St. Clair Boating & Marina v. Michigan Electric Supply Co., 2017 ONSC 3864

COURT FILE NO.: 7234/13 DATE: 20170622 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

St. Clair Boating & Marina, a Division of 1537768 Ontario Ltd. Plaintiff

– and –

Michigan Electric Supply Co., Steve Demers, Agri-Urban Buildings Inc., the Electrical Safety Authority, Acuity Brands Inc., Acuity Brands Lighting Inc., Lithonia Lighting Products Company of Georgia, General Electric Canada Company, General Electric Company, Philips Canada Ltd., Philips Lighting Company and Philips Electronics North America Corporation Defendants

AND: Schedule “A”

COUNSEL: James Manson and Alan S. Cofman, for the Plaintiff Robert B. Bell and Jameel Madhany, for the Defendants, Acuity Brands Inc. Acuity Brands Lighting Inc. and Lithonia Lighting Products Company of Georgia Alex R. Szalkai Q.C., for the Defendants, Michigan Electric Supply Co. N. Bombier, for the Defendants, General Electric Canada Company and General Electric Company E. Larose, for the Defendant, Electrical Safety Authority

HEARD: January 24, 25, and 26, 2017

Raikes J.

Nature of Motion

[1] The defendants, Acuity Brands Inc. Acuity Brands Lighting Inc. and Lithonia Lighting Products Company of Georgia (hereafter “the Acuity defendants”), move for summary judgment. Their position on the motion is supported by the other defendants who appeared.

Overview

[2] This is a fire loss claim. The plaintiff owned and operated a warehouse which was destroyed by fire. The plaintiff contends that the fire was caused by an explosion of a metal halide light bulb which ejected very hot fragments that landed on and ignited a tarp covering one of several boats stored in the warehouse. The fire then spread rapidly through the warehouse.

[3] The Acuity defendants manufactured the light fixture in which the bulb was illuminated. The plaintiff asserts that the design or manufacture of the light fixture was defective in that it should have had a shield to guard against the possibility of rupture of the bulb, a known fire hazard.

[4] To succeed at trial, the plaintiff must prove, on a balance of probabilities, a causal connection between the fire and the lights in the warehouse. The Acuity defendants assert that no such causal connection exists or can be proven; at most, the plaintiff’s theory is conjecture.

[5] The material filed on this motion consists of, inter alia, 15 expert reports, affidavits of various fact and expert witnesses and exhibits thereto, and transcripts of cross-examinations of the witnesses. A small forest was lost to the paper filed.

[6] The Acuity defendants invite me to use the expanded powers set out in r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to weigh the evidence, evaluate credibility and draw inferences in determining whether there is a genuine issue requiring a trial. Alternatively, they suggest a mini-trial be conducted on the narrow issues raised by this motion.

[7] For reasons which follow, I direct that further oral evidence be adduced on this motion pursuant to r. 20.04(2.2).

Claim against Acuity Defendants

[8] In its statement of claim, the plaintiff alleges that:

a. Para. 7- the Acuity defendants manufactured and/or distributed light fixtures; b. Para. 8- the General Electric defendants manufactured and/or distributed metal halide light bulbs; c. Para. 17- the plaintiff purchased all of the lighting and electrical systems installed in the building from Michigan Electric; d. Para. 18- the Acuity defendants and/or General Electric defendants designed and/or manufactured the lighting and electrical systems that the plaintiff purchased from Michigan Electric; e. Para. 23- on December 20, 2011, the fire ignited at the building suddenly and without warning; f. Para. 24- the Office of the Fire Marshal (“OFM”) investigated the fire. The OFM indicated that the origin of the fire was near a light fixture within the building and/or the electrical wiring to the same light fixture but could not determine what caused the fixture and/or wiring to ignite; g. Para. 50- the Acuity and GE defendants are liable for all of the losses the plaintiff suffered as a result of the fire at the building; h. Para. 51- if the court finds the fire was caused by a defect, however caused, with the fixture and/or wiring, the Acuity and GE defendants are strictly liable as the designer(s), distributor(s) and/or manufacturer(s) of the fixture and/or wiring for breach of an express warranty of fitness, breach of an implied warranty of fitness, for failing to properly inspect the fixture and/or wiring and for failing to warn the plaintiff about such defect; i. Para. 52- if the court finds the fire was caused by an inherent vice within the design and/or by negligent design of either the fixture and/or wiring, the Acuity and GE defendants are strictly liable as the designer(s), distributor(s) and/or manufacturer(s) of the fixture and/or wiring for breach of express warranty of fitness, breach of implied warranty of fitness, and for failing to warn the plaintiff about such inherent vice within the designed and/or such negligent design; j. Para. 53- if the court finds that the fixture and/or wiring were not subject to a proper course of maintenance and inspection, and that such failure caused or contributed to the fire, the Acuity and GE defendants are liable for failing to warn the plaintiff about specific maintenance and inspection required to prevent the fixture and/or wiring from becoming a danger.

[9] In the statement of claim, “fixture” refers to the fixture and bulb, and “wiring” refers to the electrical wiring to the same light fixture (see para. 24).

[10] In the evidence, the witnesses referred to a “luminaire” which is the fixture into which the bulb is placed to illuminate the warehouse. The terms “light fixture” and “luminaire” in this decision are used interchangeably.

[11] Likewise, the witnesses and counsel referred to the “lamp” which I understand is the “light bulb” or “bulb”. While I have tried to be consistent in these reasons, if not, I use those terms interchangeably.

The Warehouse

[12] The plaintiff owned and operated two warehouses built side-by-side. Shed no. 1 was built in 1998. Shed no. 2 was built in 2001 and is the warehouse which was destroyed by fire. The two warehouses were almost identical in design and construction.

[13] Both warehouses were used for winter storage of boats, cars and other types of watercraft.

[14] The subject warehouse was 100’ x 300’ with a peaked roof. The exterior including the roof was metal cladding. There were no windows or interior walls. The building had a security alarm but no fire suppression system.

[15] The warehouse had six gas-fired radiant heaters that were used during winter storage. The heaters were wall-mounted near the level of the ceiling. There were six thermostats, one for each heater, located approximately mid-point between the heaters. Each heater was individually controlled. The thermostats were set at 45°F when no one was working in the building.

[16] There were two rows of lights running east-west or lengthwise through the building. These lights hung from steel joists at a height of approximately 23 feet above the floor. Each row of lights had 10 fixtures which were located approximately 20 feet in from the side wall of the building. Each light hung down approximately 2.5 feet from the steel joists.

[17] The switches for the lights were breaker switches on the electrical panel. The breaker panel had four switches for lights, six switches for heaters and two or four switches for power outlets. Each light switch turned on a section of lights. The electrical panel was situate near the west door where the security alarm panel was located.

