COURT FILE AND PARTIES

COURT FILE NO.: 07-CV-336341
DATE: 20120529
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Samantha Kidman and Amber Fenton, deceased, by their Administrator George Dillabough et al / Plaintiffs / Responding Parties

AND:

Marina Christoforatou et al / Defendants / Moving Parties

BEFORE: Justice E. P. Belobaba

COUNSEL:
Alan L. Rachlin for the Moving Parties / Defendants

Daniel Michaelson for the Responding Parties / Plaintiffs

HEARD: May 22, 2012

ENDORSEMENT

[ 1 ] The Court of Appeal recently made clear that the purpose of the new summary judgment rule is to eliminate unnecessary trials, not to eliminate all trials. [1] The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. [2]

[ 2 ] This is a case that calls for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record. A summary judgment motion cannot serve as an adequate substitute for the trial process. As the motion judge, I cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial. [3]

[ 3 ] The defendants’ motion for summary judgment is dismissed with costs.

Background

[ 4 ] A fire destroyed a century-old church that had been converted into rental apartments. The plaintiffs, a family of six, were asleep in their apartment when the fire broke out. Two children died in the fire and another was seriously injured. The Fire Marshall determined that the cause of the fire was electrical malfunction, probably in the wiring circuits that were located in the false ceiling and floor between the plaintiffs’ main-floor apartment and the two basement apartments.

[ 5 ] The defendants are the owner/landlords who managed the property and also occupied one of the basement apartments of the converted building for office and storage purposes.

[ 6 ] The plaintiffs have sued for $5 million in damages. They say the defendants converted the old church into rental units without doing any of the required building inspections. The electrical wiring was old and unsafe. The actual construction of the apartments, in particular, the lack of compartmentation and fire-separation, was in violation of both bylaws and building codes. The defendants failed to install smoke detectors, again in violation of the law.

[ 7 ] The defendants say there are no genuine issues requiring trial.

Analysis

[ 8 ] I agree with counsel for the defendants that the determinative criterion must be qualitative not quantitative – that is, whether or not a summary judgment motion should proceed cannot be decided simply by measuring the amount of material that has been filed with the court. [4] There may well be summary judgment motions with numerous affidavits, conflicting evidence and an extensive record that can nonetheless satisfy the “full appreciation” test and be resolved by the motions judge using the new powers set out in Rule 20.04(2.1). I would venture to say, however, that such cases will be few and far between. In any event, this is not such a case.

[ 9 ] Here, there are at least six areas of dispute:

(i) Whether the Fire Marshall was correct in concluding that the cause of the fire was “electrical malfunction.” The Fire Marshall appears to have followed accepted fire investigation methodology in coming to this determination but the defendants dispute the evidentiary basis for this finding;

(ii) Whether the wiring system was old and unsafe, and if so whether this can be connected to the cause of the fire;

(iii) Whether the layout and construction of the main-floor and basement apartments was in violation of applicable bylaws and building and fire codes, in failing to provide for compartmentation, fire separation and fire sprinklers, and if so, whether any of these failures caused the fire to spread more quickly than would otherwise have been the case;

(iv) Whether the defendants failure to install one or more smoke alarms in the plaintiffs’ apartment was a contributing cause of the fatalities and injuries sustained herein – put more directly, if one or more smoke alarms had been properly installed as legally required would the children have responded to the alarms and been able to escape safely;

(v) Whether the coroner was correct in concluding that the children’s cause of death was “smoke inhalation and thermal injuries” or whether the two children died from carbon monoxide poisoning, a toxic gas that would not have been detected by the smoke alarm;

(vi) Whether, having considered all of the above, the fire was “accidental” in the sense that it could not be traced to a particular cause or in the sense that it was not caused or spread by negligence, in which case the action would be statute-barred under s. 76 of the Fire Prevention and Protection Act . [5]

[ 10 ] In dealing with these issues, the trier of fact will be obliged to review an extensive record that in several instances contains conflicting evidence. I refer in particular to the following:

(i) Evidence contained in two discoveries, four affidavits and their related cross-examinations;

(ii) Evidence contained in several official reports and witness statements such as the Fire Marshall’s Report (48 pages); the Fire Marshall’s notes and logs (67 pages); the Coroner’s Report; the OPP Sudden Death Report; the OPP’s interview notes; the Insurer’s Report; and several witness statements; and,

(iii) The conflicting evidence of the two private-sector fire experts who together filed five reports (totalling 80 pages).

[ 11 ] Finally, in order to understand the scope and content of these various reports and statements, determine what actually happened the night of the fire, and ascertain whether negligence on the part of the defendants has been established, numerous witnesses will have to be called to give viva voce evidence about they saw and did: the first responders - fire, police and medical; the parties themselves; other witnesses; the police investigators; the fire investigators from the Fire Marshall’s office; the individual who prepared the Coroner’s Report; a representative from the insurance company who provided the report about the “overfused” electrical system; and the experts who have provided conflicting evidence about the importance and impact of the smoke alarms.

[ 12 ] In sum, the allegations of negligence as set out in this action require material factual rulings on extensive and conflicting evidence, with numerous witnesses and differing expert opinions. I am satisfied that a full appreciation of this evidence and the issues of fact and law that need to be decided can only be achieved through the trial process. This is most definitely not a case that should be adjudicated summarily.

Disposition

[ 13 ] The motion for summary judgment is dismissed.

[ 14 ] Counsel agreed that a $15,000 costs award on a partial indemnity basis was fair and reasonable. Counsel for the plaintiffs tried to press for substantial indemnity but I rejected this suggestion. I cannot say that the motion was brought unreasonably (although I must admit that it was a close call.) I therefore fix costs at $15,000 for this motion with a $500 reduction for costs incurred by the defendants on an earlier and related motion to strike an affidavit.

[ 15 ] Costs are fixed at $14,500 all-inclusive, payable by the defendants forthwith.

Justice E. P. Belobaba

Date: May 29, 2012

[^1]: Combined Air Mechanical Services Inc. et al v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431 (C.A.) at para. 38.

[^3]: Ibid., at para. 51

[^4]: Honest Art v Decode Entertainment, (2012) O.J. No. 365 (S.C.J.) at para. 4.

[^5]: Fire Prevention and Protection Act, 1997, S.O. 1997, c. 4.