ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-16-3291-SR

DATE: 20190816

B E T W E E N:

Pentalift Equipment Corporation

Anna M. Esposito and Neeta Sandhu, for the Plaintiff

Plaintiff

• and -

1371787 Ontario Inc. o/a Pro-Door & Docksystems

Brandon O’Riordan, for the
Defendant

Defendant

HEARD: May 14, 15, 16, 17 and 21, 2019

REASONS FOR JUDGMENT

Tzimas J.

[1] The plaintiff, Pentalift Equipment Corporation, (Pentalift), commenced an action against the defendant 1371787 Inc. o/a Pro-Door & Dock System, (Pro-Door), to collect the sum of $67,884.50, plus interest and costs for unpaid invoices for the supply of loading dock equipment and accessories, including the supply of 33 model RVR32 Vehicle Restraint Safety Systems (RVR32s).

[2] Pro-Door did not dispute that it owed money to Pentalift but defended the action on the basis that the RVR32s that were supplied were defective. Pro-Door brought a counterclaim against Pentalift for damages for breach of warranty, negligence, and negligent misrepresentations in the sum of $299,000, plus interest and costs. It asked that any amounts that are found to be payable by Pro-Door to Pentalift be set off against any damage award it receives.

[3] For the reasons that follow I have come to the conclusion that the RVR32s supplied by Pentalift were not defective and that Pentalift did not breach its warranty or act negligently in any way. Pentalift is entitled to judgment and Pro-Door’s counterclaim is dismissed.

BACKGROUND FACTS

[4] The following facts are not materially in dispute:

a) Pentalift is a manufacturer of loading dock equipment, including vehicle restraint systems.

b) Pro-Door is a dealer of dock equipment. It was hired by Hopewell Logistics Inc., (Hopewell), to supply and install 20 vehicle restraint systems at Hopewell’s Distribution Centre. Pro-Door also managed the operations of Hopewell’s Distribution Centre.

c) Hopewell is a third party logistics provider for Mondelez Food Products Canada (“Mondelez”). Mondolez has a relationship with among other food suppliers, Kraft Foods Ltd. and Cadbury. Hopewell’s Distribution Centre operates 62 dock doors on a 24 / 7 basis and receives everything from every day trucks to cargo containers for ships and trains.

d) Corlan Electric Inc., (Corlan), was the general contractor hired by Mondelez to support its capital financing. Corlan qualified Pro-Door to be Hopewell’s supplier. At all material times, Pro-Door received its instructions from Hopewell.

e) Restraint systems are used at loading docks to secure vehicles that are there to load or unload product. They are either mounted on the dock wall or they are secured to the ground. Either way, they are essential to the safety of the dock workers and the truck drivers, as they are used to prevent a truck from rolling away from the dock as the loading and unloading occurs.

f) The RVR32 is a vehicle restraint system that is mounted on the wall and that secures a truck by hooking into the truck’s rear impact guard. It has two components: i) the vehicle restraint; and ii) the communications system and control panel. The system is mounted on the wall of the dock and essentially hooks in the truck that is there to load or unload. More particularly, the system operates in the following way:

i. As a truck reverses into the loading dock, the truck’s rear impact guard, also known as the ICC bar, (the “ICC Bar”) impacts directly on the RVR32. The impact causes the restraint to adjust to the truck’s height. Sensors in the system are activated as well to permit the height adjustments to take place.

ii. A dock worker then activates the RVR32’s hook by pushing a button on the control panel inside the dock. The hook rotates upwards to capture and secure the ICC bar.

iii. Once the hook secures the ICC Bar, inside the Dock, the LEX deluxe light changes from red to green. This tells the dockworker that the truck is secure and that the forklift can proceed to load or unload as the case may be.

iv. Outside of the dock, the truck driver sees a red light and warning sign indicating not to move the trailer because of the loading / unloading underway.

v. Once the task is completed, the dock worker pushes a button on the control panel inside the dock to lower the hook and effectively to disengage it from the ICC Bar. The lights both in and out of the dock change as well signalling to both the dock worker that the truck driver that the truck trailer is free to go and that is no longer hooked to the dock.

g) In 2015, Hopewell decided that 50 of its ageing restraint systems had to be replaced. The project was divided into phases. The first phase would see the replacement of twenty systems, with the balance to follow in a subsequent phase or phases.

h) Following a bidding process, Hopewell, with Corlan’s approval, selected Pro-Door to supply the new restraints. Pro-Door turned to Pentalift for the purchase of the restraints.

i)Pentalift and Pro-Door had an existing relationship. In 2009, Pro-Door submitted a Credit Application to Pentalift which was accepted and contained the following terms:

i. payment of each invoice due by the 30th day following the date of each invoice, (the “Due Date”);

ii. an interest rate of 24% per annum to accrue on unpaid invoice balances after the Due Date; and

iii. no warranties, expressed or implied, including any implied warranty of merchantability or any implied warranty of fitness for a particular purpose, exist on any order.

j)In keeping with the Agreement, Pro-Door made a number of purchases for dock equipment from Pentalift for use at various locations. The parties agreed that none of the locations where the equipment was installed was nearly as busy as Hopewell’s Distribution Centre.

k) On or about September 17, 2015, Pro-Door submitted a ‘Pentalift RVR32Vehicle Restraint System Site Information Sheet’ to Pentalift for a quotation for the purchase of 33 RVR32 Systems. Twenty of them were for Hopewell, 8 were for another project and 5 were overstock for Pro-Door’s purposes.

l)On or about September 23, 2015, Pentalift issued the quotation for the supply of 33 RVR32 Systems. Pro-Door accepted the quotation the following day and submitted Purchase Order No. PO22122 to Pentalift for the purchase of the 33 RVR32 systems for a total price of $106,462.95, inclusive of HST.

m) On December 11, 2015, Pro-Door sent a courier to Pentalift’s facility to pick up 15 of the RVR32 systems and Pentalift issued the corresponding invoice. That invoice is not in contention.

n) On December 15, 2015 Pro-Door picked up the remaining 18 systems and Pentalift issued its invoice.

o) The 33 RVR32 systems that Pentalift delivered to Pro-Door were in accordance with Pentalift’s standard features, operating range and properties. The RVR32s were not altered in any way from Pentalift’s usual course of manufacturing the particular model. Nor were they made to measure for Hopewell’s particular needs.

p) Pro-Door made various other equipment orders from Pentalift in the months of January, February, and March. These orders were not for Hopewell and the quality for the product provided is not in dispute.

q) The outstanding balance to Pentalift, which as admitted by Pro-Door is as follows:

Invoice No.

Invoice Date

Invoice Amount

Description

156116

Dec. 15, 2015

$58,066.63

18 x RVR32 Systems

157330

Feb. 17, 2016

$2,354.36

4 x 2 DIA (1/4 Wall) Cylinder and freight

157668

March 3, 2016

$2,097.14

25 x brake band assembly, band, brake

157867

March 14, 2016

$4,263.08

1 x 72” W x 16”L x ½” bare lip

157868

March 14, 2016

$309.62

1 x dock leveller 6’ wide x 8’ long

157958

March 17, 2016

$793.67

4 x lifting arm weldment

Outstanding Balance

$67,884.50

r) The parties agreed that Pentalift’s RVR32s came with a standard manufacturer’s warranty that product would be free from defects in material and workmanship under normal use for a period of one year from the date of shipment of the equipment. In the event that the product proved to be defective in material or workmanship, Pentalift would, at its option, either replace the product or the defective portion without charge to the purchaser, or alter or repair the product, on site or elsewhere, without charge to the purchaser. The Warranty also:

i. Specifies that a fully completed Product Registration Card is required by Pentalift prior to the review of processing of any warranty requests or claims;

ii. Specifically does not cover “parts requiring replacement due to damage resulting from abuse, improper operations, improper or insufficient lubrications, lack of proper protection or vehicle impact;

iii. Specifically does not cover any failure caused by improper installation, misapplication, overloading, abuse, negligence or failure to lubricate and adjust or maintain the equipment properly and regularly; and

iv. Expressly states that: “THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF, AND THERE IS NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE”.

s) The RVR32s were installed by Pro-Door at Hopewell’s Distribution Centre over 10 days between January 13, 2016 and February 18, 2016.

t) The parties’ evidence diverges on the nature of the complaints that followed, their respective responses, and the ultimate outcomes.

EVIDENCE and POSITION OF THE PARTIES

a) Pentalift’s Evidence and Position

[5] Pentalift submitted that the RVR32s that were delivered to Pro-Door for their use at Hopewell’s Distribution Centre were free from any defect. All 33 RVR32s were manufactured according to the same standard specifications, using the same steel, with the same carbon content and in accordance with industry standards and requirements.

[6] Pro-Door selected the particular model for Hopewell of its own accord and without any consultation with Pentalift. Pro-Door had purchased the particular model on numerous previous occasions and was familiar with its features. Moreover, at no time in the past had it encountered any difficulties or made any complaints with the RVR32s.

[7] Pentalift called evidence from Ms. Rachel Verkerke, an Inside Sales Representative at Pentalift who handled Pro-Door’s order, Rick Rowan, an Engineering Manager at Pentalift and previously a Designer for Pentalift, and Mr. Clint Glass, the Vice-President of Pentalift.

[8] Pentalift also relied on the evidence of Mr. DeGasperis, the Owner and Operations Manager of Pro-Door and of Jeremy Olsen, the Safety Supervisor of Hopewell, to round out and corroborate its position and claim for judgment.

