Superior Court of Justice – Ontario

Court File No.: CV-14-119522-SR Date: 2023-06-02

Between:

Syed Muneer Ahmed, Izzat Jehan Ahmed, Syed Daanish Ahmed and Tania Ahmed, Plaintiffs

– and –

Rheem Canada Ltd. And Reliance Comfort Limited Partnership carrying on business as Reliance Home Comfort, Defendants

Counsel:

Norman Epstein, for the Plaintiffs David Campbell and Sunny Rehsi, for the Defendant, Rheem Canada Ltd. Joanna Reznick, for the Defendant, Reliance Comfort Limited Partnership

Heard: June 1, 2023

Reasons for Ruling

Leibovich J.

[1] The plaintiffs have filed an action against Rheem Canada Ltd. (“Rheem”) and Reliance Home Comfort (“Reliance”) following a carbon monoxide incident at their residence in November 2013 [1]. They have sued Rheem who made the water heater and they have sued Reliance who installed it. The defendant, Rheem, has brought a motion for summary judgment arguing that there is no evidence that their supplied water heater was defective or caused or contributed to the carbon monoxide incident. For the reasons set out below, I agree that this is an appropriate case to issue summary judgment and dismiss the claim against Rheem. There is simply no evidence that the water heater they supplied was defective in any way nor is there any evidence that the training that they provided to Reliance was faulty.

Law and Analysis

[2] The test for summary judgment is set out in Rule 20.4 of the Rules of Civil Procedure. The court shall grant summary judgment if:

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

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

[3] Rule 20.04(2.1) of the Rules of Civil Procedure states that the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

(i) Weighing the evidence (ii) Evaluating the credibility of a deponent (iii) Drawing any reasonable inference from the evidence

[4] As stated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 43:

The Ontario amendments changed the test for summary judgment from asking whether the case presents “a genuine issue for trial” to asking whether there is a “genuine interest requiring a trial”. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. Further, it eliminated the presumption of substantial indemnity costs against a party that brought an unsuccessful motion for summary judgment, in order to avoid deterring the use of the procedure.

[5] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. However, “a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”: Hryniak, at para. 50.

[6] On May 18, 2013, Reliance installed the water heater at the plaintiffs’ residence. Rheem was not involved with the water heater’s rental to the plaintiffs, its installation, or any of the required exhaust venting at the plaintiffs’ residence. This work was performed by Reliance or its subcontractors. On November 28, 2013, six months after the water heater’s installation, a carbon monoxide detector at the plaintiffs’ residence activated causing the occupants to evacuate. Enbridge attended the plaintiffs’ residence, disabled the water heater, and “red tagged” it, noting: (1) the piping was not bonded; and (2) there was no union joint used in the piping. Remedial work was performed – the gas piping was redone and a union bond to the pipe was added. On November 29, 2013, the Technical Standards and Safety Authority performed an inspection and issued a report highlighting the following venting and piping non-compliances: (1) CSST gas piping not bonded as required by code; (2) no union on piping to tankless water heater; (3) venting for tankless heater installed in unheated space in garage; and (4) venting installed in garage areas was not properly supported. At no time did Enbridge or the TSSA recommend any repairs to the water heater itself or suggest the water heater was defective. The water heater at issue continued to be used for the next five years.

[7] Rheem has filed affidavits from Anthony Krell, manager of engineering investigations for Rheem Manufacturing Company, and Kevin Hastings, their proposed expert who is both a licensed mechanical engineer and certified carbon monoxide and combustion analyst. They opine that:

a. the water heater was certified and met or exceeded applicable CSA standards; b. the water heater was not subject to any recall or safety bulletin; c. the water heater has a direct-vent and sealed combustion chamber and the only air path for combustion products and carbon monoxide is through venting; d. the incident was not caused by any defect in the water heater; and e. the incident was more than likely caused by an improperly installed water heater vent and/or damaged clothes dryer vent.

[8] The plaintiffs have not, in their material or in oral submissions, pointed to any evidence that supports their contention that this particular water heater was defective or that the design of the water heater was defective. The plaintiffs have not filed any expert evidence. Rather, the only material they filed in response to this motion for summary judgment was the affidavit of one of the plaintiffs, Syed Daanish. I agree with the defendant, Rheem, that the focus of the plaintiff Syed’s affidavit was the venting pipe installation work performed by Reliance and its subcontractors.

[9] The plaintiffs do rely on an email from November 8, 2018, from the Reliance Home Comfort specialist as supporting its assertion that there was something wrong with the water heater. The email states in full:

[10] Mr. Syed in his affidavit stated that the above email indicates that the water heater has been recalled. It does not. At the oral hearing, counsel for the plaintiffs agreed that at its highest, the email may raise issues. In my view, the email in no way supports the assertion that the water heater, which was used for five years, after the carbon monoxide incident was defective in November 2013. Rather, the email seems to simply indicate that the water heater’s shelf life is not as long as first thought.

[11] It has now been nine years since the action was launched in 2014. The plaintiffs have no expert and no evidence in support of its contention that the water heater caused or contributed to the carbon monoxide incident. All that has been produced is an affidavit by one of the plaintiffs. As stated by Doi J. in FFO Fibreglass v. Distribution Composites, 2019 ONSC 4291 at para. 13:

Absent detailed and supporting evidence, a self-service affidavit does not create a triable issue.

[12] The motion for summary judgment is allowed. The claim against Rheem is dismissed.

[13] In the event that the parties cannot agree on costs, Rheem has two weeks from the release of this decision to submit is bill of costs and its written submission with respect to costs, totalling no more than two pages. The plaintiffs will have three weeks from the release of this decision to submit its written submission with respect to costs, totalling no more than two pages.

The Honourable Justice H. Leibovich Released: June 2, 2023

[1] The plaintiffs have started a second action for a carbon monoxide incident that is alleged to have occurred in November 2018. The two actions have been directed to be heard one after the other.