COURT OF APPEAL FOR ONTARIO

CITATION: Kiden Used Furniture v. Pearson, 2015 ONCA 170

DATE: 20150313

DOCKET: C59319

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Kiden Used Furniture, Clothing &

Household Goods Inc.

Appellant (Plaintiff)

and

William Scott Pearson

Respondent (Defendant

Davies Bagambiire, for the appellant

Christopher R. Dunn and Josiah T. MacQuarrie, for the respondent

Heard and released orally: March 5, 2015

On appeal from the judgment of Justice Wendy M. Matheson of the Superior Court of Justice, dated August 11, 2014.

ENDORSEMENT

[1] The appellant tenant alleged a fire in its premises was caused by the respondent’s negligence. The respondent landlord brought a motion for summary judgment. Matheson J. dismissed the appellant’s claim on the ground that there was no evidence indicating the fire was caused by the respondent’s negligence. The appellant argues that the motion judge erred by finding expert evidence was necessary to establish the cause of the fire and erred in the way she drew inferences from the respondent’s spoliation of evidence.

[2] The appellant, which operated a used goods store, leased the basement of a building owned by the respondent. There was a small electrical room in the basement. The appellant heated the basement using a portable electric heater provided by the respondent in 2012.

[3] The building experienced frequent electrical problems such as power outages. In February 2011, the fire department responded to a call that there was smoke coming from an electrical panel in the basement. The fire department’s report identified the cause as an overheated electrical panel. The respondent subsequently had the panel replaced.

[4] On January 8, 2013, a fire occurred on the premises. The fire department’s report did not identify the cause of the fire but noted that it began in the basement. The respondent reported the fire to its property insurer, which retained a fire investigator. The investigator’s report classified the fire as accidental. It identified “electrical arcing” from the electric heater’s damaged power cord as the most likely cause of the fire. The report noted that the cord was located in a high-traffic area of the basement and would have been subject to wear and tear through foot traffic and having items placed on top of it. Because the investigator incorrectly believed the heater belonged to the appellant, he did not remove or preserve it after his inspection. It was eventually removed in the landlord’s clean-up process and was likely destroyed. The fire investigator ruled out the possibility that the fire had been caused by the building’s electrical infrastructure.

[5] Although the respondent asked for the appellant’s consent to remove the contents of the basement as part of the clean-up process, the appellant did not provide consent. The respondent landlord eventually authorized the removal himself.

[6] The appellant claimed the fire could not have been caused by the electric heater because it did not use this device. It also disputed the findings in the fire investigator’s report that the heater was located in a high-traffic area.

[7] The motion judge rejected the appellant’s argument that it did not need to provide expert evidence regarding the cause of the fire. She noted that even after accepting “a series of assumptions that are favourable” to the appellant and overlooking “problems” in the appellant’s materials, an expert report on causation remained necessary in order for its negligence claim to have any potential for success.

[8] The appellant argued that the respondent engaged in spoliation of evidence when it permitted the heater to be removed and destroyed. It asked the court to therefore assume that the heater and its cord were in good working order. Although the motion judge noted that this would require ignoring both legal arguments against a finding of spoliation and the physical evidence shown in the photographs of the heater after the fire, she accepted the appellant’s argument.

[9] The motion judge held that even assuming, as submitted by the appellant, that the report of the fire investigator was rejected, the appellant still bore the burden of proving causation. The appellant argued that based on the “totality” of the “cumulative circumstantial evidence”, a reasonable person would conclude that the fire was caused by problems with the building’s electrical system. The motion judge noted that the circumstantial evidence did not support a finding that the electrical was overloaded at the after hours time of the fire. Further, the electrical panel had been replaced after the 2011 incident. The City of Toronto Building Department report did not identify any possible cause of the fire.

[10] The motion judge observed that while expert evidence is not always required to prove causation, the appellant’s negligence theory related to the building’s electrical system, which was a sophisticated matter beyond the ordinary knowledge and experience of the trier of fact. Even if the appellant could show the fire was related to the electrical panel, this would not prove it was caused by the respondent’s negligence. This could not be proven on the circumstantial evidence suggested by the appellant.

[11] The misapprehension by the motion judge that a fire department report (“the IBMS report”) was not before her was of no moment as there was no evidence of the cause of the fire in that report.

[12] Given the absence of expert evidence supporting the appellant’s theory of causation, the motion judge concluded that there was no genuine issue requiring a trial and granted summary judgment dismissing the action against the respondent.

[13] The appellant submits that the motion judge erred in two respects:

• In concluding that expert evidence was necessary for the appellant to prove that the respondent was negligent;

• In failing to appreciate that the appellant could not provide expert evidence as to the cause of the fire because the respondent destroyed the physical evidence that would have identified the cause.

[14] The appellant relies on Clement v. Clement, [2012] 2 S.C.R. at para. 38, where the court indicated, “The law of negligence has never required scientific proof of causation; to repeat yet again, common sense inferences from the facts may suffice. If scientific evidence of causation is not required as Snell makes plain, it is difficult to see how its absence can be raised as a basis for ousting the usual “but for” test.”

[15] The appellant’s theory was that a history of a previous problem with the electrical panel, which had been repaired, and the fact that fuses blew when circuits were overloaded was sufficient evidence of negligence. The motion judge found that the circuits were not overloaded at the time of the fire, as both commercial tenants were not at the premises.

[16] We agree with the motion judge that the issues here, being the cause of the fire and whether the respondent was negligent, are not appropriately the subject of common sense inferences and that expert evidence was required for the appellant to prove that the respondent was negligent and caused the fire.

[17] Secondly, the motion judge proceeded on assumptions favourable to the appellant, that the heater did not cause the fire and that the respondent intentionally destroyed it. The usual remedy for spoliation is a presumption that the destroyed evidence would have been unfavourable to the party who destroyed it. But this adverse evidence inference is not capable of being positive proof of the landlord’s negligence. The appellant had the obligation of establishing that negligence and causation could be proven at trial and failed to do so on the motion.

[18] The appellant has not demonstrated any error on the part of the motion judge and the appeal is therefore dismissed.

[19] Costs of the appeal are awarded to the respondent in the agreed amount of $7,500, inclusive of disbursements and HST.

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”