Court File and Parties
COURT FILE NO.: CV-12-458641 DATE: 20160728 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MABE CANADA INC. Plaintiff – and – UNITED FLOOR LTD. Defendant
Counsel: Pamela Pengelley, Justin Katz and Robert Sottile, for the Plaintiff Patrick J. Monaghan and Clarence Lui, for the Defendant
HEARD at Toronto: 25, 26, 27, 28 & 29 January; 1, 2, & 3 February 2016
Reasons for Decision
mew j.
[1] When a concrete floor is poured in a new warehouse, who is responsible if, during construction, a drainage pipe located underneath the floor is damaged which, several years later, results in a flood, causing damage to the contents of the warehouse?
Background and Overview
[2] The plaintiff is a distributor of domestic appliances. Formerly known as Camco, the plaintiff occupied a large warehouse – nearly 300,000 square feet – in Brantford, Ontario. This warehouse was, at the time, one of just two national distribution centres operated by the plaintiff.
[3] The warehouse was built in 2004 by First Gulf Design Build Inc.
[4] The defendant United Floor Ltd. was specialist concrete flooring contractor, engaged by First Gulf to install the concrete floor of the warehouse in November 2004
[5] On Saturday 17 July 2010 there was a severe rainstorm storm in Brantford. As a result, the entire northeast corner of the building was flooded. Witnesses reported seeing water spraying at high pressure out of gaps in the floor around columns which supported the ceiling of the building, rising five or six feet above the ground.
[6] Appliances in the warehouse were stored in specially constructed cardboard containers, which lost their rigidity as they became increasingly soaked, eventually collapsing.
[7] Although almost every available member of the plaintiff’s staff came in to assist with preventing further damage and starting to clean up, in the end approximately $1 million of damage was done.
The Cause of the Flood
[8] After investigations were undertaken, engineers advising the plaintiff identified the cause of the problem as a drainage pipe below the concrete floor of the warehouse which had a hole in each side.
[9] Both parties to this action agree that the holed pipe, when placed under hydrostatic pressure as a result of the heavy rainwater runoff, was the major source of the flood.
[10] The plaintiff believes that the hole in the drainage pipe was caused by the defendant during the course of installing the floor. Rainwater drainage pipes had been placed in or beneath aggregate. The defendant poured concrete on top of the aggregate. The plaintiff’s theory is that stakes used by the defendant to secure forms (or “ballasts”) during the process of pouring the concrete floor, were driven into the aggregate with sufficient force, and to a sufficient depth, to pierce and break the rainwater drainage pipe.
[11] The plaintiff asserts that the defendant was negligent: in the course of laying the floor, the defendant should have ascertained the location of the pipes below the surface of the granular layer and should have avoided driving stakes into the ground where there was a risk that doing so could damage a pipe.
[12] The defendant denies that it was negligent. It disputes whether the hole in the pipe was punched during the pouring of the concrete floor. Even if that is how the hole was made, the defendant lays the blame for the incident on First Gulf who, it says, should have alerted the defendant to the presence of shallow pipes located below the surface of the granular layer.
[13] First Gulf is not a party to this action.
Issues
[14] In the absence of a contract between Camco (as it then was) and United Floor, this action is framed in negligence.
[15] Mabe must show that United Floor owed it a duty of care; that such duty of care was breached; and that damage resulted.
[16] A duty of care will exist where, as in the present case, it is reasonably foreseeable that a careless act by the defendant could result in injury to the plaintiff, and where there are no factors that would eliminate or limit that duty.
[17] Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a defendant must exercise the standard of care that would be expected of an ordinary, reasonable and prudent party in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. The court can consider external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards: Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para. 28.
[18] In my view, determination of the whether United Floor is wholly or partly liable for the plaintiff’s damages turns largely on the answers to the following questions:
a. How was the hole in the drainage pipe caused?
b. If the pipe was damaged by United Floor, was that due to United Floor failing to meet the standard of care? The answer to that question turns on considerations of:
i. Where the under floor drainage pipes were located;
ii. Whose responsibility it was to make United Floor aware of the location of the pipes;
iii. The way in which United Floor poured the floor, having regard to the presence of under floor pipes
[19] If consideration of the facts leads to the conclusion that United Floor breached a duty of care that it owed to Mabe, the remaining issue would be damages.
