By: Shaun A. Hashim, Litigation Associate
Even for those who purchase and install products, compliance with statutory regulation is a must. In Taylor v. Great Gulf (Whitby) Ltd.,[1] a contractor who purchased and installed materials which were improperly labelled learned an important lesson in negligence law: although a breach of statutory authority does not alone give rise to civil liability, such breaches can be evidence of negligence. In deciding that there was a serious issue to be tried, the court took a broad view of causation and decided that it would be open to trier of fact to find that the defendant’s breach of code was substantially connected to the plaintiff’s injury. In Taylor, the defendant, I/Land Plumbing, was hired by the co-defendant, Gulf View Contracting Limited, to install a series of plumbing fixtures in residential homes. One of those residences was owned by the plaintiff. As part of its contractual duties, I/Land installed a toilet using a particular flex hose. Five years after installation, a flood occurred which caused damage to the plaintiff’s residence.
The plaintiff sued the defendant contractors, and I/Land moved for summary judgment alleging that there was no evidence of negligence on its part.
The Canadian Standards Association’s (“CSA”) standards, as well as provisions of the Ontario Building Code,[2] were central to the motion for summary judgment. The CSA requires that plumbing supply fittings be marked with particular certification information, while the Building Code states that products lacking these markings “shall be regarded as proof, in the absence of evidence to the contrary, that no certification exists”.[3] The hose installed by I/Land was in violation of the Building Code as it had not been certified by the CSA and did not have the requisite markings.
In its motion for summary judgment, I/Land argued that the mere absence of CSA certification was not the cause of the damage. The defendant pointed out that, according to expert evidence, both CSA-certified hoses and non-certified hoses had failings that would lead to failures after a period of time. Thus, I/Land claimed that the absence of a CSA certification is not the cause of the loss.
The Court stated that I/Land’s argument amounted to “the proposition that there is no evidence of negligence because there is no evidence of causation.” The Court rejected this argument, stating that “the mere breach of a statutory authority or code does not, of itself, automatically give rise to civil liability. However, failure to observe the requirements set out by regulatory authorities is evidence of negligence”.[4] The Court also pointed to other allegations of negligence that were confirmed by the discovery of I/Land’s witness, and were sufficient to show that there was a sufficient issue requiring a trial.
The Court also rejected I/Land’s causation argument that the expert evidence showed that even CSA-approved hoses had failed, so the mere absence of CSA approval could not have “caused” the hose to fail. The Court noted that the fact that CSA-approved hoses failed does not have any bearing on the question of whether I/Land was negligent in selecting a defective hose. In addition, the Court relied on Supreme Court jurisprudence which states that causation is not a simple “join the dots” exercise,[5] the Court held that the test for causation is whether there is “a substantial connection between the injury and the defendant’s conduct”.[6] The Court concluded that it was open to the trier of fact to determine that there was a substantial connection between I/Land’s selection and fitting of a defective hose and the damage. Accordingly, the summary judgment motion was dismissed.
Ultimately this case reaffirms that, although an otherwise innocuous breach of code (such as the failure to stamp a flex hose) may not in itself give rise to civil liability, a breach of code is nevertheless evidence of negligence. Given the court’s broad view of causation, an act of non-compliance with code can support a “substantial connection” capable of establishing causation in tort.
Footnotes
[1] Taylor v. Great Gulf (Whitby) Ltd., 2015 ONSC 6891 [Taylor].
[2] O. Reg 332/12.
[3] Ibid, s. 7.2.1.3(3).
[4] Taylor at para. 19. See also Ryan v. Victoria (City), [1999] 1 S.C.R. 201 (S.C.C.).
[5] Clements (Litigation Guardian of) v. Clements, 2012 SCC 32.
[6] Hanke v. Resurface Corp., 2007 SCC 7.
Shaun Hashim is an associate at Theall Group LLP and maintains a broad commercial litigation practice. Prior to joining Theall Group LLP, Shaun summered and articled at the Toronto office of a prominent national law firm, gaining commercial litigation experience in a wide range of disputes involving fraud, breach of fiduciary duties, employment law, and the oppression remedy. Shaun graduated from the University of Windsor’s Faculty of Law in 2014 and was called to the Ontario Bar in 2015. Shaun is an editor for the Insurance chapter to be published in Bullen & Leake & Jacob’s 3rd Edition of Canadian Precedents of Pleadings in 2017.
For more information, visit https://theallgroup.com/