Chatham Polish Canadian Club v. Grand Gold Incorporated, 2026 ONSC 2193

Chatham Polish Canadian Club v. Grand Gold Incorporated, 2026 ONSC 2193

COURT FILE NOs.: CV-23-1134 and CV-23-1135-A1 DATE: 20260414

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Court File No. CV-23-1134

Chatham Polish Canadian Club Plaintiff

– and –

Grand Gold Incorporated Howard Gold Defendants

BETWEEN:

Chatham Polish Canadian Club Plaintiff

– and –

John Bradley Campbell Insurance Store Inc. Defendants

– and –

Grand Gold Incorporated Howard Gold Third Parties

COUNSEL: Jerry F. O’Brien, for the Plaintiff Robert Dowhan, for the Defendants

Court File No. CV-23-1135-A1 Jerry F. O’Brien, for the Plaintiff Natalie M. Leon, for the Defendants Robert Dowhan, for the Third Parties

HEARD: January 27 and March 18, 2026

REASONS FOR JUDGMENT

dubé J.

A. NATURE OF THE MOTION

1This is a motion for summary judgment in a negligence action. The plaintiff, Chatham Polish Canadian Club (the “Polish Club” or the “plaintiff”), commenced this action alleging that the negligence of the defendants, Grand Gold Incorporated and Howard Gold (“Gold”) (collectively, the “defendants”), caused or contributed to a fire at the plaintiff’s building, resulting in damages. The defendants bring this motion seeking the following relief:

a. Summary judgment pursuant to r. 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, against the plaintiff dismissing this action as against the defendants for damages stemming from a fire on May 19, 2021. They submit there is no genuine issue requiring a trial.

b. An order that the defendants’ costs of this motion and of this action be payable on a substantial indemnity scale.

c. Such further and other relief as counsel may submit and this Honourable Court may deem just.

2The defendants brought an identical motion against John Bradley Campbell and the Insurance Store Inc. (defendants in Court File No. CV-23-00001135) for having inadequate coverage. On consent, both motions were heard together and proceeded on the same evidentiary record.

3The plaintiff, in response to the motion, submits the following:

a. The defendants have not met their onus of showing that there is no genuine issue of material facts that requires a trial for its resolution.

b. There are material issues of fact that require a trial for a just determination.

4Accordingly, the plaintiff submits that the two motions for summary judgment should be dismissed, with costs.

5The plaintiff also brings a motion to strike from the summary judgment motion record and to not use as evidence on this motion, the following:

a. The defendants’ Reply Motion Record in their motion for summary judgment, specifically, a second Gold affidavit, sworn November 20, 2025 with attached exhibits containing various hearsay documents including third-party invoices sent to Gold dated September 2019 to May 2021.

b. The defendants’ expert opinion evidence purportedly contained in the Preliminary Report from the Ontario Fire Marshall (“OFM Report”) which is attached as an exhibit to the affidavit of Melissa Muise, sworn October 2, 2025, as well as paragraph 6 of her affidavit, which notes that the cause of the fire is listed in the first page of the OFM report as “Undetermined.”

6At the hearing, counsel for the defendants conceded that Gold’s affidavit, the third‑party invoices, the OFM Report, and paragraph 6 of Muise’s affidavit should be struck from the motion record. With respect to the OFM Report, the parties agree that certain underlying, non‑contentious facts drawn from the report are nevertheless admissible, including, for example, the date and time the fire was initially reported and the timing of the first responders’ attendance at the scene.

B. THE ISSUES

7The central issue on this motion is whether the matter is appropriate for summary judgment on the basis that there is no genuine issue requiring a trial. In addressing this issue, I find that there are two subsidiary issues to be considered:

Issue 1: Is there a genuine issue for trial with respect to the claims of negligence, nuisance, and strict liability as to the origin and cause of the fire?

Issue 2: Is there a genuine issue for trial with respect to claims of negligence for failing to take reasonable precautions to protect the neighbouring property in the event of a fire?

C. THE BACKGROUND FACTS

8My review of the background evidence is limited to those facts that are admissible, significant to the central issues, or provide context necessary to appreciate and determine the relevant issues.

9The Polish Club owned and operated a 7,000 square foot social club and rental hall municipally described at 281 Inshes Avenue, Chatham (the “Club Property”) since about 1991.

10Defendant Gold is an individual normally resident in the County of Kent. At all material times, he was an officer, director, and shareholder of defendant Grand Gold Inc.

11The defendants owned a vacant 18,000 square foot building which was municipally designated as 285 Inshes Avenue, Chatham (the “Gold Property” or the “Property” or the “building”). The Property was immediately adjacent to, and ran along the entire southern side of the Polish Club – see photograph attached as Schedule”A” to these Reasons.

12The Gold Property is located in an area zoned for industrial and commercial use, with a residential neighbourhood immediately to the north. According to the OFM Report, the building was constructed sometime between 1945 and 1975. It consisted of a concrete floor, concrete block walls, and metal overhead trusses, and had previously been used for industrial or factory operations.

13On the north side of the Gold Property was an operating Purolator Courier Truck Depot.

