S.C. No. 00-A0174 TRANS NORTH TURBO AIR LIMITED PLAINTIFF AND: NORTH 60 PETRO LTD., PATRICK O’HAGAN v. BRIAN LARKIN, 2003 YKSC 18

Trans North Turbo Air Ltd. et al. v. North 60 Petro Ltd. et al., 2002 YKSC 18 Date: 20030327 Registry: Whitehorse IN THE SUPREME COURT OF THE YUKON TERRITORY BETWEEN: S.C. No. 00-A0174 TRANS NORTH TURBO AIR LIMITED PLAINTIFF AND: NORTH 60 PETRO LTD., PATRICK O’HAGAN and BRIAN LARKIN DEFENDANTS AND BETWEEN: No. 00-A0226 ROBERT BRIAN CAMERON PLAINTIFF AND: NORTH 60 PETRO LTD., PATRICK O’HAGAN and BRIAN LARKIN DEFENDANTS AND BETWEEN: No. 00-A0211 ALMON LANDAIR LTD.

PLAINTIFF AND: NORTH 60 PETRO LTD., PATRICK O’HAGAN and BRIAN LARKIN DEFENDANTS AND BETWEEN: No. 00-A0212 SUMMIT AIR CHARTERS LTD. PLAINTIFF AND: NORTH 60 PETRO LTD., PATRICK O’HAGAN and BRIAN LARKIN DEFENDANTS Appearances: R. Patrick Saul and Darryl G. Pankratz For Trans North Turbo Air Limited and Robert Brian Cameron Peter Chomicki, Q.C. For Almon Landair Ltd. and Summit Air Charters Ltd. Rick B. Davison, Q.C. and Bruce Churchill-Smith For the Defendants Before: Mr. Justice R.S. Veale

REASONS FOR JUDGMENT I N D E X Page 1. Introduction................................................................................................................. 1 2. Background............................................................................................................... 2 3. Issues......................................................................................................................... 7 4. Credibility of Messrs. O’Hagan and Larkin............................................................ 7 5. Issue 1: Were Messrs. O’Hagan and Larkin Negligent?.................................... 12

a) Facts............................................................................................................. 12

b) Duty of Care................................................................................................. 19

c) Standard of Care......................................................................................... 19

d) Breach of Standard of Care....................................................................... 25

e) Spoliation...................................................................................................... 30 6. Issue 2: Causation:................................................................................................. 33

a) The Law........................................................................................................ 33

b) Theories of Causation................................................................................. 34

c) Surveillance Video....................................................................................... 35

d) Fire Witnesses Inside Hangar C................................................................ 42

e) Airport Chalet Fire Witnesses.................................................................... 46

f) Presence of Combustible Material on the Roof....................................... 48

g) Combustion of Donnaconna....................................................................... 52

h) Welding Experts........................................................................................... 54

i) Origin, Cause and Fire Development Experts......................................... 64

j) Alternative Causes...................................................................................... 69

k) Summary....................................................................................................... 75 7. Issue 3: Direct Liability........................................................................................... 78 8. Issue 4: Trespass.................................................................................................... 80 9. Issue 5: Contributory Negligence.......................................................................... 83

a) The Law........................................................................................................ 83

b) The Duty and Standard of Care................................................................. 84

c) Breach of Standard of Care....................................................................... 90

d) Causation..................................................................................................... 90

e) Summary....................................................................................................... 91 10. Issue 6: Damages................................................................................................... 92

a) Introduction....................................................................................................... 92

b) The Loss of Hangar C.................................................................................... 93

c) Hangar C Parts and Accessories................................................................. 97

d) Business Interruption Loss............................................................................. 98

e) Summary of Damages.................................................................................. 102 11. Costs....................................................................................................................... 103 REASONS FOR JUDGMENT INTRODUCTION [ 1 ] On January 18, 1999, Hangar C at the Whitehorse airport burned to the ground. Trans North Turbo Air (TNTA), the owner of Hangar C, and other plaintiffs allege that the use of an oxyacetylene torch by two employees of North 60 Petro Ltd. (North 60) was the cause of the fire.

North 60, and the two employees involved, deny liability and allege that the cause is undetermined or that other events caused the fire. As with many fire liability cases, no one can say with absolute or scientific certainty how the fire started, despite the fact that two witnesses were inside the hangar when the fire erupted and four witnesses observed the fire from a nearby restaurant.

As a result, each party presented expert evidence to explain and buttress their position. [ 2 ] In the normal course the onus is on the plaintiff, TNTA, to establish on the balance of probabilities that the negligence of the defendants was the cause of the fire.

However, the plaintiffs allege an alternative legal position based on trespass, which would place the onus of disproving the allegation of intention and negligence upon the defendants. [ 3 ] There are also significant disputes over the measure of certain damages claimed by TNTA and whether or not TNTA was contributorily negligent for the damage that resulted.

[ 4 ] There is no dispute that the defendants had a duty of care to the plaintiffs. Nor is it disputed that North 60 is vicariously liable for the acts of its employees, Patrick O’Hagan and Brian Larkin. BACKGROUND [ 5 ] Prior to the Second World War, there was no road through the Yukon Territory to the state of Alaska. In 1942, the Americans built the Alaska Highway and certain airstrips in the Yukon Territory for the purpose of defending Alaska from anticipated enemy attack or invasion. [ 6 ] The Whitehorse airport was one such facility.

The runway and four hangars, A, B, C and D, were built between 1942 and 1945. Hangar C was purchased by TNTA in 1970 to service and maintain its fixed wing and helicopter aircraft. It stood on 102,399 square feet of land leased by TNTA from the federal government. Hangar B, which was also owned by TNTA, was destroyed by fire in July 1993, when a roofing contractor applied a hot tar application to its roof. This is a fact that was widely known by residents of Whitehorse. Hangar B and Hangar C were similarly constructed. [ 7 ] Hangar C was primarily of wood frame construction consisting of 44,000 square feet.

It was set on a cement base at the edge of the tarmac or apron of the Whitehorse airport runway. The roof of Hangar C rose in a shed roof fashion from cement pillars and then became what is called a barrel roof. The shed and barrel roof were made of fir. The barrel roof reached a height of approximately 40-50 feet at its peak. The concrete buttresses along the east and west walls created eleven 20-foot bays along each side of the interior of the building. These were later converted into office space. [ 8 ] Hangar C had a length of 227 feet running south to north. It had a width of 202 feet.

The aircraft entrance to the hangar was at the south end and consisted of large sliding doors which slid on rails and folded into tower-like structures at the southwest and southeast corners of the hangar. Each tower was part of the hangar and extended into a flat overhang to house the sliding doors. The overhang ran across the front of Hangar C on the south side, but left an opening in the centre that allowed the tailwing of aircraft to enter and exit the hangar. The flat tower rooves were higher than the angled shed roof but intersected with the bottom portion of the barrel roof.

Access to the tower roof and the shed and barrel roof of Hangar C was by means of a ladder from the ground to the shed roof and then a further ladder to the flat tower roof which provided access to the barrel roof. I will refer to the flat roof area where the North 60 sign was located as the “southeast corner roof”. [ 9 ] The large sliding doors became difficult to open and close as the cement base expanded and contracted with temperatures that could range between extremes of -40 ° C in the winter and +30 ° C in the summer.

As a result, in the early 1970s, TNTA simply left the sliding doors in an open position so that aircraft could always exit and enter the hangar. The significance of this is that the south end of the hangar was referred to as the “cold side” as it was open to the elements through the large open doors. It comprised approximately two-thirds of the hangar space. [ 10 ] However, the north end of Hangar C was enclosed and insulated. The northwest side was called the helicopter shop. It was occupied by TNTA. The northeast side was called the fixed wing shop.

It was occupied by TNTA and Summit Air Charters Ltd. (Summit Air), a smaller aircraft company that was the only other permanent tenant of Hangar C on January 18, 1999. The helicopter shop was renovated by TNTA when it purchased Hangar C in 1970. It had sliding doors for helicopters to enter and exit from the cold side with an insulated curtain on the inside. Similarly, the fixed wing shop was renovated in 1972 and 1973 by insulating it and installing sliding doors and an insulated curtain on the inside.

The helicopter and fixed wing shops also contained equipment for the repair and maintenance of the helicopters and fixed wing aircraft. [ 11 ] The west side office space was renovated in 1972 and had offices for TNTA staff, Summit Air staff, a boiler room, a wash and paint bay and a parts room. [ 12 ] The east side office space was also renovated in 1972 to provide a parts room for Summit Air, an avionics (radio communication equipment) shop, a welding shop, a storage shop, a carpentry shop, a storage room with a small boiler for hot water heat and three offices.

