ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-450846

DATE: 20150812

BETWEEN:

STEVE MARTIN

Plaintiff

– and –

ATTARD PLUMBING LTD.

Defendant

Stuart Zacharias for the Plaintiff

Robert W. Dowhan for the Defendant

HEARD: July 30, 2015

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] On October 21, 2010, the Plaintiff Steve Martin’s house in the Village of Kleinburg was damaged when a plastic connection nut on a flex hose connecting a toilet to the water line failed, and there was a flood. It cost $263,472.86 to repair the damage from the flooding.

[2] The Defendant Attard Plumbing Ltd. had been contracted to reinstall the toilet, and its employee, Nick Leonardis, used a new flex hose to connect the toilet to the water line, but the plastic connecting nut on the flex hose failed, it cracked, within a few hours of installation.

[3] Mr. Martin sued Attard Plumbing for negligence and for breach of an implied warranty. In the motion now before the court, Mr. Martin moves for summary judgment for breach of the implied warranty.

[4] When the argument of the summary judgment motion began, there were two main issues; namely: (1) whether there was an implied warranty that the materials used by Attard Plumbing were of good quality and reasonably fit for their purpose; and (2) if there was an implied warranty, whether it had been breached. Mr. Martin’s argument-in-chief on both issues depended, in part, on an admission in Attard Plumbing’s Statement of Defence that the connecting nut on the flex hose had been defectively manufactured by its manufacturer, Zhejian Xing Aite Copper Company, a Chinese company.

[5] In the middle of the argument, the motion made a very sharp turn. Immediately after Mr. Martin had completed his argument-in-chief, Attard Plumbing requested an adjournment to amend its Statement of Defence to withdraw the admission. Although there was some suggestion in Attard Plumbing’s responding material for the summary judgment motion that the connecting nut on the flex hose had failed because it had been tampered with by a third party, before the argument of the summary judgment motion, the admission of a manufacturing defect in the flex hose had not been withdrawn.

[6] In response to Attard Plumbing’s adjournment request, I advised Mr. Martin that he had a choice between: (1) having the matter adjourned with costs thrown away payable to him; or (2) not opposing the amendment of the Statement of Defence, in which case, I would not adjourn the summary judgment motion, which would immediately resume with Attard Plumbing’s argument based on the existing evidentiary record. For the first choice, the adjournment of the motion, I indicated that there would be an expedited hearing of a motion, which I would remain seized of, to determine whether to permit the admission to be withdrawn and the Statement of Defence to be amended. Mr. Martin chose the second option, and the summary judgment motion continued.

[7] On the summary judgment motion, Attard Plumbing argued that there were genuine issues for trial about: (1) whether there was an implied warranty; and (2) whether the warranty had been breached. It argued that the case was not appropriate for a summary judgment. After Mr. Martin’s reply argument, I reserved judgment.

[8] For the reasons that follow, I now grant Mr. Martin a partial summary judgment. I conclude that there was an implied warranty in the contract between Mr. Martin and Attard Plumbing, but there is a genuine issue for trial about whether that warranty was breached. A trial is required.

[9] I am no longer seized of the matter, and after Mr. Martin delivers a Reply to Amended Statement of Defence, there should be a trial in the normal course on the negligence claim and on the issue of whether the implied warranty was breached.

B. EVIDENTIARY BACKGROUND

[10] As the description of the facts below will reveal, the flex hose was installed by Nicola (Nick) Leonardis, a master plumber employed by Attard Plumbing, whose President is Richard Attard, who is also a master plumber. The plumbing work for Mr. Martin’s renovation project was requested by Steve Bardley, who was supervising the renovation of Mr. Martin’s home. After the flood, two engineers, Rene Caskanette and Gary W. Howard, prepared reports with opinions about the failure of the flex hose. Their reports were attached to the affidavits of others.

[11] In support of his summary judgment motion, Mr. Martin relied on the following:

• An affidavit dated May 21, 2015 from Barbara J. Tatler, a law clerk of Mr. Martin’s lawyer of record, which affidavit included:

o the pleadings;
o the transcript of Mr. Martin’s discovery attendance on February 4, 2014; and
o the transcript of the examination for discovery of Mr. Attard on behalf of Attard Plumbing on February 4, 2014.

• An affidavit dated July 14, 2015 from Mr. Martin.

• An affidavit dated July 15, 2015 from Mr. Bradley.

[12] In response to the summary judgment motion, Attard Plumbing relied on the following:

• An affidavit dated June 29, 2015 from Mr. Attard.