Light Fixtures/Bulbs

[18] The light system in the warehouse was comprised of metal halide light bulbs in open luminaires (fixtures). These lights are High Intensity Discharge (HID).

[19] A metal halide bulb has an internal arc tube made of fused quartz. The arc tube operates under high pressure at very high temperatures. The arc tube is contained under pressure within an outer borosilicate glass bulb.

[20] The OFM report contains the following passage from Babrauskas, Bytenis, Ignition Handbook, Issaquah. WA, 2003, at chapter 14, pages 750-752 dealing with “Electric lamps and lighting fixtures”:

“The arc tube operates at around 600 to 800°Celsius in mercury vapour lamps, 900 to 1100°Celsius in metal-halide lamps and up to 1200°Celsius in high-pressure sodium lamps. At operating temperature, the internal pressure in the arc tube can be as high as 7.5 atm and the outer glass envelope or temperature can be as high as 400°Celsius. The arc tube of HID lamps can unexpectedly rupture and shatter the outer glass envelope, resulting in the discharge of hot glass fragments and extremely hot particles of the arc tube. Arc tube rupture from internal causes (such as manufacturing defects), from external causes (such as ballast failure, lamp misapplication, or injury to the outer glass envelope), and from old age.

In addition to their incandescent temperature, the amount of heat in the arc tube fragments is high, equivalent to 10 or 20 matches; thus even after falling 7 to 9 meters through the air they can ignite combustible materials, such as furniture and cardboard.

Since a failure of an HID lamp can eject material at up to 1200°Celsius, there is a potential for ignition if a non-combustible shield that can capture and retain any broken material is not installed below an HID lamp. There have been 29 losses at premises insured by FM Global during the 1990s due to ignitions from HID lamps. Of these, 14 were metal halide, 12 mercury vapour and three sodium vapour. …”

I observe that none of the parties’ experts took issue with the accuracy of the above information and accepted and/or adopted it expressly or implicitly.

[21] An open luminaire is one with an open bottom; viz. there is no shield in place on the bottom to catch and contain glass or arc tube fragments in the event the bulb breaks apart or explodes as has been known to occur.

[22] Open luminaires are appropriate for use in an industrial setting where there is no risk of fire if the bulb fragments fall onto anything in the building. Their use in buildings where flammable material is present and may ignite is questionable and one of the issues in this case.

[23] The above information merely serves to confirm that metal halide lights can cause fires when they rupture/explode and hot fragments from the arc tube come in contact with flammable material. It does not determine whether that is what occurred in this warehouse and caused this fire.

[24] The Acuity defendants manufacture the light fixture but not the metal halide bulb. There are a number of companies who manufacture a metal halide bulb including the General Electric defendants.

The Fire

[25] On December 20, 2011, John Goethals, an employee of the plaintiff, entered the warehouse through the man door on the west end at approximately 7 a.m.. Mr. Goethals was a licensed mechanic and marine repair technician. He was there to do repairs on a 31’ Sea Ray (the Vale boat) which was located near the east end of the warehouse.

[26] He turned on the lights for sections 1, 3 and 5. He waited a moment or two for the lights to warm up and then proceeded through the warehouse to the Vale boat. Once there, he went to the thermostat for the nearest heater and turned it from 45° F to 55° F. He testified in cross-examination that when the heaters come on, there is a tingling or crackling sound as something expands which is a normal sound that the heater makes. There was nothing suspicious about the sound that he heard when he turned on the heater in the easterly part of the building that morning.

[27] He began working on the Vale boat. He testified in cross-examination that shortly after he started to work on the Vale boat, he noticed a noise that was different or abnormal. It sounded like a whirring or crackling and he was not sure where it was coming from at first.

[28] Mr. Goethals checked the heater near the Vale boat and as far as he was concerned, it looked fine. He then noticed smoke at the ceiling level in section 4 which had no lights on. He could see the smoke from the light coming from sections 1, 3 and 5, the lights he had turned on.

[29] Mr. Goethals saw grey smoke rolling at the ceiling level from the west end of the building toward the back of the building where he was. There were approximately 60 boats and some cars between him and the westerly part of the building so he could not see very much.

[30] He then walked toward the front (west). As he did so, he saw an orange glow up high at the west end of the building. He was walking toward the exit door when he observed flames on top of the Tolbert boat, a 35’ Carver. The Tolbert boat was located in the southwest quadrant of the warehouse. Based on discussions with Mr. Goethals, the OFM report estimated the bow was 20’ east of the west wall and the port side was 28’ north of the south wall.

[31] There was an MG car located to the west of the Tolbert boat; i.e. the MG was between the bow of the Tolbert boat and the west wall of the warehouse (see diagram at p. 8 of report of John Matthews dated January 23, 2015). Mr. Goethals testified that the MG was non-operational; it was pushed into place when stored.

[32] When he saw the flames atop the Tolbert boat, Mr. Goethals exited the building and immediately notified the owner who called 911. Mr. Goethals is the only person to observe the fire in the warehouse before fire fighters were called to the scene. Mr. Goethals was clear in his evidence that when he first entered the warehouse that morning, he did not see, hear or smell anything out of the ordinary.

[33] To be clear, Mr. Goethals did not see the fire start, nor did he give evidence as to what caused the fire. Mr. Goethals did not indicate in his affidavit, nor was he asked in cross-examination whether he observed which, if any, of the lights he had turned on that morning were not working or lit when he saw the Tolbert boat in flames and left the building.

Tolbert Cruiser

[34] The Tolbert boat had a refrigerator, stove, two bathrooms and air conditioner all of which ran on electricity. The boat had three batteries. It also had gas engines. Mr. Goethals indicated in cross-examination that when the Tolberts dropped off their boat, no one inspected it to see what was on board; whatever was there, stayed there including any fuel.

[35] The Tolbert boat was covered by a canvas tarp and a plastic tarp. The plastic tarp was located over the radar archway and bimini. The canvas tarp covered the cabin below as well as behind the radar arch and the windshield. Some of the canvas was not covered by the plastic tarp.

[36] Mr. Goethals acknowledged in cross-examination that, like the Tolbert boat, many of the 60+ boats in the warehouse had fuel on board while in storage. There were a variety of electrical appliances and components on the boats. These electrical items are in addition to the electrical systems within the building itself including but not limited to the lighting system.

Fire Marshal Investigation/Report

[37] The motion record contains the fire investigation report of Paul Dow of the OFM. The report was peer-reviewed and approved April 12, 2012. Mr. Dow was notified of the fire by St. Clair Township Fire Department soon after the 911 call was received and was present on site as fire crews from a number of different fire services suppressed the fire.

