Border City RV Centre v Vanguard Inc, 2016 ABQB 31

Court of Queen ’ s Bench of Alberta Citation: Border City RV Centre v Vanguard Inc, 2016 ABQB 31 Date: 20160115 Docket: 0603 09656 Registry: Edmonton Between: Border City RV Centre, a Division of Kam's Sand Coating Ltd Plaintiff - and - Vanguard Inc., and Parallax Power Supply, LLC, Parallax Power Components, LLC, Connecticut Electric & Switch MFG Co, Connecticut Electric, Inc, American Circuit Breaker Corporation, and John Doe Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________

a) Introduction [ 1 ] The Defendant Vanguard Inc., [“Vanguard”] sold the Plaintiff [“Border City RV”] a holiday trailer [“the trailer”, or the “Frontier trailer”] for resale. The trailer was equipped with a power breaker box and converter supplied by one of the remaining Defendants [“Parallax”]. On August 31, 2004, Border City RV sustained a major fire loss to their Recreational Vehicle [RV] Dealership. Border City RV claims that the Defendants jointly and severally caused their loss and are legally responsible for the cost of the fire. [ 2 ] Border City RV advanced a single theory in this litigation: a small electrical

part in the electrical converter system, called a

capacitor, of the trailer malfunctioned, causing initially a small fire in the cabinet in which the electrical panel was installed, which expanded to consume the trailer, and, ultimately, the entire show room. [ 3 ] The parties have reached agreement on damages and therefore this decision only relates to the cause of the fire and liability for it.

b) Background Facts [ 4 ] The background facts are not greatly in dispute. 1. The Location [ 5 ] Border City RV was strategically situated along Highway 16, about 5 km west of Lloydminster, Alberta. The operation, visible from Highway 16, consisted of a metal warehouse within a fenced compound of about 17 acres. A large vehicle gate allowed vehicles leaving Highway 16 to access the compound. After hours the gate was locked for security. 2. The Building [ 6 ] The Border City RV facility (constructed in 1997-1998) was a 200 feet by 100 feet industrial style building (approximately 20,000 ft.²).

The longer walls ran parallel to Highway 16. The pitched roof was metal, as were the sides. The north wall faced Highway 16. This wall had a bank of windows on the west side of the north wall, with a glass commercial entrance door. Directly opposite, the south facing wall had a pair of overhead doors, one near the south west corner, the other further east; it also had two man doors near the overhead doors, and still further east, a double door. The overhead doors allowed larger boats and RV trailers to be moved in and out of the showroom.

The most westerly door on the south wall received much attention in the evidence because it was through this door that the firefighters first began to attack the fire. [ 7 ] The east part of the building was the service bay area. This area was divided from the rest by a metal clad, insulated, interior wall that was intended to act as a fire break, but was not, a proper fire barrier wall because of its method of construction. On the east facing exterior wall were several large overhead doors to allow recreational vehicles to be moved in and out for servicing.

The service bay area represented about 25% of the total building size. The service area was the only area to survive the fire, and allowed the business to carry on while rebuilding. [ 8 ] The center and westerly portions of the building consisted of a parts room, a retail space for the sale of smaller recreational goods, a mezzanine above that, a large opened high ceiling showroom area, and offices. 3. The Showroom Content [ 9 ] At the time of the fire the showroom contained a tightly crowded grouping of trailers, boats and all-terrain vehicles.

A not to scale diagram, reflecting a birds eye view of the location of the product is attached as ‘Schedule A’ to this judgment [Exhibit 1, Tab 15, and Exhibit 46, M. Bodnar expert report, p 11, figure 3]. [ 10 ] Along the west wall (aligned parallel to that wall, with the back of the trailer close to the northwest corner) was a Vanguard recreational trailer identified by the trade name Frontier.

There was another Vanguard trailer located parallel to the south wall and near the southwest overhead door, however there are no substantive claims that relate to the second trailer, and I will for ease of reference simply refer to the alleged source of the fire as the Frontier trailer. [ 11 ] To the south of the Frontier trailer, and oriented the same way, was a Glendale fifth wheel trailer, so named because of the large hitch that extends from the upper front of the trailer and mounts onto a hitch receiver placed in the middle of a ‘pick-up’ truck box. [ 12 ] To create additional light in the area of the trailer, the Border City RV staff had clamped a trouble light to the west wall, in the area outside the door of the Frontier trailer. [ 13 ] Above the trailer, hanging from the ceiling, and evenly spaced through the building, were industrial type lights that shone down on to the content in the warehouse.

When the building was constructed some of these lights were, for security reasons, wired in such a way that they were on all the time. 4. The Frontier Recreation (Holiday) Trailer Design -Model FT315WSL [The Trailer or the Frontier Trailer] [ 14 ] Former employees of Vanguard gave evidence about the production line at the time this unit was manufactured. [ 15 ] This particular Frontier trailer was manufactured, inspected, and approved for marketing through Vanguard’s internal process, built to CSA standards. No state agency or third party actually inspected it. The trailer was sold to Border City RV.

The order for it is dated December 17, 2003 [Exhibit 1, Tab 23, plate 000811], the production of the unit probably started around February 16, 2004 [Exhibit 1, Tab 18, plate 000800], with delivery to Border City RV around April 16, 2004 [Exhibit 1(a), Tab 21, plate 000805]. Exhibit 1, Tab 30, plates 000916 to 000933, depict some of the inspection and construction checklists relating to the unit. The bottom of these pages has March 2004 dates. [ 16 ] The converter is misdescribed as one coming from a competitor to Parallax. Several years post-fire Parallax was identified as

having supplied the converter and brought into this litigation. The actual supply of these converters occurred, by Waybills of materials received by ‘Peak Mfg.’ which show three Parallax converters coming to ‘Peak Mfg.’ from a supplier in the United States in August and September of 2003 [Exhibit 1, Tab 17, plates 000796 to 000799]. All would have been received prior to this unit being manufactured. I understand that Vanguard either acquired the assets of ‘Peak Mfg., or ‘Peak Mfg.’, changed its name to Vanguard, but in any event, the addresses of the two are the same.

The trailer was said to have been inspected with several tests for operational integrity performed on the electrical and propane gas system at the time of final inspection. [ 17 ] Vanguard’s construction method was to build from the inside out, with the walls and roof installed last. The trailer began with its metal frame, springs, axles, and wheels. A floor was then built on top of that. Next on the assembly line, internal cabinets and partition walls would be assembled.

The cabinet containing the electrical distribution system would be mounted such that the system and the wiring could still be installed from the outside. Once the trailer is assembled on the inside (including internal plumbing and electrical) the exterior framed walls are put in place. The remaining necessary wiring and plumbing was added. Last, the exterior roof, and exterior fiberglass wall coverings are installed. [ 18 ] My comments about the trailer flow from a study of the design specifications, floor plan and exemplar photos taken by Mr.

Rostalski [Plaintiff’s expert report, Exhibit 1, Tab 6, plates 000377 to 00392]. The Frontier trailer had two ‘slide outs’ to make the trailer larger, one in the bedroom the other in the living room. Both were on the left side of the trailer as you look in a normal travel direction along the towing hitch. The entry door was opposite the living room slide out. Near the door is an angular cabinet designed to shelve a television. An awning was installed to protect the door areas from the sun. [ 19 ] The Frontier trailer had a fiberglass exterior covering and a rubberized roof.

It had two propane tanks mounted on the front on top of the hitch, and these tanks may have been provided with a cosmetic cover. If so it would probably have been fiberglass, based on the standard features for the unit. [ 20 ] The nature of the construction of recreational vehicles makes them a significant source of fuel. Particleboard and lightweight building materials are often used with fiberglass covers and rubber roofs. A recreational trailer is a good source of combustible materials and will burn quickly.

