CITATION: Schouten v. Rideau (Township), 2009 ONCA 541
DATE: 2009-07-06
DOCKET: C43631
COURT OF APPEAL FOR ONTARIO
Cronk, Gillese and Armstrong JJ.A.
BETWEEN
Adrian Schouten and Arnold Schouten
Plaintiffs (Appellants)
and
Township of Rideau, George Hawkins and John Ingraham
Defendants (Respondents)
Paul J. Pape, for the appellants
Brian Parnega, for the respondents
Heard: June 15, 2009
On appeal from the judgment of Regional Senior Justice Charles Hackland of the Superior Court of Justice dated April 26, 2005.
Cronk J.A.:
I. Background
[1] This action arose from a serious fire that occurred in the early morning hours of November 20, 1999 on the appellants’ farm property in eastern Ontario. As a result of the fire, a complex of barns and silos and a crop of about 4,000 tons of dry grain corn were destroyed or extensively damaged. The fire was fought by volunteer firefighters from the respondent, the Township of Rideau (the “Township”), under the direction of the respondent, John Ingraham (“Ingraham”), and assisted by the respondent, George Hawkins (“Hawkins”).
[2] After the fire, the appellants sued the Township, Ingraham and Hawkins in negligence, claiming damages for that part of the value of their damaged crop and other property that was underinsured. Liability was the only issue at trial. The parties agreed that the damages in question totalled $857,000, plus prejudgment interest.
[3] At trial, the appellants alleged, among other matters, that the respondents – in particular Ingraham on his arrival at the fire site – failed to conduct an adequate assessment or “size-up” of the fire scene, with the result that the respondents failed to implement a fire attack plan that the appellants claimed could have prevented the spread of the fire to the feed room and connecting silos where the recently harvested corn crop was stored. The trial judge agreed. He held that the respondents breached “a professional standard” by failing to carry out an adequate size-up of the fire scene.
[4] Nonetheless, despite this key finding, the trial judge held that the respondents, especially Ingraham, had exercised reasonable judgment in the “formulation and implementation” of the fire attack plan and that the plan itself was reasonable. He further held that the appellants had failed to establish, to the requisite civil standard of proof, that the silos (and, hence, the corn crop) would have been saved had the fire attack plan recommended by the appellants been implemented. The trial judge accepted the evidence of a defence causation expert that, in the prevailing circumstances, it was “inevitable” that the fire would have entered the feed room and then the silos, thereby reaching and destroying the corn crop. As a result, in the trial judge’s opinion, causation was not established. Accordingly, by judgment dated April 26, 2005, the trial judge dismissed the appellants’ action. The appellants appeal the trial judge’s liability findings.
II. Issues
[5] The appellants raise two issues. First, they argue that the trial judge erred by finding that the respondents breached the applicable standard of care and also holding that the respondents’ conduct nonetheless was reasonable in the circumstances. The appellants contend that these findings are contradictory and that, in effect, the trial judge wrongly purported to “save” the respondents’ breach by concluding that aspects of their conduct that flowed directly from that breach were reasonable.
[6] The appellants also submit that the trial judge erred in his causation analysis by accepting a defence “theory of inevitability” – that is, the thesis that the progression of the fire to the feed room and the silos was inevitable – when that theory, allegedly advanced for the first time at trial, rested on a factual foundation that was discredited at trial.
III. Discussion
A. Standard of Care
(1) Formulation of Standard of Care
[7] The trial judge expressed the standard of care applicable to volunteer firefighters in these terms:
In summary, consistent with established tort principles, the standard of care is one of reasonableness in the circum-stances. This will include a consideration of the circum-stances of the fire, the relative availability of hydrants or alternative water supplies, the equipment available, the number of firefighters, their abilities, training and experience, and the many safety issues which arise at any scene. Concisely put, the standard of care is the following:
The volunteer fire department must perform in a manner which is reasonable for a volunteer Fire Department in like circumstances and with like resources.