[38] Mr. Dow did not depose an affidavit nor was he examined as a witness under oath for this motion. Instead, his fire investigation report is Exhibit “A” to the affidavit of Julie Peacock, a law clerk with the firm then acting for the Acuity defendants.

[39] The experts for both sides refer in their reports and rely upon the observations and findings in Mr. Dow’s report, albeit to varying degrees. All experts appear to accept Mr. Dow’s conclusion that there are no interior and exterior fire patterns in relation to this fire from which one might infer the origin and/or cause of the fire.

[40] Mr. Dow attributed the lack of exterior fire pattern to the intensity of the fire and the suppression efforts of the fire departments which included knocking down exterior walls and the roof. The lack of interior fire pattern is attributed to the need to move boats out of the way as firefighters progressed through the building together with the intensity of the fire which caused “complete flashover, involvement and collapse”.

[41] As soon as the fire was suppressed, the site was secured so that Mr. Dow could undertake his investigation which he completed on December 22, 2011. The site was released to the plaintiff’s insurer by the OFM on December 23, 2011.

[42] In his report, Mr. Dow concluded that the fire was accidental in nature; viz. this was not a deliberately set fire. At p. 16 of his report, Mr. Dow observed that fire debris samples were not seized from within the area of origin for analysis because: 1.) there was gasoline and diesel fuel from the boat tanks burning throughout the structure, and 2.) It was unnecessary to do so given the “very accurate and reliable observations of person 2” (Mr. Goethals).

[43] Based principally on the observations of Mr. Goethals, Mr. Dow concluded that the fire originated on top of the Tolbert boat. It developed quickly, spreading to other nearby boats. There were a total of 62 boats, six cars and two personal watercraft which provided an immense fuel load permitting the fire to spread quickly throughout the entire structure resulting in a total loss of the building and its contents. (See Report at p.16, section 3.1.4)

[44] In his report, Mr. Dow considered three potential ignition sources and sequences within the area of origin:

1. The intentional application of an open flame to available combustible materials or volatile ignitable liquids;
2. Accidental ignition from a carelessly discarded smoker’s materials; and
3. Accidental ignition from malfunctioning electrical equipment or a metal halide light arc tube rupture.

[45] Mr. Dow rejected the intentional ignition theory based on Mr. Goethal’s evidence and the fact that the plastic sheet or canvas top seen to be on fire was 18 feet above the floor. He rejected the careless smoker theory as an implausible ignition hypothesis because workers were forbidden from smoking in the building and again, the tarp observed to be on fire was 18 feet above the floor surface.

[46] Mr. Dow then concluded at p. 19 that ignition from malfunctioning electrical equipment was “the probable and most credible ignition hypothesis”. The support for his conclusion is found at pp. 19 – 21 which includes information obtained from his interviews of Mr. Goethals and the owner of the warehouses whom I believe is intended to be “person 1” in the report. I note that in his cross-examination, Mr. Steven Coopman, the principal of the plaintiff, testified that to his knowledge, no one ever changed a lamp (bulb) in either warehouse. Although the identity of “person 1” is not disclosed in the report, I note that at p. 20, Mr. Dow wrote:

“Anecdotal information was obtained from a person 1 that indicated that they have in the past had one light rupture in shed 1. When this occurred, person 1 indicated that it caused “cigarette” type burns to the boat top that the injected particles of the bulb landed on. That is the only incident of that type that has occurred in either shed 1 or shed 2 since shed 1 was built in 1998. Person 1 also indicated that to the best of their recollection that was the only ball that had been replaced since the buildings were built.”

[47] Mr. Dow concluded the area of origin is supported by the information provided by Mr. Goethals and there is no other data “that would credibly support an alternate hypothesis of the fire’s origin” (see p. 21).

[48] After reviewing published data on ruptures of metal halide bulbs and their ability to cause a fire, Mr. Dow concluded at page 25 as follows:

“It is the opinion of this investigator that the fire is of an accidental electrical cause. Having considered multiple hypotheses with regards to the origin and cause, it is the opinion of this investigator that the most credible cause of this fire was the ignition of combustible materials (namely plastic and boat top canvas) by electrical means. Specifically, the most probable cause of ignition is determined to be a catastrophic failure (arc tube rupture) of a metal halide light bulb in an open style luminaire (fixture) where the hot particles being ejected from the bulb at the time of the failure were not contained and fell onto combustible material below (polyethylene plastic and acrylic canvas); however, due to the level of fire damage, other possible electrical causes in the very well defined area of origin could not be credibly eliminated.” [emphasis in original]

Post-Fire Investigation

[49] Immediately following the fire, the remains of the warehouse were fenced off and a security guard was on site for approximately a week. Thereafter, the site was unguarded, open to the elements and accessible to anyone despite the fence.

[50] The plaintiff promptly notified its insurer of the fire. The insurer appointed an adjuster who, in turn, hired a fire investigator to determine the origin and cause of the fire. The chosen fire investigator was Rochon Engineering Inc. (“REI”), a sister company to the adjuster.

[51] The plaintiff’s origin and cause expert is Vincent Rochon (“Rochon”). At the time of the fire and REI’s engagement, Rochon was a part owner of REI. Rochon ran the forensic investigation side of REI’s business and his brother, Michael, ran the environmental remediation side.

[52] Rochon delegated the origin and cause field work to his associate Andrey Rudenko (“Rudenko”), an electrical engineer with experience in fire loss investigations. Rochon never attended the site while at REI although he received information reported by Rudenko.

[53] Rudenko attended the site with a representative of the adjuster on December 22, 2011. The site was then still under OFM control so they could not access it. On December 23, 2011, the OFM released the site. Before doing so, the OFM had placed yellow tape in the area of the Tolbert boat.

[54] On December 23, 2011, Rudenko walked the site with the adjuster’s representative. He took photographs and made notes. He did not interview or speak with either Mr. Goethals or Mr. Coopman; in fact, he never did so before his departure from REI in late March, 2011.

[55] Mr. Rudenko testified in cross-examination that he attended the site three times: December 23 and 28, 2011 and one of March 12 or 15, 2012. He is not sure of the latter date. Part of his mandate on each visit was to investigate and determine the origin and cause of the fire.

