STEVECO CONSTRUCTION LTD. v. STEVEN LESLIE MITCHELL, 2023 SKKB 57

Source: Court of King's Bench for Saskatchewan

Jurisdiction: Federal

Docket: QBG-PA-00053-2020

Citation: 2023 SKKB 57

Opinion

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 57 Date: 2023 02 17 Docket: QBG-PA-00053-2020 Judicial Centre: Prince Albert BETWEEN: STEVECO CONSTRUCTION LTD. and STEVEN LESLIE MITCHELL - and - SASKATCHEWAN POWER CORPORATION and THE GOVERNMENT OF SASKATCHEWAN Counsel: Jason M. Clayards for the defendant (applicant), Saskatchewan Power Corporation Peter A. Abrametz for the plaintiffs (respondents) ___________________________________________________________________________ JUDGMENT HILDEBRANDT J.

February 17, 2023 ___________________________________________________________________________ INTRODUCTION [ 1 ] The plaintiffs have issued a statement of claim alleging that on April 3, 2019, at Candle Lake, Saskatchewan, the industrial shop and residential premises owned by the plaintiffs was destroyed by fire. The plaintiffs assert that the fire started due to negligence by the defendant, Saskatchewan Power Corporation [SaskPower], when performing work on a nearby powerline the previous day.

The plaintiffs claim that the fire was caused by a surge of electricity into the splitter box. [ 2 ] SaskPower denies it was negligent, denies that there was any power surge as alleged by the plaintiffs, and notes that the splitter box and meter box are supplied by the customer. SaskPower says the fire did not occur as a result of its electrical service but as a result of a fault in the plaintiffs’ electrical wiring. SaskPower also pleads reliance on ss. 3(2.1)(

b) and 3(2.2), as well as s.

8(3) (

b) of The Power Corporation Act, RSS 1978, c P-19 [ PCA ], and the terms and conditions of service. [ 3 ] In this regard, SaskPower has brought an application pursuant to Rule 7-1(1)(

a) of The Queen’s Bench Rules , requesting that two issues regarding the claimed immunity of SaskPower be determined. In the event this court finds there is immunity, SaskPower seeks a further order, pursuant to either Rule 7-1(3)(

a) or 7-1(3)(b) , that the action be struck or summarily dismissed. [ 4 ] Rules 7-1(1)(

a) and 7-1(3)(

a) and (

b) state: 7-1(1) On application, the Court may: (

a) order a question or an issue to be heard or tried before, at or after a trial for the purpose of: (

i) disposing of all or part of a claim; (ii) substantially shortening a trial; or (iii) saving expense; . . .

(3) If the Court is satisfied that its determination of a question or issue substantially disposes of a claim or makes the trial of an issue unnecessary, it may: (

a) strike out a claim or order a pleading to be amended; (

b) give judgment on all or part of a claim and make any order it considers necessary; . . . [ 5 ] On behalf of the plaintiffs, Mr. Abrametz emphasizes that the legal questions must be addressed first before any consideration may be given by this court to potentially striking the claim. The plaintiffs, however, agree with the questions as framed in the notice of application. ISSUES [ 6 ] Initial consideration must be given to whether the use of Rule 7-1 of The Queen’s Bench Rules is appropriate in this case. Given that there is little by way of factual dispute on the evidence filed, albeit matters are certainly not agreed upon, the legal questions raised focus on statutory

interpretation within the context of the facts established. Answers to the questions posed would limit, if not eliminate, the need for a trial. Thus, for the reasons detailed below, I have concluded that this matter is suitable for determination under Rule 7-1. [ 7 ] With that finding, the issues remaining to be determined are: (

a) Is SaskPower immune from liability by reason of s. 3(2.1) (

b) of the PCA ? (

b) Is SaskPower immune from liability by reason of s. 14.1 of SaskPower’s terms and conditions? (

c) If either of the above issues is determined in the affirmative, does such fully dispose of the claim such that the plaintiffs’ claim may be struck in its entirety pursuant to Rule 7-1? [ 8 ] For the reasons discussed in the following, both questions (

a) and (

b) are answered in the affirmative. Recognizing the factual context established in the evidence and the immunity afforded to SaskPower by the legislation and the terms and conditions, there is no need for this action to proceed to trial. SaskPower is entitled to an order striking the plaintiffs’ claim in its entirety. ANALYSIS Preliminary issue: Is this matter suitable for determination under Rule 7-1? [ 9 ] As noted, before embarking on a consideration of the legal issues raised, a determination regarding the suitability of the use of Rule 7-1 of The Queen’s Bench Rules is in order.

