SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DONNA DOI-NOR CHAN Plaintiff
AND:
ANNIE LOUISE COWIE, MICHAEL COWIE, AND JOHN DOE Defendants
BEFORE: Justice E. Iacobucci
COUNSEL: J.S. Schacter and N.C. Searles, for the Plaintiff
E. Casey and A. Ghaeinzadel, for the Defendant
HEARD: January 22, 2026
ENDORSEMENT
Overview
1This is a motion for summary judgment in a tort action involving a fire at one residential house that caused damage to a neighbouring house. The homes were semi-detached, sharing a wall between them. The moving parties are the defendants to the action who seek summary judgment in their favour, stating that “This is a case that will largely be decided on issues of law rather than findings of controverted facts.”
2I dismiss the motion. The defendants raise legal issues that, if decided in the defendants’ favour, might well have justified summary judgment. I do not, however, decide the legal issues in the defendants’ favour. Moreover, in this case there is a thicket of contested questions of fact and mixed law and fact that I cannot resolve satisfactorily in a summary judgment motion. A trial is necessary.
Facts
3The defendants owned a semi-detached house that shared a common wall with the residence of the plaintiff. I use the past tense because both houses were damaged and eventually demolished because of a fire set by an arsonist in June 2017.
4Prior to the fire, the defendants were renovating their house and had stripped out much of the existing interior. In the process of doing so, protections against fire on their side of the common wall, including lathe and plaster, were removed. Moreover, the construction work accidentally created two holes in what the plaintiff describes as fire-rated drywall on her side of the wall. The plaintiff also alleges that the construction work removed fire-rated Roxul insulation on the plaintiff’s side of the wall. There is dispute whether the fire-rated insulation was removed, with the defendants citing photographs of the interior of their house days before the fire that they say demonstrates that the plaintiff’s insulation was intact, and the plaintiff citing a photograph of what she submits to be her Roxul insulation in a disposal bin on the defendants’ property. The plaintiff also submits that, since the defendants were planning to rely on spray foam insulation, the interior was required to be free of dust and debris, which also suggests that the construction work involved the removal of her insulation.
5There are critical disputed facts, including the extent to which the plaintiff’s barriers on her side of the wall provided meaningful fire protection and whether they were removed. There are also questions of mixed law and fact, such as whether the work required a permit, and the consequences of any such requirement. Each side has filed expert reports that review the permitting requirements, and also review the appropriate steps for preventing and mitigating damage from fires in construction projects such as this one.
6The plaintiff submits that the defendants were required, among other things, to repair the common wall within a week of its compromise, not to remove fire protections on the plaintiff’s side of the wall, not to puncture the plaintiff’s fire protections, to have a firewatch patrol during the period when the common wall’s fire protections were removed, to secure the house with proper locks and nailed boards over open windows, and to have a fence around their property. The defendants disagree on the facts (for example, they submit that the house was properly secured, and that they did not remove Roxul insulation from the plaintiff’s side of the common wall) and on questions of mixed law and fact about their responsibilities (for example, they submit that there was no requirement to engage firewatch patrols).
7There is also a dispute whether the defendants’ actions were a cause of the fire damage to the plaintiff’s house, or whether the damage would have occurred in any event. The defendants showed video at the hearing that they submit indicates that the arsonist had been around the property and had set a fire more than two hours before the fire department appeared, while the plaintiff submits that the fire only became acute about 20 minutes before the fire department was called, and 40 minutes before they appeared. The defendants submit that the fire would have damaged the plaintiff’s property whether or not they had damaged the common wall’s fire protection, while the plaintiff submits that the failure to take care was a but for cause of damage to the plaintiff’s house.
8There are, in short, a number of disputes about questions of fact and questions of mixed law and fact. Critical facts that are necessary to respond to the question of law that is central to this motion are, however, uncontroversial: a fire occurred, and was set by an arsonist. As I will explain, the critical question before me in this motion is whether the fact of arson implies that summary judgment in favour of the defendants is appropriate.
9I review the test for granting summary judgment, and then review the legal implications of arson in this case. I do not accept that the fact of arson implies that summary judgment is appropriate. Moreover, given the extent of contestable facts and questions of mixed law and facts in this case, my failure to accept the defendants’ argument about the legal significance of arson implies that a trial is necessary.