14In or about June 2013, the defendants acquired the Gold Property through a municipal tax sale conducted by the Corporation of the Municipality of Chatham‑Kent (the “City of Chatham‑Kent”). Gold also owned several other commercial and industrial properties at the time.

15Prior to the sale, while the Property remained under municipal control, all utilities –including water, electricity, and natural gas – had been disconnected. These services remained disconnected up to and including the date of the fire in May 2021. As a result, from before the sale through to the time of the fire, there was no operational sprinkler system or any other mechanism capable of suppressing or extinguishing a fire once ignited. During this same period, the building was also without fire alarms or smoke detectors. In addition, there was no electronic surveillance, nor were there any motion detectors or motion‑activated lighting.

16Between 2013 to 2018, the Gold Property was used by Gold to store certain goods and items.

17At some point before 2019, Gold “shuttered” or otherwise stopped using Gold Property to store items. He secured the building, including doors, windows, and all means of ingress and egress, as well as access to the roof structure.

18At no time since the purchase of the Gold Property have there been any reports of fire at the building, nor were there any outstanding or pending orders issued by fire safety officials in relation to the Property.

19During the relevant period, the Gold Property was one of several vacant, former industrial buildings within a one-kilometre radius.

20The Gold Property had a history of unauthorized entry and occupation by trespassers.

21During the morning on May 19, 2021, Robert Bushey initially observed smoke coming from the south side area of the Gold Property before fire service arrived.

22At 9:08 a.m., 9-1-1 was notified of a fire at the Property. Chatham Kent Fire and Emergency Services arrived at the scene at 9:13 a.m., to find a fully involved fire.

23The fire originated inside the Property, which spread to the neighbouring building, the Polish Club. Ultimately both structures were engulfed and completely destroyed by fire.

24The plaintiff, the Polish Club, issued a Statement of Claim on May 18, 2023 (Court File No. CV‑23‑00001134) against the defendants. In that proceeding, the defendants served a Notice of Intent to Defend on November 14, 2023, followed by a Statement of Defence on March 31, 2025.

25On May 18, 2023, the Polish Club also issued a Statement of Claim against the defendants, John Bradley Campbell and Insurance Store Inc. (Court File No. CV-23-00001135). The defendants in that action served a Notice of Intent to Defend on August 11, 2023. They subsequently commenced a third-party claim against the defendants Grand Gold Incorporated and Howard Gold (Court File No. CV-23-00001135A1). The defendants (Grand Gold Incorporated and Howard Gold) served a Statement of Defence to the third-party claim on March 31, 2025.

D. THE EVIDENCE

Howard Gold

26Howard Gold provided evidence by way of an affidavit sworn June 9, 2025, as well as through his discovery and cross‑examination conducted on September 29, 2025.

27From 2013 until the time of the fire, Gold – or one of his employees – attended at the Gold Property on average three to four times per week, with additional visits as required. These inspections included an exterior review of the building, including doors, windows, and other points of entry or exit, as well as at least one interior walkthrough to assess the condition of the structure. With the exception of the period affected by the COVID‑19 pandemic, this pattern of attendance continued up to the date of the fire.

28According to Gold, both before and after the Property was shuttered, there were infrequent and, in his view, insignificant instances of vandalism, all of which were reported to the police. He estimated that such incidents occurred fewer than ten times between 2013 and 2021. On one occasion, he observed indications that a small number of individuals had trespassed inside the building, including makeshift stools and “remnants of some clothes and so forth.”

29Gold stated that he never personally observed any evidence of drug use on the Property. He did report, however, that inspectors advised him that, on one occasion after a door had been kicked in, individuals were “possibly” using drugs inside the building. Gold emphasized that he never encountered anyone inside the Property during his inspections. Following each such incident, the Property was promptly cleaned and secured, including repairing damage and boarding up any broken doors or windows.

30Gold was also aware of a neighbourhood watch in the area but did not recall ever talking to someone involved with it.

31Gold stated in his affidavit that he conducted regular inspections of the Gold Property in the four months preceding May 2021. He did not observe anyone living on the premises. He did note indications of entry by trespassers, including piles of clothing and personal belongings – which presumably were removed.

32Gold asserted that although he used the Property as a warehouse, he never stored any materials he considered to be “flammable”. He further claimed the Property did not contain flammable liquids, nor did it appear that any component of the building’s structure was capable of burning.

Mazen Habash

33Mazen Habash (“Habash”) provided evidence by way of an affidavit sworn October 31, 2025, a written report dated October 31, 2025, setting out his findings, analysis, and opinions, and his cross‑examination conducted on November 14, 2025.

34Habash has served as President of OCI Group, a forensic engineering, fire investigation, and consulting firm, since 1991. OCI is an acronym for Origin and Cause Incorporated. He has been a licensed professional engineer in Ontario since 1988 and specialized in fire investigation and electrical and electronic failure analysis. With 40 years of experience, Habash has conducted more than 3,400 investigations involving fires, product liability, and alarm systems. He has been qualified as an expert witness in civil and criminal proceedings in Ontario.

35In preparing his report, Habash reviewed a range of materials relevant to this motion, including documents contained in the summary judgment record, such as the OFM Report, portions of which were ultimately struck.

