Date Issued: March 14, 2022

File: SC-2021-006460

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Zalik v. Surrey GCOC Investments Ltd., 2022 BCCRT 281

Between:

ROBERT ZALIK

Applicant

And:

SURREY GCOC INVESTMENTS LTD. and VALVOLINE CANADIAN FRANCHISING CORP.

RespondentS

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.      This small claims dispute is about automotive services.

2.       The applicant, Robert Zalik, took his 2005 Nissan Sentra to the respondent, Surrey GCOC Investments Ltd. (GCOC), to have the oil changed on July 2, 2021. Mr. Zalik says a GCOC employee broke the plastic oil dipstick handle during an oil change and dropped pieces of plastic into the Sentra’s oil pan which allegedly damaged the engine. Mr. Zalik says he sold his car for less than its book value amount due to the engine damage. He claims a total of $3,000 in damages including $2,049 for the loss of sale value, reimbursement of the $111.97 he paid for GCOC’s service, and further damages for losing the use of his car, plus pain and suffering.

3.      GCOC denies any negligence and says the Sentra’s dipstick was broken when the car arrived to be serviced. GCOC denies responsibility for any issues the Sentra had after the oil change and service.

4.      Mr. Zalik says the respondent Valvoline Canadian Franchising Corp. (Valvoline) is responsible for the negligence of GCOC’s employee because GCOC is a Valvoline franchise. Valvoline did not file a Dispute Response, so is technically in default, as explained below.

5.      Mr. Zalik represents himself. GCOC is represented by its owner, Nicholas Bernhardt.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

7.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

8.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUES

10.   The issues in this dispute are:

a.    Is GCOC responsible for the Sentra’s broken dipstick and any resulting damage to the Sentra’s engine?

b.    Is Valvoline responsible for any negligence and resulting damage?

c.    If either answer is “yes”, how much is Mr. Zalik entitled to in damages?

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, Mr. Zalik as the applicant must prove his claim on a balance of probabilities (meaning more likely than not). I have read all the parties’ submissions and weighed the evidence, but only refer to that necessary to explain my decision.

12.   GCOC operates as Great Canadian Oil Change and issued its July 2, 2021 invoice under its name and Valvoline’s name. Great Canadian Oil Change operates as a franchise, and Valvoline is the franchisor. None of this is disputed.

13.   The parties agree that a GCOC employee changed the Sentra’s oil on July 2, 2021 and that the Sentra was drivable at the time of the service.

14.   Mr. Zalik says the Sentra became undrivable after driving approximately 9 kilometers.

15.   On July 7, 2021 Mr. Zalik emailed GCOC and said his car was damaged during the oil change service. He wrote that an employee broke the oil dipstick and allowed the dipstick parts to enter the car’s engine. Mr. Zalik wrote that his engine was “dieseling and knocking”. He attached a video clip which he said showed the negligent oil change plus ScanTool readings which he said showed engine damage after the oil change. Mr. Zalik requested a $2,250 “quitclaim” payment. He stated that he considered no reply to mean GCOC agreed with the facts and damages he described.

16.   Contrary to Mr. Zalik’s submissions, I find GCOC did respond to the email. On July 8, 2021, GCOC advised the complaint had been escalated to management and on July 12, 2021 email, GCOC invited Mr. Zalik to return the vehicle to GCOC for an inspection. In any event, even if GCOC had not responded to the email, I would not have found that meant GCOC accepted Mr. Zalik’s described facts and damages, as Mr. Zalik argues in this dispute. As noted above, the burden is on Mr. Zalik to prove his claims.

17.   In order to prove the respondents were negligent, Mr. Zalik must establish they owed him a duty of care, that they failed to meet the established standard of care, and that the failure caused the claimed damage, which was reasonably foreseeable (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27). I find Valvoline’s liability turns on whether GCOC or its employee is liable, despite that Valvoline is in default. So, I turn to whether GCOC is negligent.

