Date Issued: October 12, 2023

File: SC-2022-007728

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 0917110 B.C. Ltd. v. Abbotsford Nissan Ltd., 2023 BCCRT 865

Between:

0917110 B.C. LTD.

Applicant

And:

ABBOTSFORD NISSAN LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about a motor vehicle transmission.

2.      The applicant, 0917110 B.C. Ltd. (091), hired the respondent, Abbotsford Nissan Ltd. (Nissan), to reprogram the transmission control module (TCM) in a used transmission. 091 says Nissan advised that it was unable to program the TCM because the transmission was defective. However, 091 says that after towing the vehicle to a transmission shop, it discovered 2 connection wires had been reversed. 091 says the vehicle’s transmission was working before it took the vehicle to Nissan, so it says Nissan must have switched the wires. 091 claims a total of $1,895 for reimbursement of the TCM programming charge, towing expense, transmission shop bill, and other miscellaneous expenses.

3.      Nissan denies responsibility for switching the transmission wires. Nissan says that its attempt to reprogram the TCM was unsuccessful, and that 091 did not authorize it to perform diagnostic work. So, Nissan says it is not responsible for 091’s claimed expenses.

4.      091 is represented by its owner, Gurpreet Bansal. Nissan is represented by an employee.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

7.      Section 42 of the CRTA says the CRT 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.

ISSUES

8.      The issue in this dispute is whether Nissan is responsible for the switched transmission wires, and if so, whether it owes 091 the claimed $1,895.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, the applicant 091 must prove its claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ submitted arguments and evidence but refer only to what I find is necessary to provide context for my decision. I note that Nissan did not provide any documentary evidence, despite having the opportunity to do so.

10.   It is undisputed that 091 hired a third party to install a used transmission in a 2013 Nissan Altima vehicle. 091 then delivered the vehicle to Nissan on April 18, 2022, so that Nissan could program the TCM.

11.   Nissan’s April 19, 2022 invoice stated that after it attempted to program the TCM, the vehicle would not move when warmed up. The invoice stated that a scan revealed several error codes, and that Nissan traced the issue to an internal failure of the CVT assembly. It is undisputed that Nissan advised 091 that the transmission likely needed replacement.

12.   The evidence shows that at the suggestion of the third party who had originally installed the transmission, 091 towed the vehicle from Nissan to Stan’s Transmission Centre Ltd. (Stan’s) on April 20, 2022. Stan’s’ April 28, 2022 invoice stated that it checked the error codes and discovered the “sublet diagnostic wire incorrectly installed on input and intermediate speed sensors”. The invoice indicated that swapping the wires resolved the issue.

13.   091 submits that it would have been impossible to drive the vehicle with the wires crossed. 091 says that because the vehicle was driven to Nissan “under its own power”, Nissan must have switched the wire connections while reprogramming the TCM. 091 says it is entitled to reimbursement of its expenses incurred due to Nissan’s “mistake”.

14.   Nissan denies that it switched wires and says the facility that installed the used transmission likely made the error.

15.   I find the issue of whether the vehicle was undrivable with the transmission wire connections reversed requires expert evidence because it is a technical matter that is beyond the knowledge and experience of an ordinary person (see Bergen v. Guliker, 2015 BCCA 283). 091 did not provide any such expert evidence. So, I find it unproven that the transmission wires must have been properly connected when 091 delivered the vehicle to Nissan.

16.   Notably, 091 also did not provide any evidence from the third party who installed the transmission, nor did it provide evidence about the vehicle’s condition from the individual who delivered the vehicle to Nissan, or about the impact of the unprogrammed TCM on the vehicle’s drivability. Stan’s’ invoice does not mention anything about when the wires were likely switched.

17.   In the absence of this evidence, and particularly any expert evidence, I find 091 has not proven Nissan was responsible for switching the transmission wire connections.

18.   I note that 091 also submits Nissan is responsible for its expenses because Nissan incorrectly diagnosed a faulty transmission and recommended 091 purchase a new transmission for the vehicle. However, Nissan says that 091 did not authorize it to do a full diagnosis of the problem, and it assumed that because the transmission had only recently been installed, 091 would take it back to the facility that installed it for further diagnosis and repair. Nissan says it ultimately would have found the problem had 091 hired it to further diagnose and repair the transmission.

19.   To the extent that 091 argues Nissan was negligent in failing to diagnose the switched wire connections, I find that position unproven. I find that determining whether Nissan should have been able to diagnose the switched wires based on the work 091 authorized it to do requires expert evidence. Again, there is no expert here.

20.   As noted, 091 undisputedly hired Nissan to reprogram the TCM. While Nissan clearly did some preliminary diagnostic work when the reprogramming was unsuccessful, I find there is insufficient evidence that 091 authorized Nissan to perform a full diagnosis of the problem. I also find 091 has not established that had it authorized Nissan to proceed with a full diagnosis and repair, Nissan would not have discovered the switched wires.

21.   On the evidence before me, I find there is nothing obviously unreasonable about Nissan’s advice that the transmission likely needed replacement. Given that advice, I find 091 reasonably opted to take the vehicle to Stan’s for further diagnosis. However, I find 091 has not proven Nissan is responsible for its costs to do so, just because Nissan’s preliminary diagnosis was incorrect.

22.   For all these reasons, I dismiss 091’s claim.

23.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. As 091 was unsuccessful, I find it is not entitled to reimbursement of its CRT fees. Nissan did not pay any fees, and neither party claimed any dispute-related expenses.

ORDER

24.   I dismiss 091’s claims, and this dispute.