Kudloo v. Wynberg Automotive, 2011 NUCJ 12

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Kudloo v. Wynberg Automotive, 2011 NUCJ 12 Date of Judgment: 2011-06-20 File Number: 08-09-589-CVU Registry: Iqaluit Plaintiff: Cindy Kudloo -and- Defendant: Wynberg Automotive ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Plaintiff): self-represented Counsel (Defendant): self-represented Location Heard: Iqaluit, Nunavut Date Heard: June 16, 2011 Matters: Nunavut Court of Justice Small Claims Procedure Rules, Nu.

Reg. 023-2007, r. 3.1(2) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. FACTS

[ 1 ] The Plaintiff purchased her 2007 Canyon GMC motor vehicle in the fall of 2007 and had it regularly serviced (oil change and check fluids) by the Defendant twice a year. On July 7, 2009, she had the vehicle serviced by the Defendant and paid the invoice of $134.39. [ 2 ] Shortly after the Plaintiff picked up her vehicle after the servicing, she noticed there was something wrong with the brakes. It felt like the brakes were jamming and sounded like the vehicle was staying in low gear.

She also could smell something burning at the front of her truck. [ 3 ] The Plaintiff had lost confidence in the competence of the Defendant as a result of a prior experience in the spring of 2009 when she had trouble with her engine not starting. She took it to the Defendant and the Defendant had the vehicle for a day but could not figure out what the problem was. As a result, she took her vehicle to Pai-Pa Taxi Garage and within half an hour they figured out the problem.

She took the vehicle to Nunavut Auto and it installed a new ignition switch. [ 4 ] After noticing the problem with the brakes she had Nunavut Auto check out the problem. [ 5 ] Nunavut Auto checked the brakes to ensure there were no rocks jamming the brakes. They did not find any rocks and returned the vehicle. [ 6 ] On August 15, the Plaintiff took the vehicle back to Nunavut Auto because the brake problem was getting worse. The same things were happening as when she got the vehicle back from the Defendant. She could barely get the vehicle to move forward when it was put into gear.

It sounded awful when she drove in reverse and it smelled like something was burning again. [ 7 ] On August 18, Nunavut Auto told the Plaintiff that the problem with her vehicle was because someone put oil put into her brake fluid. This expanded all the seals and as a result the brakes were on all the time. [ 8 ] To remedy the problems Nunavut Auto told the Plaintiff they had to install a new ABS pump, front and rear brake calipers, wheel cylinder, new master cylinder and brake. She authorized the repairs and had to wait for a month for the parts to arrive.

She paid the bill in the amount of $ 4,800.03 and her vehicle has been working well since the repairs were completed. II. ISSUE [ 9 ] Is the Plaintiff entitled to recover the repair expenses from the Defendant? III. LAW [ 10 ] To succeed with the claim the Plaintiff is required to prove that the Defendant was negligent in the work it did in servicing her vehicle and that the negligence caused the damage to her vehicle. [ 11 ] To establish a cause of action for negligence, the Plaintiff must establish three things. First, that the Defendant owed the Plaintiff a duty of care.

Second, that there was a breach of the duty of care. Third, that the breach caused the damages. [ 12 ] In this case, the Defendant owed the Plaintiff a duty of care because it entered into a contractual relationship with the Plaintiff when it accepted her vehicle for the servicing work. [ 13 ] To find the Defendant liable the Plaintiff must prove on a balance of probabilities that the Defendant caused the damage.

IV. ANALYSIS [ 14 ] The Plaintiff testified that when she bought her used vehicle it had been driven about 19,000 kilometers and was in good condition. She obtained it in the fall of 2007 and the Defendant serviced it twice a year until she experienced the problems in July 2009. The Plaintiff testified that she did not have her vehicle serviced by any other vehicle repair business.

The only other time any vehicle repair business did any work on the vehicle was when Nunavut Auto replaced the ignition switch. [ 15 ] The Defendant argues that it employs competent mechanics and they certainly know how to do a simple procedure like changing oil in a vehicle. Although the brake reservoir in located under the hood it is not close to the inlet for the oil. It submits that it is very unlikely that its mechanics put the oil in the brake reservoir.

If the oil was put into the reservoir by its mechanics the brakes would have stopped working immediately not one month later. [ 16 ] The Defendant also argues that it is possible that someone else put the oil in the brake reservoir because the Plaintiff admitted lending her vehicle to others and has had her vehicle repaired at other shops in Iqaluit. [ 17 ] The Plaintiff has not proved the Defendant was negligent. She has presented circumstantial evidence that suggests the Defendant may have been negligent. In a legal action this is not sufficient.

The Plaintiff must prove that the Defendant was negligent on a balance of probabilities. [ 18 ] Although the Plaintiff has not met the onus of proof, there is a legal principle that may be applicable to this type of situation. There are some situations where, in the ordinary course of events, an accident would not occur in the absence of negligence. If the principle is applied the onus of proof is shifted to the Defendant to prove that it was not negligent. However, before an inference can be drawn, the accident must not only suggest negligence, it must also be attributed to the Defendant.

If the Plaintiff’s evidence points to two or more persons the Plaintiff will usually fail. [ 19 ] I am satisfied that the problem with the Plaintiff’s brakes is a situation where it is likely that there was negligence. Although the brakes did not become a serious problem until about one month later, the Plaintiff noticed a problem immediately. The question is whether persons other than the Defendant could also be equally responsible. The Plaintiff testified that she only lent her car to one person and has not had the vehicle serviced by any other repair shop.

The work on the replacement of the ignition switch would not have required the hood to be opened. [ 20 ] The only other explanation is that the Plaintiff was the victim of malicious vandalism. While this is possible it is improbable. I am satisfied that it is much more likely that the Defendant caused the problem. I accordingly infer that the Defendant was negligent. Since the Defendant did not present any evidence to displace the inference, I find it was negligent and caused the damage to the Plaintiff’s vehicle. V.

CONCLUSION [ 21 ] Judgment is granted in favor of the Plaintiff in the amount of $4800.03 plus costs of $75.00. Dated at the City of Iqaluit this 20th day of June, 2011 ____________________ Justice E. Johnson

Nunavut Court of Justice