[56] The investigation of December 23 and 28, 2011 was preliminary in nature. Rudenko had theories as to what may have caused the fire and where, but the investigation was in its early stages. With respect to December 28, 2011, Rudenko testified that:

1. The goal of a fire investigator is to establish the most workable hypothesis with the information gained from witnesses, from fire patterns and other information collected at the scene;
2. He tried to identify potential parties of interest as he did his walk through so that they could be notified so they could attend the scene as contemplated by NFPA 921. He told his client of that protocol and expected his client would provide the notification;
3. He observed that an excavator had been on scene and moved some of the rubble from the middle section of the shed;
4. By December 28, the area of interest was the southwest section of the building. He did not know how many square feet that would encompass. He did not measure it or section it off;
5. He had not concluded how to divide up the building site or how to proceed with the investigation of the suspected area of origin;
6. He knew that a boat approximately 36’ in length had been in the area of interest and a boat could have multiple sources of ignition including batteries, battery cables, engine systems, electrical systems on board, electrical items in the kitchen, the air conditioner, the shore power system and even an oily rag or static electricity;
7. He knew there was an MG car near the boat but did not know how close it had been. He agreed that cars likewise have multiple potential sources of ignition;
8. The radiant heater and the electrical panels to switch on the lights to the area of interest were also potential sources of ignition; and
9. No artifacts were collected from the site on December 28.

March Site Investigation

[57] The last site investigation was done on March 12 or 15, 2012. It lasted 4-5 hours and was stopped when Rudenko felt that he had gathered enough artifacts to identify the light manufacturer. He intended that the manufacturer be notified and the investigation would continue at a later date with the manufacturer’s representative present as contemplated by NFPA 921.

[58] Rudenko left REI in March, 2012 shortly after this attendance at the site. He did not identify and notify the Acuity defendants before he left REI; in fact, they were not notified until July, 2012.

[59] In April, 2012, the site was completely cleared of debris from the fire. This was done by a contractor recommended by the environmental side of REI. No other site investigation of the debris from the fire was done after Rudenko’s last visit and the clearance of the site. The origin and cause investigation was clearly incomplete when the site was cleared.

[60] The extent and manner of investigation by Rudenko and others on March 12 or 15, 2012 bears special attention for a number of reasons. The defendants rely on the inadequacy of that work and its stoppage prior to completion to support their theory that no cause for the fire can be reasonably found; and, in any event, it cannot be reasonably concluded that an arc tube rupture was the cause. This is especially so given the complete destruction of the remaining evidence when the site was cleared.

[61] By contrast, the plaintiff’s expert, Rochon, relies on artifacts found during that investigation in March 2011 to attribute the cause of the fire to an arc tube rupture and to reject other potential sources of ignition. Rochon was terminated by REI in May, 2012, a month after the site was cleared. He was retained to provide expert opinion evidence by plaintiff’s counsel in May, 2014. He had no further involvement in the site or the claim between the date of his termination and the new engagement by plaintiff’s counsel.

[62] In his cross-examination, Rudenko agreed that:

1. The collection of data is an important component of the application of the scientific method to fire investigation;
2. Finding as much of the lamp (bulb) remains as possible is part of the scientific method and, in particular, part of the collection of data;
3. To evaluate a metal halide lamp (bulb), as much of the bulb as possible should be found and all pieces of the arc tube should be preserved;
4. Specifically, it is important to recover as many fragments as possible of the arc tube within the area of interest because that may assist in determining whether the arc tube ruptured while in use or because the light fell to the floor during the fire where the arc tube broke apart.

[63] A representative of the adjuster was present as were approximately 10 other experts engaged by adjusters for various insurers of boat owners for the site investigation in March, 2012. The protocol followed was:

1. As an artifact of interest was found by any of the experts, the rest would be summoned to that location;
2. The experts would decide by consensus whether the artifact was relevant to the determination of the potential origin and cause of the fire;
3. If so, the artifact was collected and its location noted by Rudenko;
4. Rudenko and the other experts located and removed five bags of artifacts; and
5. The site inspection was suspended once they collectively felt they had sufficient information to identify the manufacturer of the light.

[64] Rudenko did not set up a grid within the area of interest which was marked off by tape by the OFM. He and the other investigators sifted through the debris using pans and brushes to find pieces of interest. He testified in cross-examination that they swept up a lot of the area where the Tolbert boat was situate “but not all of it”. Rudenko took photographs but only of items that he viewed to be of interest.

[65] During cross-examination, Rudenko was referred to an article written by Abrecht Litchfield involving fire investigations of metal halide lighting. Certain propositions from the article were put to him some of which he agreed with and others he felt were not applicable to this site. He was not asked and therefore did not accept the article as authoritative.

[66] Rudenko agreed that it is important to create a method of identifying and tracking where pieces of evidence were recovered. The article suggests that to streamline the investigation, the area of interest should be divided into manageable grids from 2 to 5 feet per side. Rudenko indicated that use of the grid method depends on the scene; in his opinion, as long as he marked where the pieces were recovered, he felt that was good enough for this scene.

[67] The article also referred to a sifting and sluicing methodology. That would appear to make some sense when one is trying to recover fragments of an arc tube. Rudenko conceded that he did not use that method.

[68] One of the other investigators on site in March, 2012 was a lighting expert according to Rudenko. That expert looked at all the artifacts located during their search to determine whether they were part of a light fixture or lamp. Rudenko was advised and made a note that the arc tube melting point was 3000°C or 5430°F. He agreed that he must have known that the quartz from an arc tube did not melt in the fire because they found a one inch piece.

[69] It is clear from Rudenko’s evidence that:

1. The primary focus of the March site visit was to find and identify the manufacturer of the lights which was by then suspected of being a potential cause of the fire;
2. The methodology used was not that recommended in the above article but was one which allowed the investigators to find some of the remains of the light system;
3. The investigation stopped before the entire area of interest was searched for items that might point to or confirm the cause of the fire;
4. The area in which the Tolbert boat was situate was only partially investigated by the method Rudenko described.

[70] None of the other persons present for the March 2012 investigation provided evidence on this motion. Thus, Rudenko is the sole source of information concerning what was done or not done.

[71] It is obvious that a full origin and cause investigation of the site was not completed before the site was cleared of all debris from the fire. Moreover, the “area of interest” which comprises the area in which the Tolbert boat and MG were stored was not fully investigated. When Rudenko and others stopped their work on March 12 or 15, 2012, the origin and cause investigation of the site was unfinished.

Artifacts Recovered

[72] As mentioned above, Rudenko bagged and catalogued items recovered on site in March 2012. Each bag was given a separate exhibit number then later analyzed. Each bag or exhibit contained a number of items. Photographs of the recovered items in each exhibit are found in the report of Dr. John Matthews (“Matthews”). I will use the same exhibit numbers in this decision for ease of reference.

[73] The exhibits were located as follows on the site:

• Exhibit 1 contains items recovered from the top of the trunk of the MG.
• Exhibit 2 contains items recovered from behind the passenger seat of the MG including a piece of an arc tube (quartz) approximately 1.5” wide by 1” long.
• Exhibit 3 contains items recovered from the location of the Tolbert boat.
• Exhibit 4 contains items including an intact arc tube recovered from the northeast area of the building – remote from the area of origin of the fire identified by Goethals.
• Exhibit 5 contains items recovered from the central part of the building and includes an intact arc tube.

