A-341-80
The Queen (Appellant) (Defendant)
v.
Crown Diamond Paint Co. Ltd. (Respondent)
(Plaintiff)
Court of Appeal, Heald, Urie and Le Dain JJ.—
Ottawa, September 8 and November 4, 1982.
Crown — Master and servant — Landlord and tenant
Negligence — Stock-in-trade of tenant of Crown agent
destroyed by fire — Building's sprinkler system disconnected
by landlord's inspector — Building set on fire when inspector
stealing fixtures — Inspector convicted of attempted theft —
Trial Judge holding landlord liable for consequences of serv
ant's wrong-doing — Case relied on by Trial Judge inappli
cable as involving bailment — Duty owed but not breached
since servant outside course of employment — Whether
implied covenant to repair — Plaintiff failing to prove fire
would have been contained if sprinkler system operable —
Appeal allowed.
This is an appeal from the judgment of the Trial Division,
reported at [1980] 2 F.C. 794, in which Her Majesty the Queen
was found liable for damages for the destruction by fire of a
paint wholesaler's stock-in-trade. The paint company was a
tenant of the National Capital Commission, an agent of the
Crown. There was in the building an antiquated sprinkler
system but it had been turned off by the appellant's mechanical
inspector prior to the fire. This inspector permitted his sons to
enter the building for the purpose of stealing certain refrigera
tion pipes and in removing this material the old building was
set on fire. The inspector was convicted in Provincial Court of
attempted theft.
In giving judgment for the plaintiff, the Trial Judge, noting
that a "master will not get off his liability merely because his
servant was temporarily going on a frolic of his own", indicated
that the question was "whether the activity was reasonably
incidental to the performance of his authorized duties, or
involved so substantial a departure that the servant must be
regarded as a stranger vis-à -vis his master". Dubé J. conclud
ed that the Queen should be found liable, Her servant having
done "fraudulently and negligently what he had been employed
to do honestly and diligently."
Held, the appeal should be allowed. Morris v. C. W. Martin
& Sons Ltd., [1966] I Q.B. 716 (C.A.), the case relied on by
the Trial Judge, had no application to the case at bar. That
case depended on the law of bailment for reward. The instant
case is governed by the laws of master and servant and landlord
and tenant.
It being admitted that the fire was the cause of the loss, the
next question was how and where the fire originated. If it
originated on premises owned by the appellant, did it do so
through negligence on the part of the appellant or servants for
which it would be vicariously liable? Was a duty of care owed?
Once these questions are answered, the question as to whether
the sprinkler system's failure to operate was the proximate
cause of the loss must be addressed.
It could be inferred from the evidence that the fire was
accidental, was started by the elements of a cutting torch and
originated near the centre of the second floor, over the premises
occupied by the paint company.
While a duty not to permit a fire to occur was owed, that
duty was not breached unless the Queen was liable for the acts
of Her servant. Canadian Pacific Railway Company v. Lock-
hart, [1942] A.C. 591 (P.C.) was authority for the proposition
that "... if the unauthorized and wrongful act of the servant is
not so connected with the authorized act as to be a mode of
doing it, but is an independent act, the master is not respon
sible: for in such a case the servant is not acting in the course of
his employment, but has gone outside of it." The inspector had
been refused permission to remove the refrigeration coils and in
having his sons do this he had gone outside the course of his
employment. Nor was he doing work which he was appointed to
do in an unauthorized manner. He was using his master's time
and place of business for his own purposes. In these circum
stances, the appellant, as the inspector's employer, cannot be
found liable for his unauthorized and wrongful act.
That was not, however, an end of the matter in view of the
alternative pleading in the statement of claim that the appellant
had been negligent in disconnecting and failing to reconnect the
sprinkler and attached alarm systems. But even assuming a
breach of an implied covenant to repair, evidence had not been
adduced which would support the conclusion that the fire would
have been contained with little or no damage to the respond
ent's stock-in-trade had the sprinkler system been in operation.
