Dumas v. Nissan Canada Inc., 2021 BCPC 132

Citation: Dumas v. Nissan Canada Inc. 2021 BCPC 132 Date: 20210329 File No: C-84702 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: PAUL DUMAS and SHAYNA DUMAS CLAIMANTS AND: NISSAN CANADA INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimants: Jon Wearing Counsel for the Defendant: Cindy Phillips Place of Hearing: Surrey , B.C. Date of Hearing: January 11, 2021 Date of Judgment: March 29, 2021 INTRODUCTION

[ 1 ] This is a claim for damages for breach of a new vehicle warranty. [ 2 ] The Claimants, Paul and Shayna Dumas (the “Claimants”), purchased a 2014 Nissan Pathfinder (the “Vehicle”) from King George Nissan (the “Dealership”) in December 2014. [ 3 ] The Vehicle came with a New Vehicle Limited Warranty (the “Warranty”) provided by the Defendant, Nissan Canada Inc. (“Nissan”). Nissan is a distributor, and not a manufacturer, of Nissan vehicles throughout Canada. [ 4 ] On September 5, 2018, when starting the Vehicle, the Claimants noticed a plume of smoke and burning smell.

As a result, they took the Vehicle into the Dealership.

After some preliminary investigation, the Dealership determined that the Vehicle was consuming oil at an excessive rate. (The problems the Vehicle was exhibiting collectively referred to as the “Engine Problems”.) [ 5 ] On October 25, 2018, the Dealership conducted an in-depth inspection of the Vehicle, and concluded that the repairs to the Vehicle (the “Repairs”) due to the thick sludge that had accumulated in the engine would entail an engine replacement. [ 6 ] In light of the cost of the Repairs, the Dealership, on behalf of the Claimants, submitted a Warranty claim to Nissan, attaching the necessary paperwork, including photographs of the Vehicle’s oil pan and the oil fill cap they took during their inspection, and the Vehicle’s maintenance records.

However, Nissan denied coverage under the Warranty. [ 7 ] The Claimants argue that a defect in the Vehicle was the cause of the Engine Problems; therefore, the Warranty covers the Repairs. [ 8 ] In their Notice of Claim, the Claimants sought damages of $20,000 for the Repairs, and $5,000 for the loss of use and enjoyment of the Vehicle.

However, at trial, their counsel informed the court that the Claimants are only seeking $15,000 for the Repairs, and are abandoning the $5,000 claim, as they concede that the Warranty specifically excludes incidental damages, which includes loss of use of the Vehicle. [ 9 ] Nissan argues that the cause of the Engine Problems was the Claimants’ lack of required maintenance of the Vehicle pursuant to the terms and conditions of the Warranty Documents (defined below); therefore, the Warranty does not cover the Repairs. [ 10 ] There are two differing expert opinions as to the cause of the Engine Problems. [ 11 ] For the sake of completeness, I note that the Claimants withdrew their claim against the two other defendants named in their Notice of Claim, namely, the Dealership (Bero Investments Ltd. dba King George Nissan) and one of the employees of the Dealership (Mr.

Brent Wessner). The Claimants are pursuing their claim only against the defendant Nissan. BACKGROUND [ 12 ] When the Claimants purchased the Vehicle in December 2014, they were given the Warranty Information Booklet, which contains the terms and conditions of the Warranty (the “Warranty Booklet”).

They were also given the Owner’s Manual (the “Owner’s Manual”) and the Service and Maintenance Guide (the “Maintenance Guide”) for the Vehicle (the Warranty Booklet, the Owner’s Manual and the Maintenance Guide, collectively referred to as the “Warranty Documents”). [ 13 ] The Warranty’s general coverage is described at page 2 of the Warranty Booklet as follows: NISSAN CANADA INC. . . . warrants that any part or component of each new NISSAN vehicle as supplied by NISSAN found to be defective in materials or workmanship, will be repaired by an authorized NISSAN dealer for the warranty periods and on the conditions described herein. [ 14 ] At page 3, the Warranty Booklet states, in part, as follows: What NISSAN Will Do Repairs due to warrantable defects in parts or workmanship will be performed at no charge for [parts and/or] labour to the customer, . . .

Nissan Canada Inc., will repair or at its option replace the failed component with new or authorized remanufactured part(s). . . . What You Must Do You are responsible for properly maintaining your vehicle, depending upon your driving conditions as outlined in the Service and Maintenance Guide and

Section 7 Appearance and Care in the Owners Manual. [ 15 ] At page 4, the Warranty Booklet states, in part, as follows: Receipts covering the performance of regular as well as the recommended maintenance must be kept in the event questions arise concerning maintenance. The receipts or a copy of them must be transferred to subsequent owners. [ 16 ] The parties agree that the Power Train Warranty is the specific warranty that applies in this case.

The Warranty Booklet describes the Power Train Warranty, at page 7, as follows: POWER TRAIN WARRANTY The duration of POWER TRAIN Warranty is 60 months or 100,000 kilometers (whichever comes first). This warranty covers any repairs needed to correct defects in materials or workmanship.

Powertrain coverage applies to the components listed below, supplied by Nissan, except for exclusions or items elsewhere under the caption “Limitations” and “What is Not Covered”. WHAT IS COVERED Engine Cylinder heads and block and all internal parts, rocker covers oil pan, valve train and front cover, timing chain and tensioner, oil pump, water pump, and fuel pump, fuel injectors, intake and exhaust manifolds, supercharger, flywheel, seals and gaskets. [ 17 ] The Warranty Booklet, at page 12, lists the items not covered under the Warranty.

It states, in part, in bold, as follows: WHAT IS NOT COVERED: • Any repairs required due to a lack of required maintenance as per the Maintenance Schedules in the Service and Maintenance Guide. [ 18 ] Regarding the maintenance requirements, the Owner’s Manual, at page 8-2, states, in part, as follows: It is the owner’s responsibility to make sure that the scheduled maintenance, as well as general maintenance, is performed. Scheduled maintenance For your convenience, both required and optional scheduled maintenance items are described and listed in your “NISSAN Service and Maintenance Guide”.

