IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20150727

Docket: S075347

Registry:
Vancouver

Between:

Dennis Roberto
Arellano, Hermenegilda Manrique Olivares

and Iris Adelheid
Arellano Manrique

Plaintiffs

And

Steve Wong, Rex
Wong, Thompson Minwax Company,

Thompson Minwax
(Canada) Ltd., Chong Bo Zhao

Defendants

And:

Chong
Bo Zhao

Third
Party

Before:
The Honourable Madam Justice Fitzpatrick

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This action was commenced some time ago, on August 7,
2007. An amended notice of civil claim was filed in May 2011. Responses to
civil claim have been filed by all of the defendants.

[2]            
The application before me is an application by the defendants, Thompson Minwax
Company and Thompson Minwax (Canada) Ltd. (the “Minwax Defendants”). They now
apply, by way of summary trial, to dismiss the action against them.

Background Facts

[3]            
In July or August 2005, the plaintiffs were living in a basement suite
at a residential building in Burnaby, British Columbia. The substance of the plaintiffs’
allegations concerns an incident whereby the hardwood floors in the suite above
them were refinished. The plaintiffs allege that toxic fumes from this
refinishing of the hardwood floors caused them certain personal injuries, inconvenience
and loss of income.

[4]            
The plaintiff, Dennis Arellano, is the husband and father. His wife is plaintiff
Hermenegilda Manrique Olivares. The other plaintiff, Iris Adelheid Arellano
Manrique, is their daughter.

[5]            
The action is brought against the owner of the property, the defendant,
Steve Wong and the defendant, Rex Wong, who was the building manager of the property.
The defendant, Chong Bo Zhao, was hired by Steve Wong to refinish the hardwood
floors.

[6]            
It is fairly evident that the incident took place approximately ten
years ago. Not surprisingly, there have been some steps taken in this
litigation concerning the delay in bringing this matter forward.

[7]            
The Minwax Defendants applied, in 2013, before Master McDiarmid, to
dismiss the action on the basis of want of prosecution. I have been referred to
Master McDiarmid’s reasons that were issued on November 20, 2013 and indexed as
Arellano v. Wong, 2013 BCSC 2093. Master McDiarmid dismissed the
application to dismiss the action, and made various orders in respect of the
ongoing steps to be taken. In particular, the Master ordered that by December
31, 2013, the plaintiffs were to confirm dates and locations for any
discoveries they wished to conduct on the defendants.

[8]            
I have been advised by counsel for the Minwax Defendants that, despite
that direction, the plaintiffs have not conducted any examination for discovery
of any of the defendants to this time.

The Summary Trial

[9]            
The Minwax Defendants raise what I would call a threshold issue; that is,
whether or not the plaintiffs can even establish that the product used in the
refinishing of the hardwood floors in the suite above were those manufactured
by the Minwax Defendants.

The Evidence

[10]        
The evidence on this application includes: the examination for discovery
of all of the plaintiffs; the affidavit of Mr. Zhao; and, finally, the
affidavit of M. Dan Forestiere, of the Minwax Defendants, that has been filed
in support. In addition, Mr. Arellano has filed a number of affidavits.

[11]        
Counsel for the Minwax Defendants summarizes the evidence of the
plaintiffs on the issue. He says the undisputed evidence is that none of the
plaintiffs have any direct knowledge as to what brand of wood-finishing product
was used during the refinishing. In particular, he says that none of the
plaintiffs know whether the product was water based or oil based.

[12]        
Mr. Zhao’s affidavit #1 was sworn May 14, 2015. He said he was hired by
Steve Wong to do the refinishing. He said he went to the Burnaby Home Depot to
get the necessary supplies. He says it was a three-day job. He said he finished
sanding the floors on the first day. He went to Home Depot and asked the
salesman to recommend a water-soluble floor varnish to him. He said that one
was recommended to him, which he was told was environmentally safe and water
soluble. He said that, based on the salesman’s recommendation, and because the
price was reasonable, he bought four one-gallon cans of floor varnish. He says
specifically:

15.       I do not recall the
manufacturer or the brand name of the floor varnish I purchased at the Burnaby
Home Depot and applied to the floors in the Upper Suite. I do not remember
whether it was particularly fast-drying. I do remember that it was a semi-gloss
sheen.

