Gordon Aylward v. Terra Nova Motors Limited

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: Aylward v. Terra Nova Motors Limited, 2024 NLCA 24 Date: July 12, 2024 Docket Number: 202301H0031 BETWEEN: GORDON AYLWARD APPELLANT AND: TERRA NOVA MOTORS LIMITED RESPONDENT Coram: F.P. O’Brien, W.H. Goodridge and F.J. Knickle JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 202101G6411 (2023 NLSC 72) Appeal Heard: February 21, 2024 Judgment Rendered: July 12, 2024 Reasons for Judgment by: W.H. Goodridge J.A. Concurred in by: F.P. O’Brien and F.J. Knickle JJ.A. Counsel for the Appellant: Self-Represented Counsel for the Respondent: Kyle S. Mercer Page 2 Authorities Cited: CASES CITED: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Salomon v. Matte‑Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729; Baker v. Harmina, 2018 NLCA 15; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; R. v Mohan, [1994] 2 S.C.R. 9; R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170; Compton v. Toyota Canada Inc., 2019 NLCA 79; Graat v. The Queen, [1982] 2 S.C.R. 819; Schwartz v. Canada, [1996] 1 S.C.R. 254, Cabana v Newfoundland and Labrador et al., 2016 NLCA 75. RULES CONSIDERED: Small Claims Rules, NLR 52/97, rules 13(1)-(6), 19(2), 19(5), 19(6), 20(1). TEXTS CONSIDERED: Donald J M Brown, Civil Appeals, (Toronto, ON: Carswell, 2009) (loose-leaf updated 2023, release 4). W.H. Goodridge J.A.: INTRODUCTION [1] This is a second level appeal from a judgment of the Small Claims Court dismissing the Appellant’s tort claim. The first appeal, to the Supreme Court, General Division, was dismissed. The Appellant argues in this Court that the presiding judge at the first appeal erred and that his decision upholding the judgment of the Small Claims Court must be reversed. [2] The Appellant alleged the Respondent car dealership sold him a defective used vehicle. The vehicle’s clutch failed just two days after the purchase and the Appellant was forced to incur repair expenses. The Appellant sought damages for these expenses. [3] For the reasons set out below, I would agree that the judge at the first appeal erred in upholding the decision of the trial judge. I would remit the matter back to the Small Claims Court for a new trial. Page 3 BACKGROUND [4] The Appellant alleged the Respondent engaged in fraudulent and negligent misrepresentation by inducing him to purchase a defective vehicle and concealing the warranty exclusions. [5] The Appellant alleged that the Respondent’s salesperson, Tony Nolan, misrepresented the status of the clutch in the vehicle and misrepresented information about the certified pre-owned vehicle (CPO) warranty. The Appellant maintained that Mr. Nolan knew the vehicle’s clutch was defective and failed to disclose that fact. In addition, the Appellant maintained that Mr. Nolan knew of exclusions from coverage on the CPO warranty (some relating to the clutch) and failed to disclose those exclusions. [6] Regarding the alleged failure to disclose exclusions from coverage under the CPO warranty, it is not disputed that a printed copy of the exclusions from coverage was never given to the Appellant. Instead, Mr. Nolan referred the Appellant to a website that included information about the three-month/5,000-kilometer CPO warranty. The website outlined the advantages of purchasing a used vehicle from the Respondent, such as the provision of the CPO warranty, the option to purchase a more comprehensive warranty, and the completion of a 150-point vehicle inspection. The website did not list the exclusions from coverage on the CPO warranty. In particular, the website did not mention that the clutch disc lining, the pressure plate, and the clutch release bearings were excluded from coverage under the CPO warranty – even though these exclusions were on the printed copy of the CPO warranty. [7] The first disclosure to the Appellant of a printed copy of the CPO warranty, with the listing of exclusions from coverage, was made when the CPO warranty was entered as evidence at trial. [8] Mr. Nolan testified that he advised the Appellant prior to the purchase that the CPO warranty excluded coverage for wear and tear items (Appeal Book, Tab 14, Transcript, 18 October 2021, at 193 (“Transcript, 18 October 2021”)). [9] The Appellant testified that he could not recall Mr. Nolan telling him that the CPO warranty excluded coverage for wear and tear items: “I don’t recall him telling me that” (Transcript, 18 October 2021, at 85). Page 4 [10] Roger Slaney, an automotive technician employed by the Respondent, also testified at the trial. Some of his testimony was factual, but the portion of his evidence that was relied upon by the trial judge, and referenced in the reasons, was expert opinion evidence. The requirement set out in the Small Claims Rules, NLR 52/97, rule 13(3), when a party proposes to call expert opinion evidence, was not followed and the common law requirement for the screening of expert qualifications was not followed. Mr. Slaney’s opinion, based on his observations of the disassembled clutch components, was that the failure could have been caused by the Appellant riding (misusing) the clutch. [11] The testimony from Mr. Nolan and Mr. Slaney was accepted by the trial judge; he found that the claim for misrepresentation was not established: [T]here’s no indication…to the degree that would meet the standard of proof required that Mr. Nolan knew of any such clutch defect.