[8] The parties do not challenge this formulation. In these circumstances, without deciding whether the trial judge’s expression of the applicable standard of care was appropriate, we accept his articulation of that standard for the purpose of the determination of the issues raised on this appeal.
(2) Agreed Facts
[9] At trial, the parties filed a Statement of Agreed Facts in which they agreed on the following, among other matters:
(i) Pump 5, a primary [fire] attack pumper, was at the fire scene at 00:41:20 hours;
(ii) at the time of the night-early morning on November 20, 1999, the wind was out of the west-southwest;
(iii) Ingraham arrived at the fire scene at 00:43:33 hours;
(iv) Hawkins was at the fire scene at 00:49:45 hours;
(v) following Ingraham’s arrival on site, the appellant, Adrian Schouten (“Adrian”), spoke with him and advised as follows:
(a) He described to him the location of a roadway between the buildings that could be used to gain direct access to the feed room and the area of the silos;
(b) He told him that the fire could be fought by bringing the fire trucks down the roadway and taking up a position in the feed room and in the area to the south of the calf barn;
(c) He told him that the fire should be attacked from the feed room so as to protect the silos;
(vi) Adrian had a second conversation with Ingraham to the same effect; and
(vii) Ingraham did not follow Adrian’s suggestion on either of these two occasions.
[10] Ingraham did not attack the fire from the southerly end of the property in the vicinity of the feed room and the silos as Adrian twice recommended. Instead, he deployed the first firefighting vehicle to arrive on site, Pump 5, at the northerly end of the farm property, facing south towards a residence on the property and a propane tank that was located immediately to the north of a two-storey barn.[^1]
(3) Trial Judge’s Findings
[11] Against the backdrop of the facts admitted by the parties, the trial judge made the following key factual findings:
(i) Ingraham assumed command of the fire site at 00:46:26 hours (paras. 18, 22 and 24);[^2]
(ii) by about 1:00 a.m., the fire was firmly established in the feed room and was spreading rapidly along the feed room to the adjoining silos. Given this progression of the fire, it was too late by then to extinguish the fire in the feed room. This occurred within 12 to 15 minutes of the assumption by Ingraham of control of the fire scene (at 00:46:26 hours). Accordingly, it was during this 15 minute period that the respondents’ actions were to be assessed (paras. 18, 19 and 44);
(iii) the conduct of a proper size-up or assessment of the fire scene on arrival at the fire ground is a required standard in firefighting, including for volunteer firefighters (para. 21);
(iv) the information gathered during the size-up is used to formulate a fire attack plan. That information includes: (a) safety issues; (b) the layout of the buildings; (c) the advancement of the fire; (d) the direction and velocity of the wind; (e) the location of the “body of the fire growth”; (f) the likely path of travel of the fire; (g) an identification of the exposures – that is, the property or persons to be protected; and (h) input from the pro-perty owners (para. 21);
(v) the fire originated in the calf barn. On his arrival at the fire site, Ingraham was told that the calf barn was “fully involved” in the fire. He also observed heavy black smoke coming from the two-storey barn and “some less dense smoke coming from the eaves of the feed room roof” (paras. 17, 24 and 25). However, there were no flames at that point from either the two-storey barn or the feed room (para. 25);
(vi) when Ingraham assumed command of the fire site (at 00:46:26 hours), he instructed the firefighters to use Pump 5 to spray the two-storey barn and the adjacent propane tank. In so doing, Ingraham “deployed, and therefore committed, his one available primary attack pumper” (paras. 25 and 26);
(vii) Adrian approached Ingraham as the latter was setting up his command post (para. 26);
(viii) at 00:47:33 hours, just after his conversation with Adrian, Ingraham observed what he believed to be flames at the top of one of the silos. For Ingraham, this seemed to confirm his impression that the fire had already advanced into the feed room/silo area. By this time, Ingraham had already deployed Pump 5 at the northerly end of the fire site, near the two-storey barn and away from the feed room and the silos (para. 27);
(ix) Ingraham, together with Hawkins and several other firefighters, observed the top of the silos “glowing”. On Ingraham’s evidence, this observation was made at 00:47:33 hours (paras. 27 and 28);
(x) however, as indicated by Adrian, at the time of these observations, the fire in fact had not yet reached the feed room or the silos (para. 28); and
(xi) by 1:04 a.m., the two-storey barn was “heavily involved” in the fire. By that point, nothing could be done to stop the spread of the fire in the barn complex (paras. 29 and 40).