[13]        
Mr. Zhao’s evidence is overwhelmingly to the effect that the
product that he used was, in fact, a water-soluble varnish. He says that he
used this type of a varnish because it was easy to clean up, and did not have
the more potent smell that oil-based varnish does. He specifically states:

18.       The product I purchased
at the Burnaby Home Depot and that I used to varnish the floors in the Upper
Suite was a water-soluble, transparent floor varnish. It was not oil-based. I
know it was water-soluble because I purchased it so I could clean my equipment
with water. If it was oil-based, I would have had to use thinner to clean my
equipment. After I finished varnishing the floors of the Upper Suite, I cleaned
my equipment effectively with water.

[14]        
Mr. Zhao says that on the second and third day, he varnished the upper
floors using the product that he purchased at Home Depot. He put one coat on
the first day, and then lightly sanded it. He applied a second coat on the
second day. He said that when he was applying the varnish on the second and
third day, he was not concerned about the fumes. He says that the windows were
open, and he said each coat dried within a few hours of it being applied. Finally,
he said that, once it had dried, there was a light smell or odour to it, but
not a heavy or strong smell or odour.

[15]        
After he finished his job, Mr. Zhao says he took the three empty cans of
varnish to the recycling depot, and he took the fourth can, which had some
product left in it, back to his home. He says that, as per his practice, he did
not leave any floor varnish cans behind him.

[16]        
Mr. Zhao’s evidence about him taking away the cans of varnish is a relevant
fact on this application. Mr. Arellano refers to the examination for
discovery evidence of Rex Wong conducted by the Minwax Defendants. Rex Wong
testified to the effect that he found a can of Minwax varnish in a dumpster
behind the residence in question. I agree with counsel for the Minwax Defendants
that that is inadmissible as against the Minwax Defendants on the basis of Supreme
Court Civil Rules, Rule 12-5(46).

[17]        
I will, in any event, address that evidence on the basis of fairness to
the plaintiffs even though it is, in my view, inadmissible. Other evidence
before me indicates that the bin was present at the location for approximately
two to three weeks before this refinishing job was done, and the bin continued
to be present even for some three to five days afterwards. This is particularly
so in the face of Mr. Zhao’s uncontradicted and unchallenged evidence that
he cleaned up all of his cans and took them away.

[18]        
Further, Mr. Arellano’s evidence is that he also looked in the bin after
the incident in question and could not find any Minwax can. So Rex Wong’s
statement does not stand as compelling evidence that, in fact, even if there
was a Minwax can of varnish in the bin, it came from this particular job.

[19]        
The other evidence in support of the application comes from Mr. Forestiere’s
affidavit #1 sworn July 8, 2015. His evidence also stands as uncontradicted. As
with Mr. Zhao, the plaintiffs have not conducted any cross-examination of Mr. Forestiere
as they were certainly able to do in the circumstances.

[20]        
Mr. Forestiere says that from 2003 to 2014 he was the director of Regulatory
Affairs at The Sherwin-Williams Company (“Sherwin-Williams”), relating to “Wood-Care
Products”. Sherwin-Williams is the parent company of the Minwax Defendants. Mr. Forestiere
says that, in 2005, at the time of the incident in question, the Minwax Defendants
were not even manufacturing or marketing any water-based polyurethane wood-floor
finishing products in Canada for sale at Home Depot. In other words, his
evidence, again uncontradicted, is that the water-based product that Mr. Zhao
says he used was not even being manufactured by the Minwax Defendants at the
time.

[21]        
Mr. Forestiere also says that, in 2005, the only products of that
ilk that were being manufactured and sold in Canada were oil-based products known
as Minwax Fast-Drying Polyurethane and Minwax Super-Fast Drying Polyurethane. In
his experience — and, frankly, I think this is probably a common experience
that most of us have had — you cannot clean these oil-based types of products
with water. This evidence is consistent with Mr. Zhao’s evidence in that he
used water-based products so that he could clean up his equipment with water,
as was his initial plan when he purchased the varnish.

[22]        
I agree with the Minwax Defendants that the evidence is overwhelming and
uncontradicted to the effect that: (a) Mr. Zhao used a water-based varnish
for the purpose of this particular job; and (b) the Minwax Defendants did not
sell any water-based products in Canada at that time and, certainly, not at
Home Depot.

