Keenan v. EPS Ventures Ltd. Date:, 2014 BCPC 152

Citation: Keenan v. EPS Ventures Ltd. Date: 20140707 2014 BCPC 0152 File No: 38857 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KELLY ANN KEENAN CLAIMANT AND: EPS VENTURES LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Ms. Kelly Keenan Appearing on their own behalf: Mr. Stephen Steinbach

Place of Hearing: Kamloops , B.C. Date of Hearing: June 12, 2014 Date of Judgment: July 7, 2014 [ 1 ] This is a straight forward claim. Ms. Keenan discovered in 2006 that her pool liner was ripped. She contacted EPS Ventures Ltd. who were carrying on business as Pool Mart. Apart from replacing the liner they did a considerable amount of other work for which Ms. Keenan has no complaint. The bill was not a small one. [ 2 ] The liner had to be adjusted by Pool Mart a number of occasions after it was first installed to remove pebbles and attend to leaks.

The evidence indicates that this has to be done within the first two years because that is when the liner is still flexible enough to stretch and move it without removing it entirely. Despite the repeated adjustments including gaskets to stop leaks around the skimmer entrance, the liner eventually developed pock marks, which tore. This was discovered by Ms. Keenan in the summer of 2010. The tearing and stretching of the liner is limited to the corner by the skimmer where all of the installation issues had apparently arisen. [ 3 ] Ms.

Keenan elected to go with Desert Pools and Spas to replace the liner for $5,784.83. At this point, the liner was five years old. [ 4 ] The Defendant acknowledges that the liner failed prematurely but says it ought to have had the opportunity to inspect the damages and return to the manufacturer for repair or replacement.

It also argued that it ought to have been given the opportunity to assess whether it was the sunshine or the chemicals used in the pool, either on a regular basis or during winterizing, which may have caused the premature failure. [ 5 ] The Defendant also said that when the water is taken down for winterizing, this particular liner shrinks and then stretches when filled. The Defendant said that it was not uncommon for these liners to fail and it was a poor design from the manufacturer’s point of view. [ 6 ] The Defendant said that it did not do anything incorrect.

Desmond Staples, on behalf of the Defendant, testified that every pool starts with a design that has its own nuances that must be measured individually. He has measured many pools and has a good deal of experience. When this liner failed, he started talks with the manufacturer believing that it was a poor manufacturer issue. However, they were served with papers and they proceeded no further through the manufacturer. That was a misguided decision.

The Defendant ought to have pursued the matter with the manufacturer so that it could satisfy itself regarding the cause of the failure and whether their installation and adjustments contributed to the failure. [ 7 ] Mr. Staples also testified that a person can expect 20 years of life out of the liner if the water does not have to be taken out. Because of the nature of the pool that Ms. Keenan had, the water intakes are placed lower on the pool than normal, requiring winter draining to be taken down further. This results in extra stress on the liner.

He conceded that because the liner wear is around the corner next to the skimmer, it could be the liner failed because the skimmer does not allow as much movement. He also acknowledged that there were some installation errors that had to be corrected at the time of installation. However, he maintained that these did not explain the failure. He acknowledged based on the pictures that this was liner separation and that he would have looked to the manufacturer to determine why it had not attached. He also acknowledged that there must have been a leak because he could see evidence of repairs that they must have done.

Mr. Staples concluded by saying that the failure was going to be caused by the structure and design of the pool. He said that is why manufacturers have changed the design of pools. [ 8 ] The possibilities posed by Mr. Staples suggest the liner failure could as easily be a combination of installation issues, liner manufacturer issues and pool design. [ 9 ] Stephen Steinbach was also a co-owner of Pool Mart at the time. He maintained that the premature aging of the liner was based on sunshine. He said that a person can normally expect 7 to 10 years on a pool with no corners or with two foot radius corners.

He said these corners were abrupt. He claimed the failure had little to do with the manufacturer because they all use the same vinyl. This contradicts Mr. Staples’ testimony. [ 10 ] Mr. Steinbach said that Ms. Keenan came in to the shop around the end of the season in 2010. He assumed the Defendant sent someone out to look at the damage. He said the Defendant offered to put in a reinforcing patch but she did not want the Defendant to “touch it”. There were some delays in having the manufacturer come to examine the liner which delays covered several months.

It should have come as no surprise to the Defendants that they were ultimately served with court papers. [ 11 ] Mr. Steinbach said that the Defendant would have wanted the opportunity to look at the damage and fix it first. They were denied that opportunity. On his evidence, that is not supported. A party is entitled to view and fix damages but must do so expeditiously, not on their own schedule. [ 12 ] Mr.

Steinbach’s evidence is largely unreliable being based entirely on assumptions and not supported by any clear memory. [ 13 ] I find that the liner failure was a combination of defective installation and a faulty liner. The pool design demanded that installation be done in such a way as to give care and attention to how the skimmer interfaced with the liner and the pool.

The liner did not adhere and that is an installation issue. [ 14 ] Because the bottom of the pool had not been primed to remove all of the pebbles, it was necessary for the liner to be lifted and replaced within a month of its initial installation. As a result, the liner was further weakened. There also appears to have been at least one leak that had to be repaired around the skimmer area which was a point of stress already for the liner. I find that the Claimant has proved her claim on the balance of probabilities.

[ 15 ] I will briefly address the limitation issue raised by the Defendant. The liner was installed in 2006 but the defect did not manifest itself 'til 2010. Ms. Keenan reported the problem to the Defendant immediately and commenced her action within the limitation periods then in effect. [ 16 ] The liner was five years old at the time that the failure manifested itself. Ms. Keenan ought to have enjoyed another five years out of her liner based on the life expectancy expected for a pool requiring the water to be drained for winter.

Having already served half of its expected life, I allow half of the claim in the sum of $2,892.42. [ 17 ] The Claimant shall have her reasonable costs of the claim to be assessed by the Registrar. __________________________ S.D. Frame Provincial Court Judge