Mark Gosselin - v. -, 2011 SKPC 23

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 023 Date: January 20, 2011 File: 141 of 2011 Location: Regina _____________________________________________________________________________ Between: Mark Gosselin - and - Watts Electric Ltd. Self For the Plaintiff Dan D. Morris For the Defendant _____________________________________________________________________________ JUDGMENT M.

HINDS , J _____________________________________________________________________________ Introduction [ 1 ] The Defendant’s employee pre-wired an electrical connection for a hot tub to be installed outside the Plaintiff’s home. Approximately one week later on a cold day in January, the hot tub was delivered to the Plaintiff’s home and filled with water. The Plaintiff and another individual attempted to connect the electrical wiring to the hot tub. They were unsuccessful. After some time the Plaintiff drained the water from the hot tub. The next day the owner of the Defendant company went to the Plaintiff’s home.

He made a change to the electrical wiring which resulted in power to the hot tub. The hot tub unit did not, however, heat the water. The Plaintiff discovered the heater assembly to the hot tub was damaged due to freezing. The Plaintiff’s claim against the Defendant are the expenses he incurred to thaw and fix the hot tub, being $1,935.24.

[ 2 ] I found that the Plaintiff did not establish that the Defendant company breached a term of the parties contract. I also found that the Defendant company is not liable to the Plaintiff in negligence or for a negligent misrepresentation. Facts [ 3 ] The Defendant company had previously wired the Plaintiff’s home in the summer of 2008 without incident. The parties had an agreement that the Defendant would also wire the electrical connections for the hot tub which the Plaintiff subsequently purchased from Paradise Pools in the month of December 2009.

The hot tub was to be situated outdoors, close to the Plaintiff’s home. The Plaintiff contacted Mr. Allan Gorrill, the owner of Watts Electric Ltd. shortly thereafter advising Mr. Gorrill of his hot tub purchase. The parties did not fix a specific date when the Defendant company was to wire the Plaintiff’s hot tub as he did not know the exact date it would be delivered to his home.

The parties agreed that the Defendant company would wire the electrical connections from inside the Plaintiff’s house to an area outside the Plaintiff’s house where the hot tub was to be situated. [ 4 ] On January 7, 2010, Dan Crystal, an employee of the Defendant attended at the Plaintiff’s home and “pre-wired” an electrical connection from the interior of the Plaintiff’s house to the exterior of the home.

This pre-wiring work involved an electrical connection from the Plaintiff’s main electrical panel situated inside the home to a hot tub “pony panel” (supplied by the Plaintiff) also within the interior of the Plaintiff’s home and from the pony panel to the exterior of the Plaintiff’s home where the hot tub was to be situated. Two cables which consisted of three wires each (2 red, 2 black and 2 white wires) led from the pony panel to the exterior of the home. [ 5 ] Mr. Gorrill testified that when he said he would pre-wire the hot tub, he did not actually say he would have power out there.

However, on cross-examination he admitted that after the pre-wiring was completed he told Mr. Gosselin that the hot tub would be “good to go”. [ 6 ] The Plaintiff testified that no one from the Defendant company gave him any instructions as to how to connect the wires to the hot tub. Mr. Gosselin also admitted that he did not ask for any such instructions. [ 7 ] Mr. Gorrill testified that his company would not normally pre-wire a hot tub.

Rather he would go to a residence, do the wiring as described above, and then wait for the hot tub to be delivered and then make the electrical connections from the wires leading from the pony panel to the hot tub, in accordance with the electrical diagrams located inside the hot tub door. [ 8 ] On or about Wednesday, January 12, 2010, Mr. Gosselin contacted Mr. Gorrill and told him his hot tub was to be delivered to his home on Saturday, January 15, 2010. Mr. Gorrill told Mr. Gosselin that he couldn’t help him out on Saturday, January 15 th , as he and the employees of his company did not work on weekends. Mr.

