ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-CV-197311CM
DATE: 20130605

BETWEEN:

EPSTEIN EQUESTRIAN ENTERPRISES INC.

Plaintiff

– and –

FRANK JONKMAN AND SONS LIMITED and CYRO CANADA INC.

Defendants

P. David McCutcheon and Jeremy C. Millard, for the Plaintiff

Paul Tushinski and Albert Wallrap, for the Defendant Frank Jonkman and Sons Limited

James Regan and Angelo Sciacca, for the Defendant Cyro Canada Inc.

HEARD: September 10, 11, 12, 13, 18, 19, 20, 21, 24, 25, 27, October 1, 2, 3, 4, 9, 10, 11, 15, 16, 17, 18, 22, 23, 25, 26, 29, 30, 31, November 8, 9 and 13, 2012

t. Mcewen j.

REASONS FOR DECISION

[1] This action is brought by the Plaintiff, Epstein Equestrian Enterprises Inc. (“Epstein Equestrian”), against the Defendants, Frank Jonkman and Sons Limited (“Frank Jonkman and Sons”) and Cyro Canada Inc. (“Cyro”), for damages arising out of the manufacture and installation of a Skylight System for a horse riding arena (“the riding arena”). The riding arena is located on a horse farm owned by Epstein Equestrian in King City, Ontario (“King Ridge Stables”).

[2] As a result of the alleged failure of the Skylight System, Epstein Equestrian claims damages in the amount of approximately $2,600,000.

[3] For the reasons below, I dismiss the action.

factual overview

[4] Epstein Equestrian entered into a stipulated price contract (“the Contract”) with Frank Jonkman and Sons in which Frank Jonkman and Sons agreed to design and install both a Skylight System (as part of the roof construction of the riding arena) and a Dust Control System in exchange for a payment of $153,001.44, subject to adjustments. The Skylight System consists of two main components: (1) a metal framed acrylic skylight (“the skylight”); and (2) a skylight shutter system (“the shutters”). The Dust Control System uses water to control dust in the riding arena. This dispute only concerns the Skylight System; the design and construction of the Dust Control System is not disputed in this action.

[5] The Skylight System was installed on the north and south sides of the riding arena roof. To construct the skylight, Frank Jonkman and Sons installed extruded sections of aluminum into which white Acrylite SDP 16mm acrylic sheets (“the acrylic sheets”) were placed. The acrylic sheets were manufactured by Cyro. There were 36 acrylic sheets on each side of the roof. They started at the peak of the roof and were 21 feet in length. Cedar shake shingles were installed below the skylight and ran to the roof’s bottom edge.

[6] The shutters were located approximately one foot below the skylight in the interior of the riding arena and were installed as a motorized, insulated, self-sealing system that could be automatically opened and closed.

[7] The general intent was to open the shutters to allow sunlight to pass through the acrylic sheets and into the riding arena to provide light and heat. The shutters would then be closed to contain the heat. More generally, the shutters were to open and close as necessary in order to maintain a comfortable temperature within the riding arena.

[8] Two cupolas were also installed on the top of the riding arena roof. These were not installed by Frank Jonkman and Sons, but do have some import in the litigation since they had built-in, motorized louvres that could be opened and closed to help control heat and ventilation in the riding arena.

[9] Epstein Equestrian alleges that the Skylight System failed after it was installed. It alleges that the failure was: (1) a result of the improper design and construction of the Skylight System by Frank Jonkman and Sons; and (2) caused or contributed to by the negligence of Cyro in the design of the acrylic sheets.

[10] After the installation of the Skylight System, problems with heat, humidity, condensation and leaking arose in the riding arena, and the acrylic sheets began to crack vertically and horizontally.

[11] In order to better understand the issues between the parties with respect to the alleged deficiencies in the Skylight System, it is useful to provide a description of the Skylight System.

