2017 QCCQ 8346, 2017 QCCQ 8346

Menabney c. Ford Motor Company of Canada Ltd. 2017 QCCQ 8346 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152466-167 DATE: July 4, 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ CHRISTOPHER MENABNEY, Plaintiff v.

FORD MOTOR COMPANY OF CANADA LIMITED Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Christopher Menabney, owner of a 2009 Ford F250 Super Duty Turbo Diesel Truck, sues the Defendant, Ford Motor Company of Canada Limited (“Ford”) , for the value of repairs required to the truck as a result of an engine failure that occurred in March 2015. [ 2 ] Mr. Menabney bases his claim on a contract with Ford entitled “Programme d’entretien prolongé” .

This contract, sometimes referred to as an extended warranty was purchased by a previous owner of the vehicle on January 10, 2014. The contract was to expire on January 10, 2018 (P-4). [ 3 ] Mr. Menabney became the assignee of this contract when he purchased the Ford Truck from a professional vendor of automobiles in Québec known as “H. Grégoire”. The contract of sale dated July 6, 2014 shows that the truck had an odometer reading of 85,186 kilometres.

The price, tax included, was $ 29,312.88. [ 4 ] Ford’s representative at the hearing informed the Court that Ford does not contest the fact that the benefits of this extended warranty passed on to Mr. Menabney as an accessory of the sale. [ 5 ] Nor does Ford deny the fact that the motor requires extensive repairs assessed by a Ford dealer, Solution Ford Chateauguay, at $ 19,476.82, including the cost of the diagnostic of the motor, a rebuilt motor, a turbo gasket and other parts as well labor. [ 6 ] Ford’s contestation of the claim, which Mr.

Menabney has reduced to the limit of $ 15,000 permitted in the Small Claims Division, is stated in the written contestation as follows, “Le programme d’entretien prolongé du véhicule ne couvre pas le manque d’entretien” . [ 7 ] Mr. Menabney informed the Court that, in his dealings with Ford in making his warranty claim, the question of service arose but that he had demonstrated to Ford that he had done the necessary oil changes since the date at which he purchased the vehicle. [ 8 ] The Court was also satisfied on the basis of Mr.

Menabney’s testimony that he was driving the vehicle in an ordinary fashion throughout the time he owned it up until the time of the failure, which occurred as he was driving on a highway. He attempted to pass another vehicle and the engine died. He immediately had the vehicle towed and the diagnostic performed. ISSUES [ 9 ] The Court must decide whether Mr. Menabney is entitled to the replacement of the motor under the terms of the extended warranty.

To do so, it must examine Ford’s basis for denying the benefits of the contract. [ 10 ] The written contestation suggests that the defence is based on the notion that the failure was the result of a lack of service either on the part of Mr. Menabney or of a previous owner. [ 11 ] In reading the fine print of the document entitled “Programme d’entretien prolongé” , it is obvious that a required repair to a motor is covered as part of the expression “PEP Groupe motopropulseur” .

[ 12 ] The essential undertaking of Ford is expressed as follows [1] : 1. ENGAGEMENT DE FORD. Dans le cas de véhicules neufs et d’occasion couverts par l’un ou l’autre des contrats PEP Ford, Ford défrayera, à l’exception de la franchise applicable à toute visite nécessitant réparation , et sous réserve des modalités énoncées aux présentes, le coût de la réparation d’une pièce admissible énumérée ci- dessous, et ce, pendant toute la durée du contrat précisée à la

section 3 (selon l’ « option PEP » choisie dans la Demande d’adhésion au contrat d’entretien Ford ci-jointe). […] 1. WHAT FORD WILL DO. For new and pre-owned vehicles covered by any of the Ford ESP Plans, Ford will, except for the applicable deductible per repair visit, and subject to the Terms and Conditions herein, pay the cost to repair a covered

part listed hereunder during the coverage period specified in

Section 3 (as determined by the ESP Plan coverage option selected in the attached Ford Service Contract Application Form). […] [ 13 ] Under an exclusion clause, mention is made of repairs resulting from inadequate or unauthorized service and other causes for which Ford would not be responsible: 7 . PIÈCES ET SERVICES NON COUVERTS . En dépit de tout énoncé contraire dans le présent contrat, les pièces et services suivants ne sont pas couverts en vertu des modalités du présent contrat : […] V.

