Ali v. Ottawa (City), 2017 ONSC 739

CITATION: Ali v. Ottawa (City), 2017 ONSC 739

COURT FILE NO.: CV-10-48082

DATE: 2017/01/31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Abdi Ali and Fatuma Hersi, Plaintiffs

AND

The City of Ottawa, The Ottawa Fire Department, Ottawa Community Housing, Ottawa Police Service, Defendants

BEFORE: Justice C. MacLeod

COUNSEL: Martin Reesink, Counsel for the Plaintiffs (Responding Parties)

Pasquale Santini, Counsel for the Defendant Ottawa Community Housing (Moving Party)

HEARD: November 10, 2016

ENDORSEMENT

1This is a motion for summary judgment by the only remaining defendant in this action, Ottawa Community Housing.

2The action is brought by the parents of the late Khalid Ali. Khalid perished in a fire at their residential premises in March, 2008. The parties allege that the fire and the subsequent death of their son were caused by the negligence of their landlord, Ottawa Community Housing.

3There is no doubt about the magnitude of the tragedy. The question before the Court is whether or not the plaintiffs can succeed in proving liability on the part of this defendant and whether it is fair and just to decide that question on a summary judgment motion.

4For the reasons that follow, I have concluded that summary judgment is not appropriate but this action should not be permitted to drift along as it has. Given the age of the action and the evidentiary difficulties, the action should be put on a strict timetable and the plaintiffs should be required to meet specific milestones if they are serious about bringing it to trial.

5The plaintiffs have done a barely adequate job of responding to this motion but there is evidence that could persuade a trial judge and I am of the view that it would be unjust to attempt to decide the case on the present evidentiary record. The delay and the difficulty in marshalling the evidence may be excused to some extent by the involvement of other parties and by parallel litigation.

6In the wake of amendments to the summary judgment regime and the clear mandate from the Supreme Court of Canada to deliver timely and cost effective justice, much attention has been focused on the new powers granted to Ontario judges to decide the merits of an action without a trial. Plaintiffs must not lose sight of the fact that those new powers do not detract from the right of a defendant to seek summary judgment on the basis that there are no merits to be tried. There is no reason to weigh credibility if the plaintiff lacks sufficient evidence to establish critical facts or if the action cannot succeed as a matter of law.

7This rule functions within a system that imposes obligations on plaintiffs to marshal their evidence and move actions forward expeditiously. Plaintiffs who fail to do so within a reasonable timeframe may lose their rights. As I point out in these reasons, delay can also be a factor in determining whether summary judgment is appropriate.

Factual Background

8On March 31, 2008 the Ali children were in the living room of their home, which was a townhouse leased from the defendant public housing authority. A fire broke out. The surviving children told their parents and the authorities that the fire started in an electrical socket. Mrs. Ali was in the home but did not see the start of the fire and the only eyewitnesses to the origin of the fire were children who were at that time all under the age of 12. Mr. Ali was at work.

9The fire spread quickly producing heavy smoke and intense heat once the furniture caught fire. Apparently Mrs. Ali was able to get all of the children out of the house but the youngest child Khalid, who was 2½, re-entered the house for some reason. No one was able to prevent this or get to him and he perished of smoke inhalation.

10There was an investigation by the Office of the Fire Marshal. There were also statements taken by the police. There have been subsequent origin and cause reports prepared by independent experts.

11While the Fire Marshal ultimately classed the fire as “accidental”, the investigator from the Fire Marshal’s office at some point formed the view that the cause of the fire was the children playing with a lighter. This is strenuously denied by the plaintiffs and there is no objective evidence to support this theory other than the fact that a barbeque lighter was found in the wreckage of the living room.

12Litigation was commenced against the plaintiffs by the defendant. Of course that was in reality a subrogated action between the landlord’s insurer and the plaintiffs’ insurer. That other action was settled in February of 2013 without admission of liability.

13According to the evidence before me, the Marshal’s investigation and the parallel litigation made it difficult for the plaintiffs to retain an expert and for the expert to have access to material and other evidence necessary to provide an origin and cause report. In fact it was ultimately necessary to obtain orders under Rules 30.10 and 31.10 to compel release of information and to permit discovery of non-parties.

