Many centuries before the rule in Rylands v. Fletcher was formulated, there was, in the common law, a special action on the case imposing strict liability on an occupier of land for damage caused by the escape of a fire under his control. The intensity of that strict liability is a matter of debate, but it was probably not applicable to a fire started by an act of God or the act of a stranger, since fires arising from those sources could not be characterized as fires under the occupier’s control. In 1774 the Fires Prevention (Metropolis) Act26was passed. The Act sought to relieve occupiers from liability for fires that began accidentally on their land. Its general purpose was to inject some degree of fault as an essential element of liability for the escape of fire, but it was poorly drafted and its interpretation has been the subject of a great deal of unresolved debate.
The special action for the escape of fire has long since been overtaken by more modern tort principles and is no longer of any consequence in Canada. Liability for the escape of fire must now be established on one of the standard heads of tort liability such as the rule in Rylands
v. Fletcher, negligence, or nuisance. The application of modern principles has, however, been complicated by the fact that the Fires Prevention (Metropolis) Act or its equivalent remains in force in all provinces west of Quebec. The courts have, therefore, felt obliged to interpret an ancient statute that was designed to modify a common law action that is no longer of any consequence in Canada. Predictably, the courts have not allowed the statute to interfere with the modern principles of loss allocation. The statute has been simply construed as protecting a defendant from liability wherever that is consistent with modern tort principles. In terms of its power to shape liability for the escape of fire, the legislation is a dead letter.
Strict liability for the escape of fire may now be established under the rule in Rylands v. Fletcher. Consideration must, of course, be given as to whether the fire arose in respect of a non-natural use of land. Fires for heating, cooking, or other domestic purposes are unlikely to be considered as amounting to a non-natural use. Opinion is divided on the use of fire for agricultural purposes. Liability also extends to fires that arise spontaneously from a land use that qualifies as a dangerous fire hazard.
The tort of negligence also imposes...