Gosselin responded and told Mr. Gorrill that it was “no problem” and one of the fellows from Paradise Pools could wire the hot tub. Mr. Gorrill did not discourage this approach. Mr. Gosselin did not ask for any instructions as to how to make the electrical connections to the hot tub. [ 9 ] The hot tub was delivered to the Plaintiff’s home by an employee of Paradise Pools, Trent Lanigan, on January 15, 2010. It was a very cold day, well below zero degrees Celsius. Mr. Gosselin was present at the time of the delivery. Mr. Lanigan unloaded and levelled the hot tub on an area next to the Plaintiff’s home. Mr.

Lanigan and the Plaintiff then proceeded to fill the hot tub with water and attempted to connect the electrical wire leading from the interior of the house to the hot tub. Mr. Gosselin followed the instructions set out in a manual which accompanied the hot tub. [ 10 ] The two men were unable to make a successful electrical connection to the hot tub for approximately three and one-half hours. During this time, Trent Lanigan placed a telephone call to an individual named Brock at Paradise Pools regarding the lack of power to the hot tub. Brock and Mr.

Gosselin exchanged some words over the telephone regarding the wiring situation and the lack of electrical power to the hot tub. The men were unable to solve the problem of getting electrical power to the hot tub. [ 11 ] Mr. Lanigan told the Plaintiff, Mr. Gosselin that he had two options. The first option was to have an electrician attend the

residence and make a successful electrical connection to the hot tub. The second option was to drain the tub immediately and winterize it. [ 12 ] Mr. Gosselin attempted to contact Mr. Gorrill on Saturday, January 15, 2010. He was unsuccessful, however, he managed to leave a message requesting Mr. Gorrill’s electrical help. [ 13 ] Mr. Lanigan suggested that the water should be drained from the hot tub. Mr. Lanigan left the Gosselin residence while the hot tub was still full of water. Mr. Lanigan did not give Mr. Gosselin any specific instructions on how to winterize the hot tub. During the trial Mr.

Lanigan testified that the proper way to winterize a hot tub is to drain it of water, vacuum up any excess water and then pour antifreeze down the hot tub filter compartment and tubing. [ 14 ] The Plaintiff emptied the water from the hot tub using a submersible pump and an air compressor. There was no evidence that the Plaintiff poured antifreeze down the hot tub filter compartment and tubing. [ 15 ] Mr. Gorrill discovered that the Plaintiff had been trying to reach him by telephone later on January 15, 2010. Mr. Gorrill contacted the Plaintiff by telephone around 8:00 or 9:00 p.m. Mr. Gorrill told Mr.

Gosselin that the earliest he could come to his residence and look at the wiring was the next day, January 16, 2010. [ 16 ] Mr. Gorrill went to the Plaintiff’s residence on Sunday, January 16, 2010 around 1:00 p.m. Mr. Gorrill testified that it was approximately 30 below zero Celsius on January 16 th . When he arrived Mr. Gorrill observed that water was being added to the hot tub, which was one-half full. [ 17 ] Mr. Gorrill examined the wiring to the hot tub. He testified that he observed that one of the white wires was improperly hooked up at the hot tub. Mr.

Gorrill went on to say that rather than making the proper connection at the hot tub he rectified this wiring mistake by adjusting the wiring at the pony panel, located inside the house. He found it warmer to work in the house. [ 18 ] Once the wiring was properly connected, there was electrical power at the hot tub. Unfortunately, the hot tub did not work. [ 19 ] Paradise Pools subsequently examined the hot tub and discovered that the water lines and the heater unit were damaged due to freezing. The heater and water lines had to be repaired. The cost of the repair was $1,935.24. Issues: 1.

Did the Defendant breach a term of the contract he had with the Plaintiff to wire the hot tub? 2. Was the Defendant negligent towards the Plaintiff? If so, did the Defendant’s negligence result in damages to the Plaintiff? 3. Did the Defendant make a negligent misrepresentation to the Plaintiff? If so, did the Defendant’s negligent misrepresentation result in damages to the Plaintiff? Analysis 1.

