COURT FILE NO.

: 184/19

ONTARIO

2020 CanLII 36672 (ON SCSM)

SUPERIOR COURT OF JUSTICE

CHATHAM-KENT SMALL CLAIMS COURT

BETWEEN: )
)
MEMORY LANE RESTORATIONS AND )
COLLECTABLES LTD. ) Stanley Mayes, for the Plaintiff
)
Plaintiff (Defendant by Defendant's Claim) )
)
– and – )
)
JAMES TURPLE ) Paul Downs, for the Defendant
)
Defendant (Plaintiff by Defendant’s Claim)

)
)
) HEARD: December 18, 2019

DEPUTY JUDGE GLENN C. WALKER

[1] This matter was tried at Chatham. Ontario on December 18, 2019 at which time the
decision and reasons for decision were reserved in order to receive written submissions.
Final submissions were filed on March 9, 2020.

[2] The Plaintiff claims the sum of $11,710.00 for unpaid invoices, damages for negligent
misrepresentation and punitive damages as well as possession and sale of the 1983
Pontiac Firebird which is the subject of this litigation. The Defendant claims the sum of
$7,271.55 by way of a Defendant’s Claim for overpayment of the said invoices and
damages in the amount of $1,000.00 for poor workmanship.

FACTS

[3] Linda Ouellette gave evidence on behalf of Memory Lane Restorations and Collectables
Ltd. of which she is the owner and President. At the relevant time, the business was
involved in the restoration of cars and car related collectables. The business is a
restoration business and not a repair business in the words of the owner. Two employees
of the Plaintiff, Derek Willemsen and Mitchell Badder, also testified for the Plaintiff.
James Turple was the only witness for the Defendant.
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[4] In the month of October, 2018, the Defendant attended at the Plaintiff’s place of business
in Thamesville, Ontario to inquire about having some work done on his 1983 Pontiac
Firebird.

2020 CanLII 36672 (ON SCSM)

[5] He met first with the witness, Derek Willemsen, and described to him the work which he
wished to have done. He then met with the owner, Linda Ouellette, who explained to him
the terms of payment and advised him that the hourly rate was $65.00. The Defendant
would be invoiced monthly for the work done the previous month.

[6] No estimate was requested or given and no written authorization to do the work was
signed by the Defendant.

[7] There was a great discrepancy between the evidence of the Defendant and Willemsen
with respect to what work was requested to be done on the vehicle. The Defendant stated
in his testimony that initially he only went to the Plaintiff to have the fibreglass hood and
hatch fitted on the vehicle and that he could do the rest of the work himself, specifically
that he could sand the old paint off and repaint the car. Later other work to be done by the
Plaintiff was discussed between the Defendant and Willemsen, such as mounting new
side skirts and body work.

[8] On the other hand, Willemsen testified that at the initial meeting the Defendant stated
that he wanted the car stripped and painted, body work done and the fibreglass hood and
hatch fitted and that they talked about getting the car running again.

[9] The Defendant claimed that he had worked on restoring cars for most of his life and that
he was capable of doing all of the work necessary to restore this car with the exception of
fitting the fibreglass hood and hatch. He is retired from General Motors where his job
involved the painting of railway cars. He acquired the Firebird in 1987 and had painted it
himself on two occasions.

[10] The vehicle had been painted with Imron paint. This was the type of paint used by the
Defendant at General Motors for painting railway cars.

[11] Before the car was brought to the Plaintiff, his nephews had made a small start on
removing the old paint using razor blades.

[12] On October 30, 2018, Willemsen drove to the Defendant’s home in Thamesford to pick
the car up with a car hauler as it was not in operable condition and brought it back to the
Thamesville shop where the work was to be done. Both Willemsen and Badder worked
on the vehicle. Work commenced on November 13, 2018 and continued until
approximately January 9, 2019 when the Defendant told the Plaintiff to stop.

[13] During the month of November, 2018, the Plaintiff expended 115 hours on the project.
Most of that time was spent on stripping the old paint. Due to the type of paint previously
used, the old paint had to be sanded off as the liquid stripper would not work on it. The
Defendant would drop into the shop from time to time to view the progress of the work
and to bring in parts to be used in the restoration.
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[14] An invoice for work done in November, 2018 was rendered at the end of November and
paid by the Defendant in the amount of $7,271.55. After discussion between the parties
the invoice amount was reduced by 25 hours to $7,271.55 as the Defendant thought that
too much time had been spent on the paint stripping.