One of the three offices was the southeast corner office, which was adjacent to the southeast corner roof. [ 13 ] The southeast corner office had been leased to White Pass Transportation Limited (White Pass) by a lease agreement dated September 15, 1993 (the lease). The lease was assigned to North 60 Petro on January 1, 1995. Attached to the lease agreement was

Schedule B, entitled General Hangar Rules and Regulations which contained the following paragraph: 5. No person, without the written consent of Trans North Turbo Air Ltd., is to carry out on or near the hangar premises hazardous operations such as painting, doping or welding. [ 14 ] On January 18, 1999, the three offices on the southeast side were empty and the boiler shut down, although the above ground fuel tank was full.

The offices and shops in the fixed wing shop and helicopter shop were heated from the main boiler on the west side, which had an underground fuel tank. [ 15 ] There were numerous electrical boxes or panels in various parts of the building. There was also an electrical wire running from an electrical box in the welding shop to the southeast corner roof and ultimately to the peak of the barrel roof. This wiring was connected to spotlights and the lights for the TNTA sign, both located near the south end of the barrel roof.

The TNTA sign was mounted on the two southernmost air vents that vented out of the peak of the barrel roof. [ 16 ] On the day of the fire, the cold side of Hangar C had nine 45-gallon barrels in the southeast corner by the doors, as well as three smaller tanks. The cold side was essentially used for storage and the southeast corner contained a Fleet Canuck aircraft with a car behind it, two boats and a utility trailer to the south of it. The Fleet Canuck aircraft was owned by Robert Cameron and was made of a very flammable outer material painted with aircraft dope, which was also very flammable.

It also contained several tanks of aviation gas.

[ 17 ] On June 1, 1995, North 60 acquired the petroleum distribution and marketing assets of White Pass. White Pass formally assigned its lease of the southeast corner office of Hangar C to North 60 with the consent of TNTA. North 60 began to operate its sale of aviation fuel from the southeast corner office of Hangar C. [ 18 ] Brian Larkin was originally employed by White Pass in 1973. In approximately 1974, Mr. Larkin became a supervisor and ultimately the bulk plant manager in Whitehorse and the direct supervisor of Patrick O’Hagan. Mr. O’Hagan was hired by Mr.

Larkin in April 1996 as a mechanic and welder second class. It has been agreed that Messrs. O’Hagan and Larkin were at all material times acting in the course of their employment with North 60. [ 19 ] In 1993 or 1994, on behalf of White Pass and with the consent of TNTA, Mr. Larkin caused a Chevron sign to be erected on the southeast corner roof of Hangar C. The Chevron sign was erected on a metal base which had been constructed by or on the direction of White Pass. The angle iron used in the metal base was between 3 / 16 -inch and 1 / 4 -inch thick.

It was supported by 6-inch by 6-inch wooden posts, which were approximately 24 inches in height from the surface of the roof. The two bolts fastening the angle iron to the wooden posts were 5 / 8 -inch in diameter. [ 20 ] In 1996, Mr. Larkin replaced the Chevron sign with a sign 4 feet wide by 8 feet tall displaying the words “North 60 Petro Aviation Fuel” (the North 60 sign). The North 60 sign was secured to the metal base by means of a steel sleeve over a metal pole and attached by a single bolt.

The consent of TNTA was sought and given for the sign change. [ 21 ] North 60 remained a tenant of TNTA in Hangar C until it vacated the southeast corner office on September 18, 1998, to move into its own building at the Whitehorse airport. North 60 left its sign on the southeast tower roof of Hangar C until January 18, 1999, the date Hangar C burned to the ground. [ 22 ] On January 18, 1999, Tom Martin, the manager of North 60 in the Yukon, directed Mr. Larkin to remove the North 60 sign from the southeast corner roof of Hangar C. Mr. Larkin instructed Mr. O’Hagan to remove the sign.

They met at Hangar C and proceeded to do so with the assistance of an oxyacetylene torch. TNTA was not informed about, nor was it aware of, the removal of the North 60 sign. No consent was requested by North 60 or given by TNTA for a welding operation. [ 23 ] Having given this background, I will proceed to review the evidence and the law on an issue-by-issue basis. THE ISSUES [ 24 ] The following issues arise in this case: 1. Were Patrick O’Hagan and Brian Larkin negligent in using an oxyacetylene torch to remove the base of the North 60 Petro sign from the southeast corner roof of Hangar C? 2.

If Patrick O’Hagan and Brian Larkin were negligent, did that negligence on a balance of probabilities cause the fire that destroyed Hangar C? 3. Was North 60 directly liable for the fire as a result of its own negligent training and supervision of Messrs. O’Hagan and Larkin? 4. In the alternative, did the acts of the defendants amount to a trespass requiring the defendants to establish the absence of intention and negligence? 5. Was TNTA contributorily negligent and thus responsible for some or all of the damage? 6. What are the damages that flowed from the fire? The majority of the damage was suffered by TNTA.

Robert Cameron, Almon Landair Ltd. and Summit Air also brought damage claims for property destroyed in the fire. Credibility of Messrs. O’Hagan and Larkin [ 25 ] It is common knowledge at the time of trial that on January 18, 1999, Messrs. O’Hagan and Larkin were instructed by their superior at North 60 to remove the North 60 sign from the flat southeast corner roof of Hangar C. It is also common knowledge, at the time of trial, that the metal base of the North 60 sign was removed by Mr. O’Hagan, with the assistance of Mr.

Larkin, using an oxyacetylene torch to remove the two metal bolts that fastened the metal base to the timber posts attached to the roof. [ 26 ] However, Messrs. O’Hagan and Larkin lied and denied the use of the oxyacetylene torch from January 18, 1999 to the fall of 2000, when they disclosed it to North 60 after service of the Writ of Summons in this case. It was not until February 6, 2001, that they admitted to RCMP Corporal Campbell that they had used the oxyacetylene torch on the southeast corner roof of Hangar C on January 18, 1999.

Corporal Campbell requested a statement in writing and on March 19, 2001, Messrs. O’Hagan and Larkin delivered identical brief statements which concluded: As stated, a torch was used to remove the base of the North 60 sign at the Trans North hangar on January 19/1999 ( sic ). No other reference to above issue will be made.

[ 27 ] The plaintiffs submit that the perpetuation of the lie by Messrs. O’Hagan and Larkin had very serious ramifications. It clearly protected their own self-interest, but it also misled and detracted the investigators who searched for evidence of the metal base of the sign. [ 28 ] The defence takes the position that the plaintiffs’ submission about the impact of the lie was nothing more than “self- righteous indignation”. They submit that the lie was admitted from the inception of the trial and is “completely irrelevant” to the issues before the court.

I can agree with this latter assertion only to the extent that the lie does not establish a causal connection between the use of the oxyacetylene torch and the fire. However, the credibility of Messrs. O’Hagan and Larkin is a pervasive aspect in this case. It affects the evidence on the issue of negligence and the evidence of some defence experts, which was premised upon the evidence of Messrs. O’Hagan and Larkin. [ 29 ] I do not take the view that “once a liar, always a liar” and reject their evidence in its entirety.

However, a lie is rarely an isolated incident and it often has impacts beyond the specific incident. The following are some of those impacts in this case: 1. The lie was allegedly concocted by Messrs. O’Hagan and Larkin in a three- to four-minute conversation before meeting with the RCMP on the morning of January 19, 1999, the day after the fire. However, Messrs. O’Hagan and Larkin were both in a vehicle and watching the fire for a short time on the night of January 18, 1999. I find it incredible that, at trial, they both denied any discussion of the use of the oxyacetylene torch while watching the fire.

They also deny any discussion of the use of the oxyacetylene torch or the lie after the police interviews. 2. The lie was not easy to execute, as it required the disposal of the metal base which might have had flame or heat marks on it. Mr. O’Hagan showed the police the single bolt and the sign post sleeve to demonstrate the absence of flame marks. In evidence at trial, Mr. O’Hagan denied there were flame marks on the metal base and said he did not disclose the existence of the metal base because the police never asked for it.

This, too, is incredible, as there would be no reason not to disclose the metal base if it were unmarked. 3. At trial, Mr. O’Hagan testified that he lied to the police about the use of the oxyacetylene torch because he felt they would be blamed for the fire and they would not get a fair and impartial investigation. Mr. Larkin made a similar point, although in a more incredible fashion, saying that he lied to make sure there would be a complete investigation.

