Scott Bax - v. -, 2013 SKPC 131

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 131 Date: August 1, 2013 File: SC 40/11 Location: Moose Jaw _____________________________________________________________________________ Between: Scott Bax - and - Great Canadian Oil Change Self-Represented For the Plaintiff Mr. Ken Cornea For the Defendant _____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________ BACKGROUND [ 1 ] The plaintiff’s son took the plaintiff’s vehicle to the defendant for an oil change.

Shortly after the oil change, the engine in the vehicle seized up. The plaintiff alleges that the defendant breached the contract in that he did not exercise sufficient care and did not put the requisite amount of oil into the engine, resulting in the engine failure. The issues in this dispute are:

1) whether the plaintiff has proved a breach of contract; and 2) if a breach of contract has been proven, whether that breach was the cause of the damage. THE EVIDENCE [ 2 ] I will deal with the witnesses slightly out of the order in which they were called. The plaintiff called Mr. Larry Higgs, who gave evidence over the telephone. He testified that he is the service manager of the G.M. Dealership in Weyburn. The plaintiff purchased this vehicle from the Weyburn Dealership. The Weyburn G.M. Dealership received this vehicle on a trade. At 171,255 kilometres, the Weyburn G.M.

Dealership made a complete inspection of this vehicle, and fixed some minor problems. They changed the oil in the vehicle and at that time noted there were no leaks. [ 3 ] Mr. Cornea cross-examined Mr. Higgs about why the oil light would come on, and where the oil would go. Mr. Higgs responded that either the oil would be burnt, or it would leak out. If there was no leak, then the oil must have been burnt. Under further questioning, Mr. Higgs said that if there was a failure of the cooling system, this would result in the engine heating and additional burning or consumption of oil. Under further questioning, Mr.

Higgs stated that it is always prudent to stop for a warning light as soon as possible. [ 4 ] The plaintiff also called Mr. William Coleman as a witness. Mr. Coleman is a journeyman mechanic since 1977 and has worked at Barber Motors, the G.M. Dealership in Weyburn, for 38 years. He testified as to the standard procedure that he uses when changing oil in a vehicle. He testified that he has seen occasions where a metered oil gun did not insert the appropriate amount of oil. He has also seen occasions where human error resulted in failure to put the appropriate amount of oil in.

For example, he saw situations where an individual simply forgot to put any oil in. [ 5 ] Under cross-examination, he indicated that the amount of oil consumed by the vehicle will vary from vehicle to vehicle and from time to time. One would normally expect a higher mileage vehicle to consume slightly more oil. He indicated that probably the most common reason for an engine seizure is “oil starvation”. He also indicated that it is the owner’s responsibility to periodically check the oil level. [ 6 ] The plaintiff’s primary witness was the son of the plaintiff, Mr. Rory Bax.

He testified that his father had fairly recently purchased a 2003 Nissan Xterra vehicle for him. On September 8, 2011, the witness took this vehicle to the Great Canadian Oil Change in Moose Jaw to have the oil changed. The invoice for services rendered on that date was entered as Exhibit P-1. At the conclusion of the oil change, the technician pulled the dipstick, showed the dipstick to the witness, and indicated that the proper amount of oil was in the vehicle.

Rory Bax testified that he didn’t pay too much attention to the dipstick that was shown to him. [ 7 ] The witness testified that after the oil change, he drove from Moose Jaw to Saskatoon. To get there, he followed Highway 2 north from Moose Jaw to Chamberlain, and then Highway 11 to Saskatoon. He picked up a friend in Saskatoon and then drove to Weyburn. He followed No. 11 to Regina and then the No. 6 and 39 to Weyburn. He then drove from Weyburn to Moose Jaw, following Highway No. 39 just about all the way. He later returned to Weyburn. He was then travelling from Weyburn, through Regina and onto Saskatoon.

He testified that he was just outside of Lumsden on Highway No. 11 when problems occurred. The car began to shake violently. He pulled over. The engine quit, and he couldn’t restart it. He called his dad. They pulled the dipstick and found it was dry. Later the car was towed to Regina. [ 8 ] Under cross-examination, the witness admitted that the technician at Great Canadian Oil Change pointed to oil on the dipstick and that it was up to a particular mark. He admitted that the oil appeared clean. The witness further advised he got fuel in Saskatoon and in Weyburn on his way back to Saskatoon.

He advised that he did not check the oil on these occasions. [ 9 ] He was cross-examined as to whether he saw an oil pressure gauge change or an oil icon came on during the trip. The witness stated that an oil can icon came on at about Weyburn, perhaps even prior to this. However, he did not stop and check the oil after noticing the icon. Rather, he drove from Weyburn through Regina and was on his way back to Saskatoon, intent upon checking the oil when he got back to Saskatoon. As mentioned, when he got north of Regina and near Lumsden, the vehicle began to shake and the

engine quit. [ 10 ] The plaintiff also called Mr. Tommy Lubas, a service advisor with Dilawri Nissan in Regina. Mr. Lubas testified that the Nissan Xterra vehicle was towed in. They determined that the engine was seized, and replaced that engine. He testified that they examined the old and cold engine and could find no indication of any oil leaks. Further, that they drained oil from the engine and obtained less than one litre of old oil. This caused him to conclude that the engine was down almost two litres of oil.