Les réparations attribuables à un service d’entretien inadéquat ou non autorisé, une collision ou autres dommages matériels subis par le véhicule, ou encore, à des dommages causés par un/des corps étranger(

s) au véhicule ou à des composants non liés à la défaillance d’une pièce couverte, les réparations rendues nécessaires à la suite de dommages ou d’une utilisation déraisonnable (dommages résultant, entre autres, mais sans s’y limiter, d’avaries routières – y compris après avoir roulé sur une bordure de trottoir, d’une surcharge, d’un accident, d’un incendie ou d’un autre sinistre, d’une utilisation abusive, d’une négligence ou d’une participation à une course, ou encore, de la perte de lubrifiant, de liquide, ou de la contamination de l’huile, d’un liquide ou du carburant, de même que les réparations causés par le fonctionnement continu du véhicule après une perte de lubrifiant ou de liquide, ou la contamination de l’huile, d’un liquide ou du carburant). 7.

PARTS AND SERVICE NOT COVERED. Notwithstanding anything to the contrary contained in this contract, the following parts and service are not covered under the terms of this contract: […] V. Repairs caused by improper or unauthorized service procedures, collisions or other physical damage to the Vehicle, foreign object(

s) damage to the vehicle or components, not related to a covered part failure, repairs needed because of damage or unreasonable use (examples include, but are not limited to, damage from road hazards, including driving over curbs, overloading, accidents, fire or other casualty, misuse, negligence, racing, or loss of lubricants or fluids or contamination of oil, fluids or fuel and repairs caused by continued operation of the vehicle after loss of lubricant or fluids or contamination of oil, fluids or fuel). [ 14 ] The contract also excludes the cost of regular service such as oil changes, these being the responsibility of the owner not of Ford: XI.

L’exclusion des services d’entretien normal prescrits pour le véhicule selon le Guide du propriétaire, et le remplacement des pièces d’usure normale (sauf si ces pièces sont couvertes au

titre d’un PEF), comme suit: […] • Ajout ou vidange d’huiles, de lubrifiants, de liquides ou de carburant. XI. The performance of normal maintenance services as set forth in the Owner’s Guide for the vehicle and normal replacement of wear items, (except where provided for by a FMPP) such as: […] • Addition or changes of oils, lubricants, fluids or fuel. [ 15 ] Mr. Menabney is not claiming the cost of service in this sense so the only clause that is of interest to the Court is the one that excludes repairs that are required as a result of a failure to carry out normal services (meaning maintenance) that are provided in the

manufacturer’s recommendations. This would obviously include oil changes. [ 16 ] Based on the narrative given by Mr. Menabney, the people he was dealing with at Ford seemed to be acting as if he was required to prove that he had carried out regular maintenance as a condition of having the benefits of the contract. [ 17 ] If this was the case, Ford’s personnel were giving him a wrong impression.

What the contract excludes is not coverage to a vehicle that has not been properly serviced, it excludes repairs that are required because of a lack of service or improper or unauthorized service. [ 18 ] It would be up to Ford to demonstrate that the repairs are required because of a damage that was actually caused through neglect or inappropriate service carried out on the vehicle, as opposed to simply showing that there was inadequate service. FACTUAL ELEMENTS [ 19 ] In order to understand the claim in more depth, it is necessary to consider a few key facts. [ 20 ] When Mr.

Menabney purchased the vehicle, the vehicle’s motor had undergone major repairs carried out by a Ford dealership, Le Circuit Ford Lincoln Ltée. The price for the services to the previous owner totalled $ 9,184.46. [ 21 ] Mr. Menabney believes that the work was performed under the original manufacturer’s warranty and that the previous owner then purchased the extended warranty that is now in issue.

The dates and odometer readings would suggest, however, that when the extended warranty was purchased on January 10, 2014, the odometer reading was 81,024 and that the vehicle entered Le Circuit Ford Lincoln Ltée on January 23, 2014 with an odometer reading of 81,869. That would mean that the repairs were done under the extended warranty. [ 22 ] Be that as it may, it is obvious that when the vehicle left Le Circuit Ford Lincoln Ltée, its oil had been changed and it also appears from the documentation provided from H.

Grégoire that the engine oil was changed in May 2014 (P-3), prior to the sale to the Plaintiff on July 6, 2014. [ 23 ] Mr. Menabney provides proof that he carried out an oil change on October 31, 2014 (P-7) at Ford Lincoln Gabriel St-Jacques. [ 24 ] The incident when the engine failed was March 1, 2015, roughly five months later. [ 25 ] In October 2014, the odometer reading was 90,426 as compared with 85,186 when the vehicle was purchased in July 2014. [ 26 ] There is nothing in the evidence therefore to suggest that Mr. Menabney or his predecessor, the original owner, and H.

