76. No action shall be brought against any person in whose house or building or on whose land any fire accidently begins, nor shall any recompense may be made by that person for any damage suffered thereby; but no agreement between a landlord and tenant is defeated or made void by this Act.

Cases

The recent decision of Mohamed v. Banville¹ is a reminder that unless one can establish certain facts the Plaintiff will not succeed in a subrogated claim. Indeed in this case the claim was struck out at the summary judgment stage.

The Insurer then brought a subrogated action to recover approximately $150,000.00 for damages to the Plaintiff's property.

A fire started at the Defendant's residence. The fire spread to a neighbouring property owned by the Plaintiff. The Plaintiff settled his property damage claim with his Insurer. The Insurer then brought a subrogated action to recover approximately $150,000.00 for damages to the Plaintiff's property.

The Defendant had been out drinking and returned to his house intoxicated. He asked one of the other tenants if they could give him a cigarette, but they did not have any. He then went back to his residence and fell asleep on the couch.

The Defendant woke up to the sound of the smoke alarm. The couch he was sitting on was not hot or in flames. The Plaintiff's property was severely damaged and the Defendant's property burned to the ground.

The fire marshal's investigation did not reveal a cause of the fire. The Plaintiff's Insurer hired an engineering firm that concluded the most probable cause of the fire was careless smoking on the couch.

The evidence supporting the engineer's probable cause report were that, the Defendant was a smoker, he was impaired, he was asleep on the couch, and the burn pattern. Unfortunately there was no evidence of smoker's materials in the couch area.

...in careless smoking cases the Plaintiff must establish that there was smoking at or around the time the fire started, and in proximity to the origin of the fire.

The court granted the Defendant an order dismissing the case on a motion for summary judgment. In its reasons the Court stated that in careless smoking cases the Plaintiff must establish that there was smoking at or around the time the fire started, and in proximity to the origin of the fire. Without that evidence, it was deemed an "accidental fire" which is statute barred by section 76 of the Fire Protection and Prevention Act.

The Ontario Court of Appeal in Neff v. St. Catherines Marina² held that a fire will be deemed "accidental" if it cannot be traced to a particular cause of action on a balance of probabilities.

In the recent case of Xie v. Jiang³ the facts were as follows. On the night of January 26, 2013, the Defendant, Jeffrey Jiang was reading upstairs in his condominium. He smelled smoke and immediately went downstairs to the basement of his townhouse. He discovered that there was fire inside the clothes dryer. He attempted to put the fire out with water, but was unsuccessful so he called 911. At the time of the fire, he was attempting to dry two comforters. He testified that he had washed and dried these items in the past without an incident.

The fire marshal had conducted an investigation and his report was entered into evidence at trial. The fire marshal was unable to eliminate accidental ignition as a result of the failure of the electric dryer as a potential cause of the fire. He was also unable to eliminate accidental ignition of the combustible materials in the clothes dryer as a cause of the fire.

The condominium corporation retained an origin and cause engineer who confirmed that the cause of the fire originated in the clothes dryer. He was unable to determine the cause of the fire, and in particular was unable to establish the specific sequences of events that caused the fire, the specific ignition source, the specific fuel first ignited, and how these elements came together. Further, he was unable to conclude what component may have failed in the dryer, or how the fire was generated.

Another expert was retained who concluded that there were three possible causes of the fire, including;

1. a failure of the dryer components;
2. the ignition of lint;
3. the ignition of the load within in the dryer.

In light of the clear evidence that the exact cause of the fire could not be determined, the trial judge made the following conclusions:

1. the court operates on a balance of probabilities;
2. there is nothing to suggest negligence;
3. the closest thing to negligence is the size of the load that was put in the dryer, however, there is no evidence that the load caused the fire or that the size of the load was negligent; and finally;
4. the wording of the Fire Protection Act, and section 76(2) particularly create a very difficult onus on anybody trying to establish negligence, certainly without some independent expert evidence to counter either the Fire Marshall's Report if that report indicates the fire as accidental

The decision was upheld on appeal.

In the case of Kinsmen Club of Kingston v. Walker,⁴ the court held that since the evidence of careless smoking was obvious, section 76(2) of the Act did not apply. It does not apply when the fire was not one produced by mere chance or one that was incapable of being traced to any one cause.

Where does that leave us?

Cases where there is clear evidence of the cause of the fire should be pursued. If there is evidence of an accidental cause or a cause that cannot be pinpointed, the ability to pursue subrogation should be questioned.

The questionable cases may be open to defeat on a motion for summary judgment.

There has to be an ability to pinpoint a probable cause. Where there are statements in a report that an individual admitted to some activity that caused the fire, then these should be produced.

It will be more difficult when all that is being relied upon is the fire marshal's report and that report is inconclusive.

Prior to litigation it is also difficult to get access to the property to conduct an independent report. After litigation, one can get a court order to get access to the property, but prior to that it is very difficult. If the neighbour does not want to grant access there is not much that you can do. In those cases it may be appropriate to commence litigation as soon as possible and request access immediately.

---

¹ Mohamed v. Banville (2009), 94 O.R. (3d) 709.
² Neff et.al v. St. Catherine's Marina, 37 O.R. 489.
³ Xie v. Jiang, 2015 ONSC 1231.
⁴ Kinsmen Club of Kingston v. Walker, 2005 CanLii 39885.

---