Superior Court of Justice - Ontario
COURT FILE NO.: 17-74045-A1
DATE: 2019/09/18
RE: Martin Brassard, Plaintiff
AND
Venmar Ventilation Inc., Venmar Ventilation ULC and Broan-Nutone Canada ULC, Defendants
AND
Fasco Motors Limited, Tecumseh Products of Canada, Limited, Regal Beloit Canada ULC, Von Wiese of Canada Company, Tecumseh Products Holdings LLC, Von Wiese USA, Inc., Von Wiese, Inc., Regal Beloit, Regal-Beloit Corporation, Regal-Beloit International Sales Corporation, Fasco, Inc., Regal Beloit Corporation, Regal Beloit America, Inc., Regal Beloit Electric Motors, Inc., Tecumseh Products Company, Tecumseh Products Company International Division Inc. and Tecumseh Products Company LLC, Third Parties
BEFORE: Justice C.T. Hackland
COUNSEL: Nadine Rizk, Counsel for Plaintiff Gosia Bawolska, Counsel for Defendants (Respondents) Allison Pressé, Counsel for the Third Parties (Moving Parties)
HEARD: September 12, 2019 (Ottawa)
ENDORSEMENT
[1] The Third Parties move to compel answers to refusals to provide undertakings on the part of the Defendants at the examination for discovery of the Defendants witness Daniel Forest.
[2] The Plaintiff suffered significant losses to his home in September of 2015 when a heat recovery ventilator (“HRV”) in his basement caught fire. This device was manufactured by the Defendants in 1998. The device contained a motor manufactured by the Third Party Fasco. The evidence suggests that the motor, which is a component of the HRV, stopped working and the HRV unit overheated and caught fire. The Defendant Venmar was aware of a potential fire hazard connected with the motors in the HRV and instituted in 2006 a “Safety Upgrade Program” which involved addressing this risk by sending HRV users a power plug adaptor to plug into the HRV’s power cord.
[3] The Plaintiff homeowner’s evidence in response to a request to admit and on discovery was that he contacted the manufacturer, the Defendant Venmar, was advised by them of the fire risk associated with the HRV unit and was supplied by them with the power plug adaptor as part of Venmar’s Safety Upgrade Program. The Plaintiff connected the adaptor as instructed. Some two weeks later he perceived that the HRV may not have been functioning properly whereupon he removed the adaptor and plugged the HRV unit directly into a power outlet. The fire occurred a few minutes after he unplugged the adaptor.
[4] It can be seen that an important issue in this action is the adequacy of the Defendants Safety Upgrade Program in all the circumstances. The Third Party would clearly be entitled to make inquiry and receive productions about how this program was designed and operated and as to the adequacy of the adaptor as a fix to the potential fire hazard. The evidence indicates Venmar took steps to obtain regulatory approval for the adaptor provided to customers and indeed the adaptor received by the Plaintiff was ETL listed and CSA certified.
[5] Contrary to the Defendants’ submission, the Plaintiff’s actions in regard to obtaining, using and then disconnecting the adaptor and the Defendants provision of an adaptor for which safety approvals had been obtained, do not foreclosure the Third Parties entitlement to inquire about and challenge the adequacy of the adaptor or the sufficiency and operation of the Defendant Venmar’s Safety Upgrade Program. The over-all interplay and significance of these issues will be evaluated at trial.
[6] With the foregoing in mind, I address the Defendant Venmar’s refusals to provide the following undertakings on discovery:
(1) Question 146: to provide any manuals or other documentation of procedures addressing how employees are to deal with the Safety Upgrade Program in regard to advising HRV owners of the risks or their usage of the adaptor or related matters.
Ruling: this is clearly relevant and must be answered.
(2) Question 347: to provide correspondence between Venmar and ESA with respect to obtaining safety approval for the adaptor.
Ruling: this is relevant and must be answered.
(3) Questions 397-399: did you use any motors from Fasco’s competitors that were protected by auto thermal reset protectors for either HRVs or air exchangers.
Ruling: the failure of this component is material to the cause of the fire. The Defendants experience with this component on motors supplied by the Third Parties competitors may be relevant to the Defendants appreciation of the fire risk and their remedial efforts and must therefore be answered.
(4) Questions 405-406: to provide a listing of lawsuits against Venmar related to fires caused by HRVs and air exchangers in Canada and the U.S.
Ruling: this is relevant to the Defendants appreciation of the nature and scope of the problem and to the adequacy of its response (the Safety Upgrade Program.)
(5) Questions 407-408: to advise if there are lawsuits arising from HRVs or air exchangers manufactured using competitors motors?; provide contracts and product designs of HRVs manufactured using competitors motors.
Ruling: this request is clearly irrelevant and unsupported by the pleadings. Only the Third Parties motors are in issue.
(6) Question 439: to provide communications with regulatory authorities with respect to safety upgrade programs after the 2006 Program concerning HRVs.
Ruling: it would be potentially relevant to view the 2006 Program in light of the structure and handling of the Defendant’s subsequent safety upgrade programs. This question must be answered.
(7) Questions 445-452: In addition to the PPA certification and ETL report (undertakings already provided), to provide all correspondence, documents, notes and test results related to the ETL testing.
Ruling: nothing has been put before the Court to justify this request. If the ETL report raises specific issues, further discovery can be carried out.
(8) Question 464: to advise how many people Venmar has working on its Safety Upgrade Program.
Ruling: this may be relevant to the nature, scope and adequacy of the Program. The question must be answered.
(9) Question 508: to advise how many adaptors were sent out in Canada.
Ruling: this is relevant to the operation and scope of the Safety Program and must be answered.
(10) Question 511: how much did the adaptor or PPA fuses cost to manufacture?
Ruling: the cost of the adaptor may be relevant to issues about the sufficiency of the adaptor as a solution to the fire risk problem. This question must be answered.
[7] In summary, for the reasons indicated, the Defendant will answer questions 146, 347, 397-399, 405-406, 439, 464, 508 and 511.
[8] If the Third Party wishes to seek costs on this motion, a brief submission may be submitted within 14 days of the release of this endorsement and the Defendant may respond within 14 days of receiving the Third Parties submission.
Justice C.T. Hackland
Dated at Ottawa: September 18, 2019
COURT FILE NO.: 17-74045-A1
DATE: 2019/09/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Martin Brassard, Plaintiff
AND
Venmar Ventilation Inc., Venmar Ventilation ULC and Broan-Nutone Canada ULC, Defendants
AND
Fasco Motors Limited, Tecumseh Products of Canda, Limited, Regal Beloit Canada ULC, Von Wiese of Canada Company, Tucumseh Products Holdings LLC, Von Wiese USA, Inc., Von Wiese, Inc. Regal Beloit, Regal-Beloit Corporation, Regal-Beloit Corporation, Regal Beloit America, Inc., Regal Beloit Electric Motors, Inc., Tecumseh Products Company, Tecumseh Products Company International Division Inc. and Tecumseh Products Company LLC, Third Parties
BEFORE: Justice C.T. Hackland
COUNSEL: Nadine Rizk, Counsel for Plaintiff Gosia Bawolska, Counsel for Defendants (Respondents) Allison Pressé, Counsel for the Third Parties (Moving Parties)
ENDORSEMENT
Justice C.T. Hackland.
Released: September 18, 2019