Grégoire had failed in any way to carry out regular maintenance to the motor. [ 27 ] When the Ford dealership to whom Mr. Menabney took the vehicle carried out its evaluation, Ford was entitled to carry out its own inspection. [ 28 ] Ford produced the inspection report carried out apparently by an independent agency called “Centro Inspection Agency” on April 29, 2015. The odometer reading as stated on that report is 95,583 which would mean that Mr.

Menabney had put approximately 5,000 kilometres on the vehicle between the time of the last oil change, October 31, 2014, and the date of the failure, March 1, 2015. [ 29 ] The rules of evidence would prevent Ford from relying on the report as an expert opinion since it was not produced as such. Nor did the author of the report come to Court to testify.

It is, however, interesting to see that the inspector was asked to check for the cause of the failure: VERIFY TECHNICIAN FINDINGS, DAMAGED PARTS, DETERMINE IF FAILURE IS A RESULT OF LACK OF MAINTENANCE, MODIFICATIONS, ABUSE, OR COLLISION, REVIEW MAINTENANCE RECORDS AND RELATED SERVICE HISTORY.

TAKE PHOTOS AS REQUIRED […]. [ 30 ] Ford’s representative at the hearing placed a lot of emphasis on the fact that oil was missing: VÉRIFIER OIL, IL MANQUE OIL AJOUTER 9 LITRE OIL ET IL MANQUE ENCORE DE OIL FAIRE PARTIR MOTOR IL FUME BEAUCOUP PAR LE BOUCHON A OIL ET IL COGNE […]. [ 31 ] Ford’s representative therefore suggested that this evidence would point to a lack of maintenance, more specifically the failure to maintain a proper amount of oil in the engine. [ 32 ] Service records available to the Court show that the engine has the capacity of 14.2 liters.

This would mean that more than half the oil was missing. [ 33 ] However, under the heading “Cause of failure”, the inspector wrote: TIME AND MILES WEAR OF THE ENGINE AND TURBO. [ 34 ] The inspection findings mention certain elements that are worn but not broken, some that are scored, and some that have normal wear. There was one very serious element: THE NUMBER 4 PISTON HIT THE VALVE. [ 35 ] The technician recommends:

WILL NEED A LONG BLOCK AND TURBO ANALYSIS [ 36 ] The Plaintiff’s evidence has established that he purchased a vehicle that was in good working order, that it had been used in a normal fashion and that oil changes had been carried out frequently since the major repairs that were carried out to the motor under warranty. [ 37 ] The extended warranty applies to an engine failure and the onus would be on Ford to demonstrate with convincing and admissible evidence that the failure of the motor was caused by a failure on the part of the previous owner to maintain the motor as required. [ 38 ] The somewhat dramatic failure of the motor remains unexplained in light of Ford’s evidence.

The evidence is not admissible for technical legal reasons, but even if it were, it only shows that certain very severe damage actually took place and that when the technician examined the motor it did not have enough oil in it. [ 39 ] A diagnostic had already been carried out by the dealer and the Court has no way of knowing whether any of the oil was removed prior to the independent technician seeing the motor. [ 40 ] As well, the evidence does not permit the Court to conclude that the damages resulted from a lack of oil.

It may be that the lack of oil resulted from the damages which came about for some other reason. [ 41 ] In the absence of any evidence to establish why the motor failed and how, Ford has not fulfilled the onus of demonstrating that the specific failure that occurred resulted from some specific failure to maintain the motor on the part of the Plaintiff or the previous owner. [ 42 ] Ford’s defence is therefore not established and the Plaintiff is entitled to the benefits of the warranty. [ 43 ] It would make sense for Ford to fund the replacement of the motor as proposed by the independent inspector and by the dealership where the vehicle has remained since March of 2015 but the Court’s jurisdiction in this matter is simply to award the monetary claim at the limit of $ 15,000. [ 44 ] The parties may wish to discuss between themselves the possibility of carrying out repairs to the vehicle as an alternative to the satisfaction of the monetary claim but this is for the parties to decide and not the Court.

BY THESE REASONS, THE COURT: CONDEMNS the Defendant Ford Motor Company of Canada Limited to pay to the Plaintiff, Christopher Menabney, the sum of $15,000, together with interest at the legal rate and the additional indemnity provided in

Article 1619 of the Civil Code of Québec , calculated from June 22, 2015; THE WHOLE with judicial costs in the amount of $ 200 for the Court stamp. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: June 19, 2017