SUPERIOR COURT OF JUSTICE

GERALDTON SMALL CLAIMS COURT

Maurice Lachance and The One Contracting,
Plaintiffs

-and-

Swanson Electric and Terry B. Swanson,
Defendants.

REASONS FOR JUDGMENT

Of Deputy Judge K. Cleghorn, delivered
February 13, 2012 at Thunder Bay, Ontario

APPEARANCES

Maurice Lachance, For himself and The One Contracting.

Terry Swanson, For himself and Swanson Electric.

R E A S O N S F O R J U D G M E N T

CLEGHORN (Dep. Judge-SCC)

This matter was heard on January 23, 2012 at Geraldton, Ontario. The decision was reserved on that day.

The plaintiff, Maurice Lachance (hereinafter “Lachance” or the “plaintiff Lachance”), resides in the Town of Nakina, in the Province of Ontario. At all material times, he was the principal of the co-plaintiff, The One Contracting.

The defendant, Terry B. Swanson (hereinafter “Swanson” or the “defendant Swanson”) is an electrician operating under the business name “Swanson Electric” in and around the Town of Nakina, in the Province of Ontario. At all material times, he was the principal of the co-defendant, Swanson Electric.

The plaintiff Lachance was, at all material times, the owner of a home known municipally as 115 Algoma Street, in the Town of Nakina, in the Province of Ontario. The defendant Swanson installed a furnace in that home for the plaintiff Lachance in autumn of 2002.

THE ISSUE

The issue in this case is whether or not the plaintiff Lachance is entitled to compensation from the defendants, or one of them, for all costs associated with replacing electrical equipment on the furnace previously referred to from 2003 until 2010. He alleges that the initial installation of the furnace by the defendant Swanson was improperly or negligently done and that he has incurred significant expense and personal inconvenience arising therefrom.

There is no dispute with respect to the essential facts of the matter. The plaintiff Lachance had a new furnace installed by the defendant Swanson in or about autumn of 2002. There were continuing misfires of the furnace and consequent damage to the electrical system of same for eight years thereafter. The problem was not diagnosed and rectified until spring of 2010. The plaintiff Lachance seeks to have the defendants cover those costs which he incurred over the years due to the perpetual breakdown of the furnace unit.

The plaintiffs claim the sum of $2,438.77, pre judgment interest in accordance with the Courts of Justice Act from September 15, 2010, post judgment interest and costs. The plaintiff Lachance argues that the defendants are liable for any costs he has paid to have, ultimately, a functioning furnace. During the course of the trial, the plaintiff Lachance modified his claim and requested the sum of $1,330.04, inclusive of costs.

THE EVIDENCE

I find as follows in relation to the evidence:

( 1 ) the plaintiff Lachance had issues with the furnace installed in his home in autumn of 2002 as early as spring of 2003;

( 2 ) the defendant Swanson, under the auspices of his business, installed the furnace originally and, although he did an inspection of same in spring of 2003 when a problem was first reported, he made some suggestions but did not repair the unit;

( 3 ) the plaintiff Lachance experienced continuing difficulties and malfunctions with the furnace for the next seven years;

( 4 ) the plaintiff Lachance incurred significant costs to replace parts relating to the furnace as well as ongoing personal aggravation;

( 5 ) there was significant work done on the furnace and/or electrical equipment over time, in terms of replacing parts, etc., necessitated by the continuing failure of the furnace to operate properly;

( 6 ) the source of the problem with the furnace was finally identified, and rectified, by Boucher Plumbing and Heating in spring of 2010;

( 7 ) the problem with the furnace was said to be the connection of the ground wire to the control box of the burner, resulting in the short circuiting of the control board (see exhibit one); and

( 8 ) the defendant Swanson only became aware of the multiplicity of problems experienced by the plaintiff Lachance with the furnace in July of 2010 when he was presented with an invoice from The One in that month for $2,344.07.

DISCUSSION

This is an unfortunate set of circumstances for the plaintiff. He is required, however, to prove his case on the balance of probabilities and to provide evidence to establish his damages. I am not satisfied he has proven his case on the balance of probabilities.

