Bradley Ulvild - v. -, 2016 SKPC 068

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 068 Date: May 10, 2016 File: SC 339/15 Location: Regina _____________________________________________________________________________ Between: Bradley Ulvild - and - Olympic Motors (SK) I Corporation and Constantine Yannikostas Self Represented For the Plaintiff Kevin Mellor For the Defendant, Olympic Motors (SK) Corporation Self Represented For the Defendant, Constantine Yannikostas JUDGMENT P. DEMONG, J Introduction [ 1 ] The plaintiff Bradley Ulvild (‘Bradley’) carries on business under the trade name and style of Brad’s Automotive.

He brings action against each of the defendants, jointly and severally, seeking payment for goods and services he provided at the request of Olympic Motors (SK) I Corporation (‘Olympic’) in an attempt to repair a vehicle owned by Constantine Yannikostas. Neither the nature of the repairs nor the amount of money sought is in issue. This Court is called upon to determine which of the two defendants are legally obligated to pay for those automotive goods and services that were provided.

[ 2 ] Olympic alleges that Costa should pay since it was expressly authorized to act as agent when it directed the plaintiff to provide repair services. Costa denies that he ever authorized Olympic to direct the plaintiff to do the repairs, which he says, in any event, were required because Olympic caused the damage to his vehicle for which repairs were sought. He says, therefore, that Olympic is responsible for payment of the account.

Evidence and Findings of Fact [ 3 ] The defendant Costa is the owner of a 2008 Land Rover motor vehicle that he bought from the co-defendant Olympic in or about the latter part of 2008. [ 4 ] In the years following that purchase, Costa would, as and when required, bring his vehicle to Olympic for servicing and repair. [ 5 ] On or about March 13 of 2014, Costa brought his vehicle to Olympic complaining that the battery was not working properly. The work order that Olympic prepared for the vehicle cited the following problem: ‘customer reports vehicle keeps going dead’.

Olympic says it tried, without success, to fix the vehicle. It retained the vehicle for approximately nine weeks. Olympic says that during that time it advised Costa that it required a piece of equipment known as a ‘scanner’ to assist in identifying the nature of the vehicle’s electrical problem. Olympic says that they contacted Costa and advised him that if he was prepared to incur the cost of shipping the vehicle to Calgary, the vehicle could likely be fixed as its sister company in Calgary had the requisite scanner.

Olympic says that Costa was not agreeable to that arrangement, presumably because the cost was excessive, but that nevertheless, Costa ‘wanted the vehicle fixed’. [ 6 ] Olympic says that it then advised Costa that they would deliver the vehicle to Brad’s Automotive, because Bradley, the owner, had significant experience fixing Land Rovers, and because he would almost certainly have the necessary ‘scanner’ to identify the nature of the problem. Olympic says that Costa gave it permission to do so, and that Olympic in turn telephoned Bradley and asked him to attempt to repair the vehicle on behalf of its owner.

In evidence, Olympic suggested that they offered Bradley a new client and that Bradley accepted. Olympic says that Bradley accepted the new client and Olympic then towed the vehicle to Brad’s Automotive and left it with Bradley. [ 7 ] Bradley commenced work on the vehicle. I would note in passing that before he started working on the vehicle he took no steps to determine whether he was doing the work for Olympic, or for another party, someone who may own the vehicle. Bradley says that when he took possession of the vehicle, he was unaware of who owned the vehicle.

He was operating on the assumption that his agreement was with Olympic, and not some other third party. He denies that, as Olympic asserts, Olympic ever provided him with the owner’s name. He says, and Olympic concedes, that there was no paper work or work order provided to him in respect to his undertaking this repair.

He says that this is not particularly unusual, as he has, in the past, done work for Olympic and other dealerships in this manner, and is invariably paid directly by Olympic or those other dealerships. [ 8 ] Try as he might, Bradley could not get the vehicle to ‘wake up’, that is to say, to get the vehicle’s electrical system to respond to any attempts to get it working again. Bradley says that he contacted Olympic on a couple of occasions to advise them of his need to purchase modules and other electrical parts to assist in his efforts to repair the vehicle and he was given the go ahead to do so.