Summary Judgment Procedure
10The test whether summary judgment is appropriate in a given case can be summarized as follows (Waxman v. Waxman, 2021 ONSC 2180, at paras. 57-60, aff’d 2022 ONCA 311, 471 D.L.R. (4th) 52, leave to appeal refused, [2022] S.C.C.A. 188):
The court shall grant summary judgment if “the court is satisfied that there is no genuine issue” that requires a trial (Rules of Civil Procedure R.R.O. 1990, Reg. 194, r. 20.04).
There is no genuine issue that requires a trial if 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.” (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49).
In determining whether a trial is required, rule 20.04(2.1) allows the court to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence, unless it is “in the interest of justice for such power to be exercised only at a trial”. If these expanded fact-finding powers do not enable the court to decide the matter, it may direct that a mini-trial be conducted if doing so will allow the court to resolve the matter. (Hryniak, at paras. 44-45).
On a motion for summary judgment: (a) each party must put its best foot forward; (b) the responding party “must lead trump or risk losing”; and (c) the motion judge is entitled to assume that all evidence that might be adduced by the respondent at trial has been adduced on the motion. (See 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.), at p. 557; Northern Industrial Services Group Inc. v. Duguay, 2016 ONCA 539, 268 A.C.W.S. (3d) 327, at paras. 16-17; Queen Street Holdings Inc. v. Z-Teca Inc., 2017 ONSC 5890, 284 A.C.W.S. (3d) 394, at paras. 8-10; Tim Ludwig Professional Corp. v. BDO Canada LLP, 2017 ONCA 292, 137 O.R. (3d) 570, at para. 54; Chernet v. Galaites, 2017 ONCA 337, 278 A.C.W.S. (3d) 893, at para. 12; Auciello v. 3877337 Canada Inc., 2017 ONSC 2360, at paras. 33 and 39, aff’d 2018 ONCA 377).
11There are genuine issues for trial in this case, as I will explain.
12The plaintiff, broadly speaking, asserts three grounds for claiming damages. First, she submits that the defendants were negligent in failing to take reasonable care to prevent fire damage to her home. Second, her Statement of Claim sets out that the hazards associated with the construction project were sufficient to give rise to liability pursuant to the rule in Rylands v. Fletcher, [1868] UKHL 1, L.R. 3 H.L. 330. Third, the plaintiff seeks punitive and aggravated damages.
13The plaintiff focuses on this motion only on negligence in her responding factum, submitting not only that there is no basis for summary judgment dismissing the negligence claim, but further that there is a basis for this court to issue summary judgment on negligence in the plaintiff’s favour. She submits that a trial ought to be held only on the questions of punitive damages and the issue of damages in general.
14I conclude that there is no basis for summary judgment in favour of the defendants because of arson and considerations relating to the law of negligence. Because there are several disputes over facts and questions of mixed law and fact, however, I do not accept that summary judgment is otherwise appropriate in favour of either party. A trial is necessary. While they were not discussed in a meaningful way in the hearing, I reach the same conclusion in respect of the claim relating to Rylands v. Fletcher and the claim for punitive damages.
Negligence
Foreseeability
15The defendants’ central claim in this case is that there was no duty of care owed by the defendants to the plaintiff to prevent arson because arson is not reasonably foreseeable. If there were no relevant duty of care, I accept that summary judgment would be appropriate on the negligence question.
16According to Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, a successful negligence action requires proof of a duty of care, breach of the standard of care, and damage caused in fact and law by the breach. Following the English case of Anns v. Merton London Borough Council, [1977] UKHL 4, [1978] A.C. 728, the Supreme Court of Canada held in Cooper that a prima facie duty of care may be negatived by policy considerations. In determining negligence, the Supreme Court also emphasized the importance of foreseeability. Citing Donoghue v. Stevenson, 1932 536 (FOREP), [1932] UKHL 100, [1932] A.C. 562, the Court confirmed at para. 21 the principle that a person could be held liable only for reasonably foreseeable harm.
17The defendants submit that they did not breach any duty of care because the fire was set by an arsonist. They submit that the plaintiff’s case fails because the actions of the arsonist were not reasonably foreseeable, and they therefore did not owe a duty of care to prevent arson.