As it burns, the nature of its composition will create significant heat capable of igniting surrounding flammable items. 5. Converters, Capacitors, and the Electric Junction Box [ 21 ] The Frontier trailer was designed to operate both on 120 volt [“V”] alternating current [“A/C”] power, such as used in a house, but also had features, primarily the lights, stove fan, bathroom fan, and water pump, that would operate off of a 12 V direct current [“D/C”] battery system like a car. The latter would be used when the trailer was not connected to a “shoreline”.

Electricity entered the trailer through an electrical cable, on the left side between the two ‘slide outs’, in the approximate area of the bath tub, then crossed the width of the trailer, probably in the floor, and entered a 30 AMP breaker in the electrical fuse box. [ 22 ] The electrical fuse box was one part of a pair of rectangular metal boxes, mounted together, located in the lower portion of a wooden cabinet (right side of the trailer near the trailer door) designed to serve as a television stand [see Exhibit 1, Tab 16].

The top metal box contained the circuit breakers for the 120 V systems, plus the 12 V circuit breakers, and distribution system for the 12 V systems. This upper box also contained two large cable clamps to hold battery line cable that would run to a 12 V battery located elsewhere. No evidence was given about where the battery would be stored, nor if it was installed.

The lower portion (a separate box), contained the Converter that would convert 120 V AC into 12 V, DC. [ 23 ] Looking at the unit properly installed in the trailer, one would observe a metal-hinged cover plate behind which were the circuit breakers, and below the cover plate, a venting grill [Exhibit 1, Tab 6, plate 000377-000378]. Opening the top metal plate would expose a series of electrical circuit breakers, similar to those in a modern house. In this model, those circuit breakers would be to the left, as you faced them.

On the right would be a series of wires and other low voltage circuit breakers that would operate the 12 V trailer needs. This smaller electric junction fuse box sat on the larger metal converter box [see Exhibit 1, Tab 6, photos 000377-000385]. [ 24 ] Electric power would go through the circuit breakers to the 120 V equipment in the trailer. Other electricity would pass through a 15 AMP breaker and into the lower portion of the device [the converter], where it would be converted from 120 V A/C to 12 V D/C.

This 12 V power source then operates the 12 V services in the trailer, plus charges batteries (if installed), which provide an alternative energy source to operate the 12 V, equipment when the trailer is not plugged into a shoreline. [ 25 ] The Plaintiff’s lawsuit is anchored in the theory that a ‘capacitor’ in the ‘converter unit’ in the Frontier trailer started the fire. A discussion of capacitors and converters is necessary to make sense of the expert evidence on this crucial evidentiary point. I express my gratitude to the experts (particularly Drs.

Hudis and Neuhalfen) who were able to articulate these complicated electrical concepts in an easily understood fashion. I hope this portion of the judgment does those experts justice. [ 26 ] The device, which coverts power from A/C, to lower voltage D/C, is aptly called a converter. A battery charger is a commonly encountered converter. Although converters in recreational vehicles are more sophisticated than home battery chargers; the converter takes 120 V A/C incoming power and turns some of it into 12 V D/C power.

This 12 V power runs those items in the trailer which are designed to be powered by 12 V, making those services of the RV trailer also available (with the appropriate batteries installed) when the trailer is not plugged into a shoreline. The trailer lighting is the most common example. [ 27 ] How the converter actually performs these functions is through a sophisticated array of electrical resistors, wiring, coils, capacitors (occasionally referred to as condensers), relays and other electrical parts and pieces mounted on a circuit board.

In the conversion of voltage, heat is generated. [ 28 ] Significant heat is generated in the converter box even when it is working properly. By example, the Plaintiff’s expert, Mr. Thicke, studied an exemplar converter and found that a series of resistors were capable of generating heat under operational load of 165° C (329° F). To put that in context, paper could ignite spontaneously at 400°F. Further, the heat is not all generated in one spot, as

different parts of the converter generate more heat than others. [ 29 ] In addition to the expertise provided on the issue of heat, the visualization of the pictures of an exemplar converter box, filtered through common sense, confirm this. At the top of the converter box there is a fan, covered with a thin metal mesh screen. The fan goes on automatically (the switch doing that called the “thermistor”) when the unit gets too hot. The cooler air, pushed into the unit by the fan, flows over and around the electrical components, before venting through the grill in front of the device and into the trailer itself.

The box is metal, another feature designed to deal with the heat generated, and to protect the RV. In addition to the fan, the internal components of the converter include two “heat sinks”, relatively large pieces of aluminum with fins on them that act as a heat-stabilizing unit by absorbing excessive heat into the fins, and away from the heat generating electronics, and releasing it gradually when the heat load decreases, or when the fan goes on and cooler air starts blowing over the heat sinks.

This escaping hot air vents through the grill and into the trailer. [ 30 ] The electrical components in the converter are wired together on a circuit board. The circuit board has numerous holes in it for attaching smaller electronic pieces and devices. Some of these devices are ‘capacitors’. The capacitors are all given a number, by example in this case; we had the number C-24 (the capacitor under examination in this litigation), capacitor, C-40, C-7, C-18, C-21, and C-34. The ‘C’ means capacitor, but the number tells us nothing about the makeup or size of the capacitor.

Instead, these names tell us where on the circuit board a particular component is located. By example, capacitor C-24 would be located in the mounting area printed on the circuit board designated as 24. C-24 was placed almost directly under one of the heat sinks and with the fan in the vicinity, but above it. [ 31 ] Since this litigation is about that one capacitor, C-24, I will use Mr. Thicke’s specific technical report to place it in the converter apparatus: ... Capacitor C 24 was located about 2 inches (50 mm) below and ½ inch (13 mm) forward of the outer perimeter of the ventilation fan.

A heat sink extends over top of capacitor C 24; however, from the inboard side of capacitor C 24, upward toward the fan is open space ... The electrolytic capacitor was located in a position that is aptly described as being below the fan. [Exhibit 20, April 13, 2012 rebuttal report, p 4] 6. Capacitors [ 32 ] Dr. Hudis (based on a lifetime of studying and working with capacitors as well teaching about them), gave wonderful graphic examples of what a capacitor is.

In the context of this case, he indicated the capacitor was like a water dam, which held back unruly water and released it in a more benign, orderly, and regulated way, to function as planned. Converting his water analogy to electricity, the capacitor takes electricity that has spikes, and irregular patterns, and releases it modified and standardized. In other words, it is a type of electronic regulator. The electricity that requires taming goes in one end and the modulated, more ‘user-friendly’ electricity comes out the other.

Like water dams, capacitors may be constructed of different materials: ceramic, poly-carbonate, or aluminum. In this litigation, the capacitor in question was an aluminum capacitor. [ 33 ] An aluminum capacitor is shaped like a tube. One witness described it as looking like a plastic round case that 35-millimetre camera film is sold in. When cut in cross

section (through the circumference) it looks like a series of decreasing concentric rings (like the rings of a cinnamon bun, or onion). Two sheets of aluminum (acting as anode (+) and cathode (-)) are prepared for capacitor construction by being etched with acid to increase surface area, coated with aluminum oxide, separated with a dialectic material (insulating material, often a type of craft paper), and then rolled together. The dialectic material acts as an insulator, so despite their close proximity the sheets of aluminum do not actually touch.

This ensures they do not short out, a type of electrical malfunction. There are two electrical leads, one positive and one negative, attached to each capacitor. The capacitor is then placed in a colored cover of some type with a closed top and bottom, with the two electrical leads hanging out of it. The factory assembler (human or machine) will then mount the capacitor on the appropriate spot on the circuit board, which provides its name.

Capacitors come in many different shapes and sizes, but aluminum capacitors look like small tubes of different length and diameter. [ 34 ] After the circuit board, including the capacitors, is fully assembled, its manufacturer conducts electrical integrity prescribed tests [Hi-Pot test, see para 150] to ensure that it has been properly assembled, can take and survive some limited overload, and will not immediately explode or stop working when electrified.

