February 2023 – Case law Summary – The case La Capitale assurances générales inc. v. Construction Mckinley inc., Société d’assurance générale Northbridge, Céramique Décor M.S.F. inc., Lisa Duval et Reckitt Benckiser (Canada) inc., 200-17-030650-204

On February 14, 2023, the Superior Court, written by the Honorable Alain Michaud, J.C.S., ruled on the issue and determined the responsibility arising from the breakage of a flexible pipe corroded by chlorine vapours. After a lengthy analysis, this decision considers the arguments regarding the general contractor, the distributor of the flexible pipe, the manufacturer of the corrosive product, as well as the owner’s usage.

The facts

In 2012, La Capitale’s insureds entrusted the construction of their residence to the general contractor Construction McKinley Inc. They were referred to the supplier, Céramique Décor M.S.F. Inc., where they chose a set of fixtures, including rubber flexible pipes covered with a braided stainless-steel sheath. The purchase was directly charged to McKinley’s account, who would install it.

Starting in 2013, the family maintained the toilet bowls with Lysol Advanced, a product manufactured by Reckitt Benckiser, which was stored in the bathroom vanity. On
February 2, 2017, the flexible pipe supplying the cold-water faucet gave way. Experts unanimously agree that the stainless-steel braided sheath of the flexible pipe degraded due to a phenomenon of stress corrosion, resulting from the emission of chlorine vapours released by Lysol Advanced.

The absence of liability of the general contractor

The Court acknowledges that McKinley is a professional seller of real estate works, which does not make him a seller who is specialized in relation to all accessories that can be incorporated into a residence in the context of construction, such as light fixtures, decorative accessories, and plumbing fixtures. In fact, the Court holds that McKinley had no knowledge of the phenomenon of corrosion that could occur in these circumstances before the disputed event and was not in any way involved in the design, manufacture, or selection of materials for said pipe. It concludes that the general contractor successfully rebuts the presumption of hidden defect knowledge, if such a defect exists. As for the duty to inform, there is no doubt for the Court that McKinley is not selling a good in its specialty by facilitating the acquisition of the plumbing set in this case. No duty to inform could therefore be attributed to him.

Failure of the distributor Céramique Décor to provide information

The Court considers that the flexible pipe was not affected by any hidden defect, as a corrosive environment does not constitute normal conditions of use. Moreover, the experts agreed that the simultaneous presence of three (3) factors was required to cause the break, namely stress caused by water pressure, a corrosive environment, and a material susceptible to corrosion, namely stainless steel in this case. Finally, the Court considers that Céramique Décor could have rebutted the presumption of knowledge if a defect had existed, as it would not have been able to discover the defect at the time of the sale of the goods in 2012. Céramique Décor was aware of the corrosion phenomenon that could affect its product as of July 2014 (after receiving several such claims). Despite adding a mention to the installation guide for the set of faucets in November 2015 for future customers, the Court considers that sufficient information regarding the risks and dangers of flexible pipes should have been given to Céramique Décor’s past customers. Therefore, the Court concludes that the latter was negligent in its duty to provide information and assigns 25% of the responsibility to him.

The causal link and the lack of information from the manufacturer Reckitt Benckiser

The Court finds from the evidence that Lysol Advanced is an aggressive and corrosive product, and the chlorine vapours released by it gradually altered and ultimately destroyed the sheath of the flexible pipe. It should be noted that Lysol Advanced was the only product used since the construction and stored in the vanity near the flexible pipe.

Therefore, although Reckitt Benckiser is not at fault for offering Lysol Advanced to the public, it was necessary for the company to highlight its aggressive nature on its packaging. The Court considers that the indication “Keep container tightly closed in a cool, well-ventilated place” is insufficient to warn the consumer that chlorine vapours significantly degrade metals in the immediate environment. For failing to fulfill its duty to provide information to users, he is assigned 75% of the responsibility.

The absence of liability of La Capitale’s insured parties

The Court reiterates the criterion applicable to the consumer, namely the gullible and inexperienced person, having a low degree of discernment and who only pays attention to what is obvious to them. The Court excuses the La Capitale insured’s ignorance of the risks posed by the chlorine vapours of the Lysol Advanced product, which results from Reckitt Benckiser’s breach of its duty to inform. As for the fact that the insured did not read the label anyway, the court reiterates that the manufacturer’s duty must first be satisfied before checking whether the consumer has fulfilled their own obligations, which is not the case here.

To remember

This decision by the Superior Court ultimately settles the issue of liability related to the breakage of a flexible pipe caused by a corrosion phenomenon. The Court considers that this is not a question of hidden defect, but rather a question related to the continuous duty of information that manufacturers and other actors in the distribution chain have regarding the risks associated with their product. Finally, it also points out that the general contractor cannot be considered as a specialized seller of all the goods incorporated in a residence during its construction, distinguishing the goods necessary for the execution of the contract from the hundreds of other items that may adorn an interior.