[12] Based on these facts, it was the trial judge’s view that the “determinative issue” was whether Ingraham “should have adopted a different fire attack plan, one that prioritized streaming water into the feed room as a method of cutting off the advance of the fire to the silos” (para. 38).
(4) Breach of Duty of Care
[13] On the trial judge’s findings and contrary to Ingraham’s belief, neither the feed room nor the adjoining silos was on fire when Ingraham assumed command of the fire ground, ordered the deployment of Pump 5, and carried out his size-up of the fire scene. The trial judge held:
I find that Chief Ingraham was mistaken as to his observation concerning the silo being on fire at 00:47:33. I conclude that the glow and the flame at the top of the silos at that point was a reflection from the fire in the calf barn (para. 28).
The respondents do not challenge this critical finding.
[14] The trial judge also indicated:
I do not attribute any negligence to Chief Ingraham in his conclusion that the fire had already spread into the feed room and into one of the silos. In the circumstances, it was an understandable misconception that the fire was more advanced than it actually was.
[15] The core of the trial judge’s reasoning on the issue whether the respondents breached their duty of care is found in four paragraphs of his reasons. At paragraph 38 he held:
[38] I find as a fact that Chief Ingraham did not consider the proposed approach [of the fire], because he did a very limited size-up and failed to appreciate the path that the advancing fire would likely take. The inspection of Lieutenant Horricks on the east and south of the burning calf barn and Chief Ingraham’s own inspection of the northern perimeter and his southerly views along the line of silos from a position beside the northern most silo, were insufficient to accurately assess the condition of the feed room and to identify the presence of access doors to the feed room between the northern three silos. He had ordered the deployment of his only (at that point) attack pumper, Pump 5, before completing his size-up and before Adrian Schouten asked him to fight the fire from the south and to channel water into the feed room. The result was that the option of flooding the south end of the feed room was not one that Chief Ingraham could pursue when Mr. Schouten proposed that approach. I therefore find that the plaintiffs have proven, on a balance of probabilities, that the defendants breached a professional standard in failing to carry out an adequate size-up of the fire ground upon arrival, thereby prematurely committing their primary fire fighting vehicle (Pump 5) in an area that precluded its utilization in any attack on the fire (via the feed room) from the south of the fire ground. [Emphasis added.]
[16] Notwithstanding this finding of a breach of “a professional standard” by the respondents, the trial judge went on to hold that Ingraham’s deployment of his resources on site, his choice of a fire attack plan and the plan itself were reasonable in the circumstances:
[42] In my view, the essential difference between Chief Ingraham’s fire attack plan and that suggested by Mr. Henderson [the appellants’ expert at trial on the standard of care] is one of differing priorities as to the choice of exposures requiring immediate protection. These are judg-ment calls. On the evidence, Chief Ingraham was not apprised of ‘relative values at risk’. He was entitled to be concerned that a significant potential for fire extension existed from the high south-southwest winds blowing burning embers toward the two-story barn, the propane tank nearby and the Schouten home. He was of the view that the fire had advanced into the feed room silo complex, which was not initially accurate, but was not unreasonable in all the circumstances. He was also entitled to consider that deploying his primary pumper to the south of the fire, out of sight of his command post, in the silo fall zone and up wind of the fire, would be problematic.
[43] One can well imagine what the plaintiffs’ outlook would have been if Pump 5 was deployed in an ultimately unsuccessful effort to block the fire advance from the south (via the feed room), while the Schouten home burned and the propane tank exploded (with potentially catastrophic results), before additional firefighting resources arrived. With the benefit of hindsight, none of this occurred, but Chief Ingraham, in my view, had the right to fear these risks and to prioritize the deployment of his resources accordingly. In doing so, he acted reasonably. It would be an injustice to the defendants and contrary to the established principles of tort law to assess Chief Ingraham’s decisions from a retrospective armchair point of view when he was making these decisions in the face of a dangerous and fast moving fire.