[74] The experts for both sides agreed that the arc tubes in exhibits 4 and 5 had no involvement in the cause of the fire because they remain intact. They are nevertheless helpful to appreciate what an arc tube looks like when intact.

Expert Evidence

[75] The Acuity defendants engaged three experts on the issues related to causation whose evidence and reports form part of the evidence on this motion. Because the motion is brought by the defendants, their initial reports were completed and served first.

[76] The plaintiff responded with a report by Mr. Rochon which was highly critical of the opinions reached by the defendants’ experts and opined that the fire was caused by a metal halide lamp rupture. A back and forth between the experts through affidavits and supplementary reports followed as each critiqued the other’s approach and findings.

[77] Rather than recite the “to and fro” of this evidence, I will endeavour to summarize the thrust of the opinions expressed. If I omit to refer to a particular point made by one of the experts, that should not be taken as a lack of awareness of or failure to consider that point. I have carefully read and considered the reports and evidence of the experts.

[78] In addition to Rochon, the plaintiff retained James Benya, a lighting designer and engineer to provide opinion evidence as to the extent to which the light industry (of which the Acuity defendants were part) knew of the risk of explosion/rupture of metal halide lamps. In that context, Mr. Benya was asked to opine:

1. Whether there was a design defect in the open luminaire light fixtures manufactured by the Acuity defendants;
2. Whether that defect created a substantial likelihood of harm. If so, the nature of the harm and extent of the likelihood;
3. Whether there was an alternative design that could have been used that was both safer and economically feasible to manufacture;
4. Whether the utility of the design chosen outweighed the foreseeable risks associated with that design;
5. Whether the light fixtures installed were inherently dangerous and, if so, how;
6. Whether the inherent dangers were known to the lighting industry at the time the light fixtures were installed and whether the Acuity defendants ought to have known of those inherent dangers; and
7. As to which metal halide lamps must be used only in suitably enclosed luminaires and which metal halide lamps may be used in open luminaires.

[79] I pause at this point to note that this motion was scheduled for argument before Mr. Benya was engaged as an expert. A case conference was held at the request of plaintiff’s counsel and directions were issued which permitted the plaintiff to broaden the scope of the expert evidence for the motion so as to respond to issues raised by the Acuity defendants in their factum. Mr. Benya was retained, provided his opinion and two of the three Acuity experts responded to Mr. Benya’s report.

[80] It is unnecessary for me to review in detail the evidence provided by Mr. Benya or the responding evidence of the Acuity defendants’ experts because I am satisfied that there is a genuine issue requiring a trial on issues related to product liability including design defect, inherent danger and the duty to warn, and I am not satisfied that it is in the interest of justice for me to use the powers available under r. 20.04(2.1) or (2.2) to determine these issues without a trial. Those issues are best addressed through a trial. I do not have sufficient confidence that a full appreciation of the issues can be obtained from the evidence on this motion as it relates to these issues.

[81] Before I turn to the substance of the expert evidence as to the cause of the fire, I must first address an issue raised by the plaintiff concerning the admissibility of and/or weight to be given to the defendants’ experts’ evidence. In its factum on this motion, the plaintiff raised for the first time a number of challenges to the expert evidence of the defendants’ experts including lack of partiality and lack of qualification. The factum is rife with assertions of “advocacy”, “not qualified to opine”, “bald assertion” and “unnecessary” among others.

[82] It is difficult to understand why plaintiff’s counsel waited until argument of the summary judgment motion to raise these issues when there was an opportunity to fully address them earlier at the same time as the motion brought by the Acuity defendants to exclude the evidence of Rochon for various reasons including alleged bias and conflict of interest. That motion was heard and a decision released (see 2017 ONSC 23).

[83] In its factum the plaintiff devotes five full pages to these challenges. I have carefully considered them and conclude that they are utterly without merit. There is no question that experts on each side took umbrage at statements made by the other which were critical of the approach or opinions expressed. Experts are entitled to disagree and to explain why they disagree. The plaintiff’s expert, Rochon, was full measure for his part.

[84] Further, I reject the arguments by plaintiff’s counsel that the defendants’ experts strayed from their mandates or improperly weighed evidence, made credibility findings or made findings of fact rather than give statements of opinion. Frankly, plaintiff’s counsel misapprehends what the experts did, their roles and what they are permitted to do in coming to an opinion. Experts interpret information in order to come to a conclusion. In doing so, they may gather facts and place reliance and weight on those which they feel are most relevant to the issues with which they are dealing. An expert can discount facts which he sees as improbable or irrelevant in the course of formulating an opinion.

[85] I am satisfied that the defendants’ experts were qualified by their education, training and experience to opine on the matters expressed in their reports. I observe parenthetically that plaintiff’s counsel devoted little or no time to questions about their qualifications when cross-examining these experts. There is no issue that the other Mohan factors are satisfied for these experts.

[86] The plaintiff’s submissions on this issue, coming when and as formulated, are ill-conceived.

[87] The defendants’ expert evidence is admissible.

[88] I turn now to the causation issue and the substance of the evidence of the experts.

Acuity Experts

[89] The experts for Acuity are:

1. Matthews, an electrical engineer with many years of experience in electrical design and analysis;
2. T. Steven Wright (“Wright”), a certified fire and explosion investigator with many years of experience in fire investigations; and
3. David W. Powell (“Powell”), a forensic fire examiner, who examines and analyzes fire damaged materials.

[90] In broad strokes, the Acuity experts opine that:

1. NFPA 921 sets out the methodology that should be used to investigate the origin and cause of a fire. It is the accepted standard which applies the scientific method to fire investigations.
2. NFPA 921 was not followed by those investigating the origin and cause of the fire before the site was cleared. As a result, the Acuity defendants were deprived of the opportunity to collect and preserve evidence, and evidence was permanently destroyed or lost when the site was cleared.
3. The fire investigation conducted by Rudenko was incomplete and failed to use appropriate techniques to ensure the collection and preservation of evidence.
4. There is insufficient evidence to conclude that a light fixture or lamp caused the fire.
5. If the lamp located above the Tolbert boat ruptured, one would expect to find fragments of the arc tube from that lamp in the debris where the Tolbert boat was stored. No such fragments were recovered.
6. The theory put forward by Rochon that the lamp which ruptured was located nearby the MG (not overtop the Tolbert boat) and the fire resulted from a fragment that was projected from the rupture that ricocheted up onto the tarp above the Tolbert boat is highly unlikely if not impossible. In any event, no arc tube fragment from any lamp was recovered in the debris of the Tolbert boat.
7. Rochon’s theory of causation suffers from confirmation bias: he started with the result he wanted, i.e the fire was caused by a lamp rupture, and used the limited available evidence to get to that result. In doing so, he changed his theories, conveniently ignored facts and physics, and ignored the shortcomings in the evidence gathered.
8. The single piece of quartz (a fragment from an arc tube) found in the area of the back seat of the MG is insufficient to determine whether the arc tube ruptured while in use or upon collapse of the building and/or during fire suppression efforts.
9. There were other credible sources of ignition that may have caused the fire which were not investigated and which cannot be eliminated because the site was prematurely cleared before the origin and cause investigation was completed.

