656214 NB LTD. v. CHIASSON MANAGEMENT LTD., 2023 NBKB 91

Citation:2023 NBKB 091 Date: May 24, 2023 Docket: FC-30-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: 656214 NB LTD. and CHIASSON MANAGEMENT LTD. Plaintiffs – and – VENMAR VENTILATION ULC, VON WEISE USA, INC. formerly known as Fasco Industries, SENASTA TECHNOLOGIES, INC. and E.G. STAIRS LIMITED Defendants Date of Hearing: October 26, 2022 Date of Decision: May 24, 2023 Subject Matter:

Summary Judgment; Limitation Periods; Issue Estoppel Before: Justice Terrence J. Morrison At: Burton, New Brunswick Appearances: Michael D. Brenton, K.C., for the plaintiffs Benoit Arsenault for the defendant, Venmar Ventilation ULC Enrico Scichilone for the defendant, Von Weise USA, Inc. Bionca Bastarache for the defendant, E.G. Stairs Limited

DECISION Morrison, J. I. INTRODUCTION [ 1 ] The plaintiffs are seeking

summary judgment against the remaining defendants. For purposes of their motion, the plaintiffs have limited their grounds to the defendants’ failure to warn the plaintiffs of the dangers of fire from the defective Heat Recovery Ventilator (“HRV”) manufactured by Venmar Ventilation ULC (“Venmar”) and for which Von Weise USA, Inc (“Fasco”) supplied a component motor. In the alternative, the plaintiffs seek

summary judgment against Venmar only based on its breach of the duty to warn. [ 2 ] In a companion motion, Fasco is seeking

summary judgment, dismissing the plaintiffs’ claim against it, on the grounds that the underlying issues in dispute were already determined in a case recently adjudicated by the Ontario Superior Court of Justice. Fasco submits that re-litigation in this action is precluded by the doctrines of issue estoppel and abuse of process. Fasco also claims that the plaintiffs’ action is statute-barred by virtue of s. 5(1) of the Limitation of Actions Act , SNB 2009, c.L-8.5 (“ LAA ”). II. FACTS A. Background [ 3 ] The facts are set out in detail in the briefs filed by the parties.

I will summarize only those facts essential to provide context for this decision. [ 4 ] The plaintiffs were owners of property located at 285 Canada Street, Fredericton, New Brunswick. The property was damaged by fire on or about December 17, 2017. It is alleged that the fire originated within the motor of the HRV on the property. [ 5 ] The HRV was manufactured by Venmar, allegedly in or about 1994. The motor installed in the HRV was manufactured by Fasco. [ 6 ] The HRV was supplied and installed in the property by E.G.

Stairs Limited “Stairs”) sometime in or about 1994. [ 7 ] The plaintiffs’ Statement of Claim claims that the damage they sustained was caused by the negligence of Venmar in manufacturing the defective HRV, that of Fasco in supplying the defective motor, and/or that of Stairs in installing the HRV. The plaintiffs also claim that the defendants owed a duty to warn to the plaintiffs’ which they failed to discharge. [ 8 ] For purposes of this motion, the plaintiffs’ focus is solely on the defendants’ failure in their duty to warn.

B. The Burr Decision [ 9 ] The record indicates that the fire in this case is one of hundreds originating in Venmar HRVs, many of which incorporate motors by Fasco. [ 10 ] An action involving one of these fires was adjudicated by Justice G.D. Lemon of the Ontario Superior Court of Justice, and is reported in Burr v. Tecumseh , 2022 ONSC 412 (“ Burr”) . [ 11 ] The Burr trial lasted twenty-four days and heard from nineteen witnesses. There were three days of closing submissions.

The decision is 515 paragraphs long. [ 12 ] In reaching its decision in Burr , the Court made factual findings and legal determinations on disputed issues and facts, including the duty of care, the standard of care and, notably, the duty to warn. The parties agree that the facts in Burr are very similar to the facts in the present case. [ 13 ] Since the hearing of these motions, the Burr decision has been upheld (except for an issue with respect to costs) by the Ontario Court of Appeal reported at Burr v. Tecumseh, 2023 ONCA 135 . III. ANALYSIS AND DECISION A. The Plaintiffs’ Motion

(1) Venmar – duty to warn [ 14 ] To succeed in its motion for

summary judgment against Venmar on the grounds that Venmar had a duty to warn and that it failed in that duty, the plaintiffs must establish (1) that the HRV unit manufactured by Venmar was the cause of the fire; (2) that Venmar had a duty to warn; and (3) that Venmar breached that duty. [ 15 ] For purposes of this motion, I will assume that the defective Fasco control valve in the Venmar HRV unit was the cause of the fire. With respect to Venmar’s duty to warn, I will focus my analysis on whether Venmar breached the duty to warn.