• An affidavit from Mr. Leonardis sworn June 29, 2015, which attached a transcript of a recorded statement given by him shortly after the flood to Terry Black, an insurance adjuster from Crawford Insurance Adjusters, who was investigating for the insured Zhejian Xing Aite Copper Company.

• An affidavit dated June 29, 2015 from Mr. Howard, a professional engineer with Safety and Forensic Engineering Inc., who prepared a report dated July 29, 2011 about the flex hose and also a revised supplementary report four years later dated June 24, 2015.

• An affidavit dated July 22, 2015 from Danielle Mark, a lawyer with Attard Plumbing`s lawyer of record. Ms. Mark attached to her affidavit an engineering report by Rene Caskanette of Caskanette Udal Consulting Engineers dated November 17, 2011, which report had been prepared for Mr. Martin’s insurer and which Mr. Martin had produced in his affidavit of documents.

C. FACTUAL BACKGROUND

[13] In the fall of 2010, Mr. Martin was renovating his house.

[14] Mr. Bradley, a general contractor with Riverside Valley Homes, was the superintendent for the job.

[15] On Mr. Martin’s behalf, Mr. Bradley contacted Attard Plumbing, and Mr. Martin hired them to reinstall two toilets. The toilets had been removed from two bathrooms so that their floors could be redone and the plan was to reinstall the expensive toilets.

[16] Although Mr. Martin and Mr. Attard know each other, there was no direct communication between them with respect to the renovation project.

[17] Attard Plumbing admits that it warrants its workmanship, but it denies that it provides any warranties on any parts it installs.

[18] Sometime before October 21, 2010, Mr. Leonardis attended at Mr. Martin’s home. The toilets were uninstalled, and pending reinstallation, they were stored in Mr. Martin’s garage.

[19] Mr. Bradley and Mr. Martin were not aware of any chemicals being applied to the toilets during the renovation project.

[20] On October 21, 2010, Mr. Leonardis returned to reinstall the toilets. It took him about 40 minutes to do so, and he left the Martin house around 4:00 p.m. Mr. Attard was also there for some part of the reinstallation, but the work was done by Mr. Leonardis.

[21] In reinstalling the toilet that eventually was the source of the flood, Mr. Leonardis used a new flex hose, which he obtained from the supplies in his truck. The flex hose is a Canadian Standards Association (“CSA”) approved product. It had been purchased from a company called Noble Trade, which uses a Chinese manufacturer, Zhejiang Xing Aite Copper Co. Ltd. to make the part. The flex hose connects the water supply to the toilet, and it consists of a metal braided hose with plastic connection nuts on both ends.

[22] It shall become important to understand that the plastic nut has threaded grooves on its interior, and the plastic nut is the female plumbing part that couples with the threaded ridges of the ballcock valve found on the toilet, the male plumbing part, which is ridged much like a screw is ridged. The ridged ballcock valve is screwed into the threads or grooves of the plastic nut.

[23] In accordance with the manufacturer’s instructions, Mr. Leonardis hand-tightened the connecting nut. He saw no visible defects to it. He saw no chemical residue on the flex hose. Mr. Leonardis’ evidence was that he did not use any chemicals during installation and that he saw no evidence of any foreign substances during installation. His evidence was that he saw no evidence of any chemical residue anywhere at Mr. Martin’s house.

[24] The toilets were tested and neither Mr. Leonardis nor Mr. Attard noticed anything amiss.

[25] Mr. Leonardis and Mr. Attard say that as they were leaving, Mr. Martin’s cleaning lady went to clean the toilets. It is alleged that she had started cleaning before Mr. Leonardis began his work and that she finished after Mr. Attard and Mr. Leonardis left.

[26] For this summary judgment motion, Mr. Martin was unable to locate the cleaning lady, who no longer works for him. There is no evidence about how the cleaning lady went about cleaning the toilets, which were said to be quite dirty from having been stored in the garage.

[27] A few hours after the plumbing work was completed, the connecting nut failed. Mr. Martin had left his house at around 6:30 p.m. and returned home at around 11:00 p.m. to find extensive water damage.

[28] Photographs of the flex hose showed a gash like fracture in the connecting nut, and the photos showed a yellow chemical residue in the interior threaded portion of the connecting nut. Contacted by Mr. Martin’s insurer, the engineer, Mr. Caskanette, examined the plastic nut and the ballcock valve, and his report dated November 17, 2010 states, with my emphasis added:

The plastic coupling nut was cracked parallel to its base. The crack presented as the probable leak source for the unit. The crack did not propagate sufficiently to fracture the unit into two sections so that the surfaces generated by the crack were not observed. The crack was obscured from view in the interior of the nut due to a rubber gasket. The areas in the immediate vicinity of the crack appeared yellow (refer to Figure 3).