[45] I have found on the evidence that the defendants and in particular their incident commander, Chief Ingraham, exercised reasonable judgment in the formulation and implementation of the initial phases of the fire attack plan, being the period in issue. In spite of an inadequate size-up and arguably premature deployment of his only attack pumper upon his arrival, he used reasonable judgment and adopted and competently executed a fire attack plan which I find to be reasonable for a volunteer Fire Department in like circumstances and with like resources.
[17] I agree with the appellants that there is an inherent contradiction between the trial judge’s finding of a breach by the respondents, set out at paragraph 38 of his reasons, and his subsequent findings that Ingraham’s actions on site and his chosen fire attack plan were “reasonable for a volunteer Fire Department in like circumstances and with like resources”.
[18] On the one hand, Ingraham’s chosen fire attack plan was based on his erroneous belief that there was fire in the feed room and in at least one of the silos at the relevant time. That mistaken belief flowed from his failure to conduct an adequate size-up of the fire scene, a failure that the trial judge held was a breach of a core component of the standard of professional conduct applicable to the respondents. The trial judge expressly held that Ingraham chose his fire attack plan based on his size-up of the fire scene, a size-up that the trial judge found was “very limited”, “insufficient” and inadequate. Yet, on the other hand, the trial judge ‘forgave’ this breach by holding that Ingraham’s mistaken belief in the state of the progression of the fire and his consequent actions were reasonable.
[19] These contradictory findings cannot stand together. Having found a breach, the trial judge essentially did “an about-face” and found that the respondents had not breached their duty of care to the appellants.
[20] Ingraham’s erroneous belief that the fire had spread to the area of the feed room and the silos and his decision to deploy Pump 5 at the northerly end of the site flowed directly from the breach found by the trial judge – the failure to conduct a proper size-up of the fire site. To ‘salvage’ the respondents’ breach on the basis advanced by the trial judge is tantamount to finding that the direct actions flowing from the breach were not negligent, although the root cause of those direct actions was itself negligent.
[21] The respondents argue that the trial judge’s finding of a breach of “a professional standard” falls short of a finding of a breach of the duty of care owed and the applicable standard of care as defined by the trial judge. In the circumstances of this case, I reject this argument.
[22] In my view, although the trial judge’s description of the breach was couched in terms of the breach of a “professional standard”, read as a whole, paragraph 38 of the trial judge’s reasons reveals a clear finding by him that the respondents breached the duty of care owed to the appellants. Early in his reasons, the trial judge had found that the conduct of an adequate size-up on the fire site was an essential component of the fire fighting standard that applied to the respondents (para. 21). He also found that the respondents breached their obligation to perform an adequate size-up.
[23] This breach had a ‘domino’ effect. On the findings of the trial judge, it was this breach that led to Ingraham’s erroneous belief that the fire had advanced to the feed room and at least one of the silos. It was this breach that prevented Ingraham from gaining an appreciation of the path of the advancing fire. It was this breach that resulted in the failure to identify the access doors to the feed room, later identified by Adrian. It was this breach that resulted in Ingraham’s ignorance of the ‘relative values at risk’ – the property requiring priority protection – before Adrian explicitly drew the silos to his attention. And it was this breach that caused Ingraham to prematurely deploy Pump 5 at the northerly end of the fire scene, thereby foreclosing the option of implementing a fire attack plan in the vicinity of the feed room and the silos. This, by any other name, was negligence.
[24] The defence in this case rested on the assumption that the fire had spread to the feed room and the silos by the time Adrian requested Ingraham to fight the fire from that location. The trial judge held to the contrary.
