McDougall v Black & Decker Canada Inc, 2016 ABQB 253

Court of Queen ’ s Bench of Alberta Citation: McDougall v Black & Decker Canada Inc, 2016 ABQB 253 Date: 20160601 Docket: 0503 20699 Registry: Edmonton Between: Gordon McDougall and Lolita McDougall Plaintiffs - and - Black & Decker Canada Inc., Black & Decker (US) Inc. and Black & Decker Inc. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Sulyma _______________________________________________________ Introduction [ 1 ] This is a products liability case.

In January 2004, a fire occurred which burned down the house with attached garage of the McDougalls (“the Plaintiffs), who then lived in St. Albert, Alberta. The Plaintiffs contend that by the fair and reasonable findings on the evidence here that they have met the evidentiary burden to prove that the probable cause of the fire was the Defendants’ product, a Black & Decker drill with charger.

[ 2 ] The Defendants contend that burden has not been met in fact or law and makes submissions on both points. Evidence – Plaintiff Witnesses Witness: Lolita McDougall [ 3 ] This witness said she and her family had moved into a new house in St. Albert in June of 2003. This fire occurred January 4, 2004 on a Sunday. By 10:00 pm, her children were in bed and she was upstairs watching TV. She heard loud, really unusual popping sounds. Thereafter, in reacting, observed haze and smoke, and she also observed fire behind the garage door entrance to the house.

She gave, in my view, further benign evidence of the damage that was observed on the following day. She further gave evidence that a boot rack had been constructed between Christmas and January 4 th . She did say in cross examination that she had briefly looked into the garage before quickly shutting the door. She observed orange flames coming “more from the center of the garage than the wall”. Witness: Gordon McDougall [ 4 ] The other Plaintiff, Gordon McDougall, states that he had been working in his office most of that day. The family had dinner at 4:00 pm and he had put his son to bed around 10:00 pm.

He stated he may have heard popping when his wife came down the stairs. He opened the garage door hoping to use the extinguisher, but he could not do anything given the size of the fire. [ 5 ] He was an occasional smoker of cigars. He had smoked one that day on the way back to his home from the grocery store and flicked it out the car window. He could not recall smoking in the garage the evening before the fire.

When he did smoke in the garage, he would usually extinguish his cigar into a coffee can or pop can. [ 6 ] In cross examination it was pointed out that he had been the last person in the garage before the fire. Although he had not participated in building the boot shelf, he confirmed that on usual occasions, the drill in question and charger would be left on the workbench on the east wall of the garage. He could not recall if, on the Friday evening, the charger was plugged in or out, if the battery pack had been in or out of the charger or if one battery pack had been in the drill itself.

He didn’t know where the extension cord in the garage was or whether it had been driven over. He confirmed that there were automatic garage doors, a freezer and lights in the garage. He confirmed there had been gas in the chamber of a chainsaw in the garage. Witness: Manfred Peters [ 7 ] Manfred Peters had built a shoe shelf by the back stairs using a cordless drill that was battery powered. He had completed his work on Friday evening and left both the battery charger and drill on a workbench at the east wall of the garage.

He testified that the battery pack was in the charger and the charger had been plugged in. [ 8 ] He too smoked cigars occasionally, at that time. He had smoked a cigar, stepped on the butt and at a later time put the same butt into the garbage can. He was of the view that the last time he smoked in the garage was Friday evening and that he would have disposed of it probably in the early hours of the morning. In cross examination, he recalled that the battery did run out, that is the first charger pack in the drill itself, and at some point, he took another battery pack from the charger.

Witness: Ken Maskell [ 9 ] This witness was qualified to give expert evidence in the field of electrical engineering, electrical forensic work, and electrical investigation regarding failures and associated investigations. Part of that expertise is to determine the cause and origin of electrical failures. He was aware of and guided by the industry’s guide for fire investigation (“NFPA”). [ 10 ] He had been retained by the AMA (insurer), just after the fire occurred.

He prepared a report dated June 7, 2004 which concluded that the overcharging failure of the battery packs and the charger is the most probable origin and cause for the fire loss. [ 11 ] He had met with Mr. Moker a few days after the loss. He had been briefed about the file before he attended the scene, collected artifacts and took photos. He was frequently called in on investigations that suspected electrical cause. He described the articles that he collected from the scene. He concluded that the place of the artifacts was consistent with the drill lying on fabric, and in turn on top of the workbench.

He identified the drill as a 12 volt Black & Decker. He identified a significant bulge on two strings of batteries. [ 12 ] He discounted electrical failure because of the absence of arcing and beading evidence. In his view, damage occurred from the outside in, consistent with the item being burned in the fire itself. He described other sources for the fire as being discounted by him. [ 13 ] He had determined from research that battery cells for handheld tools could be subject to overcharging.

He pursued that and noted that it was significant that certain items here remained in place after damage and further that all of the combustibles hadn’t been burned away. This he matched with the evidence that the bulge in the battery packs were only on the lead cell. He pointed out in photographs that there was arcing evidence consistent with an energized cord being acted on.

He explained that fire will act on the outer insulation of a cord and that the cord then becomes a conductor. [ 14 ] He used an exemplar in his investigation which matched the drill but was not a complete match to the original battery charger which had been consumed by fire. He did some research on the internet regarding Black & Decker recalls, which by the time of trial, he stated were not that impressive. He could not comment on the charger here other than it was definitely different than products he had identified as being subject to recall.

His conclusion in the first report was that the bulge in the battery pack on one battery pack indicated a pre-fire condition. [ 15 ] He then had to respond to the Defendants’ report by Dr. Hoffman. As a result of reading that report and rebutting it, he revised his initial conclusion of origin to: there was heat to the point of combustion to whatever it was that was first ignited.

[ 16 ] In cross examination, he admitted he had not done an on-scene investigation and that his conclusion was based solely on his physical examination of retrieved items. He did not review tests of the drill indicating it was approved for sale by regulatory bodies. [ 17 ] Cross examination pointed to his original conclusion which was based on bulges on both battery packs. That is, on both separate lead cells. He acknowledged in cross examination that a charger connected to the drill itself could not be charging.

He acknowledged that that could only come from an assumption that that pack was overcharged before being inserted in the drill. He admitted there is no evidence here that would support that assumption. [ 18 ] He further admitted that had the lead cell of a battery pack been overcharged, the plastic housing would fail and not fit into the drill housing. He further agreed that it was therefore highly unlikely that the bulge was there before that battery unit was attached to the drill. He was cross examined on the mechanical makeup of the cells within a battery charger.

He was not aware that there was a separation of cells inside the unit. He lacked information of design and composition of the PS 130 battery packs when he prepared his reports. And he was not aware of the makeup of the transformer or presence of vents in the battery packs. Also, the second report references NiCad batteries but he did not look at the photographs on that issue attached to the Defendants’ report. Thus, he could not comment on the relationship of a trickle down format to his thesis of overcharging. [ 19 ] These admissions meant any pack in the drill could not have been an overcharge source.

Indeed, that there is no physical evidence that he could now point to that definitively establishes that either battery pack was overcharged. [ 20 ] He admitted that his initial report required revision of how the bulging occurred. Indeed, his second report gave two sources as possible cause of the bulging. [ 21 ] He was unable to say which battery pack came from the scene itself, or what type of charger was involved here, although he confirmed the hypothetical of his pack matching the exemplar introduced by the Defendants here.

With respect to the hypothesis relating to a PS160 battery charger overcharging a PS130 battery pack, he confirmed an overcharge is extremely unlikely. [ 22 ] During the course of this cross examination, he admitted that his former second conclusion was incorrect. That is, the first report which was based heavily on his hypothesis that the battery bulges on the lead cells indicated over charging. He then stated that as a result of the reports he was rebutting, “I believe now that the combination of the overcharge and external fire caused the bulging.” He could not state which.

