Ahearn v. United Truck and Auto Repairs Date:, 2012 BCPC 166

Citation: Ahearn v. United Truck and Auto Repairs Date: 20120410 2012 BCPC 0166 File No: S71659 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LILA AHEARN CLAIMANT AND: UNITED TRUCK AND AUTO REPAIRS LTD. DEFENDANT RULING ON APPLICATION OF THE HONOURABLE ASSOCIATE CHIEF JUDGE G.S. GILL Appearing in person: L. Ahearn Appearing for the Defendant: V. Nand Place of Hearing: Surrey , B.C. Date of Hearing: April 5, 2012 Date of Judgment: April 10, 2012

[ 1 ] The Claimant, Lila Ahearn, makes a claim against the Defendant, United Truck and Auto Repairs Ltd., for damages in the amount of $5904.14 which she claims arise out of an improper seizure and retention of her vehicle, a 2002 GMC cube van, bearing serial number 1GDL 7C1C32J500200 (“the vehicle”). She maintains that the said seizure was made by Consumer Bailiffs 2011 at the behest of the defendant for repairs the defendant alleges to have performed on the vehicle.

The claimant maintains that she did not receive notice of the final repair costs, and the registered lien (Exhibit 1) securing payment of the same prior to seizure of the vehicle. [ 2 ] The claimant now applies to this court for an order that the vehicle be returned to her and that all costs associated with the seizure and retention to date (Exhibit 2) be the responsibility of the defendant. The defendant, represented by Mr.

Vivek Nand, maintains that he performed all repairs as instructed and that he instructed the bailiff to seize the vehicle, pursuant to the lien he had earlier registered, following the date upon which payment for the repairs was promised but not made. [ 3 ] At the outset, I would note that although these proceedings name only Lila Ahearn as the claimant, she was accompanied on this application by a man identifying himself as her grandson and by the name of Anthony Snider. Although Mr.

Snider assisted his grandmother with the application and also claimed to have some sort of ownership interest in the vehicle, he is not a party to these proceedings and therefore does not currently have standing to seek any specific relief in his own right. [ 4 ] Many of the underlying facts are in dispute and will ultimately need to be resolved at a trial of the matter.

The purpose of the application today and the intent of this ruling is to determine whether the vehicle can be returned to the claimant pending trial and if so under what terms and conditions. [ 5 ] The claimant has indicated a willingness and ability to post some security for return of the vehicle. The amount suggested by the claimant is the outstanding repair invoice cost in the amount of $2353.12.

The claimant's position is that this would be sufficient security and that any amount above that, constituting the bailiff’s costs should be the responsibility of the defendant. [ 6 ] It must be recognized that ultimately, any costs associated with seizure and retention of the vehicle are a matter between the bailiff and the defendant although of course the defendant is entitled to seek their recovery from the claimant if able to prove those costs were properly incurred. [ 7 ] This court has the authority to make orders for the detention, preservation and recovery of property before judgment under Rule 10-1 of the Supreme Court rules. [ 8 ] Under all the circumstances as above noted, there is merit in considering the return of the vehicle to the claimant in order to allow continuing use of the vehicle as well as in order to preclude any further storage costs.

There is also, however, a need to maintain at least some measure of financial security, in addition to that represented by the vehicle itself, to protect the defendant with respect to its claim for repair costs associated with the vehicle as well as any obligation it owes to the bailiff regarding the vehicle’s seizure and detention if ultimately proven to have been justified. [ 9 ] In light of the foregoing, I make the following orders: 1.

That the claimant immediately pay into court the sum of $2500.00 representing security for and contribution towards any amounts ultimately found to be owing to the defendant, United Truck and Auto Repairs Ltd., regarding repairs performed by the defendant on the vehicle and also regarding any costs associated with the seizure and retention of the vehicle at the defendant's behest. 2.

That upon the claimant paying the aforesaid monies into court, the defendant immediately instruct Consumer Bailiffs 2011 to return the vehicle to the claimant pending the outcome of this claim and that the said Consumer Bailiffs 2011 forthwith comply with those instructions. 3. That the claimant be permitted to use the vehicle returned to her but that she must not sell, dispose of, encumber or do anything in relation to the vehicle that would lessen its value without the prior approval of the court, until the conclusion of these proceedings. 4.

That the claimant at all times keep the vehicle properly insured against all potential losses associated with its intended use. ___________________________________________ The Honourable Associate Chief Judge G.S. Gill Provincial Court of British Columbia