You must refer to that guide to ensure that necessary maintenance is performed on your NISSAN at regular intervals. [ 19 ] Under the maintenance discussion, referring to engine oil, the Owner’s Manual, at page 8-9, has the following caution, in bold: CAUTION Oil level should be checked regularly. Operating the engine with an insufficient amount of oil can damage the engine, and such damage is not covered by warranty. [ 20 ] Under the heading “Technical and consumer information,” the Owner’s Manual contains a discussion of engine oil and oil filter recommendations.

Under the subheading “Change intervals”, at page 9-5, it states, in part, as follows: Damages to the engine caused by improper maintenance or use of incorrect oil and filter quality and/or viscosity is not covered by the NISSAN new vehicle limited warranty. [ 21 ] The Maintenance Guide, at page 18, sets out the maintenance schedule.

It states that standard maintenance, including replacing engine oil and filter, must be done every 5,000 miles (8,000 kilometres) or six months. [ 22 ] The Claimants agree that they should have replaced the Vehicle’s engine oil every 8,000 kilometres or six months, whichever came first. They also agree that by September 2018, they should have replaced the Vehicle’s engine oil at least eight times, as the Vehicle had about 65,000 kilometres on it.

They concede that that did not happen. [ 23 ] From the date of the purchase of the Vehicle in December 2014 until September 5, 2018 – a period of three years and nine months – the Claimants had no issues with the Vehicle. [ 24 ] During this time, the Claimants claim to have serviced the Vehicle at least on six occasions, three of which are documented as follows: (

a) on October 13, 2015, at 11,719 kilometres, at Jiffy Lube; (

b) on December 14, 2016, at 31,992 kilometres, at King George Nissan; and (

c) on August 23, 2018, at 65,344 kilometres, at Mr. Lube (collectively, the “Claimants’ Maintenance Records”). [ 25 ] On September 5, 2018, when Mrs. Dumas started the Vehicle, the Claimants noticed a plume of smoke and a smell of burning oil.

Therefore, they took the Vehicle into the Dealership for an assessment. [ 26 ] The Dealership’s Work Order, dated September 5, 2018 (the “Work Order”), contains, among other things, the following notations: • Odometer In/Out – 65554/65554 • Descriptions/Instructions – Check customer reports oil drops on garage floor and every time starts gets big puff of smoke [ 27 ] The Dealership technicians inspected the Vehicle on September 5 and 13, 2018, and determined that the Vehicle was consuming oil at an excessive rate. [ 28 ] On September 14, 2018, the Dealership technician informed Nissan’s Tech Line Support (a group of technicians and engineers at

the Nissan North America Headquarters in Tennessee, USA, who provide technical support to technicians on diagnostic issues) that the Vehicle was “smoking badly” on cold start, and was consuming oil at an excessive rate of about one litre per 500 kilometres. [ 29 ] In response to the Dealership technician’s enquiry, the Tech Line Support wrote: Recommendation: . . . if the oil consumption is relating to compression or Oil control ring concerns we would recommend replacement of the Short Engine Assembly. . . .

If the oil consumption is due to sludge build-up, replacement of the Long Engine assembly would be recommended. [ 30 ] In this respect, the Work Order contains a hand-written note, “Nissan says inspect inside of engine for sludge and report.” [ 31 ] The Work Order also contains a hand-written note, “4 tires are down to minimum tread 1/32.” [ 32 ] Between mid-September 2018 and October 25, 2018, the Dealership technicians refilled the oil and monitored the Vehicle’s oil consumption. [ 33 ] On October 25, 2018, the Dealership conducted a thorough inspection of the Vehicle, including removing the oil pan and inspecting the oil fill cap.

They took photographs of their findings (the “Photographs”). [ 34 ] The back of the Work Order contains the Invoice for the work the Dealership did (the “Invoice”). It contains the following description: Drop lower oil pan for inspection and inspect inside of valve cover with boroscope. [ 35 ] After the October 25, 2018 inspection, the Dealership submitted a Warranty claim to Nissan, on behalf of the Claimants.

The Dealership technician’s email to Nissan (NCI Warranty Claims) read as follows: As per our conversation regarding a 2014 pathfinder . . . which is using oil at a rate of approximately 1 liter in 500 to 1000 kms. It is blowing excessive blue smoke on start up and hard acceleration. We have removed the lower oil pan and ran a boroscope under the LH valve cover through the oil fill hole. We are enclosing pictures of our findings. We have asked the consumer for more service invoices and they claim they have been lost.

Due to the cost of repair that would entail a[n] engine replacement, we are submitting information for review and authorization. Customer is awaiting information as to whether warranty is applicable or not. [ 36 ] On October 26, 2018, Nissan (NCI Warranty Claims) responded as follows: Based on the information provided, sludge is indicative of lack of maintenance and therefore this is not warrantable. ISSUES [ 37 ] The issues raised in this case are as follows: 1. Is the Warranty valid? 2. Does the Warranty cover the Repairs? In this analysis, the following questions must first be answered: a.

Have the Claimants established a defect in materials or workmanship of the Vehicle? b. If yes, has Nissan established an exclusion or limitation in the Warranty coverage? 3. If the Warranty covers the Repairs, has Nissan breached its obligations under the Warranty? 4. If it has, have the Claimants suffered damages as a result? 5. If they have, what damages are the Claimants entitled to? [ 38 ] There is no dispute that the Warranty is valid, the Claimants are faced with the Repairs, and Nissan declined to pay for the Repairs. Therefore, the only issues that need to be determined are as follows: 1.

Does the Warranty cover the Repairs? and 2. If yes, what damages should be awarded to the Claimants? EVIDENCE [ 39 ] Mr. Dumas testified on behalf of the Claimants. The Claimants tendered an expert report from Mr. Sam Hillhouse (the “Hillhouse Report”), which was marked as Exhibit 2. [ 40 ] Nissan tendered Mr. Dale Pettigrew as its expert witness. Mr. Pettigrew provided viva voce evidence by video. [ 41 ] The parties also tendered a joint book of documents, which was marked as Exhibit 1.

[42] I will briefly outline the qualifications of the two expert witnesses. Both Mr. Hillhouse and Mr. Pettigrew acknowledged theirduty to assist the court and not to be an advocate for any party. [43] There is no dispute as to the premises on which the two experts based their opinions. However, the experts offer differingopinions. The parties did not object to their admissibility, but expressed some contention as to the weight I should give to them. I willaddress this later. [44] Mr. Hillhouse is a Manager at one of the Budget Brake & Muffler Auto Centres in Langley, British Columbia.

