COURT FILE NO.: CV-15-542390

DATE: 20210203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Preston Shorey and Stephanie Renee Shorey

Plaintiffs

– and –

SESCO DESIGN/BUILD INC., SESCO INTERIORS INC., MARIA DEL ROSARIO FRANCO, (a.k.a. MARIA DEL SOCORRO FRANCO) o/a VIDEZ ENTERPRISES, VIDEZ ENTERPRISES, UMBERTO BENA VIDEZ, JOHN DOE and JOHN DOE CORPORATION

Defendants

R. Datt, and M. Nadeau, for the Plaintiffs

J. Lin, M. Prise, and E. Wilson, for the Defendants, Sesco Design/Build Inc. and Sesco Interiors Inc.

L. Levine, for the Defendants, Maria Del Rosario Franco, (a.k.a. Maria Del Socorro Franco) o/a Videz Enterprises, Videz Enterprises, and Umberto Benavidez

HEARD: March 2, 9, 10, 11, 12, 13, November 23, 24, 25, 26, and December 15, 2020

O’BRIEN, J.

REASONS FOR JUDGMENT

Overview

[1] In the early hours of December 15, 2013, a fire occurred at the home of the Plaintiffs, Preston and Stephanie Shorey, causing substantial damage. Thankfully, the house was empty at the time; it had been undergoing renovations and the Shorey family was living in a rental home nearby. The question in this action is whether the origin and cause of the fire can be proven. The Plaintiffs allege that the fire originated in the living room and was caused by the spontaneous combustion of stain-soaked rags left by the Defendant painter, Humberto Benavidez, who had been staining the basement stairs the day before. They hold the Defendant general contractor, Sesco Design Build Inc. (“Sesco”), vicariously liable for what they view to be the painting subcontractor’s negligence. The Defendants deny that the fire was caused by the painter’s actions and take the position that the cause of the fire is undetermined.

[2] The Shorey home was located at 56 King Georges Road, Toronto. In 2013, the Shoreys hired Sesco to renovate parts of the house. The renovation included construction of a main floor addition and other improvements. Sesco retained a number of subcontractors, including Mr. Benavidez, who was working for the Defendant company, Videz Enterprises. There is no dispute that if Mr. Benavidez and Videz Enterprises were to be found liable, Sesco would be vicariously liable for their negligence. The Plaintiff, Mr. Shorey is a mechanical engineer with expertise in HVAC. He hired the HVAC and plumbing sub-contractors directly for the renovations.

[3] By December 14, 2013, the day before the fire, the renovations on the house were almost complete. Mr. Benavidez attended at the house on that day to stain the basement stairs. Mr. Benavidez left cans of paint in the centre of the living room. The Plaintiffs allege that he also left a stain can, with stain-soaked rags inside, in the living room. Mr. Benavidez agrees he left the stain can and brush but denies leaving any stain-soaked rags.

[4] Shortly after 5:00 a.m. the following morning, December 15, 2013, the heat sensors in the house were activated. Several trucks of firefighters were dispatched to the scene and ultimately extinguished the fire, which caused significant damage to the home. After the fire, the Shoreys decided not to keep the home. They sold the property in August 2014 and bought a new house in the same neighbourhood.

[5] The Plaintiffs hired an expert fire investigator, Stephen Hawken, to attend at the scene of the fire and provide an opinion on the origin and cause of the fire. Mr. Hawken’s view is that the fire likely was caused by spontaneous heating of floor staining materials used on the day prior to the fire and left in the living room.

[6] The Defendants called two fire investigators as witnesses. The first was Jeff Post, a fire investigator with the Office of the Fire Marshal, who attended at the home on the day of the fire. He was not able to complete his investigation as to the cause of the fire but did arrive at the view that the fire likely originated in the basement ceiling above the utility room. The Defendants’ second fire investigator was Dennis Turriff, who did not attend at the scene of the fire but reviewed the photographs and evidence of other investigators. He found the cause of the fire to be undetermined.

[7] The central issue in this action is whether the cause of the fire has been proven. The Plaintiffs submit that the fire originated in the northwest portion of the main storey living room, at or within the floor structure. Their position is that it was caused by spontaneous heating of floor stainer left there the day before. The Plaintiffs submit that I should accept the evidence of their expert witness, Mr. Hawken, as he has more experience than the Defendants’ expert, Dr. Turriff, and he had the opportunity to examine the scene of the fire, whereas Dr. Turriff did not.

