COURT OF APPEAL FOR ONTARIO

(Barrie) Limited, 2012 ONCA 182

DATE: 20120321

DOCKET: C53560

MacPherson, LaForme J.J.A. and Pattillo J. (Ad hoc)

BETWEEN

1369349 Ontario Inc.

Plaintiff (Appellant)

and

Yanch Heating and Air conditioning (Barrie) Limited and Andrew Bates c.o.b. as Live Wire Electrical

Defendant (Respondent)

Roger Chown and David Thompson, for the plaintiff (appellant)

Daniel Dooley, for the respondent Andrew Bates

Heard and released orally: March 20, 2012

On appeal from the judgment of Justice John R. McIsaac of the Superior Court of Justice, dated March 14, 2011.

ENDORSEMENT

[1] The appellant alleged that Andrew Bates, the respondent, negligently damaged the armoured cable he installed in the appellant’s building causing a fire in the building two weeks later. The trial judge found that the respondent was not negligent. This is an appeal from that decision.

[2] The appellant advances several grounds of appeal. First, it submits that the respondent was required to provide an explanation, based on evidence, for the cause of fire in order to rebut the presumption of negligence suggested by the experts.

[3] The appellant next submits that the trial judge ignored, misapprehended or misunderstood the jointly retained expert’s evidence. In the alternative, it argues that the reasons of the trial judge for rejecting this evidence and accepting the respondent’s denial of negligence are inadequate.

[4] We reject these grounds of appeal.

[5] The task of the trial judge in this case was to decide on all the evidence, whether it could be fairly inferred that the fire was the result of the respondent’s conduct. If a review of the evidence revealed that the cause of the fire remained unknown, then the required burden of proof upon the plaintiff would not have been satisfied and the trial judge would be required to dismiss the action. That is what occurred in this case.

[6] The jointly retained expert testified to only two ways that the respondent could have caused the fire: (1) by “severely abusing” the armoured cable including bending it severely, or (2) by “yanking” the armoured cable if it became caught when it was “fished” above a false ceiling.

[7] The trial judge found that the respondent did not severely abuse, bend or yank the armoured cable. This finding was open to the trial judge and the evidence was more than sufficient to support it. He was entitled to believe the respondent on this issue, which was sufficient to rebut the presumption of negligence. As the trial judge stated at paragraph 17:

… although I have some suspicions about the quality of this installation and as to the overall credibility of the defendant, these concerns do not rise to a sufficient level to cause me to not accept his denial of professional negligence in this case. I am satisfied that the appropriate standard of care was met and, accordingly, that the inference to the contrary has been rebutted.

[8] The trial judge’s analysis was consistent with Fontaine v. British Columbia (Official Administrator), 1998 814 (SCC), [1998] 1 S.C.R. 424. Accordingly, this ground of appeal is dismissed.

[9] On the remaining grounds of appeal, there was no evidence that the fire was caused by a manufacturing defect in the armoured cable. Further, the reasons of the trial judge are sufficient. They pose no difficulties in either informing the appellant as to the reasons why the claim was dismissed or allowing for meaningful appellate review.

[10] For these reasons, the appeal is dismissed with costs to the respondent in the amount of $16,000 inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”

“Pattillo J. (Ad hoc)”