Spreading Fires: Issues That Arise When Fires Originate At A Neighbour's House

Background

The determination of liability regarding fire loss cases in Ontario hinges upon the finding of a specific cause of the fire. If it is not possible to determine how the fire originated, the owner of the building may be relieved of liability altogether under s. 76 of the Fire Protection and Prevention Act, which reads as follows:

76. No action shall be brought against any person in whose house or building or on whose land any fire accidently begins, nor shall any recompense may be made by that person for any damage suffered thereby; but no agreement between a landlord and tenant is defeated or made void by this Act.

Cases

The recent decision of Mohamed v. Banville1 is a reminder that unless one can establish certain facts the Plaintiff will not succeed in a subrogated claim. Indeed in this case the claim was struck out at the summary judgment stage.

A fire started at the Defendant's residence. The fire spread to a neighbouring property owned by the Plaintiff. The Plaintiff settled his property damage claim with his Insurer. The Insurer then brought a subrogated action to recover approximately $150,000.00 for damages to the Plaintiff's property.

The Defendant had been out drinking and returned to his house intoxicated. He asked one of the other tenants if they could give him a cigarette, but they did not have any. He then went back to his residence and fell asleep on the couch.

The Defendant woke up to the sound of the smoke alarm. The couch he was sitting on was not hot or in flames. The Plaintiff's property was severely damaged and the Defendant's property burned to the ground.

The fire marshal's investigation did not reveal a cause of the fire. The Plaintiff's Insurer hired an engineering firm that concluded the most probable cause of the fire was careless smoking on the couch.

The evidence supporting the engineer's probable cause report were that, the Defendant was a smoker, he was impaired, he was asleep on the couch, and the burn pattern. Unfortunately there was no evidence of smoker's materials in the couch area.

The court granted the Defendant an order dismissing the case on a motion for summary judgment. In its reasons the Court stated that in careless smoking cases the Plaintiff must establish that there was smoking at or around the time the fire started, and in proximity to the origin of the fire. Without that evidence, it was deemed an "accidental fire" which is statute barred by section 76 of the Fire Protection and...