This entails examining what measures Venmar took to alert consumers and whether such measures met the standard of care. I note, however, that Venmar vigorously argues that all these questions, including whether it has a duty to warn, are very much in issue. [ 16 ] In Burr (about which case more will be said later) the Court referred to the principle of the duty to warn, at para. 406: [406] Adam v. Ledesma-Cadhit , 2021 ONCA 828 , recently summarized the principles of warnings in the area of medical products at paras. 19 – 20.

I take those principles to apply in this case as well. [19] The general principles governing the duty to warn by manufacturers of medical products are well known, not in dispute, and were summarized by the Supreme Court in Hollis v. Dow Corning Corp : (

i) A manufacturer of a product has a duty in tort to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge;

(ii) The duty to warn is a continuing duty, requiring manufacturers to warn not only of dangers known at the time of sale, but also ofdangers discovered after the product has been sold and delivered; (iii) All warnings must be reasonably communicated and must clearly describe any specific dangers that arise from the ordinary use ofthe product; (iv) The nature and scope of the manufacturer’s duty to warn varies with the level of danger associated with the ordinary use of theproduct. Where there are significant dangers, it will rarely be sufficient for manufacturers to give general warnings concerning thosedangers.

Instead, the warnings must be sufficiently detailed to give the consumer a full indication of each of the specific dangers arisingfrom the use of the product; [17] In Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986), (ON CA), 25 DLR (4th) 658 (ONCA), the Court addressed the issue of discharging the duty to warn, at paras. 18-19: [18] Once a duty to warn is recognized, it is manifest that the warning must be adequate.

It should be communicated clearly andunderstandably in a manner calculated to inform the user of the nature of the risk and the extent of the danger; it should be in termscommensurate with the gravity of the potential hazard, and it should not be neutralized or negated by collateral efforts on the part of themanufacturer.

The nature and extent of any given warning will depend on what is reasonable having regard to all the facts andcircumstances relevant to the product in question. [19] The general principle to be applied in determining the degree of explicitness required in a warning was enunciated by theSupreme Court of Canada, speaking through Laskin J., in Lambert et al. v. Lastoplex Chemicals Co.

Ltd. et al., (SCC),[1972] S.C.R. 569 at pp. 574-5, 25 D.L.R. (3d) 121 at p. 125, as follows: Where manufactured products are put on the market for ultimate purchase and use by the general public and carry danger (in this case,by reason of high inflammability), although put to the use for which they are intended, the manufacturer, knowing of their hazardousnature, has a duty to specify the attendant dangers, which it must be taken to appreciate in a detail not known to the ordinary consumer oruser.

A general warning, as for example, that the product is inflammable, will not suffice where the likelihood of fire may be increasedaccording to the surroundings in which it may reasonably be expected that the product will be used. The required explicitness of thewarning will, of course, vary with the danger likely to be encountered in the ordinary use of the product. [18] Venmar submitted the affidavit of Pascal Marois, the Director of Risk Management of Venmar, sworn to onOctober 24, 2022 (the “Supplemental Marois Affidavit”). This is an extensive affidavit with numerous exhibits, comprising 394 pages.

Broadly speaking, the affidavit outlines how Venmar put together a team of employees to prepare the content and notices for its 2006Safety Upgrade Program (the “2006 SUP”). The 2006 SUP was Venmar’s effort to reach installers, dealers, customers, and fire safetyoffices concerning the fire concerns of the HRV.

The affidavit sets out the information gathered, the plan to reach stakeholders, thenotices prepared, media stories and other efforts. [19] Counsel for the plaintiffs spent considerable time at the hearing of this motion going through the exhibitsincluding the various notices, telephone call logs, and transcripts of media interviews. The plaintiff’s counsel pointed out what hedescribed as deficiencies in the various notices and vagaries in the affidavit as to what defect or recall was being addressed.

