibration or shifting problems. Finally, he needed a transmission because he advised Mr. Lewis that he had operated the transmission without oil and he had kept the vehicle going by topping up the oil supply.

The defendant installed a transmission even though it is not the defendant’s policy to install parts supplied by the customer and the plaintiff did not pay for the installation costs. Ultimately the defendant did not wish to deal with the plaintiff because he had been abusive to the defendant’s employees. [ 29 ] After examination of the evidence, I am satisfied that the following facts are not in contention: 1. on December 25, 2010, the plaintiff purchased a 1995 Jeep with a lift kit. It had 195,000 kilometres on it.

An S.Y.E. kit was not installed and a steel shim was not properly installed, 2. the front drive shaft was too long, 3. four months later, the plaintiff got stuck with the vehicle and in the process of freeing the vehicle, the transfer case was cracked because of the length of the front drive shaft, 4. the transfer case was replaced by the defendant at 196,096 kilometres and the drive shaft was shortened, 5. on two trips to Calgary, oil and transmission leaks were discovered, 6. Mr. Davis purchased a rebuilt transmission and the defendant installed it.

Vibration was still present, 7. an inspection was conducted in Medicine Hat when it had 205,034 kilometres on it and the front and rear drive shafts were removed and reinstalled. The vibration was still present, 8. the plaintiff took the vehicle to Kamloops where the exhaust system was replaced, 9. the transfer case was replaced at 241,275 kilometres. The old transfer case had significant rust deposits and metal contaminants in the case. The chain was stretched and had made contact with the interior of the case.

Considerable repair work was done to the vehicle, 10. further repairs were done to the vehicle including major repairs to the steering system and an S.Y.E. kit and shim were added, and 11. vibrations and shifting problems did not persist after the repair work was completed. Law [ 30 ] The plaintiff alleges that the defendant business supplied and installed a defective used transfer case. The statutory warranties set out in

section 48 (

d) and (

g) of The Consumer Protection Act S.S. 1996, c.C. - 30.1 (the “ Act ”) requires that a consumer product be “of acceptable quality” and “durable for a reasonable period”. The plaintiff argues that the warranties were breached. In

section 57, the Act permits a party to recover damages arising out of a breach of a statutory warranty. [ 31 ] The defendant argues that the case was a rebuilt case from a parts supplier, that the plaintiff’s claim is exaggerated and that the plaintiff is attempting to hold the defendant responsible for improvements made to the vehicle. The problems with the transfer case were the result of the plaintiff’s operation of the vehicle or as a result of strain put on the case by the presence of a lift kit. Analysis

[ 32 ] The plaintiff’s claim is based on the law of contract. [ 33 ] The Act applies to a transaction that includes goods and services unless such a transaction is excluded from the operation of the Act by the regulations (section 4). Mr. Davis is a consumer and he purchased goods and services from the defendant. The sale of a used or rebuilt transfer case is subject to the provisions of the Act (section 42). Therefore the statutory warranties in

section 48 of the Act apply to the transaction. It is the responsibility of the seller to provide a product that is of acceptable quality, [section 48(d)] and that it is reasonably durable, [section 48(g)]. Remedies for a breach of the statutory warranty depend on whether or not the breach is remediable and of a substantial character. A further examination of the facts is necessary. [ 34 ] Evidently, the plaintiff purchased an old vehicle with a high number of kilometres on it and, while it is not clear from the evidence as to when it was installed, it is evident that the vehicle was purchased with a lift kit.

The purpose of a lift kit is to permit the vehicle to be operated “off road” in other than normal driving conditions and with tires that are of a greater size than normally used on the vehicle. An S.Y.E. kit should have been installed to offset the angle of the drive line and a steel wedge shim should have been put in place to compensate for the drive line angle. Considerable mechanical work was done to the vehicle that was unrelated to the transfer case indicating to me that the vehicle was the subject of considerable wear and tear.