[9] Pentalift asked the Court to dismiss Dr. Mehdi Taheri’s expert evidence, which was called by ProDoor, as either inadmissible or unreliable, biased and seriously flawed, such that it should be given no weight whatsoever.

[10] Ms. Verveke, confirmed that Pro-Door selected the RVR32s model of its own accord. Ms. Verkerke was the main point of contact for Mr. DeGasperis when he placed orders with Pentalift for equipment and she confirmed that Pro-Door was Pentalift’s client since 2009 when Pro-Door submitted a credit application.

[11] She explained that typically, Mr. DeGasperis would either phone or e-mail Ms. Verkerke for a quote for a specific piece of equipment and she would prepare a formal quotation for his review and approval. There was nothing remarkably different with this order. Mr. DeGasperis followed the same process. He accepted Pentalift’s quotation and proceeded with the submission of a Purchase Order. The order stipulated that the buyer is to make sure that they have reviewed all the specifications and information provided for the order and that the order reflects what the buyer requires.

[12] In accordance with the Pro-Door’s Purchase Order, Pentalift proceeded to manufacture the RVR32s. Ms. Verkerke could not recall Mr. DeGasperis raising any issues with her about any other RVR32s previously purchased by Pro-Door.

[13] Mr. Rowan testified extensively with respect to the design of the RVR32 System. He explained that there are various types of restraints in the market and that the materials that are used must be strong enough to hold a truck back from moving away. He also described the requirements of the Canadian Standards Association and identified the required properties for the steel that is used to make the restraints. He said that the RVR32s met those requirements.

[14] Mr. Rowan testified that he was the one who was responsible for the design of the RVR32s. He explained that the mechanical features were standard and could not be customized to the needs of a particular client. The only aspect that a client could customize was the electrical device to meet the particular voltage demands. Finally, he described the yield strength and the strength in the steel materials used to manufacture the particular model.

[15] Specifically with respect to the 33 RVR32s that were delivered to Pro-Door, Mr. Rowan explained that they would have been tested before they were delivered to Pro-Door.

[16] On the subject of the gouging, Mr. Rowan could not explain the cause. He said that Pentalift had made upwards of 600 hundred restraints and had not encountered any gouging problems. He explained that the factors that could explain the gouging included the strength of materials used and their resistance to deformation, the installation method, the particular use and the frequency of that use, the sharpness of the ICC device on trucks, and the speed with which trucks backed into the restraint. He further suggested that if the rear guard to a truck hit the restraint at the same point all the time, eventually the system would be weakened.

[17] In cross-examination, Mr. Rowan admitted that over the years there were several a changes to the RVR32s. He described the changes as evolutionary that touched on everything from the switch-brand, the switch mechanism, the design of the hook, and the grade of the steel. In response to questions about the carbon content, he explained that the carbon content in the steel could vary from shipment to shipment. Considerations that went into the selection of the steel and its carbon content included the availability of a particular grade, the weldability of the steel and its brittleness. Upgrades to a model would occur in reaction to various considerations, including the supplier’s availability of materials, the cost of materials, and innovations in a particular design.

[18] Mr. Rowan agreed that the RVR32s manufactured by Pentalift after 2016 and following Pro-Door’s order were made with new and enhanced materials. He explained that the stronger steel used since 2016 was not readily available prior to that time.

[19] Finally, with respect to the defence’s theory concerning the inadequacy of the strength and hardness of the RVR32s, Mr. Rowan agreed that the RVR32s that were delivered to Pro-Door were not as strong as what Pentalift produces today but that at the time, what Pro-Door received was equipment with standard features. Moreover, at no point did Pro-Door advise Pentalift of the specific application of the RVR32s. Nor did it make any inquiries as to whether the RVR32s had adequate capacity to meet Hopewell’s specific needs.

[20] The next person to testify was Mr. Glass. He explained that he had worked closely on various orders for Pro-Door and that Pro-Door was a decent customer. At the height of Pentalift’s relationship with Pro-Door, Mr. Glass thought that they processed 30 orders a year.

[21] Mr. Glass reviewed the purchase orders pertaining to Pro-Door and confirmed the outstanding sum of $67,884. He further confirmed that not all of the invoices related to the 33 RVR32s.

[22] With respect to the selection of restraint equipment, Mr. Glass explained that typically, dealers, such as Pro-Door will receive directions from the end user concerning the particular needs. Restraint systems may be manual or they may be automated. As well, the restraint may operate with either an impact or a non-impact mechanism. Manual systems are the cheapest on the market.

[23] A dealer, such as Pro-Door could ask a manufacturer such as Pentalift about various model options and it could go as far as seeking a recommendation for the purchase of a particular piece of equipment. However, such consultations are typically very rare. Mr. Glass went on to explain that Pentalift ships locally and internationally and does not know who the end-user is; that is the dealer’s responsibility.

[24] Mr. Glass also explained that it is for the dealer to consider the height of the docks, the mounting surface for the restraints, whether a wall can withstand the restraint, the types of trucks that will be backing up into the restraint system, the effect of tailgates on trucks for the restraint sensors, and last but not least, budgetary constraints. Specifically in relation to cost, Mr. Glass referred to equipment from Rite Hite and Metro but said that their equipment had different specific features and were far more expensive than Pentalift’s RVR32s.

[25] With respect to Pro-Door’s purchase order that is the subject of this claim, Mr. Glass testified that at no point did Pro-Door provide Pentalift with any specifications. He explained that the RVR32s had standard features that came with certain accessories but that they were manufactured in the same manner at all times. He further explained that Pro-Door would have been aware of the RVR32’s standard features because they had purchased them in the past.

[26] Turning to the specific restraints that were delivered to Pro-Door, Mr. Glass confirmed that there were some initial difficulties when the systems were installed that related to the hooking ranges and the electrical connections. The gouging complaint surfaced with respect to three of the systems. Another three may have had some accelerated wear and tear but it was not until June 2016 when Mr. DeGasperis complained about all twenty systems. Of the twenty systems at Hopewell, 14 did not exhibit any gouging. There were also no complaints for the eight systems that were installed at one of Pro-Door’s other customers or the five that Pro-Door ordered for additional stock.

[27] Mr. Glass explained that Pro-Door was responsible for the installation. On the electrical issue, that was a problem for Pro-Door to resolve. For the hooking, once Pentalift understood the nature of the problem it adjusted the sensor range for the operation of the hook. As far as Pentalift knew, that adjustment took care of the problem.

[28] On the subject of the gouging, Mr. Glass said that initially they were advised of the problem for one of the twenty systems that were installed at Hopewell. He believed that the complaint was brought to his attention in April of 2016. Mr. Glass took the court through multiple e-mail exchanges with Mr. DeGasperis about this specific problem. He highlighted Pentalift’s willingness to develop a kit that would address the particular concern. The kit involved the welding of extra steel onto the restraints to provide more surface space for the ICC bars to contact.

[29] Leading up to the kit proposal, Mr. Glass said that in his four years with Pentalift this was the first time he had heard of such a problem and he considered it to be an isolated incident. He also believed that there would be an easy remedy to the situation.

[30] In an e-mail communication dated May 27, 2016, Mr. Glass proposed that the kit be applied immediately to the three docks that had problems, that Pro-Door have seven days to pay its outstanding account, that Pentalift would take back from ProDoor the five unused systems and would waive the 25% restocking fee, and that Pentalift would reinstate ProDoor’s 30 day credit terms once the account was completely cleared of the past due invoices. Pentalift refused to agree to credit Pro-Door $5,000 on account of the additional labour costs that Pro-Door said it incurred to fix the electrical and the hooking range issues.

[31] In the communications that followed, Mr. DeGasperis asked that the proposed kit be applied to all twenty systems and he refused to make any payment until the installation of the kit was completed. As these negotiations were underway, Mr. Glass learned to his dismay that Mr. DeGasperis had written to Hopewell to advise that Pentalift was refusing to fix the restraints, that he did not know how the gouging would be fixed, and that if necessary, Pro-Door would either come up with its own solution or remove the systems and replace them with knew ones. Mr. Glass could not understand why Pro-Door would “throw us under the bus” in its communications with Hopewell.

[32] Eventually, Pentalift indicated that it would be willing to undertake the kit installation at its own material and labour costs for all twenty systems. Mr. Glass estimated that the total cost to Pentalift would be approximately $2,000 and that it would take about a week to install the kits to the 20 systems. Mr. Glass was puzzled by the request since there were no complaints for the remaining 17 systems. The pre-requisite for the fix however was Pro-Door’s confirmation that it pay the outstanding invoices.

[33] In the course of these exchanges, Mr. Glass explained that he was led to believe that Hopewell had not yet paid Pro-Door for the 20 systems. Mr. DeGasperis told Mr. Glass repeatedly that Pentalift would get paid when Pro-Door got paid. In fact, Mr. DeGasperis’ representations on this were misleading because Hopewell, through Corlan Electric had gone ahead and paid Pro-Door for the 20 systems. Mr. Glass learned of this at the discoveries for examination.

[34] Mr. Glass made it abundantly clear that in Pentalift’s view there was no defect in the systems and that the proposed offer was intended as a goodwill gesture and in recognition of the longstanding relationship between the two companies. Mr. Glass made that position clear as early as April 20, 2016, when he advised Pro-Door that the gouging of the steel was not a product defect or a warranty issue covered by Pentalift’s Warranty. Mr. Glass advised Pro-Door that in his view the gouging had to be the result of an irregular impact guard or ICC bar.

