Court of Appeal for Ontario

CITATION: Conundrum Capital Corporation v. Century Plumbing and Heating, 2016 ONCA 20

DATE: 20160111

DOCKET: C60555, C60556 and C60557

MacPherson, Pepall and Hourigan JJ.A.

BETWEEN

Conundrum Capital Corporation

Plaintiff

and

Century Plumbing and Heating, Oxford Properties Group Inc., ADT Security Services Canada Inc./Intercon Security Limited and Brookfield Properties Ltd.

Defendants

(Century Plumbing – Appellant)

ADT/Intercon Security – Respondents)

Counsel:

Christopher Morrison and Joel Cormier, for the appellant

John Downing, for the respondents

Heard: January 6, 2016

On appeal from the judgment of Justice James F. Diamond of the Superior Court of Justice, dated May 11, 2015.

ENDORSEMENT

[1] The appellant, Century Plumbing and Heating, is a defendant in several actions relating to a flood in the TD Canada Trust Tower in Toronto. The respondents, ADT Security Services Canada Inc. and Intercon Security Limited, provided security services at the tower at the time of the flood.

[2] The respondents brought five motions for summary judgment seeking orders removing them as a party (defendant, third party, fourth party) from all of the actions relating to the flood. All of the parties in these actions except the appellant either consented to or did not oppose the relief sought by the respondents.

[3] The motions judge, Diamond J., granted the motions for summary judgment:

In the result, I therefore grant summary judgment in favour of ADT and Intercon and the claims, third party claims and fourth party claims against ADT and Intercon are hereby dismissed.

[4] The appellant appeals this decision on three grounds.

[5] First, the appellant contends that the motions judge erred by stating that all the parties agreed that the Building Automation System (“BAS”) on the premises had frozen on the night of the flood.

[6] We do not accept this submission. On this issue, the motions judge said:

Century does not really dispute that the 1:24 a.m. alarm related to low water pressure, and unfortunately Intercon never received that 1:24 a.m. alarm due to the BAS system failing.

[7] The appellant accepted the proposition in the first part of the sentence. The appellant did not accept the content of the second part of the sentence, and the motions judge did not suggest otherwise. The second part of the sentence is the motion judge’s conclusion and it flows from his review of the evidence. That evidence included the defendant Brookfield’s (the building owner) admission, very much against interest, that its BAS system had frozen at the relevant time.

[8] Second, the appellant submits that the motions judge erred by not considering the video evidence (a video from the offices of the tenant Conundrum where the flood originated) tendered by the appellant.

[9] We disagree. This proposed evidence related to the appellant’s contention that the 1:06 a.m. alarm could have been related to the low water pressure caused by the leak. The motions judge pointed out that there was about a six hour difference between the flood time and the time shown on the video and then said:

On the facts of this case, and as argued by Century itself, minutes counted. If the filing of the video itself, in the absence of any admissible evidence to assist the Court in determining the actual time contemporaneous with the events captured in the video, amounts to Century’s best foot forward, then in my view it has failed to establish the presence of a genuine issue requiring a trial, especially in the face of the evidence relied upon by Intercon as summarized above.

We agree with this analysis.

[10] Third, the appellant asserts that the motions judge erred in relying on inadmissible evidence including a letter produced by Brookfield (a different defendant) to make factual findings against the appellant’s position on the issue of the 1:06 a.m. alarm.

[11] We do not accept this submission. Irrespective of that evidence, there was other admissible evidence to support the motions judge’s conclusion that the 1:24 a.m. alarm related to low water pressure (and hence the flood) whereas the 1:06 a.m. alarm “could not have related to anything serious and or anything to do with the flood.” In addition, there was no reliable evidence to the contrary.

[12] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $20,000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”