



COURT OF APPEAL FOR ONTARIO

CITATION: Metropolitan Toronto Condominium Corporation No.
    1100 v. A. & G. Shanks Plumbing & Heating Limited, 2020 ONCA 67

DATE: 20200131

DOCKET: C64763 & C64784

Strathy C.J.O., MacPherson and Jamal JJ.A.

DOCKET:
    C64763

BETWEEN

Metropolitan Toronto
    Condominium Corporation No. 1100

Plaintiff (Appellant)

and

A.
    & G. Shanks Plumbing & Heating Limited
, 1586208 Ontario Limited,
    carrying on business as Shanks Plumbing and Heating and Addison Heating and Cooling
    Ltd.

Defendants
(
Respondent
)

DOCKET: C64784

BETWEEN

David Bruce Fingold

Plaintiff (Appellant)

and

A.
    & G. Shanks Plumbing & Heating Limited
, 1586208 Ontario Limited,
    carrying on business as Shanks Plumbing and Heating and Addison Heating and Cooling
    Ltd.

Defendants (
Respondent
)

C. Kirk Boggs and Jennifer L.
    Hunter, for the appellants Metropolitan Toronto Condominium Corporation No.
    1100 and David Bruce Fingold

Christopher I.R. Morrison,
    Joel Cormier, and Peter K. Boeckle, for the respondent

Heard: January 14, 2020

On appeal from the judgment of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated December 4, 2017.

REASONS FOR DECISION

[1]

The appellants appeal the dismissal of their actions
    for damages arising out of a fire that destroyed an historic mansion, which was
    part of a condominium development in Toronto.

[2]

The fire was detected shortly after a plumber,
    employed by the respondent, had repaired a leaking pipe in the basement
    ceiling, using a blowtorch and solder. The fire originated in the ceiling, near
    the location of the plumbers work.

[3]

The appellants submit that the trial judge erred
    in failing to find that the fire was caused by the plumbers negligence. We
    dismissed the appeal with reasons to follow. These are our reasons.

Background

[4]

At the commencement of trial, counsel for the
    appellants stated that he did not propose to call expert evidence on the
    standard of care, because the plumbers conduct was egregious and obviously
    fell below the standard. This position was taken in reference to this courts
    decision in
495793 Ontario Ltd. (Central Auto Parts) v. Barclay
, 2016 ONCA 656, 132 O.R. (3d) 241, which holds that expert evidence
    is not necessary
where the impugned actions are so egregious that it is
    obvious that the defendants conduct has fallen short of the standard of care
    without even knowing precisely the parameters of the standard of care:
at para. 57. The other established circumstance in which expert
    evidence is unnecessary is where the evidence concerns nontechnical matters or
    those of which an ordinary person may be expected to have knowledge:
Barclay
, at para. 55.

[5]

Notwithstanding their decision not to adduce expert
    evidence, the appellants tendered some evidence of the standard of care by
    reference to the
National Fire Code of Canada 2005

and the
Fire Code
, O. Reg. 213/07.
    However, as the trial judge noted, there was no expert evidence that the
National
    Fire Code
formed part of the standard of care applicable
    to plumbers in Ontario in 2009, and the Ontario
Fire Code
did not include soldering as part of its Hot Works regulations at
    the time of the events.

[6]

On the issue of causation, the appellants adduced
    the evidence of two expert witnesses, who testified that the fire was caused by
    the flame of the plumbers torch coming into contact with combustible materials
    in the work area  a fairly confined space between the basement ceiling and the
    floor above, where the leaking pipe was located.

[7]

The respondent did not adduce expert evidence on
    either the standard of care or causation. However, the plumber who performed
    the work testified about the precautions he had taken:

·

before
    starting the work, he inspected the work area and found no flammable or
    combustible materials;

·

he
    knew that it was necessary to wet down the work area to prevent a fire, but did
    not do so in this case because the area was completely soaked when he got
    there, due to a fan-shaped spray from the leaking pipe;

·

he
    placed a fire extinguisher beside his ladder while he was working;

·

while
    doing the work, he pointed the flame of the blowtorch in a downward direction
    and away from the wood structures above him;

·

he
    was aware of the need to use a fire-resistant blanket to protect flammable
    areas, but did not use one in this case because it would have been impractical
    as it would not have stayed in place in the ceiling;

·

after
    completing the soldering work, he remained in the area and carried out a
    30-minute fire watch to ensure that there was no sign of fire or smoldering 
    he did not notice any; and

·

before leaving the site, he went up his ladder one last time to
    check his work.

