John Smuck v. Mullin’s Farm Service, 2009 ONAFRAAT 34

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

John Smuck v. Mullin’s Farm Service – Request for Review

Smuck v. Mullin’s Farm - Request for Review 2009 ONAFRAAT 34

Farm Implements Act

DATE OF DECISION:

September 17, 2009

2009-34

2009 ONAFRAAT 34

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.

AND IN THE MATTER OF: A request for review by John Smuck from a decision of the Tribunal dated July 15, 2009 under Subsection 21.2(1) of the Statutory Powers Procedure Act and Rule 29 of the Rules of Procedure for the Tribunal.

Before:

Gene Trotman, Vice-Chair

Appearances:

None

BACKGROUND TO THE REQUEST FOR REVIEW

Mr. John Smuck, the appellant, from Wingham, Ontario carried on business as a cash crop and beef farmer; and, among other things, used a 1994 AGCO White tractor (the tractor) in the business.

In October 2005 the tractor, which had 2,300 hours of use, was taken to Mullin’s Farm Service, an authorized AGCO White dealership, for repairs to the transmission as it had ceased to function. The tractor was repaired by a licensed farm equipment mechanic with over fifteen years experience at a cost of $3,477.11 including taxes.

In September 2008, three years after the tractor had been repaired and used without transmission problems, Mr. Smuck used the tractor on his feeder wagon with its transmission in the “creeper gear” for slow movement. On the second day of using the tractor in that fashion, the tractor’s transmission seized and it was set aside.

In December 2008, Mr. Smuck took the tractor to Hoover’s Engine Service to have the transmission repaired. The repairs were performed by one Dan Hoover, a non licensed farm equipment mechanic with over twelve years experience. The cost of the repairs amounted to $2,596.66 before taxes.

A dispute arose as to whether the tractor was properly repaired by Mullin’s Farm Service and the disputing parties availed themselves of the mediation provisions in the Farm Implements Act, but to no avail. Pursuant to that Act, Mr. Smuck applied to the Agriculture, Food and Rural Affairs Appeal Tribunal for a hearing and the matter was heard on July 7, 2009.

At the hearing it was made clear by the parties that “the new repair parts used in the transmission were not in issue but, rather, it was a workmanship issue.” It was the testimony of Dan Hoover, on behalf of Mr. Smuck, that the transmission seized because four gears were engaged instead of two. He added further, that a set-screw required to secure “a gear fork onto a transmission shaft” was missing, and he saw no evidence that it was ever installed. Mr. Smuck asked the Tribunal to order Mullin’s Farm Service to compensate him $2,596.66 for faulty workmanship in the transmission repair.

Mr. Joe Benninger, a licensed farm equipment mechanic with 30 years experience, testified on behalf of Mullin’s Farm Service. It was his testimony, in part, that Mullin’s Farm Service “offers its customers a twelve-month workmanship warranty.” He testified further, that if a set screw was missing because it was not installed, the transmission would not have shifted between the time it was repaired by Mullin’s Farm Service in 2005, and the time of its seizure in 2008, a time span in which the tractor put in 500 hours of use.

The Tribunal issued its decision on July 15, 2009 dismissing Mr. Smuck’s appeal, stating that “In the Tribunal’s view, there is no statutory or contractual warranty” on which the appeal could be based because the parties indicated that new repair parts were not an issue, and that while Mullin’s Farm Service offered its customers a twelve month workmanship warranty, that warranty had expired on or about October 31, 2006, almost two years before the transmission seized.

Mr. Smuck requested an appeal (in reality a review) of the Tribunal’s decision, and was seeking $2,596.66 for the repairs by Mullin’s Farm Service and $500.00 “for time and expenses incurred due to the negligence of the decision of my hearing of July 7, 2009.”

Mr. Smuck’s request, by and large, consisted of comments and complaints although he classified some “as the basis on which he based his appeal” (request). Enumerated hereunder they are all classified as “Complaints.”

