Court Cases


21

St. Clair Boating v. Aquity

Ontario, Canada, January 2017

This is a very well thought out judgement on a very expensive challenge by counsel that an expert is biased. Note that Justice Raikes leaves the ‘door open’ for this type of motion if the expert’s company is owned by an adjusting or insurance company, which will be interesting if counsel for the defendants employs this tactic/strategy again.

So, if you prefer not to spend $100K on a motion, make certain your expert is independent and impartial

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20

Regina v. Pidgeon

Ontario, Canada, November 2015

Proving that an arsonist started a fire is not an easy task. Our engineers complete a thorough and comprehensive site investigation in order to meet the demands of the trier of facts. Experience at providing expert testimony is critical for providing opinion evidence that can withstand the test of a serious challenge.

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19

Gale et al v. Norquay et al

Ontario, Canada, August 2015

In 2011, a major explosion and fire caused extensive damage a Woodstock apartment building. The Ontario Fire Marshal, TSSA, Ministry of Labour, Police and other authorities having jurisdiction completed their investigation of the cause of the incident and excluded all other interested parties. Access to the investigation documentation was suppressed and 3 motions ( 2014, 2015 and 2016) were required to obtain all the relevant documentation from authorities having jurisdiction. The authorities having jurisdiction and regulatory agencies were forced to produce documentation relating to their respective investigations by judge’s order.

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18

Bywater Appeal

Toronto, Canada, May 2013

The appeal courts judge agreed with the original decision. He noted that 16 witnesses were called including a number of expert witnesses. He also noted that the trial judge ‘catalogued his concerns with the reliability’ of each of the Parkview experts and specifically admonished 2 experts ‘for their lack of objectivity and partisanship and attached no weight to their evidence’.

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17

Brandiferri V Wawanesa Mutual Insurance Co.

Ontario, Canada, June 2012

A punitive damages case can be very damaging to an expert’s reputation. Our experts provide impartial opinions that are accepted at trial. In this case, our expert report was accepted by the trial judge … other expert’s opinions (some that testified at trial) were not.

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16

D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel)

North Bay, Canada, July 2011

Should your expert refer to other expert’s opinions as “invisible leprechauns”?

Probably not.

Read this description carefully because the evidence given by the experts for Parkview will amaze you. More amazing is that the court forced a “hot tubbing” session for the experts prior to the trial, and the Parkview experts would not change their opinion in spite of the overwhelming evidence that the fire had been caused by a boiler in the basement of the building.

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15

1369349 Ontario Inc. v. Bates

Toronto, Canada, March 2011

When does the battle of experts become personal?

When an expert is ‘more invested in protecting his professional turf than assisting the court in its search for the truth.’

This 2004 fire caused about $100,000 damage, but required weeks of trial to decide the case.

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14

MacPherson and MacPherson v. Allen

Toronto, Canada, October 2010

A 2002 fire caused approximately $200,000 in damage to a home. Several experts for the defendant electrician tried to suggest that a mouse chewing through wires was the cause of this electrical fire. Justice Miller agreed that the probable cause was a misdriven and overdriven staple that compromised the electrical wiring. The bigger story, though, was that the defendant had to pay all costs of approximately $480,000.

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13

Sunrise Propane Explosion

Toronto, Canada, December 2008

In 2008, a major explosion and fire caused expensive damage to the Sunrise Propane facility and surrounding businesses, a school and several homes. The Ontario Fire Marshal and authorities having jurisdiction completed their investigation of the cause of the incident and excluded all other interested parties. Access to the Ontario Fire Marshal investigation was suppressed, so a motion for their documentation was held in 2008. The authorities having jurisdiction and regulatory agencies were forced to produce documentation relating to their respective investigations by judge’s order.

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12

Raymond v. Woodcock

Whitby, Ontario, December 2008

A single family dwelling was destroyed by fire and had to be demolished and rebuilt for the family.  A friend of the homeowners’ son was living in the basement and lost all of his belongings.  He sued the homeowners, claiming that they had signed a promissory note that indicated he would be compensated for his loss.

At trial, the judge relied on the expert opinion of Jason D’Ornellas.  Mr. D’Ornellas testified that the fire resulted from the careless misuse or disposal of smoker’s materials within the basement.

The judge indicated that she doubted the defendant’s claim that he did not sign a promissory note, which favoured the plaintiff.  However, based on Mr. D’Ornellas’ origin and cause determination the judge concluded that the Plaintiff was liable for the fire, forcing her to find in favour of the defendant.

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11

Oxford v. 1231766 Ontario Inc.

Toronto, Canada, December 2008

Ever have to deal with an exceptionally persistent claimant?
The time, the lost wages and the expense caused by these individuals can be wearing. Do not let them get to you.
In this case the justice found that the plaintiff ‘abused the power to summons’ witnesses and his claim was dismissed.

