Trudeau v., 2013 BCPC 358

Citation: Trudeau v. 636221 B.C. Ltd. Date: 20130603 2013 BCPC 0358 File No: S72136 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: COLETTE M. TRUDEAU CLAIMANT AND: 636221 B.C. LTD. dba BARNES HARLEY-DAVIDSON BUELL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Appearing in person: C.M. Trudeau Appearing for the Defendant: G. Barnes Place of Hearing: Surrey , B.C. Dates of Hearing: May 10, May 23, 2013 Date of Judgment: June 3, 2013

[ 1 ] Colette M. Trudeau (“the Claimant”) is suing 636221 B.C. Ltd. dba Barnes Harley-Davidson Buell (“the Defendant”) for damages for breach of an implied warranty that a Buell 1125R motorcycle (“the Buell”) she bought from the Defendant is fit for its intended use, and damages for negligence in work done on the Buell. [ 2 ] In her closing submissions the Claimant said she was not pursuing the claim for negligence but at the same time she maintained that the Buell was damaged in the Defendant’s shop. That submission requires me to consider whether the Defendant was negligent.

The claimant also sued Fred Deeley Imports Ltd. dba Deeley Harley Davidson Canada but has settled her claim against that party. [ 3 ] In these Reasons I will first outline the applicable law, then identify the issues, make some general observations on the reliability of the evidence, set out the proven facts, and finally explain my conclusions. Law [ 4 ] In order for the Claimant to obtain an order that the Defendant pay her damages, she must prove her case on the balance of probabilities. In other words, the evidence in the trial must “tip the scales” in her favour.

If the evidence is evenly balanced or “tips the scales” in the Defendant’s favour, she will not be successful. [ 5 ] The implied warranty the Claimant relies on is established by s. 18(

a) of the B.C. Sale of Goods Act . Its relevant provisions are as follows: S. 18 Subject to this and any other Act, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale or lease, except as follows: (

a) if the buyer or lessee, expressly or by implication, makes known to the seller or lessor the particular purpose for which the goods are required, so as to show that the buyer or lessee relies on the seller's or lessor's skill or judgment, and the goods are of a description that it is in the course of the seller's or lessor's business to supply, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are reasonably fit for that purpose ;… [ 6 ] The evidence in this case establishes the pre-conditions for an implied warranty.

The Claimant wanted the motorcycle to ride in town and on road trips and I am satisfied that this was communicated to the Defendant’s salesperson, either expressly or by implication. The Claimant knew she wanted a Buell motorcycle and relied on the salesperson’s knowledge in buying an 1125R when a Lightening was not available.

The Defendant was in the business of selling Harley Davidson and Buell motorcycles. [ 7 ] To establish negligence, the Claimant must prove that the Defendant breached the duty of care it owed to her when the Buell was in its possession and that it committed some act or omission that caused damage to the Claimant. Issues [ 8 ] I must therefore decide the following issues: 1. Has the Claimant proved on the balance of probabilities that the Buell is so defective as to be unfit for its intended use? 2.

Has the Claimant proved on the balance of probabilities that any act or omission of the Defendant caused damage to the Claimant? Assessment of the evidence [ 9 ] In order to assess the reliability of a witness’ testimony a judge will consider factors such as: • the witness’ ability to observe, recall and describe events accurately; • whether their testimony is consistent with other, independent evidence; • whether their testimony is internally consistent or changes and contains contradictions; • whether the witness is biased for or against either party; and • the witness’ attitude and demeanour.

Are they evasive or forthcoming, belligerent, cooperative, defensive or neutral? [ 10 ] I found some aspects of the Claimant’s testimony lacked reliability because they were vague and lacked precise details. For example, she estimated details such as the mileage on the Buell and often said that something “would have” happened, suggesting she did not recall exactly what happened but was reconstructing. [ 11 ] She also exaggerated certain claims, such as that she lost entire riding seasons (the period from April or May through October or

November) because the Buell was in the Defendant’s shop.

The evidence established that the Buell was in the shop only for the following periods: 2008 – in the shop 1 day during riding season for manufacturer’s recalls and update 2009 – in the shop 11 weeks during riding season to repair clutch fluid leak and replace damaged parts (delay caused by back-ordered parts) and 1 day to repair brake and signal lights 2010 – not in the shop at all 2011 – in the shop during non-riding season for variable power and intermittent speed gauge malfunction 2012 – not in the shop 2013 – in the shop during non-riding season for anti-freeze and clutch fluid leaks The Buell was never in the Defendant’s shop for an entire riding season. [ 12 ] In addition, the Claimant repeatedly said she had to “constantly fight” the Defendant to get repairs done.

