Court of Appeal for Ontario

Citation: Jelco Construction Limited v. Vasco (Euca Welding), 2010 ONCA 444

Date: 2010-06-16

Docket: C50951

Between:

Jelco Construction Limited Respondent (Plaintiff)

and

Victor Vasco, cob under the firm name and style of Euca Welding Appellant (Defendant)

Before: Simmons, LaForme and Epstein JJ.A.

Counsel: Patrick Di Monte, for the appellant Gregory N. Hemsworth, for the respondent

Heard: June 9, 2010

On appeal from the judgment of Justice R. Cary Boswell of the Superior Court of Justice dated July 24, 2009.

By the Court:

I. INTRODUCTION

[1] On October 21, 2000, an apartment building located at 1 Summer Hill Road, Toronto caught fire after sparks from the appellant’s acetylene torch ignited some nearby highly flammable material.

[2] The appellant concedes that it was open to the trial judge to find that he [the appellant] was negligent when he proceeded with torch-cutting angle irons with an acetylene torch while standing on scaffolding adjacent to the tar-papered walls of the 13th floor of the apartment building.

[3] However, the trial judge also found that the appellant told the respondent’s representative on site that it was too dangerous to proceed in these conditions and that the appellant went ahead only after the respondent’s representative “instructed him the work had to continue” and said, “don’t worry about it, if anything happens it will be my responsibility.”

[4] The appellant contends that, in the face of these findings, the trial judge erred in failing to give effect to the appellant’s defence of volenti non fit injuria. In the alternative, the appellant submits that the trial judge erred in allocating fault on a 50-50 basis as between him and the respondent and that the trial judge further erred in calculating the quantum of damages caused by his negligence.

II. DISCUSSION

(i) The Volenti Defence

[5] The appellant concedes that the trial judge described the test for the volenti defence correctly. However, he submits the trial judge's finding that volenti does not apply in this case is unreasonable.

[6] We disagree. The trial judge gave careful reasons for concluding the defence of volenti was not available in this case. His findings were premised on his review of the appellant's pleadings (in which the appellant claimed that the respondent failed to appreciate the risk it created for the appellant); his own assessment of the parties' appreciation of the level of risk involved in using an acetylene torch in the circumstances; and his interpretation of the words spoken by the respondent's representative on site. Although we acknowledge that it may have been open to the trial judge to reach a different conclusion concerning the volenti defence that is not the test applicable on appeal.

(ii) Contributory negligence

[7] Concerning contributory negligence, as we read his reasons, the trial judge premised his apportionment of 50% of the fault to the appellant on his conclusion that the appellant was fully aware of the significant danger in proceeding with the torch-cutting in the presenting circumstances and chose to proceed in any event.

[8] In our view, although the trial judge made reference to the differing positions of the parties (general contractor and subcontractor), he erred in failing to give effect to the resulting power imbalance that occurred in these circumstances, when apportioning fault.

[9] The trial judge's central finding concerning the apportionment of fault was that the appellant “kn[ew] better” and the respondent “should have known better”.

[10] However, in so holding, the trial judge failed to give any weight to the significance of the relative positions of the parties. Given the respondent’s representative's conduct in effectively directing the appellant to proceed, the appellant was subjected to at least some pressure to go ahead even though he knew he should not. Although this factor does not absolve the appellant of responsibility vis-a-vis the respondent, it tips the scales of responsibility towards the respondent. Despite being warned of the danger by the appellant, the respondent exercised its authority and directed the appellant to proceed in any event.

[11] In our view, the trial judge erred in principle by failing to consider this factor that was relevant to the apportionment of fault. Taking account of this factor, we consider the proper apportionment of fault to be 75% to the respondent and 25% to the appellant.

III. DAMAGES

[12] As for the damages calculation, in our opinion, the trial judge erred in including amounts paid by the respondent on account of legal fees in relation to litigation pertaining to its insurance coverage as part of the damages calculation. The trial judge dealt with this issue as a matter of factual causation. In our view, it is an issue of legal causation -- and such a claim is simply too remote. On the facts of this case, it was not reasonably foreseeable that, as a result of the appellant’s negligence in causing the fire, the respondent would have to engage in litigation with its insurer concerning coverage issues.

IV. CONCLUSION

[13] Based on the foregoing reasons, the appeal is allowed, the total damages are reduced to $235,134.27 and the appellant's share of the damages is reduced to $58,783.57.

[14] In all the circumstances, and as agreed upon by the parties, we would make no order as to costs of the appeal.

Signed: “Janet Simmons J.A.” “H. S. LaForme J.A.” “Gloria Epstein J.A.”

RELEASED: “JS” JUNE 16, 2010