The plastic nut had an abnormal appearance in that it appeared etched or chemically attacked. The attack to the exterior of the nut was relatively superficial however the upper edge of the nut and the threads were much aggressively attacked. These surfaces appeared pockmarked, irregular and dimpled.

The normal symmetrically geometry of the threads was disrupted due to the attack. Some thread crown appeared dissolved. A yellow particulate matter was present in the threads of the unit.

There is evidence that clearly indicates that a chemical attacked both the plastic of the coupling nut and the ballcock valve. The damage is readily apparent in the interior of the nut and in two threads of the gray plastic of the ballcock valve. The plastic material in the immediate vicinity of the crack in the nut has discoloured yellow which is also a sign of chemical attack.

Particulate matter is readily apparent in the threads of both the ball cock valve and the coupling nut in a properly assembled joint, such material should not be present, as the connection does not require any joint compound to seal the connection.

This coupling nut has been subjected to a chemical or compound, which aggressively attacked the plastic from which it was manufactured. Residual matter left in the threads may provide information to determine the makeup of the compound or chemical.

A weakening of the plastic brought on by a chemical attack probably caused the fracture of the coupling nut.

It is unknown at this time whether the supply fitting for the toilet connecting was new or used. In either case, material was present within the threads of the connection that ought not to have been there. This material has aggressively attacked the plastic of the fitting. Whether new or used the connection should not have been made with material buildup in the threads.

… In this case the installed fitting was in a deteriorated condition and should not have been installed.

CONCLUSIONS

The following conclusions have been drawn from our independent engineering assessment.

1. We did not identify evidence to conclude over tightening of the coupling had occurred.

2. It is our opinion that the fracture of the coupling nut was due to a chemical attack to the plastic of the nut.

3. In a properly installed connection there should not be any chemicals or compounds present in the threaded connection.

4. It is our opinion that the installation of the supply fitting was substandard in that it was installed either in a deteriorated and unclean condition or an incompatible compound was used in the joint.

[29] In his affidavit for the summary judgment motion, Mr. Attard deposed that the chemical residue found on the connecting nut must have come from some other source either from the construction at the property or from the cleaning products used to clean the toilet just before and just after it was reinstalled.

[30] In his affidavit for the summary judgment motion, Mr. Leonardis said that perhaps the cleaner the cleaning lady used came into contact with the connecting nut and caused the plastic to melt or that the yellow substance came from other construction being done at the Martin home.

[31] I pause here to say that there is a genuine issue for trial about what caused the connecting nut to fail and there is also the prospect of credibility issues about Mr. Leonardis’ account of what he observed and what he did while reconnecting the flex hose. There are two competing theories. Mr. Martin’s theory is that the connecting nut was defective as evidenced by the nut’s cracking, the escape of water, and the chemical residue on the nut and the valve, which his expert attributes to manufacturer’s error. Mr. Martin submits that having demonstrated the defect, he need not specify what caused the defect in the connecting nut. In stark contrast, Attard Plumbing’s theory is that the flex hose was fine but that the cleaning lady damaged it while cleaning the toilet. The “blame it on the cleaning lady” theory of how the plastic nut came to be damaged raises numerous questions and raises more genuine issues for trial.

[32] I will return to this point below, but here it may be noted that the flex hose was brand new and only the exterior of it could have been damaged by the cleaning lady, but engineer Caskanette’s theory, which, as discussed below, came to be adopted by engineer Howard, is that the damage to the plastic nut was caused internally by a corrosive chemical being applied to the threads of the nut or to the ridges of the ballcock valve, which then caused the plastic nut to dissolve and crack. Mr. Howard does not attribute the presence of the corrosive chemical to the manufacturer and thus blame falls on the cleaning lady. However, based on the evidence on this motion, the cleaning lady would not have been able to apply cleaning solvent to the internal part of the connecting nut, where the damage occurred, and so it comes down to whether she applied a solvent containing a sufficiently powerful corrosive agent to the ballcock valve on the toilet before the valve was screwed into the connecting nut, but Mr. Leonardis’ evidence was that he noted no chemicals on the toilet, and there was evidence that he would have wiped off any chemical before installing the flex hose if he had noticed any contaminant.

[33] Based on the evidence presented for the summary judgment motion there are problems with both theories, which are compounded by the absence of the cleaning lady’s evidence and by Attard Plumbing’s decision not to examine Mr. Martin for discovery or to cross-examine him about what he knew, if anything, about what cleaning agents were used to clean the toilet.

