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Eligibility Finding Nickerson 510116 .pdf


Original filename: Eligibility Finding Nickerson 510116.pdf
Title: Microsoft Word - Eligibility Award DRAFT
Author: csher

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Claim No. 510116
In the matter of an Arbitration pursuant to the Canadian Motor Vehicle Arbitration Plan
(“CAMVAP”)
Between:
Randolph Nickerson
(“Consumer(s)”)
-andFCA
(“Manufacturer”)
Ruling on Eligibility
Appearances:
For the Consumer:

Randolph Nickerson (with Paul Levasseur)

For the Manufacturer:

Ed Winters

Arbitrator:

Craig Sherburne

Hearing Date(s):

January 30, 2017

Hearing Location:

Teleconference

Date of Eligibility Decision:

January 30 2017

Vehicle Details:
VIN:

1C4BJWDG8DL582370

Make and Model:

Jeep, Wrangler Sport

In Service Date:

January 24, 2013

Date of Purchase:

January 24, 2013

Kilometres at Hearing:

69,368 Kms

1 of 3

(the “Vehicle”)

As provided for under the Agreement for Arbitration (the “Agreement”), I have been asked
by the Manufacturer to rule on whether the application for Arbitration by the Consumer is
eligible under said Agreement.
The Consumer presented the Vehicle to the dealer numerous times, the latest on the basis that
the Vehicle was burning excessive (the “Symptom”) and that it has not been repaired (the
“Allegation”). In addressing the Symptom, the dealer appears to have removed and
disassembled the engine and to this date the engine remains separate from the body of the
Vehicle.
The Manufacturer questioned whether the Consumer met the CAMVAP criteria, in particular
that the Consumer failed to meet the requirements for eligibility under section 4.4.2 on the
basis that the Allegation relates to the design of the vehicle.
For a dispute to be eligible for arbitration under the Agreement, it must both fall within the
scope of Articles 4.2 and 4.3 of the Agreement, as well as not falling under an enumerated
exemption from eligibility under section 4.4. An analysis is necessary under each of these
sections before finding whether the dispute is eligible for Arbitration, and I shall do so
sequentially.
The bar for eligibility under section 4.2.2 is low, requiring that the Consumer “allege” a
Current Defect. A Current Defect is defined in the Agreement as:
“A defect in Your Vehicle that You allege:
(i)is currently causing symptoms in Your Vehicle; and
(ii) has not been repaired properly.
A defect in the design of Your Vehicle or in the design of any Materials is not
a Current Defect. “
The Consumer has alleged that the Symptoms are occurring in the Vehicle, as well as
alleging that the Vehicle has not been repaired to her satisfaction; and therefore meets the
first half of the definition of a “Current Defect”.
Yet the definition exempts a defect in the design of the Vehicle from being a Current Defect.
This also relates to the position of the manufacturer that the issue is ineligible for arbitration
under section 4.4.2.
The Manufacturer is of the position that the Symptoms arise from ingestion of dirty water,
and therefore do not represent a Current Defect. Although that may be borne out through the
course of an Arbitration, the bar to be met for Eligibility is that there be an allegation of
Current Defect, it is to the arbitration to determine whether it is to be considered a Current
Default. Thus I find that the Allegation meets the eligibility criteria of section 4.2 and is not
excluded under section 4.4.2

2 of 3

I therefore rule that the current dispute is eligible for Arbitration, and request that a hearing
date be scheduled.

Dated this 30th day of January, 2017

_______________________________________
CAMVAP Arbitrator
Craig Sherburne

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