This does not mean that the assembly board with its capacitors and other electrical components will never break down, but this testing does provide a reasonable expectation that when it leaves the factory it will operate safely, assuming those tests were conducted properly. [ 35 ] After the circuit board is successfully tested it then goes to the next stage of the assembly, perhaps at a different assembly plant, when it is mounted in the capacitor box, which in turn in this model is mated to the breaker box. At this point, the box is again tested as a completed assembly ready for delivery.

If the converter passes those tests, it is labeled with its ‘state approved’ safety compliance labels, boxed, and is distributed. [ 36 ] Parallax, through their corporate witness Mr. McCoy, conceded that at the relevant time the converter box in question could have been manufactured in Mexico or the Far East, but that it would come back to an American distribution center and be sent out to their primary customers on order.

Parallax’s primary customers would be RV manufacturers such as Vanguard, or RV owners looking for upgraded or replacement converters. [ 37 ] It is the manufacturer of the recreational vehicle (in this case Vanguard) that assumes all responsibility for properly wiring the metal boxes to the incoming supply, and also the outgoing electrical system of the trailer itself. This then creates another opportunity where errors can occur in electrical wiring. Vanguard was aware of this.

They had several electrical function tests, including one they called the ‘Hi-Pot’ test, which I assume would simply be running the electrical system with everything on, although no specific details of this test were actually given. The Vanguard checklists require that the individual who conducts these electrical tests places full signature on the check sheet. The in-house checks of Vanguard on the electrical system revealed no difficulty with this installation.

7. August 31, 2004 [ 38 ] August 31, 2004 was a Thursday work day, like any other. At day’s end, the parts technician was entrusted with bagging up the cash deposit and giving it to the manager. The manager, Mr. Ken Kam, would do a walk around, looking for things out of the ordinary, unplugged the showroom units, and then would leave through the man door on the south wall. The manager and the parts technician may have been the last to leave that evening, perhaps at 5:30 p.m. Both gave evidence; neither felt anything was wrong or unusual in the showroom when they left. [ 39 ] Mr.

Barry Scheske, an employee RV service technician, was temporarily residing in a recreation trailer east of the building. Mr. Scheske had just sat down to supper when he noticed vehicles stopping at the locked compound gate near Highway 16. When he observed an RCMP vehicle arrive he comprehended that something was wrong, so he took the gate compound keys and started to walk out to the gate. His perception is that he noticed a wisp of some cloud, or smoke, as he walked around the building toward the gate. As he walked further north he noticed smoke coming out of the northwest corner of the building.

He concluded that the cars had been stopping because they were attracted to the smoke. He opened the gate for the RCMP officer, and then stayed by the gate waiting for firefighters to arrive. 8. The Firefighters [ 40 ] Firefighting in that location is provided by numerous smaller volunteer fire departments servicing the smaller communities around the city of Lloydminster. The fire was in the jurisdiction of Blackfoot County. The County’s Fire Chief, Mr. Roland Lonquist, quickly arrived with the County’s fire pumper truck.

Chief Lonquist made a quick tour around the building, concluded that the fire was coming from the west side of the building, and that smoke was particularly pouring out of the northwest corner. The wind was blowing from south to north, so he began directing the crews as they arrived to set up south of the fire, around the southwest corner of the building. Despite firefighting efforts, which were described by one expert as excellent, the majority of the building was lost, but the fire fighters did preserve the east side of the building aided by the fire barrier retaining wall. 9.

The Fire’s Progress [ 41 ] In the agony of the emergency, precise times and precise sequencing of events are often forgotten, because of the urgency of what is transpiring. Different arriving firefighting forces document their times slightly differently, however I am bound by the agreed statement of fact that sets the first report time at 5:48 p.m. The following chart shows the fire progressed very quickly: Time (24 hour clock) Event Brief narrative 17:30 Dealership closes This time is taken from evidence about the usual closing time of the RV dealership on weekdays of 5:30 p.m. 17:30 Last employee leaves Mr.

Ken Kam, the manager, and a relative of the owner, left with the day’s receipts after doing an earlier interior walk around.

His evidence was he noticed nothing out of the ordinary. 17:46 Passerby reports fire Exhibit 1, Tab 29, plate 000923: the 911 control Center log reflecting a call about the fire at 17:46 [5:46 p.m.], but the agreed statement of facts sets the first report time at 5:48 p.m. 17:48 Blackfoot’s fire department called out 17:58 Fire Chief Lonquist arrives Walks around building to assess fire risk, looks briefly in north side entrance area windows. 18:00 Kitscoty Fire department arrives Directed to the South of building by Chief Lonquist. [Exhibit 1, Tab 29, plate 000919], however their times may be out by 3 to 5 minutes, as they report call out at 5:45 - about three minutes before fire was called in. 18:00 Fire Chief’s spouse arrives This individual did not give evidence, however the Fire Chief indicated that she was asked to photograph the fire scene utilizing an early model digital camera. 18:00+ Additional support continues to arrive Firefighters with their equipment begin arriving from centres around the area. 18:20 [+/-] Photo taken of south west overhead door By 6:20 p.m. the fire is raging to such an extent that the overhead door, immediately to the south of the two recreation trailers, had collapsed.

That creates the opening through which the firefighters begin deploying water. 22:45 Fire controlled

[ 42 ] The earliest photos taken of the fire were taken by the Fire Chief’s spouse using a small digital camera. They are identified in the exhibits as the “Blackfoot and District Fire Department” photos. There remains controversy about whether the times impressed on the digital photos were accurate, as this presupposes that the camera had been set up correctly with the correct time. There was much trial discussion about the actual timing of these photos, and what they depict in terms of fire origin.

However, irrespective of the accuracy of the start time of the first photo, those sequentially after the first photo are probably correctly identified in sequence and the intervening time is accurate. [ 43 ] The date stamp on the first photo is correct, but reflects 6:07 a.m.; which lead all to assume that the camera was correct but, simply out by 12 hours. That time setting defect is not in doubt, so I will not mention that element again. Later there developed some dispute about this simple explanation about time.

That first photo, timed 6:07, shows heavy black smoke pouring out of the front windows, plus smoke venting from the metal seams along the wall west of the windows. The third photo, timed 6:08, is of the same view but now heavy black smoke is not billowing out of the windows, instead more white smoke is coming from the vented wall metal. [ 44 ] Meanwhile, at the rear of the building, the south west vehicle door through which the Kitscoty Fire Department commenced suppression effort, shows at 6:10 that door already had collapsed, but, the Kitscoty firefighters not yet in view anywhere.

A second close up photo shows more graphically the south vehicle door collapsed at 6:11, then Kitscoty setting up at 6:11, and water applied by 6:14. The Kitscoty Fire Department notes reflect that they started setting up on the south side of the building at 6:00 p.m., but no further time breakdown occurs until later. When the south west overhead door collapsed is a critical issue developed further in paras 110-113. [ 45 ] The reasonable inference is that this fire started almost concurrently with the dealership closing, and progressed aggressively through the opened area of the RV show room.

High temperatures were quickly reached, as high as the melting point of even certain metals. The fire was essentially out of control within 30 minutes of its first earliest observation - a wisp of smoke. The speed with which this fire grew is further exemplified by the fact that when the manager left the building he observed nothing wrong, but within 45 minutes of his departure the fire is extensive. [ 46 ] From a forensics point of view, one might suspect arson and accelerant materials were involved. However, there is neither suggestion, nor evidence, that this fire was intentionally set.

Counsel did not pursue that possible avenue. This is understandable. Most of the showroom content was composed of highly flammable material, all located in a big open showroom with nothing to isolate or contain the fire, once it started. 10. The Field Investigation Commences [ 47 ] After the fire was suppressed the regional Fire Chief directed that there be security present, pending the investigation of the cause of the fire. On September 2, 2015 a fire investigator, Edward Rostalski, conducted an investigation for the Plaintiff’s insurance company.