Theplaintiffs’ counsel then submitted that the efforts made by Venmar as outlined in the Supplemental Marois Affidavit fell far short of thatrequired to discharge Venmar’s duty to warn. [20] Counsel for Venmar was equally meticulous in drawing the Court’s attention to the various exhibits attached tothe Supplemental Marois Affidavit. As would be expected, Venmar’s counsel drew the Court’s attention to aspects of the exhibits thatwere not exposed by the plaintiffs’ counsel in his submission.

Venmar’s counsel submits that when the affidavit is examined carefully, itis apparent that Venmar’s efforts met or exceeded that required to discharge its duty to warn. [21] The plaintiffs retained Kenneth Ross, a product safety consultant, who prepared an expert report regarding theindustry standard on what would be considered reasonable steps with respect to the duty to warn (Plaintiff’s Supplemental Record,beginning at p. 339). Mr. Ross’ opinion is primarily based on the evidence given during the Burr trial.

Generally, his opinion is thatVenmar did not act reasonably in undertaking the recall of the subject HRV and that this seriously undermined the recall’s effectivenessin alerting owners of the unit about the significant risks that could result from fire. The plaintiffs’ counsel concedes that the plaintiffsare relying heavily on Mr. Ross’ opinion in this motion.

[22] The defendants object to the admission of Mr. Ross’ report on two grounds:

(1) It is unreliable because it does not take into account the Supplemental Marois Affidavit; and

(2) The report has not been scrutinized to determine if it meets the threshold requirements for admissibility. [23] In Savard-Nash v. Kenny, 2018 NBQB 131, Justice Walsh confirmed that opinion evidence may be admitted in amotion for

summary judgment if it meets the threshold requirements. At para. 38, Justice Walsh stated: [38] Consequently, any proposed expert opinion must be scrutinized under a two-step analysis. It first must meet the thresholdrequirements for admissibility (i.e. “logical relevance, necessity, absence of an exclusionary rule and a properly qualified expert"). Evenif that threshold is met the potential benefits of admission of the evidence must be weighed against the risks (i.e. the “gatekeeper role”).(See: White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23 at paras 16-24).

As well, it is important to note that thequestion of opinion evidence admissibility is not an “all or nothing proposition”. A judge “may admit part of the proffered testimony,modify the nature or scope of the proposed opinion or edit the language used to frame that opinion” (R v. Abbey, 2009 ONCA 624 atpara. 63). [24] With respect to reliability, the Supplemental Marois Affidavit is critical to the question of whether steps taken byVenmar discharged its duty to warn. The fact that Mr. Ross’ opinion does not take this evidence into account seriously undermines itsreliability.

However, it must be noted that the Supplemental Marois Affidavit was provided only days before the hearing of this motionand there was insufficient time for it to be reviewed by Mr. Ross. The plaintiffs’ counsel submitted that if the admissibility of the reportturned on the omission he would request an adjournment to enable Mr. Ross to review the Supplemental Marois Affidavit. For thereasons that follow, it is not necessary for me to address either the question of adjournment or the admissibility of Mr. Ross’ report. Thatis because there is a serious factual issue which must be resolved. Mr.

Marois’ evidence is extensive and critical to the plaintiffs’ case. The fact that counsel for both the plaintiffs and Venmar spent considerable time during the hearing parsing through the evidenceunderlines its importance. It should be explored through viva voce evidence and tested by cross-examination. [25] The importance of the factual matrix in determining whether a duty to warn has been met is underlined by thecrucial role expert evidence (e.g., the Ross report) will play in that determination.

It would be unwise to adjudicate the issue without afull vetting of the expert evidence through direct and cross-examination, both as to its threshold admissibility and the weight to beassigned to the opinion. Determination of the duty to warn and whether that duty was discharged in this case is complex and one that isfactually nuanced. In my view, it simply cannot be fairly adjudicated on the record before me on this motion.

(2) Fasco and Stairs – Duty to Warn [26] The plaintiffs’ counsel concedes that his case against Fasco and Stairs regarding the duty to warn is moretenuous. From a factual point of view, the plaintiffs rely heavily on the discovery evidence of Mr. Golden of Fasco that Fasco knewbefore 2006 that there were issues with the Venmar HRVs. The factual underpinning of the claim against Stairs is that it completedwork for Venmar’s Safety Upgrade Program on several occasions and therefore was aware, or ought to have been aware, of the purposeof the safety upgrade.

