RSLA – Motor Vehicle Repairs, Towing and Fees

In situations when it comes to retrieving personal property (in this case, motor vehicles), it is critical that they are handled as soon as possible, as they can become incredibly time-sensitive. Storage fees may be continuing to accrue on a daily basis, and you would like to avoid the prospect of having a lien placed on your vehicle or trying to have it removed if this has already taken place. If a lien is already on your vehicle, as licensed paralegals we are not able to assist in the removal of those liens, so you will have to seek the counsel of a lawyer if this has already occurred.

Given the outlined fact scenario, these matters can be complex to handle, so it is critical to ensure that you follow the appropriate steps to avoid any potential recourse down the line. The following guide is to help provide a brief overview of your rights as a consumer, steps you can take to retrieve your vehicle, and the consequences that may follow should the situation not be addressed.

Know Your Rights

As a consumer, you have certain rights that may protect you in your particular matter. As per the Consumer Protection Act, 2002, several sections cover the discussion of repairs to motor vehicles, towing and storage fees, and liens that are worthwhile noting.

PART VI – REPAIRS TO MOTOR VEHICLES AND OTHER GOODS

Sections 55-65 of the Consumer Protection Act highlights “Repairs to Motor Vehicles and Other Goods”. The discussion focuses on the consumer’s entitlement to the following (but not limited to):

• Estimate for work shall be provided prior to commencing work;
• Cannot charge for work unless authorization provided;
• Actual costs cannot exceed 10% over the estimate provided; and
• An invoice must be provided of itemized work prior to demanding payment

PART VI.1 – TOW AND STORAGE SERVICES

Section 65.1 – 65.21 of the Consumer Protection Act highlights “Tow and Storage Services”. The discussion in this section focuses on the consumer’s entitlement to the following (but not limited to):

• Cannot charge for tow and storage fess unless expressly provided;
• Cannot charge for tow and storage fees unless those fees were expressly provided and authorization provided;
• Cannot charge for tow and storage services where fees exceed 10% over the estimate amount (for example, if quoted $65 per day for storage, cannot then charge $150 per day for storage); and
• Must provided invoice of itemized work prior to demanding payment

PART XI – GENERAL – s. 119 LIENS AND DISCHARGES

Section 119 of the Consumer Protection Act highlights the steps a Director must take to satisfy in order to register a lien under the Repair and Storage Liens Act or the Personal Property Security Act. If the guidelines are not adhered to, the lien may have been illegally obtained. This can also be determined by running a lien search to see if a lien was properly place don your personal property.

Now that you have a better understanding of your rights, you can be in a better position to work with the Opposing Party in question in trying to retrieve your vehicle.

Steps to Retrieve Your Vehicle

Option #1: Trying to settle with the Opposing Party

It is always encouraged to try and settle any matter outside of court, and this fact scenario is no different. Review the bill that has been provided and look for the following:

• Determine if repair charges are above and beyond reasonable expectation, or if repairs that were included were not authorized; and
• If towing and storage fees are reasonable

It is always encouraged to retain legal representation for these settlement discussions, in order to attempt to reach a peaceful and amicable solution, where litigation is not required.

Option #2: Pay Under Protest

The next option to retrieve your vehicle is to pay the balance requested by the Opposing Party but do so by paying under protest. By clearly highlighting this in writing, you are indicating to the Opposing Party that despite making payment you are currently reviewing your options to determine if an unfair value was determined for payment. If you feel that the amount you paid is unreasonable, you can commence a Small Claims Court action for the balance paid, or in the alternative the amount you deem to be unreasonable. Be mindful that there is a two (2) year time limitation for commencing a Small Claims Court action, so you need to ensure your claim is commenced within that limit. It is always encouraged that should you choose to commence a claim, that you hire legal representation to review your matter in advance, to ensure you have reasonable grounds for your claim.

Option #3: Issue an Application and Initial Certificate under s. 24 of Repair and Storage Liens Act

The alternative to paying under protest to retrieve your vehicle is issuing an Application and Initial Certificate under s. 24 of the Repair and Storage Liens Act. In this option, you are paying the full amount of the balance into court as security, and through these issued documents, are retrieving your vehicle from the Opposing Party who is in possession of your vehicle. This can be a complex (and a time sensitive) process, so below is a brief outline:

• Fill out the required forms for an application and initial certificate required by the court, as well a direction to receive funds.
• Have all the forms and an appropriate number of copies issued in the appropriate jurisdiction, as well as the payment to pay the full amount of the balance in question. Include on your forms an offer to settle for what you feel is a reasonable amount for payment.
• Once issued, serve the application and initial certificate on the Opposing Party. The Opposing has three (3) days to release the vehicle back to you, otherwise, you may seek services of a sheriff or bailiff to repossess the vehicle to be returned to you.
• The Opposing Party has 90 days from the date the vehicle was released to either accept your offer to settle outlined, or commence an action for the amount you paid into court, which you will have to subsequently defend. Both parties will proceed through Small Claims Court to determine fair value to be owed. If the matter reaches a resolution, you will fill out the required forms to have the funds in court be released to the appropriate parties.
• If the Opposing Party takes neither of these options, you can request a motion to have balance paid into court returned to you (keep in mind, the Opposing Party can still commence a Small Claims Court action against you as long as it is within the 2 year limitation period)

The benefit to pursuing this route is that (a) there is a guarantee the vehicle is released to you and (b) if a claim is commenced against you, you are given the opportunity to adequately defend why you should not pay the full amount, or if anything at all. Also, a critical point – If you pay the funds directly to the Opposing Party and they were to close shop, there is no way of being able to collect on that company down the road even if you were commence a claim and obtain judgment. By paying the balance into court, you eliminate this possibility. It is encouraged that you seek legal representation if you are to take this route to ensure that all steps are properly followed given the timelines that need to be adhered to.

What happens if you do not pay?

If you choose not to pay the balance to the Opposing Party or choose not to take one of the highlighted options, you should be mindful of the consequences that may follow. The consequences may include:

• Your car may not be returned
• If your vehicle is returned and payment is not made, a lien may be registered against your vehicle, and should the Opposing Party follow proper procedure, can have a sheriff seize your vehicle in order to sell or dispose of the vehicle to pay off the balance, and may sue for the remaining balance which is not covered by the sale of the vehicle

It is encouraged that you seek legal representation to speak with someone if you are involved in a dispute with a mechanic or tow/storage company. If the fact scenario outlined sounds similar to something you are dealing with, please give us a call at Precision Paralegal Services to schedule a consultation, and we would be more than happy to review your matter!