James Tausendfreund

The court convened a case conference for four related product liability actions involving fires allegedly caused by defective ventilation units.

After four years of case management, the court discovered that counsel for the defendant had failed to disclose numerous other actions across the province involving the same parties and identical issues, including one that had already proceeded to trial.

Citing counsel's lack of candor and repeated failure to comply with court orders, the case management judge struck the actions from the trial list and declined to continue case managing them.

The appellants appealed a trial judgment finding them liable for a fuel oil spill at the respondents' home.

The trial judge found that the appellants negligently failed to identify that the respondents' fuel oil tank, which was labelled for indoor use, was installed outdoors, and failed to tag it as non-compliant.

The appellants argued the trial judge erred by applying the 'material contribution' test for causation instead of the 'but for' test.

The Court of Appeal dismissed the appeal, holding that while the trial judge articulated the wrong test, she effectively applied the 'but for' test by finding the spill would not have occurred if the appellants had fulfilled their regulatory obligations.

The Court also upheld the trial judge's apportionment of liability, finding of contributory negligence, and damages assessment.

A third party defendant brought a motion for summary judgment seeking dismissal of negligence allegations in a third party claim arising from a water main failure involving high density polyethylene pipe.

The court applied the framework for summary judgment articulated in Hryniak v. Mauldin and considered whether the evidentiary record demonstrated a genuine issue requiring a trial.

Several negligence allegations relating to manufacturing defects, inspection failures, and product design were dismissed on partial summary judgment.

However, claims alleging that the pipe may have been damaged while in the moving party’s care, custody, or control were allowed to proceed because causation remained unresolved among multiple parties who handled the pipe.

The court concluded that determining which party caused the fracture required a full evidentiary record and credibility findings best addressed at trial.

The plaintiffs moved to strike portions of the defendant's affidavit filed in support of a summary judgment motion, arguing the paragraphs disclosed without prejudice settlement communications.

The court dismissed the motion, finding that the communications were simply an accounting reconciliation of agreed and disputed invoices, rather than privileged settlement negotiations involving a compromise of positions.