He testified that the engine was clearly seized however, there is no diagnostic test they can perform to ascertain the cause of an engine seizure. [ 11 ] The only witness called for the defence was Mr. Troy White. He is the owner of the Great Canadian Oil Change franchise in Moose Jaw. He testified that prior to owning this franchise, he was involved in oil field maintenance. He purchased the franchise, and then was sent to one of the Regina stores to train. [ 12 ] He testified as to the standard procedure that they follow in making an oil change. When a vehicle comes in, they scan the VIN number.

Their computer system then brings up manufacturer’s specifications and data for the vehicle. They printed off some of that information and entered it as exhibits in the trial. This information indicates that for this V-6 3.3 litre engine, that 3.3 litres of oil is required for an oil change and a change of filter. It was agreed that this is accurate information provided by the manufacturer. Mr. White testified that after the old oil is removed and the plugs replaced, that they use a metered gun to put new oil in the engine. They put the nozzle into the top of the engine and press the button.

A meter then shows how much oil is being released to the engine. In this case, when the meter showed that 3.3 litres had been inserted, he would stop. Mr. White testified that in this case they followed all of the standard procedures, and as far as he was aware, inserted the proper amount of oil into the engine. ANALYSIS 1) Whether the plaintiff has proved a breach of contract. [ 13 ] The relationship between the plaintiff and defendant was contractual.

There can be no doubt that the defendant owed a duty to do work in a good and workmanlike fashion, and to put the proper amount, being 3.3 litres of oil, into the engine. Did the defendant breach that obligation? I cannot be satisfied that he did breach that obligation. There are other possible alternatives that may have resulted in the engine seizure. For example, perhaps the oil leaked out or was burnt off. Given that the mechanics who replaced the engine could detect no oil leaks, it would seem that oil being burnt off was a more likely scenario.

The plaintiff argues that the G.M. dealer had inspected the engine and found no major problems. Further, that the engine had not used a significant amount of oil prior to this time. Why would it suddenly start using a significant amount? I don’t have answers to these questions. But I do note that Rory Bax testified that following the oil change, he drove from Moose Jaw to Saskatoon; from Saskatoon to Weyburn; from Weyburn to Moose Jaw; from Moose Jaw to Weyburn, and was then headed back to Saskatoon through Regina. These are significant and fairly lengthy highway trips.

It seems to me reasonably likely that if an inadequate amount of oil had been placed in the engine, that there would have been problems prior to the engine seizing near Lumsden. As a result, I am not satisfied that a breach of contract has been proved. 2) If a breach of contract has been proven, whether that breach was the cause of the damage. [ 14 ] Even if I was satisfied that the breach had been proved, I would not determine that the breach caused the damage and thus would not award judgment to the plaintiff. The son, Rory Bax testified in this matter. To his credit, he impressed as very honest and forthright.

He testified that the oil icon came on around Weyburn, perhaps even before. He did not deal with this. In particular, he did not stop the vehicle or check the oil. He testified that he continued to drive, and was intent upon checking the oil when he got back to Saskatoon. On the basis of this evidence, I am compelled to conclude that the most proximate or immediate cause of the damage was not any breach by the defendant, but Mr. Bax continuing to operate the vehicle in spite of the oil icon being on and alerting him to a problem.

The textbook, Fridman, The Law of Contract , 4 th ed. at pages 758-759 states as follows: Thus, before damage is properly treated as recoverable under Hadley v. Baxendale , it must have been the direct, physical result or

consequence of the breach of contract that is in question. “Direct damage”, it has been said, “is that which flows naturally from the breach without other intervening cause, and independently of special circumstances, while indirect damage does not so flow”. As Duff J. of the Supreme Court of Canada asked in one case, concerning a fraudulently induced transaction, the question was: What loss did the plaintiff suffer that was directly attributable to the transaction into which the plaintiff was induced to enter?

The plaintiff must prove that it was the defendant’s breach of contract, and not some intervening factor, that caused the plaintiff’s loss. [ 15 ] In this case, if there was a breach by the defendant, I would conclude that the breach did not cause the damage to the engine that is now being claimed for. Rather, the damage was incurred because of an intervening factor, namely the son driving the vehicle in the face of the warning of a problem. [ 16 ] In the course of researching this question, I became aware of a legal and theoretical debate as to whether The Contributory Negligence Act R.S.S. 1978, c.

C-31, or similar common law principles, would allow apportionment of damages between the two parties to a contract. One of the cases that adopts such an approach is the Saskatchewan case of Husky Oil Operation Ltd. v. Oster , [1978] S.J. No. 145 . That case involved the defendant welder setting off an explosion at an oil tank battery. In that case, Mr. Justice Hughes, as he then was, noted that the plaintiff’s production foreman and the defendant both thought they filled the tank with water to an appropriate level to prevent fire and an explosion. Mr.

Justice Hughes referred to their joint but mistaken determination that a safe situation had been achieved. On the basis of this joint but mistaken determination, Mr. Justice Hughes apportioned liability. [ 17 ] Having examined the Husky Oil decision, and assuming that I have jurisdiction to apportion liability in a breach of contract situation, I would only do so if there was truly a joint decision between the contracting parties or their representatives. In this case, there was no joint decision. Rather, the decision to drive in the face of the warning from the oil icon was solely the decision of Rory Bax.

That decision was a true intervening factor or cause as described in the passage quoted above from the Fridman text. As a result, I conclude that if the plaintiff was in breach, his breach did not cause the damages and no judgment can be granted to the plaintiff. [ 18 ] Accordingly, the plaintiff’s claim is hereby dismissed with costs that I set in the amount of $500.00. [ 19 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 1 st day of August, 2013. D. Kovatch, J