2020 CanLII 36672 (ON SCSM)

[15] During the month of December, 2018, 34 hours were spent on the project, again most of
this time on paint stripping. The Plaintiff invoiced the Defendant on December 31, 2018
in the amount of $2,747.03. Additional stripping was done on January 8 and 9, 2019 at
which time the Defendant asked that work stop as he was unhappy with the progress. The
Plaintiff issued another invoice to the Defendant on January 31, 2019 in the amount of
$352.97 for work done on another vehicle for the Defendant.

[16] The Plaintiff demanded payment of the December 31, 2018 and January 31, 2019
invoices before it would release the vehicle to the Defendant claiming a possessory lien
pursuant to the Repair and Storage Liens Act, R.S.O. 1990, c. R.25, as amended (RSLA).

[17] On or about February 22, 2019, on the advice of his counsel, the Defendant delivered to
the Plaintiff a cheque in the amount of $3,100.00 to cover the two outstanding invoices
and picked up the vehicle from the Plaintiff’s premises. He subsequently stopped
payment of the cheque, again on the advice of his counsel.

[18] The Plaintiff then registered a Financing Statement claiming a non-possessory lien
against the vehicle pursuant to the RSLA.

[19] On March 29, 2019, the Plaintiff issued a further invoice to the Defendant in the amount
of $6,710.73 which included the November 30, 2018 and January 31, 2019 invoices as
well as a claim for actual labour performed from November, 2018 to February, 2019, and
not previously billed, in the amount of $2,904.85 and shop supplies at 10 per cent of that
amount of $290.49 plus interest of $415.39 calculated at 2 per cent per month.

THE CLAIMS

[20] The Plaintiff’s Claim is stated to be in the amount of $11,710.00. This appears to be for
the invoice issued on March, 2019 plus a claim for damages in the amount of $3,000.00
for negligent misrepresentation and a claim in the amount of $2,000.00 for punitive
damages. A claim for possession and sale of the motor vehicle pursuant to the RSLA is
also included.

[21] The Defendant’s Claim is stated to be in the amount of $7,271.55 for return of the
payment made by the Defendant for the invoice of November 30, 2018 which the
Defendant alleges was paid under the mistaken belief that he was required to pay the
invoice not being aware that there were breaches of the Consumer Protection Act 2002,
S.O.2002, c.30, Sched. A (CPA). The Defendant also claims the sum of $1,000.00 for
damages to his vehicle while in the possession of the Plaintiff.

ANALYSIS
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[22] As stated above, there is a great disparity in the evidence of the Defendant and Willemsen
as to what work was to be done on the 1983 Pontiac Firebird. Where their evidence
differs, I prefer and accept the evidence of Willemsen. Willemsen’s evidence was more
detailed than that of the Defendant. I also have difficulty reconciling the Defendant’s

2020 CanLII 36672 (ON SCSM)

version of the work that was requested with the facts that he visited the Plaintiff’s shop
frequently, saw that only sanding, which now says he did not authorize, was being done,
complained only that the work was taking too long, and not that work which he did not
want was being done and then paid the first invoice dated November 30, 2018.

APPLICATION OF THE CONSUMER PROTECTION ACT

[23] Counsel for the Defendant takes the position that Part VI of the CPA applies to the
relationship between the Plaintiff and the Defendant and that the Plaintiff has not
complied with the statute.

[24] The CPA provides in subsection 56(1) that no repairer shall charge a consumer for any
work or repairs unless the repairer first gives the consumer an estimate that meets the
prescribed requirements. No estimate was given by the Plaintiff to the Defendant and
none of the exceptions set out in subsection 56(2) apply here.

[25] Subsection 58(1) states that no repairer shall charge for any work or repairs unless the
consumer authorizes the work or repairs. The authorization must be in writing (section
59). There is no authorization in writing for the work to be done here.

[26] The Plaintiff’s position is that it is not a “repairer” but a “restorer” and that therefore the
CPA does not apply to its business. “Repairer” is defined in section 55 of the CPA as
meaning a supplier who works on or repairs vehicles or other prescribed goods (emphasis
mine).