[25] In addition, Ingraham admitted on cross-examination that if he had known that the fire in fact had not reached the feed room and the silos, he would have positioned a fire truck in that location. This telling exchange took place with Ingraham regarding the information conveyed to him by Adrian:
Q. And you’re confronted by – confronted – you meet up with Adrian Schouten?
A. Mmhmm.
Q. And he gives you information?
A. That’s correct.
Q. And isn’t it a fact that he said he had been back to the feed room and there was no fire back in the feed room that he saw; is that correct?
A. If that’s what he said then that’s what he said. I don’t know word for word what he said, I’m sorry.
Q. I’m just – I’m taking your evidence from this morning, Mr. Ingraham, and he approached you because he wanted you to fight the fire from the back. Isn’t that why he came to you?
A. I assume that’s why he came to me.
Q. No, but sir, don’t assume it. He told you that, didn’t he?
A. Yes.
Q. Okay, don’t assume it.
A. I don’t know the exact words, I’m sorry, what he said. I know he mentioned something about the feed room and to use the laneway past the bungalow and to go around that way to get to it.
Q. Stay with me.
A. The exact words, I’m sorry, I can’t….
Q. I don’t care about the exact words.
A. Okay.
Q. I know you’re not going to remember the exact words. What I do care about is that he made this approach to you.
A. Mmhmm.
Q. He told you that he had been to the feed room at the back and he also told you, as I wrote down your evidence this morning, that he said there was no fire at the back of the feed room in your mind, this “didn’t jive” with what you saw.
A. That’s correct.
Q. Do I have that fairly?
A. Yes.
Q. No. But it is important in this context, Mr. Ingraham, to find out the truth; agreed?
A. Yeah.
Q. And you didn’t do that?
A. At the time I felt the information I had was the information I required to make my plan.
Q. I’m going to suggest to you that he also said that you had to protect the silos.
A. You’re suggesting that, or is that what he said?
Q. I’m suggesting to you that he said the reason for him wanting you to go back there was to protect the silos; is that right?
A. If that was part of the conversation then, yes.
Q. Do you recollect him saying that?
A. I remember him saying something about the silos, yes.
Q. Okay. And if he was telling the truth as to what he saw, and there was no flames, no smoke in the feed room, would there have been anything to prevent you from dispatching a firefighting vehicle to that area and to set up and protect the feed room?
A. If there was no flames, no smoke, then no, I would have dispatched a truck in that area. [Emphasis added.]
[26] Ingraham did not say that if he had known that the fire was not where he thought it was, he would have deployed Pump 5 in a similar fashion or adopted the same fire attack plan. On the contrary, Ingraham’s evidence suggests precisely the opposite.
[27] I recognize that the evidence established that Ingraham was concerned on his arrival at the fire site with the safety implications of the existence of a propane tank and a residence in the face of a rapidly spreading fire. Indeed, the risk of the propane tank exploding figured prominently in the trial judge’s reasoning in support of his conclusion that Ingraham’s actions on site – including his choice of a fire attack plan – were reasonable.
[28] But there was evidence at trial, to which the trial judge did not refer, that the propane tank was not in immediate danger from the fire and that it was capable of being moved. In fact, at about 2:45 a.m. and at the request of the respondents, Adrian moved the propane tank away from the fire zone in about 10 to 15 minutes. There is no suggestion that this could not have been accomplished earlier with the involvement of Adrian and his equipment. Nor does there appear to have been any evidence at trial that the attack plan recommended by the appellants was inappropriate or unrealistic because of the risk that the propane tank might explode at a location near the appellant’s residence.
[29] Thus, if a proper size-up of the fire scene had been conducted, Ingraham would have been fully informed of all the values to be protected on the fire site, as well as his options for prioritizing his available firefighting resources, including an attack plan that focussed on fighting the fire from a southerly location – near the feed room and the silos – to suppress the fire. The failure to conduct a proper size-up foreclosed an informed evaluation of all the available options and fire attack plans.
(5) Conclusion Regarding Breach of the Duty of Care
[30] In all these circumstances, I conclude that the trial judge’s analysis of whether the respondents breached their duty of care to the appellants is fatally flawed. Having found that the respondents’ conduct constituted a breach, the trial judge misdirected himself by then asking whether the results of that same conduct were reasonable and, hence, non-negligent.