18.   I accept that GCOC owed a duty of care to Mr. Zalik as a customer. I find the applicable standard is that of a reasonable automotive service technician in the circumstances. However, as explained below, I find Mr. Zalik has failed to prove GCOC, or its employees, failed to meet that standard of care.

19.   Mr. Zalik submitted a video clip he took of a GCOC technician performing the oil change. It shows the technician using pliers to remove a metal dipstick from the Sentra’s oil tank, while standing over the engine. The dipstick has no handle. Contrary to Mr. Zalik’s submissions, the video does not show the technician breaking the dipstick, nor does it show him dropping any pieces of plastic into the oil tank.

20.   Contrary to Mr. Zalik’s request, I draw no adverse inference against GCOC for failing to provide its service center surveillance recordings showing the oil change. An adverse inference may be appropriate when a party fails to provide evidence from a witness without a good explanation. However, I accept GCOC’s explanation that its video recording is no longer available because its system does not have enough room to keep all the surveillance content. Further, I find GCOC provided witness statements from all employees present during the oil change service, as detailed below.

21.   GCOC submitted a December 15, 2021 witness statement, containing sections for each of 3 employees who signed the statement along with Mr. Bernhardt. Employee “A” stated he was the service technician that changed Mr. Zalik’s oil. He says that when he removed the dipstick, the handle fell off “in his hands” which, I find, does not support Mr. Zalik’s allegation that the technician broke the dipstick handle into several pieces. A says Mr. Zalik initially yelled at him for breaking the dipstick, then told him it was “all good” and that it had happened before.

22.   The service centre manager “D” wrote that he offered to provide Mr. Zalik a new dipstick, which he declined. D wrote that he fixed a new handle onto the dipstick for Mr. Zalik before replacing it in the engine.

23.   Mr. Zalik says the employee statements should be given no weight because the employees have an interest in the outcome of this dispute. While the employees are not parties to this dispute, I accept they are not entirely neutral given their continued employment relationship with GCOC, who asked the employees to provide a statement. However, I find the statements are consistent with each other and with Mr. Zalik’s video clips, so I accept the statements and give them significant weight, as explained below.

24.   Although Mr. Zalik denies the dipstick handle was broken before he brought the Sentra to GCOC, I find nothing turns on that. This is because I accept A’s statement that the handle came off the dipstick when he attempted to remove it during the oil change. The issue here is whether A let plastic pieces of the dipstick fall into the oil tank.

25.   The video shows the oil tank opening is barely wide enough to accommodate the thin metal dipstick. I find it would be very difficult to drop pieces of broken plastic into the very narrow opening while removing the dipstick. Mr. Zalik has not explained how that allegedly happened, or how the service technician broke the dipstick handle into “several pieces”. Further, Mr. Zalik has not provided any evidence showing that plastic was found in the oil pan, oil tank, or any other part of the Sentra engine following the oil change. On balance, I find Mr. Zalik has not proven A broke the dipstick handle into several pieces and dropped those pieces into the oil tank, as alleged.

26.   I find Mr. Zalik’s copies of consumer complaints about allegedly negligent oil changes done at other Great Canadian Oil Change locations are not determinative if this GCOC was negligent in how it carried out the oil change at issue in this dispute. Contrary to Mr. Zalik’s argument, I find those other complaints do not show GCOC was negligent here, or that the Sentra’s engine damage was reasonably foreseeable.

27.   In his submissions, Mr. Zalik also says GCOC was negligent because it used the wrong kind of oil, or a different kind of oil than the one Mr. Zalik agreed to. Although this claim was not included in Mr. Zalik’s Dispute Notice, I find it is part of Mr. Zalik’s claim of employee negligence. GCOC responded to the allegation in its submissions and so I find it was not prejudiced by this late allegation and I can consider it in this dispute.

28.   Mr. Zalik provided video clips showing a blue container of oil on the garage floor, and a second video showing the technician pouring oil into the Sentra from a blue container. The first video does not show the container’s label, although the second shows a Valvoline label. Although Mr. Zalik says the oil is different, it is not obvious in the video, as the containers are the same size, shape and colour and there is no obvious difference in the oil colour, as alleged by Mr. Zalik.

