VANCOUVER — A Delta couple burned out of their rented home in 2011 have lost another round in court against their landlord in their quest for compensation for personal injury and lost property.
Kenneth Boon and Leona Douglas sued Kashmir Mann in B.C. Supreme Court in Vancouver, with Justice Robert Punnett presiding, but the judge decided the landlord’s failure to install fire alarms didn’t necessarily result in the losses the tenants claimed.
“I am satisfied that the defendant was negligent in not installing and maintaining smoke alarms,” Punnett decided. “However the plaintiffs have failed on the balance of probabilities to establish that negligence caused the losses claimed.”
Boon and Douglas were tenants in a residence Mann owned in Delta. On
July 12, 2011, a fire broke out in their suite, killing one of their dogs.
The couple claimed Mann was negligent by failing to install smoke alarms and sued him for loss of property, personal injuries, wage loss and future care costs.
Boon and Douglas argued Mann owed them a duty of care to ensure their home was reasonably safe for use and that he should have done so by installing smoke alarms.
All residential buildings in B.C. require smoke alarms.
Mann argued that no fault or negligence can be ascribed to him considering the cause of the fire remains unknown. Even if Mann were negligent, his counsel argued, the plaintiffs have not proved a causal link between that and the losses they claimed.
Boon and Douglas took possession of their suite on April 1, 2011 but did not sign a tenancy agreement. The court heard that when the tenants did their initial inspection, they noted there were no smoke alarms. They claimed Mann agreed to install them, claimed they reminded him to do so several times during their tenancy and that they even offered to buy some alarms themselves if he agreed to deduct the cost from their rent.
The plaintiffs said Mann repeated that he would install the alarms himself, but never did.
Mann testified he didn’t know if the house had smoke alarms when he bought it in 2007 or 2008 and didn’t know if he had installed them. The plaintiffs testified they themselves installed three fire extinguishers which were functioning at the time of the fire.
The couple, their guests and four dogs were in the house at the time of the fire. The court heard Douglas woke up at 11:50 p.m. to go to the bathroom and heard what she thought to be rain. This was on July 12, 2011.
Entering the hallway, she saw fire reflected in glass doors leading to another room and smoke at waist level rolling down the hallway from the kitchen, where the dogs were kept. She went to the kitchen and saw a hole in the ceiling with flames licking through it and across the ceiling.
“She screamed for her husband and ran to her sister and brother-in-law’s room to wake them up,” Punnett noted. “She had trouble rousing them, having to yank her brother-in-law from the bed by his leg to wake him.”
Douglas tried to call 911 but the telephone cut out before she could complete the call. A neighbour called 911 at 11:51 p.m. and the fire department arrived seven minutes and 29 seconds later.
Everyone escaped, but one dog perished in the fire. Boon ran back inside trying to rescue it, suffering minor burns as a result.
They told the court they didn’t have time to use the fire extinguishers because by the time they awoke the fire was too large. It destroyed the kitchen, and part of the roof. There was also smoke and water damage.
Cause of the fire remains unknown.
During the trial Mann’s legal counsel produced a report from Sereca Consulting Inc., written by Christopher Reed, an expert in fire investigation and analysis.
Reed also testified. He told the court the intent of a smoke alarm is “to provide early warning to occupants to allow safe egress,” not protection of property.
Reed noted the exact effect of smoke alarms on property loss is difficult to assess.
“The damage to the property would not have been lessened had appropriate detection equipment been in place,” he told the court.
“It is therefore my opinion that the absence of attempting to suppress the fire, the response time of the fire department and the various rapid fire growth scenarios that are possible suggests that the overall spread of the fire could not have been contained had smoke alarms been in place.”
Punnett concluded “on the balance of probabilities” that no smoke alarms were installed. He also found no evidence when the fire started, how long it had been burning before Douglas discovered it, “and no evidence other than mere conjecture that the presence of smoke alarms would have awakened Ms. Douglas or the other occupants of the premises earlier.
“There is simply no basis upon which to conclude that had smoke alarms been present the fire would have been capable of extinguishment by them or the fire department in sufficient time to prevent any loss,” the judge decided. “To reach that conclusion would be speculative at best. The plaintiffs have failed, on the balance of probabilities, to establish that the defendant’s negligence was causally linked to the losses claimed. As a result I need not address the issue of damages. I dismiss the plaintiff’s claim for want of proof of causation.”
Boon and Douglas then launched an appeal of that decision, which was heard in B.C.’s Court of Appeal in Vancouver on May 12 by Justices Nicole Garson, Sunni Stromberg-Stein and James Fitch.
Their lawyer argued that Punnett applied the wrong legal test for causation and wrongfully concluded the absence of smoke alarms did not cause their personal and psychological injuries, distinct from their loss of property. The couple submitted that had smoke alarms been installed they would have woke up earlier and their losses would have been lesser if not eliminated.
The Appeal Court upheld Punnett’s decision on Wednesday June 8, however, finding no evidence that the presence of smoke alarms would have allowed the tenants to escape the fire any quicker or lessened their injuries.
Garson agreed with Punnett that the appellants had to show that the absence of smoke alarms was causally linked to the spread of the fire and damage it caused and did not agree with the couple that Punnett should have relaxed the test for causation to permit a “common sense” analysis of the case.
The couple argued that had the fire been discovered earlier than it was, they would not have experienced such a frightening escape and Douglas would not have developed symptoms of post-traumatic stress disorder.
Garson noted Punnett found “that there was no evidence beyond ‘mere conjecture’ that an early warning would have prevented the injuries in question.
“There was evidence that the occupants of the house were difficult to rouse,” Garson found. “There was no evidence as to the cause of the fire or the exact location of its origin, and importantly, no opinion evidence that a smoke alarm would probably have woken the occupants and allowed them to escape before the fire progressed beyond the smoke stage.”
Garson dismissed the appeal, with Fitch and Stromberg-Stein concurring.