…There’s no evidence of any misrepresentation, in my view, on the part of the [Respondent] or its agents or employees.…there was full disclosure by Mr. Nolan…on the condition of the vehicle and the risks assumed by the [Appellant] in making this purchase. (Appeal Book, Tab 15, Transcript, 19 October 2021, at 202, 206 (“Transcript, 19 October 2021”)) [12] In the first appeal, to the Supreme Court, General Division, the judge found that there were “neither palpable nor overriding errors made by the trial judge on questions of fact…[and] no incorrect decisions pertaining to the law” (Aylward v. Terra Nova Motors Limited, 2023 NLSC 72, at para. 47). GROUNDS OF APPEAL [13] The Appellant says the following errors were made by the first appeal judge: 1) That he erred by upholding the trial judge’s admission and reliance on expert opinion evidence from the Respondent’s automotive technician (Mr. Slaney). 2) That he erred by ignoring or misapprehending evidence when concluding that there was no error in the trial judge’s finding that the agreement excluded liability for fraudulent misrepresentation. Page 5 3) That he erred in ignoring or misapprehending evidence when concluding there was no error in the trial judge’s finding that the Respondent provided (underwrote) the CPO warranty. 4) That he erred by ignoring or misapprehending evidence when concluding there was no error in the trial judge’s acceptance of the salesperson’s (Mr. Nolan’s) testimony that he discussed exclusions from coverage under the CPO warranty with the Appellant. 5) That he erred by deferring to the trial judge’s finding of no misrepresentation even though that finding was unreasonable, clearly wrong, and unsupported by the evidence. 6) That he erred in not correcting the trial judge’s interpretation of the Small Claims Rules regarding the procedure for quashing a subpoena. 7) That he erred by not addressing the trial judge’s failure to order production of the documents identified in the subpoena duces tecum. 8) That he erred by failing to consider the allegation that the trial judge misapprehended evidence in assessing the reliability of the Appellant’s testimony. STANDARD OF REVIEW [14] As a second level appeal court in a civil matter, it is this Court’s role to review the first appeal court’s decision to ensure that it properly identified and applied the standards of review (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 47). This Court must ensure that where the court below chose to intervene or chose not to intervene, it did not err. The standards of review outlined in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, are applied to the first appeal decision, not to that of the trial decision (Salomon v. Matte‑Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 34; Baker v. Harmina, 2018 NLCA 15, at para. 10; and Donald J M Brown, Civil Appeals, (Toronto, ON: Carswell, 2009) (loose-leaf updated 2023, release 4), ch 14 at 59-60). Page 6 ANALYSIS 1) Did the first appeal judge err by upholding the trial judge’s admission and reliance on expert opinion evidence from the Respondent’s automotive technician (Mr. Slaney)? [15] Subject to certain exceptions, opinion evidence is presumptively inadmissible (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 14-15). One of the exceptions is for expert opinion evidence on matters requiring specialized knowledge. To be admissible as expert opinion evidence, the four threshold requirements specified in R. v. Mohan, [1994] 2 S.C.R. 9, must be met: (1) relevance; (2) necessity; (3) absence of an exclusionary rule; and (4) a properly qualified expert (R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170, at paras. 14-15; White Burgess, at para. 19; and Mohan, at 20). Judges are required to conduct screening to determine admissibility and the party seeking to have expert opinion evidence admitted must satisfy the judge on the threshold admissibility requirements set out in Mohan (Compton v. Toyota Canada Inc., 2019 NLCA 79, at paras. 17-21). [16] The Small Claims Rules grant flexibility for a judge to conduct a trial without complying with the formal rules of procedure and grant flexibility regarding the way evidence is received. The rules do not vary the common law regarding admissible evidence. Rule 13(1) sets out how evidence will be heard, and rules 13(2)-(6) outline special requirements when a party proposes to call expert opinion evidence. For example, rule 13(3) requires advance delivery of a summary of the expert’s opinion evidence or a waiver of that requirement from a judge: A party shall not call an expert to give evidence of the expert’s opinion unless (a) that party serves, in the manner set out in rule 21, a summary of the expert’s evidence on all other parties at least 14 days before the expert is called to give evidence; or (b) a judge grants permission. [17] The Respondent called Mr. Slaney as an expert to give opinion evidence. There was no advance delivery of a summary of his expert opinion evidence, and