Rule 7-1 permits the court to hear substantive applications in advance of a trial and generally involves a two-step process, as noted in Sun Country Regional Health Authority v Mamchur, 2018 SKQB 79 at para 3 , 35 CPC (8th) 296 : [3] Application of Rule 7-1 generally requires a two-step process. In the first step, once one or more of the parties applies for an order that a question or issue be heard, the court must decide if the question or issue is appropriate for determination under the Rule.

If it is, the court may accept the question as defined by the parties, or may itself define the question to be determined, and the procedure to be followed.

In the second step, the court hears the issue so defined, makes a determination of the issue and, if necessary, fashions an appropriate remedy: Venture Construction Inc. v Saskatchewan (Highways and Infrastructure ), 2015 SKQB 70 , 470 Sask R 7 ; Reed v Dobson , 2017 SKQB 273 [ Reed ] . [ 10 ] In Reed v Dobson , 2017 SKQB 273 [ Reed ] , Popescul C.J. provided guidance regarding how the court assesses whether a determination under Rule 7-1 is appropriate in the circumstances. He notes the Foundational Rules but emphasizes that fairness is not to be compromised. At paras. 20 and 22, the court noted:

[20] In deciding the first step of the two-step process, namely, whether the question or issue is appropriate for determination under this Rule, the court must perform a preliminary assessment as to whether separating an issue or issues from the main trial is just and would perform a useful purpose .

In doing so, the court should view Rule 7-1 through the lens of the Foundational Rules, and in particular Rule 1-3, which states that the purpose of the Rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost efficient way. . . . [22] In my view, Rule 7-1 is far more expansive and less restrictive than former Rule 188. Rule 7-1 does not require undisputable facts and the issue or question to be determined is not restricted to points of law.

Accordingly, the breadth of Rule 7-1 is considerably larger than former Rule 188. [Emphasis added] [ 11 ] As mentioned previously, SaskPower’s statement of defence, at para. 12, pleads reliance on ss. 3(2.1) (

b) and 3(2.2), which outline a limitation of liability: 3(2.1) Notwithstanding subsection (2), the corporation is not liable in any action: . . . (

b) for any injury, loss or damage to persons or property arising out of, or directly or indirectly resulting from, the supply or use of electrical energy or natural or manufactured gas by a customer beyond the point of delivery to the customer’s premises.

(2.2) The corporation is not liable in an action based on nuisance, or on any other tort that does not require a finding of intention or negligence, for any loss or damage arising, directly or indirectly, from: (

a) its land, buildings, machinery, plant or other works, including any of its transmission and distribution lines, apparatus, equipment or other facilities; or (

b) its operation or non-operation as a public utility. [Emphasis added] [ 12 ] In Chambers, particular emphasis was placed on s. 3(2.1) (b), with counsel noting that, on its face, this

section immunizes SaskPower from liability in the circumstances of this case. For instance, if the fire was not electrical in nature, then SaskPower is not liable. If the fire was electrical, SaskPower still remains immune from liability for any damage beyond the point of delivery. [ 13 ] Paragraph 13 of the statement of defence notes reliance on the terms and conditions of service to which compliance by the customer is required, in accordance with s. 8(3) (

b) of the PCA .