These parts were ordered on or about June 25 th of 2014, and August 5 th of 2014. They proved to be relatively expensive, amounting to slightly less than $3,000.00. [ 9 ] Bradley says that he worked on the vehicle from time to time as his work

schedule permitted. He had taken possession of the vehicle on or around early May of 2014, and kept working on the vehicle through until September 9 of 2014, a period of approximately four months. In total, his bill for the parts and services (taxes in) equated to $4,525.04. Bradley states that while he did not keep time slips indicating when and for how long he worked on the vehicle, the actual labour expended on the vehicle was well in excess of the amount charged for the labour, which, at $127.00 per hour, was identified in the bill at $1,016.00. [ 10 ] Costa denies that he was ever advised by Olympic that his vehicle had been sent to Brad’s Automotive to be fixed. He recalls

having conversations with both the owner and service manager of Olympic, each, on a couple of occasions, and he confirms that he did indeed want his vehicle fixed, but that he was not prepared to incur the cost of having his vehicle sent to Calgary. He asserts that he had a conversation with Olympic’s owner, Tom Glenn, in relation to this. He says that Tom suggested, or inferred, that Olympic had done something untoward with the vehicle which may have, or did, aggravate the problem with the vehicle, and that Tom would do right by him in that regard.

In April, Costa says that he was sent a text message from the service manager which stated ‘brutal service ... I will make this up to you’. [ 11 ] Tom was not called to testify, and there is scant evidence before me that Olympic ever did, in fact, cause further damage to the vehicle while it was in their possession.

The only evidence is that Bradley, as an experienced mechanic, posited a passing opinion that the extensive problems that he had in attempting to fix the vehicle’s electrical system would unlikely have existed prior to the vehicle being brought in to Olympic because it would not likely have been driveable. That stated, there is no question that the service provided to Costa, by Olympic, was poor.

He was without his vehicle for an extended period of time, and I believe him when he says that he could not get a straight answer from the service department at Olympic. [ 12 ] Costa says that in the weeks following his delivery of the vehicle to Olympic, he became frustrated with the delay. He had been given a loaner for about one month at no cost, but after that time he was advised that he would have to pay for its further use.

Costa says that in late spring or early summer (he cannot remember the specific date, or for that matter most of the significant dates regarding this dispute) he went to Olympic and talked to one of its employees ‘Josh’ for a status update. He says that Josh ‘would not’ tell him where his vehicle was, but that eventually he was made aware that Olympic was having someone else look at the vehicle. [ 13 ] I admit to having some concern with the evidence Costa provided thereafter. He says that no one at Olympic would meaningfully respond to his questions, or advise him where his vehicle was.

He says that in response, he took to canvassing garages throughout the city over the ensuing weeks and it was not until sometime in July that he saw his vehicle located at Brad’s Automotive. He went to Brad’s Automotive, he says, because it is well known in the Land Rover owner’s community that Bradley worked on Land Rovers. I find it most unusual that Costa, having been without his vehicle for almost sixteen weeks did not take more active steps to compel Olympic to divulge the location of his vehicle. That stated, Costa presented at court as an extraordinarily accommodating and genteel witness.

Perhaps he is one of those people that are not easily ruffled. Alternatively, it may well have been that he was satisfied that Olympic was taking some steps on his behalf to accommodate him by getting the vehicle repaired at their cost to placate him for the brutal service that they had provided. [ 14 ] In any event, Costa says that he attended at Brad’s Automotive on or about July 29 of 2014 and on several occasions thereafter. He was aware that Bradley was trying to fix his vehicle and opined in court that he felt that Bradley was working diligently on his vehicle.

In fact, Costa says that he met up with Ken Slingsby, the service manager of Olympic, at Brad’s Automotive and had conversations with him about the work being done on the vehicle, although he says that he was unsure about the details of those conversations. [ 15 ] By early September of 2014, now almost six months after he had been without his car, Costa says that Bradley told him that he couldn’t repair the vehicle. Costa says that he asked Bradley for the keys to the vehicle and towed it from Brad’s Automotive to his home on or about September 9.