there was no waiver of that requirement from a judge. Accordingly, there was non- compliance with the Small Claims Rules. Page 7 [18] In addition, the common law requirements that Mr. Slaney be qualified at the trial to provide expert opinion evidence were not followed. There is uncertainty as to the outcome had those requirements been followed, because it is not clear that Mr. Slaney, as an employee of the Respondent, was able to provide a neutral opinion or at least one that would be objectively perceived as such. This is not to say that an employee of a litigant can never be qualified to provide expert opinion evidence, but rather to say that it is not possible to make that assessment here because there was no screening to assess admissibility. Accordingly, the “properly qualified expert” requirement was not established. Mr. Slaney’s expert opinion evidence should not have been admitted without him being properly qualified as an expert. As stated in Compton, at paragraph 56: “As the screening required to determine admissibility was not carried out in the present case, the evidence should not have been admitted.” [19] Mr. Slaney’s opinion was that the clutch damage was consistent with the Appellant riding (misusing) the clutch: …a foot might have been left on the clutch pedal possibly creating some friction and heat. If you have that clutch pedal pushed in so much as an eighth of an inch, there’s fluid that’s gone through that line which has gone down to the dual mast, which is actually applying pressure to your fly wheel from your clutch disc, which will prematurely wear your disc. … Yes, sir [riding the clutch at a high rate of speed, for a short period of time, can cause that kind of damage]. (Transcript, 19 October 2021, at 165, 168) [20] The trial judge erred in law by admitting and relying on the expert opinion evidence of Mr. Slaney without conducting this screening to address threshold admissibility. The first appeal judge repeated that error when he concluded “[t]he trial judge did not err in admitting opinion evidence about what caused the clutch failure” (Aylward, at para. 46). [21] As part of the determination of whether there was a misrepresentation in selling the Appellant a used vehicle with a clutch defect, the trial judge considered how the failure of the clutch occurred. The trial judge concluded that the clutch failure was likely due to improper driving. In reaching this conclusion the trial judge accepted and relied on the expert opinion evidence from Mr. Slaney. In his reasons the trial judge stated: Page 8 … there is no indication to me or to the degree that would meet the standard of proof required that Mr. Nolan knew of any such clutch defect.…these assemblies are subject to failure over time and indeed [it] is the opinion of Mr. Slaney, whose testimony I accept, who is a trained technician, experienced in these matters, that the failure, even in this case, a 100,000 kilometre, five-year-old vehicle, would likely be due to improper driving. (Transcript, 19 October 2021, at 202-203) [22] The expert opinion evidence was prejudicial to the Appellant in three respects: • It supported Mr. Nolan’s credibility – he could not have known of a pre-existing clutch defect since the problem developed after the sale. • It suggested the Appellant caused the clutch failure by improper driving after the sale, despite uncontroverted testimony that the Appellant had been driving manual transmission vehicles all his life. • It undermined the Appellant’s assertion that the clutch defect pre- existed his purchase of the vehicle. [23] The trial judge based his factual findings on the reliability and credibility of the witnesses. Mr. Slaney’s opinion, accepted by the trial judge, was a factor in favouring the reliability and credibility of Mr. Nolan. This Court is not able to evaluate whether the outcome would have been different without the trial judge’s reliance on that expert opinion evidence. However, it is clear from the trial judge’s reasons that he placed reliance on that opinion, as corroboration to Mr. Nolan’s testimony. [24] As noted above, I would conclude that the trial judge erred in law by admitting and relying on the expert opinion evidence without conducting screening to address threshold admissibility, and that the first appeal judge perpetuated that error by failing to correct it. [25] The absence of an objection from the self-represented Appellant when this expert opinion evidence was provided is not determinative and in the circumstances of this case should not stand in the way of directing a new trial (Graat v. The Queen, [1982] 2 S.C.R. 819, at 823). Page 9 [26] I would allow this ground of appeal. 2) Did the first appeal judge err by ignoring or misapprehending evidence when concluding that there was no error in the trial judge’s finding that the agreement excluded liability for fraudulent misrepresentation? [27] Firstly, the trial judge did not find that the agreement excluded liability for fraudulent misrepresentation. There was only one reference to exclusions from liability in the trial judge’s reasons, and that was an indirect reference when the judge referred to a clause in the agreement that stated, “there are no conditions, warranties, guarantees, representations…other than [as] specifically contained herein…” (Transcript, 19 October 2021, at 183). The reference to this clause does not equate to a finding by the trial judge that the agreement excluded liability for fraudulent misrepresentation. [28] Secondly, the “ignored evidence” that the Appellant referred to in his factum included only hypothetical questions posed by the trial judge. The hypothetical questions posed by the judge during a trial are not evidence. [29] I would reject this ground of appeal. 