COURT OF APPEAL FOR ONTARIO
CITATION: Metropolitan Toronto Condominium Corporation No. 1100 v. A. & G. Shanks Plumbing & Heating Limited, 2020 ONCA 67
DATE: 20200131
DOCKET: C64763 & C64784
Strathy C.J.O., MacPherson and Jamal JJ.A.
DOCKET: C64763
BETWEEN
Metropolitan Toronto Condominium Corporation No. 1100
Plaintiff (Appellant)
and
A. & G. Shanks Plumbing & Heating Limited, 1586208 Ontario Limited, carrying on business as Shanks Plumbing and Heating and Addison Heating and Cooling Ltd.
Defendants (Respondent)
DOCKET: C64784
BETWEEN
David Bruce Fingold
Plaintiff (Appellant)
and
A. & G. Shanks Plumbing & Heating Limited, 1586208 Ontario Limited, carrying on business as Shanks Plumbing and Heating and Addison Heating and Cooling Ltd.
Defendants (Respondent)
C. Kirk Boggs and Jennifer L. Hunter, for the appellants Metropolitan Toronto Condominium Corporation No. 1100 and David Bruce Fingold
Christopher I.R. Morrison, Joel Cormier, and Peter K. Boeckle, for the respondent
Heard: January 14, 2020
On appeal from the judgment of Justice Kenneth G. Hood of the Superior Court of Justice, dated December 4, 2017.
REASONS FOR DECISION
[1] The appellants appeal the dismissal of their actions for damages arising out of a fire that destroyed an historic mansion, which was part of a condominium development in Toronto.
[2] The fire was detected shortly after a plumber, employed by the respondent, had repaired a leaking pipe in the basement ceiling, using a blowtorch and solder. The fire originated in the ceiling, near the location of the plumber’s work.
[3] The appellants submit that the trial judge erred in failing to find that the fire was caused by the plumber’s negligence. We dismissed the appeal with reasons to follow. These are our reasons.
Background
[4] At the commencement of trial, counsel for the appellants stated that he did not propose to call expert evidence on the standard of care, because the plumber’s conduct was “egregious” and obviously fell below the standard. This position was taken in reference to this court’s decision in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, which holds that expert evidence is not necessary “where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care”: at para. 57. The other established circumstance in which expert evidence is unnecessary is where the evidence concerns “nontechnical matters or those of which an ordinary person may be expected to have knowledge”: Barclay, at para. 55.
[5] Notwithstanding their decision not to adduce expert evidence, the appellants tendered some evidence of the standard of care by reference to the National Fire Code of Canada 2005 and the Fire Code, O. Reg. 213/07. However, as the trial judge noted, there was no expert evidence that the National Fire Code formed part of the standard of care applicable to plumbers in Ontario in 2009, and the Ontario Fire Code did not include soldering as part of its “Hot Works” regulations at the time of the events.
[6] On the issue of causation, the appellants adduced the evidence of two expert witnesses, who testified that the fire was caused by the flame of the plumber’s torch coming into contact with combustible materials in the work area – a fairly confined space between the basement ceiling and the floor above, where the leaking pipe was located.
[7] The respondent did not adduce expert evidence on either the standard of care or causation. However, the plumber who performed the work testified about the precautions he had taken:
- before starting the work, he inspected the work area and found no flammable or combustible materials;
- he knew that it was necessary to wet down the work area to prevent a fire, but did not do so in this case because the area was “completely soaked” when he got there, due to a fan-shaped spray from the leaking pipe;
- he placed a fire extinguisher beside his ladder while he was working;
- while doing the work, he pointed the flame of the blowtorch in a downward direction and away from the wood structures above him;
- he was aware of the need to use a fire-resistant blanket to protect flammable areas, but did not use one in this case because it would have been impractical as it would not have stayed in place in the ceiling;
- after completing the soldering work, he remained in the area and carried out a 30-minute “fire watch” to ensure that there was no sign of fire or smoldering – he did not notice any; and
- before leaving the site, he went up his ladder one last time to check his work.
