Digest: Andros Enterprises Ltd. v Fiesta Barbeques Ltd., 289 ACWS (3d) 70

Date:February 18, 2019

Reported as: 2018 SKQB 67 , 289 ACWS (3d) 70

Docket Number: QBG 1425/14 JCR , QB18061

Court: Court of Queen's Bench

Date: 2019-02-18

Judges:

  • Kalmakoff

Subjects:

  • Civil Procedure � Parties � Application to Add a Third-Party Defendant
  • Civil Procedure � Queen�s Bench Rules, Rule 3-31
  • Statutes � Interpretation � Contributory Negligence Act, Section 7

Digest: The defendants brought applications pursuant to Queen�s Bench rule 3-31 and rule 3-32 to have Vomar Industries (Vomar) added as a third party to the action brought against them by the plaintiffs. It The proposed claim was for contribution under s. 7 of The Contributory Negligence Act (CNA), which requires leave of the court to add a third party. The plaintiffs were respectively the owner of, and a tenant in, an apartment building. In 2012, the defendant Bennett started a fire while using his barbeque (BBQ) on the balcony of his suite while he was attempting to turn off the main valve of the propane cylinder. The plaintiffs suffered considerable property damage and claimed damages for their losses. The BBQ was manufactured and distributed by the defendants, Fiesta and Wolfedale. The plaintiffs framed their action in negligence against Fiesta and Wolfedale relating to the design, manufacture and assembly of the BBQ, among other grounds, and against Bennett, alleging he used the BBQ in an unsafe manner and improperly installed the propane tank, among other grounds. Bennett denied responsibility for the fire and cross-claimed against Fiesta and Wolfedale. They in turn denied negligence and cross-claimed against Bennett. The plaintiffs originally believed that the fire was caused by a defect in the hose connecting the propane cylinder to the BBQ, but later learned that the cause was the mechanical failure of the propane cylinder causing a leak just below the shut-off valve. The cylinder had been serviced and requalified for sale by Vomar in 2007 as part of its business of operating a propane cylinder exchange program. The plaintiffs then applied to amend their claim and to add Vomar as a defendant. The court dismissed the application because adding Vomar was not necessary to determine the issues between the parties and being added would be highly prejudicial to Vomar because it would deprive it of a defence under The Limitations Act (LA). As well, the judge determined that the application brought by the plaintiff asserted a new claim against Vomar because its...

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