He was still skeptical of the fact that only the lead cell showed the bulging damage, but ultimately agreed exposure to an external heat source such as a fire can cause bulging of a lead cell. [ 23 ] He was cross examined on multiple arc points that he admitted were evidence of arcing. That in turn would be evidence of the cord being energized when the fire occurred. He admitted that there was no question that the arcs could be attributable to the cause of the fire or exposure to the fire.

He was vigorously cross examined on other possible sources which included other receptacles, other wiring, two garage door openers, the chain saw and the garbage can on the east wall which contained a cigar butt. He was also cross examined on the cord and its possible location. That was directed at the possibility that a vehicle drove over the cord. He stated that, in this case, there was no evidence of a load on the cord and there was no evidence of it under a carpet.

He acknowledged he had no information that the charger above the workbench had been in use. [ 24 ] He acknowledged his information from the internet had not been peer reviewed and may not be correct or reliable. [ 25 ] Referencing various provision of NFPA 921, he agreed he had not complied with NFPA requirements of investigation. Witness: Earl Moker [ 26 ] This witness was confirmed as an expert in the field of fire investigation with the ability to give evidence regarding the origin and causes of fires.

He arrived at the site of the fire on January 6 th after the Fire Department had already hired a demolition crew. After examining the debris in the garage along with information he obtained from the Fire Department, he concluded that the fire originated in the garage. He concluded that the majority of damage occurred in the east bay where the contents were almost totally destroyed. He outlined the evidence that he saw and confirmed in photos which led him to his conclusion of the source of ignition. He also discounted possible sources during the course of the investigation.

He found that the base of the east wall showed the most extensive damage as did trusses closest to the workbench. He concluded that these findings indicated that the fire went from the east to the west within the garage. This was also confirmed by less damage to the Toyota vehicle parked by the west wall compared to the Ford which was in the middle bay. [ 27 ] He was aware that the Fire Department had found a cigar butt in the trash can in the east bay and had taken it.

He discounted this as a source after talking to members of the Fire Department and noting (1) had the cigar been the source of ignition, it would have had to affect combustibles nearby; (2) it would also have had to be longer in length to do so; and (3) if it had been the source, it itself would have been incinerated. He’d also been told by Mr.

McDougall that he had thrown a butt out the window of his truck; so, discounted his butt as being the source of the fire. [ 28 ] After his investigation, which included interviews with the owner, he concluded that the fire originated in the east bay of the garage and the most probable source of ignition was a charger on the workbench that had been plugged in. He also concluded that the first material ignited was the plastic case on the charger.

During the course of the investigation, he had eliminated the Ford vehicle as a source of the fire. [ 29 ] In cross examination, he confirmed that he was not an electrical engineer and had relied on the opinion of Mr. Maskell as far as the issue of source of fire. He confirmed that if Mr. Maskell’s conclusion on the source of the bulges is incorrect, and there was a trickle down mechanism in the charger itself, that that would lead an investigator to properly conclude that the fire resulted from an undetermined source.

He confirmed that photographs of the scene indicated that the crucial area was an area at the bottom of a “v” pattern which in turn was south of the workbench. He did not photograph that area or by extension, investigate it. Photographs showed undisturbed debris at that area.

[ 30 ] He was asked to confirm the burn pattern under the truck from the photos and stated he did not agree that that showed spalling. He did agree that there was a burn pattern shown on the concrete consistent with exposure to heat which pattern could be relevant to area of origin. He was further cross examined on damages to roof trusses that he did not investigate. He admitted that as a result of the v-pattern south of the bench and the damage to the roof trusses in that area, closer examination was warranted.

He admitted that at the time of his report, he had no knowledge of which Black & Decker products had been recalled and no knowledge that a trickle down charger was involved. [ 31 ] He admitted he did not preserve: all lights in the garage, all receptacles except for one, all wiring, the electric garage door openers and the remnants of the chain saw that had contained gas. He admitted that there was no physical evidence that the charger had been plugged into the wall. He did not examine the sill plate, which had extensive charring, or truss charring or wall studs which were south of the workbench.

He agreed these could be relevant to the investigation. [ 32 ] He agreed his investigation and evaluation did not comply with certain Guidelines. [ 33 ] Finally, he agreed it is highly unlikely that an ultra-low charge battery charger such as a PS 160 could overcharge a PS 130 battery pack. On that point, he would defer to Mr. Maskell. [ 34 ] He was cross examined on the issue of heating of the window glass as the photographs showed melted glass. This in turn could show that more ventilation occurred to the place above the workbench as a result of the fire being fanned by the glass damage fueling it.

He had given evidence in chief that he assumed that the plastic case on the charger was probably the first material ignited, but was unaware that it was made of fire-retardant material and that it was immune from fire other than that from a direct flame. In the same vein, he and Mr. Maskell did not test the exemplar battery pack or charger in reaching conclusions either that the pack or charger was the origin of the fire. Also, there was no testing to see if a simulated heat source would cause the observed bulging. [ 35 ] Both Plaintiffs’ experts did no testing of their hypothesis of source.

For instance, a test to determine if overcharging of the identified units could occur. Evidence – Defendants’ Witnesses Witness: Ted Mitrou [ 36 ] This witness, now retired, had a career as a senior safety assurance manager. He has a BS in electrical engineering and was qualified to give expert evidence in the area of safety, testing and manufacturing, and standards that apply to the power tool industry. [ 37 ] He testified that the Black & Decker tool was typically supplied with a battery charger and battery pack and that, exclusively that those items were a PS 160 charger and a PS 130 battery pack.

In this case, the drill would have been supplied with two battery packs and a charger. One battery pack contained ten 12-volt cells. Each pack has a voltage of 1.2 volts. The charger plugs into the wall and the transformer inside the unit transforms volts. [ 38 ] In this case, the item, Exhibit 6 – the battery pack, extracted from the house debris had a pack of a little higher stature and a capacity to carry a little more current. This only means that the charge would last a little longer.

When asked whether it was possible for a PS 160 to overcharge in combination with the PS 130, he replied that there was no possible way. The transformer itself that plugged into the wall had a small wiring system that limited the number of milliamps it could carry. The extra-low voltage power supply prevents the unit from putting out anymore milliamps than it had been designed to carry. That is 300 milliamps whereas to overheat a battery, you must apply close to 3000 milliamps. [ 39 ] Further, the ratio of primary coil to secondary coil is limited.

He explained the difference between a lower milliamp unit that converted immediately into a trickle charge versus a higher rate charger of 3000 milliamps which charged at a high rate and, on charging finishing, shut itself off and then went into trickle mode. He testified that Black & Decker drills were always produced according to the first example of converting immediately to a trickle charge. [ 40 ] He testified that the Defendants never encountered a safety issue with this drill and its charger and packs and had never encountered a scene where such overcharged or overheated.

The only complaints with the combination of this pack and charger were in relation to the charger failing to charge. He was asked if the 130 pack had been left in the charger for days on end, would there be a concern of overcharging and he replied “No”. He testified that the result of leaving the pack in the charger indeed affects the pack’s ability to charge by reducing the amount of the charge the pack would take. This only relates to the number of times a user would have to recharge. [ 41 ] This witness described the Defendants’ safety testing regime that it had to follow prior to distribution.

On an overview, CSA standards require the manufacturer to prove that the charger is incapable of producing a greater charge than it has been designed to take. This was insurance that a charger would not be source of a fire. He noted that the Plaintiff’s expert in referring to overcharging referred to not relevant instances of recall, and all instances were post-distribution of this unit. This unit had been in the market long before those anecdotal test results.

He gave a further explanation of the effects of CSA requirements, a 1995 agreement between Canada and U.S. applying to joint standards and the role of U.L. tests which mandate independent testing. [ 42 ] There was a voir dire issue regarding results he had in his file from U.L., files which hadn’t been disclosed. I will deal with that issue later. He did go on to describe that, in this case, there was no forensic evidence of the date of manufacture but going back to a time before this fire, the product had been listed in U.L. testing records of 1996.

