|Posted by e-plumber on April 09, 2004 at 19:21:50:|
|In response to Defective Toilets In Canada?|
: we are owners in a condo in north vancouver b.c. canada.
: as owners of crane toilets in our building, we have had one owners crane toilet leak and cause much water damage.we understand that some crane toilets where built in mexico. and could be all faulty. our toilet shows a number of 3-579
: can you let us know if this number is a faulty toilet ?
: thank you for your assistance in this problem.
: edward magee
"A class action for damages caused by defective toilets was certified in Chace v. Crane Canada.5 The court accepted that damages required individual assessment. However, the court noted that the typical loss would be physical damage by water, which was capable of routine determination. In many cases, the claim would already have been adjusted by an insurance adjuster.
In terms of causation, the defendant contended that there could be causes for the fracture of tanks other than a problem with the tank itself, such as over-tightening bolts used to install the tank, improper use, or allowing water in the tank to freeze.
The court conceded that there would have to be individual consideration of these other possibilities and that causation was not a proper common issue. However, the presence of these issues did not mean that the class action was not the most preferable way to resolve the issue. The plaintiff said that causes of fractures other than defective tanks were uncommon, and evidence sufficient to exclude causes other than weakness in the tank would be straightforward. On that basis the court found that the issue of causation will be capable of routine and summary disposition in individual hearings.
The remaining issue was negligence. The defendant contended that negligent manufacture was not a proper common issue because this issue required assessment of a manufacturing process over an extended length of time, where the manufacturing process and the manufacturer's knowledge were changing. The court turned this argument against the defendant. If the precise reason why an unusually high number of tanks from the plant had failed was complex, it would necessarily involve extensive and costly expert evidence that could not be justified in an individual action. Therefore a class action was preferable. Further, although the plaintiff was seeking an adjudication on the issue of negligent manufacture throughout the proposed time period, the court would be at liberty to answer the common question by deciding that the defendant was negligent after a certain date but not beforehand.
The court certified one further common issue of particular concern for defendants: whether the defendant's conduct in the manufacture or distribution of toilet tanks, or in the management of claims arising from cracked toilet tanks, justified an award of punitive damages and, if so, what the amount should be.
Although case law in relation to individual actions suggests that punitive and aggravated damages are considered after a determination of the plaintiff's own damage, the judgment in Chace suggests that a preliminary determination of each class members' damages will not necessarily be required in class actions. Punitive damages can be determined at Stage 1.
Also of note is that Chace was largely a subrogated action by certain insurance companies who had paid out losses on a first party basis."
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