However, the only instance she could provide of fighting was having arguments with Chris Barnes in 2009 about whether the Defendant would replace parts damaged by leaked fluid and about the length of time the Buell was in the shop while awaiting parts. The evidence establishes that the Defendant performed all repairs without charge under warranty; it voluntarily provided the Claimant with free pickup and delivery; and its employees worked hard to satisfy her. Under cross-examination the Claimant admitted that the Defendant’s employees were helpful and addressed her concerns in 2011.

She then acknowledged that “fight” was not the correct word. [ 13 ] Under cross-examination the Claimant had a tendency to avoid answering questions when the answer did not support her case. Some of her testimony was contradicted by other independent evidence. For example, she testified that the Defendant returned the motorcycle to her “filthy” in 2013, but the areas of the motorcycle depicted in photographs she provided appeared very clean. Her photographs supported the testimony of the Defendant’s service manager that the Buell was carefully detailed before being returned.

As explained below, the Claimant also gave contradictory testimony about matters such as what maintenance and checks were done on the motorcycle. [ 14 ] For all these reasons, I found parts of the Claimant’s testimony to be unreliable. [ 15 ] The Claimant called a current and a former employee of the Defendant as witnesses and the Defendant called two of its employees. None of these witnesses appeared to be hostile to either party. While I would expect the Defendant’s employees to support their employer they also appeared to be trying to be fair and truthful.

The witnesses Erik Van Vliet, Gregory Organ and Craig Friesen were shown to have sufficient training and experience as motorcycle mechanics to give expert opinion evidence in that field. Service Manager Daniel Hutchinson had 45 years riding experience and was qualified to give opinion evidence about motorcycle riding.

I indicate in my findings of fact where I rely on the evidence of these witnesses. [ 16 ] The Claimant established that the Defendant’s service records contained discrepancies in the mileage recorded for the Buell and the price of repairs, but she relied on the records to show the work done by the Defendant on the Buell and did not dispute the nature of the work indicated by the service records. In assessing the evidence, I have borne in mind that the service records are not reliable in all their details, but that their statements of work done are uncontradicted.

Facts [ 17 ] I find the following relevant facts to have been proven on the balance of probabilities by the evidence in the trial. The Claimant paid the Defendant $15,767.72 plus tax for the 2008 1125R Buell motorcycle on April 6, 2008. She also bought an extended warranty from Harley-Davidson Canada. The chronology of subsequent events is as follows. 2008 [ 18 ] The Buell spent one day in the Defendant’s shop on June 28, 2008 to deal with two manufacturer’s recalls and an update.

The Defendant installed manufacturer’s recall kits to remedy possible 5 th gear galling on the clutch shaft due to lack of lubrication and the possibility of the front brake line contacting the front tire. In addition, the electronic control module calibration and starter solenoid fastener torque procedure were updated. [ 19 ] The Claimant rode the Buell from April until October or November 2008 without problems. She gave contradictory testimony about when she noticed some spotting that turned out to be hydraulic clutch fluid on the Buell’s engine cover and lower body.

First she said it was in 2008 right after the recall work was done. She said she discussed it with the Defendant’s employees, who said it was a cleanser and noticed a leak but did not tell her to bring the Buell in immediately; nevertheless, she booked an appointment immediately and on the way to the appointment her clutch failed. However, when confronted in cross-examination with evidence the clutch failure was in 2009, she agreed that she didn’t notice the spotting in July 2008 after the recall work, but would have noticed it in May 2009. Then she repeated that she would have noticed the spotting in 2008.

Because of these inconsistencies I can only conclude that the Claimant either noticed spotting in 2008 and did not take the Buell to the Defendant for servicing immediately, or did not notice it until 2009 but took it in immediately after noticing.