[8] The Defendants’ position is that the origin of the fire was at or within the floor of the living room, but also extending through a wall and over the landing of the basement stairs, above the utility room. The Defendants rely on the opinions of Dr. Turriff and Mr. Post, and point to the evidence of witnesses who arrived first at the scene and saw smoke from the door at the top of the basement stairs, but did not see fire in the living room. They also rely on the evidence of Mr. Benavidez that he did not leave any stain-soaked rags in the living room.

[9] The Plaintiffs raise an additional issue, which is that I should draw an adverse inference regarding Sesco’s failure to call another fire investigator, James Page of Rochon Engineering, as a witness. Mr. Page attended at the home for the destructive fire examination on January 6, 2014. He was retained by Sesco’s insurer, Intact. However, Sesco’s position is that Intact retained Mr. Page to represent other insureds at the destructive examination, not Sesco. They submit that he was not in their exclusive control and no adverse inference should be drawn.

Issues

[10] The issues for me to determine are:

1. Has the cause of the fire been proven?
2. In determining the cause of the fire, should an adverse inference be drawn against Sesco for the failure to call Mr. Page as a witness? and
3. If the Defendants are liable for causing the fire, what are the Plaintiffs’ damages?

[11] For the reasons that follow, I find that the cause of the fire has not been proven. I accept the evidence of Mr. Benavidez that he did not leave any stain-soaked rags in the house on the day before the fire. I also rely on the observations of the first firefighters on the scene and of Sesco’s witness, Nick De Francesco, which suggest that the fire did not originate in the living room. There is another potential cause of the fire, electrical arcing, although I cannot conclude that the fire was likely caused by electrical arcing either. Finally, I do not draw an adverse inference against Sesco for the failure to call Mr. Page as a witness.

[12] In the event that I am wrong and the Defendants should be found liable for the fire, I have assessed the Plaintiffs’ damages to be $1,348,939.91, as further detailed below.

Origin and cause of fire

[13] The appropriate methodology for a fire investigation requires that the investigator first establish the origin of the fire and then investigate possible causes of ignition within the area of origin.

[14] The parties do not have a significant dispute with respect to origin. The photographs and diagrams of the fire show a hole in the northwest corner of the living room floor that extends through the wall and to the landing at the top of the basement stairs. All parties agree that the origin of the fire was at or within the living room floor, although the Defendants also describe the point of origin as extending through the wall of the living room and above the basement stairs and utility room. Although Mr. Hawken did not describe the origin as including the other side of the wall, his origin was part of the same hole as pointed to by the Defendants.

[15] With respect to cause, the Plaintiffs must show on a balance of probabilities that “but for” the Defendants’ negligence, the damage would not have occurred. The test must be applied in a robust, common-sense fashion. Causation need not be determined with scientific precision: see Clements v. Clements, 2012 SCC 32, at paras. 8, 9, 38 and 49.

[16] In my view, the Plaintiffs have not proven on a balance of probabilities that the Defendants’ negligence caused the fire. I do not accept that the fire was caused by the spontaneous combustion of stain-soaked rags for several reasons. The first is that the Plaintiffs’ theory relies on a finding that stain-soaked rags were left in the house. I am not persuaded that this occurred.

A. No stain-soaked rags in the house

[17] Mr. Hawken’s conclusion that the fire likely was caused by the spontaneous combustion of rags is based primarily on the fact that a can of stain was found in the living room after the fire. The stain contained linseed oil, a compound that allows the stain to self-heat. The can had a “flammable” pictogram on it and its safety data sheet provides a warning of spontaneous combustion from rags and other materials soaked in linseed oil. Mr. Hawken also performed an experiment with the stain which, in his view, confirmed its ability to self-heat. The Defendants take issue with the design of the experiment and any conclusions drawn from it. I do not need to make any determinations with respect to Mr. Hawken’s experiment in view of my overall findings. Nonetheless, it was not disputed that the stain had self-heating properties.