These positions are quite incredible given that they deliberately allowed the metal base to be disposed of, a critical piece of evidence for any fair and complete investigation. The failure to produce the metal base also leads me to believe that Messrs. O’Hagan and Larkin either had little confidence in their position or had something to hide. 4. A serious consequence of the lie was the effect it had upon the fire investigators who spent a great deal of wasted effort trying to determine if there was evidence of the use of the torch in the ashes of the fire.

Defence counsel ultimately was quite critical of the fire investigators for not spending more time in other areas of Hangar C, which would have been possible if there had been no lie. 5. Messrs. O’Hagan and Larkin perpetuated the lie as they denied the use of the oxyacetylene torch to their superior, Mr. Martin, on at least three separate occasions. On one occasion, Mr. Larkin denied using an oxyacetylene torch with the explanation that the hoses could not reach the roof — another lie. When the lie came to light, it had an impact on their employment with North 60. 6. Mr.

Larkin lied to a Whitehorse Star journalist when asked about the use of the torch, following public statements by Al Kapty of TNTA that an oxyacetylene torch had been used. 7. When Messrs. O’Hagan and Larkin gave the police their letters of March 19, 2001, it clearly indicated they would not discuss it further with the police, despite the RCMP request for a further statement. At trial, Mr. O’Hagan suggested they might have reconsidered if the police had come around and asked again.

Once again, incredible evidence given their letter of March 19, 2001 to the RCMP declaring no further reference would be made to the use of the torch. 8. Significantly, Corporal Campbell recalled on February 6, 2001, when advising Mr. O’Hagan that he would consider a public mischief charge, that Mr. O’Hagan was a bit perplexed and said, “Everybody lies to the police”. This leads me to question Mr. O’Hagan’s commitment to tell the truth when it affects his self-interest. [ 30 ] I will return to the issue of credibility when I consider the weight to be given to the evidence of Messrs. O’Hagan and Larkin.

ISSUE 1: Were Patrick O’Hagan and Brian Larkin negligent in using an oxyacetylene torch to remove the base of the North 60 Petro sign from the southeast corner roof of Hangar C? (

a) Facts

[ 31 ] The North 60 lease of premises in Hangar C terminated on September 15, 1998. North 60 vacated the premises, but the North 60 sign was left on top of the southeast corner roof. [ 32 ] On January 18, 1999, Mr. Martin directed Mr. Larkin to remove the North 60 sign. Mr. Larkin instructed Mr. O’Hagan to meet him at Hangar C for the purpose of removing the North 60 sign. [ 33 ] Mr. O’Hagan arrived at approximately 1:30 p.m. and went up the ladder from the ground to the shed roof where a second ladder led to the flat roof of the southeast corner. Mr.

O’Hagan testified that he used a shovel to remove some snow to reach the second ladder. About that time, Mr. Larkin arrived. The collection of snow on the shed roof at the bottom of the second ladder is also apparent from historical photographs. [ 34 ] Mr. O’Hagan testified that the depth of snow at the base of the second ladder was “roughly a foot”. He indicated that the depth of snow to the right of the second ladder increased to about three feet as the shed roof proceeded to its intersection with the barrel roof. [ 35 ] Mr.

O’Hagan then took issue with the location of the ladder on the model of Hangar C constructed by the defendants for the trial. He wanted to move the ladder over a few feet to the right, contrary to the view of those more familiar with the roof and all photographic evidence of the location of the second ladder. It appears that this was an attempt to get the ladder closer to the place where the flat roof of the southeast corner meets the barrel roof. The place where the two rooves join would likely have more than one foot of snow.

However, I find that the second ladder to the southeast corner roof was adjacent to the North 60 sign and located as depicted in the defendants’ own model. [ 36 ] In chief, Mr. O’Hagan said he climbed the second ladder to the flat southeast corner roof, which had snow near the ladder two to three feet deep. In cross-examination, he said the depth of snow at the top of the ladder was three or four feet.

He claimed to have shoveled the snow at the location of the ladder, but not at the North 60 sign. [ 37 ] He described the snow at the sign as “sort of crusty” and “probably between eight inches and a foot” in depth after their movement in the area. There was no intentional packing down of the snow by Mr. Larkin and Mr. O’Hagan. In his statement to the police, Mr. O’Hagan described the flat roof as having “about two feet of snow roughly on top of the building here and here” ( sic ). [ 38 ] Mr.

Larkin said there was three feet of snow at the top of the ladder and at least a foot of snow, probably more, at the North 60 sign. Both Messrs. O’Hagan and Larkin said their walking on the roof packed the snow down. They did not intentionally pack the snow down. [ 39 ] There is no photographic evidence of the snow depth on the flat roof of the southeast corner on January 18, 1999. There is a photograph of the roof of the Whitehorse airport terminal building taken on January 19, 1999, depicting the smouldering ruins of Hangar C and the roof of the terminal building.

That photograph was taken from the air traffic control tower looking down on the ruins of Hangar C and the airport terminal roof. [ 40 ] The snow on the airport terminal roof can be described as spotty, in that some portions of the roof were almost devoid of snow while others had swirls or drifts of snow, but never to a great depth. One cannot make exact comparisons of the two rooves. While both rooves are flat, the airport terminal building roof had a slight lip on the edge and the southeast corner of Hangar C had no lip at all.

There is no evidence on precisely how wind speed and direction would affect the snow collection. [ 41 ] There was also a tendency for the barrel roof of Hangar C to direct the snow towards the flat roof and collect there. That would explain the greater depth of snow at the point where the ladder came up from the shed roof. [ 42 ] Evidence was presented by Glenn Ford, a hydrology technologist, about snow depth at certain test sites near the airport. The records indicate snow depth of 16.5 inches from a sample taken on February 26, 1999 at a site approximately 700 metres south of the airport terminal.

These measurements cannot be accurately related to the depth of snow on the southeast corner roof of Hangar C. Test sites are generally selected for lack of wind and drifting, whereas the flat roof in question would be affected by wind either in scouring away the snow in some areas or piling it up in others. [ 43 ] Although Mr. Kapty told the RCMP he thought the snow depth was one to two feet on the tower roof, he had not been on the roof and I cannot give any weight to his speculation. [ 44 ] I am unable to make a finding of the snow depth near the posts supporting the sign.

However, I give very little weight to the depths described by Messrs. O’Hagan and Larkin for the reason that I have found their evidence to be incredible, particularly where it directly affects their self-interest. [ 45 ] I have the following additional reasons to those previously stated for not finding the evidence of Messrs. O’Hagan and Larkin credible regarding the snow depth on the roof of the southeast corner of Hangar C: 1. The depth of snow stated by Mr. O’Hagan differed in his RCMP interview, his evidence in chief and his cross-examination.

I find the reason for the discrepancies lies in the fact that the depth of snow was not a factor in the RCMP interview because Mr. O’Hagan denied the use of the oxyacetylene torch. However, at trial, where the depth of snow was in issue, his evidence became more precise. 2. There was no mention of packing the snow down to the RCMP. However, at trial, this evidence was dwelt upon.

3. In my view, the evidence of Messrs. O’Hagan and Larkin at trial was well- rehearsed and tailored to be exculpatory. 4. The evidence they did give at trial about snow depth was not consistent and indicated to me that it is doubtful whether Messrs. O’Hagan and Larkin considered the snow depth at all that day. [ 46 ] It is clear to me that they did not consider the depth of the snow from a fire hazard perspective before deciding to use the oxyacetylene torch. Mr. O’Hagan assumed that the snow cover would provide an adequate protection. There was no discussion between Messrs.

O’Hagan and Larkin about the possibility of having a shield or guard to protect the roof, despite the fact that Mr. O’Hagan had fireproof blankets in his van. There was no discussion between Messrs. O’Hagan and Larkin while on the roof about the depth of the snow, the quality of the snow or the merits of packing the snow in the roof area to improve its protective quality. [ 47 ] It was not a difficult task to remove the North 60 sign from the steel sleeve. Mr. O’Hagan used a crescent wrench and pair of pliers to remove the single bolt from the steel sleeve over the metal pole attached to the base.

The North 60 sign was simply lowered to the shed roof and then to the ground, where it was put in the North 60 van used by Mr. O’Hagan. [ 48 ] There were two rusted metal bolts to remove from the metal base attached to the timber posts, and Mr. O’Hagan was not successful in removing them with his wrench. They decided to use the oxyacetylene torch to cut the nuts and bolts so that the two bolts and the steel saddle could be removed. I will, at this point, focus on the safety considerations that were taken into account by Mr. Larkin and Mr.