[ 20 ] In the fall of 2008 the Buell was stored for the winter. 2009 [ 21 ] The Claimant insured the Buell in April or May 2009. On May 17, 2009, on the way to the appointment at the Defendant’s shop to deal with the spotting she stopped for a meal and when she started the Buell it stalled twice; the clutch was soft and didn’t work so she had the Buell towed to the Defendant’s shop where it was determined that hydraulic fluid had leaked from the clutch. [ 22 ] The Claimant acknowledged she doesn’t know whether her clutch fluid reservoir was full before she rode the Buell. Her testimony about whether she has followed the maintenance procedures and

schedule recommended by the owner’s manual, and what checks were done at the beginning of a season and before each ride was evasive and inconsistent. For example, she said that she didn’t follow the required

schedule because the Buell had been in the shop every season and she would have assumed the Defendant would service it. Then she said her father would have done the maintenance on it, the same maintenance he did on her parents’ Harley Davidson motorcycles. Then she said her father didn’t take care of the maintenance, he just winterized the Buell and she relied on the Defendant for maintenance.

She did not call her father as a witness to explain what maintenance and checks he did on the Buell. [ 23 ] With regard to pre-ride checks the Claimant said she does a walk-around but her father looks after checking fluids and tire pressure since she doesn’t know how to check the oil and where the clutch fluid goes. She agreed there’s a clutch fluid reservoir on the handlebar with a window to show the fluid level but said she couldn’t tell the level of the fluid because it is clear.

However, her witness Gregory Organ, a mechanic with 18 years experience working on Harley Davidson and Buell motorcycles, testified that you can see the level of the clear clutch fluid through the window on the reservoir. [ 24 ] Mr. Organ, an employee of the Defendant who did the work on the clutch in 2009, testified that the slave cylinder malfunctioned because an O ring failed and a seal was chewed up.

He said the O ring could have dried out during storage or the failure could have happened during use, but a person maintaining the Buell would probably have noticed fluid running down, and if a rider checked the clutch fluid reservoir there would be no problem in seeing the level. [ 25 ] The Claimant testified that her father would have checked the Buell’s pressures and fluids and said it was safe to ride before she rode it on May 17, but under cross-examination she acknowledged he must not have checked the clutch fluid because it was empty when the clutch failed. [ 26 ] Given this evidence, I find the Claimant has failed to prove that the 2009 clutch fluid leak resulted from anything the Defendant did or failed to do rather than from inadequate checking and maintenance, responsibilities of the Buell’s owner. [ 27 ] The Defendant repaired the clutch fluid leak and replaced damaged parts under warranty, although it took eleven weeks to obtain back ordered parts including engine casing damaged by the leaked hydraulic fluid.

Mr. Van Vliet and Mr. Organ characterized this delay for parts as typical. In 2009 the Defendant offered the Claimant a $500 store credit because of the long delay but she did not accept it. [ 28 ] The Claimant testified that she insured the Buell in April or May 2009 but cancelled the insurance after it had spent several weeks in the shop and did not ride again that season. However, she also testified that on a ride to Whistler her brake and signal lights did not work so she took the Buell to the Defendant to have them repaired. The lights were repaired under warranty on September 21, 2009.

When confronted with this evidence she acknowledged that she must have re-insured the Buell and continued to ride it in 2009 after it was returned to her in August. Mr. Organ testified that it was not uncommon for the LED lights on Buells to fail, and there is no evidence of any further problem with the Buell’s lights after the Defendant’s 2009 repair. 2010 [ 29 ] The Claimant rode the Buell without incident in 2010. She said she had minor concerns about its power surging and slowing and the speed gauge intermittently not working and mentioned them to Mr.

Organ but they were not significant enough that she took the Buell in for repairs. 2011 [ 30 ] In January 2011 she met Mr. Organ at a bike show. He introduced her to the Defendant’s new service manager who had a lot of experience with Buells and was very helpful. She took the Buell to the Defendant in February 2011 to deal with the power and gauge issues.

The electronic control module calibration was updated again and cylinder coil packs were replaced, resolving the running problems. [ 31 ] Although the Claimant did not rely on this aspect of the Defendant’s work to make her case, I note that the Defendant’s service record for the 2011 work (Ex. 1, Tab 6) says “Issue was fixed with an expired service bulletin. Should have been caught while bulletin was still valid and we had the bike in to fix the same issue. Customer called back saying the last repair was not fixed.

Unfortunately we were at fault.” Although there was little evidence to explain this notation, I understand it to refer to installation of updated software for the electronic control module calibration. Even though it appears there was a delay in installing the updated software that may have caused the minor power problems in 2010, when the 2011 work was finished Mr. Organ tested the Buell and found it to run well.