[18] However, apart from the presence of the can, Mr. Hawken did not find any specific evidence of rags soaked in stain at the scene of the fire. The Plaintiffs point to photographs of the home showing rags that had been left in various places, including with the paint cans, but I do not find a connection between these rags and rags used to apply stain. There is no evidence of any stain-soaked rags left at the house. The Plaintiffs submit that, had the rags ignited and been consumed by the fire, they would not be found. I accept this to be likely, but nonetheless, there is no direct evidence of rags spontaneously combusting and causing the fire. Mr. Hawken’s evidence was that the burnt rags he found at the scene did not have any remnants of stain on them.

[19] The only other piece of evidence connecting the fire to the spontaneous combustion of rags was the remains of a lid and rim that had sat at the top of a plastic can. The plastic was melted. The Plaintiffs submit that the plastic can must have been located at a source of heat sufficient to consume the plastic. Mr. Hawken opined that there was more oxidation on the underside of the can than the top side, which he said was consistent with materials burning inside the can. In other words, this might have been a can in which stain-soaked rags were left, which then spontaneously combusted from inside the can.

[20] However, there are several pieces of evidence that undermine this theory. The first is that the lid and pieces of the can were found in the living room well away from the hole in the northwest corner. Second, the Defendants’ expert, Dr. Turriff, notes that the lid of the can showed more fire damage along the external periphery than at the centre, suggesting that it suffered external fire damage, rather than damage from a fire started within the can. Dr. Turriff suggests that the can could have been burned by pieces of the burning wall falling into the room. Finally, Dr. Turriff physically examined the lid and was able to easily dislodge red/brown debris on the underside of the lid, revealing a clean surface without rust underneath. This led him to question whether the red/brown colouring on the underside of the lid was actually oxidation. In view of these complicating factors, the lid and rim do not provide strong evidence of the spontaneous combustion of rags inside the can.

[21] Meanwhile, I do accept Mr. Benavidez’s evidence that he did not leave any stain-soaked rags at the house the day before the fire. Mr. Benavidez is a painter with almost 40 years of experience. His testimony was that he arrived at the house on the day before the fire at approximately 8:00 or 8:30 a.m. He applied stain with two rags to the basement stairs. When he was finished staining, he soaked the rags in a pail of water and squeezed the water out, then put the rags inside a plastic bag, which he tied. He went outside and put the bag on the floor in the backseat of his car and then went to smoke a cigarette. He testified that later, on his way home, he disposed of the bag either in the blue garbage bin behind the paint store or in the garbage of the Tim Horton’s in the same plaza.

[22] In his evidence, Mr. Benavidez explained that he had received safety training with respect to the disposal of hazardous materials. He demonstrated an attention to and concern for safety that I found to be credible. For example, Mr. Benavidez testified that he learned about the fire when Sesco’s site supervisor, Mr. De Francesco, called him shortly after 5:00 a.m. on December 15, 2013. Mr. Benavidez immediately drove to the house because he knew he had left flammable material inside and wanted to warn the firefighters about it. When he arrived at the house, he spoke to one of the firefighters and told him of the risk that material in the living room could explode.

[23] The evidence of Mr. De Francesco, Sesco’s site supervisor, also highlighted Mr. Benavidez’s safe practices in disposing of stain-soaked rags. Mr. De Francesco testified that he saw Mr. Benavidez using rags to stain the windows a couple of weeks before the fire. At that time, Mr. Benavidez laid the rags out on the snow. At the end of the day, he put them in the disposal bin that was on the premises. However, by the day Mr. Benavidez was staining the basement stairs, the disposal bin had been taken away.

[24] I found Mr. Benavidez’s testimony to be credible and reliable. The Plaintiffs have attempted to challenge his reliability by stating that he was not able to recall key pieces of evidence. For example, they emphasize that Mr. Benavidez could not recall what he did with the staining brush. At Examination for Discovery, when he did not have counsel, Mr. Benavidez candidly admitted that he could not recall what he had done with the staining brush, but thought it must have ended up in a can of Varsol paint thinner in his car. By the time of trial, he had reviewed photographs in which he recognized his staining brush in a can of Varsol left at the house. He testified that he recognized the brush and therefore believed that he had left the brush in the Varsol in the house but was candid in saying he still did not recall doing so.