[91] Exhibit 2 includes part of the metal halide bulb, albeit without an arc tube, in a deformed shape. Part of the borosilicate glass is still attached. That glass is darkened. Rochon opines that the darkening of the glass occurred in situ – after the arc tube ruptured and fire started while the luminaire still hung from the beam. He indicates that the darkened glass is smoke or soot which has become infused into the glass as it softened from the heat of the fire nearby. In his opinion, that physical evidence corroborates his theory that the arc tube in the light over the MG ruptured and caused the fire on the Tolbert boat.

[92] The Acuity experts reject that opinion as scientifically impossible, at worst, and pure conjecture, at best. They note that the luminaire was suspended from the beam above the MG by an aluminum handle. The melting temperature of aluminum is lower than the temperature at which the glass would melt to infuse smoke. Thus, the aluminum handle would have melted and the luminaire would fall before smoke could infuse the glass.

[93] In addition, the Acuity experts indicate that the temperature at which the glass would melt to permit smoke to infuse is much higher than the temperature at which soot clear burns. In other words, the temperature needed to melt the glass would have already burned away any soot. Therefore, the more likely scenario is the luminaire with the bulb fell into the back of the MG which is where the glass melted. The shape of the melted glass supports that theory.

[94] Powell further opines that as an arc tube is used and ages, it will cause the outer glass to darken. This darkening happens gradually from the repetitive warming up of the lights when turned on. He relies on a peer reviewed article for this opinion.

Plaintiff’s Expert

[95] Rochon is an experienced fire investigator. He rejects the opinions expressed by the defendants’ experts and opines that:

1. There were two lights in close proximity to the Tolbert boat: one nearly directly overhead and another above the MG. The latter light suffered a non-passive arc failure, viz. the arc tube exploded, which caused very hot fragments of quartz to be violently dispersed.
2. One of the fragments likely ricocheted and ended up atop the plastic tarp above the Tolbert boat where it ignited that tarp.
3. The fragment found in the back seat of the MG and the remains of the halide lamp found in the MG are consistent with the explosion of the lamp; in particular, the borosilicate glass has soot or smoke infused in the glass which would only have occurred if the bulb ruptured and the light fixture was still in place suspended from the ceiling during the fire. It cannot be attributed to soot from the debris in the remains of the car.
4. There is sufficient information from the available witnesses and the items retrieved in March, 2012 to ascertain the cause of the fire through the application of applicable scientific principles.
5. Alternate potential sources of ignition including the boat’s DC and AC system were eliminated. The Tolbert boat was not connected to shore power while in storage and its batteries were disconnected. It is unlikely that there were any fuel or lubricants stored on top of the bimini of the boat. It is unlikely that the electrical system in the building caused the fire based on his examination of what remains were found.

[96] With respect to the aluminum handle, Plaintiff’s counsel submits that the handle may well have been an aluminum alloy, in which case its melting temperature may be higher than the temperature at which glass melts or softens.

[97] I note that because the area of the Tolbert boat was not fully examined, investigated and the site cleared, there are no fragments of quartz found in that location to confirm his theory. The estimated heat of the fire did not exceed the temperature at which the quartz would be destroyed. If the arc tube from the lamp near to the MG exploded and a piece of quartz from that arc tube landed directly or by ricochet atop the bimini of the Tolbert boat, that piece of quartz may well have been in the debris in the area of the Tolbert boat. That important piece of potentially confirmatory evidence is lost.

[98] Likewise, the premature clearance of the site destroyed any remaining evidence of other potential sources of ignition.

Law: Summary Judgment

[99] Summary judgment motions are governed by r. 20.04 of the Rules of Civil Procedure which states:

“(2) The court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;… (2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.”

[100] The leading case on summary judgment is Hryniak v. Mauldin, 2014 SCC 7. At para. 66, Karakatsanis J. for the court wrote:

“On the motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.”

[101] Thus, the judge hearing the summary judgment motion must ask:

1. On the basis of the evidentiary record alone, are there genuine issues that require a trial?
2. Does the evidentiary record provide the evidence needed to “fairly and justly adjudicate the dispute”?

[102] In Hryniak, the test for summary judgment was stated at para. 49 as follows:

“There 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.”

[103] The onus of establishing that there is no genuine issue requiring a trial rests on the moving party. Where the moving party establishes that there is no genuine issue requiring a trial, the onus shifts to the responding party to establish that there is a genuine issue requiring a trial: Sweda Farms Ltd. v. L.H. Gray & Son Ltd., 2014 CarswellOnt 11926 (ON CA) at para. 26; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC CarswellOnt 913 at para. 12.

[104] A responding party must set out in affidavit material or other evidence the specific facts that establish that there is a genuine issue requiring a trial. The responding party cannot rest on mere denials of allegations of a party’s pleading: Sweda, para. 27. It is not enough to allude to evidence that may be adduced in the future.

[105] The judge hearing the motion must:

1. Determine the motion on the pleadings and evidence actually before the court on the motion. The judge is entitled to assume that the record contains all the evidence that would be adduced at trial; and
2. Take a hard look at the evidence and the merits of the action at this preliminary stage: Sweda, paras. 26-28.

Stage One: Genuine Issue Requiring a Trial

[106] Looking only at the evidentiary record without use of the expanded powers in r. 20.04(2.1), I find first that there is a genuine issue requiring a trial on the issue of causation on the evidence before me. As can be seen above, this is a case with conflicting expert evidence as to the cause of the fire; in particular, whether any specific cause can be determined or ascertained and whether this fire was caused by the rupture of an arc tube from one of the lights near the Tolbert boat. There are material facts in dispute, not least of which is the effect of the removal of the debris from the site before the origin and cause investigation was completed.

[107] This is not a case where I can say on the evidentiary record alone, without weighing evidence, the plaintiff cannot succeed at trial.

[108] I turn now to whether I am satisfied that I can make a fair and just determination on the merits if I use the powers in r. 20.04(2.1) and whether it is appropriate that I do so.