O’Hagan before using the oxyacetylene torch. [ 49 ] It is generally agreed by the experts in this case that an oxyacetylene torch produces sparks and globules of molten metal that reach temperatures of 2500-3000° C. In the cutting process, the sparks, globules, or slag travel at 180 kilometres an hour and can move a distance of 35 feet in the cutting process. Hence, the requirement for safety considerations before an oxyacetylene torch is used. It is in this context that the decision to use the oxyacetylene torch must be considered. [ 50 ] Messrs.

O’Hagan and Larkin also relied on the presence of a 200-pound fire extinguisher sitting on the ground at the southeast corner of the hangar. However, they had no idea whether its hose would reach the roof. Mr. Larkin said the hose was five or six feet in length. Mr. O’Hagan said it was about 50 feet. Mr. O’Hagan took the usual personal safety precautions of using a striker, gloves and goggles. He had two fire extinguishers in the van, one on the inside wall and the other on the back door of the van. [ 51 ] Mr. Larkin was present throughout the cutting operation in the event something caught fire. Mr.

O’Hagan testified that he ignited the torch and adjusted the flame to achieve a neutral blue flame. He knelt down facing north, preheated the metal and made the two cuts which he claimed lasted 10 to 12 seconds. He claimed that each nut was picked up and placed on top of the metal base. He claimed the nuts were later thrown to the ground by the van. He applied snow to the holes in the base where the ready rod was removed and to the wooden base. Mr. O’Hagan also stated that the metal base was put in the van.

He then went up on the southeast corner roof for a last time to do a safety check and final inspection to see if any tools had been left. Both Messrs. O’Hagan and Larkin stated that they remained on the roof for five to ten minutes after the torch-cutting operation was completed. [ 52 ] There was conflicting evidence about the structure of the base of the North 60 sign. I prefer the evidence of Silvio Ferro, the maintenance and repairman for TNTA. He had more opportunities to observe the base of the sign over the years. Mr. Larkin had only seen the base on three occasions. Mr.

O’Hagan initially told the adjuster that the metal saddle extended approximately halfway down the horizontal wooden beam between the two wooden posts. This would leave exposed wood for the sparks and slag to strike. The adjuster drew a diagram confirming Mr. O’Hagan’s initial description. However, at trial, Mr. O’Hagan insisted that the sides of the metal saddle extended to the bottom of the wooden beam, which would reduce the amount of wood exposed to the sparks and hot slag from cutting with the torch. I accept the model prepared by TNTA as the most accurate depiction of the base of the North 60 sign.

The nuts and bolts were 5 / 8 -inch. They passed through the posts and were approximately 18 inches from the surface of the southeast corner roof. However, there were only two nuts and bolts, as opposed to the four depicted in the model, and they passed through the posts to fasten the metal saddle. [ 53 ] Messrs. O’Hagan and Larkin were certainly aware of the exposed wood, both on the posts and on the horizontal wooden beam. They were not aware of a nearby drain. They had no idea of the composition of the roof, nor did they make any inquiries with TNTA.

I will discuss the precise composition of the roof later as it relates to causation. But generally, the roof was made of a fir plank or board covered by a sheet of donnaconna, a fibrous material used for insulation. Both of these materials are combustible or flammable. They were covered with roofing compounds, primarily concerned with preventing cracks and avoiding water leaks. The roofing compounds were Swepco Products. They were applied by a cold application process which involved two layers of bitumen or asphalt and two layers of glue covered with aluminum paint.

All of these products are designed to prevent water leaks. [ 54 ] There is one final matter to address. In my view, there was no necessity at all to remove the metal base of the sign. The sign itself was removed without difficulty. Messrs. O’Hagan and Larkin went to great lengths to explain that they like to leave a clean work site. Mr. O’Hagan also made the ludicrous suggestion that the metal was a safety hazard to aircraft. Even if I accepted these justifications, there was another method that could have been employed with far less risk. Mr.

McKeown, the plaintiff’s expert welder, stated that the nuts could have been heated first to see if they could be removed by a wrench. This less risky procedure was not considered by Messrs. O’Hagan and Larkin. (

b) Duty of Care [ 55 ] The common law imposes a duty of care when an oxyacetylene torch is used on or near property of others. (See Jones Street Hardware and Furniture Co. Ltd. v. Spizziri (1985), 1985 CanLII 2018 (ON SC) , 51 O.R. (2d) 641 (H.C.J.) and (1987), 1987 CanLII 4172 (ON CA) , 62 O.R. (2d) 385 (Ont. C.A.) and Alberta Wheat Pool v. Northwest Pile Driving Ltd., [1998] B.C.J. No. 1425 (B.C.S.C.) (QL) and (2000), 2000 BCCA 505 (CanLII) , 80 B.C.L.R. (3d) 153 (B.C.C.A.) )

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c) Standard of Care [ 56 ] The standard of care is based on the concept of negligence and whether or not the acts of the defendants were reasonable in the circumstances of this case. The standard of care may be found in the safety procedures prescribed by statute or custom in the industry when using oxyacetylene torches. [ 57 ] The statutory standard for the Yukon is set out in the Fire Safety Regulations, pursuant to the Fire Prevention Act , R.S.Y. 1986, c. 67, which provides that: 2. For purposes of determining that proper precautions are taken against fire and the spread of fire, the requirements of … (

b) the National Fire Code of Canada, 1975 edition, as amended from time to time, shall be deemed as an acceptable minimum standard by the enforcing authority. [ 58 ] The National Fire Code of Canada 1995 was revised to June 30, 1997. The Guide to the Use of the Code describes it as “essentially a set of minimum requirements respecting fire safety in existing buildings and within the community at large.”

Part 5 of the Code is entitled “Hazardous Processes and Operations” and contains the following relevant provisions:

Section 5.2. Hot Works 5.2.1. General 5.2.1.1 Application 1) This

Section shall apply to hot works involving open flames or producing heat or sparks, including, without being limited to, cutting, welding, soldering, brazing, grinding, adhesive bonding, thermal spraying and thawing pipes. 2) Except as provided in this Section, hot works described in Sentence (1) shall conform to CSA W117.2, “Safety in Welding, Cutting, and Allied Processes.” 5.2.1.2 Training 1) Hot works shall be performed only by personnel trained in the safe use of equipment in conformance with this Section. … 5.2.1.3 Prevention of Fires 5.2.3.1.

Location of Operations 1) Except as provided in Sentence 2), hot work shall be carried out in an area free of combustible and flammable contents, with walls, ceilings and floors of noncombustible construction or lined with noncombustible materials. 2) When it is not practicable to undertake hot work in an area described in Sentence (1),

a) combustible and flammable materials within a 15 m distance from the hot work shall be protected against ignition in conformance with

Article 5.2.3.2.,

b) a fire watch shall be provided during the hot work and for a period of not less than 60 min after its completion in conformance with

Article 5.2.3.3., and

c) a final inspection of the hot work area shall be conducted 4 h after completion of work. 3) When there is a possibility of sparks leaking onto combustible materials in areas adjacent to the area where hot work is carried out,

a) openings in walls, floors or ceilings shall be covered or closed to prevent the passage of sparks to such adjacent areas, or

b) Sentence (2) shall apply to such adjacent areas. 5.2.3.2. Protection of Combustible and Flammable Materials 1) Any combustible and flammable material, dust or residue shall be

a) removed from the area where hot work is carried out, or

b) protected against ignition by the use of noncombustible materials. 5.2.3.3. Fire Watch 1) The exposed areas described in Sentences 5.2.3.1.(2) and (3) shall be examined for ignition of combustible materials by personnel equipped with and trained in the use of fire extinguishing equipment. [ 59 ] The CSA W117.2-94, “ Safety in Welding, Cutting, and Allied Processes ”, referred to in s. 5.2.1.1(2) of the National Fire Code, also provides minimum requirements and recommendations to protect persons and prevent damage to property. The relevant provision is 10.7, which states as follows: 10.7 Fire Prevention and Protection 10.7.1 The following precautions shall be taken: (

a) Where practicable, the object to be wielded or cut shall be moved to a location free from fire hazards. (

b) If the object to be welded or cut cannot be moved, all movable fire hazards shall be removed to a minimum safe distance of 15 m (50 ft.).

