Ontario New Home Warranty Program et al. v. Chevron Chemical Co. et al., (1999) 99 O.T.C. 384 (SC)

• Judge: Winkler, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 17, 1999
• Jurisdiction: Ontario
• Citations: (1999), 99 O.T.C. 384 (SC);46 OR (3d) 130;37 CPC (4th) 175;[1999] OJ No 2245 (QL);88 ACWS (3d) 1138

New Home Warranty v. Chevron (1999), 99 O.T.C. 384 (SC)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. JN.150

Ontario New Home Warranty Program, Kathy Adetuyi and Andrew Duke (plaintiffs) v. Chevron Chemical Company, Hart & Cooley Inc., Eljer Manufacturing Inc. cob as Selkirk Metalbestos, Underwriters' Laboratories of Canada, Underwriter's Laboratories Inc., Armstrong Air Conditioning Inc., Consolidated Industries Corp., Welbelt Corporation, Carrier Canada Limited, Evcon Supply Inc., Evcon Industry, Inc., Goodman Manufacturing Co., Ltd., Quitflex Manufacturing Company L.P., Wabco Standard Trane Inc., Inter-City Products Corporation (Canada), Inter-City Products Corporation (U.S.), Lennox Industries Canada Ltd., Nordyne Inc., Rheem Manufacturing Company, York International Ltd. and CMIL Industries Inc., cob. as DMO Industries, The Canadian Gas Association, Canadian Gas Research Institute, International Approval Services Canada Inc., Consumers Gas Utilities Ltd., Union Gas Limited, Centra Gas Ontario Inc., Superior Propane Inc., Superior Propane Inc./Superieur Propane Inc., Southcorp Water Heaters USA, Inc. and American Water Heater-West Inc. and American Water Heater-East Inc. all cob as American Water Heater Group, Slant/Fin Ltd/Ltee, Weil-McLain division of Marley Canadian Inc., Her Majesty The Queen in Right of Ontario, and General Electric Company (defendants)

(No. 22487/96)

Indexed As: Ontario New Home Warranty Program et al. v. Chevron Chemical Co. et al.

Court of Ontario

Superior Court of Justice

Winkler, J.

June 17, 1999.

Summary:

The Ontario New Home Warranty Program, Adetuyi and Duke commenced a proposed class action. The action was a product liability claim concerning mid-efficiency furnaces with allegedly defective plastic venting pipes. The proposed class consisted of some 11,000 Ontario homeowners. The plaintiffs sought approval of the settlement of the action between themselves and several defendants (settling defendants) concurrently with class certification respecting the settling defendants and judgment according to the provisions of the settlement agreement. The settling defendants supported the plaintiffs' motion for approval of the settlement provided that the judgment approved those provisions in the agreement which would prevent the non-settling defendants from making further claims for contribution and indemnity against the settling defendants respecting any damages awarded to the plaintiffs at trial (prohibitive provisions). The non-settling defendants opposed the approval of the settlement. They argued that these provisions would prejudice them, substantively and procedurally, in presenting any defence that they might have.

The Ontario Superior Court granted the motion for certification. The court reviewed the relevant factors respecting a court's approval of a class action settlement and approved the settlement agreement. The court held that there was no substantive prejudice caused to the non-settling defendants by the prohibitive provisions. The court held that the procedural concerns could be adequately addressed through the terms on which the settlement was approved. The prohibitive provisions were entered as a stay of proceedings as against the settling defendants under s. 13 of the Class Proceedings Act, subject to compliance by the settling defendants with terms relating to the conduct of the remaining portions of the action.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - See paragraphs 80 to 87, 95 and 96.

Practice - Topic 9862.1

Settlements - Court approval - Class actions - See paragraphs 47 to 79 and 88 to 97.

Practice - Topic 9862.3

Settlements - Court orders barring further litigation - See paragraphs 34 to 79.

Cases Noticed:

Dabbs v. Sun Life Assurance Co., [1998] O.J. No. 1598 (Gen. Div.), refd to. [para. 43].

Canada v. Curragh, [1994] O.J. No. 1452 (Gen. Div.), refd to. [para. 49].

British Columbia Ferry Corp. v. T & N plc., [1996] 4 W.W.R. 161; 65 B.C.A.C. 118; 106 W.A.C. 118 (C.A.), refd to. [para. 62].

Sparling v. Southam Inc. (1988), 66 O.R.(2d) 225 (H.C.), refd to. [para. 70].

Carom et al. v. Bre-X Minerals Ltd. et al. (1999), 99 O.T.C. 335 (Gen. Div.), refd to. [para. 72].

Chace et al. v. Crane Canada Inc. (1997), 101 B.C.A.C. 32; 164 W.A.C. 32; 14 C.P.C.(4th) 197 (C.A.), refd to. [para. 95].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. C-6, sect. 5(1) [para. 80]; sect. 12, sect. 13 [para. 40].

Negligence Act, R.S.O. 1990, c. N-1, sect. 1 [para. 48]; sect. 3 [para. 59]; sect. 5 [para. 48].

Authors and Works Noticed:

Cheifetz, David, Apportionment of Fault in Tort (1981), p. 18 [para. 52].

Newberg on Class Actions (3rd Ed. 1992), ss. 11.45, 11.46 [para. 92].

Ontario, Report of the Attorney General's Advisory Committee on Class Action Reform, p. 37 [para. 41].

Counsel:

C. Scott Ritchie, Q.C., and Michael Eizenga for the plaintiffs;

Allan Farrer, for the Chevron Chemical Company;

Robert Bell and Peter Ruby, for Hart & Cooley Inc.;

Lawrence Thacker, for Selkirk Metalbestos;

Marcus Koehnen and Kathryn Manning, for Underwriters' Laboratories of Canada;

Paul Martin, for Underwriters' Laboratories Inc.;

Marilyn Field-Marsham, Randy Pepper and Stephen Lamont for Armstrong Air Conditioning Inc., Evcon Supply Inc., Evcon Supply Inc., Inter-City Products Corporation (Canada), Inter-City Products Corporation (U.S.), Rheem Manufacturing, York International Ltd. and Lennox Industries;

John Callaghan, for Consolidated Industries, Welbilt Industries, and Nordyne Inc.;

F. Paul Morrison and Frank J. McLaughlin for General Electric Company;

J.A. Prestage for Carrier Canada;

C. Stephen White and Ellen Bessner for Goodman Manufacturing and Quietflex Manufacturing Company, L.P.;

James Norton, for Wabco Trane Standard Inc.;

John C. Cotter, for American Water Heater Group;

Dominic Clarke, for the Canadian Gas Association, Canadian Gas Research Institute, International Approval Services Canada Inc.;

Jean Iu, for Her Majesty The Queen, in Right of Ontario;

Cynthia Sefton and Murdoch R. Martin, for Consumers Gas Utilities Ltd.;

Glenn Leslie, for Union Gas Ltd. and Centra Gas Ontario Inc.;

No appearances for CMIL Industries Inc., Superior Propane, Slant/Fin Ltd./Ltee and Weil-Mclain division of Marley Canadian Inc.

These motions were heard on June 8-10, before Winkler, J., of the Ontario Superior Court, who delivered the following judgment on June 17, 1999.