Edwards v. Parkinson’s Heating Ltd., 2015 BCSC 1094

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Edwards v. Parkinson’s Heating Ltd., 2015 BCSC 1094 Date: 20150625 Docket: S118765 Registry: Vancouver Between: Margaret Elizabeth Edwards and John Philip James Pinel Plaintiffs And Parkinson’s Heating Ltd. and Kenorah Construction & Design Ltd. Defendants Before: Master Taylor Reasons for Judgment Counsel for the Plaintiffs: J. Michaud Counsel for the Defendants: C. Rhone Counsel for intended Third Parties: R. Benham-Parker Place and Date of Hearing: Vancouver, B.C. June 16, 2015 Place and Date of Judgment: Vancouver, B.C. June 25, 2015 [ 1 ] The following orders are sought by the defendant/applicants: (

a) Leave to file a third party notice to add as third party, FPI Fireplace Products International Ltd.; (

b) Adjournment of the trial of this matter currently scheduled to proceed on October 5, 2015 for 14 days; and (

c) Costs in the cause, if opposed. [ 2 ] The relief sought in the proposed Third Party Notice is essentially for a declaration that the claiming parties are entitled to contribution and/or indemnity from the third party for any injury, loss, damage or expense sustained by the plaintiffs for which the claiming parties are found wholly or partially liable, and a declaration that liability be apportioned to the degree to which the parties caused or contributed to the alleged damage of the plaintiffs.

Background Facts [ 3 ] By notice of civil claim (“NoCC”) filed December 21, 2011, the plaintiffs claim for general and special damages against the defendants for injuries suffered by each of them as a result of leaking carbon monoxide gas from a fireplace (the “fireplace”) on the second floor of their residence. [ 4 ] The plaintiffs allege in the NoCC that sometime in 2007 they hired Kenorah Construction & Design Ltd. (“Kenorah”) as general contractor for renovations to be done to their home, and that Kenorah hired Parkinson’s Heating Ltd. (Parkinson’s”) as its subcontractor. [ 5 ] The fireplace was removed by Kenorah or Parkinson’s during renovations and stored in the garage of the house.

It is alleged that the fireplace was stored upside down, and that other materials were placed on top of the fireplace while it was stored in the garage. In June 2008, the fireplace was re-installed by Parkinson’s or Kenorah. [ 6 ] When the plaintiffs moved back into their renovated home in November 2008, they noticed that a hinge on the fireplace was broken and embers were missing. The broken hinge was fixed, the missing embers were replaced and a fan was re-connected in February 2009. [ 7 ] Later in 2009, the plaintiffs allege they developed symptoms including headaches, loss of balance, loss of concentration,

inability to complete simple tasks and multi-task, nausea, and fatigue. [8] In November, 2009, all the fireplaces in the plaintiffs’ residence were serviced. In early January 2010, over a period of fourdays, the plaintiffs allege they suffered from serious headaches, nausea and loss of appetite. [9] As a result of these physical complaints, the plaintiffs contacted their gas supplier, Terasen Gas, now known as FortisBCEnergy Inc. The plaintiffs were advised to leave their residence immediately.

Subsequently, a gas technician determined the fireplacewas leaking carbon monoxide and tagged the fireplace with a red tag that stated “Danger - Notice of Hazardous Condition”. [10] A gas fitter from Parkinson’s attended the plaintiffs’ residence on January 12, 2010 and found the fireplace not connected or notproperly connected to the vent. [11] In the NoCC, the plaintiffs allege they were exposed to carbon monoxide due to a gas leak, which caused them both short andlong term injuries and other loss and damage. They also allege the leak was caused or contributed to by the negligence of Parkinson’s orKenorah.