He was accompanied in that investigation by Chief Lonquist, Regional Fire Chief, Mr. Popil, the Provincial Fire Inspector, Mr. Harris, and an insurance adjuster for the owner. [ 48 ] During that investigation Mr. Rostalski, had a brief conversation with Chief Lonquist, took photos, made observations, and helped recover an electrical converter box found in the burned-out debris of the Frontier trailer. He removed this item because he felt that there were indicators that the fire had originated in the area of the converter, which may have had something to do with the fire loss.

He did not open the box, nor explore its contents. Instead, he deferred that task to more qualified engineers. No other exhibits were identified or removed for follow up. [ 49 ] A few weeks later the debris was cleared away for reconstruction. [ 50 ] The suspicion formed that first day by Mr. Rostalski became the Plaintiff’s single litigation theory: that the fire started in the electrical converter within the Frontier trailer and spread to consume the entire building. Experts hired by the Plaintiff identify the mechanism of that fire.

c) The Position of the Parties [ 51 ] This was a competently, well-argued case, with extensive written argument so my brief

summary cannot do justice to the quality of the legal argument. At the conclusion of the argument, I requested counsel to provide me a one-page

summary of their argument and I undertook to incorporate their own words into these reasons for judgment. Those summaries are found in

Schedule B. 1. Border City RV [ 52 ] The Plaintiff asserts it has proven its case on a balance of probabilities based on their experts, one of which had the unique advantage of actually observing the building, post fire. It is more probable than not that the converter caused the fire, and the Plaintiff’s theory is consistent with the evidence. Vanguard, as the manufacturer of the trailer, and Parallax as the supplier of the converter, are jointly and severally liable. [ 53 ] The Plaintiff’s evidence is supported by the physical evidence, anchored around the opinions of four experts: • Mr.

Edward John Rostalski – fire cause investigator, • Dr. Martin Hudis - one of the world’s leading capacitor experts,

• Mr. John Bertrand - an electrical expert, and • Mr. Brian Thicke, an Edmonton-based engineer who created a plausible model of how the fire could have started undetected andrapidly expanded shortly after the last employee left. The Plaintiff’s remaining expert, Mr.

Rogers, ruled out one other potential cause of the fire, defective lighting. [54] The Plaintiff asserts that these experts are competent, credible, accurate, and proved the case to a significant level beyond thethreshold balance of probabilities. [55] Further, the Plaintiff asserts that Vanguard had a qualified engineer from Williams Engineering on-site on September 18,2004, and the Defendant’s failure to call that expert should lead the Court to make an adverse inference against the defendant Vanguard,that the missing witness’s evidence would have confirmed the opinion of Mr.

Rostalski that the fire probably started in the Frontiertrailer’s converter. 2. Vanguard [56] Vanguard admits they manufactured the Frontier trailer, the converter removed by Mr. Rostalski was installed in the trailer,but denies either the trailer or converter caused the fire. Vanguard argues that as a result of Mr. Rostalski’s incomplete investigation, thePlaintiff cannot prove to the requisite standard that the Vanguard Frontier trailer was the culprit. Instead, the trailer was a victim of a firestarted by something else.

Their experts provide a more thorough scientifically supportable view that the origin of this fire can onlyremain uncertain. 3. Parallax [57] The position of Parallax is that there was nothing wrong with their converter. Their evidence shows it was built and tested inaccordance with approved standards. Parallax further asserts that they were denied any opportunity to conduct a fair independentinvestigation, and the speed with which the building was demolished constitutes a type of spoliation in which an inference against thePlaintiff should be made.

It rejects any suggestion that a converter recall notice that affected one of their predecessors, Magnetek, hadanything to do with this fire loss. 4. The Position of the Parties in Relation to the Third-Party Notices [58] Vanguard seeks contribution from Parallax through third-party proceedings. The Plaintiff is indifferent to how the Courtapportions the claim. The Plaintiff says that both Defendants are jointly and severally liable. 5.

The Position of the Parties on the Issue of Contributory Negligence [59] The contributory negligence claim is based on the fact that a sprinkler system is required by a building of this size without aproper firewall, separating the service area from the main showroom.

Common sense dictates the absence of a sprinkler system allowedthe fire to consume a larger area of the building and its contents, so if liability is found against the Defendants, they both say that thePlaintiff should bear a significant portion of the loss. [60] The position of the Plaintiff is that the Border City RV was not negligent by not installing a sprinkler system because it hadinstalled a fire retarding wall. While technically it was not a proper firewall, the municipality nevertheless approved the building asconstructed, and the fire resistant wall acted in the same manner as a proper firewall.

In result the same loss would still have occurred.

d) Analysis 1. Proof to a Civil Standard – the Law [61] In a Canadian trial there are only two standards of proof: balance of probabilities, and beyond a reasonable doubt. The formerapplies in all civil matters. The Supreme Court of Canada in FH v McDougall, 2008 SCC 53, [2008] 3 SCR 41 clarified the nature of thecivil standard of proof. Rothstein J reviewed case law which has suggested that in a civil suit certain legal and factual questions require adifferent standard of proof. He concluded at para 49: ...

I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases,the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged eventoccurred. [Emphasis added.] [62] The

interpretation of this fire loss is heavily driven by engineering models, electrical engineering concepts and science issues.Technical professionals and scientists test the probability of a particular hypothesis in many ways, but usually only will expressconfidence in a particular scenario where that is the highly likely alternative. However, in litigation a plaintiff does not need not provewith scientific exactitude the accuracy of their thesis.

The Supreme Court of Canada has frequently reminded trial judges to not demandscientific certainty from a plaintiff: Snell v Farrell, (SCC), [1990] 2 SCR 311 at 328, 72 DLR (4th); Ediger v Johnston,2013 SCC 18 at para 36, [2013] 2 SCR 98. 2. A Factual Determination

[ 63 ] This case is one of circumstantial evidence, primarily revolving around a factual determination of causation. Border City RV must prove on a balance of probabilities that the fire was caused by the malfunction of one capacitor, C-24, which is a very small part of the converter.

However, on a common sense basis, to get there it must establish three ‘nested’ conclusions, that the fire: 1. generally started in the northwest corner of the building where the Frontier trailer was located, 2. actually started in that specific trailer; and 3. started in the converter unit within the Frontier trailer. [ 64 ] Strategically, if the Plaintiff fails in any of those factual determinations, it fails on the case. The layout of this analysis in this manner is not greatly different than how the experts described proper fire origin investigation.

You start with the big picture and, if possible, continue to focus on point of origin issues in an ever decreasing area within the big picture, until finally you come to a single point which you can substantiate and identify as the location where the fire started. The investigation of a fire loss in this way tracks a reasonably articulated scientific method of moving from large to smaller point of focus.

Another way of expressing this process is eliminating less likely alternatives, until one hypothesis remains. [ 65 ] The Plaintiff has narrowed their litigation to this specific focused claim, so these reasons must be interpreted in the context of the Plaintiff’s alleged case: the failure of a capacitor, a small cylindrical electric component, perhaps 1 inch in length. 3. Is the Observation that the Fire Started in the Northwest Corner a Reasonable One, Supported on a Balance of Probability by the Evidence? i.

Early Eye Witness Observations [ 66 ] A 911 call was received from a passing motorist around 5:48 p.m. on August 31, 2004. At that point, the business premises been closed for less than 20 minutes. Yet in that time a fire which was undetected when the last employee left had developed to size sufficient to create smoke which exited out of the northwest side of the building . Mr. Scheske, the resident technician, may also have seen fire higher off the ground as he walked forward around the building to the gate.

Proper fire investigation places importance on credible third-party observations, and therefore a common sense approach would lead one to conclude that the fire probably started somewhere in the west side the building, which is the location of the Frontier trailer. [ 67 ] However, that common sense approach may be an oversimplification and could lead to the wrong conclusion, because the experts also made clear that smoke will take an easy way out of a containment area and is affected by numerous factors, including the prevailing winds and wind velocity, which may create an appearance of more smoke in one area, the areas of egress to the burning building, fire suppression efforts that may be taking place and the intensity of the flames inside in certain areas.

