SUPREME COURT OF NOVA SCOTIA
Citation: Venedam v. Tanks & Ducts R Us Ltd., 2010 NSSC 186
Date: 20100510
Docket: Hfx No. 252426
Registry: Halifax
Between:
Kenneth Venedam
Plaintiff
v.
Tanks & Ducts R Us Ltd.
Defendant
v.
AFL Tank Manufacturing Ltd.
Third Party
LIBRARY HEADING
Judge: The Honourable Justice C. Richard Coughlan
Heard: March 22, 23, 24 and 25, 2010, at Halifax, Nova Scotia
Written Decision: May 10, 2010
Subject: Torts - Negligence - Installation of Oil Tank
Contracts - Sale of Goods Act - Breach of Implied Conditions or Warranties
Contracts - Consumer Protection Act - Breach of Implied Conditions or Warranties
Summary: On November 5, 2002, Tanks & Ducts R Us Ltd. (Tanks & Ducts) installed a new oil tank at the plaintiff’s residence. The oil tank was subject to pitting corrosion, eventually leaking oil on January 1, 2005, causing extensive damage to the plaintiff’s property. Remediation of the damage took place. The plaintiff commenced action against Tanks & Ducts, claiming negligence and breach of contract for sale of a faulty oil tank by breach of the conditions or warranties in the Sale of Goods Act, R.S.N.S. 1989, c. 408 and the Consumer Protection Act, R.S.N.S. 1989, c. 92. The plaintiff’s action was brought on his behalf and for the benefit of Wawanesa Mutual Insurance Company, pursuant to s. 149(1) of the Insurance Act, R.S.N.S. 1989, c. 231. Tanks & Ducts joined AFL Tank Manufacturing Ltd. (AFL) as a third party. AFL manufactured the oil tank.
Issues: Was Tanks & Ducts negligent in the installation of the oil tank?
Did Tanks & Ducts breach the warranties contained in the Consumer Protection Act or the Sale of Goods Act?
Result: There was no evidence Tanks & Ducts was negligent in the installation of the oil tank, in that there was no evidence the standard of care owed to the plaintiff was breached.
The oil tank failed because of pitting corrosion caused by contaminated fuel oil. The introduction of contaminated fuel is not a normal use of an oil tank. Absent the introduction of contaminated fuel oil, there is no evidence the oil tank was not durable for a reasonable time having regard to the use it would normally be put. The implied warranty in s. 26(3)(j) of the Consumer Protection Act does not apply.
The warranty contained in s. 17(a) of the Sale of Goods Act does not apply as the plaintiff ordered a specific type of oil tank and did not rely on the seller’s skill or judgment.
The warranty contained in s. 17(b) of the Sale of Goods Act does not apply as the oil tank was of merchantable quality.
The plaintiff’s action and the defendant’s claim against the third party for indemnity are dismissed.
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