Racz v. Akzo Nobel Canada Inc. Date:, 2012 BCPC 217

Citation: Racz v. Akzo Nobel Canada Inc. Date: 20120703 2012 BCPC 0217 File No: 20196 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ALF RACZ CLAIMANT AND: AKZO NOBEL CANADA INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: A. Racz Appearing for the Defendant: J. Corneil Place of Hearing: Abbotsford , B.C. Date of Hearing: June 27, 2012 Date of Judgment: July 3, 2012

Summary of Evidence [ 1 ] The Claimant Alf Racz is a self-employed painter in Mission, BC. The Defendant Akzo Nobel Canada Inc. in a national company with its head office Longueil, Quebec. It manufactures house paint and in connection with this case, it is the manufacturer of an interior acrylic latex paint sold by Rona Hardware stores. [ 2 ] The Claimant purchased some of this paint to complete a contract that he had to paint a house in Mission. He alleges that the paint was defective, requiring him to redo the job using different paint, and costing him about $3200 in labour and materials.

The Defendant denies that the paint was defective, but says in the alternative, if the paint actually was defective, its liability is limited to a refund of the cost of the paint. [ 3 ] The Claimant testified that in August of 2009 he had contracted to paint a house on Fisher Avenue in Mission, BC for a client of his. He went to the local Rona store intending to buy another brand of paint, but was convinced by a clerk to try the Rona brand of paint because it was cheaper. Ultimately it was not cheaper for the Claimant. [ 4 ] The Claimant used the paint on the home, but encountered some problems with it.

Some yellow dots appeared on the walls where some of the paint had been used. The Claimant applied another coat but the problem persisted. The Claimant went back to the Rona store and was referred to the Defendant’s sales representative, Mark Labistour. Mr. Labistour was meeting with customers in the northern part of the province and was unable to inspect the paint job. He speculated that the problem might have been something known as “surfactant bleeding” but the Claimant doubted this explanation because this is usually attributable to humid conditions and his painting conditions were optimal. Mr.

Labistour was never able to meet in person with the Claimant and never looked at the paint job until October. He did testify that the quality of the finished paint job was poor. In his words, it looked “watered down” and had a “very very thin sheen.” [ 5 ] The Claimant’s customer was unhappy with the painting and held back $1000 from the Claimant’s payment. He purchased a different brand of paint and repainted the house using a different brand of paint. Both the Claimant and the customer were much happier with the new paint job.

The Claimant had two employees to pay and had to purchase more paint from another supplier. He estimates that the cost to him of having to do the work twice was $3200 inclusive of labour and materials. [ 6 ] Both of the Claimant’s employees who helped to paint this house also testified at trial and each confirmed the poor quality of the Defendant’s paint and the problems with the yellow spots. They testified that the paint was stirred properly and was never watered down.

Although the Defendant has expressed suspicion in this regard, there is no evidence of any negligence on the part of the Claimant or his employees in the manner that the paint was applied. [ 7 ] The Defendant was able to obtain the lot numbers from the paint used by the Claimant and was able to search its own quality control records to determine if there were any problems with the paint when it was manufactured.

The Defendant’s Technical Services Manager, Sam Marinucci, testified that he used samples from the same batch of paint kept by the manufacturer, and he did not experience the same problems complained of by the Claimant. He did not use paint from the same cans as the Claimant, but from the Defendant’s samples from the same batch of paint collected at the time it was manufactured.

He also testified that there were no other complaints received from any other customer regarding this same batch of paint. [ 8 ] In spite of the fact that the Defendant’s samples of this paint appeared fine and in spite of the fact that there were no other complaints about paint sold from this batch, the evidence satisfies me that there was a problem with this paint. This appears to be the case not only from the evidence of the Claimant and his employees, but also from the observations of the Defendant’s representative, Mr. Labistour.

He wrote in a report to the Defendant that the finish after two coats of paint were applied appeared “extremely uneven” and that he observed brown streaking in the paint. Applicable Law [ 9 ] In British Columbia, the Sale of Goods Act sets out the law regarding implied warranties which apply to sellers on products sold by a seller to a buyer.