Here, with no partition walls to the showroom, and no fire suppression when the smoke was first observed, smoke inside the building will find the easiest way out, which may not be the location closest to the fire. [ 68 ] There is also one key observation made by Fire Chief Lonquist. When he first approached the building as the first responder, he was able to see through the windows around the entrance way to the showroom. He indicated in his evidence an impression that he observed a trailer engulfed in flames just inside the windows. If he is correct - that trailer was the Frontier trailer.

Aggressive cross- examination took place about this single statement by the Fire Chief. The cross-examination revealed that Fire Chief Lonquist did not write this observation down anywhere, nor did he mention it the very next day to fire investigator Rostalski. [ 69 ] Chief Lonquist, after a long and distinguished career of faithful service to his community, succumbed to the stress of firefighting, and was diagnosed with and is actively being treated for post-traumatic stress disorder [“PTSD”].

He is therefore easily distressed by confrontation, including cross-examination, and admits the effects of the condition and its treatment has affected his memory. By his own admission, he has become forgetful and requires medication to cope with the day-to-day effects of his PTSD. [ 70 ] Mr. Lonquist sacrificed his personal health to care for the citizens of his community. He is a genuine hero! His condition, however, and its debilitating effects, including those on memory, require that I view his evidence carefully.

Despite this necessity, his evidence is consistent with the other evidence of smoke pouring out of the windows and roofline on the northwest corner of the building early in the fire. This provides some supportive evidence that the Frontier trailer (along with other objects in the area) could well have been on fire when Mr. Lonquist looked into the windows by the door. His evidence appears to be consistent with the location of intense smoke, and also the speed with which the southwest overhead door collapsed from flame.

I am satisfied that the Frontier trailer was on fire and was observed to be on fire when Chief Lonquist approached the building. ii. The Rostalski Investigation [ 71 ] Mr. Rostalski, an expert in fire origin and causation, was the first post-fire investigator on the scene.

He had a difficult task, but in his report [Exhibit 10, report letter December 21, 2004] he made his conclusions based on a combination of factors, including: • personal experience, • information from the firefighters, • the more extensively destroyed roofline immediately above the northwest area, • the more extensively burnt out appearance of the northwest interior (including the steel rafters), • the intensity of the damage to the residual frame of the Frontier trailer, and

• the appearance of the converter box and area around it. [ 72 ] This led him to conclude (from his report) as follows: Investigator’s preliminary findings: After a thorough examination of the scene, I have determined that the “Area of Origin” for this fire is inside the Frontier travel trailer that was located in the Northwest corner of the showroom. I have not determined the exact cause for this fire at this time and am waiting for all the interested parties to do a thorough examination of the trailer’s converter/charger.

It is only my opinion at this time that an electrical malfunction had occurred involving the trailer’s converter/charger and/or components relating to it that brought about the fire. I feel that the fire had been burning for some time and was not detected because it was inside the bottom portion of the entertainment unit. The fire burned through the wall to the north, into the closet and then into the toilet room. The fire continued burning and eventually broke out into the interior of the trailer and went into the free burning stage.

Because everyone was gone and the alarm system was not activated, the fire was able to gain a good foothold within the showroom before people on the highway detected it. [ 73 ] Regional Fire Chief Mr. Orest Popil and Provincial Fire Safety officer Mr. Frank Harris also attended the walk around with Mr. Rostalski. Mr. Harris concluded that the origin of the fire was undetermined, but that the trailer was suspected [Exhibit 1, Tab 32].

He also was affected in this assessment by the aggressive burn indicators in the northwest area of the building in the area of the Frontier trailer Thus, of the three experienced individuals who walked through the building the day after the loss, all focused on the northwest. Mr. Rostalski was of the view that the seized converter could potentially be the culprit. [ 74 ] Mr. Tim Leier from Williams Engineering Canada attended the fire scene September 16, 2004 [Agreed Statement of Facts], at the request of the Defendant Vanguard.

He has since disappeared and thus did not give us what would have been a second independent view of the actual post-fire building. Nor did he seize any other exhibits. Mr. Leier did take many of the same type of photos as did Mr. Rostalski, but also focused on some other aspects of the scene. [ 75 ] Mr. Rostalski was aggressively and critically cross-examined.

The cross-examination, focused on the thesis that his investigation was unscientific, incomplete, cursory, conclusory, judgemental, and that he did not follow with sufficient exactitude a well- established reference guide for the investigation of fires identified as the NFPA 921, 2004 [see para 93, 94]. Mr. Rostalski defended the approach he had taken, and points out that the guide is not applicable in every case and that this document is simply a guide, and is not mandatory. [ 76 ] Mr. Rostalski was also strongly criticized by Defense expert Mr. Bodnar. Mr.

Bodnar is an acceptable expert; however, his assessment was based on a photo review and schematic drawing of the building. His conclusion, that the fire started “somewhere in the entire westerly two thirds of the building”, is true, but not helpful. While I appreciate Mr. Bodnar’s job was not to find a cause of the fire, but to inform the Court of deficiencies in the ab initio investigation, he conceded on cross-examination that he could not rule out that the fire started in the northwest corner, just like Mr. Rostalski indicated. In the sustained and aggressive criticism that Mr.

Rostalski endured it is important to remember that hindsight is much greater than foresight, and it is a lot easier to criticize than to do something. It is also fair to recognize that we do not know the scope of his retainer with the Plaintiff as to how much work Mr. Rostalski was engaged to perform. The exacting protocols identified in the NFPA 921 guide can be labor intensive, and thereby costly. Readers should understand that any court concerns expressed here about Mr.

Rostalski’s investigative depth are based on the actual facts of his investigation, not a criticism of his skill, competence, and integrity. [ 77 ] Mr. Rostalski’s detachment to the cause of the fire is also important. Although hired by the building’s insurer, it mattered little to him what started the fire and whether he could even isolate a cause. As suggested in the reference guide to investigating fires he started with an outside building review, then moved inside in the area of the parts department (the most easterly part of the west showroom).

He chose that area because the fire destruction at that location seemed the least. He then moved forward into the areas of greatest fire destruction finally coming to what was left of the Frontier trailer. He picked the Frontier trailer on the northwest side because he was drawn there by his investigation. Had he picked the other trailer or some other fire origin the Plaintiff may have pursued that alleged culprit. Mr. Rostalski was called by the Plaintiff but was not the Plaintiff’s expert in the traditional sense. He was thus, of all the experts, the most neutral at the time he formed his opinion.

Although there were defects in his investigation and opinion, I believe his opinion to be honestly held. [ 78 ] However, despite his detachment, his investigation, taken in its totality, appears cursory, incomplete, and quick to judgment - in result perhaps accurate, but unreliable.

I base this on the following key concerns: • he focused on the northwest corner, because of the external view of the buckled roof line in the northwest corner; • he spent less than nine minutes of about a total three-hour investigation creating photos of other areas of the burnt out building; • that although he was not certain the converter that he did seize was the cause, he seized no other objects for follow-up investigation (NFPA 921 specifically rejects this approach); • that his report and his cross-examination both emphasized that his investigation was preliminary only, and he expected that he would return later, perhaps with other investigators hired by other potential litigants, and they would go over the whole site again; • he dismisses Fire Chief Lonquist’s suggestion that the fire may have started in the Southwest, perhaps from a battery charger in that area.

He rules out the battery charger and all of the other items in the south without detailed explanation in his report. He also rules out all of the other possible fire sources in a rather cursory way, but neither does he seize any of these items that could establish a point of origin contrary to his thesis;

• he was very uncertain, and extremely tentative during cross-examination; and • he failed to follow the recommended standard investigation protocols set out in a highly regarded reference text, NFPA 921, which was designed and drafted in such a way to pursue a scientific method in investigating the fire loss of this magnitude, despite his knowledge about it and its importance to the industry.

This failure was most acute in the lack of exhibits seized which pre-empted any possible alternate examination or disagreement, even though his initial assessment was an undetermined point of origin pending further review by other experts. [see paras 93 and subsequent] [ 79 ] All of these concerns have two effects on this case. First, they weaken the opinion of Mr. Rostalski concerning the point of origin of the fire. He could be correct but instills little confidence.