[8] The trial judge found the plumber’s evidence was both credible and reliable. He accepted the plumber’s evidence that the work area was “completely soaked” due to the spray from the leaking pipe and that he did not observe any combustibles, other than the wooden structural materials, which were also wet from the leak. He also accepted the plumber’s evidence that he had pointed his torch downwards while performing his work (a fact also admitted by the appellants in an agreed statement of facts), and that any combustibles were above the work and therefore above the flame of his torch. The appellants’ experts did not address how the fire could have occurred in light of the plumber’s evidence.
[9] On the issue of standard of care, the trial judge found that neither Barclay exception was applicable: soldering is a technical matter requiring expert evidence of the standard of care and there was nothing egregious about the plumber’s conduct. He concluded: “In my view it was incumbent upon the plaintiffs to lead expert evidence to establish the appropriate standard of care in order for the court to find that it had been breached. They did not do so and because of this their claim must be dismissed.”
[10] The trial judge also addressed causation, finding that, while the evidence was “somewhat problematic”, as the plumber was the only one working in the vicinity of the location where the fire started, “there was no evidence that anything he did caused the fire.”
[11] On appeal, the appellants make two primary arguments: first, that the trial judge erred by failing to draw an inference of a breach of the standard of care based on the circumstantial evidence, namely, that a fire occurred under the plumber’s watch, with no alternate explanation for how the fire occurred; and second, that the trial judge erred by failing to draw an inference of causation in light of the circumstantial evidence.
Elements of negligence
[12] To succeed in a claim for negligence, a plaintiff must establish: (a) that the defendant owed them a duty of care; (b) that the defendant’s conduct breached the standard of care; (c) that they sustained damage; and (d) that the damage was caused, in fact and in law, by the defendant’s breach: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.
[13] There was obviously a duty of care in this case. A plumber carrying out work in a house owes a duty of care to the owner to use reasonable care in the performance of that work.
[14] Nor is there any dispute that the plaintiffs suffered damages, although there is a live controversy about the quantum.
[15] The real issues in this case are: (b) whether the defendant’s conduct breached the standard of care and, if so, (d) whether that breach caused the plaintiffs’ damage.
Analysis
[16] In Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, the Supreme Court of Canada explained the proper approach to be taken by trial judges when considering circumstantial evidence in negligence cases. The court stated, at para. 27:
[Circumstantial] evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.
[17] In other words, where circumstantial evidence has been adduced, the trial judge must consider whether that evidence gives rise to an inference, or a series of inferences, that support a finding of a breach of the standard of care or of causation. The trial judge must then weigh any such inferences along with any direct evidence to determine whether, on a balance of probabilities, the plaintiff has established a breach of the standard of care or causation. Where a plaintiff has done so, the defendant bears a strategic burden to present its own evidence to rebut the plaintiff’s case. The “legal burden of proof, of course, remains on the plaintiff throughout”: Marchuk v. Swede Creek Contracting Ltd. (1998), 1998 CanLII 6280 (BC CA), 116 B.C.A.C. 318, at para. 10.
[18] Where, as here, the plaintiff has done nothing to cause the fire, and the defendant is effectively in control of the place or thing that is the source of the fire, an inference of a breach of the standard of care, or of factual causation, or of both, may arise from the very happening of the fire. The defendant can rebut those inferences by adducing evidence that undermines the plaintiff’s case, points to other non-negligent causes of the fire, or supports the exercise of reasonable care. The precise nature of the evidence required to do so will be different in every case, depending on the relative strength of the plaintiff’s evidence in support of the finding.
[19] In this case, the trial judge explicitly rejected the appellants’ argument that the plumber’s conduct was “egregious”. As the appellants called no expert evidence to show that the plumber’s precautions fell below the applicable standard of care, the trial judge was entitled to conclude that, considering all the direct and circumstantial evidence, including the respondent’s evidence, the appellants had failed to discharge their burden of proving a breach of the standard of care. We are not satisfied that he erred in that conclusion.
[20] As the trial judge did not err on the standard of care issue, there is no need to address his causation analysis.
[21] We would, therefore, dismiss the appeal. The respondent’s cross-appeal on damages is rendered moot. Costs of the appeal and cross-appeal are awarded to the respondents, fixed in the amount of $40,000, inclusive of disbursements and all applicable taxes.
“G.R. Strathy C.J.O.”
“J.C. MacPherson J.A.”
“M. Jamal J.A.”