The plaintiffs argue that Stairs, as a distributor, had a duty to warn. [27] While Fasco disputes the factual underpinnings relied upon by the plaintiffs, the main focus of its argument is thatthe plaintiffs have no legal foundation for a duty to warn on a “downstream” supplier. [28] The primary legal argument by the plaintiffs against Fasco is that components contributors to the manufacturedproduct, such as component parts suppliers, have a duty to warn. In support of its position, the plaintiffs refer to several cases. Exceptfor one (Bow Valley Husky (Bermuda) Ltd. v.

Saint John Shipbuilding Ltd., (SCC)), none of the cases referred to by theplaintiffs found that a components parts manufacturer like Fasco had a duty to warn. Venmar’s counsel pointed out that the plaintiffscould not point to any case law in Canada that suggests a component manufacturer has a duty to warn. In rebuttal, the response of theplaintiff counsel was: “The flipside of that is, there’s no case law in Canada that says they don’t have a duty to warn”. [29] The exceptional case, Bow Valley, upon which the plaintiffs rely is, in my view, distinguishable from the presentcase.

In Bow Valley, a fire broke out on a drilling rig owned by Bow Valley and constructed by Saint John Shipbuilding Ltd. (SJSBL). The rig required what was called a “heat trace system” to prevent pipes from freezing in winter. During construction, Raychem activelysought out Bow Valley to persuade it of the benefit of using its heat trace system rather than that of SJSBL. The Raychem system usedthermaclad wrap which posed a fire danger when coupled with the circuit breakers initially installed by SJSBL. A fire ensued and Bow

Valley sued both SJSBL (the manufacturer) and Raychem (the component supplier) for the loss. The Supreme Court of Canada held thatboth SJSBL and Raychem had a duty to warn. [30] It is important to understand how the Court arrived at the conclusion that the component supplier (Raychem)owed a duty to warn. It was because there had been a direct relationship between Bow Valley and Raychem. The Court stated, at para.37: [37] Thermaclad was not a highly technical product, nor did its use and application require expert supervision.

Nor was it unrealisticto expect Raychem to have warned BVHB, the ultimate consumer, directly. There was direct contact between BVHB and Raychem,independent of SJSL. Raychem actively sought the business of BVHB, and the trial judge found that the Thermaclad was owner-directed supply. In these circumstances Raychem had both the opportunity and the duty to warn BVHB directly.

I conclude thatRaychem’s duty to warn the plaintiffs was not discharged through its communications with SJSL. [Emphasis added] [31] In the present case, there is no evidence in the record to which I was directed that would enable me to concludethat there was a relationship of reliance between the plaintiffs and Fasco. The Bow Valley case, therefore, does little to assist theplaintiffs in establishing a duty to warn on the part of Fasco. Further, the case demonstrates how the duty to warn is influenced by factualconsiderations.

At para. 70 of its brief, Fasco points out these factual questions: On the record before this court, the Plaintiffs’ allegations against Von Weise raise more questions than they answer. If Von Weise had aduty to warn, what is its foundation? What exactly did that duty require? How was Von Weise to discharge its duty? If Von Weise hada duty to warn the Plaintiffs directly, how would Von Weise have approached the Plaintiffs? [32] Fasco’s argument in this regard resonates loudly. In my view, the legal basis for establishing a duty to warn on thepart of Fasco is tenuous.

Further, determining the duty is influenced by factual considerations For example, there is scant evidence inthe record as to the proximity, or lack thereof, between Fasco and the plaintiffs. Further, counsel for the plaintiffs agreed that the Courtwill have to make factual findings that Fasco knew how its component was being used by Venmar and that it posed a fire risk. While theplaintiffs suggest that there is sufficient evidence in the record to enable those factual findings, I am not confident that there is.

In short,the question of Fasco’s duty to warn is a genuine issue requiring a trial. [33] The plaintiffs’ claim against Stairs is rooted in the Supreme Court of Canada decision in Rivtow Marine Ltd. v.Washington Iron Works, (SCC), [1974] SCR 1189. In that case, one of the defendants, Walkem Machinery, was theexclusive supplier of cranes in British Columbia for Rivtow. A crane manufactured by Rivtow and supplied by Walkem collapsed.

Infinding that a distributor had a duty to warn the customer, the Court stated, at para. 37: [37] In the present case, both Washington as manufacturer and Walkem as its representative, knew that the appellant relied onthem for advice concerning the operation of the pintle cranes and in my opinion a clear duty lay upon them both to warn theappellant of the necessity for repairs as soon as they had become aware of the defects and the potential danger attendant thereon.[Emphasis added] [34] In McEvoy v.

