Court of Appeal Decision of the Week

The Legal Standard of Causation: Smoke and Fire at the Court of Appeal

Case: Boon v. Mann, 2016 BCCA 242 (CanLII)

Keywords: Personal Injury; Smoke Detectors; Causation Analysis

Synopsis:

The Appellants, Kenneth Boon and Leona Douglas rent a suite in a home belonging to the Respondent, Kashmir Mann. During their move-in inspection, the Appellants note the absence of smoke alarms and ask the Respondent to install them. The alarms are not installed.

Late in the evening of July 12, 2011, Leona Douglas wakes up to use the washroom; discovers a fire. The Appellants and their guests escape, but lose their personal belongings and several dogs. In addition, the Appellants sustain minor physical and psychological injuries from the upsetting events of the fire.

The Trial Judge dismisses the Appellants’ claim. Although the Respondent was negligent in failing to install smoke alarms, the Appellants failed to establish, on a balance of probabilities, the Respondent’s negligence caused the losses claimed.

The Appellants raise the following grounds of appeal:

  1. Did the trial judge err in applying the incorrect legal standard of causation?
  2. Did the trial judge err in misapprehending the evidence regarding the causal role that the absence of smoke alarms played in the appellants’ personal and psychological injuries as distinct from their property loss?

The Court of Appeal dismisses the appeal; finds the Trial Judge applied the correct causation test; and no evidence smoke alarms would have allowed for an earlier escape.

Importance:

With respect to the legal standard of causation, the Court of Appeal referred to Snell v. Farrell, [1990] 2 SCR 311, 1990 CanLII 70 (SCC) and Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32 (CanLII); both decisions emphasize the importance of showing a substantial connection between the injury in question and the defendant’s negligence:

…The usual requirement of proof of “but for” causation should not be relaxed where the result would be to permit plaintiffs to recover in the absence of evidence connecting the defendant’s fault to the plaintiff’s injury… (See Clements at para. 21).

Accordingly, the Trial Judge held the Appellants were required to show, “the malfunction of the smoke alarm, or its non-existence, was causally linked to the spread of the fire and the damage caused by the fire” (see, at para. 18).

At trial, a professional engineer (an expert in fire investigation and analysis) concluded both that, “the spread of the fire could not have been contained had a working smoke alarm been in place” and “the damage to the property would not have been lessened had a working smoke alarm been in place” (see at para. 6).

Under cross-examination, the same expert testifies he “did not know” whether a smoke alarm would have permitted the Appellants to escape sooner (see at para. 6).

The Court of Appeal concluded there was an absence of evidence as to the cause of the fire. Moreover, the Appellant had produced no evidence as to whether the fire, “…would have produced smoke sufficient to have activated the fire alarm, but not sufficient to create an active fire within the time frame that would have permitted fire suppression from the small fire extinguishers available for use, or within the seven minutes it took the fire department to arrive” (see, at para. 20).

As such, the Court of Appeal could not agree with the Appellants’ argument that, in the circumstances of this case, the Trial Judge ought to have relaxed the causation test so as to permit a “common sense” analysis of the issue.

With respect to the second issue, whether the Trial Judge erred in “misapprehending the evidence”, the Court of Appeal affirmed the Trial Judge’s finding there was simply no evidence beyond “mere conjecture” that an early warning would have prevented the loss suffered by the Appellants; their physical and psychological injuries (see at para. 30). Moreover, the Court of Appeal stated this finding was, in any event, entitled to deference as there was evidence the Appellants were difficult to rouse but no evidence or opinion a smoke alarm would probably have woken the occupants in time to escape unharmed.

Counsel for the Appellant: Michael McCubbin (Whitecap Legal, Vancouver); Pierre Bisbicis (Bisbicis Law Corporation, Vancouver)

Counsel for the Respondent: Jennifer Loeb (Clark Wilson LLP, Vancouver)

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Posted: Tuesday, June 14, 2016