18The defendants cite for support the U.K. House of Lords case, Smith v. Littlewoods Organisation Ltd., [1987] UKHL 18, [1987] 1 All E.R. 710. In that case, a cinema owned by the defendants was under construction and was not secure. An arsonist set a fire that damaged neighbouring buildings. The building owner brought an action in negligence. The House of Lords found for the defendants, with Lord Goff observing that there is not a general duty to prevent harm caused by third parties, even if harm is foreseeable.
19Applying this logic to the present case, the defendants’ submission is that they did not owe a duty to their neighbour to prevent arson. The arson that occurred, they submit, was unforeseeable, and in any event there was no duty to stop a third party from causing damage to others; there was no reason for the defendants to foresee that an unknown person would access their property and set fire to it.
20Moreover, the defendants submit that they did nothing that increased the risk of fire in a foreseeable way. Their factum states at para. 31:
The Cowies [defendants] could not have reasonably foreseen that removing the plaster from the party wall, or accidentally poking two small holes in Ms. Chan’s [plaintiff’s] drywall, or any other of their renovation activities, would lead to an act of arson that spread to Ms. Chan’s unit. Removing the finishes were part of the ordinary use of a property under renovation and it was an inevitable phase of renovation that the wall and ceiling coverings would be removed.
21I am not persuaded that the logic of the Littlewoods decision requires summary judgment in the defendants’ favour. This is because while there may or may not be a duty to prevent arson in this case (the dispute over whether the building was secured suggest that this is contested), the plaintiff submits that there was a duty to take care to prevent fire damage to the plaintiff’s house, whether caused by an arsonist or something else. The House of Lords emphasized in Littlewoods that the building owner was making ordinary use of its property. I do not take Littlewoods to imply that, had the building owner been negligent by failing to take reasonable care to prevent fire damage to its neighbour’s property, and had this negligence been a but for cause of the fire damage, that the building owner could not be held liable in tort if the fire happened to start as a consequence of arson. Here the plaintiff’s case is that the defendants created a fire danger through their actions and omissions and ought to be responsible when the fire caused her damage.
22The defendants refer to other cases where courts declined to find a defendant liable for the criminal actions of a third party. I will not be exhaustive in my review because my reaction to each is similar: they turn on their facts and do not stand for the proposition that there is no duty to take reasonable care to prevent fire damage to a neighbour. I will review one additional case cited by the defendants: Condo Corp No. 1023525 v. Carlisle, 2022 ABQB 209. In that case, the owner of a building brought an action in damages caused by an arsonist at a neighbour’s property. The plaintiff argued that the neighbour should be held liable in part because of the wood framing of a construction site and the presence of propane tanks on site. The court found for the defendant, stating that:
Carlisle was making normal and ordinary use of its property and engaged in its usual business of developing entry-level apartment housing. It was acting in a socially acceptable manner, to use Lord Goff’s phrasing [from Littlewoods]. There was no unusual danger in the nature of a fire hazard on the Rutherford site and the presence of the wood-frame structure was also normal and ordinary (para. 61).
23The court in Carlisle found on the facts that there was nothing out of the ordinary or problematic about the defendant’s conduct in that case. The decision does not imply that, had the defendant failed to take reasonable care to prevent fire damage to its neighbour, and had that failure been a but for cause of damage, the fact that the arsonist set the fire would be sufficient to exclude the possibility of liability.
24In short, the disagreement between the parties is captured by para. 31 of the defendants’ factum set out above. The defendants submit that removing fire protections and poking holes in the plaintiff’s drywall could not have been reasonably foreseen to have led to arson that spread to the plaintiff’s house. But that is not the crux of the plaintiff’s negligence argument. Rather, her argument is that by removing fire protections, by failing to secure the house, by failing to implement a firewatch patrol, etc., the defendants failed to take reasonable care to prevent reasonably foreseeable fire damage to her property, however the fire started.
25In supporting her submission that there was a duty of care, the plaintiff cites Case v. Pattison, 2023 ONCA 529, 168 O.R. (3d) 426. In that case, Milton Hydro removed a luminaire beside a road. The Town of Milton regularly inspected the street for safety and did not require the luminaire’s replacement. Four years after the luminaire was removed, there was a collision on the road that injured a pedestrian, who brought an action in tort against the Town of Milton, who in turn brought a third party claim against Milton Hydro. There was a question whether the action against Milton Hydro could succeed because of the Town’s subsequent inspections and failure to object to the luminaire’s removal.