Did the Defendant breach a term of the contract he had with the Plaintiff to wire the hot tub? [ 20 ] In this case, the Plaintiff and Defendant entered into a contractual agreement in which the Defendant agreed to wire the Plaintiff’s hot tub. On January 7, 2010, the Plaintiff permitted the Defendant company to “pre-wire” his residence in anticipation of the

hot tub being delivered at a later date. While the Plaintiff requested the Defendant company to complete the electrical connection to thehot tub when it was to be delivered on January 15, 2010, I find that Mr. Gorrill on behalf of the Defendant company made it clear to thePlaintiff well in advance, that his company would not be available to do the electrical work on January 15, 2010. I find that despiteknowing that the Defendant company was unavailable on January 15, 2010, the Plaintiff made a decision to take delivery of the hot tubthat bitterly cold day.

I also find that the Plaintiff made a decision to fill the hot tub with water and attempt to make the electricalconnection himself. This decision proved to be a poor decision. He was unable to make a successful electrical connection. While thePlaintiff did his best to drain the hot tub on January 15, 2010, I find that he did not properly winterize the hot tub. Some of the water inthe hot tub froze and damaged the water lines and heater. [21] The parties did not specifically agree upon a date that the Defendant company would complete the wiring.

As a result I am ofthe view that the Defendant company cannot be found liable for breach of contract. Had the Plaintiff simply waited until the Defendantcompany could come to his residence and complete the electrical connections, no damage would have occurred to the hot tub. 2. Was the Defendant negligent towards the Plaintiff? If so, did the Defendant’s negligence result in damages to the Plaintiff? [22] The tort of negligence is independent of the contract between the parties.

The Defendant company clearly owed the Plaintiff aduty of care to properly pre-wire the electrical connections from the house to the hot tub. However, I am of the view the Plaintiff has notproved, on a balance of probabilities, that the Defendant company breached the standard of care expected of an electrician carrying outpre-wiring electrical connections. The evidence at trial is unclear as to whether or not the Defendant company did a proper job of pre-wiring the electrical connections.

The Plaintiff did not call an expert witness in electrical wiring to establish the deficiencies, if any, ofthe pre-wiring work. Nor did the Plaintiff produce the manufacturer’s instruction manual respecting the required electrical connectionsfor the hot tub. 3. Did the Defendant make a negligent misrepresentation to the Plaintiff? If so, did the Defendant’s negligent misrepresentationresult in damages to the Plaintiff? [23] The tort of negligent misrepresentation is also independent of the contract between the parties.

There are five elements of thecause of action of negligent misrepresentation, as set out in R. v.

Cognos Inc., (SCC), [1993] 1 S.C.R. 87, at p. 110: a. there must be a duty of care based on a “special relationship” between the representor and the representee; b. the representation in question must be untrue, inaccurate, or misleading; c. the representor must have acted negligently in making the misrepresentation; d. the representee must have relied, in a reasonable manner, on the negligent misrepresentation; e. the reliance must have been detrimental to the representee in the sense that damages resulted. [24] In this case I am satisfied that a duty of care existed between Mr.

Gorrill as an employee/owner of the Defendant companyand Mr. Gosselin. I am not, however, satisfied that the Plaintiff has established that the representation “it’s good to go” in reference tothe pre-wiring work was untrue, inaccurate or misleading. First, this phrase lacks precise meaning. In my view the Plaintiff should have,but did not, request the Defendant to clarify that meaning.

Second, while the pre-wiring was completed by the Defendant company onJanuary 7, 2010, it was clear to the Plaintiff that additional electrical wiring was required once the hot tub was delivered and installednear the Plaintiff’s residence. The additional electrical work was not a simple task. It involved connecting six wires to the hot tub. Thisis exactly why the Plaintiff had requested the Defendant company to complete the wiring on January 15, 2010. Regrettably, the Plaintiffchose to attempt to complete the wiring himself rather than wait for work to be done by the Defendant company.

Summary [25] I am of the view that the Plaintiff has not established: (1) that the Defendant company breached a term of the contractualagreement between the parties, (2) that the Defendant company was negligent, or (3) that the Defendant company made a negligentmisrepresentation.

[ 26 ] I therefore dismiss the Plaintiff’s claim against the Defendant company. The Plaintiff shall pay the Defendant the sum of $200.00 in costs. ________________________ M. Hinds, J