[25] As another example, the Plaintiffs say that at trial Mr. Benavidez was “certain” he used a can of stain already in the house, whereas at Examination for Discovery he could not recall whether he brought a new can of stain with him or used one already in the house. In my view, this is an unfair reading of the evidence. At Examination for Discovery, when asked if he used a can of stain already at the house to stain the stairs, Mr. Benavidez stated that he “couldn’t recall”, that he “believed it was [a can already in the house]” and that he “was sure on that day I did not go out and buy another can” (emphasis added). Overall, I do not find a significant discrepancy between his evidence at discovery and at trial. I found Mr. Benavidez to be forthright and candid regarding what he was able to remember and not able to remember. I find any discrepancies in his evidence to be minor points that do not affect his overall reliability.

[26] Mr. Hawken reviewed the discovery evidence of Mr. Benavidez and assumed that Mr. Benavidez was mistaken when he said he did not leave stain-soaked rags at the scene. This allowed him to conclude that these were the cause of the fire. However, it is the trier of fact’s role ultimately to determine whether Mr. Benavidez left stain-soaked rags in the home. On a balance of probabilities, I determine that he did not.

[27] In closing submissions, there was some suggestions that Mr. Benavidez had an assistant who could have left stain-soaked rags at the house. Neither party called this person as a witness and Mr. Benavidez’s evidence was that his assistant was not involved in the staining. There is insufficient basis for me to conclude that the assistant left stain-soaked rags in the house.

B. Observations suggesting the fire did not start in the living room

[28] In concluding that the fire was not caused by stain-soaked rags in the living room, I also rely on the observations of Mr. De Francesco and the first firefighters on the scene. Mr. De Francesco testified that Ms. Shorey called him early on the morning of the fire to advise him that the heat sensors had been activated and the fire department had been called. He raced to the house in his truck. As he approached the house, he saw smoke coming out of the basement stairway. The firefighters were not able to get in through the door leading into the basement and Mr. De Francesco, together with Mr. Shorey, directed them to the front door lock box. Mr. De Francesco testified that he was able to see into the living room and that the room was intact, with the paint and other cans in the centre of the room and no hole in the living room wall.

[29] Although the Plaintiffs challenge the accuracy of Mr. De Francesco’s comments, his observations are consistent with the evidence of the Ontario Fire Marshal’s investigator, Mr. Post, who reviewed the written observations documented by the firefighters. Mr. Post was a fire investigator for the Office of the Fire Marshal from 2003 until his retirement in 2015. He was contacted the morning of the fire and asked to attend and investigate. He arrived on the scene in the early afternoon on the day of the fire. Upon arriving at the scene, he received reports containing the observations of the firefighters who had been on the scene battling the fire.

[30] Mr. Post noted that he was most interested in the observations of the first arriving firefighters, who usually have the best information. The Captain of the first unit on the scene had observed the fire to be along the west side [back] of the home, venting off the top of the back door. He could only enter one or two feet, as the smoke was thick, and visibility was nil. He also noted that the floor was “spongy” just inside the back door. This was significant to Mr. Post, who said that if the firefighters were not able to see the fire, it had to be below the floor. Something was compromising the floor to make it spongy. Another firefighter on the first truck observed that the fire was on the west side of the home. He punched a hole in the wall to look for the fire, which was spreading underneath and up the walls. Mr. Post therefore noted that, at the outset, it appeared that the fire was under the floor and inside the walls.

[31] While the Plaintiffs submit that the firefighter’s evidence that he punched a hole in the wall is inconsistent with Mr. De Francesco’s evidence that the living room wall was intact when he arrived, Mr. Post explained that the firefighter punched the stairway wall. In other words, the firefighter did not punch the living room wall and there is no inconsistency.

[32] A third firefighter, who was part of the second unit to arrive, stated that he entered through the front door of the home (having been let in by Mr. Shorey). He said that he suppressed the fire on the interior wall to the stairwell. He then proceeded up the stairwell to the first-floor landing, at which point the floor gave out underneath him. He fell through up to his waist (and was caught by a joist). This told Mr Post that the fire occurred under the stairs, in the hallway between the back door and the back of the stairs.

[33] Mr. Post ultimately isolated the origin to an area of the basement ceiling below the base of the landing to the stairs. He noted that the damaged area of the floor was located above the utility room that contained recently installed boiler systems. A number of electrical conduits also ran through the fire damaged area of the ceiling.