He believed the Claimant’s concerns had all been addressed. [ 32 ] The Buell was delivered to the Claimant before the riding season, but she stored it and didn’t ride it at all in 2011 because she had had facial surgery that prevented her from wearing a helmet. 2012 [ 33 ] In April 2012 she started the Buell and immediately noticed two leaks: they appeared to her to be clutch fluid and oil. The Buell hadn’t been ridden since the fall of 2010, and the Claimant did not ride it in 2012 after she saw the leaks. She did not attempt to have the

leaks repaired but took photographs, asked the Defendant to buy back the Buell, and launched this lawsuit when they were unable toagree on a price. 2013 [34] As a result of an agreement at the settlement conference in this matter the Defendant picked up the Buell and fixed an anti- freeze leak from the water pump and a leak from the clutch slave cylinder under warranty.

Craig Friesen, the 4th year apprentice whoperformed the work, testified that the anti-freeze leak was caused by failure of a bearing seal, a problem frequently caused because amotorcycle is inactive and the seal lacks lubrication, dries out and cracks. He testified that storing a motorcycle for two years couldcause this. He said the leak amounted to seepage that left residue on the coolant case but would not put a rider at risk. He replaced theclutch master cylinder and did not see an oil leak. After completing his work, Mr. Friesen test rode the Buell three times and found itperformed perfectly each time.

He also used a diagnostic computer to test the Buell after the work was done and it indicated noproblems. [35] The evidence establishes that the most likely cause for the leaks is parts drying out due to lack of lubrication. Mr. Van Vliettestified that if you store a motorcycle for two years you should do things including starting the engine every few months. TheClaimant’s testimony about storage, maintenance and checks was inconsistent and vague. She was unable to check fluids herself andgave contradictory testimony about what her father checked and when.

On the evidence, the most likely cause of these leaks isinadequate maintenance during storage for two and a half years. [36] Mr. Hutchinson said they took particular care with the Buell because he understood it was particularly important to address allthe Claimant’s concerns. He had the Buell’s battery inspected and replaced as a preventive measure because of its age, had scuff marksbuffed, had it detailed twice, and worked on it himself to ensure it was pristine. [37] The Defendant returned the Buell to the Claimant on April 1 and on May 6 the Claimant rode it for the first time.

She testifiedthat there was new spotting on the swing arm and photographs (Ex. 1, tab 21) show perhaps ten small cloudy smudges on the paintedswing arm and a shadowed area of the engine cover that the Claimant describes as new discolouration. The area she indicates is similarin appearance to other portions of the engine cover. However, Mr. Friesen said he didn’t notice stains on the clutch side of the Buell andMr. Hutchinson said the Defendant did no work on the swing arm side in 2013. The Claimant objects to being left with a motorcyclewith a cosmetic issue for which she blames the Defendant.

However, the most likely cause of smudges on the paintwork is leaking fluid,and on the evidence in this trial the most likely cause of leaks is inadequate maintenance, the Claimant’s responsibility. [38] The Claimant took the Buell for a test ride on May 6 and said it performed well but she testified that during the ride a wirebroke, went between the tire and the fender, and made a loud grinding noise. The evidence establishes that the wire in question is thefront oxygen sensor, which consists of two lengths joined by a plastic coupler.

The Claimant’s photographs of the “broken wire” (Ex. 1,Tab 22) show the plastic coupler uncoupled but undamaged. Mr. Friesen testified that the oxygen sensor must have been properlyconnected when he performed the diagnostic computer test, or the test would have indicated a problem. He also said that if the Buellwere ridden with the sensor wire disconnected the engine warning light would come on. [39] The Defendant questions whether the uncoupled wires were long enough to reach under the fender, and how the plasticconnector parts could make a loud grinding noise without being damaged.

However, the details of what happened to the oxygen sensorwire are not important because the problem is so minor and its remedy is so simple. If the connector comes apart its two parts need onlybe pushed together. [40] The Claimant also complained of an electrical connector hanging down slightly when she photographed the Buell on May 6. Ifthis is an issue at all, it too is minor.