Second, despite these perceived weaknesses, he commits the Plaintiff to a converter fire start theory, forcing the Plaintiff’s subsequent experts to mould their theory on the starting assumption that the electrical converter is the cause of the fire, rather than itself a victim. Mr. Rostalski’s initial narrowing of causation set dominos in motion to force the Plaintiff’s other experts to start with a presumption that something in the converter caused the fire. This becomes difficult in circumstances where the level of deterioration by the fire can have a masking effect on the true cause. [ 80 ] However, Mr.

Rostalski’s general opinion - that the fire started on the building’s west side – is based on common sense. This includes the fact that the first eyewitnesses observed smoke pouring out of the northwest corner of the building. When the fire chief arrived, he also focused on the northwest corner of the building, but fought the fire from the southwest corner. Early photos show the building damage all to the west and then encompassing more of the building over time. There is an amazing photo of the roof line of the building showing substantial buckling in the northwest corner.

This is a product of a long hot (relatively speaking) fire in that area [Exhibit 1, Tab 3, plate 000232]. While other experts point out that this observation is not definitive, it is also not unrealistic to say that localized high intensity damage is a good starting indicator. [ 81 ] Other experts pointed to various burn marks along both the inside and outside wall to support their theory of where the fire started. The ability to interpret burn patterns can aid to identify a fire’s origin but in more complex fires,

interpretation errors can give false positive indications. In complex fires, multiple burn patterns make

interpretation much like beauty – in the eye of the beholder. Patterns may be imposed upon patterns leading to the “which came first” argument. A common term used by experts was the concept of a “V” pattern. In a perfect fire origin investigation (say a bundle of paper up against a white painted wall were to burn), a concise “V” pattern would be observed on the wall as the fire starts at the bundle of paper then radiates up and out on both sides of the start point forming a burn mark shaped like the letter “V”. The evidence about these burn patterns is not conclusive, in this case.

It is very subjective and provided ample fodder for dueling experts, but was of little assistance to the Court. [ 82 ] Mr. Rostalski is likely correct that the fire started somewhere in the western part of the building and perhaps more toward the northwest. Neither Mr. Harris nor Mr. Popil appeared to disagree during their attendance with Mr. Rostalski, although one senses deference to Mr. Rostalski from the others.

The official fire loss reports (prepared to satisfy a provincial investigative mandate and outside of the litigation experts) seem comfortable directing strong suspicion to the northwest and the Frontier trailer. [ 83 ] The Plaintiff need only prove this element of the case (like any other) to the civil standard. Therefore to advance the discussion and to allow me to evaluate whether it can be safely said, to a civil standard, that the fire started in the trailer, and if so, perhaps in the converter, I conclude that it is not unreasonable to accept Mr.

Rostalski’s opinion, at least on this point. [ 84 ] This brings us to the next nested step in the process to locate of the origin of the fire: has the Plaintiff proven on a balance of probabilities that it started in the Frontier trailer manufactured by the Defendant Vanguard. 4. Did the Fire Start in the Frontier Trailer? [ 85 ] I have struggled with this second critical factual issue, to the extent that it significantly delayed the release of these reasons. No single piece of evidence was determinative, as collectively the evidence was capable of multiple

interpretations. The opposing positions were strongly asserted by experts. My

interpretation of the evidence makes it clear that the fire started on the west side of the building, consistent with the initial smoke pattern observation, the heat buckled roof, and the speed by which even the door at the southwest of the building had collapsed, which then allowed firefighters to attack the fire. It is also clear that the fire went from an undetected state to a raging inferno in a relatively short period of time. One common sense observation about how that might occur is that when the manager Mr.

Kam left the building, there was already some fire underway and the undetected burning or smoldering was located in an enclosed space. This seems highly coincidental and unlikely, but if so the Frontier trailer and the Glendale fifth wheel trailer behind it are two common sense locations where fire might have been burning undetected inside the units. [ 86 ] Trial evidence is never perfect, and in this case the evidence was not clear about the state of operational readiness of either the Glendale or the Frontier units.

An employee opined that if they were slow in the service area, they would go further in fully completing the service of a new unit. Would that have included propane in the tanks, or 12 V batteries in the trailer? The evidence is unclear. However, we know three things about the Frontier trailer. The first is that it was attached with a power landline to electricity. Second, there was an auxiliary trouble light mounted in some fashion to the nearby wall to light the walking area between the wall and the entrance to the trailer.

Third, it had been in that configuration inside the showroom for at least several weeks, without any described incident. Likely as well, but not absolutely determined, was that the awning was out and the ‘slide outs’ deployed, to display the trailer features. These are both reasonable inferences if you are showing off the attractive features of a display unit for resale. Mr. Rostalski felt the awning was extended at the time of the fire. [ 87 ] The experts on both sides assumed the trailer was not equipped with a 12 V battery (a vehicle battery) to operate the lights when the unit was unplugged from the wall.

We also do not know whether the smoke detectors in the trailer would be operational if the landline was unplugged. Most modern smoke detectors have a 9 V battery backup, but manufactures might paper over the contact points to improve the shelf life of the smoke detector battery before it goes into service. Nor was there any evidence about whether a smoke detector in alarm mode could be heard outside the actual trailer unit. [ 88 ] One thing is troubling in this case! It troubled the experts, and remains unresolved in the evidence, despite the several

opposing theories, (one even based on computer modeling). How could Mr. Kam observe nothing unusual at say 5:20 p.m., his walk around time estimate, his 5:30 p.m. departure, and yet within 15 or 20 minutes thereafter a fire existed in the building of sufficient size that observers driving by on the highway could see smoke and stop?

If the windows in both trailers were closed and their smoke detector alarms inactive, both the Frontier trailer and the Glendale trailer would provide a space where a small fire inside the unit, occurring around closing time, could possibly grow undetected even as the manager left the building. [ 89 ] It was suggested that the lights were left on in the trailers to make them easier to market, and that the pulling of the plug at night (one of the last things Mr. Kam did - perhaps 10 minutes or so prior to leaving) would turn off the lights. The C-24 capacitor was on the output side of the converter.

If it had malfunctioned prior to Mr. Kam disconnecting the lights would he have noticed they were already off? The experts discussed this. However one Defence expert, Mr. Deshane, held the view that without the 12 volt battery installed in the system the lights would not work, which was an error. Had the 12V battery been installed the lights would not have gone off, when Mr. Kam pulled the plug, but the battery does not need to be installed for the lights to work if the trailer is plugged in. The reality is that it is highly unlikely that Mr.

Kam would have been so situationally aware that he would have noticed lights going off when he pulled the wall plug disconnecting the trailer.

I can accept that it was a routine part of his job to go around and disconnect the power to the trailers, but whether he would notice or be alarmed if individual lights were on or not, inside one of the trailers, is a hard stretch. [ 90 ] There is also the second issue involving electricity use in the vicinity of the trailer: Border City RV employees had rigged a trouble light to bring more light to the area between the wall and the Frontier trailer on the west side of the building. Mr.

Kam indicated that it was his usual practice before locking up to do a walk around unplug the land lines and this trouble light, and check for any issues. He believes that is what he did that night, but his belief is as much triggered by usual practice than by any other basis for certainty. However Mr. Rostalski opined that he and the other investigators detected a burnt out series of plugs attached to extension cord wires near the trailer but disconnected from the wall.

That element of their investigation appears to confirm that probably the trailer and the trouble light were unplugged at close up. [ 91 ] A security system installed in the premise was inactive because a weasel was loose inside the dealership and was causing false positives when the security system was activated. One suspects that the weasel departed once it got a whiff of the smoke.

Had the security system and cameras been activated on the night in question, and assuming the recording system was not destroyed, there may have been photo imagery of interior smoke or movement from fire damaged contents, as the fire expanded through the showroom. [ 92 ] Because of the nearly total destruction of the building contents, as one moves from generalized broad-brush concepts of the area where the fire started to the actual point of origin, scientific precision in this investigation broke down and a certain amount of speculation began.

