Decisions in Resurfice Corp v Hanke, Dickie v Dickie

The Supreme Court of Canada (“SCC”) released decisions in Resurfice Corp v Hanke, 2007 SCC 7 [Resurfice], yesterday, and Dickie v Dickie, 2007 SCC 8 [Dickie], today.

In a 9-0 decision, the appeal in Resurfice was allowed and the trial judgment restored. Chief Justice McLachlin wrote the judgment of the Court, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring. The summary of the case on the Supreme Court website reads as follows:

Mr. Hanke, an arena attendant, either placed a water hose into the gasoline tank intake spout of an ice resurfacing machine he was preparing for routine use, or failed to notice that it had been put there in error by another attendant. Without conducting a “walk around” inspection of the machine, he turned hot water on to fill the water tank and went to prepare the ice for flooding. The hot water filled the gasoline tank and then forced water and gasoline out of the intake spout. As Mr. Hanke was walking back to the machine, he noticed liquid shooting up around the hose. He either pulled the hose out of the tank and turned the hot water off, or vice-versa. However, vapourized gasoline came into contact with an ignition source, causing two explosions and a fire. Mr. Hanke was seriously burned and disfigured. Having received workers’ compensation, he made a product liability claim against the machine’s manufacturer (Resurfice Corporation) and its distributors (Leclair Equipment Ltd.) arguing that the error was a foreseeable consequence of deficient design and manufacture.

The trial judge found that he was solely responsible for the accident. Absent evidence that either worker had been confused by the machine’s design, the evidence of behaviour and design was irrelevant. The Court of Appeal found that decision reviewable and identified three errors. First, the trial judge had applied the “but for” test rather than the “material contribution” test. Second, he had considered only the actions of Mr. Hanke. Finally, he had failed to adequately consider the role the design elements played in the accident. It allowed the appeal and ordered a new trial.

In Dickie, the appeal was allowed by 9-0, and the judgment was styled as of “THE COURT.” The summary of the case on the Supreme Court Website reads as follows:

In 1991, the parties separated after over a decade of marriage and the birth of three children. Under the separation agreement the Appellant was to receive spousal support until May 1991, and also child support. When the spousal support provisions under the agreement lapsed, the Appellant brought an application for spousal and child support pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and also a motion for interim spousal and child support, which was granted by an Order of Kiteley J. However, the Respondent moved to the Bahamas in July 2002 and did not comply with the Order of Kiteley J. On December 3, 2002, Greer J. ordered that the Respondent provide an irrevocable letter of credit to secure his child and spousal support obligations as well as security for costs by paying $100,000 to be held in an interest-bearing account by the Appellant’s solicitor. When the Respondent did not comply with the Order of Greer J., the Appellant made a motion to have the Respondent found in contempt. Stewart J. found the Respondent in contempt of Greer J.’s Order and sentenced him to 45 days in jail, which he served immediately. The Respondent then appealed the Orders of Stewart J. The majority of the Court of Appeal allowed the appeal and set aside the Orders of the motions judge.