[23]        
Accepting such evidence, it remains an unproven fact as to whose product
was used by Mr. Zhao in the residence during the incident in question.

[24]        
Mr. Arellano has sworn three affidavits in opposition to this
application. His first affidavit, sworn August 23, 2013, was before Master McDiarmid
in respect of the earlier application that I have already referred to. The most
compelling evidence of Mr. Arellano in his affidavit is that immediately
following the application of the product to the floors above, the smell, and
the other fallout from the application of this product, immediately came down into
the basement suite where he was resting that afternoon and immediately affected
him and his health.

[25]        
Mr. Arellano’s major argument arises in paragraph 17 of his first
affidavit and, in particular, Exhibit “B”. Exhibit “B” is a letter from the Fraser
Health Authority dated September 29, 2006. Rick Kwan states that:

Upon receipt of your fax on
August 14, 2006, we contacted Rex Wong regarding the specific name of the product
used in the August 9, 2005 hardwood floor renovations. Mr. Wong was able
to confirm the floors were refinished with Minwax Polyurethane, which is an oil-based
varnish.

[26]        
Mr. Kwan’s statement is, of course, hearsay evidence, and certainly not
admissible on this summary trial application.

[27]        
I have already addressed this evidence from Rex Wong, as above, and have
not found it compelling, in any event. Further, I have reviewed the evidence
from the plaintiffs on this point, and all three of them point to Mr. Kwan’s letter
as the basis upon which they identified the product as coming from the Minwax Defendants.

[28]        
Mr. Vorbrodt, on behalf of the Minwax Defendants, has gone through Mr. Arellano’s
affidavit #1 in terms of the admissibility of that evidence. I will not recount
those submissions in any great detail, other than to indicate that I completely
agree with his objections as to various portions of this affidavit as being
inadmissible. The affidavit includes various matters of opinion evidence which
are said to arise from various reports, including opinions on various medical
issues.

[29]        
In particular, with respect to the various tests or doctor’s letters,
and the like, referred to by the plaintiffs, it is clear to me that none of
these documents are in a proper form that would comply with the Rules of this Court
concerning the admissibility of expert reports, including Rules 11-6 and 11-7. For
example, in these various reports, whether they be medical or testing, and the
like, while we might have the name of the expert, no qualifications are
indicated. There is no indication as to instructions provided. None of these reports
include the factual assumptions on which the opinion might have been based, nor
do they include a list of the documents which would have been reviewed by the
person producing these various reports that would be relevant to the person
potentially wishing to respond to these reports. Simply, these opinions are not
in what I would call a proper form.

[30]        
As the Minwax Defendants’ counsel points out, these are not technical
requirements that are easily overlooked by the court. There are good reasons
why those Rules exist. Principally, they relate to fairness in the sense of
notifying the other party as to what that expert evidence may be used in
support of the opposing case so that they can consider the matter and choose to
respond if they wish.

[31]        
I have been referred to Madam Justice Ballance’s decision in Chen v.
Ross, 2012 BCSC 1605, beginning at para. 36 concerning the rationale
permitting the admission of such expert evidence. It would be a rare case,
indeed, where the court would disregard virtually every aspect of what is
required by the Rules to put this evidence in proper form. Accordingly, fairness
dictates that all of this evidence is inadmissible as hearsay evidence and not
properly before me on this summary trial application.

[32]        
The same objections are legitimately raised in respect of Mr. Arellano’s
affidavit #5 sworn July 20, 2015. To some extent, this affidavit includes
objectionable statements. There is a reference, again, to an opinion from Dr. David
Buscher, which is not in proper form in terms of providing evidence of the
cause of the plaintiffs’ medical conditions. Therefore, I accept the objections
of the Minwax Defendants’ counsel in terms of why the portions of that
affidavit should not be accepted as admissible evidence.

[33]        
Finally, Mr. Arellano refers to his affidavit #6 sworn just today, July
27, 2015. The Minwax Defendants could have objected to the lateness of this
affidavit, although I appreciate Mr. Vorbrodt’s professionalism in
allowing the plaintiffs some leeway since they are self-represented. However, unfortunately,
this affidavit suffers from much of the same deficits as was the case with the
earlier two affidavits of Mr. Arellano. Again, the affidavit contains hearsay
evidence and opinion evidence that is not in proper form. Much of the
objectionable evidence comes directly from Mr. Arellano in terms of his
own research and what he thinks was the cause of his medical conditions.

