The determination of liability regarding fire loss cases in Ontario often hinges upon the finding of a specific cause of the fire. If it is impossible to say how the fire originated, the owner or occupier of a building may be relieved of liability altogether under s. 76 of the Fire Protection and Prevention Act, an issue that has taken on renewed significance in light of the recent tragedy at a Quebec seniors’ home.
Twenty-eight people have now been confirmed dead and four others are presumed to have died after the horrific blaze at the Résidence Du Havre in L’Isle Verte, Que. The initial focus of the public was on the devastating effect the tragedy inflicted on the victims and their families. Attention has now shifted towards the placement of blame. People are asking some very hard questions as litigation looms.
The investigation into the cause of the fire is still in its infancy and police have not ruled out a criminal act. A burning cigarette is also just one of the possible causes of the deadly blaze.
The tragedy prompted me to ask the following question: If investigators never find a cause, from whom can the victims’ families seek compensation for the loss of their loved ones? A review of case law and legislation in Ontario begins to shed some light on possible outcomes if the tragedy had occurred in this province.
Before considering legislation and case law, it will be helpful to refer to some authorities that deal with the rule, doctrine or maxim of
res ipsa loquitor (the thing speaks for itself).
As Lord Dunedin said in
Ballard v. North British Railway Co.: “I think that, if the defenders can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears, and the pursuer is left as he began, namely, that he has to show negligence.”
Much more recently, in the 1992 British Columbia Court of Appeal case of
Mazloom v. Central Mountain Air Services Ltd., then-justice D.M.M. Goldie wrote: “It will be seen that
res ipsa loquitur may apply to the disappearance of an aircraft as it may to any inexplicable injurious event for which the defendant advances no innocent cause. The condition of its application is satisfied when the evidence at trial supports an inference of negligence and the defendant offers no acceptable explanation to counter or neutralize that inference. The trier of fact in this circumstance may then treat the fact of the injurious event as evidence of negligence.”
The Accidental Fires Act echoes s. 76 of the Fire Protection and Prevention Act and has only one section. Section 1 provides as follows: “No action shall be brought against any person in whose . . . building or on whose land any fire accidentally begins, nor shall any recompense be made by that person for any damage suffered thereby.”
In
Neff v. St. Catharines Marina Ltd., the Ontario Court of Appeal confirmed that under s. 1 of the current Accidental Fires Act, an “accidental” fire would be a fire that was incapable of being traced to any cause.
A precondition for the finding of negligence under the doctrine of
res ipsa loquitur is that the occurrence must be such that it would not have happened without negligence. Thus, if this fire had occurred in Ontario and investigators found no definite cause, it is possible the court could find no negligence on the part of the owner of the seniors’ home.
Conversely, if investigations revealed a particular cause that was the result of the owners’ negligence, the court could find them liable for damages. A 2012 summary judgment decision,
Kidman v. Christoforatou, illustrates such a situation. In this case, a fire destroyed a century-old church converted into rental apartments that resulted in the deaths of two young children and the serious injury of another. The defendant property owner claimed the fire was “accidental” in the sense that it could not be traced to a particular cause or in the sense that it was not caused or spread by negligence. Counsel for the plaintiff defeated the defendant’s motion. Within the motion, the plaintiffs relied on the fire marshal’s finding that the cause of the fire was electrical malfunction. With a clearly defined area of origin, the elimination of all other ignition sources, and no evidence inconsistent with the hypothesis, it was proper to determine that electrical failure was the source of ignition.
I was in disbelief when I learned there was a lack of automatic sprinkler systems at Résidence Du Havre. Authorities will undoubtedly find this fact to have contributed to the spread of the fire.
How is it that a facility specifically built for individuals who would have great difficulty making a swift emergency exit in the case of a fire did not have automatic sprinklers? At first blush, this should be the nail in the coffin for the owner of the seniors’ home. Shockingly, however, in Quebec the installation of automatic sprinkler systems in seniors’ homes is not mandatory. Without a violation of the fire safety or building code, the lack of such safety equipment will not be determinative of negligence on the part of a building owner under statute. There is something inherently wrong about this.
In 2014, Ontario became the first province to require older care facilities to retrofit themselves with automated sprinkler systems. The timeline to retrofit, however, clearly places concern for cost above the safety of a vulnerable group. Licensed retirement homes and private care facilities have up to five years to install sprinklers while publicly owned nursing residences have until 2025.
The loss of so many people in such a tragic way is truly lamentable. What remains unclear is whether or not authorities will find the owner of the seniors’ home to have been at fault. It may be that no one will ever be held accountable for this tragedy. Ascertaining fault, however, is just the first of many steps on the long road to proving negligence in law.
Erik Joffe is a lawyer at Neinstein & Associates LLP.
