2011 QCCQ 1284, 2011 QCCQ 1284

Laurin c. 3379698 Canada inc. (Zeke's Automotive Performance) 2011 QCCQ 1284 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-113962-080 DATE: February 1, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L.

CAMERON, J.C.Q. ______________________________________________________________________ ANDRÉ LAURIN […] Dorval, Quebec […] Plaintiff vs. 3379698 CANADA INC. doing business under the name ZEKE'S AUTOMOTIVE PERFORMANCE 308 Mongeau St-Basile-Le-Grand, Quebec J3N 1E2 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] André Laurin, the owner of a 1995 Ski Centurion water-ski boat sues Zeke's automotive Performance ("Zeke's ") to recover amounts paid to Zeke's for diagnostics and repairs to the boat's engine, as well as remedial repairs done by a competitor allegedly because of damages done to the marine motor by Zeke's. [ 2 ] Zeke's contests the action denying that it was in fault in the way it diagnosed and repaired the marine engine.

ISSUE [ 3 ] This case raises questions concerning the intensity of the obligation of a mechanic repairing an engine. Is Zeke's responsible for performing repairs that were ineffective and not discovering the cause of the improper functioning of the motor? FACTS [ 4 ] In 2006, Mr Laurin purchased the water-ski boat in Florida. Because the boat was not properly winterised, cracks developed in the engine block. In the spring of 2007, he took the boat to a marina.

A dispute arose after certain work was done. [ 5 ] Unsatisfied with the functioning of the motor, Mr Laurin entrusted the repair of the boat engine to Zeke's which held itself out as being competent in the repair of all type of motors including marine engines. [ 6 ] The engine in question is a rebuilt 1995, 350 V8 engine.

The Court learned that this type of engine is, basically, the same as a car engine but specially fitted with a mechanical set-up appropriate for a continuously engaged marine engine. [ 7 ] The motors are procured by Mercury but, in fact, assembled in a factory that assembles Chevrolet motors intended for automobiles.

[ 8 ] The parts of the engine that are visible on the exterior clearly identify it as a marine engine but the mechanical parts that are designed specifically for marine applications are inside the block and cannot be identified as such unless the engine is dismantled. [ 9 ] From the outside, the engine resembles a Chevrolet car or truck engine of the same vintage. [ 10 ] After inspecting the engine Zeke's performed a first set of repairs focussing on the fuel injection and spark plugs, issuing a bill for $1,084.73. [ 11 ] Mr Laurin paid that invoice. [ 12 ] On testing the engine, Mr Laurin discovered that it was still running rough and smoking heavily.

Later the same day in a water test the engine was still performing badly. [ 13 ] Mr Laurin returned it to Zeke's and a new diagnostics was given that the engine computer was faulty.

Through Mr Laurin's intervention directly with Mercury Marine in the USA, a new computer was procured and installed by Zeke's. [ 14 ] Their invoice for $635.49 (P-4) is dated June 19, 2008. [ 15 ] Again, Mr Laurin did another water test and discovered that the engine was smoking and idling high. [ 16 ] Frustrated and unsatisfied, Mr Laurin took the boat to a competitor, Groupe Performance Marine; two bills are produced, P-7 dated August 9, 2008 for $4,049.76 and P-8 dated September 4, 2008 for $4,553.81. [ 17 ] In the first invoice (P-7), a number of items charged related to the fuel injection, Groupe Performance Marine also took off the intake manifold and reinstalled a new gasket in an attempt to solve a problem of loss of vacuum on the motor. [ 18 ] There are also some unrelated items such as a bilge pump. [ 19 ] After these repairs were done it came to light that the engine was not a true marine engine in that it was adapted as an automobile engine rather than as a marine engine. [ 20 ] Groupe Performance Marine confirmed in a letter (P-6) that "From the exterior, a Small-Block GM 350 CDI for an automobile motor looks identical to a Small-Block GM 350 TBI marine motor – however the internal configuration for a marine motor is significantly different." [ 21 ] Mr Laurin was faced with a dilemma.

He had been unsuccessfully expending energy and resources on fixing what he thought was a fuel delivery problem in a marine engine while in reality, the engine was not serviceable because it was not, despite appearances, a marine engine. [ 22 ] Mr Laurin solved this dilemna by obtaining a new motor block from Mercury, referred to as a "long-block". This was a motor that was truly adapted for a marine application. He then had Groupe Performance Martine salvage as much as it could from the existing motor and build it up to a finished product. The second bill (P-8) is substantial: $4,553.81.

ANALYSIS [ 23 ] Mr Laurin does not claim for Groupe Performance Marine’s second bill, (P-8) and, correctly so: Zeke's could not have known that the motor that it was given to it to repair was not really a marine engine but an automobile engine fitted with peripheral parts to operate as a marine engine. [ 24 ] Zeke's cannot be blamed for failing to properly diagnose a problem that it could only have only discovered if it had dismantled the engine, something that was not called for in the context of solving the problems of ignition and fuel injection. [ 25 ] The same considerations apply to all of Zeke's invoices, which, as it turned out, were incurred needlessly.

Zeke's couldn't have known this because the client presented the engine as being a marine engine. There was no reason to suspect that it was a car engine disguised as a marine engine. Zeke's did its best to solve a problem that could not be resolved.

It could not reasonably have been expected to completely dismantle the engine to check to see if it was really a marine engine. [ 26 ] The part of the claim that relates to Groupe Performance Marine's first invoice for a total of $4,059.76 in repairs including damage relating to Zeke’s work is not recoverable because of the failure to put Zeke's properly in default. [ 27 ] Groupe Performance Marine indicates it its letter (P-6), that the fuel injection system and associated hardware had been damaged.

Mr Laurin should have put Zeke's on notice giving it the opportunity to inspect the parts alleged by Performance Marine to be damaged in order to be in a position to defend the claim or to repair or replace the parts at its own cost. [ 28 ] The demand letter dated October 2 nd , was sent well after the allegedly remedial work was completed. This is fatal to a claim for damages relating to the faulty performance of a contract. [ 29 ] Costs will not be imposed on Mr Laurin because of the complex nature of the problem from his vantage point.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action, without costs.

__________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: November 9, 2010