Armed with, and focused on, the converter salvaged from the debris from the Frontier trailer by Mr. Rostalski, the Plaintiffs developed their theory of the origin of the fire. The Defendants were unable to postulate an actual alternate theory, but spent considerable energy disclaiming the accuracy of the Plaintiff’s assessment. To work through this conflicting evidence some additional background information about fire investigation is necessary. i. The NFPA 921, 2004 [ 93 ] Every few years, the National Fire Protection Association puts out a model guide for the investigation of fire causes.

The NFPA website says this about the organization: Founded in 1896, NFPA is a global, non-profit organization devoted to eliminating death, injury, property and economic loss due to fire, electrical and related hazards. The association delivers information and knowledge through more than 300 consensus codes and standards, research, training, education, outreach and advocacy; and by partnering with others who share an interest in furthering the NFPA mission. [ 94 ] The NFPA 921 guide was published in an updated form in 2004 just before the fire loss which occurred here. All experts (including Mr.

Rostalski, who was much criticised for departing from it) admitted that this guide is useful for conducting the proper the investigation of fire causes. The guide is highly respected and widely followed. The guide establishes a four point approach to fire investigation: 1. fire patterns, 2. witnesses and observations at the time of the fire; 3. the analysis of fire physics and chemistry; and 4. arc mapping. [Exhibit 2, NFPA 921, 2004, para 17.1.1] [ 95 ] The Defendants criticize the Plaintiff’s investigation as being far removed from the gold standard set out in the guide.

The Plaintiff responds by pointing out that the guide is simply that, and that how much investigation is done depends greatly on the dynamic of the fire and what the investigators find in their investigation. [ 96 ] As a certified fire investigator, Mr. Rostalski should have followed the guide perhaps more closely, or had an explanation why he deviated from it, particularly when he got to the fine points of whether the converter or perhaps something else caused the fire. He might have seized more evidence.

His explanation was that his investigation was preliminary only, and he hoped to come back to the site on invitation, perhaps in the company of the Defendants’ experts. This never happened, therefore Mr.

Rostalski’s preliminary report became his final report, and when he was effectively and aggressively challenged in cross-examination he kept falling back on his statement that his investigation was only preliminary. [ 97 ] In the context of this case, the visual inspection of the burnt out building, the picture taking, and a conclusion that the fire loss started in the converter in the Frontier trailer took less than three hours. The scientific method prescribed in the fire investigation guide

indicates at least four independent processes to be conducted. Visual examination and eyewitness interviews are only a part of a proper investigation. [ 98 ] Where a building has electricity at the time of the fire, “arc mapping” is suggested , particularly when destruction is to such a level that multiple causes are possible, and evidence gathering is difficult. “Arc mapping” is the study of the wiring remains to determine if an analysis can be made about where the electrical wires first shorted out.

The scientific theory is that the wires will short out first in the area where the fire starts because those shorts caused the fire, or the fire burns through the live wires causing them to arc or short out. [ 99 ] It is one thing to ignore arc mapping in a simple fire where the cause is clear and the demarcation between fire destruction and undisturbed fuel clearly ascertainable. It is another thing to ignore this in a totally burnt out building with numerous fuel sources and uncertainty about the fire origin. Offsetting this, however, the Defendants’ expert Mr.

Bodnar fairly conceded that in the case of total fire destruction arc mapping may be impractical and an overly costly exercise for the information that is generated. [ 100 ] Another area of investigation, although also labor-intensive, would be to create a grid, almost like an archaeology site, and go through the debris in archaeology-like fashion, looking for unusual items and tracing the fall pattern and location of various items of debris. In such a review, numerous other exhibits would have been seized, retained, and preserved for follow-up investigation.

Extending this, although it was not raised as a criticism specifically, by any of the experts, my observation is that this case would have been easier to determine factually, had the other converters from the Glendale trailer and the other Vanguard trailer also been seized. Since all trailers sustained near total fire damage, a comparison of the level of internal fire destruction in all converters and whether the same prevailing conditions identified by the experts existed in the other converters would have been helpful. [ 101 ] The Defendants point out that Mr.

Rostalski’s photos also favored the northwest corner, and there were very few photos taken of the electrical panels to see which circuit breakers tripped, or the other parts of the building to determine where other fire culprits could have existed. The Defendants dryly observe that based on the internal time clock in Mr. Rostalski’s camera he spent nine minutes photographing all of the other portions of the burnt out building, and the rest of his investigative time focused on the northwest corner.

By contrast, however, NFPA 921, in paragraph 17.4 suggests that during preliminary investigation: It is important at this stage that the investigator attempt to identify any other feasible scenarios and through the remaining course of the investigation, keep these alternative scenarios under consideration until or at such time as conclusive evidence or rationale is developed for setting them aside. [ 102 ] I accept that the guide is an all-inclusive reference and not applicable in all cases.

The more total the destruction of the building, and the higher cost of the loss, would seem to warrant an investigation far in excess of the investigation which took place here. [ 103 ] Before Mr. Rostalski began his internal investigation, he had been on a ladder to view the roof and observed the roof distortion in the north corner. It is clear from the timing of his investigation that he was deeply and heavily influenced, and perhaps judgemental in concluding that the fire started first in that area.

In short, the Defendants assert that the investigation was cursory and conclusion oriented and no other supporting information that would disprove the theory was even considered or collected. It is difficult for me to disagree with the Defendants’ assessment that the investigation was cursory and suffered from tunnel vision. While this level of investigation was accurate and successful in determining the broad area of the fire’s origin, it is less helpful to establish whether the fire started in the Frontier trailer. [ 104 ] I have accepted that Mr.

Rostalski may have correctly identified the originating area of the fire, but his conclusions as relates to a single source cause are based on an investigation that falls considerably away from the proper application of the proposed scientific method described in the NFPA 921 guide. [ 105 ] In Mr. Rostalski’s report, he indicates that he conducted a “thorough investigation”. We have the benefit of his digital photos as well as his 35mm photos, as in 2004 Mr. Rostalski was switching to the science of digital photography, but still relied on his 35mm for picture taking.

In his cross-examination, he indicated that he took the pictures more or less simultaneously with the two cameras. In other words, he would snap with one than the other, and then move on. His first digital photograph, an introductory signboard, was taken based on the timing of the pictures on September 2, 2004 at 11:16 a.m. He investigates outside, and then moves inside the building, to what appears to be the parts area. His first interior photo was taken there at 11:50 a.m. By 11:52 a.m. he is at the southwest area of the building.

At 12:03 p.m., he and the other investigators are already erecting the metal wall panels that had fallen down in the northwest corner. His last at the scene digital photo was taken at 3 p.m. The bottom line is that in four hours or less Mr. Rostalski had formulated his opinion, taken some photos to support his opinion, and cleared away the debris from around a converter and presented it to the Plaintiff’s agent.

The last portion of the investigation, which occurred at the Frontier trailer area, took up the largest portion of those four hours. [ 106 ] The lack of all-encompassing detailed photographs, the short time of the investigation, the failure to seize and to take at least the other converters, and a destroyed roof light bulb also laying in the debris of the frontier trailer, as well as comprehensively investigate other potential causes of the fire, reveal an investigation that was adequate to determine in a broad-brush way that the fire started somewhere in the west and possibly the northwest of the showroom, but beyond that lacks scientific precision and investigative confidence-assuring quality. ii.

