Dean v. Mister Transmission (International) Ltd., (2011) 283 O.A.C. 254 (CA)

• Judge: Sharpe, Armstrong and Karakatsanis, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 22, 2011
• Jurisdiction: Ontario
• Citations: (2011), 283 O.A.C. 254 (CA);2011 ONCA 670

Dean v. Mister Transmission (2011), 283 O.A.C. 254 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. NO.003

Douglas Dean (plaintiff/appellant) v. Mister Transmission (International) Limited (defendant/respondent)

(C53351; 2011 ONCA 670)

Indexed As: Dean v. Mister Transmission (International) Ltd.

Ontario Court of Appeal

Sharpe, Armstrong and Karakatsanis, JJ.A.

October 27, 2011.

Summary:

A class action was brought on behalf of consumers who had their motor vehicle transmissions repaired at Mister Transmission. The claim alleged that Mister Transmission breached the statutory prohibition against charging a fee for an estimate of the cost of repairs that were authorized and carried out. The claim alleged that the fee for an "Inspection Service" offered by Mister Transmission was a "fee for an estimate". The plaintiff sought the return of the Inspection Service fees.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 553, dismissed the action, finding that the consumers had not been charged a fee for an estimate and thus Mister Transmission did not breach the statute. As a result, derivative claims of conspiracy and unjust enrichment also failed. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Consumer Law - Topic 2505

Consumer law - Repair of goods - Fee for an estimate - A class action was brought on behalf of consumers who had their motor vehicle transmissions repaired at Mister Transmission - The representative plaintiff sought the return of the Inspection Service fees Mister Transmission charged to remove and dismantle the transmission, determine any necessary repairs, and reassemble and reinstall the transmission - The fee was based on industry-wide databanks for the labour cost of removing and reinstalling the transmission - There was no dispute that customers knew the total cost to repair the transmission and authorized all amounts - The plaintiff alleged that the fee for the Inspection Service was necessarily a "fee for an estimate" for the purposes of s. 3(3) of the Motor Vehicle Repair Act and s. 57(3) of the Consumer Protection Act and therefore prohibited - A motions judge rejected the allegation and dismissed the action - The Ontario Court of Appeal dismissed the plaintiff's appeal - See paragraphs 1 to 46.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Mister Transmission charged a fee for an "Inspection Service" to remove and dismantle the transmission, determine any necessary repairs, and reassemble and reinstall the transmission - The fee was based on industry-wide databanks for the labour cost of removing and reinstalling the transmission - The representative plaintiff in a class action paid a fee of $552.42 for the Inspection Service - The plaintiff alleged that the fee for the Inspection Service was necessarily a "fee for an estimate" for the purposes of s. 3(3) of the Motor Vehicle Repair Act and s. 57(3) of the Consumer Protection Act and therefore prohibited - A motions judge rejected the allegation and dismissed the action - The Ontario Court of Appeal rejected the plaintiff's allegation that this was a novel legal issue that should not have been resolved on a summary judgment motion - The legal issues raised in this case involved straightforward statutory interpretation - See paragraph 36.

Statutes - Topic 1452

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - Reference to subsequent amendments - Mister Transmission charged a fee for an "Inspection Service" to remove and dismantle the transmission, determine any necessary repairs, and reassemble and reinstall the transmission - The fee was based on industry-wide databanks for the labour cost of removing and reinstalling the transmission - The representative plaintiff in a class action paid a fee of $552.42 for the Inspection Service - The plaintiff alleged that the fee for the Inspection Service was necessarily a "fee for an estimate" for the purposes of s. 3(3) of the Motor Vehicle Repair Act (MVRA) and s. 57(3) of the Consumer Protection Act (CPA), and therefore prohibited - "Fee for an estimate" was defined in s. 3(2) of the MVRA and s. 57(2) of the CPA - The Ontario Court of Appeal found that the French version of s. 3(2) clearly differed from the English version, but was substantially the same - In this case, legislative history was relevant to determining legislative intent - The MVRA was repealed, and s. 3(2) was replaced with s. 57(2) of the CPA - The French text of s. 57(2) of the CPA was consistent with the English text of s. 3(2) of the MVRA - The legislature had demonstrated an intent to clarify what was included in a "fee for an estimate" when repair work was not authorized - The English version of s. 3(2) of the MVRA and both versions of s. 57(3) of the CPA better reflected the legislature's intent - See paragraphs 15 to 17 and 28 to 33.

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See Statutes - Topic 1452 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - The Ontario Court of Appeal stated that "When interpreting bilingual statutes, the court must determine whether there is an ambiguity. Generally, when there is ambiguity in one version of a provision but not the other, the court should look for the meaning that is common to both versions: R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at para. 28. If there is a common meaning, the court must then determine whether it is consistent with the legislature's intent, using the ordinary rules of statutory interpretation: see Daoust, at para. 30. Courts are obliged to give effect to the law as the legislature intended to enact it." - See paragraph 29.

Words and Phrases

Fee for an estimate - The Ontario Court of Appeal discussed the meaning of this phrase as found in s. 3(2) of the Motor Vehicle Repair Act, R.S.O. 1990, c. M-43 and s. 57(2) of the Consumer Protection Act, S.O. 2002, c. 30 - See paragraphs 11 to 46.

Cases Noticed:

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, folld. [para. 29].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 30].

Doré v. Verdun (Ville), [1997] 2 S.C.R. 862; 215 N.R. 81, refd to. [para. 31].

Statutes Noticed:

Consumer Protection Act, S.O. 2002, c. 30, sect. 57(2), sect. 57(3) [para. 13].

Motor Vehicle Repair Act, R.S.O. 1990, c. M-43, sect. 3(2); sect. 3(3) [para. 12].

Counsel:

Brian Osler and Glyn Hotz, for the appellant;

William D. Black and Byron Shaw, for the respondent.

This appeal was heard on August 22, 2011, by Sharpe, Armstrong and Karakatsanis, JJ.A., of the Ontario Court of Appeal. Karakatsanis, J.A., delivered the following decision for the court on October 27, 2011.