[35] Mr. Glass concluded his testimony with the explanation that his last exchange with Mr. DeGasperis occurred on or about July 5, 2016, when Mr. DeGasperis cancelled a meeting intended to come to a resolution of the dispute. It was not until late 2016 or early 2017 that Pentalift learned that ProDoor had removed all of the systems from Hopewell’s facilities and replaced them with ground-mounted restraint systems from Metro Dock.

[36] In addition to the evidence led by the plaintiff’s various witnesses, Pentalift highlighted the following admissions from Mr. DeGasperis’ and Mr. Olsen’s testimony that they concluded supported their position:

a. Pro-Door submitted a bid to Hopewell for Phase I in June, 2015, specifically for the supply and installation of 20 RVR32 Systems and well before it had any communications with Pentalift about the needs of Hopewell’s Distribution Centre;

b. Hopewell relied on Pro-Door’s expertise for the selection of an appropriate restraint system and on that basis Pro-Door and Mondelez entered in an agreement for the Phase I installation of the restraints; it had no contact whatsoever with Pentalift;

c. Mr. DeGasperis was not certain if the RVR32 Systems could meet the needs at the Distribution Centre but he alone decided to take the risk; and

d. Mr. DeGasperis admitted that he reviewed the Owner’s Manual which stipulated Pentalift’s recommendation that users of the restraint device review the means of attachment to a transport vehicle, which included the ICC bar.

[37] Pentalift also asked the court to draw a negative inference from the fact that although Mr. DeGasperis gave an undertaking to produce a copy of the Bid and the Phase I Agreement with Mondelez he failed to do so. Pentalift’s inability to review those documents was to its detriment as it was deprived of the opportunity to understand the precise details of Pro-Door’s commitment and undertaking with respect to the restraints and its specific selection of the RVR32s.

b) Pro-Door’s Position

[38] Pro-Door claimed that the problems with the RVR32s surfaced almost immediately following their installation. Although Mr. DeGasperis admitted to taking a risk with the use of the RVR32s for Hopewell’s needs, he blamed the ultimate breakdown of the relationship between Pentalift and Pro-Door on Pentalift’s refusal to remedy the gouging problem and on its insistence that it be paid.

[39] Mr. DeGasperis said repeatedly that Pentalift only cared for the money and was not interested to find a solution to the gouging problem. Eventually, Hopewell lost its patience with what it perceived to be Pro-Door’s inability to resolve the gouging problem and rejected the RVR32s altogether. Pro-Door had to replace the RVR32s at its own cost or face litigation.

[40] In Pro-Door’s view, Pentalift breached its warranty because the RVR32 Systems were defective. Pro-Door relied on the evidence led by Dr. Tahir for that conclusion. Moreover, Pro-Door submitted that Pentalift was made aware of Hopewell’s specific needs and that if it were not happy with the outcome Hopewell would demand the repair or replacement of the systems. As a result, Pro-Door claimed that it was entitled to damages, not only for costs incurred to replace the RVR32 Systems with a ground mounted product from Metro Hook Restraints, but also for the lost opportunity to be awarded the subsequent phases of Hopewell’s restraint replacement project.

[41] Specifically with respect to the evidence underpinning Pro-Door’s position, as already mentioned, the Court heard from Mr. Olsen, the Safety Supervisor for Hopewell, the expert, Dr. Tahir and Mr. DeGasperis.

[42] Mr. Olsen explained the bid process and the Hopewell’s needs. He went on to explain that within a few days of the installation of the restraint systems, they encountered problems with the operations. Alarms were going off indicating that the restraints were not attaching properly. He also received reports of the restraints releasing prematurely and in some instances the restraints would not adjust for the height of the incoming trailer. The alarm issues surfaced within a couple days. The release problem surfaced within a week.

[43] Mr. Olsen said that he brought up the problems with Pro-Door immediately. He expressed frustration with these difficulties because a malfunctioning restraint system meant that the dock where that restraint system was located could not be used. Given the volume of traffic at the Distribution Centre, this was a real problem.

[44] Mr. Olsen believed that Pentalift came out to Hopewell’s Distribution Centre in the middle of March. He thought that they provided some suggestions on what was causing the issues and that they tried to repair the problems. He acknowledged that Pentalift made various adjustments to the sensors. They also installed spacers to prevent the trucks from coming too close to the building. In his view, none of these “fixes” resolved the problems.

[45] Mr. Olsen said that they continued to experience issues with the restraints and were prepared to work with anyone who could help them. He was under the impression that the funds for the RVR32s were withheld and would be withheld until the restraints were in good working condition. Mr. Olsen was not aware that Corlan Electric had gone ahead and paid Pro-Door for the Pentalift systems and he thought that might have an error. He was also not aware that Pro-Door was telling Pentalift that it could not pay Pentalift until it received payment from Hopewell or Mondelez.

[46] Mr. Olsen also said that around the same time as the difficulties with Pentalift’s systems, he began to consider his options for the remaining phases of the restraint replacements.

[47] In light of the continued difficulties with the RVR32s, Mr. Olsen said that they decided to try out a Metro Dock restraint for one of the docks. This was installed on June 7, 2016. That product performed as expected, with minimal issues. In the meantime, the problems with the Pentalift Restraints continued through the summer of 2016. He said that they “struggled through the summer”, using rubber wheel chalks to prevent trailers from sliding away. By October 2016 they started replacing the RVR32s with the Metro Dock restraints. He thought that the decision to replace the RVR32s was made in late May or early June of 2016.

[48] Mr. Olsen could not explain the reason for the alarms going off or for the hooking problem. He also agreed that eventually the “hooking issues” were cleared but he also thought that they reappeared. As far as the gouging was concerned, in his view, the restraints were damaged by the trucks that were jamming into them. He confirmed that Hopewell did not have any protocol on how the trucks should back into the docks. He thought it was possible that some trucks might be backing in too quickly. He also agreed that some trucks might have damaged ICC bars. Finally, he agreed that nobody inspected the trucks as they came into the Distribution Centre.

[49] Mr. Olsen said that he could not recall if he was advised of Pentalift’s proposed remedies. He also could not recall if he was ever aware that Pentalift never refused to address the issues though he agreed that he was never given the opportunity to consider Pentalift’s proposed kit. Instead he explained that by April 26, they had already started shopping around for another option. Mr. Olsen ultimately confirmed that he was not aware that Pro-Door was continuing discussions with Pentalift to work out a solution for the gouging.

[50] When Mr. Olsen was asked if the reason he started to look for other options was because of the information that Pentalift was refusing to fix the systems, he said: “I suppose it seems that way”.

[51] For the subsequent phases, Mr. Olsen confirmed that Pro-Door did not get the contract. Nor was ProDoor asked to provide a quote. Mr. Olsen did say that at the beginning of the original bidding, the expectation had been that as the successful bidder on Phase I, Pro-Door would undertake the subsequent phases, even though those would be subject to an independent bidding process. But he also agreed that the model they selected for the subsequent phases was not one that Pro-Door could supply.

[52] Going back Pro-Door’s successful bid, Mr. Olsen explained that they were attracted to that bid because Pro-Door proposed a wall-mounted restraint system. Pro-Door also identified the specific manufacturer of the restraint system. The competing bid proposed a ground-mounted restraint system, something that they did not want because they wanted to avoid the problems associated with snow and ice build-up at the foot of the mounts during the winter months.

[53] Mr. Olsen also confirmed that he relied on Pro-Door’s judgment on the selection of the RVR32s; he had no experience whatsoever with them. Mr. Olsen did not know if Pro-Door followed Pentalift’s recommendation that it consider Hopewell’s facility design, the nature of the truck fleets and their designs arriving at Hopewell’s Distribution Centre, and the ICC bars in use, before selecting a restraint system.

[54] Mr. Olsen also confirmed that unlike the advanced testing of the Metro Dock system, there was no advanced testing of the RVR32. Mr. Olsen also would not confirm whether Mondelez had a budget limit in mind for Phase I. He merely indicated that Modelez and Hopewell accepted Pro-Door’s bid.

[55] Mr. Olsen was asked about his knowledge of an alternative restrain system produced by Rite Hite. Although he said he was not familiar with all of the Rite Hite models he did indicate that Hopewell did not ask Rite Hite to bid on the replacement project because the Rite Hite restraints were significantly more expensive. He agreed that Pentalift’s system, installed, had an approximate price of $6,000 while Rite Hite’s system, installed, had an approximate cost of $10,000. He said that he never saw the price for the Metro Dock system. When shown an invoice from Metro dated September 20, 2016, Mr. Olsen agreed that the unit cost was $4,750.

[56] Finally with respect to the Metro Dock option, Mr. Olsen explained that although that system was ground mounted, they added a heating pad at the base to eliminate the problem with the snow and ice accumulation. He also agreed that they invited Rite Hite to bid for Phase II.

[57] The next person to testify was Dr. Mehdi Tahir, who was qualified as an expert in “materials failure and metallurgy”. He provided the court with his curriculum vitae, he said he understood his duty as an expert to be objective and he submitted an executed copy of hit his Acknowledgment of Expert’s Duty. He advised the court that this was the first time that he was testifying as an expert.

