On July 11, 2024, the Court of Appeal rendered its decision in Société d’assurance Beneva Inc. v. Céramique Décor M.S.F. Inc. et al. This case concerned a subrogatory recourse for water damage caused by the breakage of a flexible pipe located underneath a faucet in a bathroom. The corrosion which caused the breakage was the result of a combination of a vulnerable steel pipe, water pressure in the pipe and toxic vapours from the toilet cleaning product, called Lysol Advanced, stored in the vanity where the pipe was located. The defendants were Construction McKinley, as a general contractor which supplied and installed the pipe, Céramique Décor, as the seller and distributor of the pipe and Reckitt Benckiser, as the manufacturer of the Lysol Advanced cleaning product.

At trial level, Honourable Justice Alain Michaud, J.S.C., ruled that the manufacturer of the corrosive product, Reckitt Benckiser, was liable for 75% of the damages. The manufacturer of the flexible pipe, Céramique Décor, was liable for 25%, based on their respective omissions to inform. The judge reached the conclusion that the warning label on the bottle of Lysol Advanced was insufficient to inform a user about the risk of corrosion of metals. In addition, although notified of complaints made regarding its product, Reckitt Benckiser had not modified its label or advised anyone of the inherent risks of its product. As for Céramique Décor, although it added a notice in the new plumbing fixtures boxes, informing its clients that corrosion could affect its pipes, the judge blamed it for not having notified its previous clients.

On appeal, the two grounds invoked by the manufacturer of the cleaning product, Reckitt Benckiser, were dismissed. The obligation level of a manufacturer to inform increases with the danger of the product. Likewise, the information supplied by a manufacturer must be accurate, precise, understandable and complete and must reflect accurately the nature and seriousness of the danger, the risk that it may materialize and the extent of the prejudice likely to result therefrom. On the basis of these principles, the Court of Appeal ruled that the trial level judge did not make a palpable and overriding error by reaching the conclusion that the content of the cleaning product warning label was insufficient, considering the dangerousness of the product. It did not properly inform the consumer about the risk of metal corrosion. Citing Imperial Tobacco of the Supreme Court of Canada, the Court of Appeal also underlined that a victim who was misinformed, in this case Beneva’s insured, could not be blamed for not having taken the proper precautions required, had it been duly informed.

Regarding the apportionment of liability, the Court of Appeal reached the conclusion that no reviewable error had been made. The trial judge correctly ruled on the basis of the seriousness of the faults and not on the basis of causality. On many occasions in his judgment, the trial judge mentioned that it was the cleaning product which attacked the piping. In that, the omission to mention this danger on the label was the most damaging fact in the cause of the loss.

The appeal was dismissed and the reasons and conclusions in the trial level decision were accordingly confirmed. For a complete summary of the Superior Court decision, we invite you to read our legal newsletter of February 2023 at (https://www.michaudlebel.com/blogue/conduite-flexible-corrodee-qui-est-responsable-enfin-une-reponse-claire-a-cette-question).