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c) If the object to be welded or cut cannot be moved, and if all the fire hazards cannot be removed, appropriate guarding shall be used to confine the heat, spills, and slag in order to protect adjacent immovable fire hazards. 10.7.2 Where the nature of the work to be performed falls within the scope of Item (

c) of Clause 10.7.1, the following additional precautions shall be taken: (

a) Combustible floors shall be swept clean and protected by thoroughly wetting with water or covering with wetted soil, or shall be protected with fire-resistant shields. Precautions such as sealing the cable joints in plastic or tape, elevating the cable, and wearing rubber boots shall be used to protect welders from the hazard of electric shock when floors are wetted. (

b) If there is a possibility of sparks leaking through the floor openings or cracks onto combustible materials, precautions shall be taken to protect these materials. The same precautions shall be taken with any openings that may allow sparks to ignite combustible materials in adjacent areas. (

c) Approved fire-extinguishing equipment appropriate to the fire hazard shall be located and kept accessible at the welding site. Such equipment may consist of a pail of water, bucket of sand, fire hose, or portable extinguishers. (

d) Fire watchers shall be required whenever cutting or welding is performed in locations where the following conditions exist: (

i) combustible material is closer than 15 m (50 ft.) to the point or site of welding or cutting; (ii) combustible material is more than 15 m (50 ft.) away but is easily ignited by sparks; (iii) wall or floor openings within a 15 m (50 ft.) radius expose combustible material; and (iv) combustible material is adjacent to the opposite side of metal partitions, walls, ceilings, or roofs and is likely to be ignited by heat conduction or heat radiation. (

e) Fire watchers shall (

i) be trained in the use of available and approved fire- extinguishing equipment; (ii) know the location of the nearest fire alarm; (iii) watch for fires in all exposed areas; (iv) be trained to extinguish only those fires that are within the capacity of the available fire-extinguishing equipment; (

v) continue the fire watch for at least 30 min after completion of

the welding or cutting operation. (

f) When welding or cutting has to be performed in a location not designated for such purposes, inspection and authorization shall be required in writing (sometimes referred to as the “Hot Permit”) before any such operations shall commence. (

g) If welding or cutting is to be done near automatic sprinkler heads, smoke detectors, or automatic fire alarms, fire-resistant shields and damp cloth guards shall be positioned to prevent actuation of these devices. These shields and guards shall be removed at the completion of the welding or cutting operation. [ 60 ] The CSA standard W117.2-94 was also the standard adopted in

Part 12 of the Yukon Occupational Health and Safety regulations. [ 61 ] Mr. O’Hagan did not seem to be aware of the hot work procedures in the National Fire Code. He was aware of the CSA standard, but considered the CSA standard to be a “guideline”, not a minimum requirement. Mr. Larkin relied upon the skill of Mr. O’Hagan, whom he had hired. [ 62 ] All the experts acknowledged that these standards were the industry standard.

In my view, the appropriate standard of care to be applied for the use of the oxyacetylene torch on the southeast corner is the following: 1) Inspection and authorization in the form of a hot work permit shall be required in writing before the work commences. 2) The area around the metal base shall be free of combustible and flammable materials.

If it is not, non-combustible blankets and fire resistant shields shall be used to protect the combustible and flammable materials within a 15-metre distance of the hot work. 3) Precautions must be taken to protect the roof if there is a possibility of cracks or other openings that may allow sparks to ignite combustible materials. 4) A fire watch shall be provided by another trained person during the hot work and for a period of not less than 60 minutes after its completion. 5) The person conducting the fire watch shall be equipped with fire extinguishing equipment on the roof. 6) There must be a final inspection of the hot work area conducted four hours after completion of the work. [ 63 ] Mr.

O’Hagan had the ability to perform the cutting job in question. However, he had never received any training based on the CSA and National Fire Code of Canada since he worked with North 60. [ 64 ] I note that the CSA requirement of a 30-minute fire watch was doubled to 60 minutes in the National Fire Code. Based on the extensive evidence in this trial about the smouldering capacity of donnaconna, the 60-minute fire watch is the most reasonable. (

d) Breach of Standard of Care [ 65 ] The plaintiff’s expert, Ronald McKeown, had over 40 years of experience in welding. He worked in the welding industry for approximately 20 years and had been a welding instructor for over 20 years. He stated: Mr. O’Hagan committed five serious errors that day.

He did not ensure that a hot work permit had been applied for, and did not ascertain what the roof was composed of; he did not use any fire resistant shields or asbestos blanket; he did not post a fire watch for a minimum of 30 minutes, nor did he leave a fire extinguisher close to the actual work site, the roof. [ 66 ] Defence expert, Lamar Wells, while not a certified welder, was an ironworker by trade. He had done a great deal of welding and cutting from 1976 to 1985 in Alaska and was familiar with northern conditions.

He opined that snow of a depth of one to two feet would serve as an effective fire blanket, assuming that the snow was compacted, and that Mr. O’Hagan performed his work in a proper and safe manner. He qualified his opinion in cross-examination by stating that he was assuming that Messrs. O’Hagan and Larkin used a shovel to compact the snow. He also stated that they did not require a hot work permit after having been given the wording of CSA 10.7.2(f). To be fair, Mr. Wells was not familiar with the CSA standard. However, he seems to have misunderstood that Messrs.

O’Hagan and Larkin were not contractors who had permission to be on the roof of Hangar C. He also had no idea whether Messrs. O’Hagan and Larkin examined the roof for hazards before cutting. [ 67 ] I cannot give much weight to Mr. Wells’ opinion about the adequacy of the snow cover based on his misunderstanding of the facts and the fact that he relied upon the credibility of Mr. Larkin and Mr. O’Hagan. I have found that I can give little weight to the evidence of Messrs. O’Hagan and Larkin. I also find that his report was edited by Dr. Eagar and thus not really his own opinion. Finally, Mr.

Wells has no expertise on the issue of the adequacy of snow as a protection and was simply stating his practice as opposed to an industry custom. [ 68 ] Defence expert, Brent Marshall, has been a welder in Alberta for approximately 30 years. He commenced his Alberta apprenticeship in 1969 and received his journeyman ticket in 1972. He has been employed as a welding instructor at the Northern Alberta Institute of Technology since 1974 and teaches both the practical and theoretical aspects of oxyacetylene cutting. Since 1985, he

has been a member of the CSA Technical Committee on W117.2 Safety in Welding and Cutting. He is presently Vice-Chair. [ 69 ] Mr. Marshall disagrees with the opinion of Mr. McKeown and concluded the following: Mr. McKeown incorrectly alleges 5 errors regarding the work of Mr. O’Hagan on January 18/99. Based on my analysis of 117.2, as well as extensive personal experience in the trade, Mr. O’Hagan’s activities ensured the protection of Hangar C by maintaining an adequate snow cover, the presence of additional snow as a fire retardant as well as locating and maintaining fire extinguishers nearby. Mr.

O’Hagan followed safety standards by not using asbestos blankets, which are no longer recommended and are a very serious health hazard. If there was a requirement of a ‘fire watch’, it was met by having Mr. Larkin observe the cutting process and confirm that the roof was never exposed to dangerous materials. With no roof exposed and no evidence of fire there would be no reason to maintain a further fire watch. [ 70 ] While Mr. Marshall was sincere and passionate in his defence of Messrs. O’Hagan and Larkin, I cannot accept his opinion for the following reasons: 1.

In cross-examination, he acknowledged that his opinion was based upon the use of snow as a non-combustible cover. He agreed that if the posts were unprotected, then Messrs. O’Hagan and Larkin were in breach of s. 5.2.3.2 of the National Fire Prevention Code. 2. His opinion questioned the requirement of a fire watch by stating that if there was no roof exposed and no evidence of fire, there would be no reason to maintain a further fire watch. In cross-examination, he agreed that even if steps were taken to guard and protect combustible material, a fire watch had to be maintained.

He further agreed that a fire watch doesn’t depend upon evidence of fire. 3. I have found as a fact that Messrs. O’Hagan and Larkin remained at the site for 5-10 minutes after the cutting was completed. Mr. Marshall acknowledged in cross-examination that this was a breach of the CSA standard. However, in his examination-in-chief he attempted to show how Messrs. O’Hagan and Larkin had really conducted a fire watch in excess of 30 minutes, in apparent disregard of their own evidence. 4.

His opinion was critical of the proposed use of asbestos fire blankets, but he did not know that asbestos fire blankets were precisely what Mr. O’Hagan had in his van for the purpose of protecting against fire. He simply ignored the fact that other appropriate non- combustible material is required to be used as a blanket or guard. 5. With respect to the National Fire Prevention Code requiring a final inspection of the hot work area four hours after completion of the work, Mr. Marshall was not aware of its application in Alberta and did not teach his students about the requirement. 6.