14Originally the plaintiffs had sued the City of Ottawa, The Ottawa Fire Department and Ottawa Police Service in addition to Ottawa Community Housing. Those parties were let out of the action in April of 2013.

15I note that there was a status hearing on September 12, 2012. That was under the former Rule 48.14 and it resulted in a timetable which was not met. The timetable had required the action to be set down for trial by June 30, 2013 though that date was subsequently extended.

16The defendant has not brought a motion to dismiss this action for delay under Rule 24 or for breach of a timetable under Rule 3.04(4); nor, because this motion is before the Court, has the registrar dismissed the action under the revised Rule 48.14. It is worth pointing out however that the action is now of an age that it should presumptively be subject to dismissal unless the plaintiffs take steps to bring it to a conclusion in a timely manner. The age of the action is a factor to be considered in determining what terms to impose.

The Nature of the Motion

17The defendant seeks summary judgment pursuant to Rule 20. I will address the rule from that standpoint. The analysis is somewhat different if a plaintiff is the moving party but that is not the case here.

18When the defendant is the moving party, the objective of the moving party is simply to convince the court that the plaintiff’s case cannot succeed. There are three ways to accomplish this. Firstly the defendant will be entitled to summary judgment if the defendant can persuade the court that there is no merit to the plaintiff’s claim. That will be the case if the plaintiff does not have the evidentiary basis to prove a crucial factual contention or if the case is one that cannot succeed as a matter of law. Secondly, the defendant may demonstrate that there is no genuine issue if there is a complete defence. This might be the case if the limitation period had expired before the action was begun or if a statute or other legal principle bars liability.

19Pursuant to the 2010 amendment of Rule 20, there is now a third possibility. Even if there is a genuine issue to be adjudicated the court has the power to determine questions of credibility on the affidavit evidence or affidavit evidence supplemented by a mini-trial in appropriate cases.¹ I have not been asked to exercise these new powers in this case and in any event I do not think it is appropriate. The motion turns on whether or not the plaintiff can prove its case and survive the application of a statutory defence.

20Rule 20.02 requires that a party responding to a summary judgment motion must “set out in affidavit material or other evidence specific facts showing that there is a genuine issue requiring a trial.” The court may draw a negative inference if the responding party fails to provide the direct evidence of a person having personal knowledge of contested facts. The effect of this rule is that a responding party must put its “best foot forward” and the court is entitled to presume that the evidence contained in the plaintiff’s affidavit material is the best that it has.

21Mr. Reesink asked the rhetorical question whether it was necessary for the plaintiff to prove its case to resist this motion even though the onus is on the moving party. The technical answer to that question is “no” in the sense that a plaintiff which is not itself asking for summary judgment need not persuade the court that it must succeed at trial. What the plaintiff must do to avoid summary judgment is to demonstrate on the evidentiary record before the motions court that the plaintiff has a reasonable prospect of success. To achieve this, the plaintiff must show that it has sufficient evidence for each necessary material fact so that a court could find in its favour on all of the key points. Since the motion judge is not being asked to grant judgment in favour of the plaintiff, it is not necessary that the judge be persuaded that a win by the plaintiff is inevitable but only to demonstrate that success is a genuine possibility.

22The distinction between demonstrating that a case has a genuine chance of success and actually proving the case is a fine one. The plaintiff must put its “best foot forward” and summary judgment will be granted if the plaintiff is unable to furnish evidence on any point that is a prerequisite to a finding of liability or compensable damages. This was the situation in Mehdi-Pour, cited by the defendant.² In that case the plaintiff could prove that the venting installed for a hot water heater did not meet the building code and it could prove that the plaintiff suffered from symptoms which might have been the result of carbon monoxide poisoning. It could not establish that the water heater was producing carbon monoxide or that there was a carbon monoxide buildup in the home and it could not demonstrate the absence of other potential causes of the medical symptoms. Thus on the fundamental question of cause and effect, the plaintiff had inadequate evidence to establish a genuine issue and the action was dismissed.