The onus was on the plaintiff (respondent) and it had failed to
prove its case.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Pacific Railway Company v. Lockhart, [1942]
A.C. 591 (P.C.).
DISTINGUISHED:
Morris v. C. W. Martin & Sons Ltd., [1966] 1 Q.B. 716
(C.A.).
COUNSEL:
Eileen Mitchell Thomas, Q.C. and Michael
W. Senzilet for appellant (defendant).
David G. Casey for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (defendant).
Gowling & Henderson, Ottawa, for respond
ent (plaintiff).
The following are the reasons for judgment
rendered in English by
URIE J.: This is an appeal from a judgment of
the Trial Division [[1980] 2 F.C. 794] in which
the appellant was found liable for damages for the
destruction of the respondent's stock-in-trade aris
ing from a fire on the premises leased by the
respondent from the appellant for the conduct of
its business as a wholesaler of paint and paint
products. The action in the Trial Division was one
of five brought by different plaintiffs arising out of
the fire in question all of which actions were tried
together on common evidence. The appellant
appealed against all five judgments. It was agreed
that the disposition of this appeal would apply to
the remaining four appeals. The quantum of dam
ages is the subject of agreement between counsel
and, thus, is not an issue in any of the appeals.
The facts disclosed in an agreed statement of
facts and from the evidence adduced at trial
follow. The premises leased to the respondent were
situate in the City of Ottawa and were part of
premises known for municipal purposes as 18 and
24 York Street. The respondent was originally a
sub-lessee from The Borden Company Limited
pursuant to a sub-lease dated March 19, 1964. The
head lease from the National Capital Commission
to The Borden Company is dated the same day.
According to the agreed statement of facts, the
appellant, National Capital Commission, an agent
of Her Majesty the Queen, took possession of the
demised lands and premises on August 31, 1968
and continued in possession thereof subject to the
leasehold rights of tenants, which tenants either
included or came to include the several plaintiffs in
the actions, the judgments from which are here
under appeal. The agreed statement of facts fur
ther states:
That the several plaintiffs were tenants of Her Majesty the
Queen in accordance with a form of lease previously entered
into between other parties which said form of lease is Exhibit 2
on the Examination for Discovery.
The record in this Court does not disclose what
Exhibit 2 is and counsel were unable to enlighten
us on that subject other than to assure us that it is
common ground that the head lease and the sub
lease earlier referred to, embody the terms of the
leases existing at all material times between the
parties in the various actions.
While the judgment under attack dismissed the
respondent's claim arising out of damage to its
stock-in-trade from the entry of water into its
premises on April 1, 1970, no appeal was taken
therefrom. The appellant's appeal is from that
portion of the judgment imposing liability on it for
the damage and destruction of the respondent's
stock-in-trade by a fire on November 26, 1970.
The action had been commenced in the Exchequer
Court of Canada by petition of right on April 1,
1971. The action was tried in the Trial Division of
this Court on May 7 and 8, 1980 and judgment
was rendered on May 12, 1980.
The following facts are not in dispute. At all
material times the respondent occupied part of the
building at 18 and 24 York Street in Ottawa. The
building had formerly been occupied by the cheese
division of The Borden Company so that parts
thereof had been used for refrigerated storage and
large areas were insulated and the walls lined with
refrigerating coils. Other large portions of the
building had been used as unheated storage space.
The respondent stored its goods in the basement of
the building which was part of the approximately
3,500 square feet of space leased by it at about 63¢
per square foot. The respondent and the other
tenants were under notice to vacate the premises
since the appellant intended to reconstruct and
renovate the building.
The building housing the respondent's premises,
as well as those of other tenants, was protected by
a sprinkler system of some antiquity known as a
dry system. Normally it contained no water but
when activated by the presence of heat, water was
brought into the system and, as well, an alarm was
sounded designed to summon representatives of
the protective service organization with which it
was connected. No mention of this system appears
either in the head lease or sub-lease. However, the
evidence discloses that it had been kept in repair
by the appellant from the inception of the leases.