[34] The Plaintiffs submit that Mr. Post’s report and opinion were only preliminary, as he could not complete his investigation. Specifically, Mr. Post testified that he would have required the assistance of a forensic engineer to examine wiring and appliances, like the boiler, in order to reach any conclusion on the cause of the fire. However, the Fire Marshal’s office did not have any engineers available to assist him. Because he was unable to proceed further, Mr. Post decided to release the scene back to the homeowner.

[35] Although I appreciate that Mr. Post’s report was preliminary, this is primarily because he was unable to reach any conclusions on cause. In his testimony, he was firm in his view as to the origin of the fire. In any event, I do not rely on Mr. Post’s evidence for a definitive finding of the origin, but primarily for his review and interpretation of the observations of the first firefighters on the scene. Like Mr. De Francesco, they did not see fire in the living room when they initially arrived at the house. Their observations instead point to the fire initially being under the floor and inside the walls.

C. Electrical arcing cannot be ruled out as a cause

[36] As set out above, the Plaintiffs bear the onus of proving that the Defendants were negligent in causing the fire at their house. The Defendants do not need to prove another specific cause to avoid liability: see 1369349 Ontario Inc. v. Yanch Heating and Air Conditioning (Barrie) Limited, 2012 ONCA 182, 13 C.L.R. (4th) 173, at para. 5.

[37] In examining the expert evidence, I accept the position of the Defendants that the cause of the fire is undetermined. First, for the reasons set out above, I am not persuaded that the fire was likely caused by stain-soaked rags. The other potential cause most seriously considered by both experts was electrical arcing. I also am not convinced that electrical arcing was the cause of the fire, although it should not be ruled out entirely.

[38] Electrical arcing occurs where an electrical wire short circuits, “tripping” or shutting down the circuit breaker and cutting off energy in order to avoid overheating. In his investigation, the Plaintiffs’ expert, Mr. Hawken, found six electrical arc locations. He concluded that the arcing damage likely resulted from the fire and did not cause the fire. Meanwhile, Dr. Turriff could not rule out arcing as a potential cause of the fire.

[39] The reasons Mr. Hawken concluded electrical arcing was not a likely cause of the fire are persuasive. First, he located all the electrical arcing on the living room side of the consumed wall, rather than the boiler room side. There was no evidence of electrical arcing above the basement mechanical room. Second, he did not find conditions that could have caused an electrical failure or malfunction, such as staples that damaged the wiring insulation. Further, the arcing sites occurred in the mid-run of the cables, while failures often occur where there are joints in the wiring, such as connections to equipment.

[40] While I am not persuaded that arcing caused the fire, I do not rule it out entirely. The arcs were found in the area below the floor where the joists were fully consumed. This area was directly adjacent to the wall separating the floor of the living room (which was also the ceiling of the basement playroom) from the ceiling of the basement utility room. In addition, as explained by Dr. Turriff, for the copper wires to have melted, a temperature of 1082 degrees Celsius must have been obtained, which would have been sufficient to ignite any nearby combustible material. Mr. Hawken takes issue with this, saying that melted copper loses heat very rapidly once the electrical short circuit is finished. The small amount of energy contained in the melted bead of copper resulting from the arcing would not be sufficient to ignite a solid piece of wood such as a joist. However, Dr. Turriff also points out that nearby material could have included insulation, which would ignite more easily than wood.

[41] With respect to the absence of evidence that the wires had been stapled, Dr. Turriff points out that the plastic sheathing of the wires had completely melted, which means that the conditions of the wires prior to the fire is unknown. Given that the wires had been pulled through many tight spaces in the floor structure, there would have been opportunities for damage to the sheath of wires, thereby exposing the copper, which could have caused arcing.

[42] Finally, although Mr. Hawken opined that the arcing did not cause the fire, both experts agreed that there is no way to tell whether arced wire is a victim or cause of a fire. It is one piece of information to be interpreted together with other evidence of fire damage and patterns.

[43] The Plaintiffs submit that I should put more weight on the opinion of Mr. Hawken than the opinion of Dr. Turriff. Mr. Hawken has more fire investigation experience than Dr. Turriff, having investigated over 2,000 fires. He is an electrical engineer and has been a Certified Fire and Explosion Investigator (“CFEI”) since 1993. He currently is a CFEI instructor. In addition, Mr. Hawken attended at the scene of the fire on December 16, 2013 to do an overall inspection of the premises, then returned on January 6, 2014 to conduct a thorough destructive examination together with other investigators.[^1] Dr. Turriff did not examine the fire scene, as he was retained several years after the fire. However, he reviewed a large volume of photographs from a number of other investigators, including the photographs of Mr. Post and Mr. Hawken, as well as physical evidence taken from the scene by Mr. Hawken.