The Law [12] Rule 3-5(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, provides:

(1) A party against whom relief is sought in an action may, if that party is not a plaintiff in the action, pursue a third party claimagainst any person if the party alleges that (

a) the party is entitled to contribution or indemnity from the person in relation to any relief that is being sought against the party in theaction, (

b) the party is entitled to relief against the person and that relief relates to or is connected with the subject matter of the action, or (

c) a question or issue between the party and the person (

i) is substantially the same as a question or issue that relates to or is connected with (

A) relief claimed in the action, or (

B) the subject matter of the action, and (ii) should properly be determined in the action. [13] Subsection (4) of Rule 3-5 mandates that leave of the court must be obtained if a party wishes to file a third party notice morethan 42 days past service of the notice of civil claim. [14] Some of the applicable principles that apply to an application for leave to file a third party claim are summarized in StevestonSeafood Auction Inc. v. Bahi, 2013 BCSC 1072, at para. 19: [19] These can be summarized as follows: (

a) The test on this application is the same as under Rule 9 – 5. The proposed third party must establish beyond doubt that the pleadingsdiscloses no cause of action. The court is permitted to reject proposed claims only if the action is “bound to lose” or there is no bona fidetriable issue. Drummond v. Moore, 2012 BCSC 496 at para. 25. (

b) In exercising its discretion as to whether leave ought to be granted, the court can consider factors such as prejudice to the parties, theexpiration of a limitation period, the merits of the proposed claim, any delay in the proceedings and the timeliness of the application. Clayton Systems 2001 Ltd. v. Quizno’s Canada Corporation, 2003 BCSC 1573 at para. 9. (

c) The court is required to assume that all pleaded facts are true. Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959 at 980. Dhillon v. Coape and Hockaday, 2004 BCSC 1208 at paras. 17-18. (

d) An important consideration is whether it is “just and convenient” in all the circumstances of the case to grant leave to file the thirdparty notice. Symes v. Knooihuizen, (BC SC), 1998 B.C.J. No. 611 at paras. 38-39. Clayton Systems 2001 Ltd. at para. 9. … Discussion and Analysis

[ 15 ] In a report dated July 8, 2013, Mark Bailey, a registered professional metallurgical and mechanical engineer concluded that the carbon monoxide leak was probably due to a disconnect between the fireplace and draft hood assembly. [ 16 ] In a further report prepared for the plaintiffs dated May 6, 2015, Dr.

Kosmas Galatsis, Ph.D., professor of Material Science and Engineering at UCLA also found that failure to install and anchor the screw between the firebox and draftbox, allowed the draftbox to be detached from its intended position, resulting in toxic exhaust gases to be misdirected into the living room. [ 17 ] Dr. Galatsis also commented that the emitted CO concentration exceeded the meter’s limit of 2000ppm.

If the fireplace heater was properly vented and installed, he opined the fault mode would not have occurred and large amounts of carbon monoxide would not have been misdirected into the upstairs living space. Dr. Galatsis went on to say that improper installation of the fireplace venting system is apparent. Dr. Galatsis said the installation of the fireplace heater did not follow manufacturer installation instructions. For example, no B-vent or similar liners were used, nor were any vent support structures installed.

B-vent and similar liners are rigid and inflexible structures unlike the inferior aluminum flex pipes that were installed. [ 18 ] The above findings by Dr. Galatsis are set out at page 44 of his report under the heading:

Summary of Opinions. [ 19 ] At page 39, under the heading Aim 4: Undertake “source measurements” to determine the physical amount of carbon monoxide being emitted by the fireplace gas heater, Dr. Galatsis observed: “The gas heater does not comply with ANSI Z21 standards…. Maximum limit for a decorative gas heater is 400ppm. … Residents should cease using this heater and have it replaced immediately”. [ 20 ] The only reasonable inference to be drawn from the report of Dr.

Galatsis is that the heater did not comply with the appropriate standards because the fireplace was reinstalled contrary to the manufacturer’s installation instructions. [ 21 ] The defendants maintain that this was the first time that anyone has said that the fireplace was malfunctioning and that it was inappropriate for any use whatsoever.

The defendants now wish to assert, as an alternate defence, that if the fireplace had not malfunctioned through the emission of excess carbon monoxide gas, the level of carbon monoxide gas entering into the dwelling would have been within acceptable standards, even if the alleged disconnection had occurred between the draft hood assembly and the fireplace. [ 22 ] Accordingly, the defendants seek an adjournment of the trial in this matter and an order that they be granted leave to file a third party notice such that FPI Fireplace Products International Ltd. (“FPI”) is added as a third part to these proceedings. [ 23 ] The application is of particular concern to the plaintiffs because of their ages; Ms.