Section 18 of that Act begins as follows: 18. Subject to this and any other Act, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale or lease, except as follows : [ 10 ] The

section goes on to legislate certain implied conditions into every sale of goods, including, in some circumstances, an implied condition that the goods are reasonably fit for their intended purpose, that they are of merchantable quality, and that they are fit for a particular purpose based on trade usage. The problem the Claimant has is that these are warranties given by the seller, not by the manufacturer. The law does not extend these warranties to the manufacturer because the goods have left the manufacturer’s control by the time they are sold and because the manufacture does not receive any compensation directly from the buyer at the time of sale. The warranties contained in

section 18 are not binding on the manufacturer in this case. [ 11 ] In some provinces, the legislature has passed legislation in which the manufacturer is bound to certain warranties even where, as in this case, the manufacturer never deals directly with the buyer. An example of this can be found in

Part III of Saskatchewan’s Consumer Products Warranties Act. British Columbia does not have legislation which extends the same warranties on sellers to manufacturers and therefore the Defendant in this case is not bound to provide the same warranties to the Claimant that the company who sold the paint to him is required to under

section 18 of the Sale of Goods Act . If the Claimant had sued the Rona store, may be able to have some of these warranties enforced against Rona because they were the party who took his money for the paint and the party with

whom he had a contact for the sale of paint. The Defendant is not the seller in this case and therefore the warranties under

section 18 arenot enforceable against it. [12] The obligations on a manufacturer (who is not the vendor) at law are different than those of a vendor. The manufacturer is notparty to any contract with the purchaser and so warranties in a contract of sale, either expressed or implied, do not apply to themanufacturer because the manufacturer has not made any contract with the purchaser.

If any liability rests with the manufacturer, it mustbe because he has committed a tort (a civil wrong) not because he has breached a contract. [13] The law of tort does not impose any obligations on a manufacturer similar to those warranties contained in the Sale of GoodsAct, such as a warranty of fitness for purpose. The Supreme Court of Canada has held in a number of decisions that manufacturers andsuppliers are required to warn all those who may reasonably be affected by potentially dangerous products, even those persons who arenot party to the contract of sale.

A dangerous product is not the same as a product of poor quality. [14] A leading case in Canada on manufacturer’s liability in Canada is Rivtow Marine Ltd. v. Washington Iron Works, (SCC), [1974] S.C.R. 1189. In that case the Supreme Court of Canada held that a manufacturer of products sold in the formthat he intends them to reach the ultimate consumer owes a duty to the consumer to take reasonable care that those products will notresult in an injury to the consumer's life or property. The manufacturer is liable in tort, as distinct from contract, to an ultimate con​sumeror user for damage arising in the

article itself, or for economic loss resulting from the defect in the article, but only for economic lossflowing from personal injury and damage to other property caused by the

article or its use. Damages for pure economic loss (as opposedto damages resulting from physical injury to person or property) are not recoverable for breach of that duty of care. [15] In this case, the paint used by the Claimant and manufactured by the Defendant was of poor quality. But it was not adangerous product and it did not cause personal injury or damage to property. It did not damage the walls. They were able to berepainted.

The Defendant is not liable in tort under those circumstances. [16] Because the Defendant did not sell the paint to the Claimant and was not a party to any contract with the Claimant, theDefendant is also not liable in contract. The Defendant is not bound by the warranties contained in

section 18 of the Sale of Goods Actbecause it did not sell any goods to the Claimant. [17] The burden of proof in a civil claim rests with the Claimant to show, on a balance of probabilities, that the Defendant is liablefor the claim. Here the Claimant has not met that burden of proof and there is no basis in law to rest liability on the Defendant. Order [18] For the foregoing reasons, the Claim brought by the Claimant against the Defendant is dismissed. [19] Normally costs are awarded to the successful party.

In this case, the Claimant was required to eat the cost of having hisemployees repaint the same premises because of the Defendant’s defective product. The Defendant has been spared judgement in thismatter not because its product wasn’t defective, but because the law does not afford the Claimant a remedy against it in this provinceunder these circumstances. It would seem unfair to saddle the Claimant with the Defendant’s costs as well. Accordingly each party shallbear their own costs of this action.

Dated at the City of Abbotsford, in the Province of British Columbia this 3rd day of July, 2012. ________________________________ The Honourable Judge K. D. Skilnick