[44] The Plaintiffs rely on and I have considered cases in which courts have preferred the opinions of fire investigators who attended at the scene of the fire over those who did not: see Danyliw v. 57863 Ontario Ltd., 2006 CanLII 13101 (Ont. S.C.), at para. 34, aff’d 2007 ONCA 447; [Itoria Construction Ltd. v. Peatson’s Heating & Air Conditioning Ltd., 1998 CarswellOnt 5138 (Ont. S.C.)], at para. 20, aff’d 2001 CanLII 8564 (Ont. C.A.).

[45] I do not doubt Mr. Hawken’s expertise. However, Dr. Turriff has a PhD in Mechanical Engineering with a specialization in Materials Science. Part of his PhD thesis related to thermal analysis, as have a number of his publications. He has been a Certified Fire and Explosion Investigator since 2010 and has investigated 50 to 100 fires.

[46] I found the evidence of both experts to be clear and balanced. They both were impressive, with significant expertise. In addition, their opinions were in partial agreement. Both experts agreed that the spontaneous combustion of stain-soaked rags and electrical arcing were possible causes of the fire. Mr. Hawken ultimately found electrical arcing to be unlikely as a cause, whereas spontaneous combustion was the probable cause. Dr. Turriff opined that both were possible causes, though he could not say either was probable.

[47] I am mindful of the difficult position of Defendants to allegations of fire negligence in proving another probable cause of the fire. As stated by this Court:

[T]he 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: Cromie v. Fry, [1999] O.J. No. 4046 (S.C.), at para. 16.

[48] The bottom line is that, while I am not persuaded that electrical arcing caused the fire, in my view it remains a possibility.

[49] In addition, while Mr. Hawken attended at the scene and there is no doubt that this was an advantage, my findings rely primarily on even more direct evidence. As set out above, I find that Mr. Benavidez did not leave stain-soaked rags at the house and there is insufficient evidence of anyone else having done so. I also rely on the observations of the first firefighters on the scene as interpreted by Mr. Post, who arrived at the house the afternoon of the fire. I further rely on the observations of Mr. De Francesco from the morning of the fire. Based on this evidence, I find that the spontaneous combustion of stain-soaked rags was not the probable cause of the fire.

2. No adverse inference for failure to call Mr. Page

[50] The Plaintiffs submit that I should draw an adverse inference for Sesco’s failure to call Mr. Page from Rochon Engineering as a witness. I decline to do so.

[51] The Court of Appeal has emphasized that drawing adverse inferences from the failure to produce evidence is discretionary, requiring a case-specific inquiry. “The inference should not be drawn unless it is warranted in all the circumstances”: Parris v. Laidley, 2012 ONCA 755, at para. 2. The Court of Appeal describes the inquiry to be undertaken as follows:

What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue: Parris, at para. 2.

[52] I conclude that Sesco did not have exclusive control over Mr. Page. Mr. Page was retained by Intact to attend the destructive examination at the house on January 6, 2014. However, Sesco’s position is that Intact retained Mr. Page on behalf of other Intact insured trades, not Sesco. This is consistent with the sign-in sheet from the day of the destructive examination, on which Mr. Page signed in as having been retained by Intact to represent audio installers and electricians. Although Sesco’s former defence counsel, an in-house lawyer at Intact, disclosed at Examination for Discovery that he had Mr. Page’s preliminary report in his possession, this does not place Mr. Page in Sesco’s exclusive possession. Sesco has consistently maintained that it never retained Mr. Page and the Plaintiffs have not proven otherwise.

[53] Moreover, it was open to the Plaintiffs to call Mr. Page as a witness. Counsel for Sesco, on numerous occasions, advised the Plaintiffs that Sesco was not maintaining any control over Mr. Page and that the Plaintiffs could contact him directly or summons him as a witness. He invited them to do so. The Plaintiffs have submitted that this would not be practical as they would not be able to speak to him in advance of his testimony, given his professional obligations of confidentiality and conflict of interest towards Intact. I agree that this raises questions about whether it was worth their while to call him. It is fair to say that Mr. Page was not “equally” available to both parties. Still, this also is not a situation in which Mr. Page can be said to have been in Sesco’s exclusive control and I take this into account in considering all of the circumstances.