[34] Returning to the factual background, on the morning of October 22, 2010, Mr. Martin phoned Attard Plumbing and advised them about the flood. Mr. Attard and Mr. Leonardis promptly went to Mr. Martin’s home. Mr. Attard also asked Frank Iafano, a salesman from Noble Trade, to attend the property, but there is no evidence from Mr. Iafano.

[35] It is not disputed that after the flood, the connecting nut was found to have cracked and that inside the nut, there was the residue of a yellow substance. It is also not disputed that there was chemical residue found on the ballcock valve of the toilet.

[36] After the flood, Attard Plumbing retained an engineer, Mr. Howard of Safety and Forensic, to determine the cause of the failure in the connection nozzle. It was Mr. Howard’s opinion that because there was no evidence of over-tightening, misuse, or installation error, the failure of the fitting could only be attributed to either degradation and dissolution of the P.O.M. polymer by the yellow substance that was on the threads or a defect in the design and manufacture of the fitting. Mr. Howard’s original report is the source of the admission in Attard Plumbing’s Statement of Defence that the flex hose was of defective manufacture, which admission was withdrawn when I allowed the Statement of Defence to be amended.

[37] There was more evidence about the circumstances of the flooding from the examination for discovery of Attard Plumbing. Attard Plumbing waived its right to examine Mr. Martin for discovery, but on February 4, 2014, Mr. Attard was examined for discovery.

[38] At the time of the examination for discovery - but not on the motion for summary judgment – it was Attard Plumbing’s position that the connecting nut was shoddily manufactured because the yellow substance must have been on it when it was manufactured and before it was installed. However, in his affidavit responding to the summary judgment motion, as noted above, Mr. Attard deposed that the residue must have come from some other source; that is, from the construction at the property or from the cleaning products used by the cleaning lady to clean the toilet around the time of its reinstallation.

[39] For the summary judgment motion, Mr. Howard delivered a late arriving supplementary report dated June 24, 2015. He explained in his revised expert’s report that since 2011, he had investigated more than 300 connection nut failures and that having reviewed Mr. Caskanette’s report, he had revised his opinion contained in his original 2011 report. It was now Mr. Howard’s opinion that the yellow chemical residue was the result of the plastic nut of the flex hose having degraded from contact with a corrosive solvent. Mr. Howard’s June 24, 2015 report stated, with my emphasis added:

The January 13, 2012 Caskanette Udall report indicates that the yellow substance is a degradation product of the POM (acetal) polymer coupling. This makes sense to me since the dissolved threads had to stay within the space between the coupling and fill valve.

Some coupling threads had dissolved and the exterior surface had partially dissolved which must have been caused by some type of solvent. The FTIR peaks indicate that it was likely acetal homopolymer which is less robust than copolymer. The lack of identification of a foreign substance indicates that the solvent might have been an acid such as hydrochloric acid which is found in cleaners. Acetal does not resist acid very well.

Since the toilet had been removed from the bathroom and stored for 2 months plus 3 weeks in the garage according to the homeowner, there may have been opportunity for contamination of the fill valve threads which was then spread onto the coupling. The cleaning solution used by the housecleaner could be a possible source of the solvent that dissolved the coupling and is a likely cause.

In my opinion, a plumber would not know the significant [sic] of the substance on the fill valve (if it could be seen), and its potential to cause failure of the coupling nut. It would be difficult to remove all the substance from the fill valve thread roots.

Conclusions

1. Considering my experience since this investigation and the additional information provided, I conclude that failure of the coupling was caused by a substance that dissolved it and caused environmental stress-cracking.

2. The evidence shows that the coupling most likely did not fail from substandard design or material or from over tightening and that it was fit for purpose.

3. It my opinion it is unlikely than an experienced plumber would apply any substance to the coupling or fill valve threads as it is not necessary since the water seal is made at the black cone washer, not the threads. Nick stated that he did not apply any substance to the coupling.

4. The conclusion in my first report were that the coupling failed from the effects of contamination or substandard design. I now conclude that contamination was the failure cause.

[40] I pause here to note again that Mr. Howard relies on and essentially agrees with Mr. Caskanette’s theory that a chemical substance applied on the interior of the plastic nut, perhaps by the contamination of the ballcock valve with which the plastic nut couples, had caused the plastic nut to corrode and then to crack and fracture allowing water to escape and flood Mr. Martin’s home.