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10

Brian Hall & Sharon Hall v. Kawartha Karpet & Tile Company

Toronto, Canada, November 2007

So your expert was not involved in the original site investigation and did not attend the scene? Can you still defend your case? 

Of course.

Experts, working for the Halls’ claimed that a carpet iron caused the fire, but ignored burn patterns and technical evidence that did not support their hypothesis. Justice Ferguson accepted the sophisticated knowledge of an engineer relating to a broader range of relevant considerations including the scientific method, fire patterns and combustion.

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09

Danyliw Appeal

Toronto, Canada, June 2007

The appeal justices agreed with the original decision. They agreed that the trial judge was not ‘obliged to deal with other more speculative possible causes put forward by the’ Turnpike experts.

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08

Francis Danyliw v. Turnpike Masonry

Toronto, Canada, April 2006

Can you buy a win at trial by qualifying a seemingly never-ending parade of experts?

Probably not.

This 1999 fire caused extensive damage to a million dollar home. Justice Blenus Wright accepted that pyrolysis had occurred and that a chimney fire was the probable cause for this fire.

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07

Regina v. Derek Cameron

Ontario, May 2005

There are many examples where the evidence of the Authority having Jurisdiction has not been accepted at trial (see Canada Schoester and Danyliw). This case is a very good example of why you should not rely on the Authority having Jurisdiction to ‘make your case’. Our experts provide the court trusted evidence that you will need at trial.

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06

Lippa v. Zarello

Richmond Hill, Ontario, August 2004

A residential fire occurs and results in $100,000 worth of damage.  The uninsured basement tenants sues the homeowner as a result of all of his belongings being destroyed.

The Fire Department indicated that they suspected the fire to be electrical in nature. The plaintiff made claims that a fire damaged building electrical cable could have initiated the blaze.  Was the homeowner negligent in that the building wiring was in an unsafe state? Is the homeowner to blame for the destruction of all of plaintiff’s belongings?

Jason D’Ornellas testified as an expert at this trial and the judge accepted his opinion that this fire was unrelated to building wiring, but rather the result of a failure along a previously spliced/repaired power cord belonging to an item owned by the tenant.  Mr. D’Ornellas’ expert opinion was accepted by the court.  The court concluded that the plaintiff was negligent in that his use of this power cord created an unreasonable and foreseeable risk.

As a result of Mr. D’Ornellas’ testimony, not only was the plaintiff’s claim was dismissed, but the defendants’ claim for the maximum monetary amount allowed was granted.

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05

Optimum Frontier v. Solicitor General

Toronto, Canada, September 2002

The Ontario Fire Marshal (OFM) and other authorities having jurisdiction excluded other interested parties from a site investigation and wouldn’t share the evidence gathered from their investigation. This motion deals with the requirement to share with interested parties. An order required the OFM to produce evidence and documentation obtained during their site investigation. They also had to pay for the motion.

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04

Ottenbrite v. State Farm Fire and Casualty Co.

Toronto, Canada, April 2001

Can you prove that a fire was caused by arson? Well, it’s not an easy task, but if you complete a thorough and comprehensive investigation, you can prove arson. This 1997 fire was proved on a balance of probabilities, including the fact that Ottenbrite had the motive and opportunity to burn his house down and that he padded his claim.

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03

District School Board 19 v. 553517 Ontario Ltd. (c.o.b. Munden Park Electric)

Toronto, Canada, November 2000

Munden Park Electric relied on their experts to disprove the obvious cause of this fire… a massive electric failure of a supply circuit that was not installed to code. Their metallurgical expert made several bold statements prior to the trial suggesting that the courts would ultimately accept his flawed opinion. In the end, the court agreed that Munden Park was negligent.

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02

Amapola Homes v. Hydro Ontario

Toronto, Canada, September 1998

Ontario Hydro presented several experts in an attempt to disprove the probable cause for this 1991 fire; a misdriven and overdriven staple into an electrical conductor. Experts for Ontario Hydro told the court that arc tracking could not occur between insulated 120 volt conductors. The 2014 NFPA 921 and the Ignition Handbook can now be used to demonstrate that arc tracking can occur at a much lower voltage than 120 volts. However, in 1998 (the date of the trial), I had to rely on CSA standards and my experience to prove this theory.

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01

Canada Shoester Corp. (Trustee of) v. Royal Insurance Co. of Canada

Toronto, Canada, January 1996

This is an example of Case Law used in Law Schools for the proper use of NFPA 921, “Guide for Fire and Explosion Investigations”. The Ontario Fire Marshal’s office (OFM) concluded that this 1993 fire was arson, but their investigation did not withstand the test of a serious challenge. In particular, the OFM did not follow NFPA 921 and could not eliminate the probable cause for the fire as an electrical failure. The OFM changed its SOP’s as a result of this case

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