Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél. : (519) 826-3433, Téléc. : (519) 826-4232 Courriel: appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
John Smuck v. Mullin’s Farm Service
Smuck v. Mullin’s Farm Service 2009 ONAFRAAT 14
STATUTE:
Farm Implements Act
HEARING:
July 7, 2009
DATE OF DECISION:
July 15, 2009
2009-14
NEUTRAL CITATION:
2009 ONAFRAAT 14
IN THE MATTER OF THE FARM IMPLEMENTS ACT
AND IN THE MATTER OF: An Application to the Agriculture, Food and Rural Affairs Appeal Tribunal (Tribunal) by John Smuck, of Wingham, Ontario, under Section 5 of the Farm Implements Act.
Before:
John O’Kane, Vice-Chair; Mary Field, Member; Bill Schaefer, Member
Appearances:
John Smuck, appellant
Dan Hoover, witness for appellant
Joe Benninger, respondent, Mullin’s Farm Service
DECISION OF THE TRIBUNAL
This appeal was heard in Guelph, Ontario on Tuesday, July 7, 2009. Mr. John Smuck
applied to the Tribunal for a hearing as a result of an unresolved dispute over the quality of the repair work to a tractor transmission completed in 2005 by Mullin’s Farm Service.
Background
John Smuck, a cash crop and beef farmer from Wingham, has a complaint about transmission repair workmanship completed by Mullin’s Farm Service on Mr. Smuck’s 1994 AGCO White 6085 tractor.
Mediation of the dispute under section 5(3)1 of the Farm Implements Act was unsuccessful and Mr. Smuck appealed to the Tribunal under section 5(5)2 of the Act.
At the beginning of the appeal hearing, the Tribunal confirmed with both Mr. Smuck and Mullin’s Farm Service representative that the new repair parts used in the transmission repair were not in issue but, rather, it is a workmanship issue.
Mr. Smuck asked the Tribunal to order that Mullin’s Farm Service compensate him $2,596.66 for faulty workmanship in the transmission repair.
Evidence
In October 2005, John Smuck took the tractor to Mullin’s Farm Service because the transmission was not working. At the time of the 2005 transmission repairs, the tractor had about 2,300 hours use on it. A licensed farm equipment mechanic completed the 2005 transmission repairs. The mechanic was a leading technician with Mullin’s Farm Service, trained by AGCO White, with over fifteen year’s experience. The cost of the 2005 transmission repairs by Mullin’s Farm Service totaled (parts, labour and taxes) $3,477.11.
In September 2008, John Smuck was using the tractor on his feeder wagon. Mr. Smuck had the tractor transmission in the “creeper gear” which allowed it to move very slowly, as slow as one mile per hour. He used the creeper infrequently. This occasion was the first time Mr. Smuck had used the tractor in this particular way on the feeder wagon but there was nothing unique or unusual in this use of the tractor. On the second day of using the tractor in this way, the transmission seized and jammed. Because he was busy with farm operations, Mr. Smuck pulled the tractor off the feeder wagon and out of the way and used another tractor to finish. In December 2008, Mr. Smuck took the tractor for repairs at Hoover’s Engine Service nearby his farm. At that time, the tractor had about 2,800 hours use on it. Mr. Smuck paid $2,596.66, before taxes, to repair the transmission.
Between October 2005 and September 2008 Mr. Smuck used the tractor regularly without any transmission issues. He confirmed that between 2005 and 2008, he put about 500 hours use on the tractor and he probably shifted gears hundreds of times.
Dan Hoover, from Hoover’s Engine Service testified for Mr. Smuck. Hoover’s Engine Service is not an authorized AGCO White repair centre and Dan Hoover is not a licensed farm equipment mechanic. Mr. Hoover has over twelve years experience working on tractors, heavy trucks and machinery and is an apprentice mechanic.
Mr. Hoover explained that only two gears engage in normal transmission operation, but he found four gears had engaged in Mr. Smuck’s tractor, causing the transmission to seize. Mr. Hoover testified he had worked on lots of transmissions.
Mr. Hoover described that when he opened up the transmission pan, pieces of the transmission were falling out and he had to try to catch them.
While dismantling the transmission, Mr. Hoover found that a set-screw, designed to secure a gear fork onto a transmission shaft, was missing. He found that unusual because usually, set-screws are installed with a glue-like thread compound called “loctite”. He testified he did not see any evidence that loctite had ever been used to secure the missing set-screw. He could not find the missing set-screw among the broken transmission parts. He concluded the set-screw had never been installed when the transmission was repaired previously.