[27] I am not dissuaded by the case law provided by the Plaintiff, most of which can be easily
distinguished from the case at bar, from finding that although the Plaintiff may call itself
a “restorer”, it is a “repairer” within the meaning of the Act.

[28] In both the case law and the dictionary definitions, it would appear that “restore” and
“repair” are used interchangeably. Furthermore, the definition of repairer in the CPA uses
the term “works on” as an alternative to “repairs”. Sections 56 and 58 make the same
distinction. There is no question that the Plaintiff’s employees worked on the 1983
Pontiac Firebird.

[29] I therefore find that the Plaintiff is a repairer, that the Defendant is a consumer, that the
1983 Pontiac Firebird is a vehicle and that the verbal contract between the parties is a
consumer agreement all within the meaning of the CPA.

[30] Subsection 93(1) of the CPA provides that a consumer agreement is not binding on the
consumer unless that agreement is made in accordance with the Act and regulations.
However, subsection 93(2) further provides:
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[31] “(2) Despite subsection (1), a court may order that a consumer is bound by all or a
portion or portions of a consumer agreement, even if the agreement has not been made in
accordance with this Act or regulations, if the court determines that it would be
inequitable in the circumstances for the consumer not to be bound.”

2020 CanLII 36672 (ON SCSM)

[32] Mr. Turple held himself out to be very familiar with the restoration of cars. He was
aware, or should have been, that the Imron paint was difficult to remove and would have
to be sanded rather than removed with liquid paint stripper. Notwithstanding that, he now
claims that he did not authorize the sanding of the motor vehicle in preparation for
painting. He watched the work being done throughout November, 2018 without
terminating the contract and then paid the November 30, 2018 invoice.

[33] It would be inequitable in those circumstances for the Defendant to benefit from the work
done in November, 2018 without some compensation to the Plaintiff. As a result, the
Defendant shall be bound by the consumer agreement to the extent of the money already
paid to the Plaintiff but no further.

[34] This case is remarkably similar on the facts to the Small Claims Court decision in Off
Road Addiction Inc. v. Porter et al., 2017 CanLII 149096 (ON SCSM), where the Deputy
Judge came to the same conclusion with respect to the definition of repairer and the
application of subsection 93(2) of the CPA. In that case, the non-compliant consumer
agreement was concerning the modification of a pickup truck.

QUANTUM MERUIT

[35] The Plaintiff also raised the issue of the doctrine of quantum meruit in the alternative;
arguing that the Defendant has been unjustly enriched and that the Plaintiff has been
deprived of the value of its work.

[36] The case of Gary Auto Repair v. Velke, 2010 ONSC 3183 (CanLII), a decision of the
Divisional Court is dispositive of this argument. At paragraph 20, Crane J. states:

[37] “The rationale that catches this and other non-complaint [sic] repairers seeking equitable
relief from the unjust enrichment of their customers is the third of the three elements; of
(1) the unjust enrichment of their customer; (2) a corresponding deprivation of the
repairer of the value of its work or materials; and (3) the absence of a juristic reason for
the enrichment (Pacific National Investments Ltd. V. Victoria (City), [2004] 3 S.C.R. 575
(S.C.C.) at para. 14. The Consumer Protection Act 2002 S.O. c.30, ss. 56, 58 and 59 is the
present juristic reason. The evidence at trial establishes elements (1) and (2).”

[38] Accordingly, the equitable remedy of quantum meruit is not available to the Plaintiff in
these circumstances.

NEGLIGENT MISREPRESENTATION

[39] The Plaintiff makes a claim for damages for negligent misrepresentation in addition to
the claim based on contract.
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[40] In Doumouras v. Chander, 2019 ONSC 6056 (CanLII), the court outlined the five
requirements for a claim of negligent misrepresentation:

[41] 1) There must be a duty of care based on a “special relationship” between the representor

2020 CanLII 36672 (ON SCSM)

and the representee;

2) The representation in question must be untrue, inaccurate or misleading;

3) The representor must have acted negligently in making the misrepresentation;

4) The representee must have relied, in a reasonable manner, on the misrepresentation;

and

5) The reliance must have been detrimental to the representee in the sense that damages
resulted.

