CITATION: Xie v. Jiang, 2015 ONSC 1231
DIVISIONAL COURT FILE NO.: 515/14
DATE: 20150224
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JING XIE
Appellant
(Plaintiff)
– and –
JEFFREY JIANG
Respondent
(Defendant)
In Person
Christopher William Statham, for the Respondent (Defendant)
HEARD at Toronto: February 24, 2015
JANET WILSON J. (ORALLY)
The Appeal
[1] This is an appeal pursuant to s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C-43, from a judgment of Godfrey J. of the Toronto Small Claims Court, dated October 9, 2014. He dismissed the plaintiff’s claim.
[2] In this action, the plaintiff sues the defendant for negligence. The contents of the defendant’s dryer caught fire and caused damage to the plaintiff’s condominium, which is adjacent to the defendant’s condominium. The fire originated somewhere within the body of a clothes dryer being operated by the defendant in his condominium townhouse next door to the plaintiff’s condominium. The plaintiff claims that the defendant was negligent and was responsible for damages caused by the fire by having an excessively large load in his dryer.
[3] The trial judge dismissed the action. He held that the plaintiff had failed to satisfy the Court on a balance of probabilities that the fire was caused by the negligence of the defendant for two reasons:
(i) The evidence failed to establish that the defendant had been negligent in the operation of the dryer in question; and
(ii) Even if the evidence had established that the defendant had been negligent in the operation of the dryer, the evidence did not demonstrate on the balance of probabilities that the fire could be traced to any particular cause, meaning that it was accidental within the meaning of s.76 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 and therefore the defendant could not be held responsible.
Standard of Review
[4] The appellant concedes that she challenges the findings of fact of the trial judge. The standard of review in such a case involving an application of mixed fact and law is deference. Any findings of fact of the trial judge are entitled to deference unless there is palpable and overriding error.
The Facts
[5] On the night of January 26, 2013, the respondent, Mr. Jeffrey Jiang was reading upstairs in his condominium located at 64-6 Esterbrooke Avenue. He smelled smoke and immediately went downstairs to the basement of the townhouse. He discovered that there was a fire inside the clothes dryer. He attempted to put out the fire with water but was unsuccessful. He went back upstairs to get his son and mother-in-law out of the condominium and called 911.
[6] At the time of the fire, the defendant was using the dryer to dry two comforters, measuring 3 ½ feet x 5 feet. He testified that he washed these comforters every six months and had done so for several years. Further, he testified that he owned the dryer for four to five years without incident.
Expert Evidence
[7] At the trial, there were three sources of expert evidence available relevant to the question of causation, and potential negligence.
[8] First, the Fire Marshall prepared a report and testified. As well, there were two independent investigators that were commissioned by the insurer for the condominium corporation. Both experts prepared reports in respect to the issue of causation of fire and gave evidence at the trial.
[9] The Office of the Fire Marshall conducted an investigation to determine the origin, cause and circumstances of the fire. The Fire Marshall prepared a report which was entered into the evidence at trial. The Fire Marshall was unable to eliminate accidental ignition as a result of the failure of the electric dryer as a potential cause of the fire. Further, the Fire Marshall was unable to eliminate accidental ignition of the combustible materials in the clothes dryer. I take that to mean that he was unable to determine whether the load in question was a potential cause of the fire. The Fire Marshall therefore concluded that it was unable to determine the cause of the fire.
[10] The insurer of the condominium corporation then retained the services of Mr. John Coull, who was a certified fire and explosions investigator. He was retained to conduct an analysis of the cause and the origin of the fire. He prepared an expert report which was tendered into evidence at the trial.
[11] The Court accepted Mr. Coull as an expert in fire investigations including the determination of the origin in the cause of the fire.
[12] Mr. Coull confirmed that the cause of the fire originated in the area of the clothes dryer. He was unable to determine the cause of the fire and in particular, was unable to establish the specific sequence 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.
[13] In light of his inability to form firm conclusions as to causation, he retained the assistance of another expert, Ms. Michelle Bradley, who is a professional engineer and a certified fire and explosions investigator. She assisted with examining the dryer in question, reviewing the scene of the fire with Mr. Coull to conduct a forensic investigation to identify the source and the cause of the fire in question.
[14] The Court accepted Ms. Bradley as an expert in fire investigations and specifically an expert in forensic engineering and dryer investigations.
[15] Ms. Bradley attended the site with Mr. Coull to inspect the dryer remains and the site. Ms. Bradley was unable to determine the point of origin of the fire within the dryer due to the very severe fire damage. She concluded that there were three possible causes of the fire, including:
(i) a failure of the dryer components, a number of which were examined while others could not be located;
(ii) the ignition of lint within the dryer; and
(iii) the ignition of the load within the dryer.
[16] Ms. Bradley concluded that she was unable to determine the cause of the fire. When asked to consider her opinion in Court whether one of the potential causes was more likely than the other, Ms. Bradley advised that there was no particular weight that she put on any of them and that this was case of a “classic undetermined fire case” in which there were “several different possibilities, none of which could be eliminated”.
Conclusions of the Trial Judge
[17] In light of the clear and uncontradicted expert evidence that the cause of the fire could not be determined, the trial judge made the following conclusions:
The Court does not operate on a balance of possibilities. It makes decisions on a balance of probabilities and there is nothing here certainly to suggest any negligence of the defendant. The closest perhaps would be the size of the load that was put in the dryer. However, even assuming that, I don’t think it’s been established satisfactorily that the load was unnecessarily large or negligently loaded in such a large fashion. Even Ms. Bradley for the defendant was assuming that the two comforters in question were Canadian type of comforters and she clearly indicated she wasn’t aware that they were made in Singapore and were thin as alleged by the defendant.
But even if the Court was satisfied that the load was unusually large, the Court would still have to be satisfied there was a causal connection between the size of the load and the fire. And again, those issues, although having been considered by the Fire Marshall’s Office, plus the two experts that appeared today, do not create the probability of a causal connection in that regard.
Unfortunately, the wording of the Fire Prevention 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 the Fire Marshall indicates it as accidental.
My Conclusions
[18] The conclusions of the trail judge reflect the evidence before him and make sense. I conclude that there was no palpable overriding error in the trial judge’s analysis of the facts and the evidence before him, nor is there any error in his analysis and application of the law.
[19] For these reasons, the appeal is dismissed.
Costs
[20] I have endorsed the Appeal Book, “For oral reasons provided, the appeal is dismissed. Costs to the respondent fixed in the amount of $2,500 inclusive of HST and disbursements.”
___________________________ JANET WILSON J.
Date of Reasons for Judgment: February 24, 2015
Date of Release: February 26, 2015
CITATION: Xie v. Jiang, 2015 ONSC 1231
DIVISIONAL COURT FILE NO.: 515/14
DATE: 20150224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JING XIE
Appellant
(Plaintiff)
– and –
JEFFREY JIANG
Respondent
(Defendant)
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: February 24, 2015
Date of Release: February 26, 2015