Ford Motor Co., 1989 Carswell BC 1481, affirmed (BC CA), 88 DLR (4th) 358,also relied upon by the plaintiffs, the trial court found a distributor liable for breach of the duty to warn. In coming to that conclusion,Hinds, J. stated, at para. 73: [73] The seminal case with respect to the liability of a distributor of defective goods is Watson v. Buckley, [1940] 1 All E.R. 1974. Itextended the doctrine of M’Alister (or Donoghue) v. Stephenson, (FOREP), [1932] A.C. 562 from manufacturers ofgoods to distributors of goods. But not all distributors are liable.

It depends upon a number of circumstances including the “actsand omissions and representations which intervened between the manufacture of the article” and its reaching the consumer (seeWatson at 183), the “reliability of the supplier, the feasibility of testing and the part played by the defendant in promoting the useof the product” (see Products Liability, Waddams (1980 edition) 16). Moreover, a distributor may be held liable for failing to warn ofdefects of which he had knowledge (see Rivtow Larine Ltd. v.

Washington Iron Works et al., (SCC), [1974] Vol. 2 S.C.R.1189). [Emphasis added] [35] In both Rivtow and McEvoy it was clear and undisputed that the co-defendants were, in fact, distributors of themanufacturer. This is disputed by Stairs. Further, in both Rivtow and McEvoy the distributor had a very strong and close relationshipwith the manufacturer. Another consideration in both cases was that the distributors had detailed knowledge of the defects in question. Further, the Courts found that there was a relationship of reliance between the distributors and the customer.

In Rivtow, the distributorknew that the customer was looking to it for advice on the operation of the crane. In McEvoy, the distributor was responsible for pre-sale inspection of the vehicle. [36] In my view, determining whether Stairs had a duty to warn requires a much stronger factual foundation than can

be gleaned from the record in this motion. The first question which must be answered is whether Stairs was a distributor of Venmar. Other questions include: what was the relationship between Venmar and Stairs?; how much did Stairs know about the defects in the HRV?; to what extent did the plaintiffs rely on the knowledge and expertise of Stairs in purchasing the HRV?. [ 37 ] The evidence on the record to which the plaintiffs point to impute to Stairs’ knowledge of the defects in the HRV consists of Stairs’ involvement in Venmar’s Safety Upgrade Program.

While this appears, on its face, to be a flimsy basis to attribute to Stairs the kind of knowledge necessary to attract liability, I am not prepared to decide that issue without more evidence. In any event, the other factual considerations mentioned above need fleshing-out before the question of whether Stairs had a duty to warn the plaintiffs can be determined.

In short, the question of whether Stairs had a duty to warn the plaintiffs is a genuine issue for trial. [ 38 ] In conclusion on the duty to warn issue, the case against Venmar with respect to whether it owed a duty to warn is, on its face, stronger than that as against Fasco and Stairs. Nevertheless, adjudicating such a crucial issue without a full factual record is, in my view, unsound. Determining the question of whether there is a duty to warn is factually complex. One need only consider the factual findings made in Burr after a 24-day trial to get a sense of the complexity of the issues involved.

These factual findings (summarized in Fasco’s Brief on Motion dated February 18, 2022 at para. 47) include:

a) Venmar’s HRVs had fires with other motors and with single shot thermal protectors;

b) The motor in question was not defective and Fasco was not negligent in its production of that motor;

c) In 1998, Venmar rejected Fasco’s proposal to an overheating issue by installation of a fuse, which would have been an appropriate solution to address any overheating issues;

d) The relationship between Venmar and Fasco was always a clear-cut customer, supplier relationship. “Venmar was a purchaser and Fasco delivered what was ordered.”;

e) Venmar treated Fasco as a parts supplier only and did not involve Fasco in its design or manufacturing process;

f) Venmar purchased and received what it asked for from Fasco;

g) Venmar knew that its unit was expected to last longer than its motor, and that the motor would likely need to be replaced. It failed to provide warnings, advice to the customers regarding this expected event;

h) Venmar did not conduct appropriate end of life testing but instead simply relied on its assumptions regarding how the motor would fail;

i) The motor at issue, which was manufactured in 1994 and contained a cycling thermal protector, was not inherently dangerous;

j) Fasco was not responsible for Venmar’s design process. [ 39 ] Fasco, in its supplementary Brief on Law dated October 19, 2022, outlined some of the factual controversies which must be resolved at paragraph 94: On the record before this court, the Plaintiffs’ allegations against Von Weise raise more questions than they answer. If Von Weise had a duty to warn, what is its foundation? What exactly did that duty require? How was Von Weise to discharge its duty?

