Court File and Parties

Court File No.: CV-18-609598 Motion Heard: 20200108 Superior Court of Justice - Ontario

Re: Virginia Tewsley and Frank Thomas Andrew Sawada, Plaintiffs And: BSH Home Appliances Ltd./Électroménagers BSH Ltée, BSH Home Appliances, Corp., 1191868 Ontario Limited o/a Peterborough Appliances and John Doe Manufacturer, Defendants

Before: Master Jolley

Counsel: E. Xega, Counsel for the Moving Party Defendants S. Biglou, Counsel for the Responding Party Plaintiffs

Heard: 8 January 2020

Reasons for Decision

[1] The plaintiffs allege they purchased a Bosch dishwasher at one of the defendants’ retail locations on 25 November 2016. On 27 November 2016 the dishwasher was installed. On 28 November 2016 the dishwasher caught fire and damaged the plaintiffs’ home. The serial number of the dishwasher was also damaged in the fire. The defendants seek an order to examine the dishwasher, potentially destructively. They argue that they can only identify the precise dishwasher by removing the door and reviewing the layout of the component parts inside. They also argue that they cannot address the cause of the fire without being able to potentially destructively examine the dishwasher.

[2] There is no doubt that an examination would be useful and likely necessary in order to determine the cause of the fire (Farley Manufacturing Inc. v. Oz Optics Ltd. 2017 ONSC 3321 at paragraph 21). The plaintiffs do not disagree but argue that it is premature for such risky testing to be ordered at this stage. They are concerned that if the testing turns out to be destructive of any component of the dishwasher, it will have prejudiced their ability to add a parts manufacturer to the action, as that entity may argue that it has been prejudiced by not having had the chance to have input into the testing methodology and be present at the testing. The plaintiffs argue that they should either be permitted to conduct examinations for discovery before any destructive testing to explore the defendants’ supply chain, component parts manufacturers, etc. to identify the potential parts manufacturers or that the defendants should disclose the identities of the parts manufacturers so that the plaintiffs can put them on notice and give them the option of participating in the testing protocol. In this chicken and egg argument, the defendants argue that they cannot know who the suppliers are that need to be put on notice until they open the dishwasher and confirm which precise dishwasher they are dealing with.

[3] The parties do know the brand and model of the dishwasher, SHE3AR75UC. The defendants argue that they do not know when it was manufactured and that information impacts the identity of the parts manufacturers, as does the serial number. There is no evidence before me that the parts used in this model of Bosch dishwasher vary depending on the serial number.

[4] I am not satisfied on the evidence before me that destructive testing is the only way for the defendants to positively identify the dishwasher and, consequently, the specific parts inside. There is insufficient evidence on this motion as to the efforts the defendants have made to locate the serial number elsewhere than on the inside of the dishwasher. It seems illogical that the serial number would not appear written down somewhere in the supply chain to enable a purchaser to trace its purchase. I would not accept without some affidavit evidence that no defendant has recorded anywhere the serial number of the dishwasher sold.

[5] Even if the serial number cannot be located elsewhere, the defendants have produced what seems to be an appropriate use and care manual for the dishwasher model and there is no evidence before me that material changes were made to the parts of model SHE3AR75UC over the ten year span when I was told it could have been manufactured.

[6] The expert for the defendants confirmed that the destructive part of the examination is limited to opening the cover holding the harness and circuit boards to get a better visual look at the components and their labels. She is not proposing to destroy any of the components themselves. Her protocol states that if damaged parts are revealed, the examination will be halted and the component examined non-destructively. The manufacturer of the part in question would then be put on notice and could attend for any destructive examination at a later date. In a letter handed up to the court in the course of the hearing, the plaintiff’s expert noted his concern that, given the amount of damage caused to the dishwasher by the fire, the integrity of the internal components of the dishwasher cannot be guaranteed if any destructive examination, including attempted removal of the door is performed. The defendants concede that such damage cannot be ruled out.

[7] The plaintiffs wish to proceed to examinations for discovery and complete those before any destructive testing takes place. They also request a further and better affidavit of documents from the defendants listing all potential suppliers of parts to what their expert has identified as three possible dishwasher models. In my view, discoveries are premature at this stage and would not be cost effective for any party. There would, by necessity, be a further discovery required after the testing to examine on causation and to deal with any added parts manufacturers. As to the further and better affidavit of documents, it would not be appropriate for documents relating to the design, manufacture, production, assembly and distribution all possible parts for all three possible models to be listed as they would not meet the relevance test. This is particularly so where the evidence seems to be that the model has been properly identified.

[8] It is a better use of the parties’ resources to complete the testing on notice of all parts manufacturers and then to proceed to a more meaningful set of examinations with all relevant parties present.

[9] In order to ensure that happens, the defendants shall provide the plaintiffs with a list of potential manufacturers of each part of the Bosch dishwasher model SHE3AR75UC so that the plaintiffs can notify each parts manufacturer that destructive testing of the dishwasher will take place and provide them with the opportunity to participate. If a part was manufactured by different companies over the ten year span, both (or all) manufacturers should be listed. Should the defendants wish to keep the identity of the parts manufacturers confidential at this stage, the plaintiffs have advised that they are content to have the defendants represent to them that the defendants have themselves contacted each of the potential manufacturers and put them on notice that destructive testing will take place and invited them to participate in determining the testing protocol and to attend.

[10] There was a suggestion in the protocol of the defendants’ expert that she may be able to determine the parts configuration through x-ray of the dishwasher without removing the door. The plaintiffs have indicated that they do not object to further non-destructive testing which would include this kind of x-ray. If the defendants wish to proceed in that manner, they can make those arrangements with the plaintiffs.

[11] The defendants’ motion for destructive testing is premature as is the plaintiffs’ motion for a further and better affidavit of documents and the imposition of a discovery plan. Both motions are dismissed.

[12] Given the plaintiffs succeeded in their main objective to delay the destructive testing of the dishwasher until the potential parts manufacturers can be put on notice, I award them a portion of their costs, in the all-inclusive amount of $2,500, payable within 30 days of the date of this order.

[13] In conclusion, I wish to thank both counsel for the quality of their presentations.

Master Jolley Date: 10 January 2020