Section 14.1 of the terms and conditions is entitled “Limitation of Liability” and ss. 14.1(a), (b), and (

c) state: 14.1 Limitation of Liability (

a) Notwithstanding anything contained in these Terms and Conditions or in any agreement between SaskPower and a Customer or any other person, SaskPower or its affiliates, or any of their directors, officers, agents, contractors, assigns or employees shall not be liable under any circumstances whatsoever for any damages , injuries, losses , expenses, liabilities, fees (including legal fees), or costs whatsoever or howsoever caused, suffered or incurred by any Customer or any other Person on premises owned, leased or operated by such Customer or arising out of, or in any way connected with, the provision by SaskPower of Electrical Service or any other SaskPower Service or any failure, including any failure to meet an in-service date, defect, fluctuation, reduction, disconnection, suspension, curtailment or interruption in the provision of such services, whether arising in contract, tort , negligence , strict liability, indemnity or any other basis, with the sole exception of direct physical damages suffered by a Customer and occurring as a direct result of the gross negligence or willful misconduct of SaskPower or its employees acting within the scope of their employment. (b) “Direct physical damages” shall not include any indirect, consequential, incidental, special, exemplary or punitive damages or damages, however characterized, for loss of use, loss of profits, loss of revenue, loss of production, loss of earnings, loss of contract, cost of capital, cost of purchased or replacement capacity or energy, loss of any use of any Facilities or Equipment or property owned, leased or operated by any Person. (

a) SaskPower’s liability is limited to only direct physical damages occurring as a direct result of gross negligence or willful misconduct on the part of SaskPower. Conduct of this nature has not been alleged by the plaintiffs in this case, as confirmed by a review of the statement of claim. [ 15 ] Further, the provisions of s. 14.1(

c) of the terms and conditions echo the wording of s. 3(2.1) (

b) of the PCA , whereby SaskPower’s liability does not extend to damage caused by or arising from electricity beyond the point of delivery. [ 16 ] Notably, the terms and conditions are not only included by operation of the provisions in s. 8(3) (

b) of the PCA but are referenced in Quote No. 50626 dated July 10, 2008, which the plaintiff, Mr. Mitchell, signed on behalf of Steveco Construction

Ltd. [Steveco]. That document states, “This agreement, and any services provided hereunder, is governed by SaskPower’s Terms and Conditions of Service”. More significantly, the parties also agreed, in Quote No. 50626, that the “splitter box will be the point of delivery”. [ 17 ] As recognized in Reed , Rule 7-1 is more expansive than its predecessor, former Rule 188, and no agreed statement of facts is required. In this case, as will be discussed in the review of the affidavit evidence, the facts may be regarded as virtually uncontroverted.

Further, as mentioned, the parties had, at the time SaskPower’s services were contracted, agreed on the application of the terms and conditions and had actually defined the point of delivery. Accordingly, the issues on this application pertain to statutory

interpretation, making the circumstances ideally suited for determination under Rule 7-1. [ 18 ] Addressing the legal questions raised, which counsel for the plaintiffs has agreed are appropriately framed, would, at the very least, significantly limit any issues to be considered at trial. With a finding of the location of the point of delivery, the litigation could be entirely concluded. Thus, addressing these questions clearly serves a useful purpose. Therefore, the request by SaskPower for a ruling under Rule 7-1 is granted.

Evidentiary Background [ 19 ] To address the legal issues raised, there must first be an understanding of the factual background and evidence filed. On behalf of SaskPower, three affidavits were provided. The first is that of Nidal Dabghi [Mr. Dabghi], the Director, Operation & Maintenance North/Distribution Services of SaskPower. The second, sworn by Dwayne Mintzler [Mr. Mintzler], by Exhibit “C”, attaches a report obtained by the plaintiffs prepared by Maskell Plenzik & Partners Engineering Inc. [MP&P] on August 16, 2019. The third affidavit, sworn by Chris Hewitt, P. Eng. [Mr.

Hewitt], Principal, Senior Electrical Engineer of SMS Engineering Ltd., notes that he was asked by SaskPower to provide a review of the MP&P report. Mr. Hewitt’s affidavit appends his own report and avers, at para. 5: “I am aware of the duties imposed by Rule 5-37 of the Rules and swear that I have prepared my report in conformity with those duties”. [ 20 ] In response, the plaintiff, Steven Leslie Mitchell [Mr. Mitchell], has filed an affidavit along with one sworn by Eric Lindgren [Mr. Lindgren], an electrical engineer from Colville, Washington, USA.