If Von Weise had a duty to warn the Plaintiffs directly, how would Von Weise have reached the Plaintiffs? [ 40 ] While the Burr decision determined that Fasco had no duty to warn the plaintiffs in that case, that determination was made after a lengthy trial and on a substantial factual record. There is no guarantee that the evidence to be adduced in the present case will be the same as that adduced in Burr . In fact, we know already that at least some of the evidence will be different. The plaintiffs have clearly stated that they intend to call expert evidence with respect to whether Venmar met its duty to warn.

Expert evidence on this point was not adduced in Burr. It is abundantly clear to me that determining the issue of the duty to warn in this case, and whether it was breached, cannot be determined without a full factual record. [ 41 ] For the foregoing reasons, the plaintiffs’ motion for

summary judgment is dismissed. B. Fasco’s Motion

[42] Fasco is seeking

summary judgment, dismissing the plaintiffs’ claim on two grounds:

(1) The underlying issue in dispute (i.e., Fasco’s duty to warn) was determined in Burr and the plaintiffs’ action is thereforeprecluded by the doctrines of issue estoppel and abuse of process;

(2) The plaintiffs’ action is statute-barred by virtue of the Limitation of Actions Act.

(1) Res judicata, issue estoppel and abuse of process [43] Fasco submits that the Court in Burr (upheld on appeal) found that Fasco was not obligated to warn of the dangersassociated with Venmar’s HRV, either at the time of manufacture or thereafter. Fasco therefore submits that both the plaintiffs’ actionand Venmar’s cross-claim against it (with respect to the duty to warn) are precluded by the doctrines of issue estoppel and/or abuse ofprocess. I disagree. [44] In Danyluk v.

Ainsworth Technologies Inc., 2001 SCC 44 , [2001] 2 SCR 460, the Supreme Court ofCanada stated that a motions judge must apply a two-step analysis in determining whether to apply the doctrine of issue estoppel. Thefirst step is to determine whether the three pre-conditions for the operation of issue estoppel set out in Angle v. Minister of NationalRevenue, (SCC), [1975] 2 SCR 248, have been satisfied. If so, then the judge is to determine whether, as a matter ofdiscretion, issue estoppel ought to be applied in the interests of justice.

As stated by Justice Binnie in Danyluk, at paragraph 33: “Theunderlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done onthe facts of a particular case.” [45] The pre-conditions set out in Angle are:

(1) That the same question has been decided;

(2) That the judicial decision which is said to create the estoppel was final; and

(3) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which theestoppel is raised. [46] The parties involved in the Burr case are not the same as those in the present case. At the hearing of these motionsthe plaintiffs submitted that the Burr decision is not final because it was under appeal and thus cannot form the basis of an issueestoppel. Fasco submitted that, notwithstanding the appeal, this Court should consider the Burr decision as final for the purposes of issueestoppel.

Given that the Ontario Court of Appeal has issued its decision largely upholding the trial decision in Burr, that issue nowappears to be moot. [47] Even if one considers the Burr decision to be final, the other pre-conditions of the application of issue estoppel arenot met in this case. The parties are not the same. As already mentioned, it is quite possible, if not likely, that the evidence offered in thepresent case will differ in material respects from that in the Burr case. Further, the Burr decision emanates from Ontario and is notbinding on this Court.

In my view, the pre-conditions for issue estoppel are not met. [48] In addition to issue estoppel, Fasco argues that the plaintiffs’ action should be barred by application of the doctrineof “abuse of process”. Rule 27.09 of the Rules of Court provides as follows: 27.09 Striking Out a Pleading or Other Document The court may strike out any pleading, or other document, or any part thereof, at any time, with or without leave to amend, upon suchterms as may be just, on the ground that it (

a) may prejudice, embarrass or delay the fair trial of the action, (

b) is scandalous, frivolous or vexatious, (

c) is an abuse of the process of the court, (

d) is a contempt of court, or (

e) is not in conformity with the Rules of Court.

[49] Abuse of process is a concept which is broader, or at least more flexible, than issue estoppel and is not dependenton the existence of the pre-conditions set out in Angle. In Toronto (City) v. Canadian Union of Public Employees (CUPE), Local 79,2003 SCC 63 , [2003] 3 SCR 77, the Court stated, at para. 37: [37] In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent themisuse of its procedure, in a way that would . . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v.