D. DISCUSSION AND ANALYSIS

1. Jurisdiction to Grant Summary Judgment

[41] The motion before the court is a motion for a summary judgment. Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[42] Rule 20.04(2.2) states:

Oral Evidence (Mini-Trial)

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[43] In Hryniak v. Mauldin, 2014 SCC No. 7, the Supreme Court of Canada held that on a motion for summary judgment, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[44] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[45] Hryniak v. Mauldin encourages the use of a summary judgment motion to resolve cases in an expeditious manner provided that the motion can achieve a fair and just adjudication. Speaking for the Supreme Court of Canada, Justice Karakatsanis opened her judgment by stating:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. … Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

[46] At paragraph 22 of her judgment in the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Justice Karakatsanis summarized the approach to determining when a summary judgment may or may not be granted; she stated:

22. Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.

[47] Justice Corbett provided a useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, where he stated at paras. 33 and 34:

33. As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:

(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

(3) If the court cannot grant judgment on the motion, the court should:

(a) Decide those issues that can be decided in accordance with the principles described in (2), above;

(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

34. The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.

[48] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 814 (ON CA), 18 O.R (3d) 481 (Ont. C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).

[49] In Hryniak v. Mauldin, 2014 SCC 7, although the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course. Indeed, where there are genuine issues for trial and the lower court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily: Mitusev v. General Motors Corp., 2014 ONSC 2342 at para. 79; Gon (Litigation Guardian of) v. Bianco, 2014 ONSC 65 at paras. 41-47.

[50] In the case at bar, based only on the evidence in the motion record and without using the fact-finding powers under rule 20.04(2.1), there are two major issues that are genuine issues requiring a trial; i.e., (1) whether there was an implied warranty that the materials used by Attard Plumbing were of good quality and reasonably fit for their purpose; and (2) if there was an implied warranty, whether it had been breached.

[51] Under the approach to summary judgment mandated by Hryniak v. Mauldin, if there is a genuine issue requiring a trial, then the Court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice, if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[52] As I shall explain below, in my opinion, I can fairly decide the first issue on this summary judgment motion, and I conclude that there was an implied warranty of fitness, but I cannot fairly decide the second issue of whether the implied warranty was breached.

2. Was there an Implied Warranty of Fitness

[53] At common law, unless the circumstances of the contract are such as to exclude the obligation, a contractor performing work and supplying materials impliedly undertakes to use materials of good quality, to do the work with care and skill and agrees that the work and materials will be reasonably fit for the purpose for which they were required: G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd. (1984), 1983 1719 (ON CA), 43 O.R. (2d) 401 (C.A.); Window & Door Centre Inc. v. Pine Lake Properties Inc., 2014 ONSC 1844.

[54] In G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd., Justice Cory stated for the Court of Appeal at paras. 11 and13:

11. Young & Marten, Ltd. v. McManus Childs, Ltd., [1968] 2 All E.R. 1169, is a decision of the House of Lords. Two principles emerge from the speeches given in the course of that case. The first is that the common law principles codified in the Sale of Goods Act apply to contracts for the provision of work and materials sometimes referred to as contracts for work and services. Thus, the provisions pertaining to the Sale of Goods Act and codified in that Act are equally applicable to contracts for the provision of work and materials. Secondly, it is determined that unless the circumstances of a particular case are sufficient to specifically exclude it, there will be implied into a contract for the supply of work and materials a term that the materials used will be of merchantable quality and that those materials will be reasonably fit for the purposes for which they were intended.

12. The principle enunciated in Young & Marten Ltd., supra, has been considered and adopted in appellate courts in Canada: In Ontario, in Hart v. Bell Telephone Co. of Canada Ltd. (1976), 1979 1768 (ON CA), 26 O.R. (2d) 218, 102 D.L.R. (3d) 465, 10 C.C.L.T. 335 (on the general issue of when warranties will be implied). In Laliberte v. Blanchard (1980), 1980 3218 (NB CA), 31 N.B.R. (2d) 275, Chief Justice Hughes specifically followed Young & Marten Ltd. and relied upon a quotation from Lord Justice du Parcq, which was favourably referred to in that case. The words of Lord Justice du Parcq appear in G. H. Myers & Co. v. Brent Cross Service Co., [1934] 1 K.B. 46 [at p. 55]:

... the true view is that a person contracting to do work and supply materials warrants that the materials which he uses will be of good quality and reasonably fit for the purpose for which he is using them, unless the circumstances of the contract are such as to exclude any such warranty.

The foregoing principles are most attractive and compelling.