[34]        
Mr. Arellano says that the product used must have been an oil-based
product. He has done much research and, in that respect, he is to be commended
for his diligence and his energy. His research includes identifying elements as
noted by his medical professionals. However, he is not able to link those
elements to specific products of the Minwax Defendants that might have been used
by Mr. Zhao, accepting that the Minwax Defendants were manufacturing oil-based
products and selling them in Canada in 2005.

[35]        
In reliance of his “opinion, Mr. Arellano points to the smell from
the varnish lasting longer than one might expect of water-based products. This is
opinion evidence and does not appear to have any other evidentiary basis. Finally,
he refers to the fact that he considered that some food in his unit had been
"varnished" and was spoiled. However, while he might have found some
change to the texture of the packaging of food in his unit, one would have
expected some expert evidence that this could be the normal result of using an
oil-based product, let alone one that might have been sold by the Minwax
Defendants in 2005.

[36]        
Mr. Arellano’s family moved out of this residence in September 2007
and, therefore, they were in the basement suite for approximately two years
after the incident. Much of the research that Mr. Arellano went on to do
after that point in time is, unfortunately, based on events even after September
of 2007. There are lab reports from 2009 and 2010 and, I believe, even one from
2015. There is no evidence tying these lab reports to products of the Minwax
Defendants in 2005.

[37]        
These matters could, obviously, have been the subject of expert evidence.
By that, I mean the medical causes for any maladies suffered by Mr. Arellano
and his wife and daughter. There could have been efforts made to test the floor
of the upper suite, in particular. I do not know who now owns the property, but
it certainly could have been done while Mr. Steve Wong was the owner of
the property. I understand that no efforts have been made in that respect.

[38]        
I accept Mr. Arellano’s submissions that there might be financial
issues in terms of taking this matter forward. The fact of the matter is that,
if a person is going to prosecute an action, it has to be done in a manner that
is fair to all parties. The Court is simply not in a position to overlook
substantial requirements in respect of pre-trial procedures even in light of what
might be described as extenuating circumstances.

Appropriateness of Summary Trial

[39]        
The first issue to be addressed is the appropriateness of the summary
trial itself.

[40]        
I did not understand the plaintiffs to object to the summary trial
procedure. None of them made any submissions to that point. To be fair, Mr. Arellano
indicated that he might have other materials to put before the Court; however, on
the basis of the submissions made, my strong suspicion is that those further
materials would suffer from the same deficiencies as that of his current
evidence in terms of hearsay, opinion evidence, relevance, and the like.

[41]        
The fact of the matter is that this action has been ongoing now for ten
years. There was a clear signal to the plaintiffs in 2013 by Master McDiarmid
to get on with the matter as soon as possible. It is my understanding that a
ten-day jury trial has been scheduled commencing February 29, 2016. There has
been, to the extent that the parties have wished, the opportunity to conduct
pre-trial discoveries. I have already mentioned the discoveries of the
plaintiffs, and there has obviously been an examination for discovery of Rex Wong.

[42]        
The critical evidence, of course, comes from Mr. Zhao, who is the
person who was using the product in the first place. His affidavit is current,
and I do not expect any change in his testimony, particularly since he was not
cross-examined by the plaintiffs on his affidavit.

[43]        
Accordingly, there does not appear to be any reason, from a pre-trial
procedure, to put off a summary trial on the basis that the parties have not
had an opportunity to fully investigate the matter and bring forward all
relevant material to the Court. This summary trial is focused on the narrow
issue as to whether or not the product used in this case, even accepting that
it caused the injuries alleged by the plaintiffs, can be tied to the Minwax Defendants.

[44]        
Credibility is not an issue on this summary trial application.

[45]        
The test in terms of when a summary trial is appropriate is well-known.
The relevant factors are set out in Inspiration Management Ltd. v. McDermid
St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.), and the legions of
cases which have followed that decision. The specific factors are not
overwhelmed by the overarching requirement that the court may grant judgment only
where it is able, on the whole of the evidence, to find the necessary facts to
decide the issues and where it is just to decide the issues on the application:
Supreme Court Civil Rules, Rule 9-7(15).