It can be remedied by zap strapping the connector in place. [41] The Claimant’s complaints about the Buell’s condition after the Defendant’s 2013 work amount to extremely minor problemsthat can be remedied in seconds and a minor cosmetic problem. Has the Claimant proved on the balance of probabilities that the Buell is so defective as to be unfit for its intended use? [42] I draw the following principles from the case law cited by the Claimant (Great West Van Conversions Inc. v. Langevin, [2000]B.C.J. No. 2547; Lightburn v. Belmont Sales Ltd., [1969] B.C.J. No. 448; Knowles v. Anchorage Holdings Co.

Ltd. (1964), (BC SC), 43 D.L.R. (2d) 300; Charterhouse Credit Co. v. Tolly, [1963] 2 All E.R. 432; and Massey-Harris Co. v. Skelding, (SCC), [1934] 3 D.L.R. 193): 1. In order to prove a breach of the implied warranty of fitness for its purpose the Claimant must prove a defect that destroyed theworkable character of the Buell, thereby amounting to a fundamental and total breach of the contract. 2. There may be an accumulation of defects which, taken singly, would not amount to a breach, but taken en masse constitute a breachgoing to the root of the contract.

Where defects are so numerous that taken en masse they destroy the workable character of the thingsold, this may amount to a total and fundamental breach. [43] The Claimant submits that the accumulation of tail and brake lights not working in 2009, clutch fluid leaks in 2009 and 2012,intermittent power variation and intermittent speed gauge outage in 2010, anti-freeze leak in 2012, and uncoupled oxygen sensorconnector and smudges on the swing arm in 2013 has destroyed the workable character of the Buell.

Although, under cross-examination,she conceded that the main issue as of the trial date was spotting on the paint in the area of the swing arm, a cosmetic issue, the Claimant

says she does not consider the Buell reliable and as a result is unwilling to ride alone for any extended period of time. [44] However, the evidence falls far short of proving the Buell unfit to ride. The Claimant and Mr. Van Vliet considered it abnormalfor a motorcycle with only 2800 kms. to have five service records, but this does not establish that the Buell’s workable character wasdestroyed. The manufacturer’s recalls addressed potential problems. The leaks have been fixed and appear more likely to have resultedfrom inadequate maintenance and storage measures than from defects in the Buell.

Only the lights, gauge and power issues could beconsidered defects, and these have all been rectified. The uncoupled oxygen sensor connector and slight smudges on the paint do notaffect the Buell’s workable character. On all the evidence, I find the Buell is in good working order as of May 2013, and it is fit forriding in town and on road trips. The Claimant has therefore not proven the Defendant breached the implied warranty of fitness.

Has the Claimant proved on the balance of probabilities that any act or omission of the Defendant caused damage to theClaimant? [45] The Claimant believes that while the Buell was in the Defendant’s shop for recalls in 2008, it was somehow damaged to thepoint that it cannot be fixed. However, the evidence establishes that the Buell’s problems have all been fixed and it is now in goodworking order. [46] Moreover, there is no evidence that any act or omission by the Defendant caused the problems the Claimant complains of.

Inthe Notice of Claim the Claimant pleads the maxim res ipsa loquitur, Latin for “the thing speaks for itself.” In Fontaine v. BritishColumbia (Official Administrator), (SCC), [1998] 1 S.C.R. 424, the Supreme Court of Canada held that the maximshould be treated as expired in Canada and not considered a separate component in negligence actions. Rather, a judge should weighcircumstantial evidence with direct evidence to determine whether there is a prima facie case of negligence. If there is a prima facie casethe Claimant will succeed unless the Defendant presents evidence negating the Claimant’s case.

Here any inference that the Buell’sproblems must have been caused by the Defendant’s work on it is negated by evidence of other reasonable explanations for what causedthese problems: the manner in which the Claimant stored, maintained and checked the Buell. Therefore, negligence cannot be inferredfrom the fact that the Defendant worked on the Buell and had it in the shop at various times.

Conclusion [47] A judge can never know all the facts, but must decide cases based only on the admissible evidence presented during the trial.The evidence in this trial simply did not support the Claimant’s belief that the Buell was defective and that the Defendant caused anyserious problems with the Buell. The Claim is therefore dismissed.

The Defendant said it would not ask the Claimant to pay its filing andservice fees or witness expenses, and added that the store credit of $500 was applied to her account in 2009 and is still available to her. [48] Although her claim was not successful, both the Clamant and the Defendant prepared and presented their cases in a thorough,professional manner. Both parties deserve credit for this, and for their courtesy to each other and to the Court throughout the trial. A.E. Rounthwaite Provincial Court Judge