Appeal Dismissed: There Was No Other Explanation For The Fire, But There Was Also No Expert Evidence

One would expect, when hiring a plumber, that the plumber will not cause a fire when using a blowtorch and solder. If a fire breaks out shortly after the plumber used a blowtorch and solder, in the vicinity of his/her work area, one might assume that the fire was caused by the plumber's work. However, this assumption alone will not suffice to establish negligence.

In Metropolitan Toronto Condominium Corporation No. 1100 v. A. & G. Shanks Plumbing & Heating Limited ("MTCC 1100"),1 a fire destroyed a historic mansion, which was part of a condominium development. The fire was detected shortly after a plumber employed by A. & G. Shanks Plumbing & Heating Limited ("Shanks") had repaired a leaking pipe in the basement ceiling, using a blowtorch and solder. The plumber finished his work at around 2:45 p.m., conducted a fire watch until 3:15 p.m., and then left at 3:20 p.m. Half an hour later, at 3:51 p.m., a 9-1-1 call was made reporting a fire at the mansion. It was determined that the fire originated in the ceiling, near the location of the plumber's work. The condominium corporation ("MTCC 1100") sued Shanks in negligence for close to $5.5 million in damages.

MTCC 1100 adduced expert evidence that the fire was caused by the flame of the plumber's 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. The trial judge had some difficulty with this expert evidence. One of MTCC 1100's experts opined that the combustible materials located above the work area must have been ignited by an open flame directed upwards. However, the parties had admitted, in an agreed statement of facts, that the plumber pointed his blowtorch downwards towards the ground when he was doing the soldering work. Hence, the factual foundation for the expert opinion (an upward open flame) was contradicted by the evidence (a downward open flame). MTCC 1100 unsuccessfully argued that there was no other explanation for the fire. The trial judge wrote:

"While the evidence is somewhat problematic, in that [the plumber] was the only one working in the immediate vicinity of the location where the fire originated, and in that soon after his work a fire started, there was no evidence that anything he did caused the fire."2

The trial judge also took issue with the lack of evidence on the applicable standard of care. At the commencement of trial, MTCC 1100's...