36Based on the evidence, Habash concluded that the fire originated within the Gold Property during the morning of May 19, 2021, before spreading to the Polish Club.

37Due to the extensive damage sustained by the buildings, the authorities were unable to conduct a complete investigation into the precise area of origin and the cause of the fire within the Gold Property.

38Based on the available evidence, Habash ruled out electrical or natural gas utilities, as well as lightning strikes, as potential causes of the fire. He further noted that the building’s sprinkler system was inoperative due to the absence of water and electrical service. The lack of electrical power also meant that no fire alarm system, security system, or security cameras – if any had been installed – were operational, rendering the Property vulnerable to unauthorized entry.

39Habash noted that it was not unusual for an industrial building more than 50 years old to lack smoke alarms.

40According to Habash, the available evidence indicates that no flammable or combustible materials – including materials capable of spontaneous heating or ignition – were present within the Gold Property at the time of the fire. He therefore ruled out the presence of such materials as a potential source of ignition.

41At the time of the fire, there were no outstanding orders issued by municipal fire authorities under s. 19 of the Fire Protection and Prevention Act, S.O. 1997, c. 4 (“FPPA”), requiring any remedial action for fire‑related purposes, including structural repairs or the removal of combustible materials.

42Habash concluded that the fire was most likely either accidentally or intentionally set by an unknown individual who gained unauthorized access to the building. As a result, he determined that human activity as the cause of the fire could not be eliminated and, in his opinion, represented the most probable explanation given the available evidence.

43Nevertheless, due to the complete destruction of both buildings and the resulting absence of physical evidence, the origin and cause of the fire could not be definitively determined and therefore could only be classified as undetermined.

44Habash explained that a fire is classified as “undetermined” when its cause cannot be conclusively established – specifically, where two or more credible potential causes or contributing factors remain and none can be definitively excluded. He further stated that, in the absence of supporting evidence identifying an ignition source, the fuel involved, and the circumstances that brought those elements together, it would be improper to attribute the fire to any specific cause.

45Notwithstanding the ultimate classification of the fire as undetermined, Habash was of the opinion that the evidence suggested that an individual had been inside the Gold Property and engaged in conduct that caused the fire. He explained that the cause was classified as undetermined only because the available evidence does not establish whether the human activity was accidental or deliberate. Habash acknowledged that several potential scenarios could have resulted in ignition, including vandalism, arson, children playing with matches, or the careless use of an ignition source, such as the improper disposal of a cigarette.

46Finally, Habash noted that had the Gold Property been equipped with functional sprinkler systems, security alarm systems, or security cameras, the fire may have been prevented or, at a minimum, its severity mitigated, including the potential prevention of its spread to the Polish Club.

Robert Bushey

47Robert Bushey (“Bushey”) provided evidence by way of an affidavit sworn October 30, 2025, and through his cross‑examination on November 14, 2025.

48Bushey resides near the Gold Property and has an unobstructed view of the front of the building from his home. He has served as the neighbourhood watch coordinator for approximately 23 years and is self‑employed, typically working from home.

49Bushey stated that the Gold Property has been vacant since he moved into the area in 2003. He testified that he had never observed any lights illuminated in or around the building.

50On one side of the Gold Property was a Purolator facility, where employees worked and packages were processed for transport. The two properties were separated by their respective parking lots. Individuals working at or attending the Purolator facility had access to that side of the Gold Property, including on the date of the fire.

51Over the years, Bushey frequently observed individuals he described as vagrants or persons engaged in drug‑related or criminal activity entering the Gold Property through broken windows and unsecured doors, including a door located at the northwest corner of the building. He reported that such intrusions occurred several times per month on average, at times weekly, or “basically anytime they wanted,” and continued up to and including the time of the fire.

52Bushey contacted police on numerous occasions concerning activity at the Gold Property. Officers consistently attended and, at times, removed individuals from the Property or from adjacent properties. When damaged doors were repaired, they were often breached again within days. This pattern persisted over time.

53On an unspecified date, Bushey learned of a break‑in at a friend’s second‑floor apartment located above a mould‑making business at 271 Inshes Avenue.

54On another unknown occasion, Bushey observed two individuals whom he described as “vagrants” carrying two large ladders along Inshes Avenue toward the north corner of the Gold Property. He contacted the police in response. Upon arrival, officers entered the Property through a hole in an exterior fence and accessed the northwest portion of the building through an open metal door. Bushey observed that the door and its frame had been bent, preventing it from closing. He followed the officers into the building and observed approximately 10 to 12 individuals inside, all of whom were subsequently removed by police.

55At this time, Bushey observed sleeping bags and other personal belongings scattered across the floor, suggesting that individuals had been living inside the Gold Property. He also saw a large pile of what appeared to be stolen items, including car chargers, cell phone components, and various other objects. The two ladders he had previously seen being carried toward the Property were also found inside.

56He also observed shelving on the south wall containing additional sleeping bags. It is in this section of the Gold Property where he observed the smoke on the day of the fire.

57Bushey stated that, although he could not recall the precise number, he contacted police on approximately twelve occasions – or, as he testified during cross‑examination, on multiple occasions – during the eighteen months preceding the fire to report individuals trespassing in or around the Gold Property.