23The summary judgment rule does not exist to block parties from obtaining justice. To the contrary, the Supreme Court of Canada has described the role of summary judgment as a tool for making justice more accessible. That is because justice may be achieved without a trial in some instances.³ The pertinent question now or at trial is whether the plaintiffs can prove their case. If they cannot do so then there is no injustice in making the decision now and considerable injustice in forcing the parties to incur the additional cost, delay and hardship of undergoing a trial.

The Plaintiffs’ Evidence

24In response to the summary judgment motion, the plaintiffs have filed the following affidavit evidence:

a) The affidavit of Hawa Ali, sworn November 3, 2016. Hawa is now 18 but she was 9 at the time of the fire. It is her evidence that she plugged a charger into an electrical outlet and when she did so sparks and flames came out of another outlet which was the source of the fire. Hawa also deposes that although the investigator from the Fire Marshal’s office accused the children of playing with a lighter, none of the children were doing so and “no one lit anything with a lighter on the night in question.”

b) The affidavit of Abdi Ali, the father. He was not at home when the fire started but he deposes that there had been electrical problems in the home previously. He states that after the fire he attended at the home and though the electrical boxes had been removed, he could see that wires formerly attached to the electrical socket in question were black and bent.

c) The affidavit of Joel Turcotte, forensic engineer with CEP Forensic Engineering, attaching two expert reports. Mr. Turcotte had originally been retained by the plaintiffs’ insurer and then later, with the approval of the insurer, he was retained by Mr. Reesink on behalf of the plaintiffs. Mr. Turcotte deposes that he was initially denied access to the necessary electrical components and his investigation was hampered by the Office of the Fire Marshal. He indicates that certain crucial evidence relating to origin and spread of the fire had been disturbed or removed. Now that he has been able to examine the electrical socket in question he deposes that there are signs of sparking and arcing in the box which may have been caused by foreign objects such as cockroaches infiltrating the box. He deposes that the physical evidence available to him is consistent with the origin of the fire in the electrical box as described by Hawa but in the absence of the eyewitness account it would be impossible to determine objectively whether the fire started in the box or elsewhere in the living room.

d) Finally there is an affidavit of a law student attaching the police records and preliminary Fire Marshal reports from the time of the fire. It can be seen from those that Hawa told the police at the time that the fire started in the electrical outlet and that all of the family members who were interviewed at the time believed that to be the case.

The Motion

25The defendant’s motion for summary judgment does not seek to prove that the source of the fire was the barbeque lighter. The motion is based on two arguments. The first is the alleged inability of the plaintiffs to prove that the fire was due to electrical defects. The second is a statutory defence pursuant to the Fire Protection and Prevention Act, 1997.⁴

26I may deal with the statutory defence quite simply. Section 76 of the Act reads as follows:

No action for damages from accidental fire

76. No action shall be brought against any person in whose house or building or on whose land any fire accidentally begins, nor shall any recompense be made by that person for any damage suffered thereby; but no agreement between a landlord and tenant is defeated or made void by this Act. 1997, c. 4, s. 76.

27This section was re-enacted in 1997 but it has its origins in an 18th century English statute intended to end strict liability for loss occasioned when fire spread from one property to another. It is of broad application but it does not preclude liability for negligence or for breach of a landlord’s covenants under a lease. The Court of Appeal has interpreted the statute as precluding liability for fires of indeterminate origin.⁵ In the case at bar the plaintiffs must prove on a balance of probabilities that the fire was caused by the negligence of the defendant landlord. Specifically they must be able to prove that the fire originated in the electrical system and was due to maintenance failures. Thus if the plaintiffs can prove their case they will avoid the statutory bar and if they cannot they will be unsuccessful in any event.

28This is why origin and cause reports are crucial. It is not possible to win a fire loss case in Ontario unless the origin of the fire can be established and causally linked to a negligent act or omission on the part of the defendant. An origin and cause report is a crucial piece of the evidence but it does not stand alone. Nor is the Fire Marshal classification of “accidental” in any way determinative of the issue.

29I do not agree with the defendant that Mr. Turcotte’s report is inconclusive. Mr. Turcotte fairly concludes that the lighter found in the living room could have been a possible source of the fire if it had been used to ignite foreign material in the living room. He also concludes that the electrical socket appears to have been faulty and shows signs of electrical arcing. While he cannot objectively determine that the socket caused the fire because the fire scene was disturbed, he considers that the objective evidence is consistent with such a source. If Hawa’s evidence is believed (and she is the only eyewitness) then the electrical socket is the most likely source. There is no evidence before me on this motion by which I can conclude that anyone was playing with a lighter.