[58] Dr. Tahir prepared an expert report wherein he concluded that the gouging in the RVR32s was the result of a design defect and specifically in relation to the steel that was used to manufacture the RVR32 System. He explained that the steel material that was used for the carriage assembly did not have sufficient hardness to prevent the gouging.

[59] Dr. Tahir outlined his methodology. He said that when he carries out an independent investigation he performs a mechanical systems test and a materials systems test so that he might determine impartially the causation of either a materials or a mechanical failure. The mechanical testing system involves testing and analyzing the load applied to material to determine if the system in question is being misused. Typically, as part of that testing, Dr. Tahir will examine loss locations and review the components involved.

[60] Dr. Tahir also explained that when he conduct is analysis and investigation he would ask the client for documentation and important information; conduct witness interviews; attend at the incident loss location and document it; examine the component that failed at the loss location; examine exemplar components at the incident loss location; and if necessary, determine whether material testing needs to be carried out to determine if loading was excessive for a particular application.

[61] Having explained his usual methodology, Dr. Tahir then confirmed that he did not follow it in the development of his opinion for this matter. Specifically, he agreed that:

a) He did not carry out an independent investigation or onsite visit of the Distribution Centre;

b) He asked Pro-Door for “documentation and important information” but he did not verify if what he received was true. Nor did he undertake any independent review of any of the relevant documentation because Pro-Door did not provide him with anything;

c) He said that Pro-Door gave very little time to produce an opinion. He said that although he would have reviewed the relevant documentation had it been provided, he also acknowledged that he would not have had the time to produce his opinion in a timely manner;

d) He carried out a visual inspection of six RVR32 Systems at Pro-Door’s Facility on June 1, 2018;

e) He did not compare the RVR32s that were gouged to any of the 13 or 14 that were not;

f) His exemplar was a Rite Hite system that Pro-Door provided him; it was not even from one of the Rite Hite systems at Hopewell;

g) He retained Acumen to conduct a metallurgical analysis of a cut piece of 1 RVR32 System and a cut piece from Rite Hite;

h) He was not aware that Pro-Door installed the RVR32 systems at Hopewell in 2016. He said he was told that the systems were installed in 2017;

i)He believed that there were approximately eight systems that had gouging. He did not know the complaint related to only three systems;

j)He thought that the RVR32s were a new restraint system by Pentalift. He did not know that Pentalift manufactured over 600 RVR32s;

k) He was led to believe by Pro-Door that the Pentalift restraints installed at other facilities exhibited similar damage to the incident restraints installed at Hopewell’s Distribution Centre;

l)He did not carry out independent witness interviews;

m) He did not investigate the application of the RVR32s at the Distribution Centre;

n) He concluded that the installation and application of the RVR32s were likely not factors in the causation of the problem but he never was in a position to evaluate the installation;

o) He was unable to explain, even with respect to the 6 RVR32s that he did examine why only three had gouging while the other three had only wear and tear issues;

p) He drew conclusions about Pentalift’s consideration of ICC bars without the benefit of any independent information. He concluded in particular that Pentalift must have failed to take into account the various hardness of the ICC bars, without any evidence to support what Pentalifit did or did not consider when it designed the RVR32s;

q) He did not undertake any independent inquiry to determine how the RVR32s were removed from the Distribution Centre to Pro-Door, or how they were stored in the period between the fall of 2016 and his examination in June 2018. He agreed that the systems he saw might have been damaged when they were ripped out of the Distribution Centre;

r) He was not aware of the actual service loads that were applied to the RVR32s at the Distribution Centre;

s) He did not consider the types of trucks that came to the Distribution Centre or the types of ICC bars on those trucks. He did agree that a damaged ICC Bar would cause it to have a harder surface than an ICC bar that is not damaged and that accordingly, a damaged ICC bar would affect the restraint system on impact;

t) Finally, he failed to consider, much less, rule out other probable causes.

[62] Having regard for the metallurgical analysis of the steel used in the RVR32s, Dr. Tahir hypothesized that since the wear and tear was clustered on the sloped surface of the restraint, the gouging was caused by a sharp ICC Bar that hit the slope of the carriage.

[63] Dr. Tahir conceded that an “apples to apples” analysis would have required a comparison between the RVR32s that had gouging in them and the RVR32s that did not have any gouging. He was reluctant to agree that the comparison between an RVR32 and the Rite Hite model amounted to an “apples and oranges” analysis.

[64] As between the carbon content in the RVR32s and the Rite Hite Exemplar, Dr. Tahir reported a 19% difference, with the RVRs having a low carbon content and the Rite Hite having a medium carbon content. He did not however know that the RVR32s met the industry mandates and requirements. Nor did he seem familiar with the existence of any standards.

[65] Mr. DeGasperis was the last witness to testify. He confirmed that he took a risk with the Pentalift restraints and remarkably, he said that on more than one occasion during his testimony. He said that Pentalift gave him a good price, he had a good rapport with Pentalift, and although he had reservations because the RVRs were a new product, he went ahead with the order. He said that he did not consider other manufacturers.

[66] Mr. DeGasperis said that he spoke to Scott McCorquodale, who he thought was a sales guy at Pentalift in the late summer, early fall of 2015, to obtain reassurances that he would not have any problems with the RVR32s and he obtained those reassurances. He asked Mr. McCorquodale if he was comfortable supplying so many units and he said that he did not see any problem. He believed that he and Mr. McCorquodale met at the Distribution Centre to fill out the Site Information Sheet and to get the order going. Mr. DeGasperis admitted that he had used the RVR32s at other locations, though he conceded that those other locations had smaller operations. He specifically said that the Hopewell Distribution Centre was a very busy place and that the order “was a guinea pig job to see if we would expand to other places”.

[67] Mr. DeGasperis described the problems he had with this project as ten times greater than anything else that he had encountered. He explained that there were complaints right away. At first, Pro-Door tried to make adjustments on their own. When they realized that the problems were more serious, they called Pentalift.

[68] Mr. DeGasperis explained that the light switches were not working and that the hooks were not picking up the ICC Bars properly. He said that all of the twenty systems had this problem. He said that Pentalift was throwing ideas at them but they could not fix the problem for over a month. He went on to explain that some of Pentalift’s “fixes” worked for a while but then the problems re-emerged.

[69] Mr. DeGasperis said that the gouging started to appear in February / March of 2016. He described the problem as progressively getting worse. He admitted that Pentalift was only advised of this problem two months into its first discovery. At a later point in the testimony Mr. DeGasperis thought that Pentalift was advised of the gouging as soon as it was discovered.

[70] Mr. DeGasperis testified that he was under extreme pressure from Hopewell and Mondelez. At the same time, while Mr. DeGasperis was trying to fix the restraints or obtain replacements, in his view, Pentalift only cared about getting paid. Mr. DeGasperis expressed the concern that if he paid Pentalift, they would walk away and not attend to the repairs. He took Mr. Glass’s responses to mean that the problems they were encountering were Pro-Door’s and that they had nothing to do with Pentalift.

[71] On the subject of the kit, he said he never saw it and Pentalift told him nothing about the kit. He admitted that there was a lot of yelling and many heated conversations. It came to the point where he was no longer interested in any repairs or restorations. When Mr. DeGasperis was asked about what he understood Pentalift’s repair proposal to be, he responded that Pentalift wanted to see the money and he wanted to see the restraints operating properly. He also admitted that by late April he had started discussions with Metro Dock for the replacement of the systems.

[72] Mr. DeGasperis agreed that he did not discuss Pentalift’s proposed kit repair with Hopewell and with Mr. Olsen in particular. He did not see the point because Hopewell was very unhappy and they were done with Pentalift. In cross-examination he described Pentalift’s proposal as a crazy idea that he was not going to discuss with Mr. Olsen. He also indicated that Mr. Olsen considered him to be a pain in the neck.

[73] Mr. DeGasperis also said that for every e-mail exchange, Mr. DeGasperis thought there were ten conversations back and forth, Ultimately, Mr. DeGasperis explained his proposal to Pentalift that would have had Pentalift fix the systems at three docks, Pro-Door would then pay a substantial sum owing but hold back $10,000, the Pentalift would fix the remaining systems, and finally Pro-Door would release the remaining sum of $10,000. Eventually, Mr. DeGasperis said that they just came to an impasse.

[74] With respect to the payment from Corlan Electric, Mr. DeGasperis admitted that he was surprised they were paid but he chose not to say anything to Pentalift; if he did, he thought that Pentalift would disappear from the scene. Instead, Mr. DeGasperis decided that he would hold back that money to pay for the replacement systems that he had already decided to purchase.

[75] Mr. DeGasperis provided evidence on the cost of the Metro Dock restraints and his labour costs associated with the removal and replacement of the restraints. The total cost for the Metro Dock restraints came to $95,000. The labour costs were about $25,121. He also said that the RVR32s were brought back to Pro-Door’s facilities and remain stored in their shelves. He had no explanation for why Hopewell would agree to testing a Metro Dock restraint system but would not agree to having Pentalift try out the kit and the repair it was proposing. At one point in his testimony, Mr. DeGasperis suggested that there was nothing preventing Pentalift from showing up at the Distribution Centre to apply the kits.

[76] Finally, Mr. DeGasperis estimated the subsequent phases of Hopewell’s replacement project to have a value of $180,000 or so. He did not provide any supporting evidence for that estimate.