29.   Mr. Zalik does not explain what type of oil he agreed to and how that differs from the oil GCOC allegedly used. Nor did he provide any other evidence to support this claim. So, I find Mr. Zalik has not proven that GCOC used the incorrect, or a different type of oil than that agreed upon.

30.   Contrary to Mr. Zalik’s argument, I find the $12 discount GCOC provided for the oil service cost is not an indication that it was embarrassed by the negligence of its employees. Rather, the invoice shows the discount was the result of a garage “special” for the service. I accept GCOC’s explanation that it provides discounts or special prices regularly if customers ask for one or have a coupon.

31.   Even if I had found that the service technicians used the wrong oil or dropped plastic into the oil tank, I also would have found Mr. Zalik had not proven those actions damaged his 16-year old Sentra.

32.   Mr. Zalik says he took engine readings on a sensor gauge both before and after the oil change. Although he provided video clips showing those readings, it is not apparent what those numbers mean. Mr. Zalik also provided video evidence which he says shows the engine “stumbling” while driving. However, there is no pre-oil change driving video for comparison. Further, it is not obvious from the sound on the video that the engine is damaged. I find the sensor readings and engine noise do not obviously show engine damage. I find identifying engine damage and determining its cause is outside of common knowledge and so requires expert evidence (see Bergen v. Gulliker, 2005 BCCA 283).

33.   Mr. Zalik submitted an August 16, 2021 video of Zahid Afridi, owner of DXB Towing. In the video, Mr. Afridi explained that when plastic goes into the engine it melts and closes the cylinder wall. I infer he means plastic in the engine will damage the engine. Neither Mr. Zalik or Mr. Afridi explain how he is qualified as an expert on vehicle engine damage. So, I do not accept the video as expert evidence under the CRT rules. In any event, I find Mr. Zalik has not proven that plastic entered the Sentra’s oil tank or engine, so I would have given Mr. Afridi’s opinion no weight if I had accepted it.

34.   Mr. Zalik says he was unable to get a quote for repair costs, although he does not say he was unable to have a mechanic inspect the Sentra after the alleged damage occurred. Further, his evidence shows he only emailed 1 mechanic for a quote on August 3, 2021, 1 month after the allegedly negligent oil change service. Mr. Zalik undisputedly did not return the Sentra to GCOC to have it inspected, either by driving it or by towing it. So, I am not persuaded Mr. Zalik was unable to obtain an expert mechanic opinion on what was wrong with the engine, whether it was caused by any alleged negligence during the oil change, or how much it would cost to fix.

35.   Finally, I find Mr. Zalik has not proven GCOC breached its warranty as claimed. According to Mr. Zalik’s submitted screenshot, GCOC warranties its work to be free of defects for 90 days or 5,000 kilometers. I find Mr. Zalik has not shown that GCOC’s oil change was defective.

36.   Given my analysis above, I dismiss Mr. Zalik’s claims against GCOC.

Is Valvoline liable?

37.   As noted above, Valvoline is technically in default because it did not file a Dispute Response as required under the CRT rules. Generally, when a party is in default its liability is assumed. In this case, Mr. Zalik’s claim against Valvoline is based on vicarious liability, meaning Valvoline is allegedly responsible for GCOC’s alleged negligence because of the relationship between the 2 companies. As I find Mr. Zalik has not proven GCOC’s negligence, I find Valvoline cannot be vicariously liable, even though it is technically in default. Given this, I do not need to address whether Valvoline would be vicariously liable for any proven negligence by its franchisee. So, I dismiss Mr. Zalik’s claim against Valvoline.

38.   As I find Mr. Zalik has not proven either respondent was liable, I find I need not consider Mr. Zalik’s claimed damages.

39.   As Mr. Zalik was unsuccessful in his claims, he is not entitled to reimbursement of CRT fees or any dispute-related expenses under the CRTA or CRT rules. The respondents did not pay fees or claim expenses.

ORDER

40.   I dismiss Mr. Zalik’s claims and this dispute.