3) Did the first appeal judge err by ignoring or misapprehending evidence when concluding there was no error in the trial judge’s finding that the Respondent provided (underwrote) the CPO warranty? [30] The first appeal judge stated that the “trial judge indicated that the car dealership…provided a warranty on used cars” (Aylward, at para. 19). This was a correct statement by the first appeal judge because that is what the trial judge said. [31] The meaning of the trial judge’s words, from the context of the decision, is that the dealership was standing behind, or underwriting, the CPO warranty. Identifying the party standing behind, or underwriting, the CPO warranty is not relevant to the Appellant’s tort claim. Whether the Respondent or another company was responsible for honouring the warranty is not relevant to what is covered or excluded by the warranty nor whether or not the Respondent misrepresented the CPO warranty. The tort claim was against the Respondent alone and alleged, inter alia, misrepresentation by non-disclosure of the CPO warranty exclusions. Page 10 [32] It is not contentious that a copy of the CPO warranty with exclusions was never provided – in the sense of delivered – to the Appellant. [33] I would reject this ground of appeal. 4) Did the first appeal judge err by ignoring or misapprehending evidence when concluding there was no error in the trial judge’s acceptance of the salesperson’s (Mr. Nolan’s) testimony that he discussed exclusions from coverage under the CPO warranty with the Appellant? [34] The Appellant argues that the first appeal judge erred when he found, “The trial judge was entitled to accept, and did accept, Mr. Nolan’s testimony” (Aylward, at paras. 27-28). [35] The first appeal judge found that there was no palpable and overriding error, and that in the circumstances he was not able to overturn the trial judge’s decision given there was “some evidence” supporting the trial judge’s acceptance of Mr. Nolan’s testimony and the findings of fact based on that testimony (para. 44). [36] The testimony of Mr. Nolan is not clear on whether he discussed the specific exclusions from coverage under the CPO warranty. [37] On direct examination, Mr. Nolan testified that he explained to the Appellant only that wear and tear items like brakes, clutches, and fan belts, were excluded under the CPO warranty (Transcript, 18 October 2021, at 193-194, 212). That explanation was incorrect because one of the main components of the clutch – the flywheel – was in fact covered under the CPO warranty. [38] On cross-examination Mr. Nolan revised his response in a way that implied that he discussed the specific exclusions from coverage under the CPO warranty: “we discussed about what is covered and what is not covered under the CPO [warranty]” (Transcript, 18 October 2021, at 217). [39] The specific exclusions from coverage were intentionally omitted from the website that the Appellant was referred to by Mr. Nolan. No paper copy of the exclusions was provided to the Appellant. The Respondent’s general manager, Alexia Russell-Feltham, explained the rationale behind the intentional omission Page 11 from the website of the exclusions from coverage under the CPO warranty: “It would be very cumbersome to list off everything” (Transcript, 19 October 2021, at 137). [40] The Appellant testified that “[Mr. Nolan] never mentioned these exclusions” (Transcript, 18 October 2021, at 73). [41] The settled rule that appellate courts must treat a trial judge’s findings of fact with great deference is principally based on the assumption that the trier of fact is in a privileged position to assess the credibility of witnesses’ testimony at trial (Schwartz v. Canada, [1996] 1 S.C.R. 254, at para. 32). That rationale fails here because the assessment of Mr. Nolan’s credibility was influenced by the improperly admitted expert opinion evidence. [42] There was an error in the admission of the expert opinion evidence and that evidence was a factor in the trial judge’s assessment of Mr. Nolan’s credibility. In the circumstances, it was an error for the first appeal judge to defer to the trial judge’s finding that Mr. Nolan discussed with the Appellant the exclusions from coverage under the CPO warranty. [43] The judge at the new trial will have to firstly make their own findings of fact as to what was discussed between Mr. Nolan and the Appellant prior to the sale and then secondly decide whether the discussion that occurred, or the lack thereof, amounted to a misrepresentation in the overall factual context. 