The plaintiff Lachance needed to establish through appropriate expert testimony that the defendant did, or failed to do, something which resulted in the ongoing malfunction of his furnace (my emphasis). He can only offer his own speculation, or a mere letter from Boucher Plumbing and Heating dated January 10, 2012, as the reason for the furnace and/or electrical failure. The letter from Boucher Plumbing and Heating does not qualify as an expert report, but particularly has little value in a situation where the potential expert is not called at trial to testify as a witness. It would be critical, regardless, for any expert to be impartial and independent and to be subject to cross-examination as a basic matter of procedural fairness. As such, although admitted into evidence as exhibit one, little weight can be assigned to the letter from Boucher Plumbing and Heating. It certainly has no probative value in terms of a nexus between the original installation of the furnace by the defendant Swanson and the continuing problems with the furnace experienced by the plaintiff Lachance. It has limited probative value in terms of establishing the basis for the problem in any event.

Other than that, the plaintiff Lachance relies upon the mere fact of the original installation of the furnace by the defendant Swanson to rest liability upon him or the co-defendant. It is insufficient as a matter of law for the plaintiff Lachance to recover damages when liability cannot be established on the balance of probabilities, particularly after the passage of so many years and so many interventions as described to deal with the furnace over those years. The onus is on the plaintiff Lachance to establish liability and the plaintiff Lachance has clearly failed in his obligation to present adequate evidence in that regard.

The plaintiff Lachance has an onus to prove his damages as well. He has clearly failed to mitigate those damages. It was incumbent upon him to obtain an early and appropriate diagnosis for his furnace malfunction. After allowing years to pass, and incurring significant costs over those years (some of which may have been avoided by early contact with Boucher Plumbing and Heating), the plaintiff Lachance is not then able to recover all of those costs from the defendants, even if liability rested with either of them.

It bears repeating that I cannot conclude, on the basis of the evidence as presented, what may or may not have caused the furnace to repeatedly malfunction. As such, the plaintiff Lachance cannot recover damages from the defendants when he has failed to prove his case on the balance of probabilities. The defendant Swanson may have done something, or failed to do something, that caused the furnace failure-in this case, that has not been proven to my satisfaction on the balance of probabilities (and really not at all) such that I could award damages to the plaintiff Lachance.

Even if I am incorrect in my analysis of the evidence, the claim of the plaintiffs fails for another reason. The Limitations Act , 2002, S.O.2002, Chapter 24 provides as follows:

“4. Unless this act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

Although it did take many years for the plaintiff Lachance to determine the source of the furnace malfunction, the onus was on him to ascertain the nature of the issue and act with all due dispatch. His failure to do that, as in any case of this kind, renders it difficult, if not impossible, for the defendants to properly investigate and/or defend the law suit. Hence, as the Limitations Act makes clear, no party can bring a law suit after the two year time frame from the date that that party knew (or a reasonable person ought to have known) of the “injury, loss or damage” in question. I find that the plaintiff Lachance knew, or ought to have known, that the furnace problems stemmed from either the installer (the defendant Swanson) and/or the manufacturer of the furnace in question as early as spring of 2003.

Under the circumstances, there is no need to comment on whether parties were improperly added or inappropriately named in this proceeding. Suffice it to say, neither plaintiff succeeds in this claim as against either defendant.

DECISION

As a result, the plaintiffs’ action shall be dismissed.

In relation to costs, as in most cases, the successful party shall be awarded costs. The defendants are entitled to their costs (but one set only since the defendants are effectively the same person), being all disbursements, which include, but are not limited to, the court filing fees, costs of service, witness fees, etc. This ruling on costs is subject to information from any of the parties directed to the clerk of the court within ten days hereof of any written offers to settle made prior to trial which may impact on a costs award or of any additional claims for costs i.e. a counsel fee. If there are such written offers, or claims, the parties are invited to make written submissions on costs within fifteen days of being notified by the clerk of the court that such submissions are required.

I thank all parties for their presentation of this interesting case and for their courtesy to the court and to each other.

Judgment accordingly.

K. CLEGHORN, Deputy Judge-SCC

Dated at Thunder Bay, Ontario this 13th day of February, 2012.