Ontario Trial Lawyers Association Case Summaries – December 16, 2016
Fontanilla v. Thermo Cool Mechanical, 2016 ONSC 7023 (CanLII)
An unsuccessful motion to add defendants more than 4 years after the incident with helpful comments about reasonable due diligence.
Released December 8, 2016 | Full Decision [CanLII]
This action arose from injuries suffered by the late Felisa Fontanilla. On January 31, 2011, Mrs. Fontanilla was preparing to take a bath in her apartment. While in the bathtub, she turned on the hot and cold water taps when suddenly the chrome diverter spout of the faucet burst, spraying scalding water all over her body causing significant burns. She passed away on October 6, 2011. This action was brought by her family members under the Family Law Act.
The Statement of Claim was issued on January 25, 2013 against Thermo Cool Mechanical (“Thermo”) and Living Waters Residence Inc. (“Living Waters”). Thermo was the contractor hired by Living Waters to replace certain plumbing for the building in March 2010. The Statement of Claim alleged that Thermo manufactured, installed and serviced the plumbing equipment and framed the case against it in both negligence and product liability. Thermo delivered its Statement of Defence on June 11, 2014 and its Third Party Claim against various defendants on June 18, 2014. Thermo alleged that it was an anti-scalding/mixing valve in the faucet that failed on January 31, 2011 and that this valve had been manufactured by Watts Water Technologies (Canada) Inc. (“Watts”) and supplied by Gayton Systems Development Inc, (“Gayton”). In June 2015, the plaintiffs brought this motion to add the various third parties as defendants. Some of the proposed defendants did not respond to the motion so leave to add them was granted on an unopposed basis. However, the proposed defendants, Watts and Gayton, opposed the motion on the basis of the expiry of the limitation period and prejudice.
Plaintiffs’ counsel swore an affidavit in support of the motion. She deposed that she spoke on the phone with an Aviva Canada representative (insurer for Thermo) on April 1, 2014 and learned for the first time of other potential parties; however, she was not provided with specific names or contact information for those parties at that time. She further deposed that the Third Party Claim was the first time additional parties had been identified to the plaintiffs by name. However, allegations against Watts and Gayton was made in Thermo’s Statement of Defence.
After noting that the action was commenced 6 days before the 2 year limitation period, Emery J. stated that the main question was whether there was evidence before the court that the plaintiffs or their lawyer exercised reasonable diligence to identify Watts and Gayton within the applicable limitation period. Although reasonable diligence is only one factor to take into consideration on a motion to add parties where a limitation period is an issue, it is an important factor. Emery J. considered the factors in Galota v. Festival Hall Developments (CA) and made the following comments:
- Although the identity and role of Watts and Gayton as manufacturer and supplier of the valve was not obvious to the plaintiffs, the plaintiffs were aware of the malfunction of the plumbing in the bathroom and were therefore also on notice that a further inquiry was necessary to determine the actual manufacturer and supplier of any inner workings of the boiler systems and faucets;
- There was no evidence of the steps taken to recover the plumbing pieces or any records of those parts that would have informed them that it was an anti-scalding/mixing valve in the faucet that failed, which could have informed them that Watts manufactured that valve and that Gayton supplied it.
- There was no evidence as to when the Statement of Claim was actually served on the defendants;
- It was within the plaintiffs’ power and control to have the Statement of Claim served forthwith;
- It was further within the plaintiffs power and control to require that the defendants deliver a Statement of Defence within a reasonable time, arguably before June 2013;
- Had the plaintiffs insisted upon timely delivery of the Statement of Defence, they would have learned about the proposed defendants as early as February 2013.
With respect to Watt and Gayton’s argument of prejudice because the plumbing parts/apparatus at issue no longer exist, the plaintiffs argued that they did not have access to Mrs. Fontanilla’s room after the incident to obtain the parts at issue. Emery J. noted that the plaintiffs did not provide any evidence of:
- Specific steps taken by Mrs. Fontanilla, her family or their counsel to make inquiries about, to give notice of or to otherwise preserve the plumbing parts;
- Any fact that the plaintiffs or their counsel did not have access to Mrs. Fontanilla’s unit; or
- The legal practice or customary steps that counsel for a plaintiff would take in similar situations and circumstances to preserve evidence.
Emery J. therefore found that Watts and Gayton will suffer prejudice that could not be compensated by way of costs. The plaintiffs’ motion to add these two defendants was dismissed.
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