He agreed that the welder must first determine the presence of combustible materials at the site and then protect it. He seemed unaware of the fact that Messrs. O’Hagan and Larkin had no idea what the roofing material was. 7. Mr. Marshall had a bizarre

interpretation of s. 10.7.2(

f) of the CSA, which required a hot work permit when cutting was to be performed in a location not designated for such purposes. In the circumstances of this case, he was of the opinion that because North 60 sent Mr. O’Hagan to cut the sign on the roof of Hangar C, s. 10.7.2(

f) was satisfied. In my view, the

section requires a permit from the property owner. [ 71 ] To be fair to Mr. Marshall, he advised the court before cross-examination that he was suffering from polymyalgia rheumatica, for which he was being treated with prednisone. He explained that stress might cause some delay in his responses. I have no idea whether his condition affected his mental functioning while under cross-examination. However, I can give little weight to his opinion. [ 72 ] On the issue of negligence, and for the reasons given, I prefer the evidence of Mr. McKeown over Mr. Wells and Mr. Marshall. [ 73 ] I find Messrs.

O’Hagan and Larkin were negligent in using an oxyacetylene torch on the southeast corner roof as follows: 1. They did not obtain a hot work permit from the owner of the building before they commenced cutting. This was a breach of CSA s. 10.7.2(f), as well as the General Hangar Rules and Regulations contained in the lease. 2. They did not inspect the southeast corner roof to determine the presence of combustible or flammable materials. 3. They did not inspect the roof to determine if there were openings in the roof surface that needed protection. 4.

They assumed that the snow was an appropriate protection and no non-combustible blankets or fire resistant shields were used to protect the roof, the horizontal wooden beam and the wooden posts or the drain. 5. Although Mr. Larkin provided a fire watch during the cutting process and for five to ten minutes after, there was no fire watch for the required 60 minutes after the cutting. 6. Mr. Larkin did not have access to fire extinguishing equipment on the roof during the time he provided a fire watch. This standard of care was not met by having portable fire extinguishers in the back of the North 60 van.

The fact that they would have to go down two sets of ladders and up again, carrying the portable fire extinguisher, would not provide an adequate standard of fire protection. 7. There was no final inspection conducted four hours after completion of the work. [ 74 ] I therefore find that Messrs. O’Hagan and Larkin were negligent in using the oxyacetylene torch to remove the base of the North 60 sign on June 18, 1999.

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e) Spoliation: [ 75 ] Spoliation is the intentional destruction of evidence which permits the drawing of a negative inference by conduct of the weakness of one’s case. There was very little jurisprudence on this concept in Canada until the judgments of Dawes v. Jajcaj (1995), 1995 CanLII 2726 (BC SC) , 15 B.C.L.R. (3d) 240 (B.C.S.C.) ; Endean v. Canadian Red Cross Society (1997), 1997 CanLII 2079 (BC SC) , 11 C.P.C. (4 th ) 368 (B.C.S.C.) and [2000] B.C.J. No. 2330 (B.C.C.A.) and Dyk v. Protec Automotive Repairs (1997), 1997 CanLII 2114 (BC SC) , 41 B.C.L.R. (3d) 197 (B.C.S.C.) . [ 76 ] Dawes v.

Jajcaj , dealt with the deliberate destruction of a motor vehicle after a defence expert concluded the plaintiff was the driver. Counsel for the plaintiff requested the preservation of the vehicle. The judge concluded that there had been no intentional, as opposed to negligent, destruction of the vehicle and did not apply the spoliation principle. [ 77 ] In Endean v. Canadian Red Cross Society , the trial judge allowed a pleading of spoliation as a tort to stand.

However, the British Columbia Court of Appeal overruled the trial judge and found that spoliation is not an independent tort but an evidentiary rule which raises a presumption as set out in paragraph 75 that may be rebutted. In that case, allegations were made that relevant documents had been destroyed. [ 78 ] In Dyk v. Protec Automotive Repairs , the plaintiff sought to introduce an expert report on the condition of the brakes of the motor vehicle involved. The defendant objected on the grounds that the tests so altered the brakes that further tests could not be conducted.

Burnyeat J. admitted the report because: While it is clear that the testing was of a destructive nature and that it was of an “intentional act” on behalf of the plaintiff by her agent, it is also clear that the testing had no element of “fraud” and was not done with intent to suppress the truth. [ 79 ] I conclude from these cases that to draw a negative inference from spoliation the following is required: i. relevant evidence has been destroyed; ii. legal proceedings were pending; iii. the destruction was an intentional act indicative of fraud or intent to suppress the truth. [ 80 ] In this case, Messrs.

O’Hagan and Larkin removed the metal base of a sign with an oxyacetylene torch. About five hours later, the building that they removed the base from burned to the ground. Messrs. O’Hagan and Larkin were present to see the building while it burned. While being questioned the next day by the RCMP, the two employees produced the sign itself to show that it bore no flame marks. They did not produce the metal saddle base of the sign, which they had placed in a dumpster. The metal saddle base was never produced. Messrs.

O’Hagan and Larkin denied the use of an oxyacetylene torch from January 18, 1999 to February 6, 2001. They first disclosed the use of the torch to an adjuster in the fall of 2000. I find that flame marks would have been left on the metal base as a result of cutting the bolts. [ 81 ] So, to the first factor, whether relevant evidence has been destroyed, there can be no doubt that the metal base was destroyed and that it was relevant. One can only speculate how the evidence would have assisted in establishing how the fire occurred. It may have indicated whether the welding cut was “clean” or not.

It is not speculative to state that the plaintiff would have proceeded to investigate the fire from the knowledge that an oxyacetylene torch was used rather than spending time to determine whether an oxyacetylene torch was used. [ 82 ] At the time of the destruction of the metal base of the sign, it cannot be categorically said that legal proceedings were pending. However, given the history of the fire that destroyed Hangar B, it would be reasonable to assume that legal proceedings would be commenced. I am satisfied that the second arm of the spoliation principle has been met.

It was only the act of spoliation itself that put pending legal proceedings in any doubt. [ 83 ] Thirdly, there is no doubt that the destruction of the metal base was an intentional act to suppress the truth. It is fair to say that Messrs. O’Hagan and Larkin did not wish the RCMP to know the truth about what happened on the roof of Hangar C that afternoon. They certainly did not wish the plaintiff to know the truth. The feeble excuse of Messrs. O’Hagan and Larkin that they lied because they wanted a complete investigation done cannot be taken seriously.

It is not sufficient to rebut the evidence of an intention to suppress the truth. [ 84 ] Although there is considerable other evidence on which to conclude that Messrs. O’Hagan and Larkin were negligent, I conclude that it is appropriate in these circumstances to draw an inference of negligence on the part of Messrs. O’Hagan and Larkin based upon spoliation and the suppression of the metal saddle base. ISSUE 2: If Patrick O’Hagan and Brian Larkin were negligent, did that negligence on a balance of probabilities cause the fire that destroyed Hangar C? (

a) The Law: [ 85 ] I have found that the plaintiffs have proved on a balance of probabilities that Messrs. O’Hagan and Larkin were negligent in their use of the oxyacetylene torch on the southeast corner roof of Hangar C on January 18, 1999. The onus of proving that the negligent

use of the oxyacetylene torch caused the fire that burned Hangar C remains with the plaintiff. [ 86 ] The plaintiffs acknowledge that they cannot establish with scientific certainty that the defendants’ use of the oxyacetylene torch caused the fire. The law, however, does not require such a rigorous scientific standard to prove causation. [ 87 ] Sopinka J. put it this way in Snell v.

Farrell , 1990 CanLII 70 (SCC) , [1990] 2 S.C.R. 311 at para. 33 : The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary addressed by the defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been addressed. [ 88 ] Sopinka J. went on to say, at paragraph 34, that: It is not essential that medical experts provide a firm opinion supporting the plaintiff’s theory of causation.

Medical experts ordinarily determine causation in terms of certainties, whereas a lesser standard is demanded by the law. [ 89 ] Perhaps the most significant and useful comment on causation was Sopinka J.’s quote from Lord Salmon in Alphacell v.

Woodward, [1972] 2 All E.R. 475 (H.L.) at 490 that causation is: … essentially a practical question of fact which can best be answered by common sense rather than abstract metaphysical theory. [ 90 ] It is also clear that there is no burden of proof on the defence in this analysis. [ 91 ] These principles have been adopted in numerous fire cases involving the use of oxyacetylene torches (see Fort St. John Aircraft Maintenance Ltd. v. Canadian Indemnity Co. , [1982] B.C.J. No. 1075 (QL) (B.C.S.C.) ; Canada (Attorney General) v.

