Magna Electric Corp. v. Tesco Electric Ltd., 2015 SKQB 35

• Judge: Megaw, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 06, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 35;(2015), 469 Sask.R. 15 (QB)

Magna Electric v. Tesco Electric (2015), 469 Sask.R. 15 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MR.013

Magna Electric Corporation (plaintiff) v. Tesco Electric Ltd., carrying on business as Tesco Mechanical, and Tesco Mechanical (defendant)

(2012 QB No. 1251; 2015 SKQB 35)

Indexed As: Magna Electric Corp. v. Tesco Electric Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Megaw, J.

February 6, 2015.

Summary:

The defendant was a subcontractor hired by the plaintiff to cut holes in the metal flooring of an electrical service building (ESB) and to weld metal over some existing holes. The defendant used an oxyacetylene torch, which ignited a fire in the spray foam insulation coating the underside of the ESB, causing extensive damage. Claiming damages of $841,209.64, the plaintiff sought summary judgment.

The Saskatchewan Court of Queen's Bench allowed the application as to findings that the defendant was liable in negligence and the plaintiff was not contributorily negligent, but held that a genuine issue existed for trial on the matter of damages. The plaintiff's application for summary judgment was dismissed as to the determination of damages.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The defendant was a subcontractor hired by the plaintiff to cut holes in the metal flooring of an electrical service building (ESB) and to weld metal over some existing holes - The defendant used an oxyacetylene torch, which ignited a fire in the spray foam insulation coating the underside of the ESB, causing extensive damage - Claiming damages of $841,209.64, the plaintiff sought summary judgment - The Saskatchewan Court of Queen's Bench discussed the test for determining whether the application for summary judgment should proceed - See paragraphs 24 to 31.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The defendant was a subcontractor hired by the plaintiff to cut holes in the metal flooring of an electrical service building (ESB) and to weld metal over some existing holes - The defendant used an oxyacetylene torch, which ignited a fire in the spray foam insulation coating the underside of the ESB, causing extensive damage - Claiming damages of $841,209.64, the plaintiff sought summary judgment - The Saskatchewan Court of Queen's Bench, having allowed the application as to findings that the defendant was liable in negligence and the plaintiff was not contributorily negligent, held that a genuine issue existed for trial on the matter of damages - The defendant should be entitled to properly test the plaintiff's evidence regarding the whole of its damages claim - The plaintiff's application for summary judgment was dismissed as to the determination of damages - See paragraphs 64 to 82.

Torts - Topic 37

Negligence - Standard of care - Particular persons and relationships - Contractors - [See Torts - Topic 4504 ].

Torts - Topic 49.11

Negligence - Standard of care - Particular persons and relationships - Welders - [See Torts - Topic 4504 ].

Torts - Topic 4504

Dangerous activities - General principles - Duty of care - The defendant was a subcontractor hired by the plaintiff to cut holes in the metal flooring of an electrical service building (ESB) and to weld metal over some existing holes - The defendant used an oxyacetylene torch, which ignited a fire in the spray foam insulation coating the underside of the ESB, causing extensive damage - Claiming damages of $841,209.64, the plaintiff sought summary judgment - The Saskatchewan Court of Queen's Bench allowed the application as to a finding that the defendant was negligent and its negligence had caused the fire - There was no genuine issue regarding the defendant's negligence - The defendant owed a duty to take appropriate care in completing the inherently dangerous work when the decision was made to apply the oxyacetylene torch - The defendant did not take appropriate steps to ensure that a fire watch was in place - By breaching its duty to abide by this standard of care, the defendant caused damage in the form of the fire - As a result, the defendant is liable to the plaintiff in negligence for the damage to the ESB - See paragraphs 34 to 47.

Torts - Topic 4506

Dangerous activities - General principles - Inherently dangerous methods - [See Torts - Topic 4504 ].

Torts - Topic 4585

Dangerous activities - Fire - Use of a torch - [See Torts - Topic 4504 ].

Torts - Topic 6601

Defences - Contributory negligence - General - What constitutes contributory negligence - The defendant was a subcontractor hired by the plaintiff to cut holes in the metal flooring of an electrical service building (ESB) and to weld metal over some existing holes - The defendant used an oxyacetylene torch, which ignited a fire in the spray foam insulation coating the underside of the ESB, causing extensive damage - Claiming damages of $841,209.64, the plaintiff sought summary judgment - The defendant asserted that the plaintiff was contributorily negligent and that a trial of the issue was necessary - The Saskatchewan Court of Queen's Bench allowed the application as to a finding that the plaintiff was not contributorily negligent - The defendant's claims really amounted to claims of steps that the plaintiff ought to have taken to protect itself from the defendant, rather than to have avoided being contributorily negligent - The repair of the holes was subcontracted to the defendant - Nothing allowed a conclusion that the plaintiff remained somehow involved in or responsible for how the work was done - Nothing suggested that the plaintiff ought to have remained vigilant or that it ought not to have entrusted the work to the defendant - No genuine issue for trial existed - See paragraphs 48 to 63.

Torts - Topic 6638

Defences - Contributory negligence - Particular cases - Participation in dangerous activities - [See Torts - Topic 6601 ].

Cases Noticed:

Tchozewski v. Lamontagne (2014), 440 Sask.R. 34; 2014 SKQB 71, refd to. [para. 2].

Whatcott v. Canadian Broadcasting Corp. (2015), 466 Sask.R. 235; 2015 SKQB 7, refd to. [para. 2].

Saskatoon & Region Home Builders' Association Inc. v. Children's Wish Foundation of Canada (2014), 440 Sask.R. 300; 2014 SKQB 89, refd to. [para. 2].

Prairie Feed Co-operative Ltd. v. Stilborn et al. (2014), 464 Sask.R. 298; 2014 SKQB 428, refd to. [para. 2].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 26].

Pervez et al. v. Caskey et al. (2013), 431 Sask.R. 201; 2013 SKQB 377, refd to. [para. 28].

Brockville Hotel Co. v. Aga Heat (Canada) Ltd., [1944] 2 D.L.R. 698 (Ont. C.A.), affd. [1945] S.C.R. 184, refd to. [para. 44].

Street (James) Hardware and Furniture Co. v. Spizziri et al. (1987), 24 O.A.C. 42; 62 O.R.(2d) 385 (C.A.), refd to. [para. 44].

Decoste Manufacturing Ltd. v. A & B Roofing Ltd. (2004), 223 N.S.R.(2d) 5; 705 A.P.R. 5; 2004 NSSC 79, refd to. [para. 44].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 53].

Counsel:

Andrew P. Loewen, for the plaintiff;

David E. Thera, Q.C., for the respondent.

This application was heard by Megaw, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 6, 2015.