Silliker v. New Brunswick Power Corp.
130 N.B.R. (2d) 444; 328 A.P.R. 444
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Fredericton
Stevenson, J.
December 15, 1992
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary
The plaintiff homeowners claimed damages resulting from a leak in a hot water heater leased from the defendant utility. The New Brunswick Court of Queen's Bench, Trial Division, allowed the claim and awarded the homeowners damages of $3,000 (the maximum amount justiciable in a small claim proceeding).
Consumer Law -- Topic 1245
Lease of goods -- Statutory warranties -- Warranty of fitness -- A homeowner leased a hot water heater from the defendant electric power utility -- After eight years the heater developed a leak and the home was damaged -- The New Brunswick Court of Queen's Bench, Trial Division, stated that a water heater that functions properly for over eight years cannot be said to be unfit for the purpose for which it is normally used (see paragraph 7).
Consumer Law -- Topic 1305
Lease of goods -- Breach -- Burden of proof -- A homeowner leased a hot water heater from the defendant electric power utility -- After eight years the heater developed a leak and the home was damaged -- The New Brunswick Court of Queen's Bench, Trial Division, held that the onus of proof respecting maintenance standards, the normal life of a heater and the cause of the leak was on the defendant supplier (see paragraph 10).
Statutes Noticed
Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, ss. 10, 12 [para. 7].
Authors and Works Noticed
Salmond on the Law of Torts (17th Ed.), pp. 50, 51 [para. 5].
Counsel
Gale L. MacDonald, for the plaintiffs;
Kevin C. Roherty, for the defendant.
This case was heard by Stevenson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, on December 9, 1992. The decision of Stevenson, J., was delivered on December 15, 1992.
[1] Stevenson, J.: Nature Of Claim: Damages to the plaintiffs' residence and chattels flowing from a leak in a hot water heater leased from the defendant.
[2] Remarks: On August 7, 1991 the hot water heater in the plaintiffs' residence in Riverview developed a leak. The plaintiffs were away and damage was done to the finished basement and to chattels located there. The damages exceeded $3,000. I assess the plaintiffs' damages at the maximum amount justiciable in a small claim proceeding, i.e. $3,000.
[3] The water heater which was leased from the defendant had been supplied by it on June 29, 1983, more than eight years before the rupture. It was probably installed by a tradesman employed by the plaintiffs as it is the defendant's policy only to have its contractors do the installation of replacement units. That is, the first heater leased by the defendant to its customer is installed by the customer, replacements are installed by the defendant.
[4] In their claim the plaintiffs alleged responsibility on the part of the defendant on the basis of liability in nuisance. Pleadings are not important in small claims. The rules of pleading do not apply and the court is not bound by the rules of evidence. Informality is the name of the game. The court may look at issues not mentioned in the "Claim" or "Dispute Note".
[5] The law of nuisance is not applicable. Liability for private nuisance exists only where the damage results from a defendant's act of wrongfully causing or allowing the escape of a deleterious thing, here water, into another person's land. It is a tort arising out of the duties owed by neighbouring occupiers; the plaintiffs cannot succeed if the act or commission complained of is, as here, on premises in their sole occupation. Salmond on The Law of Torts, (17th Ed.), pp. 50-51.
[6] Counsel for the plaintiff suggested there may be liability in negligence, the negligence being the supply of a defective water heater or one that fell short of accepted standards. The burden of proving such negligence would be on the plaintiffs and there is no evidence to support a finding of negligence.
[7] Any liability on the part of the defendant must, I think, be based on some breach of the law of consumer products, a field in which the Legislature has enacted the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1. The Act applies to contracts of lease or hire as well as to contracts of sale. Section 10 implies a warranty of fitness, section 12 a warranty of durability for a reasonable time. I do not think that a heater that functions properly for over eight years can be said to be unfit for the purpose for which it is normally used.
[8] The real issue in such a case must be: What is a reasonable period of durability? Did the product fail during that period? There is evidence that the defendant purchases the heaters from manufacturers who are required to supply units that meet standards laid down by the Canadian Standards Association and the Canadian Electrical Association. What those standards are, and what aspects of the product the standards relate to, were not established. We do not know whether those standards say anything about a reasonable period of durability. Where does the burden of proof lie on such an issue? Is it enough for a plaintiff to establish the rupture and resulting damage? Does that shift the onus to the defendant to prove that the rupture occurred after a reasonable period of durability had expired? Or is the onus on the plaintiff to prove that the rupture occurred during that period?
[9] If a product fails within a minimal time after it is supplied one might infer that there was a breach of both the fitness and durability warranties. On the other hand if the failure occurs after a very long time one might as well infer that it happened beyond a reasonable period of durability. It is the median cases that present difficulty. In those cases one party or the other must meet a burden of proof and the burden may shift.
[10] We do not know why the water heater leaked. We do not know if it was lined with a metal that may corrode after a time as a result of action between the metal and the water in the heater. If the lining is subject to corrosion, what is the anticipated life of the tank? Are there applicable standards? If there is an anticipated life, is the defendant under a duty to institute a program whereby rental heaters will be replaced before the expiry of that normal life? The ability and resources to marshall evidence relevant to such issues lies more within the province of the supplier of the product than with the consumer. For that reason I would place the onus of proof on the defendant. Counsel for the defendant stated that there are a number of actions, both small claim proceedings and otherwise, pending in the court. It may be that in one of those cases the issues I have mentioned will be more fully explored. In the instant case, because the defendant has not met the onus of proof that I find falls upon it, the plaintiff's claim must succeed.
[11] Directions For Judgment: The plaintiffs will have judgment against the defendant for $3,000 plus the filing fee of $35.
Judgment for the plaintiffs.
Editor: Eric B. Appleby
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