[55] In Pittman Estate v. Bain, [1994] O.J. No. 463 (Gen. Div.), Justice Lang provides a comprehensive review of the legal history and the case law developments associated with the implied warranty of fitness in a contract for work and materials. In the Pittman Estate case, during cardiac surgery at the Toronto Hospital, Mr. Pittman received a blood transfusion contaminated by HIV, from which he subsequently died. His estate sued the hospital, amongst others, and the estate claimed that the hospital had breached the implied warranty of fitness under the Sale of Goods Act or, in the alternative, it breached the common law implied warranty in a contract for services. Justice Lang concluded that there was no sale of blood and that the contract between Mr. Pittman and the hospital did not include an implied term as to fitness of material. This conclusion, however, followed, in part, from the nature of blood as a biologic, i.e. it is not an ordinary manufactured product, and she, therefore, concluded that the circumstances of the case excluded the warranty.

[56] The facts and circumstances of the Pittman Estate case are obviously far removed from the facts of the immediate case, but Justice Lang examines the case law in Canada and England, and explains the rationale and the development of what is now a long-standing legal doctrine about implied warranties in a contract for services, which are implied unless excluded by the circumstances of the case. Justice Lang explains that the common law implied warranty gave buyers of services a remedy against the contractor without requiring action against the original manufacturer of the product. In her judgment, Justice Lang stated at paragraphs 380-381, 384-385, 393, 395-396, 404:

380. The rationale for implying warranties of material supplied as part of a contract for services and material was set out by du Parcq J. in G.H. Myers & Company v. Brent Cross Service Co., [1934] 1 K.B. 46 (Div. Ct.). In that case, the defendant garage installed six connecting rods, which it had obtained from a supplier, into the plaintiff's car. One of those rods had a latent manufacturing defect, which the supplier could not have discovered with reasonable care or skill. The defective rod broke, causing extensive damage to the engine of the car. The plaintiff sued the supplier for damages on the ground that there was an implied warranty that the materials supplied were fit for their intended purpose.

381. In arriving at its decision, the court rejected as artificial the distinction between contracts for the sale of goods, which were subject to implied warranties, and contracts for the sale of services and goods, where the goods were not necessarily so subject. A person who takes his car in for repair, contracts to pay both for the work and for the material that is needed to do that work. Why then, queried the Divisional Court, should the plaintiff have a valid claim against the defendant only if he had sold him the connecting rods without the additional service? Why should he then be denied a claim when the defendant sold, in addition to the connecting rods, the service of installing them? ….

382. The Court found that there was only one circumstance in which such a warranty would not be implied. This is the situation in which the person contracting for the repair limits the discretion of the repairer in obtaining material by specifying that the repairer must use specific material, obtained from a specific source. Du Parcq J. summarized the law as follows:

... I think that the true view is that a person contracting to do work and supply materials warrants that the materials which he uses will be of good quality and reasonably fit for the purpose for which he is using them, unless the circumstances of the contract are such as to exclude any such warranty. (at p. 55)

385. This dictum has been cited with approval in Young & Marten Ltd. v. McManus Childs Ltd., [1968] 2 All E.R. 1169 (H.L.) at 1173 (per Lord Reid), 1175 (per Lord Pearce), 1177 (per Lord Upjohn) and in G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd. (1983), 1983 1719 (ON CA), 43 O.R. (2d) 401 (C.A.) at 405.

386. The Canadian approach to implied warranties in contracts of sale, near-sale, and work and materials is similar to that of the English authorities.

387. In Hart v. Bell Telephone Company of Canada Limited (1979), 1979 1768 (ON CA), 10 C.C.L.T. 335, the Ontario Court of Appeal dealt with the issue of implied warranty in a pure contract of service. In that case, the plaintiff put a coin in a pay telephone and, in return, received an electrical shock caused by a defect in the telephone. The defect was a latent manufacturing one that could not reasonably have been detected by Bell Canada. The Court relied upon Lord Reid in Young & Marten, supra, at p. 1172, that "no warranty ought to be implied in a contract unless it is in all the circumstances reasonable" (cited at p. 340). The Court held that it was reasonable to imply a warranty that the telephone was reasonably safe because such a warranty was necessary to give business efficacy to the contract between the telephone company and the consumer. Accordingly, the telephone company was held liable in damages even though it did not manufacture the product and the defect was latent.

388. Four years later, the Ontario Court of Appeal looked at the law on implied warranties in somewhat greater detail in G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd., supra. ….

389. The following principles emerge from the English and Canadian cases that I have considered:

390. Separate from the statutory conditions of Sale of Goods legislation, common law warranties of fitness and merchantability may be implied by the court in appropriate circumstances.

391. Such common law warranties may be applied to goods supplied in the course of a contract for work and materials as well as to goods sold pursuant to a contract for the sale of goods.

392. In deciding whether to imply terms, the court must consider the nature of the contract, and the presumed intention of the parties.

393. The court must exercise caution and not imply terms, if to do so would effectively rewrite the contract, or be inconsistent with its other terms.

394. The circumstances of a contract may be such as to exclude implied warranties.

395. A court will imply a term where it is necessary to give business efficacy to the contract.

396. There is no need to prove negligence in order to collect under breach of warranty. Therefore, there are implied warranties for latent defects undiscoverable by inspection, just as there are for discoverable defects.

397. One rationale for implying warranties in contracts for work and materials is that it does not make sense to hold a person liable for a defect in material sold, but not hold that same person liable for the defect if the person also installs the material.

398. A second rationale is a commercial rationale. A supplier generally has recourse against the manufacturer for the statutory conditions imposed by the Sale of Goods Act. If the supplier chooses to buy on terms under which the chain of liability has been broken, then it has accepted the risk of having to bear the loss itself, if the goods prove defective.

399. It may be that occasionally the supplier does not have recourse against the manufacturer (e.g., because of limitation periods or insolvency). However, it is better that the purchaser be recompensed at the occasional expense of the retailer, than that the innocent purchaser seldom realize a remedy.

400. Every case must be determined on its own particular facts.

[57] With respect to the implied warranty for fitness of the goods used in contracts for services see also: Fraser v. U-Need-A Cab Ltd., [1983] O.J. No. 3180 (H.C.J.), aff’d 1985 2118 (ON CA), [1985] O.J. No. 2482 (C.A.); Hart v. Bell Telephone Company of Canada Limited, [1979] O.J. No. 4385 (C.A.).

[58] In the case at bar, Attard Plumbing submits that the particular circumstances of the case negate the existence of an implied warranty of fitness. In para. 59 of its factum, it states:

59. In this case, the circumstances support exclusions of both implied warranties. First, with respect to an implied warranty for fitness for purpose, Attard was retained to install previously used toilets by the Plaintiff. The toilet was in the Plaintiff’s exclusive care and control prior to Attard’s arrival for installation. The Connection Line used by Attard to connect the toilet was new out of the package. It was the standard fitting used by Attard at the time. It was CAS Approved. Leonardis did not notice any substance on the Connection Line. Using the Connection Line, he installed the toilet, and then flushed it several times to test the installation. It functioned properly. Accordingly, there was no patent defect with the Connection Line, and as in Young, Attard appropriately employed its skill and judgment as a plumber that the Plaintiff may have relied upon.

[59] With respect, there is little to nothing in these circumstances described by Attard Plumbing that would negate the existence of the implied undertaking or the rationale for it. Mr. Martin contracted with Attard Plumbing both for the reinstallation of the toilet and for the material needed to do that work. Mr. Martin did not specify what material should be used and Attard Plumbing made the decision to install a new flex hose. Attard Plumbing never expressed any disclaimer that it would not be responsible for using materials of good quality and reasonably fit for the purpose. The circumstances of the case at bar are the typical circumstances in which courts have concluded that there is an implied warranty of fitness.

[60] Using the approach mandated by Hryniak v. Mauldin, supra, a trial is not necessary to fairly decide that there was an implied warranty of fitness in the contract between Mr. Martin and Attard Plumbing.

3. Is Attard Plumbing Liable for Breach of an Implied Warranty of Fitness?

[61] As a contractor performing work and supplying materials, the common law implied warranty of fitness exposes Attard Plumbing to the same liability as a vendor of goods that is subject to the statutorily imposed implied warranty of fitness under the Sale of Goods Act, R.S.O. 1990, c. S.1, s.15. Thus, the next question on this summary judgment motion is whether there is a genuine issue requiring a trial about whether Attard Plumbing is liable for breach of an implied warranty of fitness. To answer this question, it is necessary to understand what a plaintiff must prove to establish a breach of the warranty of fitness.

[62] A party who relies on the Sale of Goods Act - or as in the case at bar - a party who relies on the common law implied warranty has the onus to show that the goods were defective, and that the defect (latent or patent) existed when the other party delivered the goods. They need not, however, prove the cause of the defect that existed when the goods were delivered. See: Schreiber Brothers Limited v. Currie Products Limited, 1980 11 (SCC), [1980] 2 S.C.R. 78; Smythe/Clark Inc. v. Eurobags (Canada) Inc., [1991] O.J. No. 1148 (Gen. Div.).