During November 1970 one of the appellant's
employees, Francis Cranham, a mechanical in
spector, had been instructed to inspect the building
at 18-24 York Street, inter alia, daily and to keep
the sprinkler system in operation by replacing
fuses which had been reported missing. The fire
which led to this action occurred in the early
evening of November 26, 1970. The learned Trial
Judge found that the sprinkler system had been
turned off by Cranham the day before, although
there is evidence in a fire investigation report, to
which I will later refer, indicating that the sprin
kler valve had been shut down by Cranham about
a week prior to the fire.
The same employee, Cranham, was said to have
sought permission to remove the refrigeration
pipes, earlier alluded to, from the refrigeration
rooms, for his own use. That permission was
refused. Notwithstanding this refusal Cranham
permitted his two sons to enter the premises on
November 26, 1970 to cut and remove the piping
for his own purposes. To do so the sons used an
oxyacetylene torch. There is evidence which could
lead to the inference that it was the use of the
torch which ignited insulating material behind the
pipes thereby leading to the fire. Cranham subse
quently pleaded guilty to a charge of attempted
theft in Provincial Court and was dismissed from
his employment by the appellant.
On these facts the learned Trial Judge came to
the following conclusion [at pages 799-800]:
A master will not get off his liability merely because his
servant was temporarily going on a frolic of his own. The
question is whether the activity was reasonably incidental to the
performance of his authorized duties, or involved so substantial
a departure that the servant must be regarded as a stranger
vis-a-vis his master. Crangham [sic] was the mechanical
inspector in charge of the sprinkler system of the building and
responsible for the safety of the premises. He had free access to
the building. He presumably decided on his own that since the
coils were to be dismantled he might as well convert them to his
personal use. After the fire he pleaded guilty to having "unlaw-
fully attempted to steal a quantity of refrigeration pipes of the
value of less than $50". He was given a suspended sentence and
fired by the N.C.C.
Crangham [sic] was entrusted with the operation of the
sprinkler system. He attempted wrongfully to remove the coil
pipes. He caused two inexperienced young men, his own sons,
to carry out the misdeed. He had them do it with an acetylene
torch. He did more than that, he disconnected the sprinkler
system and thus the alarm gong that goes with it, without
notice to anyone. He did fraudulently and negligently what he
had been employed to do honestly and diligently. In my view,
the landlord cannot get off his responsibility merely because the
servant was temporarily pursuing a personal end. Neither can
the defendant be exculpated by the aforementioned clause 9 of
the lease which protects the lessor against damage caused by
water, but not against damage caused by fire, and surely not by
fire resulting from the negligence and the wrongful act of its
own servant.
In my view, therefore, the defendant is liable for damage
caused to the plaintiff (and to the other four plaintiffs in their
respective actions) by the fire of November 26, 1970. Costs of
this action to the plaintiff (and to the other four plaintiffs in
their respective actions).
He reached that conclusion principally by rely
ing on the decision of the English Court of Appeal
in Morris v. C. W. Martin & Sons Ltd.' With
great respect I do not believe that that case has
any application in the case at bar. It was a case
based on the law of bailment. The plaintiff had
sent a mink stole to a furrier to be cleaned. The
furrier, not being in the fur cleaning business, sent
the fur to a reputable cleaner, the defendant. The
furrier was the principal in the contractual rela
tionship with the cleaner and did not act in that
aspect of the matter as agent for the plaintiff. The
fur was stolen by one of the defendant's servants
whose duty it was to clean the fur. The fur was
never recovered. It was held that the defendant
being a sub-bailee for reward, owed to the plain
tiff, the owner of the fur, the duties of a bailee for
reward to take reasonable care of the fur and not
convert it. Accordingly, there being no contractual
provision protecting the defendant, the plaintiff
was entitled to sue the defendant directly for the
loss of the fur by misappropriation by its servant,
and the cleaner was held liable for the loss.