58On the morning of May 19, 2021, Bushey observed smoke “coming from the front area” of the south side of the Gold Property, near Inshes Avenue. He observed the fire intensify before it ultimately spread to the neighbouring Polish Club.

59Bushey testified that he did not recall seeing anyone in or around the Gold Property on the night before or the morning of the fire. He acknowledged that his affidavit did not refer to any observations of trespassers at the Property in the week immediately preceding the incident. When questioned on this point during cross‑examination, he nevertheless maintained that trespassing at the Property occurred on multiple occasions and that it “just really didn’t stop.”

E. LEGAL FRAMEWORK

The law of summary judgment

60Rule 20.04(2) 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; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

61In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada provided guidance on circumstances in which summary judgment is appropriate. At paras. 49-50, Karakatsanis J., writing for the court, stated:

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.

These principles are interconnected, and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

62If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the fact-finding powers under r. 20.04(2.1) and r. 20.04(2.2).

63A party on a summary judgment must put its “best foot forward.” A court is entitled to assume that the record contains all the evidence that a party would present at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97.

64More specifically, to discharge that onus, the moving party must put their best evidentiary foot forward by adducing admissible evidence of the merits of their defence. Summary judgment may be denied where the moving party fails to do so: Sanzone v. Schechter, 2016 ONCA 566, at para. 32, leave to appeal refused, [2016] S.C.C.A. No. 443.

65The principles governing the admissibility of evidence are the same on a summary judgment motion as at trial. There is a limited exception regarding an affidavit made on information and belief contained in r. 20.02(1): Sanzone, at para. 15.

66It is only after the moving party has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution that the burden then shifts to the responding party to prove that its claim has a real chance of success: Sanzone, at para. 30.

The operation of s. 76 of the FPPA

67Section 76 of the FPPA protects individuals from liability for accidental fires which start on their land. This provision reads as follows:

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.

68The Court of Appeal determined what in their view, in this context, is meant by an “accidental fire” in Neff v. St. Catharines Marina Ltd. (1998), 37 O.R. (3d) 481 (C.A.), at para. 6:

On the authorities, it is my view that an accidental fire is not one that is proved to have been accidental, rather it is one that cannot, on a balance of probabilities, be traced to a particular cause.

69The Court of Appeal additionally held in Neff, where the cause of the underlying fire cannot be determined, any analysis of whether the defendant breached the applicable standard of care becomes irrelevant. Although Neff concerned the law of bailment, its reasoning applies equally in this context: if a plaintiff cannot establish the specific cause of the fire, the fire is deemed accidental by virtue of s. 76, and negligence cannot be proven against the defendant on whose property the fire originated: Neff, at paras. 10 and 21.

F. ANALYSIS

Issue 1: Is there a genuine issue for trial with respect to the claims of negligence, nuisance, and strict liability as to the origin and cause of the fire?

70On the morning of May 19, 2021, Bushey observed smoke and then fire coming from inside the southwest portion of the Gold Property, the section of the building facing Inshes Avenue.

71The defendants submit that, even on the evidence of the plaintiff’s own expert, Habash, the fire must be characterized as “accidental” because its cause was classified as undetermined, meaning that multiple potential causes could not be excluded. They argue that, if the fire is deemed accidental, s. 76 of the FPPA operates to bar any claim for fire‑related damages and precludes recovery for the losses alleged. In any event, the defendants emphasize that Habash’s opinion identifies human activity only as the most likely general category of cause, rather than pinpointing a specific cause of ignition, which they submit falls short of the evidentiary threshold articulated in Neff, as discussed further below.

72In contrast, the plaintiff submits that the evidence supports an inference that the only reasonable explanation for the fire is that it was caused – whether intentionally, recklessly, or inadvertently – by human activity, specifically by trespassers who had repeatedly gained access to the Gold Property over a number of years. The plaintiff argues that, in light of this history, which was known to the defendants, they owed a duty of care to neighbouring property owners to secure and maintain the premises so as to eliminate or reduce the reasonably foreseeable risk of fire posed by such activity.

73More specifically, the plaintiff asserts that the defendants were negligent in failing to implement any security, surveillance, or other safety measures capable of mitigating or preventing that risk, and that, as a result, s. 76 of the FPPA has no application: Hutson et al. v. United Motor Service Ltd. (1936), 1936 113 (ON CA), O.R. 225 (C.A.).

74While the evidence establishes that trespassers had, at various times in the past, entered and may have occupied the Gold Property, I am not satisfied that such activity occurred in reasonably close temporal proximity to the fire. Bushey’s assertion that trespassers continued to access the Property “right up until the time of the fire” or “basically anytime they wanted,” amounts to no more than a bald, conclusory statement and carries limited evidentiary weight when assessed against the record as a whole.

