



COURT OF APPEAL FOR ONTARIO

CITATION: Conundrum Capital Corporation v. Century Plumbing
    and Heating, 2016 ONCA 20

DATE: 20160111

DOCKET: C60555, C60556 and C60557

MacPherson, Pepall and Hourigan JJ.A.

BETWEEN

Conundrum Capital
    Corporation

Plaintiff

and

Century Plumbing and Heating, Oxford Properties
    Group Inc., ADT Security Services Canada Inc./Intercon Security Limited and
    Brookfield Properties Ltd.

Defendants

(Century Plumbing  Appellant)

ADT/Intercon Security  Respondents)

Christopher Morrison and Joel Cormier, for the appellant

John Downing, for the respondents

Heard: January 6, 2016

On appeal from the judgment of Justice James F. Diamond
    of the Superior Court of Justice, dated May 11, 2015.

ENDORSEMENT


[1]

The appellant, Century Plumbing and Heating, is a defendant in several
    actions relating to a flood in the TD Canada Trust Tower in Toronto. The
    respondents, ADT Security Services Canada Inc. and Intercon Security Limited,
    provided security services at the tower at the time of the flood.

[2]

The respondents brought five motions for summary judgment seeking orders
    removing them as a party (defendant, third party, fourth party) from all of the
    actions relating to the flood. All of the parties in these actions except the
    appellant either consented to or did not oppose the relief sought by the
    respondents.

[3]

The motions judge, Diamond J., granted the motions for summary judgment:

In the result, I therefore grant summary judgment in favour of
    ADT and Intercon and the claims, third party claims and fourth party claims
    against ADT and Intercon are hereby dismissed.

[4]

The appellant appeals this decision on three grounds.

[5]

First, the appellant contends that the motions judge erred by stating
    that all the parties agreed that the Building Automation System (BAS) on the
    premises had frozen on the night of the flood.

[6]

We do not accept this submission. On this issue, the motions judge said:

Century does not really dispute that the 1:24 a.m. alarm
    related to low water pressure, and unfortunately Intercon never received that
    1:24 a.m. alarm due to the BAS system failing.

[7]

The appellant accepted the proposition in the first part of the
    sentence. The appellant did not accept the content of the second part of the
    sentence, and the motions judge did not suggest otherwise. The second part of
    the sentence is the motion judges conclusion and it flows from his review of
    the evidence. That evidence included the defendant Brookfields (the building
    owner) admission, very much against interest, that its BAS system had frozen at
    the relevant time.

[8]

Second, the appellant submits that the motions judge erred by not considering
    the video evidence (a video from the offices of the tenant Conundrum where the
    flood originated) tendered by the appellant.

[9]

We disagree. This proposed evidence related to the appellants
    contention that the 1:06 a.m. alarm could have been related to the low water
    pressure caused by the leak. The motions judge pointed out that there was about
    a six hour difference between the flood time and the time shown on the video
    and then said:

On the facts of this case, and as argued by Century itself,
    minutes counted. If the filing of the video itself, in the absence of any
    admissible evidence to assist the Court in determining the actual time
    contemporaneous with the events captured in the video, amounts to Centurys
    best foot forward, then in my view it has failed to establish the presence of a
    genuine issue requiring a trial, especially in the face of the evidence relied
    upon by Intercon as summarized above.

We agree with this analysis.

[10]

Third,
    the appellant asserts that the motions judge erred in relying on inadmissible
    evidence including a letter produced by Brookfield (a different defendant) to
    make factual findings against the appellants position on the issue of the 1:06
    a.m. alarm.

[11]

We
    do not accept this submission. Irrespective of that evidence, there was other
    admissible evidence to support the motions judges conclusion that the 1:24
    a.m. alarm related to low water pressure (and hence the flood) whereas the 1:06
    a.m. alarm could not have related to anything serious and or anything to do
    with the flood. In addition, there was no reliable evidence to the contrary.

[12]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $20,000, inclusive of disbursements and HST.

J.C.
    MacPherson J.A.

S.E.
    Pepall J.A.

C.W. Hourigan
    J.A.


