ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-467300

DATE: 20151109

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

CRAIG ANTHONY TAYLOR

Plaintiff

– and –

GREAT GULF (WHITBY) LTD., GREAT GULF HOMES LTD., GREAT GULF HOMES LIMITED, GULFVIEW CONTRACTING LTD. and I/LAND PLUMBING INC.

Defendants

Michael Switzer, for the Plaintiff

Jessica Harrison, for the Defendant

HEARD: June 16, 2015

s.a.Q. akhtar j.

1. FACTUAL BACKGROUND

[1] The defendant, I/Land Plumbing, a plumbing contractor, was hired by the co-defendant, Gulf View Contracting Limited, to install a series of plumbing fixtures in domestic residences. One of those residences was owned by the plaintiff, Christopher Taylor.

[2] As part of its contractual duties, I/Land installed a toilet using a particular flex hose. Five years after the installation, a flood occurred at the plaintiff’s residence, the cause of which was determined to be the malfunctioning of the hose fitted by I/Land Plumbing.

[3] As a consequence of the plaintiff’s insurance claim, the hose was examined and found to contain a pre-existing defect which was likely the cause of its failure and subsequent flooding. The use of the defective hose was also found to be a violation of the Ontario Building Code, O. Reg. 332/12 (“OBC”), as it had not been certified by the Canadian Standards Association (“CSA”).

[4] The plaintiff’s action against the defendants alleges negligence with respect to the installation of the flex hose and liability for the resulting damage. I/Land moves for summary judgment dismissing the action, arguing there is no evidence of negligence on its part.

The Test for Summary Judgment

[5] Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(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:

Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.

[6] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada concluded that summary judgment motions must be granted whenever there is “no genuine issue requiring a trial.” The court indicated, at para. 49, that the test under Rule 20.04 would be satisfied if the judge could reach “a fair and just determination on the merits of a motion for summary judgment.”

[7] When faced with a summary judgment motion the court must determine whether the process:

(1) Allows the judge to make the necessary finding 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.

[8] I/Land submits that this is a suitable case for summary judgment. Its position is that since the plaintiff cannot adduce any evidence of negligence on its part, there is no genuine issue requiring a trial. Accordingly, the plaintiff’s action should be dismissed.

[9] The plaintiff, on the other hand, does not bring a cross-motion for summary judgment in his favour. At this stage, he simply argues that there is ample evidence of I/Land’s negligence and therefore a trial is required.

2. IS THERE ANY EVIDENCE OF NEGLIGENT CONDUCT?

Canadian Standards Association and Ontario Building Code Requirements

[10] The CSA and OBC requirements play a central role part in the arguments advanced during this motion.

[11] Section 6.1 of the CSA Standard B125.1 (“plumbing supply fittings”) requires that fittings be identified in the following way:

General

Plumbing supply fittings comply with this standard shall be marked the manufacturers recognize name, trademark or other remark, or in the case of private labeling, the name, trademark, or other marks of the customer for whom the fitting was manufactured.

The marking shall be accomplished by use of a permanent mark or by placing a permanent label on the project.

Markings on plumbing shall be visible after installation.

[12] Section 7.2.1.3 of the Building Code states:

Identification and Certification

(1) Every length of pipe and every fitting shall have cast, stamped or indelibly marked on it the maker’s name or mark and the weight or class or quality of the product, or it shall be marked in accordance with the relevant standard, and such markings shall be visible after installation.

(2) Where a component of a plumbing system is required by this Code to comply with a standard and the compliance is not certified by a testing agency accredited by the Standards Council of Canada for the testing of the component in question and, when an inspector requests proof of the compliance, proof of compliance shall be produced by the person proposing to install or have installed the component, and without such proof the component shall not be installed as a permanent part of any plumbing system.

(3) The lack of certification markings on a product or plumbing component shall be regarded as proof, in the absence of evidence to the contrary, that no certification exists.

(4) If a component of a plumbing system is required to be certified to a standard, the certification shall be made by a testing agency accredited for that purpose by the Standards Council of Canada.

The Expert Evidence

[13] As part of its investigation into the flood, the plaintiff’s insurers retained the services of Rochon Engineering Incorporated, a specialist company, to examine the toilet’s supply fitting and hose. It is not disputed that the supply hose fitting’s malfunction caused the water leakage and subsequent flooding. One of Rochon’s engineers, Gary Howard, produced a series of reports outlining his conclusions on the causes of the fitting’s malfunction. His conclusions are summarised as follows:

(1) The plastic nut on the toilet water fitting contained a material defect and was substandard;

(2) The defect was the cause of the delayed fracture of the plastic nut on the toilet water supply;

(3) This defect appeared similar to a number of other identical fittings that Rochon Engineering had investigated;

(4) It was possible that the fitting had failed due to over-tightening; and

(5) The fitting did not have a manufacturer’s mark or CSA certification and was therefore in violation of the Building Code.