Clorey and Georgetown Shipyards Inc. (1994), 1994 CanLII 18280 (PE SCTD) , 123 Nfld. & P.E.I.R. 91 (P.E.I.S.C.) (affirmed by (1998) , P.E.I.J. No. 50) and Alberta Wheat Pool v. Northwest Pile Driving Ltd. , [1998] B.C.J. No. 1425 (QL) (B.C.S.C.) and (2000) 2000 BCCA 505 (CanLII) , 80 B.C.L.R. (3d) 153 (B.C.C.A.) ). (

b) Theories of Causation: [ 92 ] The plaintiffs’ theory of causation is that the sparks and slag generated by Mr. O’Hagan’s oxyacetylene torch ignited a smouldering fire on the southeast corner roof of Hangar C, which ultimately engulfed the entire building.

They allege that there is a substantial body of evidence which establishes the opportunity for such ignition, thereby justifying an inference that the ignition occurred in one of three ways: 1. the sparks and slag directly ignited combustible materials on the surface of the roof, i.e. the wooden posts or other wood comprising the base of the sign; 2. the sparks and slag penetrated the roof’s surface through a crack or gap which ignited the combustible donnaconna and fir board in the roof; 3. the sparks and slag fell into the drain on the surface of the roof and ignited combustible roofing materials. [ 93 ] The defence submits that there is not a sufficient evidentiary foundation to support the plaintiff’s theory. [ 94 ] The defence theory is that the fire was either of undetermined cause or because of the snow cover it could not have been started by the use of the oxyacetylene torch on the southeast corner roof. [ 95 ] Alternatively, they submit the following causes of the fire: 1. arson; 2. the ignition of the highly flammable Fleet Canuck aircraft; 3. an electrical failure of the wiring in Hangar C as evidenced by four electrical anomalies:

a) Mr. Dean smelling smoke “something like electrical”;

b) The ringing of the doorbell;

c) The lights on the TNTA sign extinguishing before flames were seen;

d) The phone line being dead when Mr. Tait attempted to call 9-1-1 on the telephone in the fixed wing shop. [ 96 ] The defence has no burden to prove its theory but rather it adduces evidence to the contrary which, if accepted, defeats the inference of causation that the plaintiffs seek to establish. [ 97 ] I will now proceed to review the evidence on causation.

c) Surveillance Video [ 98 ] On January 18, 1999, a black and white Delco Dome camera was located on the northwest corner of the Whitehorse airport terminal building, which is located to the south of Hangar C. It was operated by a pan/tilt and zoom mechanism that enabled the camera to rotate 360 degrees while zooming into selected areas. The camera completed a tour consisting of two rotations of the area approximately every 15 minutes. The south end of Hangar C was located 330 metres from the camera and was caught in the wider

rotation. During each tour, there was an average of eight images of Hangar C. The images were recorded on a 24-hour record mode and contained a time and date stamp at the bottom of the image. The accuracy of the time was dependent upon the person maintaining the system. No evidence was brought to confirm or challenge the accuracy of the time and date stamp. However, the images confirm the correct date, and the light and darkness confirm the time of day. They also show the arrival and departure of Messrs. O’Hagan and Larkin in the early afternoon.

I am satisfied that the times recorded on the images is reasonably accurate. [ 99 ] Grant Fredericks was qualified as an expert in forensic video analysis, including photograph comparisons. Mr. Fredericks has a B.A. in Broadcast Communications and began his career as a news reporter in 1983. He became a police constable with the Vancouver Police Department in 1988. He was eventually pulled off regular duties to specialize in video analysis as an evidentiary tool. In 1998, he became the coordinator of the new forensic video unit of the Vancouver Police Department.

In March 2000, he became the forensic video solutions manager of Avid Technology. He describes himself as a forensic video analyst since 1991. He has been an instructor in forensic video technology in British Columbia and with the FBI in the United States. [ 100 ] Mr. Fredericks used an Avid Xpress Non-Linear Digital Editing System to transfer the analog video signals into digital format in a computer. He was then able to isolate and stabilize the position of images of Hangar C.

Stabilization resulted in locking Hangar C down in the centre of the image. [ 101 ] He was able to identify the area where the North 60 sign was removed, and he testified that “flashing lights” occurred in the same area, beginning approximately 3 hours, 25 minutes and 45 seconds (approximately 5:13 p.m.) after the sign was removed (approximately 1:48 p.m.) and continuing until the fire broke out, approximately 5 hours, 25 minutes and 42 seconds (approximately 7:14 p.m.) after the sign was removed. [ 102 ] He then attended at the Whitehorse Airport terminal to examine the entire time frame of original videotape from 12:59:48 to 19:33:03 hours on January 18, 1999 and the light sources.

To do this, he conducted a “reverse projection” process to overlay the current light sources in 2002 with the light sources from January 18, 1999. He used 12 targeted light sources from January 18, 1999. He was able to identify 10 of the targeted light sources but could not identify two light sources (10 and 11). Targeted light sources 10 and 11 were unknown and not measurable due to distance. Targeted light sources 10 and 11 were immediately to the left of the flash on the southeast corner roof. Mr. Fredericks omitted light source 12 as it was unknown and too far away.

It was to the immediate right of the flashes. The purpose of this exercise was to determine if the “flashing lights” could be explained by other phenomena, such as vehicle headlights from the Alaska Highway or sources that were not related to Hangar C. [ 103 ] Mr. Fredericks opined that a significant number of images, from 17:13:57 until the fire broke out at approximately 19:14:54, show flashes of light in the exact position of the base of the North 60 sign. In his opinion, the flashes of light had nothing to do with headlights or vehicles on the roadway behind Hangar C.

He testified that the flashes of light were consistent with how the black-and- white Delco Dome camera would record images to a composite videotape of changing light levels from a fire. He testified that there were hundreds of these flashes in the 2,100 images. However, he only reproduced 32 in his report. The flashes of light were not observed by any witness. That can be partially explained by the fact that the employees of TNTA were finished for the day, with the exception of Mr. Dean and Mr. Tait, who remained in the fixed wing side of the hangar. Mr.

Tait had the best opportunity to observe the flashes as he entered the southeast doors at approximately 6:30 p.m. However, he was not focused on the southeast corner roof as he entered and did not see the flashes. There were also employees in the air traffic control tower who did not see the flashes, but they also did not focus their attention on the southeast corner roof. [ 104 ] Mr. Fredericks also testified that the flashes were very subtle and were not necessarily flames. They could have been a reflection on the smoke in the area. The flashes were also random and sometimes did not occur for several minutes.

The luminescence, as well as the visibility, of the flashes varied. [ 105 ] Mr. Fredericks’ analysis shows what appears to be smoke where a flash occurs on the southeast corner roof at 19:14:54. By 19:16:24, the interior of the hangar is engulfed in fire. That indicates the rapid spread of the fire once it was visible. At 19:19:25, in Image 2082, the flames are seen in the interior, on the peak of the barrel roof and at the sign location on the southeast corner roof. The significance of the fire appearing at all three locations at the same time will be discussed below at paragraphs 115 to 117. [ 106 ] Dr.

Rudin, the defence expert, is a forensic video expert with an impressive academic background, as well as video analysis experience. He has a M.Sc. in Applied Mathematics (1976), a M.Sc. in Computer Science (1981) and a Ph.D. in Computer Science (1987). His evidence dealt with the scientific basis for the evidence of Mr. Fredericks. He testified that the black-and-white Delco Dome camera was not specifically designed as an infrared camera to record heat transfer and radiation processes.

In his report, he described it as “an ill-posed problem to infer the presence of fire from the light fluctuations” described by Mr. Fredericks. He based this statement on the fact that there was no scientific study published in a peer-reviewed scientific journal to support the inference. He also stated that the flashes referred to by Mr. Fredericks could not be located by photogrammetric measurement due to the lack of at least one metric measurement. In other words, the precise location of the flashes cannot be scientifically proven. [ 107 ] However, when Dr.

Rudin was asked specifically about whether Image 1410 at 17:13:57 showed a flash of light, he agreed that he had seen a brightness change or change in luminescence. He further agreed that the change in luminescence continued intermittently until 19:14:54 in the evening. He was of the view that the flashes did not coincide with the face of the North 60 sign. However, Mr. Fredericks was saying that the flashes coincided with the base of the sign, a difference of several feet. [ 108 ] Dr.