The Facts
[20] Many facts in this case are not seriously in dispute. However, as will be seen, there are a number of unknowns which have a bearing on the findings the court is asked to make.
How Was the Pipe Damaged?
[21] Three possibilities were raised.
[22] In the opinion of John Kyle, an expert construction superintendent retained by the defendant, the pipe might have been damaged during nuclear density testing (“NDT”) which was conducted to determine the degree of compaction of the aggregate layer. However, Mr. Kyle was the only witness who thought this was likely.
[23] The density probe used for NDT could be placed as deep as 16-18 inches through the sub-grade and the soil below. Typically, though, a small hammer is used to insert the probe. Blind testing conducted by Robert Sparling of Giffin Koerth, engineering consultants retained by the plaintiff, using a 3lb hammer, suggested that someone using such a hammer to insert a density probe would know they had hit something (e.g. a pipe) and would need considerable force to make a hole in the pipe. A number of other witnesses said, from experience, that if the puncture had occurred during NDT, the person wielding the hammer would know about it.
[24] I accept that evidence, and find it is unlikely that NDT testing was the cause.
[25] A second possibility, also raised by Mr. Kyle, was that if racking had been installed on the concrete floor, holes as deep as 18 inches through the slab and subfloor might be drilled.
[26] The evidence shows that, in fact, no racking was installed in the vicinity of the broken pipe.
[27] The third, and most likely, scenario is that a 16-18 inch metal stake, used by the defendant to secure forms used to pour concrete into, penetrated the pipe. The concrete slab was 7 inches thick (which would also be the height of the forms) and the granular layer beneath it should have been at least 6 inches thick (according to Mr. Kyle) and may have been closer to 8 inches (according to Messrs. Sparling and Nowzartash of Giffen Koerth, the consulting engineering firm retained by Mabe to investigate and report on the cause of the flood,).
[28] The stakes were driven into the ground using sledgehammers.
[29] As will be discussed more below, the damaged pipe appears to have been located beneath a construction joint in the floor slab at a depth below the surface of the floor where a 16-18 inch stake pounded into the granular layer with a sledgehammer could make a hole in the PVC pipe.
[30] Indeed, Mr. Kyle acknowledged that if the punctured pipe was located directly below a seam in concrete floor, a sledgehammer had been used to fix the formwork in place, and there was no record of NDT testing in location and no racking in the vicinity, it is likely that a grade stake used by the defendant during the installation of a bulkhead caused the puncture.
[31] Because United Floor utilised a “pinwheel” configuration for the construction joints between sections of poured concrete flooring, it was argued that the joints would not necessarily have been located exactly above the pipes. Unfortunately the photographs and measurements taken during the course of investigating the cause of this loss do not provide a definitive answer as to the exact location of the damaged pipe relative to the construction joint in the slab.
[32] Of the options presented however, the third scenario is by far the most likely cause of the holing of the pipe based on the evidence. Accordingly I find as a fact that the pipe was damaged by a stake pounded into the granular layer by United Floor during the course of setting up forms prior to the concrete floor being poured.
Information Concerning Location of the Underfloor Drainage Pipes
[33] There were “issued for permit” drawings which showed the location of vertical leaders connected to the roof drains and running in to under-slab pipes and which indicated where rainwater run-off pipes would be.
[34] Those plans do not show a pipe at the place where the punctured pipe was located.
[35] John Enright owns Leathertown Plumbing. His company installed the underground plumbing. He produced mechanical floor plans which depicted, among other things, the proposed location of the “storm below grade” pipes.
[36] Those plans do not show a pipe at the place where the punctured pipe was located either.
[37] Mr. Enright was unable to offer an explanation for this. He recalled there had been a revision to the starting point of the main drain but said he was not aware of any other changes. He would expect any changes that had been made during the course of installation of the pipes would be shown on “as built” drawings. On this job, however, he did not retain the “as built” drawings.
