Purchasing a luxury car is a dream for many, but maintaining them properly can sometimes be more work than an owner anticipates. Even simple oil changes must be scheduled regularly with attention to detail when it comes to keeping a luxury car on the road. In a recent decision from the Alberta Court of Justice, the Court heard from the owner of a BMW who pursued litigation against a Calgary BMW dealer after he claimed the dealership misled him in terms of what oil to use on his car. He subsequently asked the Court to find the dealership responsible for the damage he said was caused by using improper oil as per their direction.

Car Owners Seeks Damages From BMW Shop

In the matter of Elrafih v 504147 Alberta Ltd., the plaintiff vehicle owner sought $45,000 from the defendant car dealership for damages due to, what the plaintiff claimed to be, negligent misrepresentation by the defendant. The plaintiff claimed that his 2006 BMW M5 suffered catastrophic engine damage when he switched from 10w60 oil to 5w30 oil after one of the defendant’s employees of the defendant to do so.

The plaintiff said that when he purchased the car from Florida, it had approximately 50,000 kms on it and it was imported to Canada. He told the Court that he regularly had the car serviced, however, he was unable to provide receipts from oil changes performed at the defendant’s shop, or any other automotive shop.

Car Owners Claims Wrong Oil Resulted in Expensive Repairs

The plaintiff indicated that he always purchased oil from the defendant and on May 21, 2019, he purchased 5w30 oil after being advised to use it. He then stated that he took the oil to a friend (“PN”) who was an alleged “qualified BMW third party mechanic.” He went on to claim that after the oil change, he took the car for a “spirited drive” and after approximately 50 km, he began to hear some “soft jingling noises” coming from the engine. This was followed by the engine warning light turning on in the car.

Rather than stopping, he continued to drive the car a short distance further so he could park it at his home. The plaintiff called the defendant’s shop to tell them about the issues, but brought the car to PN instead, who he said dumped the oil and noticed metal filings in it. By June 14, 2019, the plaintiff had towed the vehicle back to the defendant’s shop for an engine diagnosis. The price to repair the engine was quoted at roughly $20,000.

Establishing Negligent Representation

The Court acknowledged the lack of evidence provided by the plaintiff. Despite this, the Court went on to consider whether or not the defendant had negligently misrepresented to the plaintiff how to care for his car.

The Court looked to a 1993 decision from the Supreme Court of Canada, which outlined the factors that a court must consider to determine whether negligent misrepresentation has occurred. This is known as the “Congols Framework” and requires the Court to consider the following:

(a)               there must be duty of care based on a “special relationship: between the representor and the representee;

(b)               the representation must be untrue, inaccurate or misleading;

(c)               the representor must have acted negligently in making the misrepresentation;

(d)               the representee must have relied, in a reasonable manner, on the negligent misrepresentation; and

(e)               the reliance must have been detrimental to the representee in the sense that damages resulted.

BMW Switches to 5w30 Oil in United States

In looking at the first factor, the Court found that BMWs are specialized products and the plaintiff had established, beyond a balance of probabilities, that there was a duty of care based on a “special relationship” between the parties, given the defendant’s specialized industry knowledge about proper care and maintenance for the vehicle.

The Court then considered whether there was a representation made by the defendant that was untrue, inaccurate, or misleading. On this point, the Court found that there was no evidence that the defendant had actually told the plaintiff to use the oil he did. Instead, the Court noted that one of the defendant’s employees stated that, in the United States, BMW had moved to 5w30 oil, but that such a recommendation was not made by BMW Canada. Further, even though 5w30 oil was cheaper, he did not instruct the plaintiff to use it. Therefore, the Court found that the plaintiff had not proven on a balance of probabilities that the defendant made a representation that was untrue.

Court Concludes Defendant Did Not Make Negligent Misrepresentation

Based on these conclusions, the Court found in favour of the defendant. However, it added that, even if it were to find that a misleading statement had been made, it would not have been made in a negligent manner since the defendant said the official recommendation of BMW Canada was to use 10w60 oil. Simply telling the plaintiff that BMW USA recommends 5w30 is not enough to amount to negligent advice. Further, it was not established that the change in oil was what led to the engine failure, recalling that the plaintiff drove the car even after the check engine light turned on.

The Lawyers at DBH Law in Calgary Help Clients Navigate Complex Litigation Matters

The skilled team of litigation lawyers at DBH Law have extensive experience advising clients and litigating disputes on their behalf. Whether you have questions about commercial litigation, business disputes, or oil and gas matters, our lawyers provide advice and advocacy that you can trust. To speak with one of our team members regarding your litigation questions, contact us online or by phone at 403.252.9937 to schedule a confidential consultation.