At that time, what is recorded is a lengthy series of tests with the end result of their verifying that the charge output of the charger complied with proper standards. He described in detail the number and types of operative tests which were directed at measuring output and also temperature rises during the charging process. These tests, leading up to the date 1999, indicated that the worst case of possible damage could be shorting out. [ 43 ] Rather, typically, the fuse opens and permanently limits and disables the charger. Thus, no current can flow to the batteries.

He detailed further tests related to a possible negative effect on the bypass mechanism of the charger, of the charger being tested under

high temperatures for many hours and to tests of the plastic case. The upshot of the testing processes, in his view, was that if the plastic case were placed in a raging fire it would be consumed. But, if the transformer was attempting to ignite during this period, the housing would go out and the internal fire potential would be stopped. The real challenge regarding the efficacy of the unit is external fire, but if the charger contained the closure material described inside that unit, it would extinguish flames.

So, the unit could be subject to external fire, but an internal fire would be stopped by the unit itself. [ 44 ] Similarly, he stated the battery pack can’t maintain a fire. He described other test results such as the unit being thrown to the ground or surrounded with inflammable objects.

He stated that the same concept applied to the charger itself along with the safety limitations of the battery pack. [ 45 ] He described further tests which involved a fully-charged pack being placed on wood and into an oven and importantly, a venting test which measured the pressure on the battery pack as it increased and confirmed that venting would relieve that pressure if the item became too hot. [ 46 ] He further described that the drill itself had been tested with the battery pack which passed the place-on-wood test with combustible items.

All the tests mentioned were to test for rising temperature to a level that would cause ignition. All tests were stressful to the product to ensure it would survive and not cause heat and in turn, fire. I do not find it necessary to reiterate the total of the tests. The purpose as was testified to was to determine whether units were at risk by fire or short circuit hazards. All three: the drill, the packs and the charger were tested and passed and listed by U.L. or CSA. [ 47 ] He further detailed tests that applied to the PS 130 battery pack.

In what became admissible evidence, the Defendants determined by testing with U.L. and CSA standards that the charger was incapable of causing the battery pack to overheat. The tests themselves were done to ensure that the unit by design would not overheat. He further confirmed that the maximum amount of power that could come from the 160 unit was 300 milliamps as compared to the standard for overheating being 3000 milliamps. He described the action of the fuse opening and disabling the transformer. [ 48 ] The witness confirmed that there had been recalls of other Firestone products, all at a higher voltage.

The 12v unit was never subject to recall. Another possibility behind recalls is a malfunctioning switch. The witness went on to describe his role and findings post-fire in this case. By the time the Defendants’ team arrived at the fire scene, it had been destroyed and was being reconstructed. He described this as a concern to the Defendants’ investigation goals. He described the inspection of the artifacts that had been taken from the scene and that he and the Defendants’ investigators had obtained the St.

Albert Fire Department report. [ 49 ] There was a question raised about whether a cigar could have been the origin of the fire. He was able to examine all of the photographs of the witnesses Maskell and Moker. However, in his view, that did not assist in determining origin as the Defendants’ investigation team was not able to view the evidence on site. Also, he noted that the Fire Department had identified the butt as the first possible site of origin of the fire.

He acknowledged that although the Black & Decker team of experts couldn’t determine the date of manufacture, that it was able to determine, on the basis of the above, that the unit was not the cause of fire. [ 50 ] The witness was cross examined on the various voltages of Firestone products and that all such, including PS 130, had to be certified as safe for sale and safe to consumers. It was put to him that recalls were suggestive of the fact that products from the Firestone family could overheat and cause fire notwithstanding the design and testing process this witness had described.

The answer was that certain components of the family of products had malfunctioned and overheated. However, that the possibility of that fact informing a conclusion here of a fire hazard from that statistic was “too general”. [ 51 ] More specifically, Mr. McKall referred him to data of malfunction in high-rate chargers and a voluntary recall by Black & Decker of 1.7 million chargers. His answers were that the chargers involved were: 1. High current units; 2 They did not contain transformers inside the unit; and 3.

That the problem, in those cases, was that electronically the charger continued to charge when the charging was complete and thus overheated. [ 52 ] He answered the hypothetical regarding a high current charger going into overcharge and becoming a trickle down charger as proving the concept that that process cannot be reconciled with the sentence “can cause a battery to burst.” Rather, that in these instances, the battery could burst despite the very switching process in place as a safety item.

The witness replied “Yes.” In further answer, the witness contrasted the facts in the hypothetical to facts here that this was not a unit that switched to trickle down after being charged at a high current rate. The unit here “is a different beast than a high current unit.” [ 53 ] There were a series of questions in cross examination which referred back to the newly-found testing results during the very course of this trial.

This cross further referred to models marketed in Canada or not, and the relevance of 1988 problems with a cordless mower. [ 54 ] The last sequence of questions in cross examination related to the fact that the Plaintiffs investigators worked beside the St. Albert Fire Department and the Fire Department was there during the demolishing stage.

Also, that by the time that the Defendants decided to investigate, it was many months after notification of the destruction of evidence in July of 2004. [ 55 ] The redirect evidence was that once the charger went from high rate to trickle mode, it was impossible to overcharge the batteries. Witness: Dr. Donald Hoffman [ 56 ] This witness was qualified as an expert in the area of chemical engineering and engineering analysis of fire, origin and cause.

The qualification included the ability to evaluate events leading to fire. He relied on Dr. Neuhalfen’s photos and those of Mr. Mitrou, and the report from the Fire Department which identified two potential sources of the fire in this order: (1) smoking; (2) overheating charger. [ 57 ] He led the Court through a proper process of a scientific investigation of facts.

He pointed out initially how his investigation was limited to photos and what had been done on the scene before and after demolition. [ 58 ] He noted there was substantial evidence here that could have related to the window bursting from heat and the effect that could have on the extent of burning in the area of the window including the workbench. He referred to the Fire Department photos which indicated damage all around the garage door. He also observed that the v-pattern at the workbench site burned right through the gypsum and that was significant.

It was also significant that that pattern occurred nowhere else but on the ceiling. This all in relation to the fact that the window bursting is relevant to the burn patterns. [ 59 ] He confirmed that the Fire Department had recovered a cigar butt which could have been a significant ignition source and that the burn pattern there would have been important to evaluate. He further noted spalling on the concrete floor and charring above that that occurred all the way down to the floor. He noted that was the only place shown in the photos of this scene that indicated the burn pattern as going completely to the floor.

This, at a site south of the workbench. [ 60 ] He noted that there would be a substantial risk that items in the trash ignited. Also, there were plastics on scene and when plastic melts, it generates tremendous energy as it burns. [ 61 ] He further outlined problems posed to him in his investigation given that he had no knowledge of where artifacts had come from after the first investigations of the fire. [ 62 ] The condition of the drill meant to him that the fire did not touch it which, in turn, would indicate it came from a protected area.

He pinpointed the location of line cords and extension cords as important to determine whether the fire occurred by combustion as opposed to electrical fault or a liquid metal object. All of these indicia would be informative to the issue of origin of the fire. That information was missing as a result of the demolition of the scene. [ 63 ] He identified localized melting on the line cord and conductor cords and stated that damage could be consistent with arcing, melting from the fire or a liquid melting attack. He saw multiple types of damage on the same cord.

However, as a result of the demolition, he could not know where these items were retrieved from. [ 64 ] On the issue of location, he noted: (1) the Plaintiff Ms. McDougall placed the fire as being at the center of the garage; (2) the patterns on the east wall both in the area of the workbench and trash can were indicative of origin; (3) by the process of fire dynamics, he noted that the cardboard and plastic on the battery packs didn’t burn; (4) he noted that if the fire originated in the trash can with the butt, that the fire could go up; and (5) finally pointed to the arc mapping.

