



COURT OF APPEAL FOR ONTARIO

CITATION: Mabe Canada Inc. v. United Floor Ltd., 2017 ONCA
    879

DATE: 20171117

DOCKET: C62576

Cronk, Huscroft and Nordheimer JJ.A.

BETWEEN

Mabe Canada Inc.

Plaintiff (Appellant)

and

United Floor Ltd.

Defendant (Respondent)

Pamela Pengelley and Robert Sottile, for the appellant

Patrick J. Monaghan and Clarence Lui, for the respondent

Heard: November 15, 2017

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated September 29, 2016, with reasons reported at 2016 ONSC
    1060.

REASONS FOR DECISION

[1]

The appellant sustained damages of approximately
    $1 million when a drainage pipe, running underneath a floor installed by the
    respondent, caused a flood in its warehouse, built by First Gulf Design Build
    Inc. The appellants claim in negligence against the respondent was dismissed
    by the trial judge, who found that although the respondent damaged the drainage
    pipe by puncturing it with a stake it used to brace its concrete forms, the
    respondent nevertheless met the standard of care in carrying out its task.

[2]

The appellant submits that the trial judge
    failed to take into account the respondents contractual duties in determining
    the standard of care; erred in his foreseeability analysis; and erred in
    failing to determine whether relevant industry practice was itself negligent
    and should not have been followed.

[3]

We disagree.

[4]

First, although contractual duties may, in some
    circumstances, modify the standard of care that would otherwise apply, the trial
    judges findings precluded such a finding in this case. Section 28.1 of the contract
    required the respondent to notify First Gulf in writing if in his opinion the subsurface
    conditions at the Place of the Work differ significantly from those indicated
    in the Contract Documents, or a reasonable assumption of probable conditions
    based thereon. The trial judge found that the respondent should have been
    aware that a pipe ran underneath its formwork, but he accepted expert evidence
    that the respondent had no reason to foresee that the pipe would be at a shallow
    depth. As a result, the respondents duty to notify First Gulf under the
    contract did not arise.

[5]

Second, the trial judge did not err in his
    foreseeability analysis. He accepted expert evidence proffered by the
    respondent that there was no reason not to put a stake in the ground at the
    location it did. It was the plumbers responsibility to alert First Gulf to the
    shallow depth of the drainage pipe and First Gulfs responsibility to alert the
    respondent. First Gulf failed to do so.

[6]

The trial judge found that a flooring contractor
    would not expect to have a pipe running through the aggregate in the position
    it was in, some 8 to 10 feet from the rainwater leader that was connected to
    it. He accepted the respondents expert evidence that drainage pipes would
    normally be set 2-3 feet into the subfloor  well below the reach of the
    18-inch stakes used by the respondent, given the concrete slab thickness of 7
    inches and an aggregate layer between 6 and 12 inches thick. The trial judge
    rejected the appellants expert evidence and found that there were no other
    factors that should have alerted the respondent to the possibility of
    puncturing a pipe.

[7]

These findings were open to the trial judge on
    the record before him and they are determinative of this submission.

[8]

Third, although it is clear that conformity with
    standard practice in an industry does not necessarily insulate a defendant from
    a finding of negligence, as the Supreme Court explained in
ter
    Neuzen v. Korn
, [1995] 3 S.C.R. 674, at p. 698, a
    practice will be judged negligent only where the practice does not conform
    with basic care which is easily understood by the ordinary person who has no
    particular expertise in the practices of the profession  only where it is
    fraught with danger.

[9]

The only evidence supporting the submission that
    industry practice was negligent in this case came from the appellants expert. But
    it was rejected by the trial judge, who specifically preferred the evidence of
    the respondents experts in concluding that the respondent had no obligation to
    do more than it did to determine the location of the drainage pipe. There is no
    basis for this court to interfere with the trial judges decision concerning
    the expert evidence and the weight to be attached to it.

[10]

The appeal is dismissed.

[11]

The respondent is entitled to its costs of the
    appeal, fixed in the agreed amount of $35,000, inclusive of taxes and
    disbursements.

E.A. Cronk J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