As will be discussed further, there are concerns with these affidavits in relation to the ability of the affiants to express the opinions stated therein. However, these affidavits also reveal that considerable evidence must be regarded undisputed. [ 21 ] On behalf of SaskPower, counsel submitted that the picture of what happened to cause the fire “is not crystal clear”. However, Mr. Clayards argues that “what did not happen is clear”, directly countering the allegations by the plaintiffs, including their suggestion that the surge caused the fire. Indeed, the evidence supports the surge being a result of the fire.

In this vein, Mr. Dabghi avers, at para. 12 of his affidavit : 12. … It is my understanding the fire actually occurred on April 4, 2019 and the surge reported was caused by the fire melting the insulators on electrical conductors causing SaskPower protection to see the fault and operate properly. [ 22 ] The April 4, 2019 date for the fire is now confirmed by Mr. Mitchell at para. 11 of his affidavit, where he stated that he “arrived at the scene of the fire early in the morning of April 4, 2019”. Previously, the plaintiffs’ statement of claim incorrectly indicated April 3, 2019 as the date of the fire.

Further, Mr. Mitchell’s information to the office of the fire commissioner regarding this date was in error (see Exhibit “D” to Mr. Dabghi’s affidavit). As well, another erroneous date, April 13, 2019, had been given to MP&P (see Exhibit “C” to Mr. Mintzler’s affidavit). Beyond demonstrating a lack of precision on the part of the plaintiffs, the errors in the dates are inconsequential. [ 23 ] Mr. Dabghi further states, at paras. 13 and 14 of his affidavit, that prior to April 4, 2019 only two services were “provided to the power line that would affect the power received” at the plaintiffs’ property.

These were on November 3, 2018 and July 15, 2015, and certainly not “in the days proceeding the fire, as alleged”. In the months surrounding April 4, 2019 there were “only two power abnormalities”, one on November 3, 2018 and one on June 6, 2019. Mr. Dabghi also confirms that on or around April 4, 2019 the neighbouring property experienced no reported power surge or other damage, despite being served from the same transformer bank, adding that, “In the event there was a power surge from the transformer bank, then both properties would have been affected by the power surge”. [ 24 ] Earlier in his affidavit, Mr.

Dabghi details that the plaintiff, Steveco, requested connection of a new power service to the property in question in July of 2008. Steveco was to supply the splitter box. Quote No. 50626 in relation to the requested work stated that the agreement and any services provided were governed by SaskPower’s terms and conditions of service. The customer’s required compliance with such terms and conditions is in accordance with s. 8(3) (

b) of the PCA , which states: 8(3) Notwithstanding any other Act but subject to subsection (5), every person who accepts, uses or otherwise is the recipient of a service provided by the corporation shall: (

a) pay any charges and rates; and (

b) comply with any terms and conditions; established and revised by the corporation. [ 25 ] Quote No. 50626, accepted by Steveco July 22, 2008, is Exhibit “A” to Mr. Dabghi’s affidavit. In the second paragraph, under the heading “Design”, the point of delivery is indicated: SaskPower has designed a 120/208-volt, three-phase, four-wire service to a 400-amp main. Service will be provided underground to a customer-supplied, exterior splitter box, capable of accommodating 500 mcm aluminum conductor. This splitter box will be the point of delivery for this service . Enclosed is a copy of our map/drawing showing the proposed routing/location of SaskPower facilities required for your service.

[Emphasis added] [26] Clearly, the parties agreed in July of 2008 what constituted the point of delivery. This agreement was made incontemplation of a specific design. As such, the plaintiffs are hard-pressed to now pursue an alternative delivery point based onconvenient speculation in the post-fire period. [27] Mr.

Mintzler, in his affidavit, at paras. 2 and 3, explained that, although the plaintiffs had requested "a 120/208-volt, three phase, four-wire service to a 400-amp main", the “power service actually provided to the Property was 200-amps because thecustomer had not installed the required correct meter socket”. Mr. Mintzler appended two visual aids to his affidavit, demonstrating thetypical splitter box configuration “similar to what would have been installed” at the plaintiffs’ property. Mr.