The Morris case does not, in my view, have any
application in the case at bar even by analogy. On
its facts the judgment is dependent on the law of
bailment for reward. There is no question of bail-
ment here. The damaged and destroyed goods
[1966] 1 Q.B. 716 (C.A.).
never at any time were in the possession of the
appellant for reward or otherwise. At all times
they were in the possession, custody and control of
the lawful owner, the respondent. The applicable
law then, as I see it, is that applying to master and
servant and, perhaps, to landlord and tenant.
The first question for determination then, it
seems to me, is the cause of the loss for which
compensation is sought. If it was the fire as coun
sel for the appellant contended, and as conceded
by counsel for the respondent in his memorandum
of fact and law, the next question is how and
where the fire originated. If it originated on the
premises owned by the appellant did it do so
through any negligence or want of care by the
appellant or by its servant or servants for which it
could be found vicariously liable? Did it owe a
duty of care to the respondent? It is not until those
questions have been answered that the question of
the failure of the sprinkler system to operate must
be examined to determine whether that failure was
the proximate cause of the loss as alleged by the
respondent.
While the evidence adduced at trial as to how
and where the fire started is somewhat skimpy, the
evidence as to the results flowing from the failure
of the sprinkler system to operate is practically
non-existent. The Trial Judge made no clear find
ing as to how and where the blaze started but
there is sufficient evidence from the Fire Loss
Investigator's report which appears in the record,
and other viva voce evidence, to draw certain
conclusions. At page 2 of his report (on stationery
entitled "Office of the Fire Commissioner, Depart
ment of Public Works") the Fire Loss Investiga
tor, H. F. Carron, made the following statements:
As a result of my investigation, I have at this time arrived at
the following conclusions. No person has admitted to the fire
being caused either accidentally or by deliberate means. It has
been established that two male persons had been working
within the building on the day of the fire engaged in the
unauthorized dismantling of metal refrigeration coils on the
second floor. In this operation, they were using an oxyacety
lene cutting torch. Unless other evidence proves to the contrary
it is considered that the fire was of accidental origin and
resulted from the elements of the cutting torch and that a slow
smoldering fire was in actual existence when the two workmen
had left the building and had continued to progress until it
broke out and was observed by the passing taxi operator at
about 7:50 P.M. This type of fire is common and indeed usual
in relation to fires caused by careless cutting and welding
operations. The fact that the fire caused such extensive destruc
tion to the interior of the building, it was not possible to
establish with certainty the point of origin, however, from
physical evidence of burning it appeared to be most extensive in
the centre area on the west side.
At page 11 of his report he had this to say:
An examination of the fire site indicated a strong likelihood
that the fire had originated on the second floor in an area about
the centre of the building and near the west wall.
There were no eyewitnesses to the origin or cause of the fire.
No evidence has been found to establish a definite origin or
cause of the fire. The possibility of the cause being due to live
smoking materials or electrical energy cannot be ruled out but
is considered unlikely. No evidence has been uncovered to
support the cause being due to the deliberate intent of any
person or persons.
The sprinkler system in the building did not function as it had
been rendered inoperable by reason of the sprinkler valve being
turned off. Mr. Francis Cranham has admitted being respon
sible for turning off the sprinkler valve which he had done
about a week prior to the fire.
My conclusions in respect to the origin and cause of the fire
are—
That the fire was of accidental origin.
That the fire originated on the second floor in an area about the
centre of the floor and near to the west wall.
That the cause of the fire was attributable to the elements of a
cutting torch that resulted in the ignition of combustible ma
terials within the structure of the building.
That the extensive damage resulting from the fire occurred as a
direct result of the sprinkler system being shut down previous to
the fire.
There is little evidence of probative value in the
viva voce testimony (Mr. Carron not having been
called as a witness) to assist in determining the
origin of the fire. However, there being no evi
dence to the contrary, I think that it can be fairly
inferred that it originated at about the centre of
the second floor of the building, above the
respondent's premises; that it was of accidental
origin and that it probably occurred from the
elements of the cutting torch starting a slow,
smouldering fire which was not observed for sever
al hours and that the sprinkler system was never
activated because it was inoperable at the time of
the fire either because of the removal of fuses by
persons unknown or because it had been shut down
by Cranham at some time up to a week before the
fire.