He has been in hiscurrent role since April 2019, and is responsible for inspecting, diagnosing, maintaining and repairing customer vehicles, and overseeingother technicians’ work at his location. Overall, he has 12 years’ experience as a mechanic and repair technician in British Columbia. Hisexperience focuses on the construction, inspection, and repair of passenger and commercial vehicle engines. [45] Mr. Pettigrew is a licensed automotive technician in Canada, with a Red Seal certification. He has 30 years’ experiencediagnosing and repairing automobiles.

He has received education and training in vehicle engine systems, including manufacturer-specificcourses, throughout his career. He has worked at General Motors and Toyota dealerships in Kenora, Ontario; Toyota dealerships inLloydminster and Cochrane, Alberta; and a Nissan dealership in Lloydminster, Alberta. Since mid-2019, he has been working as a DealerTechnical Support Manager with Nissan. In this role, he assists dealership technicians with hard-to-diagnose vehicles. He also providestechnical expertise to Nissan’s internal and external stakeholders.

He has testified as an expert in arbitration proceedings in 2020, opiningon issues relating to lack of maintenance. [46] Nissan tendered, and the court accepted, Mr. Pettigrew as an expert in vehicle mechanics, with particular expertise in vehiclediagnosis and repair. THE LAW [47] The Claimants rely on the following cases: Evanchuk Transport Ltd. v. Canadian Trailmobile Ltd., [1971] 5 WWR 317, 1971 AltaSCAD 43; Grafikom Speedfast Limited v. Heidelberg Canada Graphic Equipment Limited, 2013 ABCA 104 (“Grafikom”); Greater Vancouver Water District v.

North American Pipe & Steel Ltd., 2011 BCSC 30, reversed on other grounds; Kal Inspection & Truck Repair Ltd. v. King, 2013 BCSC 110; Marcil v. Eastview Chevrolet Pontiac Buick GMC Ltd., 2016 ONSC 3594 (“Marcil”); Oliver v. Courtesy Chrysler

(1983) Ltd., ; Schreiber Brothers Ltd. v. Currie Products Ltd. et al., (SCC), [1980] 2 S.C.R. 78; (SCC)(“Schreiber”); Stedelbauer Chevrolet Oldsmobile

(1975) Ltd. v. 527353 Alberta Ltd., 2001 ABQB 909 (“Stedelbauer”); and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“White Burgess”). [48] Nissan relies on the following cases: F.H. v. McDougall, 2008 SCC 53 (“McDougall”); Foley v. Piva Contracting Ltd., 2005 BCSC 651; Hanyi v. Robert Maga (dba NT Machine Shop), 2020 BCCRT 492; Kolibab v. Tenneco Canada Inc., (SK QB); LeRuyet v. Stenner, 2001 BCSC 1129; Madden v. Insurance Corporation of British Columbia, 2002 BCSC 1285; R. v. INCO Ltd., (ON SC) (“Inco”); Salem v. Volkswagen Group Canada Inc., 2020 BCCRT 612; Samaan v.

The Queen, 2011 TCC 362; Schreiber Brothers Ltd. v. Currie Products Ltd. et al, (SCC); Singh v. Reddy, 2019 BCCA 79; Stedelbauer Chevrolet Oldsmobile

(1975) Ltd. v. 527353 Alberta Ltd., 2001 ABQB 909; Tetaka v. BMW Canada Inc., (ON SCDC); Trudeau v. 636221 B.C. Ltd., 2013 BCPC 358; and

Wallace v. Joughin, 2014 BCPC 73. [49] I have reviewed all of these cases. However, I will only refer to those relevant to my discussion below. DISCUSSION [50] Nissan says that the Claimants must establish prima facie Warranty coverage by proving a defect in the Vehicle’s materials orworkmanship.

If they discharge that burden, Nissan then has the burden to prove that the Warranty excludes coverage, on the basis thatthe Claimants failed to maintain the Vehicle, as required by the terms and conditions of the Warranty Documents. [51] Nissan says, the question is whether the Claimants can show that it is more likely than not that there was an inherent defect in theVehicle’s engine that caused it to fail in the circumstances where the engine oil should have been changed eight times. Does the Warranty cover the Repairs?

Validity of Warranty [52] The starting point in the analysis of the issues in this case is the validity of the Warranty. [53] As I said, the parties do not take issue with the Warranty’s validity. [54] As I have set out above, the Warranty coverage/duration is five years or 100,000 kilometres. By the time the Engine Problemsarose in September 2018, and the Warranty claim was made on October 25, 2018, the Vehicle had slightly over 65,000 kilometres, butwell under 100,000 kilometres.

By that time, the Claimants had owned the Vehicle for three years and nine months; so, under five years. [55] Therefore, I find that the Warranty is valid. Warrantable Defect [56] The parties agree that in an allegation of breach of warranty, the applicable legal principles are those set out in Stedelbauer. [57] In Stedelbauer, the Respondents/Plaintiffs had leased a new Chevrolet pickup truck from the Appellants/Defendants, which camewith a manufacturer’s warranty provided by General Motors of Canada Limited.

The warranty covered repairs needed to correct anyvehicle defect related to materials or workmanship, but it excluded coverage for damage caused as a result of misuse. [58] The court in Stedelbauer summarized the applicable legal principles, at paras. 19 to 24, as follows: [19] The general rule is that a party must prove every element of its cause of action. Where the rights of the plaintiff depend on a“defect”, that defect must be proven. Usually the opposite party has the burden on any exemptions or excuse from liability.

Here theDefendant/Appellant would normally bear the burden of proving “misuse”. [20] A warranty is not an insurance policy, but the structure of the two types of contract is similar. Both cover certain types of loss ordamage, subject to various exceptions. The law is clear that the insured has the burden of proving that the loss falls within the riskscovered, and the insurer must prove that an exemption applies: . . . The same approach should be taken to the

interpretation of awarranty. . . . [22] Schreiber Brothers Ltd. v. Currie Products Ltd., (SCC), [1980] 2 S.C.R. 78, 108 D.L.R. (3d) 1, 31 N.R. 335 wasan action over defective roofing materials, under the implied warranties in the Sale of Goods Act. The Court made it clear that thePlaintiff must prove a defect to succeed. This may be done affirmatively, or it may be done indirectly by eliminating all other probablecauses, including misuse. If the latter method of proof is used, the trial judge may (but is not obliged to) draw an inference that theproduct was defective once all other probable causes are eliminated.