5) Did the first appeal judge err by deferring to the trial judge’s finding of no misrepresentation even though that finding was unreasonable, clearly wrong, and unsupported by the evidence? [44] The Appellant is arguing that the trial judge’s finding of no misrepresentation was “unreasonable, clearly wrong and unsupported by the evidence” (Appellant’s Factum, at para. 54), and that the first appeal judge erred by deferring to that finding. [45] The Appellant’s arguments on this issue related to the allegation that Mr. Nolan knew that the clutch was defective prior to the sale. Ordinarily, as was evident in the discussion on the preceding ground of appeal, findings of fact and credibility cannot be reversed on appeal unless there is a palpable and overriding error. However, in this specific instance, the decision of the trial judge regarding misrepresentation may have been influenced by the expert opinion evidence. As the Page 12 remedy below orders a new trial, it is not necessary here to decide whether the first appeal judge erred in not reversing the trial judge’s conclusion on misrepresentation. The expert opinion evidence may or may not be admitted at the new trial; upon either result Mr. Nolan’s testimony that he was unaware of any pre-existing clutch issues will have to be reweighed. [46] There was an error in the admission of the expert opinion evidence, and that evidence was a factor in the trial judge’s finding of no misrepresentation. Whether there was misrepresentation will be left to be decided at the new trial. 6) Did the first appeal judge err in not correcting the trial judge’s interpretation of the Small Claims Rules regarding the procedure for quashing a subpoena. [47] The Appellant says the trial judge’s interpretation of the Small Claims Rules, allowing the quashing of a subpoena without a hearing, was an error and that the first appeal judge erred in not correcting it. I reject this argument and agree that the trial judge’s interpretation of the Small Claims Rules was correct. [48] The subpoena in Small Claims Court is a court order that is issued administratively; there is no judicial pre-screening to ensure a link of relevance between the proposed witness and the issues in the proceeding. A simple request and payment of the fee results in the issuance by administrative staff. [49] The Respondent applied to quash the subpoenas issued against two of its employees (Tom Norris and Michael Saunders). The declaration accompanying the application indicated that these two employees had no material evidence to offer, and that their attendance would cause financial hardship. In particular, the declaration stated: • Other subpoenaed witnesses would be in attendance, and those in attendance covered the entire engagement with the Appellant. • Mr. Norris had no interaction with the Appellant. • Mr. Saunders had no interaction with the Appellant prior to the sale and his only interaction after the sale was when he provided contact information for the CPO warranty. Page 13 • If these two subpoenas were not quashed, then the Respondent would have had no remaining members of its service management team available (all others were required to attend court and testify) and would have been forced to close. • A two-day closure (the trial was projected to last two days) would have resulted in lost sales exceeding $65,000. [50] The Small Claims Rules do not require an inter partes hearing for the initial application to quash a subpoena. The trial judge followed the procedure under rule 19(2) of the Small Claims Rules and quashed the two subpoenas without an inter partes hearing. [51] The Small Claims Rules allow for a party to challenge the quashing of a subpoena, at an inter partes hearing (rules 19(5), 19(6), 20(1)). In this matter, the Appellant did not apply to challenge the quashing of the two subpoenas. In other words, there was a remedy available to the Appellant if he believed he had been prejudiced by the subpoenas having been quashed. He did not avail of this remedy. [52] It being within the discretion of the trial judge to quash the subpoenas and the Appellant having not shown that this discretion was improperly exercised, I would reject this ground of appeal. 7) Did the first appeal judge err in not addressing the trial judge’s failure to order production of the documents identified in the subpoena duces tecum. [53] The Appellant issued and served a subpoena duces tecum for Ms. Russell- Feltham to bring to court “[a]ll documents and correspondence between Terra Nova Motors Limited and General Motors supporting…that the [CPO] warranty is “provided by General Motors.”” (Appellant’s Appeal Book, Tab 5, at 30). In court, Ms. Russell-Feltham testified that she had hundreds of thousands of such documents and correspondence and needed to know exactly what was being requested – “I do not know exactly what [the Appellant was] asking for.…You need to tell me exactly what you want” (Transcript, 19 October 2021, at 142). The Appellant, who was in the process of cross-examining this witness, did not pursue the matter further. He did not provide any clarity to the witness as to what was being sought; he did not argue that the documents were relevant; he did not seek any order or direction from Page 14 the court; he did not allege that the witness was in contempt of the subpoena duces tecum. [54] As there was no ruling on the matter by the trial judge, there was no error for the first appeal judge to correct and it is therefore not an issue for review on appeal. [55] I would reject this ground of appeal. 