Even for those who purchase and install products, compliance
with statutory regulation is a must. In Taylor v. Great Gulf
(Whitby) Ltd.,1 a contractor who purchased and
installed materials which were improperly labelled learned an
important lesson in negligence law: although a breach of statutory
authority does not alone give rise to civil liability, such
breaches can be evidence of negligence. In deciding that there was
a serious issue to be tried, the court took a broad view of
causation and decided that it would be open to trier of fact to
find that the defendant's breach of code was substantially
connected to the plaintiff's injury.
In Taylor, the defendant, I/Land Plumbing, was hired by
the co-defendant, Gulf View Contracting Limited, to install a
series of plumbing fixtures in residential homes. One of those
residences was owned by the plaintiff. As part of its contractual
duties, I/Land installed a toilet using a particular flex hose.
Five years after installation, a flood occurred which caused damage
to the plaintiff's residence.
The plaintiff sued the defendant contractors, and I/Land moved
for summary judgment alleging that there was no evidence of
negligence on its part.
The Canadian Standards Association's ("CSA")
standards, as well as provisions of the Ontario Building
Code,2 were central to the motion for summary
judgment. The CSA requires that plumbing supply fittings be marked
with particular certification information, while the Building
Code states that products lacking these markings "shall
be regarded as proof, in the absence of evidence to the contrary,
that no certification exists".3The hose installed
by I/Land was in violation of the Building Code as it had
not been certified by the CSA and did not have the requisite
In its motion for summary judgment, I/Land argued that the mere
absence of CSA certification was not the cause of the damage. The
defendant pointed out that, according to expert evidence, both
CSA-certified hoses and non-certified hoses had failings that would
lead to failures after a period of time. Thus, I/Land claimed that
the absence of a CSA certification is not the cause of the
The Court stated that I/Land's argument amounted to
"the proposition that there is no evidence of negligence
because there is no evidence of causation." The Court rejected
this argument, stating that "the mere breach of a statutory
authority or code does not, of itself, automatically give rise to
civil liability. However, failure to observe the requirements set
out by regulatory authorities is evidence of
negligence".4 The Court also pointed to other
allegations of negligence that were confirmed by the discovery of
I/Land's witness, and were sufficient to show that there was a
sufficient issue requiring a trial.
The Court also rejected I/Land's causation argument that the
expert evidence showed that even CSA-approved hoses had failed, so
the mere absence of CSA approval could not have "caused"
the hose to fail. The Court noted that the fact that CSA-approved
hoses failed does not have any bearing on the question of whether
I/Land was negligent in selecting a defective hose. In addition,
the Court relied on Supreme Court jurisprudence which states that
causation is not a simple "join the dots"
exercise,5 the Court held that the test for causation is
whether there is "a substantial connection between the injury
and the defendant's conduct".6 The Court
concluded that it was open to the trier of fact to determine that
there was a substantial connection between I/Land's selection
and fitting of a defective hose and the damage. Accordingly, the
summary judgment motion was dismissed.
Ultimately this case reaffirms that, although an otherwise
innocuous breach of code (such as the failure to stamp a flex hose)
may not in itself give rise to civil liability, a breach of code is
nevertheless evidence of negligence. Given the court's broad
view of causation, an act of non-compliance with code can support a
"substantial connection" capable of establishing
causation in tort.
1 Taylor v. Great Gulf (Whitby) Ltd., 2015 ONSC
2 O. Reg 332/12.
3 Ibid, s. 126.96.36.199(3).
4 Taylor at para. 19. See also Ryan v.
Victoria (City),  1 S.C.R. 201 (S.C.C.).
5 Clements (Litigation Guardian of) v. Clements,
2012 SCC 32.
6 Hanke v. Resurface Corp., 2007 SCC
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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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