[38] Mr. Enright explained how his company would connect the rainwater leaders coming down the vertical columns with shallow pipes that skirt around the column foundations and then go down to the horizontal under-floor pipes. There would also be white vertical pipes connected to the under-floor pipes between the columns: these are “cleanouts” or floor drains. They would protrude through the poured concrete slab until levelled off and finished.
[39] Raffaele Felice was the Site Superintendent for First Gulf. He recalls that changes were made to the location of rainwater pipes. This included moving some of the rainwater leaders closer to the aisles. Mr. Felice said that the mechanical contractor kept a drawing the changes onsite and that drawing would have been made available to anyone, presumably including United Floor, on request.
[40] If such a drawing existed it has not been produced. Indeed, none of the drawings provided to the court show the actual location of the pipe which was damaged.
[41] According to the plaintiff, this does not matter, because the location of the lateral drain line would have been obvious because of the rows of cleanouts sticking up out of the ground. The observer would readily be able to see that the rainwater leaders had been moved one aisle north.
[42] Exactly how the pipes are routed around the column foundations would be the prerogative of the plumber to determine. One of the judgments the plumber would need to make is how far away from the column foundations the pipes would be located at a shallow depth before going down to the sub-base level beneath the granular layer.
[43] The evidence is that the location of the damage to the pipe was between six to ten feet away from the rainwater leader. Surprisingly a more precise measurement of this distance was not provided. Because of that, and because the Mabe has the onus of establishing that United Floor was negligent, I have given United Floor the benefit of the doubt and proceeded on the basis that there was shallow pipe as far as ten feet away from the rainwater leader.
[44] Gunther Vetter, the defendant’s project manager for the Camco/Mabe job, has not come across any other instance of a shallow pipe running as much as eight or ten feet from a column with a rainwater leader in over 40 years of working in the concrete floor business.
[45] A pre-pour meeting was held on site on 3 November 2004. United Floor’s President, Frank Calvi, was there. Mr. Calvi does not recall any discussion about changes.
[46] Mr. Felice says that a walkthrough would have taken place after the pre-pour meeting, at which the locations of cleanouts and rainwater leaders would have been pointed out. He believes that Mr. Calvi would have been present during the walkthrough. During the walkthrough, Mr. Felice says that he would have warned that the rainwater leaders would be shallow and that subcontractors should avoid having heavy equipment go too close to where the pipes were located as this might damage or crush them.
[47] Mr. Calvi does not recall any of this. According to him, United Floor would not typically ask where pipes connecting to rainwater leaders might be buried because it would be assumed that they would be located well below the granular layer and therefore beyond the reach of United Floor’s grade stakes.
[48] A representative of Leathertown Plumbing would have been on site during the pour to address any problems that arose. Mr. Felice does not recall any questions being asked by United Floor concerning the location of the under floor pipes.
[49] The parties agree that there was, in fact, a design change a change in the location of rainwater leaders at one or more columns in the plaintiff’s warehouse. In particular a rainwater leader was moved from column D14 to column D15. None of mechanical drawings depicted a below grade store drainage pipe between D14 and D15 or a rainwater leader at D15.
[50] I conclude that the relocation of the rainwater leader, and the corresponding relocation of the underfloor piping that it was connected to, was not drawn to the attention of United Floor, or otherwise discussed. However, I agree with the plaintiff that despite this, it should have been immediately apparent that there was a rainwater leader on the column, in this case column D15, which lined up with the construction joint in the concrete floor.
[51] It follows that the defendant would, or should, have been aware that the relocation of the rainwater leader would also mean the relocation of the under floor lateral drainage pipe which the rainwater leader connected to, and that would have resulted in a pipe in fact being located under the construction joint.
Responsibility for Making United Floor Aware of Location of Pipe
[52] The plaintiff does not say that United Floor alone is responsible for the holed pipe and, hence, for the flooding incident that ensued in 2010.
[53] However, only United Floor has been sued in this action: the court is not being asked to apportion liability. Nor is there any suggestion of contributory negligence on the part of the owner, Mabe. Accordingly, if United Floor is found to have breached its duty of care, the only remaining issue would be damages.
[54] According to Giffen Koerth, United Floor was required to take care not to damage any underground services, including storm water pipes, with formwork stakes.