8) Did the first appeal judge err by failing to consider the allegation that the trial judge misapprehended evidence in assessing the reliability of the Appellant’s testimony. [56] The Appellant included as one of his grounds of appeal before the first appeal judge that the trial judge misapprehended evidence, on three specific points, when commenting that the Appellant’s recall was somewhat vague and that his recall of events was different from Mr. Nolan’s. In this Court, the Appellant submits that the first appeal judge erred in failing to address this ground of appeal. [57] While I agree with the Appellant that the first appeal judge erred in failing to properly address this ground of appeal, I do not agree that the trial judge misapprehended evidence in coming to his conclusion that the Appellant was “somewhat vague” and “his recall was different” on the three points mentioned (Transcript, 19 October 2021, at 203). Accordingly, any error by the first appeal judge in overlooking this ground of appeal had no impact on the outcome of the first appeal. [58] The three points raised by the Appellant, as discussed below, which the trial judge relied upon when stating that the Appellant was vague and inconsistent, supported the trial judge’s conclusion. The trial judge did not misapprehend evidence. [59] When the Appellant was questioned whether he requested approval for a third- party inspection, his responses were vague and varied from, “I absolutely would not have asked for approval”, “I may have [requested approval]”, “I don’t recall”, “I don’t know”, “I’m not saying yes or no” (Transcript, 18 October 2021, at 37-44). Even after being confronted with his prior statement that “Mr. Nolan…allowed me to take the car for a…possible inspection by a third party”, the Appellant remained Page 15 vague, “I may have. I don’t recall [that discussion with Mr. Nolan]” (Transcript, 18 October 2021, at 43-44). [60] When the Appellant was questioned whether he had discussed with Mr. Nolan his experience driving manual transmission vehicles, his answer was again vague. He replied, “I told him that I had driven standard shifts all my life”, but on further cross-examination admitted he did not answer the question asked, which related specifically to Mr. Nolan (Transcript, 18 October 2021, at 81-82). He had discussed this with Shawn Radford, the assistant service manager after the vehicle had broken down on the highway. On repeat of the question as to whether he had told this to Mr. Nolan, the Appellant’s response was still vague, “Specifically to [Mr.] Nolan…I may have…I definitely did with [Mr.] Radford, but with [Mr.] Nolan I can’t…” (Transcript, 18 October 2021, at 83). [61] When the Appellant was questioned on cross-examination as to whether he had arranged for a tow truck after the vehicle broke down, he had a different recall compared to Mr. Nolan’s. He replied, “they [the Respondent] looked after it. [Mr.] Nolan says I was the one arranged it. That is not true.” (Transcript, 18 October 2021, at 124). When Mr. Nolan was asked about this, he explained that the Appellant had been unable to reach him initially and went ahead and made the towing arrangements himself, but then later Mr. Nolan contacted the tow company and took over from there. [62] It should be noted that the Appellant’s evidence was not vague on other relevant matters, such as the fact that he did not ride the clutch and that he was never advised of the CPO warranty exclusions. [63] Any error by the first appeal judge in failing to address this ground of appeal had no impact on the outcome as the trial judge did not err. Accordingly, I would reject this ground of appeal. DISPOSITION [64] The error in admitting and relying on expert opinion evidence from Mr. Slaney, impacted the trial judge’s credibly assessments and findings of fact. The trial judge relied on the expert opinion evidence in finding that the clutch failure was likely due to the Appellant’s improper driving after the purchase. That finding essentially eliminated consideration of the Appellant’s argument that the Page 16 Respondent knew the vehicle had serious pre-existing clutch problems. In the circumstances, a new trial is necessary. [65] I would allow the appeal and order a new trial before a different judge of the Small Claims Court. The cost awards at the Small Claims Court and the first level appeal court are set aside. COSTS [66] I would award costs to the Appellant by way of a single lump sum payment of $1,000, plus permitted expenses and fees in this Court and the first appeal court, consistent with principles discussed in Cabana v Newfoundland and Labrador et al., 2016 NLCA 75, at paragraphs 26-41. The costs for the Small Claims Court first trial, although set aside for present purposes, may be reconsidered, and decided by the judge who hears the new trial. _______________________________ W.H. Goodridge J.A. I concur : _____________________________ F.P. O’Brien J.A. I concur : _____________________________ F.J. Knickle J.A.