The latter method of proof may appear to involve the plaintiffdisproving an exception to the warranty (i.e. disproving misuse), but that is only done as a method of proving the original defect. . . . [24] In my view the only reasonable

interpretation of clause 1(

b) of the warranty agreement [which covered “repairs to correct anyvehicle defect related to materials or workmanship”] is that there is a burden on the consumer to show a defect in the vehicle. There is noreason to displace the normal rule that a party propounding a point bears the burden on that point, whether the rule is displaced under theguise of contractual ambiguity or otherwise. This is not a maintenance contract, and a defect is the key to the consumer’s rights.

Once adefect is shown, the burden of proof is then on the manufacturer to demonstrate that one of the exclusions to the warranty (such asmisuse) applies. . . . [59] It is abundantly clear from the authorities that the Claimants must prove that there was a defect in the materials or workmanshipof the Vehicle to succeed. They can do this affirmatively or indirectly by eliminating all other probable causes, including misuse orimproper maintenance. [60] In civil cases, there is only one standard of proof and that is proof on a balance of probabilities.

In such cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not, that an alleged event occurred. The evidencemust always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test [MacDougall, paras. 46 and 49]. [61] The Claimants argue that based on Mr. Dumas's testimony regarding the Engine Problems, and the Hillhouse Report (based onMr. Hillhouse's personal inspection of the Vehicle), there is sufficient evidence to support a finding of defect in the Vehicle’s engine.

[ 62 ] The Claimants also say that the authorities permit the trier of fact to make an inference of defect based on the age or lack of misuse of the Vehicle. They point to two cases: Stedelbauer and Marcil . In Stedelbauer , the court, at para. 18 , said: [18] . . .

In many situations an inference of a defect could be drawn from the newness of the vehicle, or the fact that the part failed during ordinary use, or the way the part failed. . . . [ 63 ] In Marcil , the court, at para. 38 , said: [38] Put another way, and in particular with regard to breach of contract (breach of Sale of Goods Act warranties), a trial judge is entitled to draw an inference of defect from the premature failure of the product, or failure of the product during its ordinary use, but is not required to do so. . . . [ 64 ] On the affirmative proof of defect, the Claimants rely on the Hillhouse Report, wherein Mr.

Hillhouse states, at para. 5(4), as follows: I would say that it is possible that having fewer than eight oil changes after having driven the Vehicle for 65,000 kilometres could have been the cause of the initial issues that the Vehicle was experiencing on September 5, 2018, but I consider that to be a highly unlikely cause in light of the Vehicle’s age and mileage. Alternatively, the issues the Claimants were experiencing with the Vehicle could have been caused by a malfunctioning engine component such as a crank case that was not properly ventilating. [ 65 ] The Claimants say that based on Mr.

Hillhouse’s opinion, the Engine Problems were unlikely caused by their failure to maintain the Vehicle, but were caused by a defect in the engine. They say that Mr. Hillhouse was of the view that the engine failed prior to September 5, 2018, and the Dealership’s conclusion that the engine needed to be replaced also supports their submission that there was a defect in the engine. [ 66 ] The Claimants argue that they do not have the onus to prove that they maintained the Vehicle.

Relying on the Hillhouse Report, they say that the defect in the engine caused the sludge build-up, and the maintenance of the Vehicle in and of itself is not at issue. [ 67 ] As I will discuss below, Mr. Pettigrew opined that there was no inherent defect in the Vehicle’s engine, the sludge build-up caused the Engine Problems, and the sludge build-up could only have occurred due to a lack of proper maintenance of the Vehicle. [ 68 ] If I accept Mr.

Pettigrew’s opinions and find that there was no inherent defect in the engine, and if the Claimants want the court to draw an inference that the engine was defective, then, according to Schreiber , they would have to eliminate all other probable causes, in this case, lack of maintenance. As noted in Schreiber , this method of proof may appear to involve the Claimants disproving an exception to the warranty (that is, disproving lack of maintenance), but that is only done as a method of proving the original defect. [ 69 ] I will now turn to Mr. Dumas’s evidence. [ 70 ] There is no dispute that Mrs.

Dumas was the primary driver of the Vehicle; however, she did not testify at trial. [ 71 ] A

summary of Mr. Dumas’s evidence regarding the use and maintenance of the Vehicle is as follows: (

a) Between December 2014 and September 5, 2018, the Claimants had at least six oil changes done on the Vehicle. (

b) Mr. Dumas believes that most of the oil changes were done at their local Great Canadian Oil Change, which changed ownership and is now known as Jiffy Lube. (

c) They only have receipts for three of the oil changes. He is unable to locate the receipts for the other oil changes (the “Undocumented Oil Changes”). (

d) Mrs. Dumas works in the service industry, she paid cash for many purchases, and that is why they are unable to find a record of payment for the Undocumented Oil Changes in their credit card or bank statements. (

e) They had these oil changes done, roughly every six months. (

f) Mrs. Dumas mainly used the Vehicle to travel to and from her work, to transport their children to and from school, and for errands around town. (

g) They did not use the Vehicle in any abnormal or out of the ordinary way. [ 72 ] Under cross-examination, Mr. Dumas said: (

a) The Vehicle was not the first vehicle he has purchased. He owns another vehicle, a truck. (

b) He understands that the Vehicle’s owners are responsible for keeping the Vehicle in good working condition, including keeping the tires in good shape and changing the oil regularly. (

c) He read parts of the Owner’s Manual, but did not read the Maintenance Guide. (

d) They had the Vehicle’s oil changed, roughly every six months, similar to what he has been doing with his truck ever since he bought it brand new in 2006. (

e) Even though Mr. Dumas’s Will-say statement indicates that he and his wife had the Vehicle’s oil changed “on at least two to three additional occasions” for which they do not have records, he insisted that they had the Vehicle’s oil changed on “at least three occasions” for which they do not have records.