75Apart from these assertions, the record does not disclose when either Bushey or Gold – who maintains that he conducted inspections three to four times per week, including one interior walkthrough – last observed trespassers at, around, or inside the Gold Property, nor when they last observed indicia of unauthorized entry, such as unsecured doors or broken windows, prior to the fire. At a minimum, the evidence establishes that no unusual activity was observed at the Property on the night before or the morning of the fire. Beyond that, however, I am unable to determine with any degree of confidence when trespassing last occurred, or whether there was evidence of human activity on or within the Gold Property at any reasonably defined time proximate to the fire.

76Moreover, even if I were to put aside the absence of any evidence of unusual activity at the building reasonably proximate to the time of the fire, during a period in respect of which there is no evidence to suggest that the building was otherwise unsecure – the defendants’ theory concerning alternative potential causes of the fire – none of which Habash was able to eliminate – does not advance their position. Given the undisputed evidence that the fire originated from inside the building, the scenarios identified by the defendants, including (1) vandalism, (2) arson, (3) children playing with matches, or (4) the misuse of an ignition source, necessarily presupposes, in almost all circumstances, unauthorized human entry into the Gold Property. In light of the Property’s extensive history of such unauthorized attendance and entry, including by individuals apparently engaged in drug-related or criminal activity – a history known to Gold – these scenarios, in turn, raise the question of whether the defendants breached their duty of care by failing to take reasonable steps to adequately secure the premises against such foreseeable risks – a question that arguably constitutes a genuine issue for trial on this summary judgment motion.

77Accordingly, based on the evidence – or, more precisely, the absence of evidence – and notwithstanding the strong temptation to draw the inference urged by the plaintiff considering the history of repeated vandalism and unauthorized entries into the Property, I am unable, despite careful consideration, to conclude in the circumstances that the fire was caused by unspecified human activity, as opined by Habash. In the absence of a sufficient evidentiary foundation from which such an inference can properly be drawn, I am likewise unable to find, with any degree of confidence, that the fire “had its origin in negligence”: Hutson, at p. 19.

78Further, notwithstanding Habash’s opinion, I am not persuaded that all other potential causes of the fire – specifically, non‑human causes – can reasonably be excluded. Habash’s conclusion rests, at least in part, on the assumption that nothing within the building at the time of the fire was prone to spontaneous combustion or likely to have served as an ignition source. In this regard, he stated the following:

As I understand things, there was limited contents within the unoccupied building, some of which, may have predated the purchase of the building by Grand Gold Incorporated. I was able to identify no specific details in the documents provided to confirm or identify what contents were in the building prior to its purchase by Grand Gold Incorporated. There is no information to confirm that any of these contents that predated the purchase or contents that were brought into the building by representatives of Grand Gold Incorporated following the purchase, were flammable or combustible in nature.

Although it is not entirely clear what contents remained within this unoccupied building, as I understand things, these contents do not appear to be flammable or combustible in nature. There is no information provided in the documents reviewed that would suggest that the building contained contents or chemicals that may be prone to spontaneous heating and ignition. Considering that the building was owned by Grand Gold Incorporated for several years, and that no new contents were reported to have been introduced to the building by them recently, I would suggest that it is unlikely that any contents that remained in the building or contents that were brought in by Grand Gold Incorporated following the purchase of the building caused the fire incident.

79Both Gold and Bushey testified that, at unspecified times, they observed various items inside the building, including suspected stolen goods, piles of clothing and personal belongings, sleeping bags, and drug paraphernalia. It remains unknown whether any of these items – or any other materials – were present in the building on May 19, 2021, or in what quantity. As with Habash’s evidence, the record is unclear as to what may have remained inside this relatively large, 18,000‑square‑foot former manufacturing facility – estimated to be between 50 and 80 years old – after it was purchased by the defendants or following Gold’s use of the premises for storage over a period of approximately five years.

80Gold stated, in a bald and conclusory manner, that he did not store anything inside the Property that he considered flammable – without identifying the basis for that claim or the scope of what he understood to be flammable. He further asserted that the building structure itself was incapable of burning and that no flammable liquids were present within the building. When Gold was cross‑examined as to whether he was aware of any source of ignition in the building on the day of the fire, counsel for the defendants objected, stating that “[t]he witness is not even close to an expert to tell us what sources of ignition could be from people, places, animals, weather, et cetera. He has no information, knowledge or belief as to the origin and cause of the fire.”

81The objection to this line of questioning went unchallenged, and the question remained unanswered. Counsel then indicated that he had no further questions.

82Although Habash considered it unlikely that the fire originated from the building’s contents, on the basis that no new materials had reportedly been introduced after the premises were shuttered sometime before 2019, the precise nature and quantity of the contents present inside the building at the time of the fire remain unknown. Apart from Gold’s views – offered without any apparent expertise – regarding whether aspects of the building were capable of burning or his personal understanding of what constituted flammable materials, the evidence is sparse as to the presence of ignition and fuel sources within the building, or the circumstances by which those elements may have come together to cause this fire. What is clear, however, is that the fire originated from within the Gold Property and, within a relatively short period of time, that fire engulfed and completely destroyed the structure.

83Because the Gold Property was destroyed, the subsequent fire investigation – at least those portions not struck from the record – provides limited assistance and leaves many questions concerning the cause and origin of the fire unanswered and, in some cases, unanswerable. In addition, through no fault of his own, Habash did not conduct a direct investigation of the scene and was required to rely on the same, somewhat limited, evidentiary record concerning the fire investigation that is before the court. Taken together, these problems, in my view, materially undermine the reliability of his ultimate opinion.

