The third party plaintiffs, who installed septic systems in a residential subdivision, were sued by the builder after 35 systems failed and had to be replaced due to non-compliant filter sand.
After settling the main action, the installers brought a third party claim against the aggregate supplier who provided the filter sand, alleging breach of contract and negligence.
The court found the supplier breached an implied warranty of fitness under section 15 of the Sale of Goods Act because the sand did not meet Ontario Building Code specifications.
The court awarded the installers their settlement costs and legal fees as damages, but apportioned fault, reducing the damages by 16.5% to account for the installers' own design and installation errors.
The negligence claim was dismissed due to a lack of expert evidence establishing the standard of care for manufacturing filter sand.