Mintzler further explained,at para. 5: 5. … The point of delivery for the services provided by SaskPower is inside the splitter box, where the SaskPower cables meet theblocks. The customer’s power cables connect to the blocks and run the power to the meter box. All power cables and installations beyondwhere the SaskPower cables meet the blocks are the sole property and responsibility of the customer. [28] Like Mr. Dabghi, Mr. Mintzler confirmed that a power surge on the SaskPower line could not have been thecause of the fire, outlining the reasons at paras. 6-8: 6.

From the splitter box, the customer’s power cables enter the exterior meter box. The exterior meter box is the customer’s property andresponsibility. The cables from the exterior meter box would enter the property and connect to a main breaker or a metering transformercabinet, depending on the customer’s configuration. Because this installation was only good for 200-amps, the metering transformercabinet would not be required. 7. Once the installation at the Plaintiffs’ Property was completed by SaskPower on August 18, 2008, the power ran from a SaskPowerline through a transformer bank on the power pole.

From the transformer bank, the power split into two cable lines, one that ran to thePlaintiff’s [sic] splitter box and another that ran to the neighboring property located at #27 Industrial Drive, Candle Lake, Saskatchewan. 8. If a power surge originated from the SaskPower line, both the neighboring property and the Plaintiff’s [sic] Property would have beenaffected by the surge because the power at both properties originated from the same SaskPower line and passed through the sametransformer bank. [29] Mr. Mitchell, in his affidavit, acknowledged that he provided the splitter box and the meter box.

He stated,however, at paras. 4 and 5, that SaskPower “provided the power meter” and that this meter “measured the amount of electricityconsumed for billing purposes”. From this, plaintiffs’ counsel argues that the meter, located after the splitter box and before thedistribution panel, is the “true point of delivery”. Further, Mr. Abrametz speculates that the origin of the fire could be the meter. [30] There are, however, difficulties with the plaintiffs’ position. Firstly, as noted above, there is a contractualunderstanding between the parties, in place since 2008, that the point of delivery is the splitter box.

Secondly, although the meter isowned by SaskPower and is, as Mr. Clayards described it, “downstream” from the splitter box, even Mr. Mitchell appears toacknowledge that the splitter box marks the transition where the property of one party becomes the property of the other. Mr. Mitchellavers, at para. 3 of his affidavit, “I agree that [the splitter box] contained the input, live, feeder, power wires from SaskPower and that thepurpose of the splitter box is to provide electricity to my building”. Mr. Mitchell thus confirms that the splitter box is where his propertybegins. [31] A third concern pertains to Mr.

Mitchell’s attempt at proffering an expert opinion. Generally, the personal beliefor opinion of a non-expert witness is presumptively inadmissible. There are, however, limited exceptions to this.

Both the Supreme Courtof Canada, in R v Graat, (SCC), [1982] 2 SCR 819 [Graat], and the Saskatchewan Court of Appeal, in R v Montague-Mitchell, 2018 SKCA 78 at para 38, 368 CCC (3d) 322 [Montague-Mitchell], have recognized that opinions offered by lay witnessesmay be admissible where the witnesses are “merely giving a compendious statement of facts that are too subtle and too complicated to benarrated separately and distinctly.” [32] Mr. Mitchell, at para. 2 of his affidavit, notes that he is not an electrician but considers himself qualified toprovide commentary on, for example, the expert opinion of Mr. Hewitt.

While some of Mr. Mitchell’s evidence is merely personalobservation, several of his comments, particularly at paras. 8 and 9 of his affidavit, constitute opinions on matters for which he is notqualified. They also appear as a self-serving attempt to circumvent the previous contractual agreement regarding the point of delivery. Assuch, the opinions do not satisfy the test for admissibility outlined in Graat and Montague-Mitchell. Mr. Mitchell stated: 8. THAT in my opinion, there was nothing within the wall between my distribution panel and the SaskPower meter that wouldcause a fire.

The wires between my distribution panel and the SaskPower meter were copper, meaning they were of a higher quality thanthe aluminum wires between the SaskPower transformer on the power pole and the splitter box. Aluminum wires are less expensive andthat is why they are used. It is highly unlikely that anything inside the wall could cause a fire because the wall was an enclosedspace with copper wires that were insulated so it is hard to imagine them being disturbed by any movement or moisture in thewall from any possible cause. 9.