THE SKYLIGHT SYSTEM

[12] Frank Jonkman and Sons and Cyro had worked together on projects for a number of years, the majority of which involved the construction of commercial greenhouses. Frank Jonkman and Sons and Cyro had developed an installation system for the acrylic sheets, which consisted of extruded pieces of aluminum into which the acrylic sheets would be placed. Frank Jonkman and Sons, in the usual practice, would design, construct and install the aluminum frame. Cyro, which manufactures a number of different types of acrylic products, would manufacture the acrylic sheets that were to be inserted into the aluminum frame. The acrylic sheets are rigid, structurally stiff, insulating glazing sheets made from acrylic. Each sheet consists of two outer walls which are separated and joined by a series of parallel, evenly spaced ribs that run vertically for the length of the sheet. Air gets trapped in the channels formed by the two outer walls and the ribs, which provides additional insulation. One of the attractive features of the acrylic sheets is that the design prevents condensation from forming on the inside surface of the sheets, and if condensation does form, it will either evaporate or drain out of the bottom of the acrylic sheets through holes that are drilled into the bottom of the acrylic sheets upon installation. The Cyro literature provides the following profile of an acrylic sheet, which is useful in assisting one to visualize its design:

[13] The technical data provided by Cyro to Epstein Equestrian in 1992 disclosed the following information with respect to the acrylic sheets:

Acrylite SDP 16mm Acrylic Sheet

Thickness

16.00mm + 1.0mm (0.63° + 0.04°)

Width

1200mm + 4.0mm (47.25° + 0.16°)

Lengths

2.4m, 3.0m, 3.6m, 4.8m, 6m, 7.3m (8°, 10°, 12°, 16°, 20°, 24°) Additional lengths available by special order.

Area Weight

5kg/m² (approx.) (1.1 lb/ft²) (approx.)

Heat Transfer Coeffiecient1(U)

Summer Conditions

3.2W/m2 x °C (0.55 BTU/hour x sq. ft. x °F)

Winter Conditions

3.3W/m2 x °C (0.58 BTU/hour x sq. ft. x °F)

Thermal Resistance Value (RT)

Summer Conditions

1.82°F/BTU hour sq. ft.

Winter Conditions

1.72°F/BTU hour sq. ft.

Coefficient of linear thermal expansion

70x 10⁻² in∫in∫°C (40 x 10⁻² in∫in∫°F)

Maximum service temp. without load

71°C (160°F)

Light transmittance (Approx.)

Clear

86%

White (#06310)

70%

Bronze (#43480)

52%

Bronze (#13770)

Solar Transmittance

Clear

83%

White (#06310)

67%

Bronze (#43480)

57%

Bronze (#13770)

Shading Coefficient

Clear

0.98

White (#06310)

0.86

Bronze (#43480)

0.79

Bronze (#13770)

Average Sound Reduction

23 dB

¹ASHRAE HAND BOOK OF FUNDAMENTALS

[14] As can be seen in the technical data, there are three types of acrylic sheets: clear, white and bronze. Epstein Equestrian ultimately ordered the white acrylic sheets. The sheets are not white in colour, but rather, they are translucent.

[15] Information is set out in the technical data with respect to light transmittance and solar transmittance. It is important to note that light transmittance and solar transmittance involve two different measurements that are differently calculated. Light transmittance involves the measurement of light waves from the sun and the technical data includes measurements approximating how much light would travel through the acrylic sheets. Solar transmittance, on the other hand, deals more particularly with the issue of heat and how much heat from the sunlight would pass through the acrylic sheets. The amount of heat that is transferred through the acrylic sheets into a building is referred to as solar heat gain. In order to calculate light transmittance and solar transmittance, different types of the sun’s light wavelengths are measured.

[16] The technical data also provides information concerning the shading coefficient for the acrylic sheets. In order to calculate solar heat gain, both the solar transmittance value and the shading coefficient value are needed.

chronology

[17] It is difficult and unnecessary to recite each and every bit of relevant evidence as the subject matter spans many years. Instead, in order to understand how the disputes arose between the parties, I have provided a year-by-year chronology of events and my findings with respect to the following: the evolution of the design of the Skylight System in the riding arena; the Contract between Epstein Equestrian and Frank Jonkman and Sons; the purchase of the acrylic sheets from Cyro; the design and construction of the Skylight System; and the ultimate problems that arose in the riding arena that led to the cracking of certain acrylic sheets, which resulted in the investigations that followed and this action.

(Complete decision text continues exactly as provided in the source above, including all remaining paragraphs, sections, and schedules.)