Court File and Parties

CITATION: Dickson v. Broan-Nutone Canada Inc., 2008 ONCA 734

DATE: 20081027

DOCKET: C47459

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN:

Ian Dickson and Barbara Dickson

Plaintiffs (Appellants)

and

Broan-Nutone Canada Inc.

Defendant (Respondent)

Counsel:

A. Peter Trebuss for the appellants

William S. Chalmers for the respondent

Heard and released orally: October 24, 2008

On appeal from the judgment of Justice Susan G. Himel of the Superior Court of Justice dated June 26, 2007.

ENDORSEMENT

[1] The appellants appeal from the judgment of Himel J. dated 26 June 2007 dismissing their action for negligence.

[2] The appellants purchased a fan manufactured by the respondent from a local hardware store in 1985. The appellants installed the fan in the basement of their house in the ‘spa room’ where their hot tub was located in order to remove the moisture from the air.

[3] Thirteen years later, on September 17, 1998, Mr. Dickson used the hot tub in the morning before going to work. It appears that he forgot to turn it off when he left. The fan likely overheated, causing accumulated lint and dust to ignite. The fire ensued, the basement was damaged, and the house suffered smoke damage.

[4] Eventually, the appellants sued the respondent. The parties agreed that damages were $179,000. However, on the question of liability, the trial judge concluded that she was not satisfied on a balance of probabilities that “the fire occurred as a result of any negligence on the part of the defendant and I find that the plaintiffs’ allegation of a duty to warn cannot succeed.”

[5] The appellants appeal from the trial judge’s decision. Their principal ground of appeal is that the trial judge erred in concluding that the respondent was not negligent in failing to warn the appellants of an inherent danger in the fan, namely the risk of a fire if the appellants did not properly clean and maintain the fan.

[6] We disagree. The appellants led no evidence about the standard of care in 1985 for a warning by the manufacturer about the cleaning and maintenance of the fan. Indeed, on the contrary, there was evidence, which the trial judge properly relied on, that the fan complied with Canadian Standards Association standards and had been approved for sale.

[7] Additionally, as the trial judge pointed out, the appellants led no evidence that they would have done anything different if they had received a warning regarding cleaning and maintaining the fan. In fact, Mr. Dickson testified that, given his intended method of installation of the fan, he did not regard the packaging or instruction sheets for the fan as material. In these circumstances, it was open to the trial judge to conclude, as she did, that the appellants had failed to establish that they would have done anything differently if they had received a warning regarding cleaning and maintaining the fan.

[8] The appeal is dismissed. The respondent shall receive its costs of the appeal fixed at $10,000 inclusive of disbursements and GST.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”