THAT the interior wall of my industrial shop where the distribution panel was attached was clad in aluminum panelling which wasfire resistant. Furthermore, I know of nothing near the distribution panel that could have possibly been the origin of the fire. [Emphasis added] [33] Even if these comments by Mr. Mitchell were considered as admissible opinion evidence, they are insufficientto dispel the contractual position that the splitter box is the point of delivery. Accordingly, for purposes of considering the legal

questions posed, I accept that the point of delivery is the splitter box. [34] The plaintiffs’ statement of claim alleges that the fire was “found to be electrical in nature”. This may have beenderived from the Basic Fire Incident Report, marked as Exhibit “D” to Mr. Dabghi’s affidavit. Notably, the report writer, emergencyservices officer Dave Needham [Mr. Needham], gleaned information from Mr. Mitchell, with the date and the assertion of line work onthe day prior to the fire being inaccurate. The suspicion that the fire was electrical in nature is noted, but Mr.

Needham clarifies that suchcannot be said conclusively as he “is not an electrical engineer”. [35] The MP&P report, obtained by the plaintiffs in August of 2019 and appended by SaskPower as Exhibit “C” tothe affidavit of Mr. Mintzler and as Exhibit “A” to the affidavit of Mr. Hewitt concludes: The physical evidence examined indicates a fire within the space acting on the power utility meter and then the power service splitterbox. There is no evidence of an electrical failure within the artifacts examined. [36] In light of this conclusion by MP&P, Mr.

Mintzler avers, at para. 9 of his affidavit, “If the fire occurred withinthe power utility meter, also described as the meter box, or in the space acting on the power utility meter, then it occurred beyond thepoint of delivery of services by SaskPower at the Plaintiff’s [sic] Property”. [37] It seems the plaintiffs are not relying on the MP&P report, which they had originally commissioned.Nonetheless, Mr. Hewitt was engaged by SaskPower to review the MP&P report. Mr.

Hewitt has provided his curriculum vitae and hasconfirmed his awareness of, and compliance with, the duties on experts imposed by Rule 5-37 of The Queen’s Bench Rules. Mr. Hewitthas also included a list of the documents provided to him for review. [38] At page 6 of Mr. Hewitt’s report, he states, “Based upon my review of the information provided to me, as notedon page 1 of this letter, it is not possible to confirm that the case of the fire was electrical in nature.” Later on that same page, Mr. Hewittstates, “A surge was categorically not the cause of the fire”. [39] Mr.

Hewitt also reviewed the photographs taken by MP&P and provided commentary. As counsel forSaskPower noted, Mr. Hewitt’s report is not a rebuttal of the MP&P report but is confirmatory. He rules out the meter and meter socketas potential causes of the fire. Indeed, a number of Mr. Hewitt’s comments, at pages 7-9 of his report, are significant. Just for example,he notes that, “The utility meter appears unremarkable indicating the meter did not fail”. In relation to photo 4.19, Mr. Hewitt states,“This indicates a fire moving from the inside of the building to the outside, or along the exterior wall”.

These statements point to the firehaving been beyond the point of delivery and within the purview of the plaintiffs. [40] This is further confirmed at page 10 of Mr. Hewitt’s report, where he discusses potential causes of the fire. Mr.Hewitt states: All potential causes of the failure of the conductors have been eliminated. The arcing noted was most likely caused by secondary heat,resulting from a fire which started outside of the electrical distribution. [Emphasis added] [41] The conclusion

section of Mr. Hewitt’s report addresses questions put to him by counsel for SaskPower. Mr.Hewitt’s comments, which are largely in agreement with the conclusions of MP&P, point to a cause of the fire “unrelated to theelectrical equipment” as “there is no evidence of an electrical failure resulting in fire, within the artifacts they examined”. Rather, theorigin of the fire could have been either inside the building or in an outside location close to the electrical equipment.