He explained the missing set-screw allowed the shift fork to slide on the transmission shaft, the result of which was the four gears becoming simultaneously engaged, seizing the transmission. He testified that although he could not prove it, “maybe, possibly” through an oversight, the mechanic at Mullin’s Farm Service forgot to install the set-screw. He testified that in his experience there was no other explanation for four gears to engage simultaneously.
Joe Benninger testified for Mullin’s Farm Service. He is a licensed farm equipment mechanic with 30 years experience. Mullin’s Farm Service is an authorized AGCO White dealership. He explained that Mullin’s Farm Service offers its customers a twelve-month workmanship warranty. He could not explain the missing set-screw but suggested that if it loosened and backed-out, it might be stuck in a corner of the transmission or have come out during an oil change. He testified emphatically that if the mechanic forgot to install the set-screw, the transmission would not have shifted hundreds of times over the further 500 hours use since 2005.
He testified that there was another way that four gears could engage simultaneously. He explained that if, due to wear, the shift “synchro-ring” did not release from a gear, then four gears could engage at the same time, causing the transmission to seize. He also testified he had seen that kind of transmission problem in tractors with 2800 hours use. When he examined a gear from the seized transmission at the hearing, he described it as worn, but not terrible and normal for a tractor with 2800 hours use.
Findings and Reasons
The issue is whether Mullin’s Farm Service is liable under warranty to compensate John Smuck for transmission repair costs.
In the Tribunal’s view, there is no applicable statutory or contractual warranty for the following reasons:
The parties agreed at the outset of the hearing that the new repair parts were not in issue and therefore section 163 of the Act does not apply. However, if it did apply, the legislature’s intention is that new repair parts be free from defects in material or work for 90 days from the date of purchase. If it did apply, that statutory warranty expired, at the earliest around the end of February, 2006 or, at the latest, around the summer of 2006, both well before the transmission seized.
Section 174 of the Act recognizes that parties can contract for greater warranty protections than set out in the Act. In this case, the Mullin’s Farm Service contractual repair warranty was greater than that set out in the Act. However, the Mullin’s twelve-month warranty expired, at the latest, October 31st, 2006 almost two years before the transmission seized.
The evidence that the set-screw was never installed and “missing” was not persuasive. Dan Hoover’s evidence about opening the transmission pan and parts falling out could reasonably support a conclusion the set-screw fell out of the transmission when he opened it up. Equally plausible is that the set-screw fell into the pan and drained out during an oil change or still remains lodged in some corner of the transmission.
The fact that the transmission worked without incident for a period of three years after the Mullin’s repair, with about 500 hours use and hundreds of transmission shifts militates against Dan Hoover’s suggestion, as uncertain as it was, that the set-screw was never installed.
The fact of Joe Benninger’s unequivocal evidence, as a licensed farm equipment mechanic with 30 years experience, that the transmission could not have operated for three years without the set-screw.
The fact of a plausible alternate theory for the transmission seizure as provided by Joe Benninger.
ORDER
The Tribunal dismisses John Smuck’s appeal.
Any party to this appeal may appeal the decision of the Tribunal on a question of law to the Divisional Court of the superior Court of Justice in accordance with its rules of practice within 15 days from the day on which this decision was served.
Dated at Brampton, Ontario this 15th day of July, 2009
- (1) On the request of a purchaser, dealer, distributor or manufacturer, the Director may inquire into and attempt to resolve a dispute with respect to any matter arising from the application of this Act or the regulations. Repair charges (2) The Director may investigate claims and attempt to resolve disputes regarding the charges made by a dealer for the repair of a farm implement. Mediator (3) If a person makes a request to the Director for an inquiry under subsection (1) or an investigation under subsection (2), the Director may appoint a mediator to assist the parties to resolve the dispute.
(5) If the parties to a dispute are unable to resolve it with the assistance of a mediator, any of the parties to the mediation may apply to the Tribunal for a hearing. Decision (6) The Tribunal shall decide the issue that is before it for a hearing and shall serve notice of the decision, together with written reasons, on the parties to the hearing in accordance with its rules of practice.
- (1) On the sale of a new repair part there is an implied warranty that the repair part will be free from defects in material or work for a period of ninety days from the date of purchase or, if purchased out of the season of use, ninety days from the date it is first used by the purchaser in the next season of use.
- (1) A distributor or dealer may give a warranty in respect of a farm implement or a repair part that affords greater protection or that has a longer duration than the warranties under this Act.