Whitehorn Lodge Inc. v. Nuco Inc. et al., 2012 ABQB 701

JudgeKenny, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateApril 23, 2012
Citations2012 ABQB 701;(2012), 552 A.R. 95 (QB)

Whitehorn Lodge Inc. v. Nuco Inc. (2012), 552 A.R. 95 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. DE.045

Whitehorn Lodge Inc. (plaintiff) v. Nuco Inc. and The Bolt Supply House Ltd. (defendants)

(0401 02633; 2012 ABQB 701)

Indexed As: Whitehorn Lodge Inc. v. Nuco Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Kenny, J.

November 22, 2012.

Summary:

The plaintiff built a seniors' assisted living complex. As part of its fire stop system, the plaintiff used an intumescent caulking material, GG-266, manufactured by the defendant around the holes where plumbing and electrical wire penetrated the walls. The wiring that came into contact with the GG-266 caulking material was required to be removed and replaced. The plaintiff claimed damages from the defendant for the cost of removing and replacing the electrical cable, and for the cost of delay to the project resulting from having to do the additional work.

The Alberta Court of Queen's Bench allowed the action.

Damage Awards - Topic 766

Torts - Fraud and misrepresentation - Negligent misrepresentation - The plaintiff built a seniors' assisted living complex - As part of its fire stop system, the plaintiff used an intumescent caulking material, GG-266, manufactured by the defendant around the holes where plumbing and electrical wire penetrated the walls - The wiring that came into contact with the GG-266 caulking material was required to be removed and replaced - The plaintiff claimed damages from the defendant for the cost of removing and replacing the electrical cable, and for the cost of delay to the project resulting from having to do the additional work - The Alberta Court of Queen's Bench found that the defendant breached both the implied warranty under the Sale of Goods Act (Alta.) and made negligent misrepresentations - The court awarded damages of $61,618.58 for the cost of removing and reinstalling the electrical and communication cables - See paragraphs 69 to 73 - The court rejected the plaintiff's claim for damages for delay of project - The court was not satisfied that the delay in the project and in the possession date of the units could be traced directly to the electrical issue - The minutes of the site meetings referred to other matters that caused delay - The additional financing costs, supervision costs and additional management fees were not related to the electrical issue with the defendant - See paragraphs 74 to 80.

Damages - Topic 3630

Deceit and misrepresentation - Negligent misrepresentation - [See Damage Awards - Topic 766 ].

Damages - Topic 3630

Deceit and misrepresentation - Negligent misrepresentation - The plaintiff built a seniors' assisted living complex - As part of its fire stop system, the plaintiff used an intumescent caulking material, GG-266, manufactured by the defendant (Nuco) around the holes where plumbing and electrical wire penetrated the walls - The wiring that came into contact with the GG-266 caulking material was required to be removed and replaced - The plaintiff claimed damages from the defendant for the cost of removing and replacing the electrical cable, and for the cost of delay to the project resulting from having to do the additional work - The defendant asserted that on the Technical Information sheet containing the alleged misrepresentations made by the defendant, there was a clause under " Warranty Information" which read as follows: "NUCO Inc., warrants only that its product will meet its specifications. NUCO shall in no event be liable for incidental or consequential damage. NUCO's liability, expressed or implied is limited to the stated selling price of any goods found to be defective." - As a result, the defendant said that any damages suffered by the plaintiff were limited to the cost of the GG-266 which was $1,770 - The Alberta Court of Queen's Bench held that the limitation set out in the Technical Information was not sufficient to oust the statutory requirements under the Sale of Goods Act or to oust the liability for damages resulting from the negligent misrepresentations - See paragraphs 64 to 67.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepresentation - The plaintiff built a seniors' assisted living complex - As part of its fire stop system, the plaintiff used an intumescent caulking material, GG-266, manufactured by the defendant around the holes where plumbing and electrical wire penetrated the walls - The wiring that came into contact with the GG-266 caulking material was required to be removed and replaced - The plaintiff sued, basing its claim against the defendant on negligent misrepresentation - The Alberta Court of Queen's Bench allowed the action - There was a duty of care based on the special relationship between the plaintiff and the defendant - The representation that the GG-566 caulking was suitable for electrical cable penetration was inaccurate and misleading - The representations were negligently made - Finally, the plaintiff relied on the representations and it was reasonable that it do so - See paragraphs 37 to 62.

Sale of Goods - Topic 4106

Conditions and warranties - Implied or statutory terms as to quality or fitness - Fitness or suitability of goods - The plaintiff built a seniors' assisted living complex - As part of its fire stop system, the plaintiff used an intumescent caulking material, GG-266, manufactured by the defendant around the holes where plumbing and electrical wire penetrated the walls - The wiring that came into contact with the GG-266 caulking material was required to be removed and replaced - The plaintiff sued, asserting that the defendant breached the implied warranties in ss. 16(2) and (4) of the Sale of Goods Act (Alta.) - The plaintiff argued that it relied on an implied warranty from the defendant that the GG-266 caulking was fit for use in fire rated walls and that this warranty was breached - The defendant argued that the plaintiff misused the product and had failed to prove that it was not fit for its intended purpose or not of merchantable quality - The Alberta Court of Queen's Bench found that there was a breach and allowed the action - The plaintiff purchased the GG-266 intending to install it and proceed with its project - It was not able to do this due to the performance of the product - See paragraphs 22 to 33.

Sale of Goods - Topic 6503

Breach - Remedies of buyer - Damages - General - [See Damage Awards - Topic 766 and second Damages - Topic 3630 ].

Torts - Topic 4340

Suppliers of goods - Negligence - Manufacturers - Damages - Measure of - [See Damage Awards - Topic 766 ].

Cases Noticed:

Daishowa-Marubeni International Ltd. et al. v. Toshiba International Corp. et al. (2010), 501 A.R. 178; 2010 ABQB 627, refd to. [para. 24].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 37].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 39].

Albionex (Overseas) Ltd. et al. v. ConAgra Ltd. et al. (2011), 270 Man.R.(2d) 293; 524 W.A.C. 293; 2011 MBCA 95, refd to. [para. 41].

Allison v. Noranda Inc. et al. (2001), 239 N.B.R.(2d) 211; 619 A.P.R. 211; 2001 NBCA 67, refd to. [para. 50].

Spinks v. Canada, [1996] 2 F.C. 563; 195 N.R. 184 (F.C.A.), refd to. [para. 50].

Syncrude Canada Ltd. et al. v. Hunter Engineering Co. and Allis-Chalmers Canada Ltd. et al., [1989] 1 S.C.R. 426; 92 N.R. 1, refd to. [para. 66].

Canada Building Materials v. Meadows, [1968] 1 O.R. 469 (H.C.), refd to. [para. 66].

Authors and Works Noticed:

Fridman, G.H.L., Sale of Goods in Canada (5th Ed. 2004), pp. 170 [para. 23]; 174, 175 [para. 26].

Counsel:

Robert J. Simpson, Q.C., for the plaintiff;

Michael D. Aasen and Brad Kudar, for the defendant, Nuco.

This action was heard on April 23, 2012, by Kenny, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on November 22, 2012.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT