Fenelon v. Ford Motor Company of Canada et al Date:, 2014 BCPC 286

Citation: Fenelon v. Ford Motor Company of Canada et al Date: 20141020 2014 BCPC 0286 File No: S70896 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: JOCELYN FENELON CLAIMANT AND: FORD MOTOR COMPANY OF CANADA LIMITED/FORD DU CANADA LIMITEE and DAMS FORD LINCOLN SALES LTD. DEFENDANTS RULING ON NO EVIDENCE MOTION OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Appearing in person: J. Fenelon

Counsel for Ford Motor Company : I. Giroday Counsel for Dams Ford : P. Stibbs Place of Hearing: Surrey , B.C. Dates of Hearing: May 6, August 20, September 17, 2014 Date of Judgment: October 20, 2014 [ 1 ] THE COURT : This is a no evidence motion brought by counsel for Ford Motor Company of Canada and it is supported by the co-defendant Dams Ford. It is opposed by the claimant.

This is the second time a no evidence motion by the same defendant has been brought and taking into consideration that the claimant is self-represented and allowing the claimant time to present his entire evidence, I did not entertain such a motion initially and allowed the claimant's portion of the trial to proceed in its entirety. [ 2 ] The claim is such that in July 2004 the claimant purchased a used 1998 Ford Expedition with 178,000 kilometres from Demi (phonetic) Investments. That company is not named as a defendant.

The claimant alleges that the vehicle, in his words, "has been maintained meticulously and was in very good shape." At the trial, however, only an oil receipt was produced. No records prior to the purchase of maintenance were produced, nor any records of maintenance since the purchase have been produced. [ 3 ] On or about October 2005 a recall letter was sent out from Ford advising the parties that there is a possible defect and that may result in a fire.

In December 2005 a further notification was sent out and in February 2006 the vehicle of the claimant was repaired by the defendant Dams Ford. [ 4 ] The claim alleges that on November 4th, 2009, some two-and-a-half years post, a fire occurred in the claimant's vehicle. The claim alleges that the defendant Ford knew of the defect and that both defendants failed to act prudently and repair the vehicle properly.

All such claims are denied by the defendants. [ 5 ] A settlement conference was held on November 1st, 2013, some two years post the commencement of the claim, before The Honourable Judge Miller and at that time the claimant was permitted to amend his claim. The parties then appeared again before The Honourable Judge Miller on February 26th, 2014 wherein the claimant was seeking additional time to exchange his documents, extend time for disclosure and to adjourn the trial.

The Honourable Judge Miller granted an extension of time to the claimant to disclose documentation to March 21st, 2014, however, dismissed the request of the claimant to adjourn the trial. [ 6 ] This matter commenced as a trial before me on May 6th, 2014. The claimant commenced his testimony, however, one document that he sought to rely upon was in French and he failed to translate the document, nor was the entire document produced; thus, the trial was adjourned to allow the claimant additional time and it was through the assistance of Ford through this court's court order that that document was produced.

The trial reconvened on August 20th, 2014 with the claimant giving his direct testimony. Cross- examination commenced. The matter did not complete. [ 7 ] The matter was scheduled to complete on today's date, that being October 20th, 2014; however, in the interim the claimant brought an application on September 17th, 2014 seeking an exclusion of documents produced by the defendants, a default order against the defendants, despite replies being filed and the trial commence, and I will quote, "a sanction for breach of civil rules." After hearing the evidence that motion was dismissed by myself.

The claimant was advised that the trial would reconvene on October 20th, 2014. [ 8 ] The parties appeared before me today and the claimant brought a verbal application that he wanted his file transferred to the Supreme Court based on new evidence and that his lawyer advised him to do so. No lawyer appeared for the claimant, nor was any correspondence produced by any counsel purportedly representing the claimant advising of retention and representation. Mr.

Fenelon advised the court that he required additional time to produce fire and expert reports and that he was very confident, based on other court decisions, that he is correct as to the source of the fire in his vehicle. After hearing from the parties I dismissed such verbal motion of the claimant. There was nothing produced to support any of the claims advanced. [ 9 ] Mr. Fenelon bought the vehicle in 2004, the fire occurred in 2009, he commenced the action in 2011.

He has had other judges provide extensions and here we are some five years post-fire and the claimant is still seeking a further delay to his own claim to produce reports and seek to have the file transferred (this in the midst of a trial). That request today has been dismissed. [ 10 ] Mr. Fenelon concluded being a witness on the stand with his cross-examination by both defendants' counsel.

At the conclusion, despite the claimant advising on prior court appearances that additional family members would be testifying to support the balance of his claim, he advised the court this afternoon that he had concluded his evidence, thus, the no evidence motion is before me at this time. [ 11 ] I am very concerned about the conduct of the claimant in these proceedings.

Despite not commencing his action until almost two years post-fire, despite having court extensions, despite having document exchange and report orders made, the claimant has chosen not to produce any documentation to support his claim that the fire, in whole or in part, is the fault of one or both of the defendants. [ 12 ] He purchased a 1998 vehicle in 2004 when it had 178,000 kilometres on it. He did not produce any service records prior to purchase to show any maintenance or replacement of any parts. He failed to produce any maintenance records post-purchase save and except an oil receipt.

He drove the vehicle to being in excess of 227,000 kilometres at the time of the fire but no service records were produced. Despite this fire occurring in 2009, the claimant has failed to produce any fire report or expert report indicating the cause and source of the vehicle fire. [ 13 ] What is more concerning and detrimental to the claimant is that even when counsel for Ford wrote directly to the claimant in exhibited letters dated November 14th, 2011, November 30th, 2011, December 19th, 2011 and January 24th, 2012 asking for the ability

to inspect the vehicle and all parts therein the claimant chose repeatedly and refused to respond, nor to make the vehicle available for inspection. Ford and Dams Ford are entitled to inspect the vehicle and that very report actually would have been producible and, thus, to the possible benefit of the claimant, at no expense to him, to determine the cause and source of the fire; however, by his own repeated choice the claimant refused to do so. [ 14 ] The claimant has not produced anything showing the cause and/or origin of the fire. There is no expert report. There is no report.

The claimant had no ability to claim on the Insurance Corporation of British Columbia as he chose not to have any fire insurance coverage on the vehicle. He failed to make the vehicle available for inspection. There are no service records. There is no evidence before this court that the fire was caused by any fault, in whole or in part, by the defendants. There is no evidence that the fire was

an act of God, arson, a design defect, a material defect, a wear and tear defect, an environmental defect, a post-purchase maintenance defect. The claimant simply seeks to rely upon some Internet documentation about other Ford Explorer vehicle fires and he is simply assuming quite confidently that his fire source is identical.

This court cannot assume such. [ 15 ] Given that the claimant has failed by his own choice and failed, even with repeated offers from Ford to inspect the vehicle, the claimant has failed to provide any evidence to this court to support his claim, in whole or in part, that the fire is, in whole or in part, the fault of the defendants. This is allowed and the claim is dismissed. (RULING CONCLUDED)