Stage Two: Use of Expanded Powers

[109] The plaintiff sought directions soon after the summary judgment motion was brought for the purpose of staying the motion indefinitely or at least until after documentary and oral discovery were complete. At the time, I was persuaded that the motion should proceed and gave directions accordingly. The Rules contemplate that a summary judgment motion can be brought as soon as pleadings are closed, and the issues appeared discrete. The plaintiff did not seek leave to appeal that direction.

[110] In argument of this motion, the plaintiff submits that the lack of documentary and oral discovery should militate against the use of the expanded powers under r. 20.04(2.1). I do not doubt that there are cases where that consideration will attract significant weight; however, I note that:

1. There is no suggestion that anyone from the defendants had any direct knowledge or information about this warehouse or the fire. On an examination for discovery, the plaintiff would at most be able to ask for the defendants’ knowledge, information and belief as to what caused the fire and why the defendants assert the lights were not the cause of the fire;
2. The defendants have presented multiple expert reports which explain in detail why they conclude that the cause of the fire cannot be ascertained and why one cannot accept the plaintiff’s theory of causation;
3. The plaintiff have had a full opportunity to cross-examine each expert, something they would not have through oral discovery;
4. It is undisputed that a ruptured arc tube can cause a fire when a hot fragment comes in contact with flammable material. The issue here is whether the plaintiff can prove on a balance of probabilities that that is what happened on December 20, 2011 to cause the fire given the lack of a completed origin and cause investigation, the failure to follow NFPA 921 and the premature clean-up of the site – all matters entirely within the plaintiff’s control after the fire;
5. There is at most a vague suggestion that something may come from the defendants’ documentary production that will assist the plaintiff on this issue but it is no more than a vague suggestion. The plaintiff could have asked for production of specific documents or categories of documents or brought a motion for same within the summary judgment proceeding, but did not; and
6. The parties have put before me the evidence of Mr. Goethals, the only person to see the fire in the warehouse soon after it started, the evidence of Mr. Coopman the principal of the plaintiff, and the OFM report of Mr. Dow. This fire occurred more than five years ago. Presumably, if there are other relevant fact witnesses, that evidence is known and could have been adduced on this motion.

[111] The core issue raised by this motion is what caused this fire; to be more precise, did the lights (fixture and/or bulb) cause the fire. If the cause of the fire cannot be determined on a balance of probabilities or it is unlikely that the lights caused the fire, then it matters not a whit whether the defendants manufactured a defective product or an inherently dangerous one. By the same token, if the lights were not the cause of the fire, the claims against the supplier, installer, and approving body are likewise incapable of success. It will not matter that an open luminaire was installed, whether adequate warnings were provided, whether the electrical inspection of the light system was properly performed. Those issues are moot if the plaintiff cannot prove that the lights caused the fire.

[112] The plaintiff’s claim raises a myriad of standard of care and other liability issues, together with an undoubtedly challenging damages assessment given the number of boats and vehicles stored. The plaintiff claims damages of $19 million. Discoveries will be lengthy and expensive. Expert reports on the other liability and damages issues will be needed which will add to the expense for all parties including the plaintiff.

[113] In this case, the determination of causation is not inextricably intertwined with determination of the other liability issues. It strikes me as a severable and distinct factual determination which does not depend, for example, on whether an open luminaire was an appropriate light fixture for the warehouse, whether adequate or any warnings were given, whether it was properly inspected, whether it was properly maintained, to say nothing of the contributory claims related to the lack of a fire suppression system etc..

[114] The plaintiff bears the burden of proof in a fire loss case, the same as any other negligence claim. That includes proof of causation. In Everatt v. Elgin Electric Ltd., [1973] 3 O.R.691 (Ont. H.C.), (cited with approval in Taylor v. West, 2016 BCSC 18211 at para. 158), Lerner J. wrote at pp. 697-698:

“In actions for damage occasioned by fire, it is often difficult to prove the origin of the fire and to connect the acts, actions or conduct of a defendant or defendants with the resulting damage to the plaintiff’s property. There must be evidence from which it can be fairly inferred, not simply guessed, that the damage caused by the fire was the result of the defendant’s conduct. If on a review of the evidence, the cause of the fire remains a mystery, then the plaintiff has not satisfied the burden of proof upon him and the action must fail.

While it is not necessary that the plaintiff demonstrate his case, nevertheless he must satisfy the Court on a balance of a preponderance of credible evidence that the fire was the result of the negligence of the defendant. Failing direct evidence the plaintiff must adduce evidence to permit a reasonable inference to be drawn as to the cause of the fire and to exclude any other fair inferences….”

[115] In Cromie v. Fry, 1999 CarswellOnt 3438 (S.C.J.), Reilly J. stated at para. 16:

“The task of establishing the origin and cause of fires may fairly be said to hold a special place in the law relating to negligence. That is because the best evidence as to origin and cause is so often destroyed or rendered less reliable by the fire itself. “Possible” causes may not be established as “probable” causes simply because the evidence has been destroyed. The Court must still carefully examine the available evidence and do its best to determine whether such evidence permits an inference, on a balance of probabilities, as to the cause of the fire. As in every case, mere speculation and conjecture are impermissible, absent an evidentiary base. However the Court must be mindful of the unenviable position of the defendant, who may be left in the position, as a result of the fire, of being unable to demonstrate other probable causes of the fire. The Court should not “seize upon” a remaining “possible” cause as the “probable” cause simply because the evidence of other “possible” causes has been destroyed.”

[116] The Acuity defendants urge me to use the expanded powers in r. 20.04(2.1) to make the following findings:

1. The origin and cause investigation was suspended by the plaintiff in March, 2011 to permit the plaintiff to identify the manufacturers of the light fixture and bulb;
2. The intention of the suspension of the investigation and the requirement of NFPA 921 was to put the manufacturers on notice so they could participate in the investigation;
3. That notice was never given by the plaintiff; rather, counsel for an owner of one of the boats destroyed by the fire gave notice to the Acuity defendants after the plaintiff caused the scene of the fire to be destroyed;
4. If the Acuity defendants had received notice, they would have sifted and sluiced to find as many fragments of the quartz from the arc tube and pieces of the light fixtures as possible;
5. The Acuity defendants would have undertaken a thorough review of all potential sources of ignition;
6. Neither the OFM nor the plaintiff, when it controlled the scene, ruled out other credible potential sources of ignition. Put another way, because the investigation was incomplete, the plaintiff did not credibly rule out other potential sources of ignition;
7. Fragments of quartz from the arc tube would not have been destroyed by the fire and should have and would have been found if a full and thorough origin and cause investigation had been done;
8. There is no physical or credible evidence that there was an arc tube rupture;
9. It is undisputed/conceded by the plaintiff that the light approximately 5’ above the Tolbert boat was not the cause of the fire; and
10. No inferences favourable to the plaintiff should be drawn as to the cause of the fire because it had control of the site, and there was evidence that could have and should have been preserved but was lost when the plaintiff caused the site to be cleared. Any inferences drawn should be adverse to the plaintiff.