(

f) In an effort to collect receipts, he called around to the locations where they likely had the oil changed, but was unsuccessful because those entities told him that they do not have those records. He remarked, “some places just don't keep records like that for as long as they should.” (

g) When questioned about his comments to the Dealership that his records were stolen, he explained that his wife paid for a lot of things in cash because she had cash on hand from being a server, and she just puts the receipts in the glove box. He said the Vehicle was broken into on two occasions, a month of each other, sometime in 2017, and everything in the glove box and inside the Vehicle was stolen. He believes that the receipts for the oil changes were in the glove box. (

h) At the Dealership’s suggestion, Mr. Dumas did a search on the CARFAX website (a website that keeps records of vehicles) and found only the record of the Jiffy Lube oil change that they had done. (

i) He remembers physically taking the Vehicle twice for the oil change, and his wife doing it once. (

j) The Claimants live in Surrey, and Mrs. Dumas works in Surrey. Only she uses the Vehicle for work, which is about 15 kilometres from their home. Their children’s school is about a two-minute drive from their home. (

k) Sometimes they take round trips to Seattle. On weekends, they would take camping trips, but they would never take the Vehicle off-road. (

l) Sometimes they would visit family and friends in Vancouver and Powell River. (

m) Prior to September 5, 2018, they never had any problems with the Vehicle: no problems with starting, no idling, no onset of engine light, no oil leak, or no abnormal sounds or RPM (revolutions per minute). (

n) It was only on September 5, 2018 that they noticed the smoke and the smell of burning oil. (

o) At that time, they knew that they needed new tires, especially going into winter. When they took the Vehicle into the Dealership on September 5, 2018, the Dealership told them that they need new tires, and they said, okay, but they did not know if the tires were bald or not. [ 73 ] I will comment on Mr. Dumas’s evidence later in my reasons.

I will now turn to Nissan’s arguments. [ 74 ] Nissan submits that the Vehicle’s engine failed because the Claimants did not change the oil, as required by the Warranty Documents, and they have not and cannot prove on a balance of probabilities that there was an inherent defect in the Vehicle. [ 75 ] Nissan argues that proof on a balance of probabilities cannot be established by demonstrating a “mere possibility” that Mr. Hillhouse is suggesting. [ 76 ] It submits that Mr.

Hillhouse’s conclusion that the Engine Problems “could have been caused” by a malfunctioning engine component is not sufficient to demonstrate that it is “more likely than not” that the Engine Problems were caused by a defective component. It emphasizes that mere possibility is not enough. [ 77 ] I agree with Nissan on this point, for the following reasons: (

a) Mr. Hillhouse states that when he started the Vehicle’s engine, he noticed plumes of blue/white smoke and a smell of burning oil. This is no different from what the Claimants and the Dealership technicians noticed when they started the Vehicle. (

b) Mr. Hillhouse states that when he removed the valve cover off the Vehicle’s engine, he discovered a build-up of sludge and carbon in the valve train. Again, this is no different from what the Dealership technicians discovered during their initial investigation of the Vehicle. (

c) Mr. Hillhouse did not perform an in-depth inspection of the Vehicle, similar to what the Dealership technicians did by removing the oil pan and examining the interior of the engine. (

d) Mr. Hillhouse does not explain why the engine was smoking or why there was a build-up of sludge and carbon. (

e) He postulates that the Engine Problems “could have been” caused by a malfunctioning engine component. He gives the example of a crankcase not properly ventilating. However, he does not explain why and whether the crankcase in the Vehicle was not properly ventilating. (

f) The engine is, no doubt, a complex compartment in a motor vehicle, with many components. Simply to say that the Engine Problems could have been caused by a malfunctioning engine component certainly does not meet the balance of probabilities test as articulated by the Supreme Court of Canada in MacDougall . Mr. Hillhouse has not supported his conclusion with sufficiently clear, convincing and cogent evidence. (

g) Mr. Hillhouse also does not explain why he concludes that, in his experience, “a vehicle of similar age and mileage as the Vehicle should not have been experiencing the issues that the Vehicle was suffering because its oil had been changed fewer than eight times at 65,000 kilometres.” [ 78 ] Mr. Pettigrew, on the other hand, provided a more comprehensive explanation as to the likely cause or causes of the Engine Problems. [ 79 ] In forming his opinions, Mr. Pettigrew reviewed the Photographs, the Work Order, the Invoice, other business records, and the Claimants’ Maintenance Records.

[ 80 ] In essence, he opined, as follows: (

a) the puff of smoke and smell of burning oil are indicative of the Vehicle consuming oil at an excessive rate; (

b) the Vehicle consumes oil at an excessive rate because of the sludge build-up in the Vehicle; (

c) the sludge build-up in the Vehicle could only have been caused by a lack of proper maintenance, including regular oil changes; (

d) sludge has a detrimental effect on a vehicle engine; (

e) it is unlikely that the Engine Problems were caused by an inherent defect in the Vehicle; (

f) the Engine Problems were most likely caused by a lack of regular oil changes; and (

g) whether there were three or six oil changes by September 5, 2018 would not have made any difference, as it was the sludge that had accumulated by that date due to the lack of regular oil changes that was most likely causing the Engine Problems. [ 81 ] He also confirmed that he was not aware of any systemic defects in the 2014 Nissan Pathfinders, or of any recalls issued on the Transport Canada Recall Database or the US-based NHTSA (National Highway Traffic Safety Administration) Recall Database relating to any engine problems for the 2014 Nissan Pathfinders. [ 82 ] Mr.

Pettigrew disagreed with the following statement found at para. 9 of the Hillhouse Report: Had the Vehicle not been driven after September 5, 2018 until the issue with the Engine was discovered and resolved, this likely would have mitigated the damage to the engine and prevented the Engine from needing to be replaced or extensively repaired. [ 83 ] He said that by September 5, 2018, the damage to the engine had already occurred, in that the sludge that had already accumulated would have necessitated the engine replacement. [ 84 ] Mr.