[55] One of the drawings provided to United Floor was the “Foundation Plan”. This drawing included “Concrete Slab in Grade Notes” including note 1.13 which provided:
“The floor finishing contractor shall submit a detailed proposal of the floor construction procedure, including schedule, supervision, sequence of construction, materials etc.”
According to Dr. Nowzartash, this note indicates that the designer of the building expected the flooring sub-contractor to do a lot more than just lay a concrete floor.
[56] United Floor was aware that pipes were located within the aggregate. If there was any concern about hitting the piping with stakes, several options were available. United Floor could have:
a. asked the general contractor for a sketch showing the approximate location of the buried piping and avoided areas where the piping was buried when installing formwork;
b. asked the general contractor to have a locate performed on the piping or United Floor could itself have contracted someone to perform a locate;
c. used formwork that did not require the use of stakes such as “Deadmans” (e.g. a steel beam, block of concrete or other heavy item to provide anchorage) with wall formwork ties, friction buttress, or sand bags.
[57] United Floor’s failure to do any of these things fell below the applicable standard of care, according to Giffen Koerth. In expressing this opinion, Dr. Farhood Nowzartash of Giffen Koerth, acknowledged that he had not personally installed slab on grade. He is, however, experienced in the design, management and coordination of structures.
[58] Although critical of United Floor, Dr. Nowzartash concedes that there would be shared responsibility for the incident between the general contractor, First Gulf and United Floor. He agreed that there is often a difference between theory and practice and that the “correct” methods are not always the methods actually employed in practice.
[59] John Kyle, a construction superintendent of 35 years’ experience, expresses the opinion that First Gulf had ultimate responsibility for the location of the pour break bulkhead. Shallow pipes should have been identified by the plumber who installed them. It would then be the general contractor’s responsibility (and possibly that of the plumber also) to ensure that the flooring contractor was made aware.
[60] I find that the general contractor (First Gulf) should have been aware of the location of the sub-floor pipes. Even if there were drawings showing the revised location of the pipe in question, such drawings would likely not detail the length of pipe, located in the aggregate, that is at a shallow level. This would have been within the knowledge of the plumbing contractor and should have been known by the general contractor.
[61] Furthermore, I have no reason not to accept the evidence of Mr. Vetter that, in his many years of experience, a flooring contractor would simply not expect to encounter a shallow pipe running through the aggregate layer as much as ten feet from the rainwater leader connected to it.
[62] Although Mr. Calvi was not there for the pour, when shown photographs of the damaged pipe and its location in the aggregate layer, Mr. Calvi said that he had never seen storm pipes set like that.
[63] To similar effect is the opinion of Mr. Kyle who notes that the subject pipe was installed “quite shallow” rather than in the sub-grade, where it should have been. In the absence of any discussion regarding locates or whose responsibility it would be to provide them, Mr. Kyle’s opinion is that it would have been the flooring contractor’s responsibility.
[64] Geoffrey Kinney, the Executive Director of the Concrete Floor Contractors Association, was succinct in a report which he provided to the defendant:
“… the Constructor should have identified the fact that there were plastic pipes buried immediately below the slab and within the depth of the steel form stakes at any of these Construction Joint locations.”
[65] I find that the general contractor had an obligation to be informed about the location of shallow underfloor pipes and to bring this to the attention of United Floor. Despite what Mr. Felice believes may have been told to United Floor, in the absence of any drawings, minutes or other documentation to indicate that United Floor was told, I cannot conclude that First Gulf discharged its responsibilities.
[66] To the extent that the evidence of Dr. Nowzartash, the academic, conflicted with that of Mr. Kyle and Mr. Kinney, the seasoned practitioners, I prefer the evidence of Messrs. Kyle and Kinney. The assertion by the plaintiff is that United Floor should have been more proactive. But given industry practices, as described by Mr. Kyle, Mr. Kinney and Mr. Vetter, I cannot agree that United Floor had an obligation to do more than it did to determine where the pipes were.
Did United Floor Meet the Standard of Care?
[67] Unless there were other factors which show that, despite not having been told about the location of the pipes, United Floor should not have installed the forms using stakes in the location of the damaged pipe, the plaintiff cannot succeed.