[42] The Claim must include material facts to establish each of these five requirements.

[43] There is little in the Plaintiff’s Claim, which extends to 39 paragraphs, which would
assist the Defendant or the court in understanding how the facts pleaded relate to the five
requirements set out above. One might guess that the claim relates to the Plaintiff’s
allegation that it reduced its final invoices on the promise of quick payment by the
Defendant who then stopped payment on the cheque although that is far from clear from
the pleadings.

[44] Although this is Small Claims Court, both parties are represented and more specificity on
this point should be expected. The Plaintiff provided no final submissions on this issue.
The court finds that this claim for damages for negligent misrepresentation should be
dismissed for lack of detail in the claim and on the basis that the court finds no “special
relationship” between the Plaintiff and the Defendant.

PUNITIVE DAMAGES

[45] The Plaintiff also makes a claim for exemplary or punitive damages. Punitive damages
should only be resorted to in exceptional cases and with restraint. There is nothing in the
facts of this case which would warrant an award of punitive damages.

[46] However, it should be noted, that the court does not condone the tactics used by the
Defendant to obtain possession of the vehicle from the Plaintiff. Sections 23 and 24 of the
RSLA provide a judicial process for determining the right to a lien or other disputes
concerning possessory liens. The Defendant in this case chose to use deception and self-
help to obtain possession of the car. This practice, although, not rising to the level where
it would attract punitive damages, is not acceptable.

APPLICATION OF THE REPAIR AND STORAGE LIENS ACT

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[47] The Plaintiff also claims an order for the possession and sale of the 1983 Pontiac Firebird
pursuant to a non-possessory lien. A non-possessory lien can only come into being if the
lien claimant initially had a valid possessory lien (section 7(1) RSLA). The Plaintiff did
not have a valid possessory lien as the Plaintiff has been found not to have complied with

2020 CanLII 36672 (ON SCSM)

sections 56 and 58 of the CPA (section 3(2) RSLA).

[48] In any event, the RSLA provides for a non-judicial process for the seizure of the vehicle
pursuant to a valid non-possessory lien by the Sheriff and the subsequent sale by the lien
claimant.

DEFENDANT’S CLAIM

[49] That portion of the Defendant’s Claim seeking return of the payment for the November
30, 2018 invoice will be dismissed based on the reasons given above.

[50] The Defendant also asks for damages in the amount of $1,000.00 for damages sustained
to the car while in the Plaintiff’s possession, relating to: a) re-installing all of the
windows in the car when it was not necessary to remove them; b) damage to the frame of
the rear hatch window; c) removing, cleaning and re-installing power window motors due
to sand in the doors; d) damage to the corner of the hood; and e) removing dust from the
head of the engine as valve covers on the engine were not covered.

[51] Only the Defendant himself gave any evidence as to the nature of the damage which he
apparently intended to remedy himself when possible. No expert evidence or other
evidence was called or presented to corroborate his testimony. In particular, the court was
not given a breakdown or any detail concerning the cost of the work he alleges needs to
be done.

[52] The court finds that no negligence on the part of the Plaintiff has been proven and this
portion of the claim is dismissed.

CONCLUSION

[53] For these reasons, both the Plaintiff’s Claim and the Defendant’s Claim are dismissed.

COSTS

[54] If the parties cannot agree on costs, they may make submissions with respect to costs
with the Plaintiff’s submissions to be received on or before May 8, 2020, Defendant’s
submissions on or before May 15 and Plaintiff’s reply submissions (if any) on or before
May 22, 2020.

Deputy Judge Glenn C. Walker

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Released: April 28, 2020

2020 CanLII 36672 (ON SCSM)

 ONTARIO

2020 CanLII 36672 (ON SCSM)

SUPERIOR COURT OF JUSTICE

CHATHAM-KENT SMALL CLAIMS COURT

BETWEEN:

MEMORY LANE RESTORATIONS AND

COLLECTABLES LTD.

Plaintiff (Defendant by Defendant's Claim)

– and –

JAMES TURPLE

Defendant (Plaintiff by Defendant’s Claim)

REASONS FOR JUDGMENT

DEPUTY JUDGE GLENN C. WALKER

Released: [Click and Type Date]