[46]        
I am satisfied that it is appropriate to proceed with the summary trial
application, rather than dismissing the application and allowing the parties to
proceed to the trial next year in 2016.

Discussion

[47]        
The onus lies on the plaintiffs to show that, in this particular case,
the product used was that manufactured by the Minwax Defendants.

[48]        
Mr. Zhao’s and Mr. Forestiere’s evidence is uncontradicted. I
agree with the Minwax Defendants that the evidence is overwhelmingly to the
effect that whatever product was used by Mr. Zhao, it did not come from the Minwax
Defendants. This is particularly so in the face of the plaintiffs’ lack of any
knowledge about what product was used.

[49]        
I have carefully considered the three affidavits filed by Mr. Arellano.
In my view, nothing in those affidavits, to the extent that the evidence is
admissible, brings the matter close to establishing — and certainly not on a
balance of probabilities — that the product used by Mr. Zhao was that
manufactured and sold by the Minwax Defendants.

[50]        
In summary, I am of the view that it is appropriate to resolve this
matter by way of a summary trial. That is not to say that this result resolves
the issue in relation to the other defendants. The plaintiffs are at liberty,
of course, to proceed with the trial in respect of those defendants.

[51]        
Nothing I have said in these reasons is to be taken as any finding in
respect of the liability of the other defendants. I am satisfied that the evidence
supports a dismissal of the action as against the Minwax Defendants on the basis
that there is overwhelming evidence that the floor varnish used could not have
been manufactured by them. Accordingly, the action as against the Minwax Defendants
is dismissed.

Document Disclosure

[52]        
The remaining matter relates to the document disclosure. The Minwax
Defendants apply for an order that the plaintiffs, and Steve and Rex Wong,
return all copies of documents numbered 23 to 30 on the third amended list of documents
of the Minwax Defendants.

[53]        
The Minwax Defendants say that those documents evidence what have been
described as trade secrets. There are six documents created in June 2008
entitled "Composition Breakdown — For Internal Use Only”. Mr. Forestiere’s
evidence is that these documents could, if disclosed into the public domain,
cause serious economic damage to the Minwax Defendants. He says:

11.       … This is because these
documents reveal the chemical composition of the products which would enable
our competitors to manufacture the products themselves relatively easily. Without
these documents, it would be very difficult to determine the chemical
composition of the products and to manufacture them. Accordingly, public
disclosure of the 2008 Composition Breakdowns could significantly damage the
sale of clear varnishes by Sherwin-Williams and the Minwax Defendants.

[54]        
Mr. Arellano did not really address this matter. I am satisfied
that, given the dismissal of the claim against the Minwax Defendants, it is
appropriate that these documents be returned. Steve and Rex Wong have already returned
their versions so the order will go as against the plaintiffs only. The order
is granted that the plaintiffs return these documents to the Minwax Defendants
within seven days of this order. All copies in their possession are to be
returned.

[55]        
There will also be an order that the Minwax Defendants pay the sum of
$50 to the plaintiffs by certified cheque. This amount is what I understand was
the estimated cost to photocopy these documents. In addition, counsel for the
Minwax Defendants is directed to deliver a self-addressed pre-paid postage envelope
to the plaintiffs, which can be used in the return of the documents, again,
with the seven-day period.

[56]        
THE COURT:  Are you seeking costs, Mr. Vorbrodt?

[57]        
MR. VORBRODT:  Yes, we are.

[58]        
THE COURT:  Mr. Arellano, the Minwax Defendants are seeking costs
against you. Do you have any submissions on costs?

[SUBMISSIONS RE: COSTS BY MR. ARELLANO]

[59]        
THE COURT:  I am awarding costs in favour of the Minwax Defendants;
however, the plaintiffs will be at liberty to seek recovery of the costs
payable to the Minwax Defendants from the other defendants. Mr. Arellano,
that means that if you succeed against the other defendants, you have the
ability to argue that those defendants have to pay you the amount that you have
to pay to the Minwax Defendants.

[60]        
Finally, I am dispensing with the endorsement of the form of the order by
the plaintiffs.

“Fitzpatrick
J.”