26The Court of Appeal for Ontario stated:
24Accordingly, even if the Town of Milton were negligent in failing to inspect the street lighting, the Town of Milton’s alleged negligence would not automatically or necessarily negate the reasonable foreseeability of harm arising from Milton Hydro’s removal of the luminaire. The motion judge appears to have approached these issues through a binary lens – either the Town of Milton or Milton Hydro was responsible but not both. She should have considered whether both could be responsible for the harm caused to the plaintiff pedestrian.
27At para. 26, the Court adopted a quotation from the Alberta case of Phillip v. Bablitz, 2011 ABCA 383, 532 W.A.C. 395, at para. 13: “the case law makes it clear that as long as the type or kind of injury is foreseeable, a plaintiff need not establish foreseeability of the extent of the injury or the precise manner of its occurrence.” [My emphasis.]
28I do not accept the submission of the defendants in the present case that questions of foreseeability allow me to grant their motion for summary judgment. The plaintiff’s negligence case rests on a submission that the defendants owed them a duty of care to take reasonable precautions to prevent fire damage to her house. This is surely correct. Wm. L. Chafe and Son Limited v. Murphy, 2011 NLCA 18, 304 Nfld. & P.E.I.R. 329 dealt explicitly with this question in the context of fire damage to a store from a fire that started in an adjoining store, stating at para. 28: “It follows from the above-noted general authorities and those pertaining to the escape of fire that an owner/occupier does owe a duty to take reasonable care to prevent damage, and in particular, damage caused by fire, to persons and property on adjoining premises.” The houses in the present case were connected by a common wall and the risk of fire that might damage the neighbour’s house is not a remote or unforeseeable risk. (The particular content of that duty is in dispute, and I make no findings on the question).
29The parties differ, however, on the significance of arson. The defendants submit that this case can be decided in their favour because there was no duty to prevent arson in the circumstances: arson was not a reasonably foreseeable risk. The plaintiff submits that there was a duty to take reasonable care to prevent fire damage to her.
30Whatever the fire’s exact cause, if the failure to take care caused fire damage, there is liability. As it was put in Phillip, the plaintiff need not establish foreseeability of the precise manner of the occurrence of the harm.
31The plaintiff submits that it was negligent for the defendants to have conducted the construction in the manner that they did, including by failing to get a permit, which might have required associated precautions such as fencing and invited safety inspections by the city, by stripping out all fire protection on their side of the common wall without promptly reconstructing it, by removing fire protection from the plaintiff’s side of the wall, by puncturing holes through the plaintiff’s side of the wall that breached fire protections for her house, by failing to secure the house adequately, and by failing to patrol the house to help keep it secure.
32Many of these claims are contestable on the facts, and/or on their relevance to the standard of care; I do not decide them in a summary judgment motion. But essential for the present summary judgment motion is the argument of the plaintiff that the defendants failed to take reasonable care to prevent fire damage to her property. Whether or not the defendants owed a specific duty to prevent arson is not critical to the plaintiff’s argument in this motion. Whether the fire was caused by a lightning strike, a battery fire, careless smoking, a spark, arson, or something else, the plaintiff submits that there was a duty to take reasonable care to prevent fire damage, and that the defendants breached that duty.
33The Case v. Pattison decision is apt. If, when Milton Hydro removed the luminaire, it was foreseeable that this could cause collisions with pedestrians such that its removal was negligent, there was a case in tort against Milton Hydro even if the Town of Milton was subsequently negligent in failing to inspect. In the present case, the plaintiff alleges that the defendants did not take sufficient care to prevent fire damage to her house and a fire did cause damage; a case in tort lies against them even if a subsequent tortfeasor, the arsonist, was also responsible for the damage. The defendants’ submission on arson treats the choice of responsibility for the fire as a binary decision, resting either with the arsonist or the defendants, which Pattison makes clear is incorrect – two persons can be responsible for the fire damage.