Could the appellant be found liable for the
damage resulting to the stock-in-trade of the
respondent by reason of the fire? Such liability
exists only if a duty to the respondent not to
permit a fire to occur in such circumstances can be
found. Undoubtedly such a duty was owed to the
respondent but there can have been a breach of
that duty for which the appellant was responsible
only if it can be held, that in the circumstances of
the case, it was liable for the acts of its servant
Cranham.
The principles applicable in a case of this type
were reviewed by the Judicial Committee of the
Privy Council in Canadian Pacific Railway Com
pany v. Lockhart 2 . The facts are completely differ
ent but what was said by Lord Thankerton in his
speech in reviewing the authorities is useful in
determining the appellant's liability in this case.
At pages 599 and 600 he had this to say:
The general principles ruling a case of this type are well
known, but, ultimately, each case will depend for decision on its
own facts. As regards the principles, their Lordships agree with
the statement in Salmond on Torts, 9th ed., p. 95, namely: "It
is clear that the master is responsible for acts jactually;author-
ized by him: for liability would exist in this case, even if the
relation between the parties was merely one of agency, and not
one of service at all. But a master, as opposed to the employer
of an independent contractor, is liable even for acts which he
has not authorized, provided they are so connected with acts
which he has authorized that they may rightly be regarded as
modes—although improper modes—of doing them. In other
words, a master is responsible not merely for what he author
izes his servant to do, but also for the way in which he does
it .... On the other hand, if the unauthorized and wrongful act
of the servant is not so connected with the authorized act as to
be a mode of doing it, but is an independent act, the master is
not responsible: for in such a case the servant is not acting in
the course of his employment, but has gone outside of it." The
well-known dictum of Lord Dunedin in Plumb v. Cobden Flour
Mills Co., Ltd. ([1914] A.C. 62, 67) that "there are prohibi
tions which limit the sphere of employment, and prohibitions
which only deal with conduct within the sphere of employ
ment," may be referred to. Their Lordships may also quote
passages from the judgment of this Board in Goh Choon Seng
v. Lee Kim Soo ([1925] A.C. 550, 554) which was delivered by
Lord Phillimore: "The principle is well laid down in some of the
cases cited by the Chief Justice, which decide that 'when a
2 [1942] A.C. 591 (P.C.).
servant does an act which he is authorized by his employment
to do under certain circumstances and under certain conditions,
and he does them under circumstances or in a manner which
are unauthorized and improper, in such cases the employer is
liable for the wrongful act ....' As regards all the cases which
were brought to their Lordships' notice in the course of the
argument this observation may be made. They fall under one of
three heads: (I.) The servant was using his master's time or his
master's place or his master's horses, vehicles, machinery or
tools for his own purposes: then the master is not responsible.
Cases which fall under this head are easy to discover upon
analysis. There is more difficulty in separating cases under
heads (2.) and (3.). Under head (2.) are to be ranged the cases
where the servant is employed only to do a particular work or a
particular class of work, and he does something out of the scope
of his employment. Again, the master is not responsible for any
mischief which he may do to a third party. Under head (3.)
come cases like the present, where the servant is doing some
work which he is appointed to do, but does it in a way which his
master has not authorized and would not have authorized, had
he known of it. In these cases the master is, nevertheless,
responsible." In Goh Choon Seng's case (I) the appellant's
servants had been employed by him to burn vegetable rubbish
collected on his land, and they burnt some of it by lighting fires
on Crown land left waste and uncultivated which was wedged
in between the appellant's land and that of the respondent, with
the result that the fires spread to the respondent's land and
caused damage to his property. The appellant was held liable to
the respondent. [The emphasis is mine.]