[31] Under the standard of care as defined by the trial judge and accepted by the parties, the question of the reasonableness of the respondents’ conduct was an integral part of the requisite inquiry as to whether the duty of care was breached. It was reversible error for the trial judge to override his finding of a breach of the duty of care by subsequently concluding that the respondents’ choice of a fire attack plan and the plan itself were reasonable and that Ingraham’s erroneous conclusion that the fire had not spread to the feed room and the silos was not unreasonable. As I explain later in these reasons, this error necessitates a new trial.
C. Causation
[32] Given my conclusion that the trial judge erred in his analysis of the respondents’ breach of the duty of care and that a new trial is therefore required, it is technically unnecessary to consider the appellants’ challenge to the trial judge’s causation inquiry. However, as the issue was fully argued before this court, I will address it briefly.
[33] The appellants’ attack on the trial judge’s causation inquiry has two branches. First, as I have indicated, they claim that it was not open to the trial judge to ‘save’ the respondents’ established breach of their duty of care by pointing to “misinformation and erroneous observations” that were the direct result of the breach. Rather, he ought to have asked whether the breach caused the appellants’ loss. In other words, the appellants submit that the trial judge failed to ask the proper causation question: but for the respondents’ breach, would the appellants’ loss have occurred?
[34] Second, the appellants contend that the trial judge further erred by accepting a “theory of inevitability” advanced by Richard Kooren (“Kooren”), the defence expert on causation. At trial, Kooren offered the opinion that the fire was sufficiently advanced by the time of Ingraham’s arrival at the fire site that it would inevitably have spread to the feed room and the silos and, hence, to the corn crop. Under this theory, any breach by the respondents of their duty of care was irrelevant.
[35] In accepting Kooren’s testimony on this issue, the trial judge held that the appellants had not proven that the silos could have been saved by channelling water in the feed room. In his view, it was unlikely that Pump 5, which he held was the only attack pumper available at the relevant time that was capable of the suggested manoeuvre, could have deployed to the south of the feed room before the fire was established at that location at approximately 1:00 a.m. The trial judge put it this way:
I prefer the evidence of the defendants’ expert, Mr. Kooren, who was of the view that in the circumstances it was unlikely, although not impossible, to control the fire from the feed room and thereby save the silos. Mr. Kooren noted that the two barns, the feed room and silos, were essentially connected or adjacent structures, all wood framing with metal (tin) exteriors, and this large fire progressing through the structures would have been very difficult to stop. He was further of the view, which I accept, that once the two-storey barn had become fully involved, the fire would have inevitably entered the feed room (and then the silos) from the two-storey barn through the north east wall of the feed room. [Emphasis added.] (para. 44).
[36] At the end of his reasons, the trial judge summarized his findings on causation in this fashion:
I have further found that the plaintiffs have failed to prove on the balance of probabilities that the silos would have been saved, had the plan recommended by the plaintiffs been implemented.
[37] I make the following observations. First, Kooren’s opinion that the spread of the fire to the feed room and the adjoining silos was inevitable was based on his assertion that the fire had reached the feed room and the silos at or shortly after the time that Ingraham arrived at the fire site. In his report dated September 6, 2002, Kooren said:
Mr. Schouten [Adrian] suggested that there was ample time to deploy equipment to protect the feed room. However, at the time he talked to [Ingraham] it is known that the south silo was burning within 6 minutes of D.C. Ingraham’s arrival and only 8 minutes after the first apparatus was on scene.
[38] In a second, supplementary report dated February 24, 2004, Kooren suggested that there was “overwhelming evidence from several sources” indicating that “in less than 10 minutes of the first pumps arriving on scene the fire had reached the silos”.