Coles(2000), (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307,2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bemanifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.

It is aflexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel… (see also The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, at paras. 61 to 63). [50] The application of abuse of process, like issue estoppel, is discretionary (Toronto (City), at para. 53). One of theprimary considerations in deciding whether to exercise the discretion is whether an injustice would result from its application. The Courtmust balance finality in litigation against fairness to a particular litigant (Toronto (City), at para. 55).

In my view, the scales weighheavily in favour of not exercising the discretion. First, the record indicates that the present case is just one of many across Canadapertaining to fires that originated in a Venmar HRV, many of which incorporated a Fasco motor. I agree with the submissions of counselfor Stairs, that it is unwise to grant

summary judgment in this case because it will undoubtedly impact all future outstanding claimsagainst Venmar. In short, I believe that exercising the discretion in favour of a finding of issue estoppel and granting

summary judgmenton that issue without a full factual foundation could very well result in an injustice not only to the parties, but to litigants in other actions.I therefore reject Fasco’s argument that this Court should preclude the plaintiffs’ claim and Venmar’s cross-claim based on the principlesof issue estoppel and abuse of process.

(2) Limitation period [51] Fasco submits that the plaintiffs’ claims and the cross-claim against it (with respect to the duty to warn) arestatute-barred by virtue of the ultimate fifteen-year limitation period provided for in s. 5(1)(

b) of the LAA. The plaintiffs argue that theduty to warn is an ongoing one that is not caught by s. 5(1). [52] The parties in their oral submissions agree that if there is no duty to warn then the 15-year ultimate limitationperiod applies, and the plaintiffs’ action would be statute-barred. If there is a duty to warn, then the legal waters become murkier.

Theplaintiffs submit that the duty to warn is a continuous duty that is not caught by s. 5(1) of the LAA and that s. 6 governs and the failure towarn is deemed to be a separate act or omission on each day it continues. [53] Fasco says that an ongoing duty to warn does not extend the ultimate limitation period. In support of its position,Fasco refers to Bowes v. Edmonton (City), 2007 ABCA 347, where the Court commented that “to regard every ancient failure to warn asoccurring every day would be a fiction destroying all limitation periods” (para. 173). Fasco also relies on Hare v.

Hare, (ON CA), 83 OR (3d) 766, for the same proposition. In that case, the question was whether a demand for repayment of apromissory note must be made before the limitation period begins to run. The Court found that, in such a case, the limitation periodwould never begin to run and the claim would exist in perpetuity contrary to the foundational notions of limitation periods. [54] In my view, neither Bowes nor Hare assist Fasco. In Bowes, the above-mentioned comments were clearly obiter. Further, the Court found that there was no continuous duty to warn.

In Hare, the facts are significantly different from the present case. It was a case dealing with a demand under a promissory note and not a duty to warn. Additionally, the Court was concerned that thelimitation period would never begin to run. That is not the case with a duty to warn. If there is a duty to warn, the duty arises (and thelimitation period begins) when the defendant knew or ought to have known of the danger and it continues until the appropriate warningis given.

It is not in perpetuity. [55] The plaintiffs also say that their claims against Fasco and Venmar are not statute-barred because there was willfulconcealment on the part of Fasco and Venmar. If so, then the ultimate fifteen-year limitation period is defeated by s. 16 of the LAA,which provides as follows:

16 If a defendant wilfully conceals from a claimant the existence of a claim, the following rules apply: (

a) the defendant cannot rely on the expiry of a limitation period referred to in paragraph 5(1)(b), subparagraph 9(1)(b)(ii) or paragraph 11(b), 14(1)(

b) or 14(2)(

b) as a defence to the claim, and [ 56 ] It is clear to me that the determination of the applicable limitation period is dependent on several factual considerations. Foremost among these is the determination of whether there is a duty to warn. If there is a duty to warn, then there is a cogent argument that s. 6 of the LAA applies and the claims are not statute-barred. On the other hand, if there is no duty to warn, then s. 5(1) (

b) of the LAA applies and the claims are statute-barred. In any event, the limitation period cannot be determined until the duty to warn issue is determined. As previously stated, that issue cannot be confidently determined based on the record in this motion. If I cannot determine the duty to warn issue, I cannot determine which limitation period is applicable. [ 57 ] Furthermore, the allegation of willful concealment is a factual determination that cannot be made on the record before this Court.

