The Case of … the Missing Expert Evidence

The case of Metropolitan Toronto Condominium Corporation No. 1100 v. A. & G. Shanks Plumbing & Heating Limited couldn’t have started worse off for the defendant, a plumbing company. A historically important building in Toronto had burned to the ground and blame was being put squarely on his shoulders. Had he fallen that far short of the ‘standard of care’ that was expected?

Joel Cormier, an insurance defence lawyer at Will Davidson LLP, represented the defendant. What did it take and how did the court come to conclude:

“…it was incumbent upon the plaintiffs to lead expert evidence to establish the appropriate standard of care in order for the court to find that it had been breached. They did not do so and because of this their claim must be dismissed.”

Facts of case

An A. & G. Shanks plumber had fixed a leaking pipe in the basement ceiling at a historic mansion in Toronto. The property was being renovated as part of a larger condominium project. About an hour after the work was done, a fire was reported at the mansion.

Metropolitan Toronto Condominium Corporation No. 1100 (MTCC), the condo corporation responsible, claimed it was a case of a ‘smoking blowtorch’. It claimed the plumber had failed to take sufficient precautions. Specifically, his actions were “egregious” and so far short of the standard of care expected that even an ordinary person would be expected to know better.

Citing the decision in Ontario Court of Appeal 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, the MTCC (appellants in this case) argued that they did not require expert evidence of standard of care.  At trial, they called experts to testify how confined the space was and the ceiling was likely set alight by the blowtorch.  The appellants also present evidence at trial with reference to the National Fire Code of Canada 2005 and the Ontario Fire Code Reg. 213/07. However, no expert evidence was called to corroborate that the National Fire Code applied to the standard of care applicable to plumbers in Ontario at the time of the fire. Moreover, the Ontario Fire Code did not include soldering as part of its “Hot Works” regulations.

What questions was the court faced with

The Court of Appeal for Ontario was faced with answering:

  • Did the trial judge err in not drawing the inference that the plumber fell below the standard of care, based on the circumstantial evidence?
  • Whether the plumber caused the fire that burnt down the mansion?

Establishing these elements of breach of duty of care and causation would be essential for proving a case of negligence against the plumber.

Was the circumstantial evidence enough to establish the plumber’s breach of standard of care?

The court cited Fontaine v. British Columbia (Official Administrator), a decision of the Supreme Court, which said:

[Circumstantial] evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant.

Once the plaintiff establishes its case, it is up to the defendant to rebut it. It added, from Marchuk v. Swede Creek Contracting Ltd.:

“legal burden of proof, of course, remains on the plaintiff throughout”

The Court of Appeal accepted the trial court’s finding that MTCC had failed to establish the plumber’s egregious conduct. The appellants had failed to discharge their burden of proving a breach of standard of care.

The court did not address causation as the matter was decided at standard of care itself.

The defendant adduces evidence of his above-board conduct

At trial, the judge had ruled that the Barclay exceptions – “egregious” actions and ordinary knowledge – were not applicable. Joel Cormier says, “We successfully negotiated an admission at the start of trial that the plumber’s torch was pointed down, which proved fatal to plaintiffs.”

The plumber also gave a clear and accurate account of the work he performed and how. The plumber’s testimony that he had taken requisite precautions given the confined workspace, nearness of wood and the subsequent check 30 minutes after the pipe had been fixed was accepted by the court as reliable.

Moreover, as our insurance defence lawyers made clear, soldering is a technical skill, which requires expert evidence on standard of care. It’s what led the trial court to find “there was no evidence that anything [the plumber] did caused the fire.” It was a finding the Court of Appeal did not disturb.

Significance of the decision

This case involved nearly every facet of insurance law and included some very unique arguments on damages. The appellate decision reiterates the importance of obtaining expert on standard of care if a matter is at all technical. It saved our client from exposure to a $12 million claim. Our insurance defence lawyers also recovered legal costs.

Insurance defence law firm Ontario

Will Davidson LLP has earned a reputation as one of the most effective insurance defence practices in Ontario. We represent clients in all types of insurance matters, helping them mitigate risk with creative legal strategies.

Have an insurance case you need to discuss? Contact our defence team today 1-800-661-7606.


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