Edwards is almost 67 years of age, while her husband, John Pinel, is 71. They are concerned about the length of time it would take to have a trial if this matter were adjourned, a necessity which would be caused by the addition of a third party. [ 24 ] As well, the following history of the litigation is noteworthy:

a) The NoCC was filed on December 21, 2011 and served on the defendants on September 21, 2012.

b) The defendants filed a response to civil claim on January 16, 2013.

c) A notice of trial was filed on April 2, 2014, securing a 14-day trial, commencing October 5, 2015.

d) The expert report of Mark Bailey was received on or about July 8, 2013.

e) The expert report of Dr. Galatsis was received on May 5, 2015.

f) The expert report of David G Penney, Ph.D., a toxicologist with a specialty interest in carbon monoxide, was received May 28, 2015. [ 25 ] The intended third party, FPI makes the following submissions: • The NoCC expressly says the fireplace was leaking excess carbon monoxide; • as of the date of the application hearing the defendants had not measured the level of carbon monoxide emissions from the fireplace; • although the defendants have known about the fireplace leaking carbon monoxide since January 12, 2010, they have taken no steps to remediated the situation or test the fireplace emissions; • while the limitation period which affects the defendants has not even begun to run nor will it commence until judgment has been given, the plaintiffs claim against FPI has long since expired; • there is no claim in the pleadings which suggests any ill-effects were suffered by the plaintiffs prior to the reinstallation of the fireplace; • the plaintiffs have prosecuted their claim with dispatch; • testing of a representative sample of the same fireplace at time of manufacture shows no excessive emissions, such that any claim against FPI at this stage in the proceedings would essentially make it a highly tenuous claim; and • the defendants have essentially waited until near the eve of trial to bring this application. [ 26 ] Based on these submissions, FPI submits it would have been prudent for the defendants to commence third party proceedings as

of right within the 42 days following service of the NoCC, and now that it seeks to engage FPI as third party, it is highly prejudicial to the plaintiffs as well as FPI. [ 27 ] The plaintiffs submit that the alleged cause of the leak has been the entire focus of the case in that it is alleged a missing screw has caused the vent to be disengaged from the firebox and therefore leaking carbon monoxide into the residence instead of being vented to the outside. [ 28 ] The plaintiffs acknowledge the starting principle as set out in Tyson Creek Hydro Corporation v.

Kerr Wood Leidal Associates Limited, 2013 BCSC 1741 , at para. 53 , is to avoid a multiplicity of proceedings.

Goepel J., as he then was, also suggested that by limiting the time in which a third party notice can be issued without leave, the rule makers … clearly signalled that other factors must be considered when the court is asked to exercise its discretion to allow a third party notice to be issued. [ 29 ] As the court said in Tyson Creek, the question is framed as being one of weighing competing injustices and inconveniences. [ 30 ] The prejudice to the plaintiffs in allowing the third party notice in my view outweighs any possible prejudice to the defendants should the defendants’ application for third party notice be dismissed. [ 31 ] Knowing full well that this matter will adjourn if the application is allowed, a new trial date with more time allocated for trial will likely not occur until 2017.

As well, the plaintiffs have delivered all of their expert reports to the defendants well in advance of the 84 day deadline as set out in the Rules of Court, and likely will require further investigations and more expert reports prepared to meet the new allegations raised by the third party notice at additional cost to the plaintiffs. [ 32 ] Lastly, the plaintiffs point to the object of the Rules of Court set out at Rule 1-3(1): The object of these … Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. [ 33 ] In exercising my discretion against issuing a third party notice to FPI, I have determined that any claim against FPI is bound to fail, that the issuance of third party notice at this stage in the proceedings would be highly prejudicial to the plaintiffs due to the necessity of adjourning the trial of this matter to allow for further investigation, and that it is not just and convenient to allow such an application.

Accordingly, the application for leave to file a third party notice is dismissed. [ 34 ] It should go without saying that the application to adjourn the trial is also dismissed. [ 35 ] The plaintiffs should be entitled to their costs of this application. “Master Taylor”