



COURT OF APPEAL FOR ONTARIO

CITATION: 1369349 Ontario Inc. v. Yanch
    Heating and Air conditioning

(Barrie) Limited, 2012 ONCA 182

DATE: 20120321

DOCKET: C53560

MacPherson, LaForme J.J.A. and Pattillo J. (
Ad
    hoc
)

BETWEEN

1369349 Ontario Inc.

Plaintiff (Appellant)

and

Yanch
    Heating and Air conditioning (Barrie) Limited and

Andrew Bates c.o.b. as Live Wire
    Electrical

Defendant (Respondent)

Roger Chown and David Thompson, for the plaintiff
    (appellant)

Daniel Dooley, for the respondent Andrew Bates

Heard and released orally: March 20, 2012

On appeal from the judgment of Justice John R. McIsaac of
    the Superior Court of Justice, dated March 14, 2011.

ENDORSEMENT

[1]

The appellant alleged that Andrew Bates, the respondent, negligently
    damaged the armoured cable he installed in the appellants building causing a
    fire in the building two weeks later.  The trial judge found that the respondent
    was not negligent.  This is an appeal from that decision.

[2]

The appellant advances several grounds of appeal.  First, it submits
    that the respondent was required to provide an explanation, based on evidence,
    for the cause of fire in order to rebut the presumption of negligence suggested
    by the experts.

[3]

The appellant next submits that the trial judge ignored, misapprehended
    or misunderstood the jointly retained experts evidence.  In the alternative,
    it argues that the reasons of the trial judge for rejecting this evidence and
    accepting the respondents denial of negligence are inadequate.

[4]

We reject these grounds of appeal.

[5]

The task of the trial judge in this case was to decide on all the
    evidence, whether it could be fairly inferred that the fire was the result of
    the respondents conduct.  If a review of the evidence revealed that the cause
    of the fire remained unknown, then the required burden of proof upon the
    plaintiff would not have been satisfied and the trial judge would be required
    to dismiss the action.  That is what occurred in this case.

[6]

The jointly retained expert testified to only two ways that the
    respondent could have caused the fire: (1) by severely abusing the armoured
    cable including bending it severely, or (2) by yanking the armoured cable if
    it became caught when it was fished above a false ceiling.

[7]

The trial judge found that the respondent did not severely abuse, bend
    or yank the armoured cable.  This finding was open to the trial judge and the
    evidence was more than sufficient to support it.  He was entitled to believe
    the respondent on this issue, which was sufficient to rebut the presumption of
    negligence.  As the trial judge stated at paragraph 17:


although I have some suspicions about the quality of this
      installation and as to the overall credibility of the defendant, these concerns
      do not rise to a sufficient level to cause me to not accept his denial of
      professional negligence in this case.  I am satisfied that the appropriate
      standard of care was met and, accordingly, that the inference to the contrary
      has been rebutted.


[8]

The trial judges analysis was consistent with
Fontaine v. British
    Columbia (Official Administrator)
, [1998] 1 S.C.R. 424.  Accordingly, this
    ground of appeal is dismissed.

[9]

On the remaining grounds of appeal, there was no evidence that the fire
    was caused by a manufacturing defect in the armoured cable.  Further, the
    reasons of the trial judge are sufficient.  They pose no difficulties in either
    informing the appellant as to the reasons why the claim was dismissed or
    allowing for meaningful appellate review.

[10]

For
    these reasons, the appeal is dismissed with costs to the respondent in the
    amount of $16,000 inclusive of disbursements and HST.

J.C. MacPherson J.A.

H.S. LaForme J.A.

Pattillo J. (
Ad hoc
)