84Assuming that the record contains all of the evidence that would be adduced at trial, and in the absence of any material factual disputes in the motion record, there is no evidence to suggest that any individuals – including trespassers – were at, around, or inside the Gold Property at or reasonably proximate to the time of the fire. Nor does the evidence clearly establish whether materials – including those susceptible to spontaneous heating or ignition – remained in the building at the time the fire was first detected, or, if so, in what quantity.

85In Everatt v. Elgin Electric Ltd. (1973), 3 O.R. 691 (Ont. H.C.), Lerner J. described the inherent challenges associated with establishing negligence in cases involving fires, stating:

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 plaintiffs' 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 be dismissed.

86In the final analysis, I am unable to conclude, on the evidentiary record before me, the likely origin and source of the fire. This conclusion is consistent with the outcomes in Everatt, Neff, Goodliff v. Woodcock, [2004] O.J. No. 4701 (Ont. S.C.), Moore v. 7595611 Canada Corp., 2021 ONCA 459, 464 D.L.R. (4th) 475, Mohamed v. Banville (2009), 2009 7092 (ON SC), 94 O.R. (3d) 709 (Ont. S.C.), and Paquette v. Labelle (1981), 1981 1618 (ON CA), 33 O.R. (2d) 425 (C.A.). As is sometime the case, the cause of this fire remains a mystery.

87In the absence of proof, on a balance of probabilities, establishing the specific cause of the fire, it is deemed an “accidental fire” within the meaning of s. 76 of the FPPA.

Negligence

88As noted earlier, the plaintiff alleges a series of negligent acts said to have contributed to the fire, including failures to properly inspect, maintain, repair, secure, and supervise the building. In addition to relying on Hutson, the plaintiff invokes Moore, arguing that s. 76 of the FPPA does not bar claims where a landlord has contributed to creating conditions that permit a fire to occur. For the reasons that follow, I do not accept that submission.

89In my view, Moore is limited to circumstances in which a landlord fails to take reasonable precautions to protect occupants of a dwelling in “the face of a fire” that has already ignited – even where the origin of that fire remains undetermined. It does not extend to allegations of conduct said to have caused or initiated the fire itself. In any event, given the numerous evidentiary uncertainties in this case, I am unable to conclude that the undetermined cause of the fire was attributable, in any way, to negligence on the part of the defendants.

90As affirmed in Neff, the onus rests on the plaintiff to establish the specific cause of the fire. Absent proof of a specific cause, as I have found to be the case here, negligence cannot be established against the defendants. Put differently, without evidence of the circumstances in which the fire originated, the fire must be regarded as accidental, and a necessary foundation for assessing the defendants’ conduct – and therefore for finding negligence – is lacking: Neff, at para. 16.

91As a result, the plaintiff’s claim is barred: Neff, at para. 6.

Nuisance and strict liability

92Nuisance is defined as “an unreasonable interference with the use and enjoyment of land”: Allan Linden, Canadian Tort Law, 7th Edition (Markham: Buttersworth, 2001), at p. 525. Generally, nuisance does not apply to singular cases of fire damage but rather has been restricted to holding defendants liable for continuing disturbances caused by their use of land: Mohamed, at para. 43.

93Likewise in relation to the claim under the doctrine established in Rylands v. Fletcher (1868), L.R 3 H.L. 330, strict liability will be imposed if two elements are present: a) a non-natural use of land, and b) an escape: Mohamed, para. 47.

94In this case, the plaintiff argues that the disturbances arising from the use of the land, including what is characterized as the non‑natural use of the land, relate to the repeated break‑ins, drug‑related and criminal activity, and trespassing at the Gold Property over the years, which allegedly contributed to the origin of the fire.

95However, in Mohamed, O’Marra J. found at para. 47 that, “as with the claims in negligence and nuisance there being no evidence to establish the cause of fire, the claim for strict liability against the defendants is barred by the operation of s. 76 of the Fire Prevention and Protection Act, 1997 as well.”

96I agree and decline to entertain the nuisance and strict liability claim, particularly where, as here, the cause of this fire remains undetermined and is deemed to be accidental.

Duty under the Occupational Liability’s Act, R.S.O. 1990, c. 0.2.

97The plaintiff concedes that in the absence of a finding of negligence, there is also no breach of duty under the Occupational Liability’s Act.

Conclusion

98In summary, assuming – as I am entitled to do – that the record contains all the evidence the parties would adduce at trial, I conclude that there is no genuine issue requiring a trial with respect to the defendants’ alleged negligence concerning the origin and cause of the fire at the Gold Property.

99Although the parties had ample opportunity to develop the evidentiary record, material gaps remain. Despite the benefit of affidavits, discoveries, and cross-examinations, the record is deficient in critical respects, including, most notably, the absence of a sufficient evidentiary foundation from which to determine the cause and origin of the fire, whether human or non-human. Given that the parties were required to put their best foot forward, I conclude that these deficiencies reflect the absence of such evidence and the impossibility of its creation. Had such evidence existed, it would have been before the court.

