Hansen v. Bellefeuille, 2011 SKQB 8

• Judge: Scheibel, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 12, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 8;(2011), 367 Sask.R. 213 (QB)

Hansen v. Bellefeuille (2011), 367 Sask.R. 213 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JA.039

Alan Aubrey Hansen, Michelle Rae Hansen and Robert Hansen (plaintiffs) v. Darrell Bellefeuille (defendant)

(2006 Q.B.G. No. 1673; 2011 SKQB 8)

Indexed As: Hansen v. Bellefeuille

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Scheibel, J.

January 12, 2011.

Summary:

The plaintiffs' home was destroyed by fire. The plaintiffs' insurance company paid them $286,542.81 to cover their loss. It was alleged the defendant contractor caused the fire while refinishing the hardwood floor. A subrogation action was brought to determine which insurer was liable for the loss.

The Saskatchewan Court of Queen's Bench found that the defendant was negligent in using an oil based varathane floor finish in an area without proper ventilation and with the knowledge that the varathane vapours could readily ignite if there was a source of ignition. The plaintiffs had proven, on a balance of probabilities, the origin and cause of the fire and that the defendant's negligence was the proximate and effective cause of the fire. The court awarded the plaintiffs judgment against the defendant in the amount of $286,542.81 together with prejudgment interest.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The plaintiffs' home was destroyed by fire - It was alleged the defendant contractor caused the fire while refinishing the hardwood floor - No issue was taken at trial by either counsel as to the qualifications of the expert witnesses to testify in the areas so qualified - In the written submissions filed after the conclusion of the evidence, the defendant's counsel took issue with the admissibility of portions of the testimony of the plaintiff's expert (Kooren) as it related to The Stoddard Solvent Information Sheet (Exhibit P11) on the basis that the contents of Exhibit P11 were not referred to in his original report - Defence counsel submitted that "... Kooren's testimony involving his theory surrounding the degradation of the flash point of Varathane is essentially a new theory of causation which was not contained in his written expert report dated December 21, 2004. As such, ... this portion of his testimony should be excluded from the evidence" - The Saskatchewan Court of Queen's Bench dismissed the application to exclude Kooren's evidence for the following reasons: The defendant's counsel made no objection to Exhibit P11 being entered into evidence during oral testimony and he proceeded to fully cross-examine Kooren on all issues including those raised by Exhibit P11; Exhibit P11 had been previously disclosed to the defence; Kooren's testimony was in response to the expert report of Senez; Senez gave oral testimony relating to "degradation" of the flash points; the issue of the flash point was contained in Kooren's written report and he was entitled to expand on matters set out in his report; the notice of expert witness indicated that Kooren would be giving evidence that the fire was caused by the ignition of vapours from the varathane applied to the floors; the flammability of the vapours was encompassed in the notice of expert witness; the defendant's notice of expert witnesses was given to the plaintiffs approximately one month prior to trial with no reasonable opportunity to the plaintiff to respond; the whole focus of the pretrial issues and the trial revolved around the issue of the vapours from the varathane and the issue of flammability; the plaintiffs would be prejudiced if the evidence was excluded; the defendant knew or ought to have known the nature of this evidence prior to the commencement of the trial and had suffered no demonstrable prejudice by its admission; and no adjournment was requested by the defendant when the evidence was introduced - See paragraphs 92 to 96.

Torts - Topic 4138

Suppliers of services - Negligence - Flooring installers - The plaintiffs' home was destroyed by fire - It was alleged that the defendant contractor caused the fire while refinishing the hardwood floor - The Saskatchewan Court of Queen's Bench found that the defendant was negligent in using an oil based varathane floor finish in an area without proper ventilation and with the knowledge the varathane vapours could readily ignite if there was a source of ignition - Upon finishing the application the defendant sealed the house by closing all windows and doors, thereby eliminating the ventilation required to prevent the build up of flammable vapours - In so doing he breached the duty of care owed to the plaintiffs - The proximate and effective cause of the fire was due to the defendant's negligence in failing to provide proper ventilation so the vapour from the varathane would not be trapped inside the house as a source of fuel to be ignited by an arc or spark - There was a high degree of probability that the fire was caused from the varathane vapours which were ignited by a spark or parting arc from the refrigerator's normal off/on operation - The court noted that the defendant had the option to use a water based floor finish which had a zero flammability rating which would have eliminated any risk of flammable vapours - The plaintiffs had proven, on a balance of probabilities, the origin and cause of the fire and that the defendant's negligence was the proximate and effective cause of the fire - See paragraphs 100 to 124.

Torts - Topic 4628

Dangerous activities - Particular dangerous situations - Use of flammable materials - [See Torts - Topic 4138 ].

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 85].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 85].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 97].

Scott v. Patenaude, [2009] Sask.R. Uned. 77; [2010] 4 W.W.R. 138; 2009 SKQB 181, refd to. [para. 99].

Dyck Estate, Re (2010), 361 Sask.R. 301; 2010 SKQB 384, refd to. [para. 99].

Big Sky Farms Inc. et al., Re (2010), 360 Sask.R. 76; 2010 SKQB 255, refd to. [para. 99].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 102].

Schmitz et al. v. Stoveld et al.; MacNaughton-Brooks Ltd., third party (1976), 11 O.R.(2d) 17 (Co. Ct.), consd. [para. 104].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Torts in Canada (2nd Ed. 2002), p. 387 [para. 103].

Counsel:

Murray W. Douglas, for the plaintiffs;

James G. Garden, for the defendant.

This action was heard before Scheibel, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on January 12, 2011.