Supreme Court

Judge:

The Honourable Justice Peter P. Rosinski

Heard:

April 14, 15, 16 and 17, 2014 in Halifax, Nova Scotia

Written Decision:

June 24, 2014

Subject:

Negligence – in context of residential tenancies – fire caused by careless handling or disposal of cigarette materials?

Summary:

Defendants were both smokers who had moved into a home not permitting smoking inside.  Therefore they smoked on the back deck.  On April 25, 2010 a fire originating in the area of the back deck destroyed much of the house such that it had to be rebuilt.  Plaintiff’s claim in negligence against Defendants.

Issues:

(1)        Has the cause and origin of the fire been determined on a balance of probabilities?

(2)        If associated with the cause of the fire, were either of the Defendants negligent?

(3)        Did the Plaintiffs’ expert stray beyond his independent role into an advocate’s role

(4)        Should the Court have drawn an adverse inference against the Defendants based on a material party witness not produced  (i.e.  Ms. Williamson)?

(5)        If the Defendants are found responsible, should a “betterment allowance” be credited in their favour against the Plaintiffs?

(6)        What is the proper rate of pre-judgment interest?

Result:

(1)       Cause of fire remains undetermined.

(2)       Defendants not negligent regarding their handling and disposal of cigarette materials.

(3)       Plaintiffs’ expert did not stray into an advocate’s role.

(4)       No adverse inference to be drawn against Defendants as a result of a material party witness not being produced.

(5)       No “betterment allowance” provisionally available to defendants as there was no evidence of agreement to that effect.

(6)       Provisionally, pre-judgment interest rate to be set at 2%.