100In these circumstances, it is not in the interests of justice for this issue to proceed to trial, or even to a mini‑trial under r. 20.04(2.2). Based on the efforts undertaken to date, I am not satisfied that doing so would have any realistic prospect of yielding a fuller appreciation of the evidence and issues necessary to make dispositive findings: Hryniak, at para. 16.

101Summary judgment is therefore granted in favour of the defendants on this issue.

Issue 2: Is there a genuine issue for trial with respect to the claim of negligence for failing to take reasonable precautions to protect the neighbouring property in the event of a fire?

102The defendants deny all allegations of negligence. They submit that they purchased the Gold Property from the City of Chatham in the same condition it was in on the day of the fire – specifically, without a functioning sprinkler system and without operational smoke or heat alarms or security cameras. Even if such systems had previously been installed, they were inoperable, as water and electrical services to the Property had been disconnected.

103The defendants maintain that, in this condition, the Gold Property met or exceeded the standard of care expected of a reasonably prudent industrial property owner. They further assert that the Property was maintained in a manner consistent with comparable industrial properties in the surrounding area. In any event, the defendants submit that it was incumbent upon the plaintiff to adduce expert evidence establishing the applicable standard of care and demonstrating any breach of that standard – an obligation the plaintiff failed to meet.

104The plaintiff argues that the defendants breached their duty of care as owners of a vacant industrial property by failing to ensure that the Gold Property was equipped with an operational sprinkler system or other fire‑mitigation measures, including functioning fire alarms, smoke detectors, or security cameras capable of facilitating early detection and response. The plaintiff argues that, had such systems been in place, the fire could have been contained or its spread to neighbouring properties mitigated.

105The plaintiff further submits that this duty was heightened by the close proximity of neighbouring residential properties and by the fact that a substantial portion of the Gold Property’s west wall ran parallel to – and appears to have been within inches of – the entire east wall of the adjacent Polish Club. The plaintiff also argues that, as the moving parties on the summary judgment motion, the defendants bear the burden of adducing expert evidence to establish the applicable standard of care and to demonstrate whether that standard was met.

106I agree with the plaintiff.

107In Neff, the Ontario Court of Appeal held that where the specific cause of a fire cannot be determined, s. 76 of the FPPA renders any inquiry into whether the defendant breached the applicable standard of care irrelevant. However, the Court also recognized that the manner in which a fire spreads may nonetheless disclose negligence on the part of a defendant: at para. 16.

108Similarly, in Moore, the Ontario Court of Appeal upheld a jury’s finding of negligence notwithstanding that the origin of the fire in a rooming house was unknown. The Court concluded that the appellants had fallen below the standard of care owed by a reasonable landlord to protect occupants in the event of a fire, and that this failure contributed to the death of one such occupant. At paras. 10 and 11, the Court stated:

While it is correct that the cause of the fire remained undetermined at trial, there is no need to delve into the inner workings of the Fire Protection and Prevention Act to resolve this ground of appeal because of what the jury found in relation to the appellants' negligent acts. At a minimum, the genesis of a fire does not immunize a landlord from a failure to take reasonable precautions to protect the occupants of a building from a fire, even if that fire breaks out accidentally.

In this case, the jury found that the appellants were responsible for Alisha’s death for the following reasons: the failure to ensure that a safety plan for the building was prepared, approved, and implemented; the failure to maintain smoke alarms in operating condition; and the failure to provide at least two exits from each “floor area” of the rooming house. Therefore, the jury’s finding of negligence had nothing to do with the source of the fire. Rather, the jury found that because of the appellants’ negligent acts, Alisha was left helpless in the face of a fire, which led to her injuries and eventual death. Therefore, I would not give effect to this ground of appeal.

109The defendants submit that Moore is distinguishable on the basis that the duty of care owed by a landlord to tenants in a residential rooming house differs fundamentally from that owed by the owner of a vacant industrial building in a commercially zoned area to neighbouring properties. That distinction may be valid. Nonetheless, the fact that a fire is deemed accidental does not, by itself, foreclose a claim grounded in alleged negligence relating to the manner in which the fire spread from the Gold Property to the Polish Club.

110While the duty of care applicable to the owner of a residential rooming house may differ from that owed by the owner of a vacant industrial building in an industrial or commercially zoned area, I am unable on this record to determine the applicable standard of care expected of a reasonably prudent industrial property owner in relation to “the condition and management” of the Gold Property – let alone whether the defendants met that standard.

111Under r. 20.01(3), the defendants, as the moving parties, bore the onus of satisfying the court – on the basis of the evidentiary record - that there was no genuine issue requiring a trial, before the burden shifted to the responding party to demonstrate that its claim had a real chance of success: Sanzone, at paras. 24 and 30. This required the defendants to put their best evidentiary foot forward, which ordinarily includes an affidavit or report from a qualified expert addressing the applicable standard of care and whether that standard was met in support of the defence: Sanzone, at paras. 24 and 31. That did not occur with respect to this aspect of the case.