[117] There were other findings requested but they relate to other liability issues which I have already concluded require a trial for determination.

[118] If I make these findings as requested, the Acuity defendants assert that there is no genuine issue requiring a trial because the plaintiff cannot succeed in proving a causal link between the fire and the lights in the warehouse. Rochon’s theory of causation is mere speculation and rises no higher than a “possibility”. No reasonable inference as to the probable cause of the fire can be made from the evidence available at this stage.

[119] Summary judgment motions are sometimes referred to as “a trial in a box” – in this case, boxes. The volume of material here is daunting and the complexity of some of the expert evidence is difficult to fully appreciate even with the able assistance of counsel in argument. For example, there was much argument focusing on the smoke infused borosilicate glass in Exhibit 2 and whether that confirms a non-passive arc failure (rupture) or can be explained otherwise. Similarly, an open luminaire has a partial shield or cap at the top of the light. The evidence as to how that cap would limit the angle that any fragment could travel and how that affected the likelihood of Rochon’s theory of causation is difficult to assess without additional expert assistance and perhaps more facts. How can the ricochet theory be weighed without a better understanding of the distances involved and the layout of the stored goods near to the Tolbert boat?

[120] In addition, there are other gaps in the evidence that underscore the challenge of determining the issues raised herein. For example, I do not have a clear sense of the extent to which the area of the Tolbert boat was actually investigated. How much more was necessary to say that area was fully searched? What is the likelihood that more arc tube fragments, if there was a rupture in the manner Rochon opines, could have been located given the fire suppression of that area?

[121] There are other smaller factual gaps that trouble me. For example, Goethals was never asked if he saw whether either or both of the two lights by or near the Tolbert boat were illuminated when he saw the fire and left the building. Were those lights part of the banks of lights he turned on when he entered that morning?

[122] As mentioned, Mr. Dow’s report is before me but Mr. Dow did not provide an affidavit, nor was he examined under oath. The report contains hearsay – what persons 1, 2 and 3 told him. It sets out facts that he observed, for example the fire suppression activities. It expresses opinions and references published materials. If Mr. Dow and/or another of the experts were to testify at a trial, the shortcomings in proof and issues of admissibility could be addressed.

[123] Although I am entitled to assume that all relevant and available evidence that would have been adduced at trial is before me, it is clear that is not the case. For example, Mr. Tolbert presumably knows what was on his boat and in what condition it was left when stored. What electric systems were on the boat and were they operational? The same may apply to the MG and its owner.

[124] It should not be taken that I require a perfectly complete evidentiary picture, if such picture can ever exist. Even at trial, it is not uncommon that there are gaps in the evidence. In this case, however, I am in a position where I do not feel that it would be fair or appropriate to exercise my discretion to use the expanded powers to make findings solely on the existing evidentiary record in these circumstances. Without more, there are genuine issues which require a trial.

Stage 3: Direct Oral Evidence?

[125] I turn now to whether it is appropriate to direct that oral evidence be adduced to address the above concerns as permitted by r. 20.04(2.2) in order that the expanded powers be used. Counsel for Acuity defendants referred to this course as a “mini-trial”. I do not agree with that moniker in this case. The subrule contemplates that the motions judge may require additional evidence to supplement that before him before using the expanded powers in subrule (2.1). The hearing may be a full-blown trial of an issue, but need not be.

[126] In my view, it is appropriate to direct that oral evidence be adduced for the following reasons:

1. There is already a significant factual and expert evidentiary base;
2. Some of the evidence needed is in the nature of clarification of the sort a judge at trial might ask of a witness who has testified before they leave the box;
3. With this limited additional evidence, I may well be in a position to use the expanded powers in subrule (2.1) to determine the causation issue;
4. Depending on the outcome, the determination of the causation issue may short-circuit what will otherwise be a lengthy and expensive proceeding;
5. This will be an efficient use of judicial resources as it may avoid the need for another judge to hear and consider the same evidence;
6. At a minimum, with the additional oral evidence I will be better equipped to make findings of fact that will bind the parties as they move forward in the action as permitted by r. 20.05;
7. The additional evidence required will be limited and focused – not a repetition of that already before the court; and
8. As I have indicated, the causation issue expressed above is a discrete and severable issue from the other liability and damages issues.

[127] I do not foreclose the possibility that even with this additional evidence, I may find that there are genuine issues requiring a trial. However, as indicated, r. 20.05 permits a broad range of orders that can be made with a view to streamlining the litigation moving forward. I note that I am appointed the case management judge for this action and companion litigation which again should facilitate efficient progress.

[128] The Acuity defendants invite me to find that the failure to comply with NFPA 921, the failure to complete the origin and cause investigation before the site was cleared, the alleged inadequacies in how the March 2012 site visit was conducted, and most especially, the clearing of the site in April 2012 is fatal to the plaintiff’s ability to meet its burden of proof. Simply put, the Acuity defendants say those shortcomings completely undermine any ability of any expert to determine the cause of the fire. Even if it could be said that the lighting may be a source of the ignition, whether that is probable is tenuous.

[129] Further, the defendants urge that these deficiencies prevent any expert from ruling out other credible sources of ignition, which the plaintiff must do to permit an inference to be drawn as to the cause of the fire. This is not a case where a full and complete origin and cause investigation was done in the defendants’ absence with the evidence preserved for later review. Rather, the Acuity defendants say that potential evidence has been destroyed. They are prejudiced in defending the plaintiff’s claim. The plaintiff offers no good explanation for its decision to clear the site when it did.

[130] These arguments are duly noted and might ultimately carry the day when the additional information from the oral evidence is in hand. I am not prepared to decide the merits of that position when I feel that some further information may affect that determination (see para. 119 above for example).

[131] If this motion for summary judgment is denied and this action proceeds to trial, it will take weeks given the many issues involved and the number of parties. Hryniak encourages judges of first instance to use the tools at our disposal to provide summary justice when and where we can reasonably and fairly do so. A modest investment of time and evidence at this stage may provide significant benefit to the parties in the longer term.

Conclusion

[132] I conclude as follows:

1. It is appropriate and necessary to a determination of the summary judgment motion that additional oral evidence be adduced;
2. A case conference will be held for the purpose of delimiting what evidence is the be adduced and the witnesses to be examined having regard to my concerns expressed above;
3. Counsel will advise in writing in advance of the case conference what evidence they propose be called to deal with issues I have raised;
4. I will provide further direction at or following the case conference; and
5. The further evidence will be heard on an expedited basis.

The Honourable Justice R. Raikes

Released: June 22, 2017