Pettigrew explained in detail the composition, function and importance of the engine oil to the effective functioning of the engine. He explained the potential detrimental effects of failing to change the engine oil on a regular basis. [ 85 ] To understand the depth and breadth of the technical aspects of the issues at hand, I have set out below, in some detail, Mr. Pettigrew’s evidence: (

a) The engine oil goes through the oil fill cap into the engine oil pan, and the oil pump picks it up and circulates it throughout the engine. (

b) The engine oil is made of a base of oil, refined crude oil and additives. The additives (including viscosity-builders, detergents, antioxidants, and anti-wear additives) give the properties that are beneficial for an internal combustion engine. (

c) Antioxidants prevent oxidation. Oxidation occurs when the engine oil combines with high temperature and oxygen. It changes the composition of the oil from a slippery, lubricating substance to a sticky, tacky sludge-type substance. (

d) The engine oil provides lubrication to the moving metal components; cooling to the cylinder walls; and cleansing of microscopic bits of dirt, dust and metal by moving them to the oil filter. (

e) Without the oil lubricating the moving metal components in the engine, they would wear out rapidly. (

f) The engine oil should be changed every 8,000 kilometres or six months, whichever comes first. (

g) If the oil is not changed regularly, the additives (the antioxidants, detergents, etc.) get used up over time, and sludge would form in the engine. (

h) Nissan’s Tech Line Support technicians’ notation on their business record which reads: Technician Findings: the veh is smoking badly worse con cold start up (blue smoke) and is consuming oil at about 1l per 500 kms Repairs Made: adding oil means that the engine oil has been topped up to a specific level, and after the Vehicle has been driven for 500 kilometres, the oil level is down a litre, which is excessive consumption. (

i) Excessive consumption means that the oil is getting into the combustion chamber, either by getting past the oil control rings, or by leaking past the valve seals. (

j) If oil is getting into the combustion chamber (up top of the piston), and is being burned off, it causes blue smoke and a distinct smell. (

k) If the oil is getting past the oil control rings, there is a lack of sealing between the oil control rings and the cylinder walls, which can occur by a stuck or a broken oil control piston ring. If the oil is getting past the valve seals, it could be a worn valve seal or a worn valve guide. (

l) The most likely scenario is that the oil control rings are stuck in place and are unable to seal properly against the cylinder wall. This is caused by the oxidation – by not changing the oil frequently.

(

m) It is not likely that the oil control rings in the Vehicle were broken. Because of the presence of the sludge in the engine, it is more likely that the oil control rings were stuck in place and not sealing properly. (

n) In his professional experience, he has seen sludge build-up in vehicles many times (probably between 20 and 30 times), and in those instances, the cause of the sludge was lack of engine oil maintenance. (

o) The Photographs clearly show an excessive amount of thick, black sludge inside the oil pan and the valve cover. That is oxidation of the engine oil caused by not changing the oil regularly. There is no other reason for why such thick, black sludge would form. (

p) The thick sludge can block the passages inside the engine that carry the oil from the oil pump to the moving components. It can also cause sticking of the oil control piston rings. (

q) When the PCV valve (the positive crankcase ventilation valve) is not working properly, there is typically an accumulation of moisture in the crankcase. When water mixes with oil, an emulsion, that is light in color with the texture of eggnog or vanilla milkshake, forms. (

r) The crankcase ventilation system draws vapours (created by normal engine operation) from the crankcase, and recycles those vapours into the intake PCV valve. (

s) It is unlikely that a malfunctioning PCV valve caused the Engine Problems. If the PCV valve was malfunctioning, there could be issues with the engine idle speed, stalling, and long crank times, and warnings to check engine light. (

t) The age of a vehicle does not necessarily matter for the purposes of assessing sludge and oil changes. He has seen sludge build-up in vehicles with as low as 40,000 or 50,000 kilometres and in vehicles well over 200,000 kilometres. However, the frequency of the service of a vehicle can be a factor. (

u) The Claimants’ Maintenance Record dated December 14, 2016 indicates that the Vehicle was serviced at the Dealership at 31,992 kilometres. Mr. Pettigrew checked the dealer communication system that shows the Vehicle’s service history, and found no record of any further services of the Vehicle at the Dealership. (

v) The documents he reviewed indicate that the oil was not changed “frequently enough” and that caused the sludge to form in the engine. [ 86 ] Under cross-examination, Mr. Pettigrew said as follows: (

a) Assuming that, between December 2014 and September 5, 2018, the Vehicle received six oil changes, roughly at equal intervals, and there were no other issues with the Vehicle, he is “pretty certain” that there is a 70% likelihood that sludge would be found in the Vehicle. (

b) Given the Vehicle had about 65,554 kilometres by September 2018, it should have received at least eight oil changes. (

c) There is no other reason for the sludge to be present, except for the lack of oil changes. (

d) If there had been seven oil changes, he probably would not expect sludge to be present. However, he would not be surprised to find sludge because, if the oil used was of poor quality, or the Vehicle was driven under extreme conditions, those factors could cause sludge to form sooner. [ 87 ] Before I discuss to what extent I accept the evidence before me, I will address the Claimants’ submission that I should not give much weight to Mr. Pettigrew’s expert evidence because of the concern about Mr.

Pettigrew’s independence and impartiality, due to his employment relationship with Nissan. [ 88 ] The Claimants point to the following passage in White Burgess , at para. 11 , wherein the Supreme Court of Canada, in discussing expert witness independence and impartiality, quoted from another authority, as follows: . . . [u]ndoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you.

It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them . . . [ 89 ] The Claimants say that it is well established in Canadian law that an expert’s relationship to a party affects that expert’s credibility and the weight to be given to that expert’s evidence. They say that they had no prior relationship with Mr. Hillhouse, but because of Mr.

Pettigrew’s employment relationship with Nissan, I should give less weight to his evidence. [ 90 ] The issue of an expert witness’ independence and impartiality is complex. It cannot be determined in a vacuum. Just because an expert witness is in an employment relationship with a party, on whose behalf he is to render the expert evidence, does not automatically disqualify the witness as an expert or diminish the value of his opinion. It all depends on the circumstances of the particular case. [ 91 ] I certainly do not intend to engage in a discourse of the law on this issue.

Suffice it to say there are cases in which courts have ruled that the mere employment relationship between the expert witness and a party is not a sufficient basis for disqualification of that expert witness. One such case is the appeal decision in Inco , on which Nissan relies. [ 92 ] In Inco , “[t]he trial judge declined to qualify the proposed Crown witness as an expert capable of giving opinion evidence on the ground that he was not independent of the party.” ( Inco , para. 38 .) [ 93 ] On appeal, the Ontario Superior Court of Justice, at paras. 44-49, said as follows:

[44] The mere fact that the witness in this case was employed in the Investigations & Enforcement Branch as a “technical enforcementspecialist” is not a sufficient basis on which to find him incapable of providing an independent opinion. The trial judge did not assesswhether the witness’ evidence was based on valid assumptions, whether he fully disclosed all material facts or whether his opinion wasproperly researched and fell within his area of expertise. . . . [47] There was no finding in this case, nor was there any evidence that Mr. Mak had ever been an advocate for the Ministry. Nor wasMr.

