Court of Appeal for Ontario

Date: 2017-11-20 Docket: C62576

Judges: Cronk, Huscroft and Nordheimer JJ.A.

Between

Mabe Canada Inc. Plaintiff (Appellant)

and

United Floor Ltd. Defendant (Respondent)

Counsel

For the Appellant: Pamela Pengelley and Robert Sottile

For the Respondent: Patrick J. Monaghan and Clarence Lui

Heard: November 15, 2017

Appeal Information

On appeal from the judgment of Justice Graeme Mew of the Superior Court of Justice, dated September 29, 2016, with reasons reported at 2016 ONSC 1060.

Reasons for Decision

1The appellant sustained damages of approximately $1 million when a drainage pipe, running underneath a floor installed by the respondent, caused a flood in its warehouse, built by First Gulf Design Build Inc. The appellant's claim in negligence against the respondent was dismissed by the trial judge, who found that although the respondent damaged the drainage pipe by puncturing it with a stake it used to brace its concrete forms, the respondent nevertheless met the standard of care in carrying out its task.

2The appellant submits that the trial judge failed to take into account the respondent's contractual duties in determining the standard of care; erred in his foreseeability analysis; and erred in failing to determine whether relevant industry practice was itself negligent and should not have been followed.

3We disagree.

Contractual Duties and Standard of Care

4First, although contractual duties may, in some circumstances, modify the standard of care that would otherwise apply, the trial judge's findings precluded such a finding in this case. Section 28.1 of the contract required the respondent to notify First Gulf in writing "if in his opinion the subsurface conditions at the Place of the Work differ significantly from those indicated in the Contract Documents, or a reasonable assumption of probable conditions based thereon." The trial judge found that the respondent should have been aware that a pipe ran underneath its formwork, but he accepted expert evidence that the respondent had no reason to foresee that the pipe would be at a shallow depth. As a result, the respondent's duty to notify First Gulf under the contract did not arise.

Foreseeability Analysis

5Second, the trial judge did not err in his foreseeability analysis. He accepted expert evidence proffered by the respondent that there was no reason not to put a stake in the ground at the location it did. It was the plumber's responsibility to alert First Gulf to the shallow depth of the drainage pipe and First Gulf's responsibility to alert the respondent. First Gulf failed to do so.

6The trial judge found that a flooring contractor would not expect to have a pipe running through the aggregate in the position it was in, some 8 to 10 feet from the rainwater leader that was connected to it. He accepted the respondent's expert evidence that drainage pipes would normally be set 2-3 feet into the subfloor – well below the reach of the 18-inch stakes used by the respondent, given the concrete slab thickness of 7 inches and an aggregate layer between 6 and 12 inches thick. The trial judge rejected the appellant's expert evidence and found that there were no other factors that should have alerted the respondent to the possibility of puncturing a pipe.

7These findings were open to the trial judge on the record before him and they are determinative of this submission.

Industry Practice

8Third, although it is clear that conformity with standard practice in an industry does not necessarily insulate a defendant from a finding of negligence, as the Supreme Court explained in ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at p. 698, a practice will be judged negligent "only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession" – only where it is "fraught with danger".

9The only evidence supporting the submission that industry practice was negligent in this case came from the appellant's expert. But it was rejected by the trial judge, who specifically preferred the evidence of the respondent's experts in concluding that the respondent had no obligation to do more than it did to determine the location of the drainage pipe. There is no basis for this court to interfere with the trial judge's decision concerning the expert evidence and the weight to be attached to it.

Decision

10The appeal is dismissed.

11The respondent is entitled to its costs of the appeal, fixed in the agreed amount of $35,000, inclusive of taxes and disbursements.

E.A. Cronk J.A. Grant Huscroft J.A. I.V.B. Nordheimer J.A.