The purchase price is indicative of the market value of the vehicle and the considerable repairs that were done to the vehicle exclusive of the work related to the transfer case indicate that there was significant wear and tear on the vehicle before or after the purchase. However, the existing condition of the vehicle does not, in itself, explain the condition of the replacement transfer case. [ 35 ] Although opinion evidence was provided from both sides to this action, there is some agreement between the mechanics (Mr. Hoszouski and Mr. Bierback) as to the state of the transfer case.

Rust was present and caused significant damage to the interior. The loose chain caused wear and a noise as well. The installation of the lift kit could result in vibrations that could cause damage to the internal parts of the transmission (even the housing) and to the bearings. In essence, the kit put the drive line out of proper alignment. With the installation of a new rebuilt transfer case and an S.Y.E. kit with shim, the vibration was no longer a factor. Mr. Bierback expressed concern about the use of mismatched tires that could stretch the chain. This particular scenario was not put to Mr. Hoszouski.

There are, however, other points on which they do not agree. [ 36 ] Mr. Hoszouski was of the view that the case was a used case that was purchased from an automobile wrecker. He pointed to the handwritten numbers on the case and the silicone seal that was used. Mr. Bierback had satisfactory experiences with the supplier and gave specific evidence that identified the numbers as part numbers to confirm his view that the case was likely supplied by Western Power. It is typical for a rebuilt case to be put together with silicone because the silicone acts as a seal.

In his experience, the rebuilt cases that he had ordered from the firm had new interior parts. [ 37 ] Mr. Bierback pointed out that at the time the case was replaced by Mr. Hoszouski it had about 47,000 kilometres on it. If it had been a used case with rust damage at the outset, it would likely have failed long before it was replaced. He concluded that the damage to the case was caused more recently.

He attributed the rust to the significant operation of the vehicle in four wheel drive since the case is operational only in that state and the operation of the vehicle in water such that when the case is run hot, water can enter the transfer case. In his experience he has not seen rust in a rebuilt case.

When operated in difficult conditions, it is necessary to promptly conduct maintenance on the vehicle such as replacing the transfer case oil and rotating tires more frequently. [ 38 ] The onus is on the plaintiff to establish his case on the balance of probabilities - that is, it is “more probable than not” that his claim has been established [1] or, put another way, the Court must be satisfied that the plaintiff’s claim “is substantially the most probable of the possible view of facts” [2] . [ 39 ] After examining the evidence in this case as to the condition of the transfer case, I cannot conclude that it is likely that the transfer case was a used part.

Rather, there is significant evidence that it is indeed a rebuilt case supplied by a reputable parts supplier. It seems distinctly possible that if the case was a defective part, it would not have been operational for over 45,000 kilometres so as to take the plaintiff to Calgary and Medicine Hat (on two occasions each) and Kamloops before making its final trip to Calgary where it was replaced. I am inclined to believe that the transfer case (and the vehicle) must have been engaged in four wheel drive frequently and that it is possible that the vehicle was operated in “off road” conditions including in water.

It is clear that the plaintiff clearly intended to purchase a vehicle capable of “off road” use and so it seems extremely unlikely that Mr. Davis did not use it for that purpose prior to the replacement of the transfer case.

[40] Furthermore, there is evidence that the lift kit - installed as it was, may have caused the vibration that damaged the transmission,bearings and steering mechanism on the vehicle. While there is no evidence as to the size of the tires that Mr. Davis used on the vehicle,there is some evidence that mismatched tire sizes can stretch the chain in the case as is apparent in the transfer case in question.

There isalso credible evidence that the vibration and shifting issues were not brought to the defendant’s attention until many months after thetransfer case was installed by the defendant. [41] In the end result, I cannot conclude on balance that the plaintiff has proven his case and, therefore, I must dismiss the action. __________________________ L.A. Matsalla, J [1] Miller v. Minister of Pension, [1947] 2 All E.R. 372 at 374 (K.B.). [2] Clark v. R. (1921), (SCC), 61 S.C.R. 608 at 616 Duff J.