Mak shown to be a co-venturer, as in Bank of Montreal. He has a technical role as a scientist in his employment and he was proposedas an expert to give technical and scientific opinion evidence. The prohibition against expert witnesses assuming the role of advocate iswell founded in case law, but has not been extended to a prohibition against qualifying a witness as an expert merely because that witnessis employed by a party to the litigation.

The mere fact that the proposed expert is employed by the party can be taken into account whenthe trial judge assesses the weight and value of the evidence. [48] The decision in R. v. Rindero, 2004 BCSC 735 , [2004] B.C.J. No. 1176, 62 W.C.B. (2d) 320 (S.C.) supports my view thatthe witness' [page608] independence must be tested against the actual or substantive opinion evidence that is to be proffered [at para.41]: As with any witness, Dr. Lohrasbe, if he does the assessment, may be challenged on premises upon which the assessment is predicatedand the process by which he followed to achieve that assessment.

If that process of challenge reveals a biased or closed mind, then that issomething that may well detract from the opinion being given the full weight that an otherwise dispassionate assessment might beaccorded. [49] This step is especially significant in a case where the proposed expert has been qualified to give opinion evidence 19 times in courtsof concurrent jurisdiction in Ontario while working in the same capacity for the same Ministry. [See Note 14 below] A finding of lack ofindependence or impartiality cannot be based on a cursory examination of the employment relationship or status. . . . [my emphasis] [94] I recognize that the issue before me is not the admissibility of Mr.

Pettigrew’s evidence, but only the weight I should give to it.In determining the weight, I have taken into account the following: (

a) Mr. Pettigrew has 30 years’ experience working with General Motors, Toyota and Nissan vehicles. (

b) In his role as Dealer Technical Support Manager with Nissan, he assists dealership technicians with hard-to-diagnose vehicles. Heprovides technical expertise to Nissan’s internal and external stakeholders. He has testified as an expert in arbitration proceedings. (

c) He has a technical role providing technical assistance. (

d) There is no challenge to the assumptions Mr. Pettigrew made in rendering his opinions. (

e) He has disclosed all materials facts. (

f) He has taken a methodical approach to diagnosing and assessing the issues. (

g) His opinions fall within his area of expertise. (

h) He conducted necessary research to check on the Vehicle’s service history and recall issues relating to the 2014 NissanPathfinders. [95] Other than Mr. Pettigrew’s employment relationship with Nissan, the only challenge the Claimants raised was that Mr. Pettigrewdid not personally inspect the Vehicle. In this respect, I note that the very position Mr. Pettigrew holds is that of a “Dealer TechnicalSupport Manager.” He has a Red Seal Certification and is qualified to assist dealerships across Canada.

It is commercially unreasonableto expect that he would personally inspect every vehicle that he is asked to provide technical assistance on. Both he and the Tech LineSupport technicians provide technical assistance to the front-line technicians at the Dealership who personally inspect the vehicles. [96] I find that the Dealership technicians’ in-depth inspection of the Vehicle, together with the Tech Line Support technicians’ andMr. Pettigrew’s assessments of the Engine Problems, far superior to Mr. Hillhouse’s cursory inspection and assessment. [97] Therefore, I have no reason to give less weight to Mr.

Pettigrew’s evidence. I accept it in its entirety and give it full weight. [98] In assessing Mr. Dumas’s evidence, I am unable to accept all of it. [99] I accept his evidence that, prior to September 5, 2018, the Claimants never had any problems with the Vehicle, including anyproblems with starting, idling, or onset of the engine light. According to Mr. Pettigrew’s evidence, these are indicators of a potentialmalfunctioning crankcase valve. However, the Claimants did not experience any of these problems, which confirms Mr.

Pettigrew’sopinion that a malfunctioning crankcase valve was not the cause of the Engine Problems, contrary to what Mr. Hillhouse suggested. [100] I find the following aspects of Mr. Dumas’s evidence troublesome and unreliable: (

a) while Mr. Dumas insisted that he and his wife had the Undocumented Oil Changes done, he was imprecise as to when or wherethey were done; (

b) the reasons why the Claimants do not have any records for the Undocumented Oil Changes, especially, the explanation that Mrs.Dumas pays with cash a lot and that is why they do not have any records;

(

c) the explanation that the receipts for the oil changes were put in the Vehicle’s glove box, but they were stolen due to the Vehicle being broken into on two occasions, and yet no documentation was provided to substantiate these incidents or their timing; and (

d) the efforts Mr. Dumas claims to have taken to obtain receipts, and his assertion that the entities where he thought the oil changes were done “don’t keep records like that for as long as they should.” [ 101 ] Clearly, the Claimants had three oil changes done. However, I do not accept that they had at least six done. They have a positive obligation under the terms of the Warranty to keep receipts for the performance of general and recommended maintenance.

They have breached that obligation. [ 102 ] In light of the evidence before me, and in particular the physical evidence of the thick sludge build-up, and the concerns I have with Mr. Dumas’s evidence regarding the Undocumented Oil Changes, I am unable to conclude that the Claimants, more likely than not, had at least six oil changes done. I find that they only had three oil changes done between 2014 and 2018, as evidenced by the Claimants’ Maintenance Records. [ 103 ] Even if I accept that the Claimants had at least six oil changes done, it is clear from Mr.

Pettigrew’s evidence that that would not have made any difference, as the accumulation of the sludge by September 5, 2018 was so thick that, that was the cause of the Engine Problems. [ 104 ] On the whole of the evidence before me, I am not satisfied that the Claimants have affirmatively established, on a balance of probabilities, that there was a defect in materials or workmanship of the Vehicle, as of September 5, 2018. Neither have they eliminated all other probable causes, including lack of regular oil changes (that is, lack of proper maintenance), for me to draw an inference of defect.

The evidence indicates that it was more likely than not that the Engine Problems were caused by the build-up of sludge in the engine due to the Claimants’ lack of maintenance of the Vehicle in accordance with the terms and conditions of the Warranty Documents. [ 105 ] I find that the Vehicle’s engine was not defective, and the Engine Problems were caused by the thick sludge in the engine that had accumulated due to the Claimants’ lack of proper maintenance of the Vehicle in accordance with the terms and conditions of the Warranty Documents. [ 106 ] Therefore, the Claimants’ claim fails. [ 107 ] Since the parties made arguments on the Warranty exclusion, I will briefly address it.

