Court File and Parties

Court File No.: CV-16-167-SR Date: 2016-09-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SYLVIAN GUAY Mr. Ciaran McGrath, for the Plaintiff/Responding Party Plaintiff/Responding Party

- and -

MICHAEL JOUBERT and JADE ANTONSON Mr. Samuel W. Crowe, for the Defendant, Jade Antonson and amicus curiae for the Defendant, Michael Joubert Defendant/Moving Party

HEARD: September 22, 2016, at Thunder Bay, Ontario Mr. Justice W.D. Newton

Reasons For Summary Judgment Motion

Overview

1On March 23, 2015, the plaintiff’s building, occupied by the defendants as tenants, was destroyed by fire. This simplified rules action is a subrogated claim brought in the name of plaintiff by his insurer. The insurer alleges that the fire was caused by the negligence of the defendant Joubert. Since Mr. Joubert is bankrupt, the insurer seeks damages from Ms. Antonson as cotenant pursuant to s. 34 of the Residential Tenancies Act, 2006, SO 2006, c 17.

2Ms. Antonson brings this motion for summary judgment dismissing the claim arguing that the claim cannot succeed against her because the plaintiff cannot prove that the fire was caused by Mr. Joubert’s actions. Alternatively, she argues that if Mr. Joubert’s actions caused the fire, it was not foreseeable that fire would be caused by his actions and that, therefore, he was not negligent.

3The plaintiff argues that summary judgment is not appropriate in this case because key facts are in dispute and that, therefore, a trial will be required.

The facts

4By affidavit, a fire investigator retained by the plaintiff’s insurer deposed that “the most likely cause of the fire was Mr. Joubert’s discarding of a cigarette. Indeed, the only source of ignition in the area of origin of the fire would have been a cigarette which missed the pail and fell back between the deck and home”. That opinion was based on the assumption that approximately four hours prior to the fire Mr. Joubert was smoking a cigarette on the deck and that Mr. Joubert placed his cigarette in a 5 gallon plastic pail which he used as an ashtray. The inference is that Mr. Joubert missed when he placed the cigarette in the pail. The fire investigator took photographs of the pail which showed only the bottom remaining. The investigator also stated that another potential cause of the fire, a faulty light alleged by the defendants, “did not exhibit any evidence of having been a point of origin or cause of the fire”.

5Different witnesses offer different evidence about where the fire started and what happened to the “ashtray” pail.

6Counsel for Ms. Antonson filed affidavits from two neighbors. Mr. Schallock deposed that he witnessed the fire. He “observed that the fire was located beside the front door in the corner of the front entrance to the house. The fire was located along the eaves line of the house towards the side of the property, above and away from the deck…..” The following day he observed the “ashtray” pail and noticed that it had unburnt material remaining in it and that, apart from being melted on the top, the pail was intact. In a supplementary affidavit, he deposed that, the day after the fire, he saw the chief of the Greenstone fire department, Brad Lemaich, looking through the remains of the fire when Lemaich came upon the “ashtray” bucket and it toppled over spilling out “burnt material” including “cigarette butts and a candy wrapper”. Mr. Perry also deposed that he observed that the fire was located “above the front door at the front entrance to the house, near the corner eaves line...” and “well above and away from the wooden deck….” He also deposed that he did not observe the fire originating from or causing damage to the deck.

7The insurer filed affidavits from the claims representative of the insurer, the fire chief, Brad Lemaich, and the fire investigator.

8The claims representative’s affidavit references statements from another neighbor, Mr. McCool and from the defendant, Mr. Joubert. Mr. McCool apparently will say that he was at home and looked out his window and saw flames in the corner of the house and saw the flames going directly into the soffit. Mr. Joubert gave a statement in which he said that he had a cigarette on the deck at about 5:30 p.m. on the evening of the fire and that he believes he did not put the cigarette into the pail but did not recall for certain.

9Mr. Lemaich deposed that he investigated this fire as fire chief. He referenced a conversation with Mr. McCool which contains information different than Mr. McCool’s statement describing the fire on the deck to the west of the front door. He said that on the next day, he observed a V-shaped pattern of fire damage directly among the remains of a plastic pail. The plastic pail was on the deck and appeared to be melted down to its base. He concludes that the most likely cause of the fire was Mr. Joubert’s discarding of a cigarette.

Summary Judgment

10Rule 20.04(2) provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. In considering the evidence submitted, the judge may weigh evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence.

11As stated in Hryniak v. Maudlin, 2014 SCC 7:

49There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[emphasis added]

12The parties agree that the following paragraphs from The Bank of Nova Scotia v. Mull, 2016 ONSC 4678 apply:

14In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. The court may, where appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The motion judge is entitled to assume that the record contains all of the evidence that would be introduced at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial:

[P]hrases such as “best foot forward”, “leading trump”, “not an occasion to keep powder dry” and “not holding anything back” are commonly employed to emphasize this point and have been approved by our Court of Appeal (c.f. Sweda Farms v Egg Farmers of Ontario, 2014 ONSC 1200; aff’d 2014 ONCA 878; Danos v. BMW Group Financial Services Canada et al, 2014 ONSC 2060; aff’d 2014 ONCA 887); Mazza v Ornge Corporate Services Inc., 2016 ONSC 1390

15Where summary judgment is refused or is granted only in part, Rule 20.05 provides “the court may make an order specifying what material facts are not in dispute and defining the issues to be tried and order that the action proceed to trial expeditiously” and to give directions or impose such terms as are just.[emphasis added]

13The inability to cross-examine on affidavits in a simplified rules action limits the ability to test the evidence of the deponents.

Analysis and Disposition

14I conclude that I am not able to reach a “fair and just determination on the merits” since key facts are in dispute.

15Determination on the merits is hampered by the fact that some of the evidence put forward by the insurer is hearsay. Indeed, it was not until the day before the hearing of this motion that an affidavit of the fire investigator was filed. Previously, the investigator’s report was simply filed as an exhibit to an affidavit in the insurer’s original motion record. The affidavit from Mr. Lemaich was not delivered until six days before the hearing.

16On the evidence filed on the motion, I am not able to conclude whether the fire started in or outside the “ashtray” pail or whether the “ashtray” pail was destroyed in the fire. Similarly, I am unable to determine whether the fire started in the soffit area or on the deck. I conclude that a trial is required for the “fair and just determination on the merits”.

17This is not a case in which a “Mini-Trial” will assist or where, in my view, a combination of affidavit evidence and oral evidence would assist. The trier of fact will have to hear the evidence of the witnesses to determine the facts. An ordinary trial, as opposed to summary trial, is required.

18Since I already have knowledge of the issues in this action, I conclude that it is the most effective use of judicial resources if I remain seized of this matter for trial and any procedural motions that may arise. If affidavits of documents have not yet been exchanged, affidavits of documents shall be served within 30 days of the release of this decision in accordance with Rule 76.03. The affidavit of documents of the plaintiff is to include any notes made by the fire investigator and Fire Chief at the time of the investigation and/or site visit.

19Although Ms. Antonson was not successful in this motion, I reserve my decision with respect to the costs of this motion pending the outcome of this action. Although costs should ordinarily be dealt with at each stage of a proceeding, a factor in my decision to defer my costs decision is the fact that the insurer put forward hearsay evidence rather than it is “best foot” and failed to deliver an affidavit from the fire investigator until the day before the hearing of this motion.