[77] On the subject of what information Mr. DeGasperis provided Dr. Tahir, he was less than forthcoming. He said that all 20 of the restraints were on the Pro-Door shelves but he could not recall what information he gave Dr. Tahir. He thought that he gave him an overview of the progression of the damages. He could not recall if he told Dr. Tahir that the RVR32s at other locations exhibited similar types of damages.

ANALYSIS

[78] The telltale to this dispute rests with Mr. DeGasperis’ admission that he took a risk when he selected the RVR32s for his client. Mr.DeGasperis chose to experiment with Pentalift’s RVR32w for Hopewell, where the demands and the high volume traffic likely exceeded the capacity that RVR32s could handle. Price and budgetary considerations must have played a significant role in Hopewell’s preferences and Pro-Door was looking to expand its business from smaller operations to higher volume customers like Hopewell. Mr. DeGasperis was candid about his concerns about the RVR32s’ capacity. He described Pro-Door’s purchase order to Pentalift as “a guinea pig job to see if we could expand in other places”.

[79] While in my review of the evidence I found myself somewhat sympathetic with Pro-Door’s predicament, the uncontested evidence was that Mr. DeGasperis knowingly took a risk with the RVR32s, in the hope that they would meet his customer’s needs. Unfortunately for Pro-Door the experiment faltered. When it came to finding a “fix” to the gouging, Mr. DeGasperis made matters worse by pursuing competing and contrary narratives as Pro-Door and Pentalift and Pro-Door and Hopewell. To Pentalift he said that Hopewell was applying tremendous pressure and was not paying for the product. To Hopewell he was saying that Pentalift was not interested in a solution. This did Mr. DeGasperis no favours. Ultimately, his relationship imploded with both Pentalift and Hopewell, resulting in losses for Pro-Door. That said, those losses were Pro-Door’s doing and I see no basis for visiting them or allowing for any kind of set-off against Pentalift’s claim.

[80] My findings and conclusions are based on my consideration and analysis of the following legal issues:

a) Did Pentalift provide a defective product and did it breach its warranty?

b) Was Pentalift negligent towards Pro-Door?

c) Is Pentalift liable to Pro-Door for Negligent Misrepresentation?

d) Did Pro-Door suffer damages?

e) Is Pro-Door entitled to an equitable set-off for the damages it says it suffered?

[81] Before I turn to consider these issues, the admissibility of Dr. Tahir’s evidence is a preliminary and pivotal issue to determine as it has a bearing on the totality of the evidence available for my consideration.

[82] Pro-Door retained Dr. Tahir to provide an expert opinion on the reason for the failure of the restraints, and more specifically the cause for the gouging. He concluded that: “The gouging failure of the incident Pentalift restraints was due to a design defect.” He went on to elaborate that:

“[t]he yield strength and hardness of the incident carriage material were inadequate for the intended service loads. As such, the contact loads applied by ICC bar of trailers resulted in severe plastic deformation and wear damage of carriage plates and led to gouging failure of the incident Pentalift restraints. As such, the carriage steel material was inadequate for its intended service loads.”

[83] Following an expert qualification voir dire, Dr. Tahir was qualified by this court as an expert in “materials failure and metallurgy”. He purported to understand his obligations to be independent and comply with his duties to the court.

[84] During the voir dire, Pentalift did not take serious issue with Dr. Tahir’s qualifications or with the methodology he said he followed to reach his conclusions. Even though Pentalift had reviewed Dr. Tahir’s report in advance of the trial, it did not raise any concerns with any bias or reliability.

[85] By the time of Pentalift’s closing submissions, Pentalift asked this court to deny the admissibility of Dr. Tahir’s evidence or alternatively, to give it minimal to no weight because of the serious flaws with bias and with the methodology that was actually followed. In support of its position, Pentalift drew the court’s attention to the directions in R v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, R v. Abbey, 2009 ONCA 624, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Buctouche First Nation v. New Brunswick, [2014] N.B.J. No. 266, Frazer v. Haukioja [2008] W.D.F.L. 4459, and Southcott Estates Inc. v. Toronto Catholic District School Board, 2009 3567 (ON SC), 2009 CarswellOnt 494, rev’d on other grounds 2010 ONCA 310, 104 O.R. (3d) 784, appeal dismissed, 2012 SCC 51, [2012] 2 S.C.R. 675.

[86] Pro-Door disputed Pentalift’s request to have Dr. Tahir’s evidence excluded. It urged the court to admit Dr. Tahir’s evidence, to find it reliable, and ultimately to accept his conclusion that the RVR32s were defective.

[87] Having regard for the role of experts, the criteria for the admissibility of expert evidence, and the court’s ongoing obligation to be a gatekeeper of the evidentiary process and exclude prejudicial evidence throughout the trial, I have come to the conclusion that Dr. Tahir’s evidence, while admissible, is only of minimal value and cannot be given any weight because of its fundamental flaws and unreliability. Since I heard his testimony, I see no prejudice to the trial to admit the evidence, particularly since I do not intend to give it much weight, if any. That said, had I appreciated the magnitude of the flaws in Dr. Tahir’s opinion at the voir dire stage, I would have very likely declined to hear from him.

[88] More to the point, Dr. Tahir proved to be biased and either unable or unwilling to appreciate the nature of his duties to the court. When pushed on some of the more difficult questions, he said that he followed his client’s instructions. Substantively, although he purported to follow an objective methodology, he disregarded his own methodology, he accepted the limitations that were imposed on his work by Pro-Door and he did not question any of the information that was provided to him.

[89] Admittedly, given the lack of any substantial resistance by the plaintiff to Dr. Tahir’s evidence during the voir dire, the flaws with Dr. Tahir’s overall approach were not immediately evident as he purported to understand his obligations. The methodology that he said he generally followed also seemed to be promising. The problem with Dr. Tahir was that he actually did not follow or apply the standard methodology; charitably, he took a number of shortcuts so that he could meet his client’s deadline. Whether deliberately or because of inexperience, Dr. Tahir’s lost his objectivity almost from the get go.

[90] Regrettably, it was not until his cross-examination that the magnitude of the deficiencies became obvious. I will not repeat the admissions Dr. Tahir made about what he did not do or how he undermined his own methodology. Those were listed above in the summary of his testimony. I will however note my dismay at his defensiveness as he was confronted with each of his failures in his analysis.

[91] The progression from a voir dire, where Dr. Tahir came across as objective and committed to his duty to be impartial to somebody who became defensive and lost all perspective on his role as an expert, reminded me of the direction in Bruff-Murphy v. Gunawardena, 2017 ONCA 502 that a trial judge’s gatekeeper role is ongoing and that even after allowing an expert to testify, a trial judge must continuously assess whether the expert’s testimony risks trial fairness as it unfolds. If it does, the judge must take action:

[16] [T]he court’s residual discretion to exclude prejudicial evidence is an ongoing one that continues throughout trial. It may be involved if prejudice manifests after initially admitting the evidence. Thus, … the court has residual discretion [under this ongoing gatekeeper function] to exclude expert evidence even after admitting it, if late in the trial prejudice emerges that was not apparent at the time of admission.” [Emphasis added].

[92] Of all of Dr. Tahir’s omissions, I found it especially troubling that he would not question the information he received from Pro-Door, that he did not conduct any interviews whatsoever to gain an understanding of the problem at hand, that he did not seek to meet with Pentalift to gain even an elementary understanding of the RVR32 and how they were intended to operate, that he would make unsupported assumptions about Pentalift’s manufacturing decisions and designs, that he would not seek out locations where the RVR32s were operating without any difficulty to compare and contrast his investigations, that he was unaware that the RVR32s met the industry mandates and requirements, and that he failed to visit Hopewell or to interview anyone at Hopewell to gain an understanding of that operation.

[93] Had Dr. Tahir undertaken these essential steps, which even he said would ordinarily be part of his methodology, he might have learned that Pro-Door’s complete order was for 33 systems and not 20, that the steel that Pentalift used for the manufacture of the RVR32 met the industry standards, that there were 14 systems that Pro-Door installed at Hopewell that did not exhibit any gouging, that Pentalift had manufactured and sold over 600 RVR32s and had never heard of any gouging problem, and he may have discovered that there were no reported problems with the eight systems that Pro-Door installed at another location contemporaneously with the 20 that were installed at Hopewell’s Distribution Centre. He may have even learned of Mr. DeGasperis’ reluctance to use the RVR32s for Hopewell and may have gained some insight as to why Mr. DeGasperis considered the order from Pentalift a bit of a “guinea pig”.

[94] Most significantly, on the totalilty of these discoveries, Dr. Tahir would have realized that an essential component of his analysis would have been to undertake a comparison between the 14 systems that worked, the three that had only wear and tear signs, and the three that exhibited gouging to explain what was really going on and whether there was a defect in the three systems or whether the failure might be explained by some other reason. He admitted as much when he agreed that an “apples to apples” comparison would have been one that compared the RVR32s with the gouging to the 14 RVR32s without the gouging.

[95] Instead, Dr. Tahir became increasingly defensive in his answers, he justified the limitations in his analysis by indicating that Pro-Door did not give him enough time to complete his opinion, and that he did not see a reason to disbelieve what Pro-Door told him. As other possible explanations for the gouging were put to him for his consideration, Dr. Tahir argued forcefully for his particular conclusion and demonstrated an inability to engage with other probable or contributing causes for the gouging. The more he spoke, the more he was unable to provide a balanced discussion of the issues that could be relevant to causation. He clearly failed to appreciate that he was there to assist the court and not to be one more advocate for Pro-Door.

