Date Issued: January 3, 2019

Amended Decision Issued: January 4, 2019

File: SC-2017[1]-007600

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Campbell v. OKANAGAN DIESEL INJECTION LTD., 2019 BCCRT 13

Between:

Linda Campbell

Applicant

And:

OKANAGAN DIESEL INJECTION LTD.

Respondent

INTRODUCTION

1.      The applicant Linda Campbell says the respondent Okanagan Diesel Injection Ltd. (Okanagan) refused to repair her 2004 Volkswagen Jetta’s turbocharger (turbo), under the warranty for their own earlier repair of it. She seeks payment for the assessment by Okanagan, the cost of a second opinion at Vernon Volkswagen, and three towing services.

2.      Okanagan says it asked to have its technician inspect the turbo for warranty consideration, but the applicant never produced it.

3.      The parties disagree about how the turbo became damaged. The applicant is self-represented. Okanagan is represented by an employee, Darren Schindel.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.      The issues in this dispute are:

a.    Is Okanagan required to repair, or compensate Ms. Campbell for the repair of, the car’s turbo?

EVIDENCE AND ANALYSIS

9.       This is a civil claim where the applicant Ms. Campbell bears the burden of proof on a balance of probabilities. I refer to the evidence and submissions below only as needed to explain my decision.

10.   On September 15, 2016, Okanagan repaired the car’s turbo.

11.   The repair invoice provides that all goods are warranted to be free from defects in workmanship and material, within the standard manufacturer’s warranty. There was no evidence before me as to the length of the warranty.

12.   According to Ms. Campbell, on September 3, 2017, the car broke down.

13.   On September 8, 2017, Ms. Campbell had the car towed to Okanagan.

14.   Okanagan says it did some preliminary testing and told Ms. Campbell that if the turbo repair was covered by warranty, there would be no charge. However, if the engine caused the turbo failure, she would be charged for the repair.

15.   Okanagan says it recommended further testing, but Ms. Campbell declined saying she did not have money to pay for it.

16.   Okanagan says that, sometime later, it told Ms. Campbell that if she brought the turbo in, Mr. Schindel would inspect it for warranty consideration. It is undisputed that Ms. Campbell never brought the turbo in.

17.   Ms. Campbell says Okanagan told her that the car needed a new engine. Okanagan disputes this point.

18.   Ms. Campbell filed a document labelled “Invoice 1-9634 Estimate 1-10745” from Okanagan for work completed September 19, 2017 and paid for on September 25, 2017. The “technician comments” section reads: “Did compression test and found all cylinders low. 350-390 psi., only half coolant in it and turbo destroyed, excessive blow by. Darren Schindel.” (capitalization in original quotes removed)

19.   Okanagan filed a separate September 25, 2017 invoice that includes these additional technician comments: “inspected turbo for failure, turbo has excessive end play up and down movement, turbo has failed likely due to lack of engine oil.” (capitalization in original quotes removed) This document notes that both engine coolant and engine oil were very low, and that 2-2.5 litres of oil was added to bring the oil back to the regular level.

20.   Ms. Campbell did not dispute receiving both September 2017 invoice documents from Okanagan. Therefore, I find she received these documents and that she was informed that the turbo was damaged, likely due to low engine oil. The invoices do not say the engine required replacement. They support Okanagan’s account that further diagnostics were needed. I find Ms. Campbell was not told the engine needed replacement. Despite that, she did not return for the further diagnostics.

21.   Ms. Campbell had her car towed to Vernon Volkswagen for a second opinion.

22.   Vernon Volkswagen told Ms. Campbell that the car needed a new turbo. She says they said there was no engine damage.

23.   The Vernon Volkswagen invoice for diagnostic assessment done on the car between September 24 and 28, 2017 charges for “misc diagnositic (sic) of engine and turbo condition” and says the customer reported engine/turbo failure. The findings recorded by Vernon Volkswagen are that “turbo shaft has failed causing smoke issues. Perform full compression tests and find readings between 395-400 min spec for this engine is 285. Recommend replacement of turbo followed by a full reset.” (capitalization in original quotes removed) By this time, Okanagan had topped up the oil and coolant in the car.

24.   Ms. Campbell says she could not afford to repair the car without the warranty, and so sold the car “at a huge loss.”

25.   Ms. Campbell filed a repair invoice showing that, after she sold it, the car’s next owner had the turbo replaced. Ms. Campbell contends that no engine damage was identified. The November 4, 2017 document from CT Auto Service which shows that a vehicle condition report was declined, but that “main bearings in the turbo are no good – lots of play - - need to replace or rebuild.”

26.   Two warranties potentially apply to this situation. First, Okanagan warranted their work and parts to be free from defects in September 2016.

27.   I agree that Okanagan could not determine whether they would repair the turbo under this warranty without fully examining the turbo. Since it is undisputed that Ms. Campbell did not submit the turbo for this offered examination, I find Okanagan did not fail in its obligations under the repair invoice warranty.

28.   A second warranty is the Sale of Goods Act section 18(c) implied term that the turbo repair would be durable for a reasonable period having regard to the use to which it would normally be put.

29.   The fact that the car’s engine remained functional does not mean the work Okanagan completed on the turbo was defective.

30.   The evidence proves only that Okanagan did repair work on a then 12-year-old car, which ran for nearly a year without problems.

31.   I place particular weight on Okanagan’s observation that the car had very low engine oil. I was not provided with any mechanic’s opinion that the turbo, even if properly installed, would be expected to function well even with very low engine oil and/or low engine coolant levels.

32.   For these reasons, I find that the turbo was functional for a reasonable period of time in the circumstances, so that the implied warranty in section 18 of the Sale of Goods Act was fulfilled. I find that Ms. Campbell has not met the burden of proving that Okanagan’s September 2016 work was defective, on a balance of probabilities.

33.   Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Okanagan did not pay any tribunal fees nor claim any dispute-related expenses, and so I make no order in this regard.

ORDER

34.   Ms. Campbell’s claims and this dispute are dismissed.