[14] Howard’s analysis proved controversial in some areas. I/Land drew this court’s attention to parts of Howard’s reports which appeared to indicate that even those fittings that did comply with OBC requirements were found to have failings which would lead to delayed fractures. In addition, some newer polymer fittings which actually bore the CSA logo and complied with the requirements of the Building Code also demonstrated characteristics that would lead to failure after a period of time.

The Test for Causation and Negligence

[15] Counsel for the defendants, Mr. Forget, in his able submissions, seizes upon these discrepancies to argue that there is no evidence of any negligence on the part of his clients. As previously noted, he accepts, for the purpose of this motion, that the flood and corresponding damage was caused by the faulty fitting installed by I/Land. He submits, however, that even if the court finds that I/Land was negligent by installing a non-CSA certified flex hose, there is no evidence that this negligence caused the damage. In other words, the mere absence of a CAS certification has not been proven to be the cause of the loss. That being the case, there is no genuine issue for trial and summary judgment should issue in favour of I/Land.

[16] Mr. Forget relies upon the Supreme Court of Canada’s comments in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R.181, at para. 8, where the Supreme Court of Canada reiterated that the test for causation remains the “but for” test. The court explained that test in the following way:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant's negligence was necessary to bring about the injury -- in other words that the injury would not have occurred without the defendant's negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis in original].

[17] Whilst I appreciate this paragraph sets out the technical aspect of the test, it cannot be looked at in isolation. The comments immediately following, at paras. 9 and 10 of the decision, clarify the reasoning:

The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (H.L.), at p. 1090, per Lord Bridge; Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311.

A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Emphasis added].

Is There a Genuine Issue Requiring a Trial?

[18] I pause at this juncture, to remind myself of the goals of this summary judgment hearing. At this stage, I am not deciding actual liability but the sole issue of whether there is a genuine issue requiring a trial. I/Land’s argument boils down to the proposition that there is no evidence of negligence because there is no evidence of causation. Respectfully, I disagree.

[19] I accept that the mere breach of a statutory authority or code does not, of itself, automatically give rise to civil liability. However, failure to observe the requirements set out by regulatory authorities is evidence of negligence: see Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201; Danyliw v. 578693 Ontario Ltd., 2006 13101 (ON SC), aff’d 2007 ONCA 447.

[20] The plaintiff’s allegations in this case, however, are not simply that I/Land installed a hose lacking CSA certification, thereby violating the OBC: it claims a variety of negligent conduct on I/Land’s part. Much of this negligence is confirmed by the discovery evidence of Fillipo Gaglione, a representative who worked for I/Land at the time of the construction. Gaglione’s evidence demonstrates a complete lack of knowledge with respect to the manufacture, testing, detail and design of the part. He was unable to identify from whom the defective part was purchased or who selected the part to be used in the construction of the home. When asked whether he knew the part was CSA approved, Gaglione answered that he didn’t know and that “different manufacturers label their products in different ways.” Gaglione was also uncertain as to whether the hose was required to be CSA-approved by the OBC.

[21] As a result, the plaintiff claims I/Land failed to properly train its agents in selecting adequate parts and negligently selected, purchased and installed a defective toilet hose pipe which lacked CSA certification, violated the OBC, and, without question, caused the damage sustained. In my view, the plaintiff has adduced, for the purposes of this hearing, more than sufficient evidence to support its allegations of negligence.

[22] Mr. Forget, however, seeks to parse these allegations into separate constituent elements and insists that in order to prove causation, the plaintiff must produce direct evidence that I/Land’s negligent conduct, as described above, actually caused the water damage that resulted. He points to Howard’s examination of other hoses, some of which were CSA approved, that failed and argues that the corollary is that the plaintiff cannot demonstrate that the mere absence of CSA approval caused the hose pipe in question to fail. The absence of any evidence of causation leads to the result that there is no genuine issue requiring a trial, and this court must dismiss the plaintiff’s action.

[23] I reject this argument for the following reasons. First, the fact that other CSA approved fittings manufactured by other companies might fail has no bearing on the question of whether, in the circumstances of this case, I/Land was negligent in its selection of a defective hose pipe whose origin and design were a matter of little or no importance to the installing contractor. Secondly, Mr. Forget’s approach directly contravenes the principles set out in the Clements case. The “but for” test is not a simple “join the dots” exercise in precisely proving causation. What needs to be proven is that there was “a substantial connection between the injury and the defendant’s conduct”: see Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 23.

[24] On the facts of this case, it would certainly be open to a trier of fact to infer, as permitted by the language in Clements and Resurfice, that there was a substantial connection between I/Land’s negligent conduct in selecting and fitting a defective hose and the damage that occurred. Whether or not I/Land actually was negligent is a matter for trial.

Conclusion

[25] For the reasons set out above, I conclude that there is a genuine issue requiring a trial and I/Land’s motion for summary judgment is dismissed.

[26] If the parties cannot agree on costs, I invite the plaintiff to submit a written application for costs no longer than 5 pages within 30 days of these reasons. I/Land is to file written reasons of the same length within a further 30 days.

S.A.Q. Akhtar J.

Released: 9 November 2015

COURT FILE NO.: CV-12-467300

DATE: 201511--