[96] Having regard for the magnitude of these difficulties I am obliged to echo the trial judge’s obiter by in Southcott Estates Inc.:

[110] … Qualified expert witnesses are granted a right not available to lay witnesses; to give express opinions for the assistance of the court. But with this right comes the crucially important responsibility or maintaining an attitude of strict independence, and impartiality. This requires the expert’s evidence to be uninfluenced as to form and content by the exigencies of the litigation. Simply put, this means that the expert’s opinion should not be influenced by the interests of the party calling him or her. Judges must be vigilant to ensure that these responsibilities are scrupulously fulfilled and when they are not, to apply appropriate sanctions.

[97] Having regard for this direction and given Dr. Tahir’s admission that this was the first time that he appeared before the court as an expert, I feel compelled to remind counsel of their obligations to ensure that the expert is not humiliated in the process of a cross-examination. There will always be a first time for an expert witness; that is not an impediment to testifying. But counsel have an obligation to ensure that an expert understands his or her unique role in a trial and that they are there to assist the court and to prepare that witness for testimony. This, of course, is to be distinguished from any interference with the substance of the expert’s opinion, which must be his or her independent analysis and conclusion.

[98] I rely on Justice Paciocco’s article, “Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts” (2009) 34 Queen’s L.J. 565 at 600-608 to remind counsel that they must guard against: (i) selection bias (why the expert is chosen); ii. Association bias (whether the expert might demonstrate a desire to do something serviceable for his or her customer / employer); (iii) professional bias (whether an expert might be defending his or her research or own credibility); (iv) noble cause distortion (whether the expert might demonstrate a willingness to distort evidence, believing that he or she is on the side of good), and (v) dogmatism and rigidity. Any one or more of these flaws will render that expert’s views unreliable and useless. When counsel fail to guard against these risks, they run the risk of bringing the administration of justice into disrepute.

[99] I find it especially necessary to underscore this caution in light of Dr. Tahir’s admission that he deliberately modified, and thereby compromised his standard methodology because ostensibly he was given very little time to investigate and reach his conclusions. Counsel should have been vigilant over such limitations; it was incumbent on him to scrutinize the expert’s efforts and ensure that his opinion was not compromised.

[100] Having taken the time to review and understand Dr. Tahir’s efforts, it gives me no pleasure whatsoever to have to reject his evidence, almost in its entirety and to have to underscore the various material weaknesses. I would like to believe that Dr. Tahir set out to study the issue in a bona fides manner. Clearly he did not understand that his obligations were not to Pro-Door but to the court. I am even more troubled by the time and expense that was undertaken to produce an opinion that was so fundamentally flawed and ultimately of little assistance to the court.

[101] In that regard, the responsibility that Justice Paciocco speaks of in his article, extends to counsel for all parties and is engaged as early as when it is clear that a party will be seeking to lead expert evidence. Counsel should not be hesitating to raise their concerns and to engage in a comprehensive and vigorous voir dire at the outset, to prevent the risk of any trial prejudice. More to the point, they should not be calling an expert who is either biased or who is rendered useless by the excessive limitations of what he may or may not consider, as Dr. Tahir suggested occurred.

[102] I turn to my consideration of the remaining issues in this trial.

a) Did Pentalift provide a defective product and did it breach its warranty?

[103] My short answer to this question is “no”. Pro-Door selected, ordered and received a total of 33 RVR32s. Of that order, three systems exhibited gouging. Another three were said to have significant wear and tear. The rest were fine.

[104] Pro-Door had the onus to satisfy this court on a balance of probabilities that the RVR32s were defective. Apart from the evidence of Dr. Tahir, which I have rejected as biased and unreliable, there was no evidence to explain how the gouging occurred. Nobody who testified witnessed the gouging as it occurred. Mr. DeGasperis talked about trucks jamming into the restraints but he did not actually witness anything. The photos that were produced illustrated the gouging. In that sense, the court could see the outcome of something going wrong but it could not draw any conclusions on why the gouging occurred.

[105] Leaving aside Dr. Tahir’s conclusion about the strength of the steel and the low carbon content, much was made of Pentalift’s choice of steel for the RVR32s. Mr. Rowan admitted that the strength of the steel was upgraded sometime after 2016. But he also testified that Pentalift made a number of other developmental changes to the RVR32 model.

[106] On the limited evidence before me, I am not persuaded that the choice of carbon content amounted to a defect. There might have been something to that hypothesis had the gouging manifested itself across most if not all of the 20 systems that were installed at the Hopewell facility. The intensity of use of the restraint systems at Hopewell, as compared to other facilities might also offer some insight into the cause for the gouging. I cannot preclude the possibility that the RVR32s may not have been most suitable or the best choice for Hopewell. Mr. DeGasperis was certainly not sure. But failure in choice is very different from failure in a product.

[107] However, having regard for the fact that there was no reported gouging on 17 of the 20 systems at Hopewell, and no problems with the eight systems at Pro-Door’s other customer, if the cause for the failure were the carbon content, then all of the RVR32s at Hopewell should have exhibited some gouging, even if in variable degrees.

[108] Similarly, if the explanation for the gouging lay with the intensity of use at Hopewell, as compared to other locations, then the gouging should have manifested itself uniformly across the twenty systems because the intensity of use was uniform across Hopewell’s 62 loading docks. But that was not the case. Mr. DeGasperis worried that the gouging would eventually show up in the remaining 14 systems but there was no evidence that it actually occurred to any systems other than the three in question.

[109] In the same vein, even if Dr. Tahir’s evidence on the difference in carbon content between the RVR32s and the Rite Hite model were to be accepted as the cause for the gouging, that distinction could not explain why at least 14, if not 17 of the systems at Hopewell were gouge-free and why only three exhibited the gouging. Moreover, there was no evidence that systems such as the Rite Hite exemplar would have withstood the intensity of use at Hopewell. Although the court heard that Hopewell had some Rite Hite restraints at its Distribution Centre there was no evidence concerning their performance. And in any event, that product was disqualified as an option because of its price.

[110] My concern and rejection of the carbon content as an explanation for the failure of the three out of the thirty-three RVR32s is further supported by Mr. Rowan’s evidence that all 33 of the RVR32s were manufactured from the same material and the same standardized specifications and that the steel that was used met the applicable CSA standards. It stands to reason that if all 33 RVR32s were made of the same steel and that three could not withstand the pressure and exhibited the gouging but the 30 could, it could not be the steel that was defective or that was the cause for the gouging. There must be some other explanation for the problem. Pro-Door failed to advance any other probable causes.

[111] Certainly, in the absence of credible and reliable evidence, it is not for the court to diagnose the problem or provide an alternate explanation for the cause for the gouging. What did become obvious from the evidence was that there could be any number of explanations for the gouging that could lie with the proper / improper installation of the systems, the accurate operation of the sensors for the particular systems, and the possible problems with damaged ICC bars. But most, if not all of these possible explanations had everything to do with the proper installation of the systems and their use, and nothing to do with Pentalift’s product design. Pentalift was only the manufacturer. It did not install anything, it did not select anything, and it had no involvement whatsoever with the end-user. I therefore find it rich for Pro-Door to be putting the blame on Pentalift without any consideration for other possible causes for the problem.

[112] To the extent that Mr. DeGasperis pointed to the accelerated wear and tear of the RVR32s as an additional defect or as a manifestation generally of a defect in the RVR32s, that only goes as far as to suggest to me that the RVR32s may not have been well-suited to Hopewell’s needs and that perhaps Pro-Door should have selected a different product. But even on that point, there was no evidence to make such a conclusive finding.

[113] As for the complaints concerning the alarms and the hooking were concerned, on the totality of the evidence, I find that those problems were addressed and were not the result of any defect. I accept Mr. Rowan’s and Mr. Glass’ extensive explanation regarding the adjustments that had to be made to expand the range for the hook. I also accept their evidence that by April those issues were resolved.

[114] I rely on the e-mail exchanges between April and July of 2016 between Mr. Glass and Mr. DeGasperis to support that finding. Even though Mr. DeGasperis suggested that the problems resurfaced, there were no communications by Mr. DeGasperis to suggest that this allegation had any truth to it.

[115] I also rely on the communications concerning the kit proposed by Mr. Glass, which was intended to address the gouging and nothing else, to conclude that by the time of those discussions, there were no other problems to address. Moreover, at least until the June 2016 communications, the complaints were focused on fixing three systems and not twenty. Accordingly, there was no evidence to support Pro-Door’s claim that the RVR32s had several defects in addition to the gouging.

[116] With respect to Pentalift’s efforts to address Pro-Door’s complaints and the difficulties they encountered at Hopewell, I found Mr. Glass’ explanation that they undertook those efforts as a matter of goodwill and in recognition of Pentalift’s longstanding relationship with Pro-Door entirely credible. I am unable to say the same thing for Mr. DeGasperis.

[117] In contrast to Mr. Glass, although Mr. DeGasperis came across as a likable individual, I was disappointed that he was not forthright in his answers and that he let his emotions get ahead of him. Most troubling was the recognition that he did not come to court with clean hands. This came through in the competing narratives to which he admitted as he explained and compared his communications between himself and Mr. Glass on the one hand, and himself and Mr. Olsen on the other hand.

