Knock v. Dumontier et al.,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Steel and Hamilton, JJ.A.
• Neutral Citation: 2006 MBCA 99
• Date: 01 December 2005
• Court: Court of Appeal (Manitoba)

Knock v. Dumontier (2006), 208 Man.R.(2d) 121 (CA);

      383 W.A.C. 121

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. SE.028

Adair Knock (plaintiff/respondent) v. Guy Dumontier, carrying on business as GRD Electric, and the said GRD Electric (defendants/appellants) and Mario Cianflone and Daniel Cianflone, carrying on business as Mario's Tiling and the said Mario's Tiling (defendants)

(AI 05-30-06060; 2006 MBCA 99)

Indexed As: Knock v. Dumontier et al.

Manitoba Court of Appeal

Scott, C.J.M., Steel and Hamilton, JJ.A.

September 22, 2006.

Summary:

A fire occurred in a kitchen 1.5 years after a house was built. The homeowner sued the electrician who did the wiring for negligence and breach of contractual duties. He also sued the ceramic tile installers.

The Manitoba Court of Queen's Bench, in a decision reported at 185 Man.R.(2d) 142, allowed the action against the electrician and dismissed the action against the tile installers. The trial judge refused to grant the plaintiff a Bullock order with respect to the costs of the successful tile installer. The electrician appealed. The plaintiff cross-appealed respecting the Bullock order.

The Manitoba Court of Appeal dismissed the appeal and allowed the cross-appeal.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - A plaintiff alleged that a defendant negligently caused a kitchen fire - When completing his report, the plaintiff's expert (Gillman) was under a misapprehension as to the layout of the kitchen - He became aware of this by reading the defendant's expert's report - Gillman did not revise his report or issue a supplementary report - Instead, he spoke to these issues in his testimony at trial - The action was allowed - The defendant appealed, arguing that the trial judge erred in allowing Gillman to give opinion evidence as to the origin of the fire as it related to facts that were not contained in his report - The Manitoba Court of Appeal rejected the argument - An expert was not to be narrowly confined and limited to the precise contents of his or her report - He had the right to explain and amplify so long as a new area was not pursued, he remained within the substance of his report and there was no prejudicial surprise to the other party - When questioned about the change in the kitchen layout, Gillman explained and amplified the contents of his report - The substance of his testimony did not change - There was no new explanation, thought process or theory as to the origin and cause of the fire - On both his direct and cross-examinations, Gillman explained the basis upon which he formulated his opinion and explained why the new information did not change his opinion - See paragraphs 54 to 58.

Practice - Topic 7155

Costs - Party and party costs - Liability for - Bullock order - Where success divided - A fire occurred in a kitchen - The plaintiff homeowner sued an electrician and ceramic tile installers for negligence and breach of contract - The electrician cross-claimed against the tile installers - The trial judge allowed the action against the electrician and dismissed all claims action against the tile installers - The trial judge found that it was reasonable for the plaintiff to include the tile installers in the action and keep them in until the end of the trial - However, she refused the plaintiff's request for a Bullock order respecting the costs awarded against the plaintiff in favour of the successful tile installers - The Manitoba Court of Appeal held that the trial judge applied the wrong test and granted the Bullock order - The trial judge wrongly concluded that the plaintiff's claims against the electrician and the tile installers were independent - A Bullock order was appropriate where a plaintiff was in doubt as to which of two parties was responsible for the act that caused the injury - The breaches of duty against these defendants were interrelated and arose out of the same incident - See paragraphs 59 to 72.

Torts - Topic 49.48

Negligence - Standard of care - Particular persons and relationships - Electricians - A fire occurred in a kitchen 1.5 years after a house was built - The homeowner sued the electrician who did the wiring and a ceramic tile installer for, inter alia, negligence - The trial judge allowed the action against the electrician - The court held that the fire originated in an electrical plug and started from a line-to-ground short or arc (arc tracking) in the construction phase - This was totally under the electrician's control - The electrician negligently left the hot-wired receptacle exposed allowing arcing to commence - The electrician appealed, arguing, inter alia, that the origin of the fire was unknown because it was impossible to rule out other possible origins of the fire - The Manitoba Court of Appeal dismissed the appeal - The trial judge's factual findings regarding the origin of the fire and her acceptance of the theory of arc tracking were the linchpins of her analysis - There was evidence to support the judge's findings - There was no palpable or overriding error on the findings of facts or inferences from those facts that would justify appellate intervention - See paragraphs 25 to 58 and 73.

Torts - Topic 65

Negligence - Causation - Evidence and proof - A fire occurred in a kitchen 1.5 years after a house was built - The homeowner sued the electrician who did the wiring for, inter alia, negligence - The Manitoba Court of Appeal stated that "[s]pecifically in fire cases, the defendant is not required to prove the cause of the fire or demonstrate how the fire occurred without negligence on its part. However, where it fails to produce an explanation equally consistent with no negligence as with negligence, it may be held liable for the damage suffered ...  In circumstances where the plaintiff has done nothing or permitted nothing to be done which might cause the damage, and where effective control is in the hands of the defendant, an inference of negligence on the part of the defendant can be raised. The defendant may avoid liability if it can meet the inference of negligence by providing an explanation showing the exercise of reasonable care. However, if the evidence on behalf of the defendant fails to reach that standard, then the inference of negligence raised by the plaintiff is sufficient to discharge the onus placed on them of proving their case on the balance of probabilities." - See paragraphs 45 and 46.