While the evidence is not entirely clear, it would
seem that Cranham was one of six inspectors
employed in the Maintenance Services Branch of
the National Capital Commission whose duties
were to inspect, at regular intervals, some fifteen
hundred of the Commission's properties. As a
specific part of his duties, as earlier noted, Cran -
ham had been designated the inspector to ensure
that the sprinkler system on the demised premises
was kept operational. There is absolutely no evi
dence that included in his duties was the disman-
tlement of the refrigeration piping whether with an
oxyacetylene torch or otherwise, nor did the Trial
Judge make any finding with respect thereto. In
fact, not only was it not part of his duties, it was
contrary to instructions in that he had been
refused permission by the appellant to do what he
had his sons doing for him. The only fair inference
to be drawn from these facts, it seems to me, is
that in causing the removal of the refrigeration
piping he was not acting in the course of his
employment. He had gone outside it. Nor was he
doing the work he was appointed to do in an
unauthorized manner. Therefore, the appellant
could not be held vicariously liable for his actions
under head (3) of Lord Phillimore's three head
ings. Rather what he did fell under either head (1)
or head (2). Certainly he was using his master's
time and place of business for his own purposes. At
the same time, he had been employed to do a
particular work or class of work and he did some
thing or caused something to be done outside the
scope of that employment. That being so, clearly,
the appellant in her capacity as Cranham's
employer, cannot be found responsible for his
unauthorized and wrongful act.
That does not, however, end the matter. The
respondent in its statement of claim pleaded, in the
alternative, that the appellant, her servants or
agents, were negligent "in disconnecting or turning
off or rendering unfunctionable the sprinkler
system with which the building was equipped." In
the further alternative it was pleaded that "having
disconnected or rendered unfunctionable the said
sprinkler system, or the alarm system thereto
attached, they failed to reconnect and again make
workable the said system." Again, in his memo
randum of fact and law, counsel for the respondent
submitted that at common law there is a duty on
the landlord to protect his tenants from fire. Since
the evidence clearly showed that the demised
premises were equipped with a sprinkler system
which the landlord had by its conduct undertaken
to maintain functional to control fires, the failure
to do so constituted an actionable breach of duty.
In other words, as I understand it, it was the
respondent's contention that even if there were no
vicarious liability on the appellant as an employer
for its servants' wrongful acts, liability resulted for
damages caused by the fire for its failure, in its
capacity as landlord, to maintain the sprinkler in
operating condition to limit the damages caused by
the fire.
It should first be pointed out that it is common
ground that there was no covenant on the part of
the appellant to repair contained in the head lease
or the sub-lease, although the leases did contain
covenants for quiet enjoyment. Nonetheless, the
landlord, the appellant, had from the inception of
the lease made repairs to the sprinkler system from
time to time to ensure its operability. Moreover, it
had, in November of 1970, as has been previously
noted, instructed Cranham to make daily inspec
tions of the system presumably to ascertain that it
was working. Assuming, therefore, without decid
ing, that the actions of the appellant amounted to
an implied covenant to repair and that there had
been a breach of that covenant, there is little in the
evidence, so far as I can ascertain, which could
lead to the conclusion that either the fire would
never have started or that it would have been
contained with little or no damage to the respond
ent's stock-in-trade if it had been activated in the
manner that it should have if it had been
operating.
The most cogent evidence relating to this aspect
of the case is contained in Mr. Carron's report,
where at page 11 he said:
That the cause of the fire was attributable to the elements of a
cutting torch that resulted in the ignition of combustible ma
terials within the structure of the building.
That the extensive damage resulting from the fire occurred as a
direct result of the sprinkler system being shut down previous to
the fire.
Mr. Carron was not called as a witness and it is
not possible, therefore, to determine from him, as
an expert, whether any damage would or would
not have occurred to the respondent's goods had
the sprinkler system been activated. The inference
is that while there would have been a fire, for
which as I have found the appellant in its capacity
as Cranham's employer would not have been
responsible, the damage it caused would not have
been so extensive as it was. Whether or not the
respondent would have suffered damage to its
goods cannot be inferred or implied.
The only other evidence relevant to this aspect
of the case, is derived from the following excerpts
from the examination for discovery of Henry
Blake Peters, the Manager of Operational Services
of the appellant at the relevant times, which were
read into the record at trial by counsel for the
respondent and are found at pages 31 to 34 inclu
sive of the transcript of evidence at trial.