30I acknowledge that this is a very thin thread for the plaintiffs to hang their case upon. They are depending on the credibility and reliability of a witness who was nine years old at the time of an event that happened nine years ago. Nevertheless it is conceivable that the Turcotte opinion combined with that evidence would support the necessary finding of fact. I am therefore not prepared to grant summary judgment.

The Question of Delay

31There is an important caveat to the “best foot forwards” principle. Summary judgment should only be granted if it is fair to do so. There will be circumstances in which a plaintiff does not have evidence because the only evidence is in the hands of the defendant and the defendant has refused to produce it or perhaps for other reasons the motion is premature and it is unfair to have expected the plaintiff to fully develop the evidentiary record at the time of the motion.⁶ There may also be situations such as spoliation of evidence or a reverse onus in which a plaintiff without evidence could be successful because the trial court could draw an adverse inference.

32I mention this because plaintiff’s counsel asserts that he has been denied access to information. As I mentioned above, there is also mention in the expert report that the expert was hampered by spoliation or interference with evidence. Similar comments were made by the defendant’s expert. I have given some weight to these difficulties but in light of my conclusion that the evidence is sufficient to survive summary judgment, I have not examined it in detail. Nor did I hear extensive argument on the point but it seems to me there is an important countervailing principle and that is the requirement upon a plaintiff as dominus litis to use the tools at its disposal to obtain the necessary evidence. To use an example, the plaintiff complains that Mr. Santini advised his client not to answer important questions at the discovery. If that was so, then the onus is on the plaintiff to bring the necessary motion and to effectively demonstrate why the refusals were improper. The older the law suit, the less excuse there is for the plaintiff not to be ready for trial.

Civil Litigation and the Duties of a Plaintiff

33Civil justice exists to provide a mechanism by which individuals may hold other individuals and organizations to account. In Ontario an individual may sue when it appears he or she has suffered a loss that is compensable under the law. As outlined above, under the adversarial system, it is the duty of the plaintiff to prove his or her case and to bring it to conclusion within a reasonable period of time.

34Although the rules for dismissal for delay are not engaged by this motion, I mention them because it is important for context. A plaintiff may lose the right to sue even if the case has merit simply because the plaintiff has not acted with sufficient dispatch to enforce his or her rights. Some summary judgment motions are premature but it is much harder to make that argument if the plaintiff has not been diligent.

35While every citizen has the right to sue for an alleged wrong, that right is subject to certain duties and obligations. From this point of view, the legal framework for civil litigation in this province may be summarized as follows:

a. A person who has suffered a wrong has a limited period of time within which they may sue. For most matters that means suing within two years failing which they lose the right to sue.⁷

b. If the plaintiff’s pleading (statement of claim) does not disclose a legal cause of action or is otherwise deficient, the defendant may move to strike the claim and have the action dismissed.⁸ There is also a rule permitting immediate dismissal of frivolous claims on the court’s own initiative.⁹

c. After commencing an action, the plaintiff has five years to set the matter down for trial failing which the plaintiff must explain the delay and seek an extension or the action may be dismissed.¹⁰

d. A defendant may seek summary judgment pursuant to Rule 20. Under this rule, the court may dismiss the claim without a trial because the claim cannot succeed. This will be so if the plaintiff has no proper evidence to prove a material aspect of the claim or if there is a legal principle or statutory defence which prevents the claim from succeeding. In either case there is no point in conducting a trial because the case is legally without merit.¹¹

e. A defendant may also seek summary judgment under Rule 20 if there is a genuine issue to be determined by adjudication but it is reasonable and just for the court to determine the question on a paper record or on a paper record bolstered by a mini-trial.¹²

36It is here that time and delay will enter the equation. A plaintiff cannot complain that the motion is premature or blame other parties for its apparent inability to put its best foot forward if it has not taken advantage of the tools open to the plaintiff to compel production or has otherwise failed to move the matter forward in a timely fashion.