[118] The communications between Mr. Glass and Mr. DeGasperis implied that Mr. DeGasperis wanted very sincerely to find a solution to the gouging. And yet, his communications with Mr. Olsen revealed a very different story, especially when he said that Pentalift was not interested in a solution. It is no wonder that Hopewell came to the point where they wanted nothing to do with Pentalift’s RVR32s. I can only conclude that in an effort to mask Pro-Door’s risk-taking and choice of the RVR32s, Mr. DeGasperis tried to shift the blame on others.

[119] Apart from the blaming of Pentalift and Hopewell respectively and the distortion of what was really going on, Mr. DeGasperis was also untruthful with Mr. Glass and Mr. Olsen in a number of other ways. If, as he told the court he was so disappointed with his choice of the RVR32s and if he also thought that Mr. Glass’ kit idea was crazy, it made no sense that he would continue the exchanges with Pentalift. I would have expected him to tell Mr. Glass that the RVR32s were not suitable or to be insisting that Pentalift replace the systems. But he did not say anything like that. His deception went further in that all the while that he was negotiating with Mr. Glass for a solution, Mr. DeGasperis was searching for another system and by the end of April there were no bona fides intentions to keep the RVR32s. That explains why Mr. Glass was so surprised to hear that the RVR32s were ripped out and replaced.

[120] Similarly in his communications with Mr. Olsen, Mr. DeGasperis engaged in nothing but posturing. He tried to project Pro-Door as the hero who would either find its own solution or replace the systems altogether, when in reality Pentalift was the one that was willing to work out a solution. I believed Mr. Olsen when he said that he had no idea of Pentalift’s repeated efforts to address Pro-Door’s particular complaints.

[121] Looking back at how Pro-Door went about selecting the RVR32s, it is very likely that Mr. DeGasperis’ selection was either ill-considered or driven by budget limitations imposed by Hopewell and that this selection was the first domino to fall in a series of other poor decisions that followed.

[122] But to be clear, there was no evidence to support the contention that Pentalift imposed that choice or made any kind of a recommendation. Mr. DeGasperis readily admitted that the choice was his, even if he tried to draw in one of Pentalift’s employees. Having run into difficulties with his choice, rather than admit to the difficulty and address it head-on, possibly with both Pentalift and Hopewell, Mr. DeGasperis chose to tell Mr. Glass that Hopewell was refusing to pay Pro-Door and he chose to tell Hopewell that Pentalift was not interested in a solution. On that strategy, it was only a matter of time before both narratives would implode.

[123] All that to say that nothing in the evidence permits me to find that the RVR32s were defective. It follows that I can also see no basis for concluding that Pentalift breached either its own warranty or the protections extended by the Sale of Goods Act, R.S.O. 1990, Chapter .S.1, S.5. (SGA).

[124] Insofar as both the plaintiff and the defendant made submissions regarding the SGA, and specifically, sections 15 and 51, I make the following findings. Pentalift’s own warranty was clear in its terms. If a product proved to be defective and the problems were not caused by misuse, improper installation or any other third-party causes, Pentalift reserved the right to repair or replace the equipment at issue. Having found that the RVR32s were not defective, I see no basis for a finding that Pentalift breached its warranty obligations. As I already noted, I accepted Pentalift’s evidence that its efforts to assist Pro-Door were intended as a goodwill gesture and were not intended as a response to any legal obligation. There was no defect in Pentalift’s product to engage Pentalift’s warranty.

[125] A similar analysis underlies my consideration of the protections offered by the Sale of Goods Act. Section 15 addresses the application of implied warranties. For ease of reference, I have reproduced it as follows:

Implied conditions as to quality or fitness

15 Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description that it is in the course of the seller’s business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose, but in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.

2. Where goods are bought by description from a seller who deals in goods of that description (whether the seller is the manufacturer or not), there is an implied condition that the goods will be of merchantable quality, but if the buyer has examined the goods, there is no implied condition as regards defects that such examination ought to have revealed.

3. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.

4. An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith. R.S.O. 1990, c. S.1, s. 15.

[126] For Pro-Door to establish a breach by Pentalift pursuant to the Sale of Goods Act, Pro-Door would have to satisfy one of the four conditions. Beginning with section 15(1), Pro-Door would have to satisfy the court that the RVR32s were part of Pentalift’s business, that Pentalift was made aware of the particular use of the RVR32s and that Pro-Door relied on Pentalift’s skill and knowledge.

[127] None of the evidence before the court allows Pro-Door to satisfy these requirements. Pentalift certainly manufactured the RVR32s but Pentalift had nothing to do with the Pro-Door’s bid to Hopewell and Pro-Door’s selection of the RVR32s. Pro-Door put in a bid for the Hopewell project and expressly selected the RVR32s months before it ever spoke to Pentalift about the order. Mr. DeGasperis talked about Scott McCorquodale’s attendance at Hopewell in September and attempted to rely on that interaction to anchor the argument that Pro-Door relied on Pentalift for its expertise. However on a close read of even Mr. DeGasperis’ recounting of that exchange, the questions seemed to focus more on whether Pentalift could produce so many systems. Mr. McCorquodale may have assisted with the dock measurements, but Pentalift did not assume that responsibility. Moreover, Pentalift made it clear that all such measurements were the responsibility of the dealer purchasing equipment, be that Pro-Door or any other purchaser.

[128] Although Pentalift did not challenge the evidence concerning Mr. McCorquodale, even if I were to accept Mr. DeGasperis’ representations, I cannot ignore the fact that the alleged interaction occurred well after Pro-Door had committed to using the RVR32s for Hopewell and well after Hopewell awarded Pro-Door the contract for Phase I. Whatever advice Mr. McCorquodale might have provided, I do not see how anything he said had any impact on Pro-Door’s choice and decision to order the RVR32s for Hopewell’s Distribution Centre. I also note that Ms. Ververke said nothing about such an interaction. She described this order as nothing out of the ordinary and similar to the way Pro-Door submitted other purchase orders.

[129] As well, nothing in what Mr. DeGasperis said about his selection of the RVR32s actually revealed any reliance by Pro-Door on Pentalift. He said that he knew the company well, he had ordered the RVR32s for other customers, Pentalift offered good prices, and he had not encountered any difficulties. He went further to indicated that he knew he was taking a risk and that the treated this order as a “guinea pig”. Mr. DeGasperis, might have been able to rely on section 15(1) had he contacted Pentalift in advance of his choice to discuss what he said was the risk he was thinking of taking, and to inquire about other options, but there was no evidence of such an action.

[130] Finally, it may be useful to recall the Ontario Court of Appeal’s observation in Venues Electric Ltd. V. Brevel Products Ltd., 1978 CarswellOnt 727, at paragraph 39, that a warranty requires that goods be reasonably suited or fitted to the purpose for which it is sold but that it need not be perfect or even the best of its kind. A warranty also does not constitute an agreement that the goods are perfectly adapted to the intended use. Mr. De Gasperis may not have chosen the best product for Hopewell’s needs but that cannot amount to a breach of any implied warranty provided by the Sale of Goods Act.

[131] To bring itself within the requirements of section 15(2) of the same Act, Pro-Door would have to satisfy the court, on a balance of probabilities that the RVR32s that Pentalift delivered were defective. For the reasons already discussed, Pro-Door was unable to satisfy that onus and I am unable to find on a balance of probabilities that the RVR32s that Pentalift supplied to Pro-Door had ay defect at the time of their delivery.

[132] Section 15(3), which speaks of the annexation of an implied condition or condition being annexed by the usage of trade has no application to this case.

[133] Section 15(4) is also of no assistance to Pro-Door. Pentalift’s Agreement explicitly and unambiguously excluded the application of sections 15(1) and (2) of the Sale of Goods Act, to the Agreement as both the Warranty and page 3, provision 6 of the Quotation expressly and unambiguously excluded any express or implied warranty of merchantability or fitness for a particular purpose. There is nothing in Pentalift’s Agreement with Pro-Door to suggest otherwise.

[134] Without a breach of section 15 of the Sale of Goods Act, Pro-Door cannot access the remedies anticipated by section 51 of the same act and I see no point in engaging in such an analysis.

b) Was Pentalift negligent towards Pro-Door?

[135] On the totality of the evidence I see no basis for such a finding. Liability for negligence requires a breach of duty of care arising from a reasonably foreseeable risk of harm to one person created by the act or omission of another. This is often referred to as the “but for” test. A party asserting negligence bears the burden of showing that “but for” the negligent act or omission, the injury would have occurred.

[136] Pro-Door pleaded that Pentalift owed it a duty of care in the provision of the RVR32s and repairs to same and that Pentalift breached its duty of care to Pro-Door, causing Pro-Door to suffer damages as a result. Pro-Door bears the burden of demonstrating that “but for” Pentalift’s negligence, Pro-Door would not have suffered losses.

[137] Pentalift relied on the following useful paragraph from Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201 at paragraph 28 to respond to Pro-Door’s claim:

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise a standard of care that would be expected of an ordinary, reasonable and prudent person 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. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice and statutory or regulatory standards.