112Expert evidence is not always required to establish the applicable standard of care in negligence cases. Exceptions to this general principle were identified in Metropolitan Toronto Condominium Corporation No. 1100 v. A. & G. Shanks Plumbing & Heating Limited, 2017 ONSC 7237 (Ont. S.C.J.) (“Shanks”), as follows:

First, there is no need for expert evidence on “nontechnical matters or those of which an ordinary person may be expected to have knowledge”. Second, there is no need for expert evidence for “egregious” conduct where it is “obvious” that the defendant's conduct has fallen short of the standard: 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at paras. 53, 55 and 57.

113In Shanks, the standard of care at issue concerned a plumber performing soldering work. Hood J. held that, where there is a dispute as to whether the plaintiff has established on a balance of probabilities that the defendant breached the applicable standard of care, it is incumbent upon the plaintiff to adduce expert evidence defining that standard in order for the court to conclude that it was breached: Shanks, at para. 160.

114I note, however, that Shanks was decided following a trial, whereas Sanzone arose in the context of a summary judgment motion. In my view, under r. 20.01(3), the onus in the present case rests with the moving parties – the defendants – to establish the applicable standard of care.

115While I appreciate that Sanzone and Shanks arose in the context of professional negligence, I am nonetheless satisfied that, as in those cases, there is a genuine dispute here regarding the applicable standard of care – specifically, the standard expected of a reasonably prudent owner of vacant industrial property in a commercially zoned area to mitigate the risk of fire damage to neighbouring properties – and whether the moving parties have demonstrated, on a balance of probabilities, that any such standard was met.

116In its Statement of Claim, the plaintiff alleges several breaches of the defendants’ duty of care that it claims contributed to the spread of the fire and the destruction of the Polish Club. The alleged breaches include the following:

• Failing to have an adequate smoke detection system
• Failing to have an adequate fire suppression system
• Failing to have a supervision system in place.

117Habash further opined that, had the Gold Property been equipped with functional sprinkler systems, security alarm systems, or security cameras, the fire may have been prevented or, at a minimum, its severity mitigated, including the potential prevention of its spread to the Polish Club.

118In the absence of expert evidence tendered by the defendants, the applicable standard of care expected of a reasonably prudent industrial property owner to protect neighbouring properties from the risk of fire in the circumstances of this case remains in dispute and therefore constitutes a genuine issue requiring a trial. This is particularly so given that, while the two buildings are physically stand‑alone structures, they appear to have been in very close proximity to the other – perhaps separated by only inches. That proximity could, arguably, reasonably support the contention that, for the purposes of risk assessment and required precautions, the structures effectively functioned as a single building.

119Accordingly, the defendant moving parties have not demonstrated that there are no triable issues as to whether their alleged negligence contributed to the spread of the fire and the resulting damage to the Polish Club.

120Summary judgment is therefore dismissed on this issue, and the matter shall proceed to trial.

121Finally, the plaintiff submits that allegedly contradictory evidence given by Gold significantly undermines his credibility and reliability, thereby precluding the court from fairly and justly concluding that no genuine issues requiring a trial exist. I do not agree. The identified inconsistencies concern relatively minor matters, including when Gold acquired the Gold Property, whether the items stored there were personal or business‑related, and whether the building was ever “shuttered.” Any discrepancies in these areas – or in the alleged factual conflicts between Gold and Bushey regarding the number of security breaches at the Gold Property – and whatever bearing they may have on the credibility or reliability of either witness, did not materially affect my analysis of whether summary judgment should be granted or dismissed.

G. PARTIAL SUMMARY JUDGMENT

122I have granted the defendants partial summary judgment in this matter. I appreciate that doing so may give rise to concerns about duplicative proceedings or inconsistent findings of fact: Butera v. Chown, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 25 – concerns that may not “serve the goals of timeliness, affordability and proportionality”: Hryniak, at para. 66. In the circumstances of this case, however, I am satisfied that any such concerns have been significantly mitigated, if not eliminated, by my ruling.

123Resolving one of the two issues while permitting the other to proceed allows the parties to focus exclusively on the remaining issue at trial. This approach will streamline the proceedings and result in savings of both party‑related costs and judicial resources. Witness evidence need not be unnecessarily duplicated, and time will not be spent at trial revisiting evidence already heard and issues already determined. Moreover, there is little risk of inconsistent findings, as the issue of the fire’s origin and cause has been resolved, leaving only the issue of alleged negligence arising from the spread of the fire. Proceeding in this manner serves the interests of all parties and advances the Hryniak objectives of proportionate, timely, and affordable justice without undue delay or expense: Malik v. Attia, 2020 ONCA 787, at para. 61.

H. JUDGMENT

124I am satisfied, on the evidence before me, that there is no genuine issue requiring a trial with respect to the defendants’ alleged negligence concerning the origin and cause of the fire. The defendants’ motion for summary judgment on this issue is therefore granted.

125I am also satisfied, however, that a genuine issue requiring a trial remains as to whether the defendants’ alleged negligence contributed to the spread of the fire and the resulting damage to the Polish Club. The defendants’ motion for summary judgment on this issue is accordingly dismissed.

I. COSTS

126I find the results are mixed and therefore no costs order will issue.

Brian D. Dubé