Q. 189 Now aside from what you have told me thus far, and
the documents that you produced have you anything in
writing to indicate the adequacy of the sprinkler system
up to April of 1970?
A. I have no written report from the Dominion Fire Com
missioner as such.
Q. 190 Or from anyone else?
A. Or from anyone else, no.
Q. 203 Now you had earlier told me that the adequacy of
the sprinkler system had not been discussed because it
was planned to tear down buildings?
A. No, to renovate them.
Q. 204 To renovate the buildings?
A. Uh huh.
Q. 205 Well, what I am interested in, Witness, have you any
information, knowledge or belief, as to the adequacy of
the system in the event that the buildings were not
renovated?
A. Sitting there as an empty building, I would say that the
sprinkler system was adequate.
At page 46, My Lord, Question 207:
Q. 207 And was there a sprinkler system in the storage area
of Crown Diamond?
A. On the second level.
Q. 208 Yes?
A. Not on the first level, on the second level.
Q. 209 That is where they were storing?
MRS. THOMAS: In which building now, are you referring
to?
THE WITNESS: Well I am referring to the ones over
22 - 24 York Street.
BY MR. CASEY:
Q. 210 Yes, and there was a sprinkler system there?
A. Yes.
Q. 211 And so you have told me that sitting in an empty
building, the Sprinkler System was adequate?
A. Yes.
Q. 212 Now my question is, have you any knowledge, infor
mation or belief as to the adequacy of that sprinkler
system in the event that no renovations were contemplat
ed, in the areas occupied by your tenants?
A. Hmm ... that is a most difficult one. I presume the
system was adequate.
When cross-examined by respondent's counsel
at trial the only question directed to Mr. Peters in
respect to what would have happened at the fire
scene had the sprinkler system been operating was
the following found at page 135 of the transcript:
Q. Is there any doubt in your mind that if the system had
filled with water and worked and an alarm had gone off,
that the building could have been saved? Being as it is
downtown, as it has been pointed out.
Would you agree—and I do not want to take you all
through this—but the system was adequate?
A. The system was adequate, yes.
From all of the above it can be seen that while it
appears that the system was "adequate" the ques
tion of its adequacy to do what has not been
answered. It seems to me that it is not the function
of this Court to speculate as to what would have
happened to the respondent's goods had the sprin
kler system been operable at the time of the fire. If
it was, the following questions, material to the
issues, come immediately to mind, inter alia:
Would the fire have been extinguished immedi
ately following activation of the sprinkler system?
Would the water it released be capable of extin
guishing the fire in the insulating material in
which the fire started?
Would the fire have been contained in the
second floor of the building at 18-24 York Street
or might it have spread to the first floor and
basement premises occupied by the respondent
before containment?
If it did spread, to what extent would the
respondent's goods have been damaged before it
was brought under control in the demised premises
by the sprinkler system, bearing in mind the very
flammable nature of the painting materials
making up the respondent's stock-in-trade?
Evidence to enable inferences to be drawn in
respect to the answers to questions of this nature
and the many others. which arise, could have been
adduced at trial. The onus was on the plaintiff (the
respondent) to do so and in not doing so it failed,
in my opinion, to prove its case even assuming that
the appellant had an implied, as opposed to an
express duty owing to the lessee (the respondent)
to keep the system in good repair and it failed to
discharge that duty. In view of my conclusions on
the evidence, it is unnecessary for me to decide
whether such an assumption is well founded in
law.
For all of the above reasons, I am of the opinion
that the Trial Judge erred in finding the appellant
liable for the damages claimed and, therefore, the
appeal should be allowed, the judgment of the
Trial Division set aside and the respondent's action
dismissed. As earlier pointed out, this is one of five
appeals from a judgment of the Trial Division
tried on common evidence and heard together in
this Court. There should be only one set of costs
for the five appeals and for the trial, which set of
costs should be recoverable as to one-fifth from
each of the plaintiffs in each of the five actions.
HEALD J.: I concur.
LE DAIN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.