Rudin also agreed that the three light targets 10, 11 and 12 were constantly visible from 17:18:30 until 19:08:50 when all three light targets disappeared, while lights illuminating the TNTA sign on the top of Hangar C remained illuminated. Then at 19:13:22, there was a substantial flash when the light source appeared and then went dark again. [ 109 ] Dr. Rudin was asked about Images 2064, 2065, 2066 and 2067 taken at 19:14:54 when light sources 10, 11 and 12 were no longer visible. Dr. Rudin agreed that there was an illuminated cloud to the left of the flash.

When asked if it was smoke, he said that there was no ability to analyze it. When he was asked to use his common sense, he agreed that it was possibly smoke. He also agreed that if the flash was fire, the luminescence in the cloud above it was refraction from the fire. Refraction is where the light goes into the media

and propagates through it. [ 110 ] The tension between common sense and scientific proof in the evidence of Dr. Rudin becomes clear when he was asked about whether Image 2067 at 19:14:54 shows a fire on the southeast corner of Hangar C. Q Would you agree with me, Dr. Rudin, that that image, 2067, in all likelihood, shows a fire on the southeast roof of Hangar C? A Again, you’re asking me as an image processing expert or are you asking me as just somebody has eyes to look at? Q Well, I’m asking you as Dr. Rudin.

A And it’s important because in one capacity I have to use only the knowledge and methods that are verifiable by the science, and there are no methods that will do it. Even if it’s obvious to human eye, in this case could be obvious to human eye, still there are no methods. So I cannot testify as an expert it is fire because who knows? It could be something else. Q Surely in video analysis, Dr. Rudin, you’re not required to suspend common sense in an analysis, are you?

Indeed, when — A What is — Q — when you’re analyzing what you’re looking at in a video you must take into consideration the context in which you see the image, don’t you? A And it has to be related, not necessarily maybe to theoretical knowledge, but to some experiments, experimental knowledge. Q All right. But let’s assume you can’t do that, as you haven’t here? A And I know that there was a fire soon after that. Q Yes.

A So it’s logical to assume that this thing — in fact, one thing I could tell you just from common sense and observation, and probably could be done from the point of view analysis somehow, this behaviour at 1914:54 is very, very different from the prior behaviour. [ 111 ] It is clear that Dr. Rudin was not prepared to rely on common sense if it could not be supported by scientific fact.

[ 112 ] However, this court is not required to find scientific proof of causation, but rather can rely on an inference of causation from the evidence. [ 113 ] The Supreme Court of Canada, in R. v. Nikolovski , [1996] 35 S.C.R. 1197 , recognized the usefulness of videotape evidence. Cory J., after discussing the frailties of independent, honest and well-meaning eye witnesses, stated at paragraph 21: The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it.

Although silent, it remains a constant, unbiased witness with instant and total recall of all that is observed. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at a critical juncture. [ 114 ] The videotape was useful to other experts as well. Dean Bundy was the plaintiff’s expert in fire origin and cause, including fire spread. The area of origin of a fire is simply the place where the fire begins. The cause or point of ignition is found within the area of origin.

It is the point that must be examined to determine the fire spread. [ 115 ] Mr. Bundy examined Image 2082 from Mr. Fredericks’ report. The image was taken at 19:19:25. It shows fire on top of the hangar, fire in the interior of the hangar and fire on the southeast corner roof. [ 116 ] Mr. Bundy’s opinion was that if the fire had started at some location other than the southeast corner roof, such as the area of the Fleet Canuck located in the interior of the hangar, the fire would go up to the roof vent or out the large doors.

He testified that the southeast corner roof was the last place such a fire would go because it is lower than the peak of the roof of Hangar C. Thus, the Image 2082 confirmed his opinion that the fire origin was on the southeast corner roof and the fire spread from that location to the peak of the barrel roof. Hence, the significance of video Image 2082 showing flames at all three locations, i.e. the sign location on the southeast corner roof, the interior of Hangar C and the peak of the barrel roof.

d) Fire Witnesses Inside Hangar C [ 117 ] William Dean is an aircraft maintenance engineer. He was employed as an apprentice by TNTA on January 18, 1999. He noted nothing unusual in Hangar C that day. At around 5:00 p.m., he left the helicopter shop and began working on his Toyota Landcruiser, which was in the fixed wing shop. The fixed wing shop also had a TNTA helicopter on a dolly and a fixed wing Cessna in the Summit Air portion. [ 118 ] Mr. Dean was doing bodywork on his Toyota Landcruiser, but did not use heat or a cutting torch. [ 119 ] At 6:00 p.m., Mr.

Dean heard the motion sensor alarm for the helicopter shop begin to make a beeping sound. It was disarmed by another employee, who then left. Mr. Dean was alone in the hangar for approximately 10 minutes when Jamie Tait, the owner of Summit Air, entered the fixed wing shop in his truck. There were no other personnel in Hangar C that evening. [ 120 ] Mr. Tait is an aircraft maintenance engineer and pilot. He started his Summit Air business in 1987 and became a tenant of TNTA in the spring of 1996. He has no other business relationship with TNTA.

Summit Air rents two offices on the west side of Hangar C, half of the fixed wing shop and a small parts room on the northeast side of the fixed wing shop. [ 121 ] Mr. Tait had his supper at the Airport Chalet, which is across the Alaska Highway. Hangar C can be seen from the Airport Chalet. He left the Airport Chalet at approximately 6:30 p.m. and drove to the airport tarmac so he could enter the south doors of Hangar C and eventually enter the fixed wing shop. He had the opportunity to observe the southeast corner of Hangar C while driving down the roads to the airport tarmac.

As he drove across the tarmac to the entrance of Hangar C, he did not recall looking at the south end of the building. He did not see any smoke or flame on the southeast corner roof or in the cold side of Hangar C before entering the fixed wing shop. [ 122 ] Mr. Dean and Mr. Tait had a conversation and then each set about their tasks; Mr. Dean doing his bodywork and Mr. Tait working on his snowmobile. However, Mr. Tait made two phone calls to Atlin from the phone on the east side of the fixed wing shop. A phone bill confirmed the time at 6:44 p.m.

He then proceeded to change a bearing on the front drive shaft of his snowmobile. This involved hand tools, but no application of heat. [ 123 ] After approximately half an hour, Mr. Dean thought he smelled wood burning and then a rubber smell, which he thought might be something electrical from his Toyota. He checked the engine, but could not smell anything. [ 124 ] A few minutes later, both Mr. Tait and Mr. Dean heard a bell ringing near the telephone on the east side of the fixed wing shop. Both were puzzled by the bell, which they had never heard before. Mr. Dean went to the helicopter shop to investigate.

Everything looked all right, but he heard a noise from the cold side. He walked to the door window to look out into the cold side. He saw the Fleet Canuck on the fire, which he described as “quite a campfire”. The Fleet Canuck was completely engulfed in flames. [ 125 ] Mr. Dean ran back to the fixed wing shop to inform Mr. Tait, who had not smelled anything. Mr. Tait then looked at the Fleet Canuck through a door window. He confirmed that it was totally engulfed in flames.

There was no smoke in the fixed wing shop, but when they entered the cold side, it was completely filled with smoke, forcing them to bend over to see and breathe. They attempted to go to the Summit Air office on the west side of Hangar C, not realizing how serious the situation was. The smoke was less than five feet off the floor — so low that they realized they would not be able to get to the west side of Hangar C.

They returned to the fixed wing shop, where the lights were still on, but the ceiling was beginning to fill up with smoke. [ 126 ] The fact that the cold side of Hangar C had filled up with smoke was significant. Mr. Bundy, the plaintiffs’ fire spread expert, said that the fire was so far advanced at this point that the roof vents and the large opening at the south side of the building could not vent the smoke production.

[ 127 ] Mr. Tait attempted to use the phone on the east wall, but it was dead. He then exited the building through the helicopter shop. Bill Dean called 9-1-1 from the helicopter shop, which was logged in at 7:20 p.m. The first fire call was logged in at 7:17 p.m. from the Airport Chalet. [ 128 ] It is significant that the first call to the fire department came from the Airport Chalet. I conclude that the fire had breached the roof of Hangar C at about the time Mr. Dean and Mr. Tait were discovering the fire from the inside.

It appears that the sliding doors and insulated curtain between the fixed wing shop and the cold side prevented Mr. Dean and Mr. Tait from discovering the fire earlier. Were it not for the bell ringing on the east wall by the telephone, they might not have discovered the fire until their personal safety might have been in dang

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