Bridgwater v. Stanhope et al., (2009) 238 Man.R.(2d) 314 (QB)

• Judge: Kaufman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 06, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 238 Man.R.(2d) 314 (QB);2009 MBQB 81

Bridgwater v. Stanhope (2009), 238 Man.R.(2d) 314 (QB)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. AP.025

Robert Bridgwater (plaintiff) v. Barry Stanhope, Bev Stanhope, Doug Penhall, Fran Penhall and Robert Ross (defendants)

(CI 05-01-41951; 2009 MBQB 81)

Indexed As: Bridgwater v. Stanhope et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Kaufman, J.

April 6, 2009.

Summary:

The plaintiff sued for fire damage sustained at a seasonal dwelling located in Ontario. The defendants Stanhope and Penhall owned seasonal dwellings near the plaintiff's property. The defendant Ross was visiting with Penhall at about the time of the fire. The plaintiff alleged negligence against some or all of the defendants. Penhall and Ross moved for an order under Queen's Bench Rule 20 dismissing the claim because there was no genuine issue for trial. Stanhope joined the plaintiff in opposing the motion.

The Manitoba Court of Queen's Bench allowed the motion.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff (Bridgwater) sued for fire damage sustained at a seasonal dwelling located in Ontario - The defendants Stanhope and Penhall owned seasonal dwellings near the plaintiff's property -The defendant Ross was visiting with Penhall at about the time of the fire - The plaintiff alleged negligence against some or all of the defendants - Penhall and Ross moved for an order under Queen's Bench Rule 20 dismissing the claim because there was no genuine issue for trial - Stanhope joined the plaintiff in opposing the motion - The Manitoba Court of Queen's Bench allowed the motion - The cottages were located along the shore facing roughly west - The Penhall cottage was the most southerly and the Stanhope cottage was north-west of it - The next cottage was owned by the McCullochs and was located almost directly north of the Stanhope cottage - The Bridgwater cottages were located north of the McCulloch cottage - An expert's report filed by Stanhope stated that you could not conclude where the fire started - The best that could be said to be triable was some evidence that might move the fire's origin to the south-east of the Stanhope property - The plaintiff tried to connect this skimpy conclusion together with the fact that Ross was a smoker to suggest that Ross caused the fire - There was simply no realistic chance of establishing this based on the evidence before the court - Without physically connecting Ross to the fire, negligence by Ross or the Penhalls through Ross could not be proven - There was also no evidence at all that the Penhalls caused the fire directly.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5702 ].

Cases Noticed:

Klassen v. Morden Hospital District No. 21 et al. (1992), 80 Man.R.(2d) 195 (Q.B.), refd to. [para. 9].

Caisse populaire de La Salle Credit Union Ltd. v. River Ridge Properties Ltd. et al. (1997), 115 Man.R.(2d) 115; 139 W.A.C. 115 (C.A.), refd to. [para. 10].

Fidkalo v. Levin (1992), 76 Man.R.(2d) 267; 10 W.A.C. 267 (C.A.), refd to. [para. 10].

Hunt v. Burgess (1993), 83 Man.R.(2d) 71; 36 W.A.C. 71 (C.A.), refd to. [para. 11].

Sifton Properties Ltd. v. Harris, [1989] O.J. No. 394 (Dist. Ct.), refd to. [para. 11].

Franks v. Sanderson, [1988] B.C.J. No. 612 (C.A.), refd to. [para. 11].

Hildebrandt v. Pavier et al. (1997), 156 Sask.R. 116 (Q.B.), refd to. [para. 11].

Atlas Acceptance Corp. et al. v. Lakeview Development of Canada Ltd. et al. (1992), 78 Man.R.(2d) 161; 16 W.A.C. 161; 92 D.L.R.(4th) 301 (C.A.), refd to. [para. 14].

Baloun v. Farm Credit Corp. (1994), 93 Man.R.(2d) 207 (Q.B.), refd to. [para. 19].

Manitoba Public Insurance Corp. v. Puddicombe (2002), 169 Man.R.(2d) 202; 2002 MBQB 299, affd. (2003), 180 Man.R.(2d) 133; 310 W.A.C. 133; 2003 MBCA 141, refd to. [para. 20].

Fielding v. Bock (2008), 225 Man.R.(2d) 103; 419 W.A.C. 103; 2008 MBCA 1, refd to. [para. 22].

Podkriznik v. Schwede (1990), 64 Man.R.(2d) 199 (C.A.), refd to. [para. 22].

Ultracuts Franchises Inc. v. Magicuts Inc. et al. (2009), 237 Man.R.(2d) 41; 2009 MBQB 23, refd to. [para. 25].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118, refd to. [para. 28].

Counsel:

Daryl J. Rosin, for the plaintiff;

Stuart J. Blake, for the defendants, Doug Penhall and Fran Penhall;

Jamie A. Kagan, for the defendant, R. Ross;

Darcie C. Yale, for the defendants, Barry Stanhope and Bev Stanhope.

This motion was heard by Kaufman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following reasons for judgment on April 6, 2009.