That is, he noted that there was some evidence, but that that was not useful without knowing where the plug was. He found Mr. Maskell’s arc mapping not adequate as one would have to know of further arcs or arcs closer to a known origin to make a conclusion from this mapping. Also, Mr.

Moker, in his investigation, did not document what circuits went into the garage. [ 65 ] So, it could not be determined whether arcing displaced on line cords resulted from being attacked by the fire or whether the arcing occurred from mechanical damage from the line cords which caused the fire. [ 66 ] As there is still a remnant of the plastic and the label of the drill is still readable, the drill was not able to burn down through the table, such that it is unlikely that a fire originated in that area. [ 67 ] On any opinion of overcharging, he states that battery packs were damaged due to exposure to the fire and not from overcharging.

Nor did they show evidence they caused the fire. [ 68 ] He described the next step in determining origin is to identify known ignition sources. In this case, there were items that could have been retrieved that had significant damage, but few of these were recovered. That impacts an investigator’s ability to identify possible ignition sources. As a matter of industry protocol in such a case, the origin of the fire must be stated to be “undetermined”. In this case, there were multiple potential ignition sources, but not such that would inform a final conclusion.

If the process had been properly followed, the analysis would include: (1) arc mapping; (2) fire analysis; (3) what witnesses observed; (4) other information collected outside the scene; and (5) most significant, where were things located at the scene that were ultimately collected. [ 69 ] His report was critical of the investigation and conclusions of Mr. Maskell. Specifically, regarding the bulge in both lead cells of the battery packs. He stated that if cells had been attacked by fire, they would have released energy and not necessarily released equal energy across all of the batteries.

He concluded that the battery damage was not caused by internal overheating. [ 70 ] He went on, as did the last witness, to confirm that overcharging was not consistent with the design of the charger. Rather, as explained above, the trickle charging design would cause the battery to melt and short and the plastic would melt. Importantly, he stated that the release of energy would not cause arcing. [ 71 ] He was of the opinion that the lead cell would be exposed to the cause of damage and would therefore fail first.

However, not always. [ 72 ] He described differences between lithium battery packs as compared to NiCad. Basically, cells react differently in fire and different cells will show different damage from bulging. A NiCad battery pack can be exposed in many ways that indicate that only the lead would show bulging. Such damage only means it was exposed to fire, as opposed to indicating an electrical cause. [ 73 ] Although a lithium battery pack reacts differently, the result is the same, that is, damage can occur in a pattern from the heat of the fire.

In conclusion, he noted that although both battery packs sustained the same pattern of damage, that there was not enough evidence to indicate why that was. He found Mr. Maskell’s conclusions and his investigative process to be unreliable, that he had cited

unreliable sources and that proper testing would result in a different conclusion. Further, he could not reach the conclusion regarding origin without evaluating cords at the scene. [ 74 ] In cross examination, he admitted that the testing process would not equal a guarantee of non-failure to consumers and that in general, there are cases of failure even when standards have been complied with. He was cross examined on Mr. Moker’s observation that the spalling on concrete was south of the work bench versus north.

He replied that the burning occurred throughout the garage, but the photographs indicate that drywall at the north did not equal the total devastation of that to the south of the workbench. Yes, there was some on the north side, but on the south side the damage was definitely more extensive. [ 75 ] He was asked to agree that the photos indicate the fire moved from east to west. He did not agree. He agreed that the west wall beside the parked Toyota was less damaged, but stated that the damage was significant all the same.

He gave the same opinion regarding damage to the driver and passenger sides of the parked Ford. He noted that the trunk was substantially burned and that there was still damage to the passenger side. In the case of the Ford, Dr. Hoffman was of the view that the damage was more front to back. That is, indicating a south to north pattern. [ 76 ] He was cross examined on process. He never spoke directly to the owners. He stated that he did have information of what the Plaintiffs’ statements were from the reports of the Fire Department and of Mr. Moker.

However, he felt those accounts missed information. [ 77 ] He did not inquire whether the vehicles were examined further after being towed. He stated, “I had so many ignition sources leaving out the Ford didn’t matter.” [ 78 ] He did not test the battery packs earlier as he would only do so were he called upon to comment on the packs as the source of the fire. He would not change his final opinion that the origin of fire ought to listed as “undetermined”. Also, not only did he not agree with Mr. Maskell’s conclusion, it was unsupported.

Specifically, he didn’t know of or reference the transformer, the trickle-down effect or venting as being mechanisms within the chargers. [ 79 ] Cross examination pointed out that despite his cited lack of information that Mr. Maskell was able to form an opinion of point of origin as did Dr. Neuhalfen. That is, that the real difference was that Mr. Maskell was able to reach a conclusion and he was not. In reply, he referred to the Fire Department’s possible cause No. 1, referring to smoking material. [ 80 ] He agreed that a 12 hour span would probably mean any butt was extinguished.

He was cross examined with respect to Mrs. McDougall’s observation of the fire from the doorway to the garage and the presence of the shoe rack. He stated that she must have seen the fire before the whole garage was involved or else she would not have seen anything. [ 81 ] He was cross examined on recalls of 18 volt packs. He replied these are larger battery packs with a larger current. The charger here was never subject to recall.

In chief and in cross examination, he pointed out that the label and the plastic remnant shows the drill was not able to burn through the table such that it is unlikely that fire originated there. Witness: Dr. Andrew Neuhalfen [ 82 ] This witness was qualified as an expert in investigation of accidents that are electronically related. He started his observations with the fact that the drill indicated external heat damage and showed no evidence of electrical failure. With respect to the battery pack No. 1, the evidence showed the pack had been inserted into the drill at the time of fire.

The battery pack housing still had the base of the drill remnants. As that pack was in the drill, it was not charging when the fire occurred. [ 83 ] In his opinion, the bulge on the casing of the lead cell indicated internal heat from within the battery cell from the external fire. He explained that an external heat source would heat the liquid in the lead cell of the battery pack. As this pack was in the drill, it was not charging when the fire occurred. [ 84 ] Also, that battery pack could not be charging because there would be no current. Hence, there could be no overcharge.

He did not see internal damage or evidence of overheating in the terminals. The lower cells of the pack did not show evidence of electrical fault. The reason that the bulge could only be seen on the lead cell is that the lead cell was more exposed to the external fire than the lower cells which were clumped together and more protected from heat exposure. With respect to the other nine cells in the pack, he noted that the cardboard on top did not completely burn. He opined that had the bulge been present pre-fire, it would also have shown marks in the interior of the drill. Those marks were not seen here.

Therefore, no overcharge could have occurred before, during or after the actual fire. [ 85 ] He noted the prongs were not recovered and that the windings in copper wires in the transformer did not show evidence of electrical damage. [ 86 ] He reached the same conclusion on the other battery pack. He noted the minor bulge on the lead cell. He noted there was no pitting, no evidence of electrical activation of terminals, and no clips attached to the terminals.

He opined that the bulge on the lead cell of this battery pack was similar to the one noticed on the first pack and concluded that that damage was also caused by external heat. [ 87 ] He was of the view that the cord to the timer in front of the truck did not demonstrate evidence of electrical activity. However, the beading and pitting on the strands did show electrical fault activity. Here, there was evidence on all three conductors of electrical fault. This could be the result of or origin of insulation melts. In any event, this evidence of arcing could be the result or origin of the fire.

Regarding the latter statement, the cord could have been squeezed. He also could not know where the cord set was located in the garage given the site was destroyed. [ 88 ] Regarding the battery charger, he explained voltage that led to alternating current versus direct current. If the pack is 12-volt, then the amount of current is 200 MA and that does not have the capacity to overcharge as it is too low in voltage and because the transformer controls the amount of current flowing out to the charger.