[68] As already discussed, the failure of the general contractor to tell United Floor there were shallow pipes located underneath the construction joint in the concrete floor would not excuse United Floor if there were other factors which should have alerted United Floor to that possibility.
[69] The location of the rainwater leader was something that United Floor should have seen. There was nothing in the evidence given to suggest that United Floor did in fact turn its mind to the likelihood that the construction joint was immediately above the lateral drain line.
[70] But even accepting that United Floor should have been aware of the location of the pipe relative to the construction joint, the evidence is that the pipe should have been located in the sub-grade. While the presence of a shallow pipe might be expected close to the column on which the rainwater leader was located, the evidence adduced by the plaintiff did not persuade me that it should have been anticipated that there would be a shallow pipe ten feet away from the column. Quite the contrary. According to Mr. Kyle, drainage pipes would normally be set 2 to 3 feet into the sub-floor. Even if the stakes used were 18 inches long, with a slab thickness of 7 inches and an aggregate layer that (according to Mr. Felice) would be between 6 and 12 inches thick, there would have been no reason for United Floor to be concerned that that ten feet away from the rainwater leader there was a risk that a stake would puncture a pipe.
[71] Both Mr. Kyle and Mr. Kinney, industry experts, are of the opinion that United Floor met the standard of care.
[72] I agree with them. The plaintiff has failed to prove that United Floor was negligent.
Damages
[73] The parties have agreed damages of $951,936.11 for damage to stock resulting from the flood and emergency remediation costs.
[74] In addition during the course of final argument, Mr. Monaghan on behalf of the defendant accepted that the consulting fees of Newtron Group ($9,750.49) and invoices from WM Groves Ltd ($8,517.88) should also be considered part of the damages assessment.
[75] The defendant contests the fees of Matson, Driscoll & Damico Ltd., forensic accountants and of Giffin Koerth, the consulting engineering firm that investigated the cause of the loss (and subsequently provided an expert report). The defendant argues that these fees are disbursements which should be included in a claim for costs.
[76] Mabe argues that pre-litigation engineering fees associated with identifying and ascertaining the cause of the flood and accountancy fees incurred by Mabe’s property insurer on its behalf and paid for by Mabe’s insurer are special damages necessitated by the flood.
[77] No attempt was made to break down the amounts charged for what could be described as services performed in contemplation of litigation as opposed to amounts incurred to limit the loss and repair the damage. The former would be litigation costs. The latter would be damages.
[78] I have reviewed the accounts of the forensic accountants and the engineers. The accountants’ invoices are cryptic in their descriptions of work done. The services performed appear to be primarily directed at evaluating Mabe’s insurance claim and quantifying Mabe’s damages claim. $31,132.30 was charges in total. In my view these are litigation expenses (costs), not damages.
[79] The work done by the engineers involves investigation of the cause of the flood and implementing remedial measures. Some of these expenses are remedial and some of them are for the purposes of anticipated litigation. The total incurred was $33,357.50. It is difficult to estimate with precision what portion is costs and what portion damages. Recognising that there is a degree of arbitrariness in selecting a figure, I conclude that $12,500 of Giffen Koerth’s fees should be included in the damages assessment. The balance would be a disbursement.
[80] As a result, damages are assessed at $982,704.48.
[81] Given the finding that the defendant was not negligent, no damages are payable.
Costs
[82] I encourage the parties to agree on the issue of costs. Should they not be able to do so, I direct as follows:
a. The defendant should serve a bill of costs on the plaintiff, accompanied by written submissions within 21 days of the release of these reasons;
b. The plaintiff should serve its response on the defendant within 14 days thereafter;
c. The defendant should serve its reply, if any, within 7 days thereafter;
d. In all cases, the written submissions should be limited to 4 pages, plus bills of costs; and
e. The plaintiff is invited to submit the bill of costs it would have presented to the court had it been successful in the action.
[83] I would ask counsel for the defendant to collect copies of all of the parties' submissions and arrange to have the package delivered to me at the Court House, 5 Court Street, Kingston K7L 2N4 as soon as the final exchange of materials has been completed. For the avoidance of doubt, no materials should be filed individually; rather, counsel for the defendant should assemble a single package for delivery as described above.
Graeme Mew J.