He says that he needed the keys because a Land Rover is exceedingly difficult to move without the keys being physically in the vehicle. Bradley’s recollection on this point is different than Costa’s. He recalls Costa towing it away on the weekend before the 9 of September and then coming back for the keys on the Monday after that weekend. [ 16 ] Bradley says that he took no issue with Costa taking the vehicle because, in his mind, his agreement to repair the vehicle was with Olympic. He was operating on the assumption that Olympic would pay for the goods and services provided.

He did not think of placing a garage keeper’s lien on the vehicle, nor did it occur to him to prevent Costa from taking possession of the vehicle. [ 17 ] It became apparent at trial that Costa had decided to make a claim with SGI in relation to the vehicle. For reasons not explained, this claim had been made on or about August 25 of 2014, while the vehicle was in Bradley’s possession. He did not advise Bradley or Olympic of this claim, at least not until sometime later in the fall of 2014. SGI duly investigated the damaged condition of the vehicle and sent it out for inspection.

SGI eventually paid Costa the sum of $24,950.00 pursuant to the claim. This sum equated to what SGI felt was the fair market value of the vehicle. SGI felt that the vehicle should be written off. Their investigation revealed that a significant portion of the electrical wiring had been eaten through by mice. Because there were mouse droppings in and throughout the vehicle, it

could not be fixed for fear of contracting hantavirus, a particularly deadly virus found in mouse droppings. SGI paid the claim because, in their view, the loss of the vehicle arose by virtue of accidental means rather than as a result of mechanical failure. [ 18 ] The Court is left to conclude that the entire problem with the vehicle was that the electrical system failed not because of something to do with broken parts of an electrical system, but rather because the wires which ran to and from that electrical system had been destroyed.

Ultimately, all of the work done by Bradley did not have any significant bearing on the vehicle’s potential repair. This does not, however, in any way detract from the fact that Bradley conscientiously worked on the vehicle and deserved to be paid for that work. Neither defendant suggested otherwise. Issues [ 19 ] As stated earlier, the only issue before this Court is to determine who, as between the defendants, either individually or jointly and severally should be responsible for payment of Bradley’s account.

The Law [ 20 ] If, as Costa asserts, he was not made aware of the fact that Olympic was going to retain a third party to repair his vehicle and if I were to find that Olympic was not given either actual or ostensible authority to do so by Costa and if I were to conclude that Bradley was not made aware that Olympic was acting as agent for Costa, then I would have to find that Olympic, and not Costa, is obligated to pay the bill. It would not, in my view, be open to Olympic to allege that they were simply acting as agent for its principal Costa.

It would be clear that a contract was entered into between Bradley and Olympic. There would have been a request to do work and an acceptance of that request. In the absence of a quoted price, Bradley would be free to charge a fair and reasonable price on the basis of a contractual quantum meruit. Because the quantum sought is not disputed, Olympic would have to pay the amount of the invoice that has been presented. [ 21 ] After having reviewed the evidence and observed the parties I am satisfied that Olympic did not seek Costa’s authorization to direct Bradley to effect repairs.

If it were simply Costa’s word against Olympic I would have more difficulty in coming to this conclusion. However, I find Bradley to be credible when he says that he was never advised that Olympic was directing the work on the express authority of Costa, let alone, being ‘given a client’. Olympic’s evidence on this point was, in my view, sorely lacking. Its evidence was that it had offered Costa as a client to Bradley and that Bradley had accepted.

If this was in fact the case, objectively viewed, one would think that Bradley would immediately have contacted Costa to discuss the nature of the problem, the intended approach to repairs and the estimated cost. Not only was this not done, Bradley contacted Olympic, and not Costa, when he sought pre- approval to purchase expensive parts for the vehicle. He says he obtained that approval from Olympic and I believe him. That being the case, what possible authority would Olympic have to authorize those purchases?

The answer, if Olympic is to be believed, is none. [ 22 ] Olympic’s suggestion that they advised Costa that they had transferred the vehicle to Bradley is equally suspect. Olympic’s evidence on this point is fleeting. I have no doubt that reasonable people on being informed of this would make certain inquiries, specifically, the nature of that person’s qualifications, the nature of the repairs that are anticipated, and an estimate of the cost. There was no evidence on these points whatsoever.

