COURT OF APPEAL FOR ONTARIO

DATE: 20001208

DOCKET: C29156

C29298

RE:

ROBERT JOHN MILLER, ROMILL DISTRIBUTORS LTD., PEN’S PLUS OFFICE SUPPLIES LTD. and YORK CONDOMINIUM CORPORATION NO. 678 (Plaintiffs/Respondents) and – COBRA INDUSTRIES INC., PETER HUGHES LTD. carrying on business as HUGHES MOTOR HOMES, and SPARTAN MOTORS INC. (Defendants/Appellant, Peter Hughes Ltd.) – and – LLOYD’S OF LONDON, NON-MARINE UNDERWRITERS (Third party/Appellant)

BEFORE:

MORDEN, ROSENBERG and SIMMONS JJ.A.

COUNSEL:

I. H. Fraser,

for the appellant Lloyd’s of London

Brian J. Lawson,

for the appellant Peter Hughes Ltd.

David R. McCaskill,

for the respondent by cross-appeal Spartan Motors Inc.

William Wolfe,

for the respondents and appellants by cross-appeal

HEARD:

November 23 and 24, 2000

On appeal from the judgment of Mr. Justice Sidney N. Lederman dated February 2, 1998.

E N D O R S E M E N T

[1] The appellants submit that: (1) the trial judge erred in applying res ipsa loquitur in view of the decision in Fontaine v. British Columbia, [1998] 1 S.C.R. 434; and (2) the trial judge erred in finding in fact that the fire was probably caused by pyrolysis due to the particular placement of the plywood bulkhead.

[2] In our view, it was open to the trial judge to find, as he did, based on the expert and other evidence, that electrical fault was not the cause of the fire, despite his error in stating that no appliance was drawing electricity at the time. This left pyrolysis as the remaining possible explanation for the fire. The trial judge appears to have found that pyrolysis was probably the cause of the fire. In context, having eliminated the other possible causes, the trial judge’s finding that pyrolysis was the most likely cause was a finding that the plaintiff had met the onus on a balance of probabilities.

[3] Counsel have thoroughly canvassed the expert and other evidence in support of and against that finding. However, we are satisfied that there was a basis for the trial judge’s finding of fact. In particular, there was a basis in the evidence of Mr. Hawken and Mr. Williams for a finding that the temperature of the bulkhead could exceed 190º to 200º C, the temperature necessary to cause the fire. The independent experts also supported the theory of pyrolysis.

[4] The only question left is whether this cause of the fire, pyrolysis, resulted from the negligence of Rockwood. The uncontradicted evidence is that the box was constructed in such a way as to leave a piece of plywood exposed in close proximity (1⁵/8”) to the exhaust pipe. This was contrary to the recommendations of Spartan and, as occurred here, created a risk of fire.

[5] In the circumstances, it was unnecessary for the trial judge to have resorted to res ipsa loquitur and his reference to that principle did not occasion any substantial wrong or miscarriage of justice.

[6] Accordingly, the appeal by Lloyd’s is dismissed with costs. We would also not interfere with the trial judge’s finding that the defect was a breach of the implied warranty in the Sale of Goods Act rendering Hughes liable. The appeal by Hughes is therefore also dismissed with costs. Cobra is to indemnify Hughes for its liability to pay the respondents’ costs of this appeal.

[7] The plaintiffs abandoned a cross-appeal against Spartan and that cross-appeal is also dismissed with costs to be paid by the plaintiffs.

(signed) “J. W. Morden J.A.”

(signed) “M. Rosenberg J.A.”

(signed) “J. Simmons J.A.”