34One final word on the duty of care. The defendants submit that even if there were a prima facie duty of care in the present case, it ought to be negatived by policy considerations following Anns/Cooper. Their submissions on public policy relate to the undue burdens on homeowners if the defendants were found liable in this case for, to take one example, failing to retain a firewatch patrol. Such submissions may be relevant to assessing what reasonable care requires in the circumstances of this case, but determination of the appropriate standard of care is a matter that I leave for trial. There is no policy reason to conclude that homeowners do not owe a duty of care to prevent fire damage to their neighbours.
Causation
35The defendants submit that, but for the arsonist’s actions, there would not have been fire damage; therefore, there cannot be a successful tort claim. Para. 44 of their factum states:
The actions of the arsonist are the sole cause of the fire at the properties. If the renovation activities, security measures and/or statutory breaches are found to be breaches of a duty the Cowie defendants owed to the plaintiff, then these breaches did not cause or materially contribute to the fire. It cannot be said that the fire would not have occurred but for one or any of these alleged breaches. It can, however, be said that the fire would not have occurred but for the arsonist breaking into the Cowie home and purposefully igniting the said fire.
36The defendants analyze the cause of the fire as binary: given that the fire would not have occurred but for the actions of the arsonist, the defendants did not cause the fire regardless of their actions. This binary analysis is incorrect. There could be many “but for” causes of fire damage. The only relevant question for tort law is whether, but for the negligence, there would not have been fire damage. If the plaintiff is correct that the defendants failed to take care to confine the impact of fire to their side of the building, and that the failure to take care caused damage to the plaintiff’s property, then their actions may have caused the fire damage for the purposes of tort law even if the arsonist’s actions also caused the fire damage.
Summary Judgment
37The negligence action cannot be dismissed on this summary judgment motion because of the defendants’ submission that there are legal obstacles to the claim relating to the duty of care or causation. Moreover, there are a host of contested questions of fact and mixed law and fact that I have reviewed that render summary judgment inappropriate on other grounds.
38I am not in a position to determine the specific contents of the duty of care owed to a neighbour to prevent fire in these circumstances and whether it was breached in fact. Deciding a summary judgment motion requires judicial confidence that the record provides a sufficient basis for deciding the case, and that there are no genuine issues for trial. In the present matter, the competing expert reports and other complex, contentious and extensive documentary evidence do not give me that confidence. I accept that there was a duty of care to prevent fire but cannot decide on the record the specific requirements of that duty in the particular circumstances of this renovation project, nor whether the defendants breached that duty. Moreover, if there were a breach, I would be unable to decide on the record whether the breach caused the fire damage to the plaintiff’s house or whether the damage would have occurred in any event given the arsonist’s actions. The claims and responses require testing in a trial.
39Given the disputes about fundamentally important questions of fact and mixed law and fact, including about fundamental questions relating to the standard of care and causation, a full trial is necessary to provide an adequate foundation for a decision on negligence in this matter. It is not a case for summary judgment in favour of either party.
Rylands v. Fletcher
40The plaintiff, in her Statement of Claim, raises Rylands v. Fletcher as supporting liability. It did not come up in the hearing in a meaningful way. Given that there are factual issues that may be relevant to the analysis, and given that a trial is necessary in any event, I do not decide this issue on summary judgment.
Punitive, Aggravated and/or Exemplary Damages
41The plaintiff seeks punitive, aggravated and/or exemplary damages. I have not decided whether damages are appropriate and instead have decided that a trial is appropriate. Moreover, a claim for punitive and other damages turns on facts that merit determination at trial. In these circumstances, it is appropriate to defer consideration of damages questions to the trial.
Evidentiary Issue
42The defendants sought to prevent the plaintiff from citing an affidavit of one of their witnesses given that the witness is not a party to the action. The plaintiff accepted that I would not rely on the contested affidavit in deciding this summary judgment proceeding, and I have not done so. There is no need to decide the evidentiary question in this motion since nothing in my reasons turns on it, and a trial is necessary in any event to resolve questions of fact and mixed law and fact.
Conclusion
43This motion for summary judgment is dismissed. The plaintiff requests costs. In the event that the parties are unable to agree on costs, I invite the parties to send submissions no longer than three double-spaced pages to my assistant at annamaria.tiberio@ontario.ca no later than thirty days from today.
______________________________ E. Iacobucci J
Date: January 29, 2025