There is no evidence that Olympic ever sought directions from Costa with respect to the purchase by Bradley of expensive parts. When I compare Olympic’s bald assertion, against each of Bradley’s and Costa’s denials, and my perception of how reasonable people would conduct this kind of business affair, I find Olympic’s evidence on this point lacking.

I find it more troublesome when, as happened in this case, Olympic felt the need upon being advised that Bradley had given up possession of the vehicle to Costa, to immediately write a short letter to Bradley and hand deliver it to him the same day advising that he should ‘protect his interests’ in relation to his client. This latter step sounds more like an ex-poste justification for their ultimate position rather then, as Olympic asserts, an erstwhile desire to assist Bradley in his business endeavours. [ 23 ] This however, does not end the issue.

It is abundantly clear on the evidence that Costa discovered that Bradley was working on the vehicle. After having discovered this, he had conversations with Bradley in this regard. He had conversations with Ken Slingsby, Olympic’s sales manager, in this regard, in person and at Bradley’s shop.

The fact that Costa was made aware of the fact that Bradley was now working on his vehicle, the fact that he took no steps whatsoever to stop the work from proceeding, and the fact that he did not immediately (or ever, for that matter) alert either of the other parties that he was not prepared to allow the work to either occur or continue, invites me to come to the inevitable conclusion that Costa was prepared to allow Bradley to work on the vehicle. In that sense,

while he may not have originally provided actual or ostensible authority to Olympic to direct Bradley to do the work, his subsequent conduct operated to ratify that authority. [ 24 ] Agency by ratification is discussed and analysed by Gerald Fridman in his text Canadian Agency Law (Second Edition, LexisNexis Canada Inc. 2012), at page 41: The agent’s authority is granted prior to the exercise of that authority when the relationship of principal and agent is created, by agreement with the principal, by contract or otherwise before anything is done by the agent on the principal’s behalf.

With ratification the position is reversed. The agent acts on behalf of the principal at a time when the relationship of principal and agent does not exist. In fact, the agent has no authority to do what is done at the time it is done. Subsequently, however the principal on whose behalf but without whose authority the agent acted accepts and adopts the agent’s act, exactly as if there had been prior authorization by the principal of the agent to do what has been done.

Ratification by the principal means that the principal agrees with the performance of the action undertaken by the previously unauthorized agent. [emphasis added] [ 25 ] It is clear to me that Costa wanted his vehicle fixed. It is clear to me that he was aware that Olympic did not have the means to do it, and that Costa had refused having the vehicle towed to Calgary to get fixed.

Even if he did not pre-authorize the vehicle being forwarded to Bradley to get fixed, once he was made aware of that fact, and once it became apparent that the work was being done on his behalf, he could have immediately made all of the parties aware of the fact that he did not authorize the work. He did not do so.

His actions, in my view, constitute a ratification of Olympic’s authority to take the action it did, and constituted an adoption of that authority. [ 26 ] While it may be that Costa was of the view that Olympic was having the work done at its own expense because of something that it had done to it while in its possession, I conclude that this conclusion would have been unreasonable. There is nothing but the merest suggestion that this was the case and it was vehemently denied at trial.

Moreover, it ultimately came to bear that the reason for the vehicle’s problems turned out to be a ‘mice eating through wires problem’. There is no suggestion that this problem began at the Olympic dealership.

It may be just as likely that it may have started while the vehicle was in Costa’s possession and progressed over time. [ 27 ] For all of these reasons, I find that Costa is obligated to pay Bradley for the goods and services rendered, services which were directed to be done at first instance without his authority, but later ratified by him. [ 28 ] Bradley shall have judgment against Costas in the principle sum of $4,525.04. He is entitled to prejudgment interest on that sum from the date this claim was issued, August 6, 2015 in the sum of $17.06.

He is entitled to his costs which I tentatively assess in the amount of $45.00. In total I award Bradley the sum of $4,587.10. [ 29 ] If Bradley takes issue with the costs as assessed he may bring application to this Court by letter on or before June 1, 2016 for a further assessment, failing which my tentative assessment shall be final. [ 30 ] Bradley’s claim against Olympic is hereby dismissed on a tentative without costs basis.

If Olympic is adamant that they be granted costs they may likewise bring application on or before June 1, 2016 to have those costs assessed, failing which my tentative assessment shall be final. P. Demong, J