Not only must the Court determine whether there was, in fact, a concealment, it must also determine whether that concealment was willful or fraudulent. Such determinations, in my opinion, cannot be made in the absence of viva voce evidence tested by cross-examination. [ 58 ] There is a genuine issue for trial as to whether s. 5(1) of the LAA applies to bar the plaintiffs’ claims. C. Partial

Summary Judgment [ 59 ] Although not necessary for the disposition of the within motions, I will address the question of the appropriateness of partial

summary judgment in this case. The present motions, if successful, will not dispose of the action. The duty to warn is not the only live issue. The cross-claims will survive and a trial of those issues will proceed. [ 60 ] The preponderance of legal authority is that the recent amendments to the

summary judgment rule permit partial

summary judgment in certain cases. Partial

summary judgment will be appropriate if it can determine issues which can be readily bifurcated and can be dealt with expeditiously ( Babin v. CJM Dieppe Investments Ltd. , 2019 NBCA 44 ). Generally speaking, partial

summary judgment will be appropriate where two requirements are met: (1) the claims must be clearly severable; and, (2) the

summary judgment must have the potential to add litigation efficiency ( Butera v. Chown , 2017 ONCA 783 ; Gary D. Watson, Ontario Civil Procedure (Toronto: Thomson Reuters) at para. 20:15). The claims will be severable if they are legally and factually distinct. While the duty to warn may be legally distinct, it appears to be factually intertwined with the other issues. For example, the cause of the fire is a factual determination common to both the issue of negligence and the duty to warn. [ 61 ] The factual record at trial will be substantially more expansive than the record on this motion thereby heightening the risk of inconsistent findings. Further, motions for partial

summary judgment that will not, even if successful, result in a meaningful reduction in the length of the ultimate trial, should be discouraged. As mentioned, several issues will survive the present motions which will require a trial. Further, partial

summary judgment is the exception. In Butera the court stated at paragraphs 29 – 34: [29] The caution expressed pre- Hryniak in Corchis is equally applicable in the post- Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC , partial

summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak . [30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial

summary judgment. A delay tactic, dressed as a request for partial

summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal. [31] Second, a motion for partial

summary judgment may by very expensive. The provision for a presumptive cost award for an unsuccessful

summary judgment motion that existed under the former

summary judgment rule has been repealed, thereby removing a disincentive for bringing partial

summary judgment motions. [32] Third, judges, who already face a significant responsibility addressing the increase in

summary judgment motions that have flowed since Hryniak , are required to spend time hearing partial

summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[33] Fourth, the record available at the hearing of a partial

summary judgment motion will likely not be as expansive as the record at trial, therefore increasing the danger of inconsistent findings. [34] When bringing a motion for partial

summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial

summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in [page569] a cost-effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. [Emphasis added] [ 62 ] While Rule 22 permits partial

summary judgment, it is not appropriate in this case. IV. CONCLUSION [ 63 ] In Hyrniak v. Mauldin, 2014 SCC 7 the Supreme Court of Canada directed a “cultural shift” in the use of

summary judgment. Courts are encouraged “to be open and bold when managing a case through its trajectory in the legal system” ( Edmonston v. Edmonston et al., 2021 NBQB 53 , overturned on other grounds Edmonston v. Edmonston et al. 2022 NBCA 4 ). The central question is whether there is a genuine issue requiring a trial ( O'Toole v. Peterson, 2018 NBCA 8 ; Russell et al v. Northumberland Co-Operative Ltd. , 2019 NBCA 70 ).

There we be no genuine issue requiring a trial when the process allows the judge to make the necessary findings of fact and reach a fair and just determination on the merits ( Hyrniak , at para. 49 ). Nevertheless, there are cases where the nature of the issues and the evidence makes it impossible for the judge to reach a just and fair determination. As stated in Hyniak at paragraph 50: 50 These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute . [Emphasis added] [ 64 ] There are many cases that are amenable to fair determination by

summary judgment. For the foregoing reasons, this is not one of them. [ 65 ] Both the plaintiffs’ motion and Fasco’s motion are dismissed. The defendants, Venmar and Stairs are entitled to costs as against the plaintiffs which I fix at $3,000.00 each. Given the mixed result as between the plaintiffs and Fasco (each were unsuccessful in their motions vis a vis each other) neither is entitled to costs from the other. ______________________________ Terrence J. Morrison, J.C.K.B.