[89] He stated that, obviously, both battery packs could not be charged at the same time. And, one was in the drill. Both packswere exposed to external fire and that is the reasons for both bulges occurring on the lead cells. [90] This witness critiqued Mr. Maskell’s analysis. He noted that he did not take into account the fact that the transformer limitsthe amount of current flow. With respect to the damage to the power cord, he would say it’s difficult to say if the arcing was the cause orresult of the fire. An arc must travel to another place, but in this case it could not be said as to what place.

He reached a conclusion thatwould eliminate the drill and charger as causes of the fire. However, at the same time, he couldn’t eliminate the cord or the smoking asthe cause. That means he concluded the cause appropriate here should be listed as “undetermined”. [91] In cross examination, the witness acknowledged that products could be tested and pass a testing procedure, but still pose arisk. Such, it was suggested, is implicit in recall notices. He agreed. [92] This witness prepared a cause report, distinguishable from origin analysis.

Without being on the scene, he could eliminatethese products as cause: iron, chainsaw. He was cross examined on the fact that he did not look further into the Fowler report or followthe towed vehicles. He replied that he did not opine that the responsible vehicles were in the area of origin. Similarly, with respect toevidence of the smoking materials being extinguished or not, he stated “I can’t say the butt was the cause, I’m just saying I can’teliminate it.” He agreed that given time frames, Mr. Peter’s butt could not be an origin.

However, he stated that he did not know howmany other butts were in the garage and he did know that the trash can was in the area of origin. Although he admitted a butt as originwould have burned up entirely, he stated that that applied to Mr. Peter’s butt, but otherwise he did not know what there was in the trashcan that was unextinguished and in paper wraps. Accordingly, he could eliminate identified butts from his analysis, but not others. [93] He was cross examined regarding other Plaintiff witnesses and their testimony that the charger was in the cradle.

Heconfirmed that the cradle and the plastic case were not recovered, nor was the housing for the prongs. Thus, he did not know where thesecond battery pack was. [94] He was cross examined vigorously regarding the popping sound, the bulging cells as causes. He stated that combustion couldoccur if other items were in contact with the bulging battery pack. He stated that the bulging battery could have been heated, but thiswould be, in his opinion, by an external source. In both instances, he opined that to form a bulge in the first pack, current has to gothrough the handle of the drill to the lead cell.

However, the pack in the drill was not charging. With respect to the other pack, were it inthe cradle, the current had to get into the cradle and then to the case of the cell, but by that time, an external source of fire had beenactivated and the damage was already in place. Then the cell would be consumed and the lead cell exposed, as occurred here. [95] He was cross examined on evidence that could lead to a conclusion that the cradle with pack was plugged into the energysource. He stated he did not dispute that, but there was no physical evidence of that.

Rather, the evidence indicates fire acted on thepacks. [96] He was cross examined on his experience with failures in other models of chargers. He did not make inquiries as to thoserecalls. The reason is that in this case, a PS 130 did not have the ability to overcharge. Basically, it doesn’t have the current amount tocause the overcharge. Further, that there was no evidence of consumers having overheated 12-volt packages. He was further crossexamined on chargers being subject to recalls in the past.

He was cross examined on information he relied on in the course of hisinvestigation and replied that he did not rely on evidence such as that of Mr. Mitrou, but rather examined the evidence and applied hisown investigative analysis. Position of the Parties Position of the Plaintiffs [97] The Plaintiffs begin with citing the legal test of causation. The Plaintiffs take the position that the “material contribution test”does not apply. Rather, “the but-for test” applies. The latter test is outlined in Clements v Clements, 2012, SCC 32, where the SupremeCourt of Canada defined the test.

In this case, the Plaintiffs submit that there ought to be an inference that the Defendants’ negligenceprobably caused the loss. [98] In the same vein, the Plaintiffs cited Johanneson v General Motors of Canada Ltd, 2012 NSCA 120, [2012] NSJ no 631 (QL) and Klar, Lewis, Tort Law, 5th Edition (Toronto: Thomson Reuter Canada Limited, 2012) which state that there are inferences thecourt may make that differ from rules that may apply to strict liability. [99] The Plaintiffs cite further cases: Aviva Canada Inc. v Isolation Chaleur Insulation Ltd., 2009 ABQB 74, R v Watson(1996), (ON CA), 30 OR (3d) 161, [1996] OJ No 2695 (QL)(CA), Farro v Nutone Electrical Ltd. (1990), (ON CA), 72 OR (2d) 637, [1990] OJ no 4l92 (QL) (CA) from the Ontario Court of Appeal which the Plaintiffs submitshow that the burden is to convince the court that events or findings are more likely than not.

Regarding manufacturers’ liability, that itdoes not require direct evidence of defect at the time the product left the factory. Further, that there is no burden on the plaintiffs to proveexactly where and how the negligence occurred.

That can be proved circumstantially. [100] The Plaintiffs in closing further referred to spoilation principles established in this very case. [101] The Plaintiffs submit that the fair and reasonable findings of fact here include: (1) the most probable cause of the fire was theDefendants’ product; (2) possibilities re smoking materials as origin whether cigar, or the possibility of the cord under the truck or thetruck itself have been referred to but not proven in evidence;

(3) Dr. Hoffmann’s assessment that other things like the electronic garagedoor could be causative constitutes speculation and conjecture without evidence of or sufficient value to determine the cause of fire; (4)is an absence of direct evidence on the whole, that substantial evidence exists to found a finding of negligence; and (5) that theDefendants have failed to prove spoilation. [102] In reference to the evidence that founds the above submissions, the Plaintiffs refer to evidence of the origin of the fire in the eastbay of the garage adjacent to the workbench, testified to by Mr. Moker and confirmed by Dr. Neuhalfen. Further, that the workbench

contained the charger with the battery pack in it and that by the evidence of Mr. McDougall and Mr. Peters who were the last persons touse the drill that that was the position where the drill was left. [103] He stated that the cord energized as it was plugged into the socket. Mr. Peters is the source of that evidence that the charger wason the workbench with the battery pack in it. The Plaintiffs refer to the report of Mr.

Maskell that that system was “the most probablecause of the fire.” Although the court does not now have the evidence of the holding case or the charger itself, as both were consumed inthe fire, Mr. Maskell properly concluded that the effect on the batteries damage-wise in the charger is properly the basis for a conclusionthat that was the source and origin of the fire. [104] The Plaintiffs note that Mr. Maskell ruled out other possibilities including the iron and the electric saw, with proper reasons. [105] The Plaintiffs refer to the site inspection and report of the St. Albert Fire Department.

The Plaintiffs note that the report citestwo possible causes: (1) smoking materials; and (2) the charger. The Plaintiffs submit these were conclusions from a neutral body whohad inspected the site and, importantly, had also concluded that the fire occurred first in the east bay location of the garage. Further, thephotographs of the Fire Department of the v-pattern confirmed observations of Mr. Moker. [106] Although the Plaintiffs reject the premise that the onus is on them to disprove other causes alleged, the Plaintiffs do say that thecourt can rule out other possibilities.

The Plaintiffs note that three other causes were considered by the Fire Department and Dr.Hoffmann and excluded as being source or origin. That is: (1) smoking materials; (2) the extension cord; and (3) the truck. [107] The Plaintiffs submit that the evidence is clear that although Mr. McDougall smoked a cigar on the evening of the fire that hestated he had thrown it out of the vehicle window. Further, that if he smoked in the garage, he used the soda pop can for butts.

Anyinroads into his testimony were, according to counsel for the Plaintiffs, based on “possibility”. [108] Then that would leave the pop can as evidence according to the Plaintiffs and the evidence of the habit of Mr. McDougall thathe testified to. [109] The evidence of Mr. Peters was that he extinguished his cigar on the floor and then picked it up and discarded it. It was alsoMr. Peters’ evidence that the last cigar he had smoked had been the Friday evening before he left on Saturday for Manitoba. [110] Plaintiffs’ counsel refers to the photograph of the recovered cigar in the Fire Department photos.