[63] In the case at bar, the defect in the flex hose was not patent; i.e. it was not apparent to the senses and it was not detectable upon inspection of the flex hose. The toilet was tested, and Mr. Leonardis noticed nothing defective in the new flex hose. The defect in the connecting nut was latent, and the defect did not manifest itself and yield a flood until later.

[64] When a defect is latent, the plaintiff still must show that the defect existed at the time of delivery, or in the case at bar at the time of the installation of the flex hose, which the plaintiff may be able to do by proffering evidence to exclude other probable reasons for the emergence of the defect. However, the plaintiff is not required to eliminate every other possibility. In Farmer v. Canada Packers Limited (1956), 1956 140 (ON SC), O.R. 657 at p. 671, McRuer C.J.H.C. explained the onus of proof as follows:

This case is undoubtedly based on circumstantial evidence, but to give full effect to the argument of counsel would be to place an onus on the plaintiff of excluding all alternative possibilities, which would in fact be proof beyond a reasonable doubt. The statements in decided cases dealing with civil responsibility must be read with care lest the standard of proof require that the plaintiff be proof beyond a reasonable doubt. If the plaintiff is required to eliminate every possibility that may be conjured up then that is proof beyond a reasonable doubt.

[65] If the plaintiff meets its onus of proof and shows that there is a latent defect in the product, the onus shifts to the defendant to show that the defect did not exist at the time of the delivery of the product.

[66] For a plaintiff to succeed on a claim for damages for breach of an implied warranty, they must also prove that the defect was the cause of the damages that he or she suffered. The proof of causation may involve excluding other probable causes for the defect (for example, disproving that the product was tampered with) and other probable causes for the damages (for example, that the damages were caused by something other than the product.) See McNevan v. Agrico Canada Ltd., 2011 ONSC 2035, aff’d 2011 ONCA 720.

[67] In the case at bar, there is little doubt that there is a genuine issue requiring a trial about whether the connecting nut in the flex hose was defective at the time of installation or whether the connecting nut was damaged by the cleaning lady cleaning the toilet. However, this genuine issue cannot fairly be resolved using the approach mandated by Hryniak v. Mauldin, supra.

[68] As noted above, there are problems with the competing theories of the parties, and I can add here that although the jurisprudence about summary judgment motions posits that the parties are to be taken to have put their best evidentiary foot forward, it is palpably obvious that both parties have not done so, in part, because the motion for a summary judgment was initially brought based on Attard Plumbing’s admission that the flex hose was defective in manufacture.

[69] The engineering reports relied on by both parties are, in truth, not properly before the court, being just filed as exhibits in the affidavits of others. Further, while it is possible that both engineers are qualified to give opinion evidence, the engineers did not testify and both their qualifications and their evidence have not been tested by cross-examination. Moreover, it would not be fair to rely on the hearsay evidence about Mr. Howard’s report without hearing Mr. Caskanette’s response to it.

[70] And, in hindsight, it appears that by not examining Mr. Martin for discovery, Attard Plumbing was setting a trap, because he was not alerted to the fact that Attard Plumbing would later advance a “blame it on the cleaning lady” theory to explain how the connecting nut came to be damaged. Even if the cleaning lady cannot be located, and I do not know what efforts have been made to locate her, Mr. Martin may have evidence about what cleaning products were typically used in his household.

[71] Attard Plumbing’s withdrawing the admission substantially changed the evidentiary landscape of the motion for summary judgment, and I cannot fairly decide the case using the powers under rules 20.04(2.1) and (2.2), beyond deciding the issue that there is an implied warranty of fitness. There needs to be a trial about whether the implied warranty was breached and of the alternative claim of negligence.

E. CONCLUSION

[72] For the above reasons, I grant Mr. Martin a partial summary judgment as aforesaid.

[73] If the parties cannot agree about costs, they may make submissions in writing, beginning with Mr. Martin’s submissions within 20 days of the release of these Reasons for Decision followed by Attard Plumbing’s submissions within a further 20 days.

[74] I alert the parties that my present inclination is to award Mr. Martin his costs on a substantial indemnity basis for this summary judgment motion because of the circumstance of Attard Plumbing’s late arriving request to amend its Statement of Defence to withdraw an admission.

Perell, J.

Released: August 12, 2015

COURT FILE NO.: CV-12-450846

DATE: 20150812

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVE MARTIN
Plaintiff

– and –

ATTARD PLUMBING LTD.
Defendant

REASONS FOR DECISION

PERELL J.

Released: August 12, 2015