COMPLAINTS BEHIND REQUEST FOR REVIEW AND FINDINGS BY THE TRIBUNAL

Complaint #1

The Tribunal panel" failed to recognize all aspects of the actual principal of the issue, nor did they take into consideration all of the evidence before them.”

Finding #1

There is no evidence of such in the decision of the Tribunal panel.

Complaint #2

“I … believe that they (the members of the Tribunal) lacked the mechanical knowledge of the actual transmission functions…where their background and expertise came into this appeal with respect to farm machinery.”

Finding #2

Knowledge of the actual functions of the transmission by the members of the Tribunal was not required. Knowledge, however, of the laws pertaining to warranty was required and the Tribunal was competent in that regard.

Complaint #3

“A rebuilt transmission does NOT fail after 500hrs for no reason – this could be put on

by some farmers in less than 3 months”

Finding #3

The hours of use after which the transmission failed, in the circumstance, are not relevant to the issue as there was no warranty of any kind regarding the hours of use. The issue, as properly stated by the Tribunal, “is whether Mullin’s Farm Service is liable under warranty to compensate John Smuck for transmission repair costs.”

Complaint #4

“The creeper gear had not been utilized since the repair – which is an extremely low

speed.”

Finding #4

The creeper gear is not the issue. See also Finding #3 last sentence.

Complaint #5

“Ultimately, the most important issue I have is the absence of the technician that worked

on the equipment….He was a key witness to this case, and it would have been a significant factor to have the opportunity to ‘cross examine’ during this process”

Finding #5

This is certainly not the fault of the Tribunal.

Complaint #6

“Mr. Hoover may not be a licensed technician, but with his apprenticeship hours is considered an expert in the field of transmission…He was under oath at the time of his testimony, and is an honest individual wanting to be heard with his explanation and details of the repair he performed on the tractor”

Finding #6

The testimony of Mr. Hoover was properly weighed and evaluated by the Tribunal.

Complaint #7

“With respect to the 12 month warranty – that is NOT where the issue lies. It isn’t a 12 month parts replacement policy, but rather a workmanship concern.”

Finding #7

The issue is as stated in the last sentence of Finding #3.

Complaint #8

“During the period since I received the result of the decision made by the panel, I have had the opportunity to speak with several qualified and licensed technicians regarding this case. The results came in simultaneously the same. It came down to an error in judgement on behalf of Mullen’s technicians, and should be held accountable….Should you require any documents from some of these individuals I have spoken to, please contact me, and I would be more than willing to forward them on to you…since basically the decision was ultimately based on theory of one man’s 30 years experience, not on the testimony of Mr. Hoover “ under oath.”

Finding #8

This evidence should have been presented to the Tribunal on July 7, 2009. It is not new evidence, as it was obviously readily available at that time. This evidence cannot now form the basis for granting a review of the appeal.

Complaint #9

“Not only do I feel that I have been targeted as a farmer trying to get justification for a repair to my equipment in order to perform my daily duties, but have been let down by not only an Equipment Dealership, but by you – the advocates for the Farm Equipment Act.”

Finding #9

The Tribunal is duty bound to render its decision based on the facts and the applicable laws. We are dealing here with the Farm Implements Act not the Farm Equipment Act . The Tribunal is not the advocate for the Farm Implements Act. That Act gives the Tribunal, among other things, jurisdiction to hear disputes arising pursuant to its application, where parties failed to solve the same by mediation and where one such party applies to the Tribunal for a hearing.

DECISION OF THE TRIBUNAL

The issue for decision is whether Mullin’s Farm Service is liable under warranty to compensate Mr. John Smuck, for transmission repair work on his tractor in October 2005, and which transmission broke down in September 2008.

Mullin’s Farm Service provides only a “twelve month workmanship warranty.” When the transmission ceased to function in September 2008, that warranty had long expired. That being the case, it is the decision of the Tribunal that Mullin’s Farm Service is not liable under warranty to Mr. Smuck. As a consequence, the request for a review of the decision of the Appeal Tribunal dated July 15, 2009 is hereby denied.

Dated at Ottawa, Ontario this 17^th day of September, 2009