[138] In my review of the evidence, Pro-Door failed to meet the burden of demonstrating that “but for” Pentalift’s negligence, Pro-Door would not have suffered the damages it alleges. On the evidence before me, the more probable answer is that “but for” Mr. DeGasperis’ decision to take a risk and to treat the RVR32s as a “guinea pig”, Pro-Door would not have compromised its relationship with Hopewell. Also, but for Mr. DeGasperis’ two competing and contradictory narratives to Mr. Glass and Mr. Olsen respectively, he might have had a better outcome in the resolution of the gouging and any other difficulties. Mr. Glass was willing to co-operate and Mr. Olsen would have welcomed, at the very least, the consideration of Pentalift’s proposed kits. Those communications were not explored because Mr. DeGasperis chose two very different approaches and strategies.

[139] There was also no evidence that the Pentalift was negligent in its design or its manufacturing of the RVR32s. The particular restraints passed the internal inspection and quality control process and the materials used were all the correct composition as confirmed by the mill certificates.

[140] Insofar as Pro-Door submitted that the cost of the replacement of the restraints and the labour charges for the performance of the replacements would have been within Pentalift’s contemplation, there was simply no evidence to support such a contention. There was also no evidence to support the contention that Pentalift would have known that Hopewell would have been entitled to reject the RVR32s and seek replacements. Both submissions were entirely inconsistent with the reality that Pentalift was only a manufacturer of the restraint systems and had no contact with any end-users. Pro-Door selected the RVR32s for Hopewell, independent of any involvement by Pentalift. On the evidence before me, how a bid and a contract between Hopewell (Mondelez) and Pro-Door would extend to or engage Pentalift’s duty of care is a mystery.

c) Is Pentalift liable to Pro-Door for Negligent Misrepresentation?

[141] Here too, the short answer is “no” and here is why. For such a claim to succeed the aggrieved party must establish that:

1. There was a duty of care based on a special relationship;

2. The representation in question must be untrue, inaccurate or misleading;

3. The party making the representation must have acted negligently when he or she made the representation;

4. The party receiving the representation must have relied, in a reasonable manner, on the said negligent misrepresentation; and

5. The reliance must have been detrimental to the party that relied on the representation in that damages resulted.

See Queen v. Cognos Inc. 1993 146 (SCC), [1993] 1 S.C.R. 87 at para. 37 and Marks v. Ottawa (City), 2011 ONCA 248 at para. 21.

[142] Pro-Door selected the RVR32s for Hopewell without Pentalift’s involvement. Even if Mr. McCorquodale said anything about the RVR32s being compatible for Hopewell’s needs, the evidence before the court was insufficient to ground a finding that this communication amounted to a representation on which Pro-Door relied on to make the selection. In any event, any and all communications with Pentalift regarding this specific order post-dated Pro-Door’s bidding and agreement with Hopewell and Mondelez.

[143] Moreover, at the risk of being repetitive, Mr. DeGasperis was never sure that the RVR32s were suitable for Hopewell’s needs. He said he took a risk. Had he consulted Pentalift prior to the bid and prior to his selection of the RVR32s and had Pentalift reassured and encouraged him to go ahead with that selection, the analysis may have been different. But such a consultation did not occur.

[144] Underscoring all of this was Pentalift’s evidence that for all orders, Pentalift cautions its buyers to be certain of their selection. It is the buyer who is responsible to determine and take into consideration the present requirements and future plans or adverse environments for the equipment, the type of facility, the trailer design, including the trailer bed heights, ICC Bars, air ride suspension, trailer inside width and height and trailer tailgates, and the truck fleet. Pentalift was clear in its evidence that the RVR32s are not made to measure but have a standard specifications design. Moreover, it does not consider any of the noted factors and does not have any responsibility for doing so when it processes an order. Nor would it represent to any customer that it would take such features into account.

[145] Specifically with respect to Pro-Door, nobody disputed Pentalift’s evidence that Pro-Door was familiar with the RVR32s and had purchased it for other customers on previous occasions.

[146] All of this evidence supports the conclusion that there were no representations by Pentalift specific to Pro-Door’s or Hopewell’s needs, much less that the representations were negligent.

d) Did Pro-Door suffer damages

[147] There was no reason to dispute the costs that Pro-Door incurred to replace the RVR32s with the Metro Dock restraints. There was some disagreement over the actual labour costs. There was also substantial disagreement regarding Pro-Door’s loss of the opportunity to bid on the future phases of Hopewell’s replacement phases and by extension, a loss of profit.

[148] That said, I do not intend to reconcile the different estimates that Pro-Door put forward on its total damages because I see no basis for holding Pentalift accountable or liable for them. Nobody really disputed that Pro-Door ran into difficulties with Hopewell over this contract. I also find it probable that Hopewell’s experience with Phase I caused it to rethink its replacement strategy including its use of Pro-Door.

[149] Given Hopewell’s decision to go back to ground-mounted restraints and not wall mounted restraints, I am left wondering whether they too may have had doubts about the wall mounts and after trying them out in Phase I, causing them to reverted to the ground mounts for the subsequent phases. I also cannot ignore Hopewell’s refusal to reveal anything about its actual budget, the significant cost differential between the RVR32s and the Rite Hite models and Mr. Olsen’s express awareness of that difference, even if he did not know much about the Rite Hite option, and Mr. DeGasperis’ failure to produce the bid documents. The absence of evidence on these issues raises more questions than they answer. This evidentiary void would have been problematic if I had to determine Pro-Door’s loss or profit and opportunity. But in the absence of such a requirement, to make any finding would be to engage in unnecessary speculation.

[150] That said, for the reasons I already discussed, I see no fault on Pentalift’s part that would allow Pro-Door to claim damages from Pentalift for its losses from Hopewell.

e) Is Pro-Door entitled to an equitable set-off for the damages it says it suffered?

[151] There is absolutely no basis for such a claim. The essence of Pro-Door’s claim for equitable set-off is that it would be manifestly unjust for Pentalift to enforce payment for the restraints without taking into account Pro0Door’s counterclaim as both claims originate from the same contract and the same products.

[152] There are four criteria for equitable set-off, as outlined in Telford v, Holt, 1987 18 (SCC):

1. the party relying on a set-off must show some equitable ground for being protected against his adversary’s demands

2. The equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed;

3. A crossclaim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the crossclaim;

4. The plaintiff’s claim and the crossclaim need not arise out of the same contract;

5. Unliquidated claims are on the same foot as liquidated claims.

[153] Nobody disputed that Pro-Door owed Pentalift money. The dispute was over Pro-Door’s counterclaim. Given my preceding findings, I am unable to identify any equitable grounds for any set-off, as claimed by Pro-Door.

[154] As I already concluded, Pro-Door got into trouble with the selection and installation of the RVR32s of its own accord. Mr. DeGasperis chose a strategy of two different narratives in his communications with Mr. Glass and Mr. Olsen. To Mr. Glass, Hopewell was applying extreme pressure and giving him a very hard time. They would not even pay him for the RVR32s; in fact, whether by design or by error, Pro-Door received payment for the systems but deliberately withheld that information from Mr. Glass. To Mr. Olsen, Pentalift was the bad actor. Pentalift was the one to refuse any cooperation and refuse to propose any fix. Mr. Olsen knew nothing about Pentalift’s proposed kit.

[155] A party cannot come to court with unclean hands and expect the court’s equity. It is of course unfortunate that Pro-Door ripped out the RVR32s and had to pay for the Metro Dock replacements. But here too, it was Mr. DeGasperis who managed the relationships in such a way that undermined the actual identification of a response to the gouging. He accused Pentalift of being greedy and money-hungry, but who was really the greedy one? Pro-Door would have been in a far better position had it allowed the kits to be installed. Had they worked, the solution would have cost everyone no more than $2,000. Had they not worked, Pro-Door may then have had a better foundation for an equitable set-off.

[156] Similarly, Pro-Door would have been in a far better position to be transparent with Pentalift about Hopewell’s actual directive to replace the RVR32s altogether. It would have also been a far better position if at least it would agree to return the unused systems.

[157] Instead, on the facts of this case and from the time of the bid until the litigation, Pro-Door took very specific and deliberate actions. Against that reality I find it very difficult to understand why Pentalift demanding payment, without a set-off would be unjust.

CONCLUSION

[158] In light of my findings and conclusions, Pro-Door’s counterclaim is dismissed in its entirely. Pentalift is entitled to judgment on the following terms:

a) Payment of the sum of $67,884.59 by Pro-Door to Pentalift for the outstanding invoices;

b) Payment of pre-judgment interest from Pro-Door on each outstanding invoice from the 30th day of the month following the date of each invoice at the rate of 24% per year; and

c) Post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

[159] On the subject of costs, having received the parties’ respective bills of costs and having regard for the plaintiff’s success, I fix costs at $38,000, inclusive of disbursements and applicable taxes and payable within 30 days from the date of this judgment.

[160] I have reduced the plaintiff’s partial indemnity claim by approximately $7,500 in recognition of the proportionality between the amount claimed and the fees incurred as well as the number of people who worked on the file. I find some duplication of effort all along. While the counterclaim was certainly significant the issues were straightforward and should not have required nearly the number of hours for the tasks at hand.

[161] Judgment in favour of Pentalift is to issue accordingly.

Tzimas J.

Released: August 16, 2019

1371787 Ontario Inc. 2019 ONSC 4804

COURT FILE NO.: CV-16-3291-SR

DATE: 20190816

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Pentalift Equipment Corporation

Plaintiff

• and -

1371787 Ontario Inc. o/a Pro-Door & Docksystems

Defendants

REASONS FOR JUDGMENT

Tzimas J.

Released: August 16, 2019