[39] These assertions run contrary to the admitted facts and the trial judge’s findings, which established that:
- Ingraham arrived at the fire site at 00:43:33 hours, and assumed command of the site about three minutes later, at 00:46:26 hours;
- the first firefighting vehicle at the fire site, Pump 5, arrived at 00:41:20 hours; and
- it was not until about 1:00 a.m. that the fire was firmly established in the feed room. It then progressed from the feed room to the silos.
[40] Thus, contrary to Kooren’s claims, the south silo was not burning within six minutes of Ingraham’s arrival (that is, at 00:49:33 hours) or within eight minutes after “the first apparatus” was on scene (that is, at 00:49:20 hours). Nor was there “overwhelming evidence” that the fire had reached the silos by 00:51:20 hours (that is, “in less than 10 minutes of the first pumps arriving on scene”).
[41] Moreover, Kooren agreed on cross-examination at trial that if there was no heat, smoke or fire in the feed room at 00:45:00 hours, the deployment of a fire suppression vehicle to the rear of the feed room and the wetting down of the northerly and southerly ends of the feed room could have prevented fire from spreading to that location. He also testified:
Q. And, also if that had happened [the deployment of a fire vehicle for use in the vicinity of the feed room], it most likely would have prevented fire from spreading into the silos, do you not agree?
A. Again, if they could control the fire from those areas it’s very likely that they could have prevented the fire from entering the silos.
[42] In other words, on Kooren’s own evidence, if the fire had been attacked from the southerly end of the fire site before 1:00 a.m., in the vicinity of the feed room and the silos as Adrian had suggested to Ingraham, it was “very likely” that the silos and, hence, the corn crop, could have been saved from the fire. Kooren was not re-examined at trial on this key evidence. Nor did the trial judge allude to it in his reasons.
[43] To the extent that the factual foundation for Kooren’s opinion about the inevitable spread of the fire was disproven at trial, the reliability of the defence “theory of inevitability” was cast into serious doubt. Based on the trial judge’s reasons, I cannot be satisfied that he considered these important aspects of the evidence regarding the underpinnings of the defence theory of inevitability that he accepted.
[44] Finally, I agree with the appellants’ submission that the trial judge does not appear to have considered what Ingraham would have done to attack the fire had he learned from the conduct of a proper size-up that there was no fire in the feed room or silos when he assumed command of the fire site at 00:46:26 hours and decided to deploy Pump 5. In particular, the trial judge makes no mention in his reasons of Ingraham’s trial testimony bearing on this issue, as in part above-quoted. By failing to address this issue, the trial judge omitted a key component of the requisite causation analysis.
C. Remedy
[45] The appellants argue that if their appeal is successful, the appropriate relief in this case is an order setting aside the trial judgment and substituting in its stead an order granting judgment in their favour. The appellants contend that given: (i) the nature of the standard of care articulated by the trial judge; (ii) the “findings” of breach made by the trial judge; and (iii) Kooren’s admissions on cross-examination regarding causation, detailed above, the remedy sought follows “logically”.
[46] In my opinion, the trial judge’s findings concerning the respondents’ breach are contradictory and inconsistent. It is not open to this court to resolve that conflict. Rather, a new trial is required to do so. Moreover, I have concluded that the causation analysis undertaken by the trial judge was materially incomplete. The requirement for a complete causation analysis also compels a new trial.
IV. Disposition
[47] For the reasons given, I would allow the appeal, set aside the trial judgment and direct a new trial on liability. I would award the appellants their costs of the appeal, fixed in the total amount of $30,000, inclusive of disbursements and GST.
RELEASED:
“JUL -6 2009” “E.A. Cronk J.A.”
“EAC” “I agree E.E. Gillese J.A.”
“I agree Robert P. Armstrong J.A.”
[^1]: I attach as Schedule “A” to these reasons, a sketch of the fire scene utilized by the parties at trial that depicts the location of the buildings and the propane tank at the fire site, as well as the position of the firefighting equipment once deployed. [^2]: At one point in his reasons, the trial judge suggested that Ingraham assumed command at 00:45:24 hours. However, as found by the trial judge, the dispatch log recorded his assumption of command at 00:46:26 hours (paras. 18, 22, 24 and 25).