The Plaintiffs refer to Mr.Moker’s evidence that were such the cause, it would not have survived the ensuing fire. They urge that the court cannot find a cigar orcigars as the cause of the fire if it accepts the evidence of Mr. McDougall and Mr. Peters. [111] The Plaintiffs’ counsel states that Dr. Hoffmann’s evidence on this was anecdotal and not sufficient to rebut the actual evidence.The Plaintiffs say the same applies to Dr. Hoffmann’s comments on the truck in the bay. Further, neither defence experts followed up onthe truck although the St. Albert Fire Department had agreed to provide it for inspection.

The Plaintiffs also refer to the evidence of Mr.Fowler, the tow truck driver whose evidence went in by agreement and his stated conclusion that the truck was not a cause of fire. [112] Regarding the compression of the extension cord, Mr. Fowler described what he saw in the under carriage of the truck. TheDefendants did not choose to cross examine him on that evidence. The Plaintiff states that in the face of the evidence, it is inappropriatethat Dr. Neuhalfen was not prepared to rule out the extension cord as a source of fire. Also, that cross examination of Dr.

Neuhalfenestablished that he was of the view that the fire started in the east bay and yet the truck and cord were located in the center bay. [113] The Plaintiffs state that although Mr. Maskell was cross examined on how, if at all, a carpet would be involved in theconclusion that the truck and cord were involved, that there was indeed no evidence to support that premise. Yet, as with the cords, Dr.Neuhalfen would not give up on the opinion that the cigars were a possible source. [114] They note that although Dr. Hoffmann’s report had been put to Mr. Moker in cross examination, Mr.

Moker was still of theview that the source of the fire was at the workbench and that the two V patterns shown in photographs confirmed that. [115] The Plaintiffs further note that after the whole of the evidence of Dr. Hoffmann, he could only say that the origin occurred inthe garage. This global conclusion should be weighed as weak when stacked against the opinions of other experts who confirmed that theworkbench in the east bay was the site of origin. [116] The Plaintiffs dispute the impact of the fact that Dr. Hoffmann couldn’t inspect the whole of the garage.

It only points to hisreliance on scientific certainty as a standard of proof which is not the correct legal approach as that is based on a probability analysis.The Plaintiffs state that it would have been more appropriate to the evidence here for Dr. Hoffmann to accept the other Defendants’expert witness that the origin of the fire was at the east bay of the garage. [117] The Plaintiffs state that other origins such as the garage door and the truck and the Toyota are speculation and not borne out bythe evidence.

Also, the photographs clearly show the fire moved east to west and that that damage was not above the motors of the twovehicles. [118] The upshot, according to the Plaintiffs, is that Dr. Hoffmann’s approach to the issue must be discounted and rather, theirevidence ought to be prevail when, as here, it supports an inference of negligence.

On that issue, the Plaintiffs’ counsel refers to: (1) theproduct the Plaintiffs state was involved in the fire was clearly in possession of the Plaintiffs in the same manner as it had been when itleft the factory; (2) by the Plaintiffs’ evidence, that product was used as intended; (3) there was no evidence of misuse such as wouldapply to the onus or support allegations of contributory negligence; (4) the fact of the fire itself and its location allows the court toconclude that the charger left on the workbench was the cause of fire; (5) that the general evidence that the Defendants had issued recallson drill products and battery-operated chargers is relevant; and (6) that the testing done by the agencies referred to as U.L. and CSA isnot determinative of the conclusion that the manufacturer met the standard of care in the manufacturing process. [119] The Plaintiffs refer to Snell v Farrell, (SCC), [1990] 2 SCR 311, [1990] SCJ no 73 (QL) and Stilwell v World

Kitchen Inc., 2013 ONSC 3354, [2013] OJ no 2620 (QL), where it was stated that a plaintiff does not have to prove deficits in the veryproduct at issue; rather, a court can still make findings on an inference of negligence. Plaintiffs’ counsel, Mr. McKall, points to the crossexamination of Mr. Mitrou and that of Dr. Neuhalfen regarding the use of the exemplar. He points to the evidence of Mr. Maskell ascontrasted to that of the Defendants’ witnesses and that Mr. Maskell was able to conclude that the charger was the cause of fire eventhough the actual unit was consumed in the fire. Mr.

McKall submits that even if some of Mr. Maskell’s premises were attacked in crossexamination that he did confirm his conclusion of the necessary source of heat and what had been energized. [120] Mr. McKall urges the court to analyze the system involved here. That is that heat obviously was allowed to build up and thatthe source of the fire was the charger even if it is not now available. He submits that evidence of testing before a product is marketed isnot evidence that would rebut Mr.

Maskell’s conclusion that the charger was the source of the fire. [121] Despite the effect of cross examination, he submits that Mr. Maskell stood firm on his identification of an electrical source andheat buildup. These factors still support his conclusion on cause. Counsel refers to Farro and submits that it is not fatal that Mr. Maskelldid not refer to the design of the unit as the fire itself and the evidence of other circumstances noted by Mr. Maskell, prove the source offire. [122] Mr. McKall submits that factually the evidence proved that the charger was energized.

In that respect, the Plaintiffs state thatDr. Neuhalfen was in error. [123] Mr. McKall addressed the issue of evidence of whether the charger had been plugged in or not prior to the fire. He urges thecourt to rely on the evidence of Mr. Peters and that of Mr. Moker who quoted the evidence of Mr. McDougall, and to find that on theevidence, the charger had been plugged into the wall at the time of origin of the fire. [124] He submits that Dr.

Neuhalfen in making the following statement in his report: “Further, the subject battery pack and secondpack were not subject to charging,” was in error. [125] He further refers to Mr. Moker’s report and photos showing the east wall receptacle that uphold his conclusion of source andorigin of fire. Further, that the same evidence of Mr. Moker discounts the speculation that the cord and timer in front of the truck wereenergized. [126] Finally, Mr. McKall refers to cross examination and evidence led by the Defendants on the issue of compliance to Guidelinesset that apply to fire investigation. Mr.

McKall states that the issue for the court is not whether the experts agreed on the standard set outin their professional handbooks or that they agreed on its purpose. Compliance to such is not an issue for the court here. Rather, the issueis proof on a balance of probabilities. Position of the Defendants [127] The Defendants begin by references in case law that support the principle that in the absence of evidence of a defect that thereis a failure of proof. Further, that a product must be proved to be defective for liability to exist. [128] They submit that the product in this case was CSA approved.

That leads to a two-step analysis of proof: (1) the first onus ofestablishing a defect, and (2) the second onus of tying the defect to a cause of the fire. The burden throughout is an onus on the Plaintiffs:Baker v Suzuki Motor Co. (1993), (AB KB), 12 Alta L.R. (3d) 193 (Q.B). Indeed, the Defendants submit that thelatter proposition is part of the “but-for” test of liability. [129] In the same vein, the Defendants submit that the court ought to be aware of the principle of sufficiency of evidence.

That is, thecause of the fire must be proved or clearly inferred and, importantly, that an occurrence of fire is not in itself evidence of the negligenceof the product manufacturer: Fiddler Enterprises Ltd. et al v Allied Shipbuilders Ltd., 2003 FCT 463, Aviva(supra), BlackstrapHospitality Corp v Aztec Amusements

(1992) Ltd. 2009 ABQB 74, and Sorochan v Bouchier, 2015 ABCA 212. [130] Mr. Stein, on behalf of the Defendants, submits there is no evidence of defect of any of the products proven here. There hasbeen no step-by-step scientific analysis of any defect such as a cause of the fire led by the Plaintiffs. He states that the evidence of Mr.Maskell is no more than speculation on the bulging of the lead batteries as evidence of overcharging and, on the mere visual inspectionof Mr. Maskell. Indeed, here the original assertion of bulging as evidencing a source of fire is now withdrawn. He refers the court to thefinal statement of Mr. Maskell at

Summary of Evidence, Tab 3, paragraph 8, as the presence of the bulge at the time of insertion being“highly unlikely.” He further notes that the original conclusion that the bottom of the charger was fused to the drill has been rebutted.Rather, the evidence is that it is highly unlikely that the battery pack was overcharged before it was put in the drill.

