CITATION: Ipex Inc. v. Lubrizol Advanced Materials Canada Inc., 2012 ONSC 5382
DIVISIONAL COURT FILE NO.: 271/12
DATE: 20120924
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU J.
BETWEEN:
IPEX INC.
Plaintiff
– and –
LUBRIZOL ADVANCED MATERIALS CANADA, INC. and LUBRIZOL ADVANCED MATERIALS, INC.
Defendants
Benjamin Zarnett and Suzy Kauffman, for the Plaintiff
Peter E. J. Wells and Joanna Vatavu, for the Defendants
HEARD at Toronto: September 24, 2012
pardu j. (ORALLY)
[1] The defendants moved for summary judgment dismissing an action against them based on their supply of defective pipes. The motion was dismissed and the defendants move for leave to appeal from that decision.
[2] They submit that the motion judge erred in three respects:
(i) In failing to conclude that the contractual language in a 2003-2005 supply agreement and a 2005-2010 supply agreement was sufficiently broad as to exclude liability for breach of the implied conditions of fitness for a particular purpose imposed by s.15(1) of the Sale of Goods Act.
(ii) In failing to conclude that the claims based on a 2002 supply agreement were barred by the lapse of a limitation period. The plaintiff submits that because of problems with the supply of a similar product by a different corporation, the defendant should have known it would likely also face claims, although it does not assert that claims for which damages are sought in this action were made more than two years before the action was started.
(iii) In concluding that settlement of claims in 2010 without reliance on contractual language excluding liability could alter contractual relations preceding that resolution, particularly in the absence of any pleadings that the contract had been amended by conduct.
[3] These issues do not raise questions of conflicting decisions on matters of principle. Whether or not the motion judge was correct in all respects regarding the construction of these contracts, his conclusions as to the effect of conduct, that is to say resolution of some claims and whether knowledge had been established to start a limitation period running raises issues particular to these parties. None of his conclusions are res judicata. Requiring the defendants in this case to proceed to trial does not raise issues of broad public importance nor issues relevant to the development of the law and the administration of justice.
[4] Motion for leave dismissed.
COSTS
[5] I have endorsed the Supplementary Motion Record, “Motion dismissed for reasons delivered orally. Costs to the plaintiff, responding party, fixed at $25,692.81 inclusive of disbursements and HST having regard to (1) the complexity of the matter, (2) the time involved and (3) the importance to the parties.”
PARDU J.
Date of Reasons for Judgment: September 24, 2012
Date of Release: September 28, 2012
CITATION: Ipex Inc. v. Lubrizol Advanced Materials Canada Inc., 2012 ONSC 5382
DIVISIONAL COURT FILE NO.: 271/12
DATE: 20120924
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU J.
BETWEEN:
IPEX INC.
Plaintiff
– and –
LUBRIZOL ADVANCED MATERIALS CANADA, INC. and LUBRIZOL ADVANCED MATERIALS, INC.
Defendants
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: September 24, 2012
Date of Release: September 28, 2012