Ventilation Controlled vs Fuel Controlled [ 107 ] There are two ways to fight a fire - remove oxygen or fuel. Some experts utilized concepts of ventilation control (starving it of air) or fuel control (remove the combustibles, or at least cool them to below their ignition point), to support their theory of the origin of the fire. [ 108 ] Let me give one example: the theory of the Plaintiff’s expert. The wall on the west side of the building is less charred on the south side than the north side. That allegedly establishes that the north side fire was burning first and longest. The Defendants counter by

pointing out that the firefighting efforts commenced by delivering water through the south overhead door which would have had the effect of blowing the fire further north and protecting the southwest wall which did not burn as greatly. [ 109 ] Thus one can see by this example how a simple picture of the west wall taken after the fire can be a factor that supports the theories of both sides. The early photos taken by the Fire Chief’s wife also reflect in one photo a dark billowing cloud of smoke coming out of the breached windows in the front of the building.

Less than a minute later that black smoke has been replaced by more intense white smoke pouring out of the building. Anyone who has ever tried to build a campfire understands that black and dark smoke represents likely poorer combustion than white smoke. Chief Lonquist’s wife may have in those photos captured two different scenarios: 1. where fire was burning inside a building, but starved for oxygen, then 2. the fire has caused the near simultaneous breach of the windows in the front and the south door in the back and is now invigorated with fresh air. iii.

When did the South Overhead Door Collapse? [ 110 ] The timing of the south overhead door collapse is in significant doubt. Why is this important? It is important because the closer in time the south door collapses to the first observed fire indicators, the less likely it is that the fire started at the furthest possible interior point north of that door - in other words, the location of the Frontier trailer. The evidence of Fire Chief Roland Lonquist was that that the south wall including the door was intact as he walked around the building immediately upon his arrival.

By the time his wife took her first picture (at an indicated time of 6:10) that south door had already collapsed. A subsequent photo at 6:13 shows the Kitscoty Fire Department attacking the fire through that collapsed door. The Kitscoty Fire Department recorded their arrival time as 17:58 p.m., and that they started their firefighting effort at 18:00 p.m. that evening, on the south side of the building. [ 111 ] The timing mechanism on Mrs. Lonquist’s camera is important but at the same time difficult to use as an unequivocal reference source.

We know that there was a 12 hour a.m. / p.m. time shift, but that may not have been the only erroneous camera setting. The next day, Chief Lonquist took some photos for himself using that same camera, concurrently with the photos taken by Mr. Rostalski. In that point, the Lonquist camera is about 30 to 40 minutes delayed (running late). Mrs. Lonquist’s first photo taken at the back of the building is data-stamped as 6:10 and shows the south door collapsed and no firefighters present for at least another three minutes.

If we assume that her camera was out by 30 to 40 minutes (in addition to the 12 hr a.m./p.m. concern), this would mean that by 6:40 to 6:50 p.m. the south door had collapsed, before the Kitscoty fire Department was present. This conflicts greatly with the Kitscoty Fire Department notes which indicate they began tackling the fire from the south at around 6 p.m. [ 112 ] Is it reasonable to assume that a competent fire department, as described by defence expert witness Mr. Deshane, would take 50 minutes to unravel two hoses and start squirting water at ground level through a large garage door opening?

I do not think so, and the photos by relative time suggest the set up time took only three minutes or so. The Kitscoty notes are revealing in another way. They indicate that the other more easterly overhead door on the south wall also collapses during their watch. Would it have been likely that if firefighters had seen the collapse of the westerly door on the south wall, that event would have also been in their notes? [ 113 ] A reasonable assumption is, excluding the 12 hour time shift; the photographs taken during the firefighting activities are not out by a half an hour, but probably a much smaller margin.

The significance of this is that we cannot establish the exact time at which the south overhead door collapsed. I accept as a fact it was not collapsed when Chief Lonquist walked around the building, but it was collapsed when his wife took her first picture of it, and was also in that state collapsed when the Kitscoty fire Department began setting up. Factually, the south door collapsed relatively quickly in relation to the start time of the fire.

That erodes the proposition that the fire started in the area of the Frontier trailer, to the exclusion of other areas on the southwest side. [ 114 ] The Plaintiff’s key experts, Mr. Thicke and Mr. Bertrand, opine that the fire started in the Frontier trailer. They opine that this is the only way the fire pattern could have developed. This explains why the fire was more visible out the northwest corner of the building, and it explains why the south door collapsed later and much after the fire had fully engulfed the west interior. In Mr.

Thicke’s model, the fire started in the Frontier trailer, and moved south - either over or through the Glendale fifth wheel trailer - and then set the south door on fire. The south door was of a different composition than the walls of the building. It was an insulated door supported on a wood frame support that would readily catch fire.

The fire modeling in this case makes clear that it is theoretically possible that the temperature above the Frontier trailer got so hot that it actually spontaneously ignited the oxygen in the air above it, causing a fire flash that would have started the framing members of the south door on fire. [ 115 ] That is a complicated process. The Defendants’ common sense theory that the fire could just as easily have started near the south door has appeal.

The south door collapsed even before the first firefighters turned on the first hose, but as I have observed earlier, there was delay between the fire first being called in, and the door collapsing. If I take Chief Lonquist’s evidence alone, the fire had burned for at least 15 more minutes from the first call in before the door collapsed. The destruction of that door is, in the opinion of the Defendants’ experts, more consistent with the fire starting somewhere in the southwest and then migrating to the Frontier trailer.

The Defendants may have interpreted the timing of the collapse of the door to be closer to 6:00 p.m. than to the likely 6:20 p.m. time around which it probably collapsed. Summarizing this controversy, I conclude that timing of the collapsing south door is not conclusive that the Frontier trailer started the fire. [ 116 ] Another difficulty that has to be confronted is that on the front of the Frontier trailer are two propane tanks but they are clearly more burnt on the side facing the Glendale trailer, then on the side facing the trailer on which they are mounted.

The Defendants observe the that destructive damage to the south-facing tanks indicates a fire moving from the south to the north, and in the process damaging the Frontier trailer, not the other way around. The Plaintiff’s experts counter by pointing out that the space between the propane tanks and the wall of the Frontier trailer would have provided a shield against fire, no matter whether the fire was moving outward from the Frontier trailer or to it from another location. Also, there is a photo of a piece of metal lying in front of the tanks that may have sheltered the tanks.

However, the trailer wall, if it was built like the other walls, was fiberglass and once it ignited it should have charred the propane tanks as much, if not more, on the ‘fire side’ (the north side of the tanks) as on the south face. [See Exhibit 1, Tab 3, photo 000358].

[ 117 ] Three boats were displayed in a line approximately parallel to the windows. The fire destruction of the first boat (the one closest to the Frontier trailer) is greater than the third. The first boat is almost directly under the burnt, warped beam. The destruction of the boats diminishes, west to east. This evidence also would support a fire starting close to the Frontier trailer, if not in the trailer. This boat was almost directly over the steel supporting rafter that was heavily warped.

Associating that warpage with the location of the boat could also lead to an inference that it was the boat that started fire first. However, this evidence is likewise inconclusive because of the fire suppression efforts started in the south part of the building. iv. Computer Fire Modeling [ 118 ] Vanguard expert, Mr. Bodnar, also augmented his criticism of the report of Mr. Thicke by attempting some computer fire modeling. In computer fire modeling, the qualified engineer or computer data lab input all of the known probable variables about certain types of fire loss.

Key inputs will be fuel load and fire environment and time of unsuppressed fire.

The central criticism of the modeling was that the inputs were erroneous, and designed to support the Defendants’ theory rather than properly examine correct fuel loads, time and area. [ 119 ] The NFPA 921 does permit modeling to provide an investigator with an additional tool to use for hypothesis testing, but the guide opines computer modeling should not be utilized as the sole basis to evaluate a fire’s origin and cause. [ 120 ] The fire modeling computer software then simulates the heat expansion in the fire environment over time. As I understand the bottom line, the computer file modeling undertaken by Mr.

Bodnar’s company is that the visual fire indicators of smoke that were first observed out of the northwest front of the building, and the fire indicators observed out of the south overhead door could have been generated from a fire which either started at the suspect Frontier trailer, the Glendale trailer immediately south of it, or the line of boats positioned east of the Frontier trailer. However, the results from a second computer modelling technique, a heat release model, concluded that a fire startin

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