[54] I also am not convinced that Mr. Page’s evidence should be considered “key”, or that he would be the “best person to provide the evidence”. Sesco retained its own expert in Dr. Turriff. Mr. Page had the advantage of being at the scene of the fire for the destructive examination, while Dr. Turriff did not. On the other hand, an expert witness is not the same as a material fact witness who has observed an event. I do not know Mr. Page’s experience and qualifications, other than that he is an electrical engineer, nor what instructions he was given. For the same reasons, Sesco’s explanations for not calling Mr. Page are legitimate. Sesco did not retain Mr. Page and did not instruct him. In these circumstances, I do not consider them bound to use him as their expert or otherwise face an adverse inference.

[55] Even if I were to draw an adverse inference, it is unclear to me how this would assist the Plaintiffs. The Plaintiffs suggest I should draw the inference that Mr. Page concluded that Sesco’s work likely caused the fire. As I understand it, Mr. Page arrived at a preliminary opinion. If his preliminary opinion pointed to the spontaneous combustion of rags as likely causing the fire, my analysis might be the same as it was with respect to Mr. Hawken’s report – that is, among other things, that the evidence does not support the presence of stain-soaked rags at the scene. Given the importance of the specific detail and reasoning in an expert opinion, I cannot see how an adverse inference would go very far in assisting the Plaintiffs.

Conclusion

[56] I conclude that the Plaintiffs have not proven on a balance of probabilities that the fire was caused by the Defendants’ negligence. Therefore, I would dismiss the action. However, in the event that I am wrong about liability, I will go on to consider the Plaintiffs’ damages.

Damages

[57] The Plaintiffs claim damages of $1,360,931.73 consisting of the following:

• $43,008.18 for emergency services;

• $65,000 for demolition;

• $101,375 for additional living expenses;

• $9,556.73 for security costs after the fire; and

• $1,138,541.29 for repairs to the house.

[58] The most significant dispute between the parties is over the cost of repairs to the house. The Defendants submit that the anticipated cost of repairs is not the appropriate way to measure damages in this case. I agree with the Defendants.

[59] The court’s task when assessing damages is to restore the plaintiffs to the position they were in prior to the loss. The court need not be “perfect” in its calculation or assessment of damages, but must strive to achieve fairness between the plaintiffs and defendants: see Scaffidi-Argentina v. Tega Homes Developments Inc., 2016 ONSC 5448, 60 C.L.R. (4th) 138, at para. 4.

[60] There are two competing approaches to measuring damages related to real property: (1) the amount of the diminution in the value of the land; and (2) the cost of replacement or repair: see Scaffidi-Argentina, at para. 5; James Street Hardware and Furniture Co. v. Spizziri (1987), 1987 CanLII 4172 (ON CA), 62 O.R. (2d) 385 (C.A.), at p. 401. The Court of Appeal has endorsed the following explanation from McGregor on Damages, which, in determining the appropriate approach in a given case, encourages an examination of the reasonableness of the plaintiff’s desire to reinstate the property:

The difficulty in deciding between diminution in value and cost of reinstatement arises from the fact that the plaintiff may want his property in the same state as before the commission of the tort but the amount required to effect this may be substantially greater than the amount by which the value of the property has been diminished. The test which appears to be the appropriate one is the reasonableness of the plaintiff’s desire to reinstate the property; this will be judged in part by the advantages to him of reinstatement in relation to the extra cost to the defendant in having to pay damages for reinstatement rather than damages calculated by the diminution in value of the land: James Street, at p. 401.

[61] In my view, the appropriate measure of damages in this case is to calculate the diminution in value of the property. It is not necessary to consider whether it was reasonable for the Plaintiffs to reinstate the property because they did not choose to do so. Instead, they sold the property in August 2014 (for $1,370,000) and purchased another property in the neighbourhood, which they moved into in January or February 2015. This case is not like Jarbeau v. McLean, 2017 ONCA 115, 410 D.L.R. (4th) 246, relied on by the Plaintiffs. There, the plaintiffs had tried unsuccessfully to sell the property. When the jury awarded damages based on the cost of repairs, repairing the property remained open to the plaintiffs.