This negates the firstconclusion that the bulges evidence origin of the fire. [131] He notes that the bulging had been integral to the Plaintiffs’ expert’s initial conclusion and that he, the expert, only resiled fromthat position after having read the rebuttal reports. He notes that the bulging lead cell had been significant to his analysis which Mr.Maskell has backed off as an underlying premise. That is the pack or packs were overcharged by the charger. [132] In the end, the Defendants submit that the whole of the evidence only indicates that the product was at least an equally-probablecause.

This is made clear by the presence of the bulging in the other battery cell, both leading to an equally probable conclusion that thebulging was due to the fire itself. [133] Mr. Stein points to the cross examination of Mr. Maskell. That, although he maintained the premise of overheating at the startof his testimony, that neither Mr. Maskell, Mr. Moker or Dr. Neuhalfen found evidence of electrical activity in the charger.

That Mr.Maskell was pointed to the difference between a fast-rate charger and a trickle charger and that as a result of that, he concluded that thecharger as a source of fire was “extremely unlikely”. This, faced with the only evidence in this trial that the unit in question was a PS 160charger operating with a PS 130 battery pack. [134] Mr. Maskell confirmed there was no recall of the identified products here. The evidence of recalls cited related to different

products and failures at unrelated times and therefore, could not be evidence of defect of any product in this trial. The Defendants note Mr. Moker’s admission that there was no evidence of recall of these particular items. Thus, the Plaintiffs have not led evidence to the contrary of the bulk of the Defendants’ evidence. [ 135 ] As a result, the court should find that (1) the lead battery bulge in both items is not evidence of the source of the fire; (2) that there is no evidence of a recall of the actually identified products in this case; and (3) that given Mr.

Maskell’s admission of his undermined conclusion, that so must the court and the Plaintiffs’ experts conclude the fire ought to have been classed as “undetermined origin”. [ 136 ] Mr. Maskell admitted that with respect to the bulges, it is “highly unlikely” that these items contributed to the source of fire. Mr. Moker’s evidence confirmed he deferred to Mr. Maskell and therefore, his evidence must be judged on the above. By contrast, the Mitrou evidence was clear and detailed with respect to the design of the charger and why by design any overcharge would have been impossible. [ 137 ] Mr.

Stein turned to the Defendants’ own case. That is, that these items cannot be sold in Canada without CSA approval. That the Defendants’ evidence was the companies here sued were not aware of any defects or recalls that related to these products and in turn, as linking them to causes of fires. There was no fire scene available for the Defendants to examine. Mr. Moker was only at the scene for four hours.

The Defendants submit that that was not adequate to preserve the scene and goes against the premise that an investigation ought to be thorough and an investigator must not make presumptions of cause. [ 138 ] Further, the Plaintiffs’ experts here acknowledged the authoritative guides governing fire investigation. This included proper investigation of the V pattern at and other items south of the workbench which were acknowledged as present by the Plaintiffs’ experts. This included burning on the south side of the bench which the Defendants claim was a significant area never examined by Mr. Moker.

The Defendants state that the

summary of Mr. Moker’s evidence indicates what he didn’t see or didn’t investigate. Basically, he looked at the workbench, grabbed items on it and left the scene. [ 139 ] This, in contrast to the evidence from the Fire Department report that the Fire Department investigated the whole area, including the garbage receptacle which contained a cigar and the spalling in concrete. The Fire Department’s note of the spalling confirms Dr. Hoffmann’s opinion that there was spalling; all of which was denied by Mr. Moker. Mr.

Moker did not see the cigar butt and did not consider the effect of ventilation above the window over the workbench. The Defendants submit that although the Defendants were not allowed by the sequence of events to observe the scene, that this evidence alone, along with the evidence with respect to truss burns indicates the errors and gaps in the investigative process followed by the Plaintiffs’ investigators. [ 140 ] Mr. Maskell admitted these gaps in investigation.

He admitted he was unaware of the fire retardant material in the drill and the design of the transformer within the charger that guarded against overcharging. He never asked for or obtained schematics of the product or tested it or researched what material was contained within the product itself. Mr. Stein submits that by cross examination, Mr.

Maskell confined himself to pulling off information from the internet which information included the fact that there was never a recall of these particular products. [ 141 ] In the end, the Defendants submit that the Plaintiffs failed to prove: (1) any of the products were defective; or (2) caused the fire. He notes that the onus is not on the Defendants to prove cause. But in any event, other evidence led by the Defendants indicates other possible causes. This includes evidence of cigar smoking and cigar butt disposal, more than one.

The presence of one undestructed butt does not rebut an inference of other butts as source of fire. Mr. Stein refers to other possible sources not investigated: (1) molten aluminum; (2) the saw and where it was underneath the workbench; (3) the significance of arcing on cords as cause or effect; (4) the significance of the v-pattern going right down to the concrete; and (5) the impact of the window breaking. He submits that if you concede that Mr.

Maskell admitted that overcharging is unlikely then, there is nothing to support his ultimate conclusion of “heat there.”- that is, the workbench site. [ 142 ] The end result is that the Plaintiffs have not garnered evidence that would indicate the Defendants’ products were defective and there is no reliable evidence from the Plaintiffs that the products caused the fire. The court ought to, by the whole of the evidence, conclude that the origin of the fire remains undetermined and therefore the Plaintiffs have not met the burden of proof. [ 143 ] The Defendants also made submissions on spoliation.

As will become clear in my reasons, I do not find that the principle of spoilation is in play. Certainly, not to the extent that the onus shifted to the Defendants to neutralize the effect of inferences that arise out of the imposition of that principle. Plaintiffs Reply [ 144 ] In reply, Mr. McKall noted that in these cases, a product cannot be investigated for defect before a fire occurs and the fire consumes the product. He states that the court, in these circumstances, must return to the inference of negligence, including an inference that the negligence includes marketing a defective product.

The Plaintiffs ought not to be faced with an impossible burden. In this case, there is evidence of an electrical current flowing and its course. He urges the court to recall that Mr. Maskell was speaking of the whole system and stated “I don’t know what we have for a charger.” [ 145 ] Although the Defendants have pointed to Mr. Maskell’s evidence as equivocal, Mr. McKall refers the court to evidence of Dr. Neuhalfen and Mr. Mitrou that put in doubt the evidence of equivocation to the exemplar. On that basis, Mr.

Maskell wasn’t equivocating, but dealing with the issue of whether the exemplar matched the unit on site. He states that there is no onus on the Plaintiffs here to prove the exemplar was not an appropriate match. He distinguishes the helicopter case where parts were available for inspection. He notes that in this case the AMA wrote to the Defendants in June of 2004 alerting the Defendants to the claim but that Dr. Hoffmann was not retained until 18 months later. [ 146 ] In further sur-rebuttal, Mr. Stein noted that Dr. Neuhalfen was clear that the charger in the drill was not energized. Analysis

[ 147 ] The issue is that of satisfying the burden of proof on a balance of probabilities. Both counsel have identified that as an onus that relates to proof of defect and cause of fire. It is trite to state that I also start this analysis by noting that products liability cases are difficult and, the goal posts are not extreme, such as strict liability as opposed to a standard that any pre-release product testing would negate questioning of negligence.