Exclusion or Limitation in the Warranty Coverage [ 108 ] If the Claimants had established a defect in the engine, then, according to Schreiber , the burden of proof is on Nissan to demonstrate that one of the exclusions to the Warranty, such as lack of maintenance, applies to deny coverage. [ 109 ] To understand the full extent of the Warranty, the Warranty Booklet, the Owner’s Manual and the Maintenance Guide have to be read together, as each of them references the other two documents. [ 110 ] I have set out above in detail the relevant provisions of these documents regarding what is covered, what is not covered and the obligations of the Vehicle owners (the Claimants) and the warrantor (Nissan). [ 111 ] For ease of reference, I will repeat some of those provisions: (

a) Warranty Booklet: Any repairs required due to a lack of required maintenance as per the Maintenance Schedules in the Service and Maintenance Guide are not covered. (

b) Owner’s Manual: a. It is the owner’s responsibility to make sure that the scheduled maintenance, as well as general maintenance, is performed. b. You must refer to that [Maintenance Guide] to ensure that necessary maintenance is performed on your NISSAN at regular intervals. c. CAUTION – Oil level should be checked regularly. Operating the engine with an insufficient amount of oil can damage the engine, and such damage is not covered by warranty. d. Damages to the engine caused by improper maintenance or use of incorrect oil and filter quality and/or viscosity is not covered by the NISSAN new vehicle limited warranty. (

c) Maintenance Guide: Standard maintenance, including engine oil and filter, must be carried out every 5,000 miles (8,000 kilometres) or six months. [ 112 ] The parties agree that by September 2018, the engine oil should have been changed at least eight times. The Claimants concede that that did not happen. I have found that the oil was changed only three times. [ 113 ] The Claimants argue that even if I find that the oil was changed less than eight times, that should not be determinative of the warranty exclusion.

They argue that it is simply not commercially reasonable in a consumer relationship to hold the customer to the literal requirements of the Maintenance Guide. [ 114 ] They say that the Warranty Booklet, at page 3, says the owner is only responsible for properly maintaining their vehicle, depending upon the driving conditions as outlined in the Maintenance Guide. They say, nowhere does the Warranty Booklet say that the owner must maintain the vehicle in strict accordance with the Maintenance Guide, or use any language that would suggest that the

Warranty is automatically void for failure to do so. [ 115 ] I find this argument untenable. The Warranty is a contract between the Claimants and Nissan. The Warranty Booklet sets out the terms and conditions of the Warranty that the parties are subject to. The Warranty Booklet incorporates by reference terms and conditions set out in the Owner’s Manual and the Maintenance Guide. [ 116 ] To say that it is not commercially reasonable in a consumer relationship to hold the customer to the literal requirements of the Maintenance Guide defies reason and logic.

On the contrary, if the terms of the Maintenance Guide (at least to the extent incorporated by reference in the Warranty Booklet) and the other Warranty Documents are not upheld, there would be commercial chaos. Obviously, the purpose of having the Warranty Documents is to govern the legal relationship between the owner and the warrantor. [ 117 ] In my view, it is clear from the Warranty Documents that the Warranty excludes coverage for the Repairs if the Claimants fail to maintain the Vehicle properly.

These documents contain various warnings to the owner, including the warning regarding the oil, which is clearly set out, in bold, and with the word “CAUTION” that the oil level should be checked regularly; and operating the engine with an insufficient amount of oil can damage the engine, and such damage is not covered by warranty. [ 118 ] The Warranty Booklet clearly states that receipts covering the performance of regular as well as the recommended maintenance must be kept in the event questions arise concerning maintenance. The receipts or a copy of them must be transferred to subsequent owners.

This is a positive obligation on the owner, and not just an option, to not only keep receipts, but also to pass on those receipts to subsequent owners. [ 119 ] This provision emphasizes the importance of proper maintenance, and proof of such maintenance, for warranty coverage. This contractual obligation falls at the owners’ feet.

If they fail to comply with it, they must face the consequences. [ 120 ] Here, the evidence indicates that the Engine Problems were caused by the sludge build-up, and the sludge build-up was caused by the lack of maintenance of the Vehicle. [ 121 ] The Dealership technician’s hand-written note, “4 tires are down to minimum tread 1/32” on the Work Order is also indicative of the fact that there was a lack of general maintenance of the Vehicle on the part of the Claimants. [ 122 ] I am cognizant of the Claimant’s submission that I should not take into consideration the technical meaning of the notation “1/32”, as the Claimants did not have an opportunity to present expert evidence in that respect. [ 123 ] I want to be clear that I am only taking into consideration the plain meaning of the words “4 tires are down to minimum tread” and Mr.

Dumas’s evidence that the Dealership technicians told the Claimants that they need new tires. [ 124 ] In the end, I find that, even if the Claimants had established a defect in the Vehicle, the Warranty would not cover the Repairs. CONCLUSION [ 125 ] A

summary of my conclusions is as follows: (

a) The Claimants have not established, on a balance of probabilities, that there was a defect in the materials or workmanship of the Vehicle, as of September 5, 2018. Neither have they eliminated all other probable causes of the Engine Problems, including a lack of regular oil changes (that is, a lack of proper maintenance). (

b) Even if the Claimants had established a defect, the evidence supports the exclusion of coverage under the Warranty, as the Claimants have failed to maintain the Vehicle, as required by the Warranty Documents. (

c) Nissan has not breached its obligations under the Warranty. (

d) Nissan is not liable to the Claimants for any damages. ORDERS [ 126 ] The Claimants’ action is dismissed. [ 127 ] Pursuant to Rule 20(2) of the Small Claims Rules , B.C. Reg. 261/93 , the Claimants shall pay to Nissan, by April 30, 2021, fees and expenses of $267.20, comprising the following: (a) $156.00 to file the Reply; and (b) $111.20 to file the Trial Statement. [ 128 ] I have denied Nissan’s expenses of $79.70 to file the Affidavit and Book of Authorities with respect to Nissan’s application for Mr. Pettigrew to testify by video, as this expense was incurred due to Mr. Pettigrew’s inability to attend the trial in person. By the Court ___________________________

The Honourable Judge V. Chettiar Provincial Court of British Columbia