[8]

The trial judge found the plumbers evidence was
    both credible and reliable. He accepted the plumbers evidence that the work
    area was completely soaked due to the spray from the leaking pipe and that he
    did not observe any combustibles, other than the wooden structural materials,
    which were also wet from the leak. He also accepted the plumbers evidence that
    he had pointed his torch downwards while performing his work (a fact also admitted
    by the appellants in an agreed statement of facts), and that any combustibles
    were above the work and therefore above the flame of his torch. The appellants
    experts did not address how the fire could have occurred in light of the
    plumbers evidence.

[9]

On the issue of standard of care, the trial
    judge found that neither
Barclay

exception was
    applicable: soldering is a technical matter requiring expert evidence of the
    standard of care and there was nothing egregious about the plumbers conduct.
    He concluded: In my view it was incumbent upon the plaintiffs to lead expert
    evidence to establish the appropriate standard of care in order for the court
    to find that it had been breached. They did not do so and because of this their
    claim must be dismissed.

[10]

The trial judge also addressed causation,
    finding that, while the evidence was somewhat problematic, as the plumber was
    the only one working in the vicinity of the location where the fire started,
    there was no evidence that anything he did caused the fire.

[11]

On appeal, the appellants make two primary arguments: first,
    that the trial judge erred by failing to draw an inference of a breach of the
    standard of care based on the circumstantial evidence, namely, that a fire
    occurred under the plumbers watch, with no alternate explanation for how the
    fire occurred; and second, that the trial judge erred by failing to draw an
    inference of causation in light of the circumstantial evidence.

Elements of negligence

[12]

To succeed in a claim for negligence, a
    plaintiff must establish: (a) that the defendant owed them a duty of care; (b)
    that the defendants conduct breached the standard of care; (c) that they
    sustained damage; and (d) that the damage was caused, in fact and in law, by
    the defendants breach:
Mustapha v. Culligan of Canada Ltd.
, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[13]

There was obviously a duty of care in this case.
    A plumber carrying out work in a house owes a duty of care to the owner to use
    reasonable care in the performance of that work.

[14]

Nor is there any dispute that the plaintiffs
    suffered damages, although there is a live controversy about the quantum.

[15]

The real issues in this case are: (b) whether
    the defendants conduct breached the standard of care and, if so, (d) whether
    that breach caused the plaintiffs damage.

Analysis

[16]

In
Fontaine v. British Columbia (Official
    Administrator)
, [1998] 1 S.C.R. 424, the Supreme Court of
    Canada explained the proper approach to be taken by trial judges when considering
    circumstantial evidence in negligence cases. The court stated, at para. 27:

[Circumstantial] evidence is more sensibly dealt with by the
    trier of fact, who should weigh the circumstantial evidence with the direct
    evidence, if any, to determine whether the plaintiff has established on a
    balance of probabilities a
prima facie
case of negligence against the
    defendant. Once the plaintiff has done so, the defendant must present evidence
    negating that of the plaintiff or necessarily the plaintiff will succeed.

[17]

In other words, where circumstantial evidence has been adduced, the
    trial judge must consider whether that evidence gives rise to an inference, or
    a series of inferences, that support a finding of a breach of the standard of
    care or of causation. The trial judge must then weigh any such inferences along
    with any direct evidence to determine whether, on a balance of probabilities,
    the plaintiff has established a breach of the standard of care or causation.
    Where a plaintiff has done so, the defendant bears a strategic burden to present
    its own evidence to rebut the plaintiffs case. The legal burden of proof, of
    course, remains on the plaintiff throughout:
Marchuk v. Swede Creek
    Contracting Ltd.
(1998), 116 B.C.A.C. 318, at para. 10.

[18]

Where, as here, the plaintiff has done nothing
    to cause the fire, and the defendant is effectively in control of the place or
    thing that is the source of the fire, an inference of a breach of the standard
    of care, or of factual causation, or of both, may arise from the very happening
    of the fire. The defendant can rebut those inferences by adducing evidence that
    undermines the plaintiffs case, points to other non-negligent causes of the
    fire, or supports the exercise of reasonable care. The precise nature of the
    evidence required to do so will be different in every case, depending on the
    relative strength of the plaintiffs evidence in support of the finding.

[19]

In this case, the trial judge explicitly
    rejected the appellants argument that the plumbers conduct was egregious. As
    the appellants called no expert evidence to show that the plumbers precautions
    fell below the applicable standard of care, the trial judge was entitled to
    conclude that, considering all the direct and circumstantial evidence,
    including the respondents evidence, the appellants had failed to discharge
    their burden of proving a breach of the standard of care. We are not satisfied
    that he erred in that conclusion.

[20]

As the trial judge did not err on the standard
    of care issue, there is no need to address his causation analysis.

[21]

We would, therefore, dismiss the appeal. The respondents cross-appeal
    on damages is rendered moot. Costs of the appeal and cross-appeal are awarded to
    the respondents, fixed in the amount of $40,000, inclusive of disbursements and
    all applicable taxes.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M. Jamal J.A.