Rather, the standard is an onus on the plaintiff to prove on a balance of probabilities that a defect was present and that was the cause of the fire. [ 148 ] The Plaintiffs’ case followed the course of events which concluded in the effects of the devastating fire. The Plaintiffs’ agents moved quickly to investigate the origin and source of fire. Unfortunately, at the time of the immediate investigation, the engaged parties were not alive to the issue of preserving this scene for other investigators. I do not, on the evidence, find that the evidence establishes spoilation as it is defined in law.

That requires intention of destruction not proved here. [ 149 ] But, it is obvious to me from the evidence that the investigation of the source and cause of fire that occurred hastily can be questioned and criticized. That was proved by the evidence here. Cross examination in this case made serious inroads into original premises relied on by the investigators Maskell and Moker. [ 150 ] I conclude that the cross examination of Mr. Maskell, the obvious lead investigator, disclosed that the original premise which drove his original conclusion was faulty.

There are occasions where an expert can be challenged on premises but his conclusion remains intact. I do not find that to be the case here. In this case, the foundation of the original opinion of the packs being overcharged was Mr. Maskell’s observation and conclusions of the event of the lead battery cells on both units displaying the same and unusual damage. In cross examination and as a result of sur-rebuttal, he completely resiled from that originating premise and any conclusion that could be reached in relation to what he observed.

Indeed, he had to defer to the opinion that a battery pack in the drill itself could not have been energized and that were the charger a PS 130 attached to a PS 160 drill, overcharging was extremely unlikely. [ 151 ] It goes without saying, but again illustrated by cross examination, that Mr. Moker’s opinion must stand or fall on that of Mr. Maskell’s, including his final retreat from his originating premise. [ 152 ] This is not the whole of the evidence as it relates to the Plaintiffs’ burden of proof. The Defendants’ experts point to the evidence of Dr. Neuhalfen and Dr. Hoffmann and Mr.

Mitrou, that these products did contain systems that were specifically designed and operated to overcome risks of overcharging. The import of that evidence, to me, was not that that evidence by itself would negate negligent manufacture. The import became clear when Mr. Maskell admitted he was not aware of those aspects of the product itself.

As he was not aware of that, he could hardly incorporate it back into his original or eventual analysis and, quite frankly, he did not. [ 153 ] He had to admit the pack in the drill couldn’t have been charging in the drill and most probably had not been overcharged before insertion. That is, I find, proof it was not energized and couldn’t have been the source of the fire. [ 154 ] Mr. McKall, in his closing submissions, urged that I cannot discount the evidence of the witnesses Mr. McDougall, which he further passed on to Mr. Moker, and Mr. Peters.

He states that that was uncontroverted evidence that must lead to a conclusion that a pack, my words, was in the charger which was in turn plugged into the wall. I recognize that by the evidence of Mr. McDougall and Mr. Peters, the last persons to use the drill, that the drill was on the workbench along with the charger with a battery pack in it. However, I do not see this as an issue of ignoring the lay witnesses. Rather, I must weigh that evidence against the whole of the evidence. That includes the expert evidence of the Defendants regarding the design of the charger.

So, even if the Plaintiffs submit that this evidence indicates the charger was plugged in and energized, which I find the Plaintiffs’ evidence to fall short of, the fact that that important design was not considered in initial reports and conclusions of the Plaintiffs’ investigators leads me to conclude that there is not the sufficient evidence necessary to make a finding that the charger was energized and did indeed overcharge the battery pack within it causing the fire. [ 155 ] Quite simply, the defects in the Plaintiffs’ investigations and conclusions again comes into play.

The whole basis of the Maskell conclusion started with the bulging lead cells and led to a conclusion of overcharging. Surely, from point one to the conclusion, the design ought to have been at least considered.

When considered, and, on the basis that the exemplar was a match and that the drill and charger made it extremely unlikely that overcharging could occur, then, in my view, the Plaintiffs have not met the onus upon them. [ 156 ] I acknowledge that the Plaintiffs submit the evidence indicates there was electrical current flowing from the charger and that that evidence of the current and its course has been proven. On the basis of the whole of the evidence, I have not found that to be the case as I have stated above.

If the Plaintiffs are relying on the recovered cords and evidence of arcing, then, I must weigh that against the evidence of the expert Dr. Hoffman on that, as he did not know where the line cords identified in the Maskell report were recovered from at the fire scene such that he did not know whether or not the arcing displayed on such line cords resulted from being attacked by the fire or whether the arcing occurred from mechanical damage from the line cords which caused the fire. Dr. Neuhalfen gave somewhat of a different opinion.

He was able to confirm that the line cord segments demonstrated evidence of electrical fault activity, being arcing. However, he too stated that although that cord set was energized at the time of the fire, it could not be determined whether the cord set was the cause of the fire or whether the arcing resulted from being attacked by the fire itself. Thus, on that aspect of the evidence, I again conclude that the Plaintiffs have not met their burden of proof. The law on the ability of a court to draw inferences is not of assistance here. The evidence here does not allow for the inferences sought.

In the same vein, there has not been proof of the necessary factors on a circumstantial basis. [ 157 ] In reaching my conclusion, I put no weight on the Defendants’ suggestions of uninvestigated matters that would impugn the Plaintiffs’ evidence. This includes door openers, extension cords, and the saw. The lack of investigation of these possible sources does not play into my conclusion.

Certainly, in my view, there was ample evidence to establish the general premise that the fire moved from east to west. [ 158 ] However, I do place weight on the lack of consideration of the whole of the evidence by the Plaintiffs of the obvious fact that the bulging could not have indicated overcharging of the pack inserted into the drill. That includes considering the very issue of how or when that pack could have been energized. I conclude by all of the evidence it could not have been.

Further, the weight of the Plaintiffs’ case is affected, in my view, by the lack of proper investigation of the site south of the workbench. The matter of the glass breaking and its effect on a fire ought to have been addressed. The contrast in damage south of the workbench to north of it ought to have been further

investigated. In that respect, the Defendants’ analysis of the significance of the v-pattern and burnt trusses ought to have been addressed. [ 159 ] In reaching my conclusion, I have also had regard to Mr. McKall’s submission that Mr. Maskell was not resiling from the premise that it was the system that was the source of overheating and thus, the fire. I acknowledge that Mr. Maskell used that wording in his reports and in his evidence. However, that distinction does not, in my view, assist the Plaintiffs in making their case better given comments above.

At the end, his original analysis had focused on the bulging lead batteries and that led him to a conclusion of overcharging. There was no more to his second analysis of the system overheating than that. In the end, all he could say was the most probable origin and cause for this fire was the overcharging failure of the NiCad battery and charger. Indeed, by the end of cross, he could not even attest to that.

The cross examination proved that he indeed resiled from his original conclusions and made serious admissions in cross examination that rebutted any of his conclusions. [ 160 ] The plaintiff in a products liability case has the burden of proof in proving the two issues at hand. It is difficult to reach that standard if there are competing valid expert opinions. That is not the case here. The Plaintiffs’ experts were not just playing catch up; the effect of cross examination and the evidence of the competing experts effectively knocked out a tenet of their case.

At the very least, the effect of the whole of the evidence is to put the Plaintiffs in the position of a 50-50 proof, which is proof that fails on a balance of probabilities. However, in this case, I am of the view that it is not a situation of 50-50, but rather, the effect of the defence case as a whole negates the Plaintiffs’ theories of the source and cause of the fire and, accordingly, the Plaintiffs have not satisfied the burden of proof, either regarding defect or cause. The action is dismissed. Heard on the 22 nd day of June and 19 th day of August, 2015.

Dated at the City of Edmonton, Alberta this 31 st day of May, 2016. D.A. Sulyma J.C.Q.B.A. Appearances: Ramon T. McKall, James M. Kalyta, Alberta Motor Association Insurance Company for the Plaintiffs Paul J. Stein, QC, Gowlings for the Defendants