[62] Both parties retained experts to provide opinions regarding the value of the property immediately before the fire. The Plaintiffs’ expert, Jim Parthenis, assessed the value of the property on the day before the fire, December 14, 2013, at $2,830,000. The expert retained by Sesco, Toivo Heinsaar, assessed the value of the property at $2,100,000.

[63] I found both experts to be helpful. Both have extensive expertise in property valuation. Property valuation is not a precise science. It incorporates a degree of subjectivity in assessing the features and overall value of comparable properties. Both experts used the same approach, which involved choosing comparable properties, adjusting the sale price of those properties by assessing whether certain features of the comparator property were more or less valuable, then adjusting for differences. Both the choice of comparables and the adjustments incorporate a level of subjectivity that can have a meaningful impact on the final assessed value.

[64] The Plaintiffs’ expert took a less conservative approach to valuing the property, while Sesco’s expert took a more conservative approach. For example, the three properties Mr. Parthenis for the Plaintiffs chose for comparison purposes were all on bigger lots than the subject property (although not all of the land on the comparator properties was usable). Further, Mr. Parthenis used the home subsequently built on the subject property as a “guide” for what the subject property might have looked like immediately prior to the fire. This home was completely new and sold almost three years later, in September 2016, for $2,831,858. This is almost the same value as Mr. Parthenis arrived at for the subject property, which was not entirely new, as of December 14, 2013. I consider it to be one piece of information to suggest that Mr. Parthenis’ assessed value was high.

[65] Mr. Heinsaar, for Sesco, on the other hand, adopted a more conservative approach. He chose more properties to use as comparables than did Mr. Parthenis, though several of them were not in a renovated state and were on smaller lots than the subject property. One example of Mr. Heinsaar’s more conservative approach is his use of the property at 112 Kingsway Crescent as a comparable, which was a smaller building on a smaller property in inferior condition, but which he valued as slightly higher than the subject property. This suggests to me that Mr. Heinsaar’s assessed value was low. In addition, Mr. Heinsaar was not aware of all the renovations to the subject property, as he had not been provided with all the renovation invoices.

[66] I consider Mr. Parthenis’ assessed value of the subject property to be high and Mr. Heinsaar’s assessed value to be low. I am not able to arrive at a “perfect” assessment of the Plaintiffs’ damages but consider a value of $2,500,000, approximately in between the two assessments, to be fair.

[67] In terms of the remaining costs, the Defendants do not take issue with the costs for emergency services, demolition, or security costs. They do take issue with the additional living expenses on the basis that the Shoreys moved into a more expensive rental property and did not prove each living expense (e.g. the cost of gas and electricity).

[68] I consider the move to a different rental location to be reasonable. The Shoreys were supposed to move into their renovated house within days, so it is reasonable that their existing rental property was no longer available. In addition, the rental agreement indicates that the Shoreys were responsible for gas and electricity. I accept that they incurred these costs even if they have not provided specific invoices for each month. Finally, I do not deduct for additional time in the rental location while the new house the Shoreys purchased was renovated. I am not aware of another comparable property available that did not require renovation and I take into account that the Shoreys had lost a newly renovated property. Mr. Shorey’s evidence was that the total living expenses of $101,375 is the amount his own insurer had “negotiated [him] down to.” In other words, it is not the original amount he claimed. I accept that this is a reasonable representation of the Plaintiffs’ living costs until they moved into their replacement home.

[69] Therefore, I calculate the total damages to be $1,348,939.91, broken down as follows:

• $43,008.18 for emergency services;

• $65,000 for demolition;

• $101,375 for additional living expenses;

• $9,556.73 for security costs after the fire; and

• $1,130,000 ($2,500,000 minus $1,370,000) for the diminution of the value of the property.

Disposition

[70] The action is dismissed. I encourage the parties to reach an agreement on costs. If they are unable to do so, the Defendants may provide written submissions on costs of no more than 5 pages double-spaced within 21 days of the date of this decision. The Plaintiffs will then have 14 days to provide responding submissions with the same limitation on length. The submissions may be sent to my judicial assistant, Anna Maria Tiberio at annamaria.tiberio@ontario.ca.

O’Brien, J.

Released: February 3, 2021

[^1]: A destructive examination permits items to be moved during the course of the examination. Several investigators representing different trades attended the destructive examination on January 6, 2014.