Rule 20.05

37I have not granted summary judgment but the alternative relief sought by the defendant is a series of directions under Rule 20.05. That subrule specifies that if summary judgment is refused, the court may make an order specifying the facts that are not in dispute and defining the issues to be tried and may then make an order for an expeditious trial. In making such an order, the court may also make a panoply of orders to ensure the matter proceeds expeditiously.¹³ In addition, Rule 37.13(1) provides that in disposing of any motion, the court may impose terms including expediting the trial. Finally of course the court has the jurisdiction to require that any action in this jurisdiction be case managed under Rule 77.

38Apart from the question of damages, liability in this case depends entirely on whether the plaintiffs can convince the court that the origin of the fire was the electrical system, that the system was faulty and, if so, that this was due to a failure on the part of the landlord to keep it in reasonably good repair. If the plaintiff requires access to further information or further expert reports, or intends to bring any further motions, they should be required to do this with reasonable dispatch.

39This action was commenced on March 26, 2010 and the fire took place two years before that. The parallel proceeding was resolved in 2013. Discoveries took place in 2013 and 2014. The plaintiffs were finally able to obtain an expert report from Mr. Turcotte in July of 2015. A motion for further productions was brought before Justice Beaudoin in December of 2015 but the plaintiffs were unable to justify the relief they were seeking. It is unclear what further steps have to be taken to bring this matter to resolution.

40Given the age of the action, an order under Rule 20.05 and a case management order are both appropriate.

41I will make an order defining the issues that are not in dispute and the issues to be tried. It appears to me that the facts set out in paras. 8 and 9 above are not in dispute but it would be useful for counsel to attempt to reach agreement on a more comprehensive list of admitted facts or alternatively to have recourse to requests to admit.

42It appears to me that the issues to be tried include the following:

a. The origin and cause of the fire and specifically whether the fire originated in the electrical system;

b. Whether the electrical system was faulty due to failure of the defendant to keep the premises in good repair as required by the lease and/or a negligent act or omission by agents of the defendant;

c. Whether there was contributory negligence on the part of the plaintiffs; and

d. Quantification of damages.

43Counsel shall have 30 days to consult and agree upon a more comprehensive list of admissions and issues to be tried. If they cannot reach agreement I will hear further submissions.

44Within the same timeframe, counsel shall seek agreement on a timetable to bring this matter to conclusion, on the use of the material already exchanged and on the mode of trial. I will hear further submissions if this cannot be accomplished.

45Within the same 30 days counsel are to consider the question of costs of this motion and if they cannot agree on costs I will hear those submissions.

46In the meantime, there will be an order extending the time for setting this action down for trial until December 31, 2017 and the deadline under Rule 48.14 is extended accordingly. I reserve the right to extend or abridge this date or to make an alternative order for an expedited trial.

47In any event Rule 77 will apply to this action and subject to further directions that may be given by me as set out above, the master at Ottawa is authorized to make any necessary orders, and to set timetables and deadlines as may be required.

Footnotes

1. 1Rule 20.04 (2.1) and (2.2)
2. 2Mehdi-Pour v. Minto Developments Inc., 2010 ONSC 5414 (Master); aff’d 2011 ONSC 3571 (Div. Ct.); leave to appeal refused Oct. 20, 2011 (M40188) (C.A.).
3. 3Hryniak v. Mauldin, 2014 SCC 7; [2014] 1 S.C.R. 87. See in particular para. 4.
4. 4S.O. 1997, c. 4, as amended.
5. 5Neff v. St. Catherine’s Marina Ltd. (1998), 37 O.R. (3d) 481 (C.A.)
6. 6For a summary of this principle, see McLelland v. Farquhar Plymouth Chrysler Ltd., 2013 ONSC 1216.
7. 7Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, s. 4.
8. 8Rules 21.01 (1)(b) and 25.11.
9. 9Rule 2.1.
10. 10Rules 48.14 and 24, Rules of Civil Procedure.
11. 11Rule 20, in particular subrules 20.02(2), 20.04(2)(a), and see Mehdi-Pour v. Minto, supra.
12. 12Rule 20.04(2.1) and (2.2) and see the decision of the Supreme Court of Canada in Hryniak.
13. 13Rule 20.05 (1) and (2).