Cases Noticed:

Fontaine v. British Columbia (Official Administrator) - see Fontaine v. Loewen Estate.

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; 156 D.L.R.(4th) 577, refd to. [para. 20].

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. 21].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201; 44 B.L.R.(3d) 165 (C.A.), refd to. [para. 22].

Irving Oil Ltd. v. Executive Director of Assessment (N.B.) (2005), 282 N.B.R.(2d) 275; 738 A.P.R. 275; 9 M.P.L.R.(4th) 1; 2005 NBCA 39, refd to. [para. 24].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 32].

Zimmerman v. Leckie (2002), 165 Man.R.(2d) 47; 2002 MBQB 157, refd to. [para. 32].

Carter et al. v. Steelgas Utilities Ltd. et al. (1975), 52 D.L.R.(3d) 377 (Man. C.A.), refd to. [para. 45].

Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318; 190 W.A.C. 318 (C.A.), refd to. [para. 45].

Kirk et al. v. McLaughlin Coal & Supplies Ltd., [1968] 1 O.R. 311 (C.A.), refd to. [para. 46].

School District of Assiniboine South No. 3 v. Hoffer and Greater Winnipeg Gas Co. (1971), 21 D.L.R.(3d) 608 (Man. C.A.), refd to. [para. 49].

Tooley et al. v. Arthurs (2002), 246 N.B.R.(2d) 160; 638 A.P.R. 160; 2002 NBQB 32, refd to. [para. 49].

Weiner v. Zoratti (1970), 11 D.L.R.(3d) 598 (Man. Q.B.), refd to. [para. 49].

Matheos Holdings Ltd. v. Suzuki Brothers Ltd. (1995), 106 Man.R.(2d) 68 (Q.B.), refd to. [para. 50].

Coates v. Young (Alec) Ltd. et al. (1998), 130 Man.R.(2d) 48 (Q.B.), refd to. [para. 50].

Thorogood v. Bowden (1978), 21 O.R.(2d) 385 (C.A.), refd to. [para. 55].

Marchand v. Public General Hospital Society of Chatham et al. (2000), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), refd to. [para. 57].

Anderson v. Ryder (L.J.) Investments Ltd. et al. (2002), 299 A.R. 135; 2002 ABCA 38, refd to. [para. 62].

Lyne v. McClarty et al. (2003), 170 Man.R.(2d) 161; 285 W.A.C. 161; 2003 MBCA 18, refd to. [para. 63].

Rigney v. O'Brien (1931), 39 O.W.N. 471 (H.C.), refd to. [para. 66].

Armstrong v. Baker and McCrindle (1992), 113 N.S.R.(2d) 420; 309 A.P.R. 420 (T.D.), refd to. [para. 67].

Robertson v. North Island College Technical and Vocational Institute and Wing (1980), 26 B.C.L.R. 225; 119 D.L.R.(3d) 17 (C.A.), refd to. [para. 68].

Mulready v. J.H. & W. Bell Ltd., [1953] 2 All E.R. 215 (C.A.), refd to. [para. 68].

Hock v. Hospital for Sick Children et al. (1998), 110 O.A.C. 268 (C.A.), refd to. [para. 69].

Mortimer et al. v. Cameron et al. (1994), 68 O.A.C. 332; 17 O.R.(3d) 1 (C.A.), refd to. [para. 69].

Rooney v. Graham et al. (2001), 144 O.A.C. 240; 198 D.L.R.(4th) 1 (C.A.), refd to. [para. 69].

Scarborough Golf & Country Club Ltd. v. Scarborough (City) et al. (No. 2) (1986), 57 O.R.(2d) 202 (H.C.), refd to. [para. 70].

Wenden v. Trikha et al. (1992), 124 A.R. 1 (Q.B.), refd to. [para. 70].

Upper Lakes Shipping Ltd. v. St. Lawrence Cement Inc. et al. (1988), 28 C.P.C.(2d) 270 (Ont. H.C.), refd to. [para. 70].

Strike v. Ciro Roofing Products U.S.A. Inc., [1988] B.C.J. No. 3076 (S.C.), refd to. [para. 72].

Authors and Works Noticed:

DeHaan, John D., Kirk's Fire Investigation (5th Ed. 2002), generally [para. 41].

Orkin, Mark M., The Law of Costs (2nd Ed.) (2005 Looseleaf Supp.), generally [para. 70]; vol. 1, p. 2-81 [para. 72].

Yereance, Robert A., Electrical Fire Analysis, generally [para. 41].

Counsel:

L.M. French and V.L. Jackson, for the appellants;

K.T. Williams and J.A. Jurczak, for the respondent.

This appeal and cross-appeal were heard on December 1, 2005 and January 19, 2006, before Scott, C.J.M., Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following judgment on September 22, 2006.