Damage to theelectrical equipment “was as a result of secondary effect heating from a fire due to another cause”. [42] The final affidavit filed is that of Mr. Lindgren, who states he is an electrical engineer and control systemsengineer. The safeguards regarding the provision of expert evidence found in Rule 5-37 of The Queen’s Bench Rules and the SupremeCourt of Canada decisions in R v Mohan, (SCC), [1994] 2 SCR 9, and White Burgess Langille Inman v Abbott andHaliburton Co., 2015 SCC 23, [2015] 2 SCR 182, are not present in relation to Mr. Lindgren’s evidence. What materials he reviewed isunknown.

The bases for his conclusions are uncertain. As such, even if considered admissible, little weight could be attributed to Mr.Lindgren’s opinions.

In Casbohm v Winacott Spring Western Star Trucks, 2019 SKQB 44 at paras 98-99, [2019] 9 WWR 714, the courtnoted: [98] The weight given to an expert’s evidence depends on a number of factors, including the expert’s training and experience, theexpert’s ability to provide a rationale for the opinion, the expert’s familiarity with the facts of the case, and the expert’s objectivity orindependence: R v Pompeo, 2014 BCCA 317, 313 CCC (3d) 539. [99] The weight afforded to an expert’s opinion is also affected by the degree to which the factual foundation for that opinion issupported by the evidence.

In order for expert opinion evidence to be given any weight, it must be supported by a proper factualfoundation: … [43] However, there is a case to be made for the inadmissibility of the entirety of Mr. Lindgren’s affidavit. In PSInternational Canada Corp. v Palimar Farms Inc., 2016 SKQB 232, aff’d 2017 SKCA 78, [2018] 2 WWR 90, Kalmakoff J. (as he thenwas) considered Rule 5-39 in the context of an application for

summary judgment. He stated, at paras. 30 and 36: [30] To begin, neither the notice of expert witness nor Mr. Lemieux’s affidavit contain a statement identifying the area of expertise inwhich he is being tendered to offer an opinion. Rule 5-39(2) is clear that such a statement is required. . . .

[36] The judge’s function as gatekeeper is of particular importance. Part of the gatekeeper function includes carefully identifying and delineating the scope of expertise within which the witness will be permitted to give opinion evidence. … [ 44 ] Rule 5-39 states: 5-39(1) An expert’s report must: (

a) contain, at a minimum, the following information or any modification agreed on by the parties: (

i) the expert’s name, address and qualifications; (ii) the information and assumptions on which the expert’s opinion is based; and (iii) a

summary of the expert’s opinion; and (

b) be served as required by rule 5-40.

(2) An expert’s report must be accompanied by a statement of the party tendering the expert, or that party’s lawyer, in Form 5-39 identifying the area of expertise in which the expert is tendered to offer an opinion. [ 45 ] Mr. Lindgren’s area of expertise is not identified in the affidavit and there is certainly no indication of fire investigation experience. As such, Mr. Lindgren’s affidavit does not provide evidence on which this court can rely. See Hoffart v Carteri, 2020 SKCA 50 at paras 56-57 , [2020] 7 WWR 34 , which requires me to exercise my gatekeeper function. [ 46 ] Mr.

Lindgren proposes that “the most likely hypothesis” for the fire’s origin is “arcing in the meter socket” caused by either “a bridge between the input feeder line and the neutral line” or “an input of voltage into the meter socket” higher than the rating of the meter socket. This, however, flies in the face of the MP&P report previously obtained by the plaintiffs as well as Mr. Hewitt’s report. In the MP&P report, photo 4.23 shows the interior of the meter socket. Mr.

Hewitt comments, at page 8 of his report: The interior of the meter socket appears unremarkable, indicating there was no internal failure, or failure of the meter socket jaws/meter spade terminals or conductor terminals. Had the meter, the meter terminals or conductor terminals failed, then electrical activity (arcing) inside the meter socket would be expected, due to internal heat. As a result, arcing would have been noted. No such activity was noted and is confirmed by the MP&P author in 5.0 Observations & Conclusions. [ 47 ] Whether inadmissible or admitted but given no weight, Mr.

Lindgren’s affidavit provides no viable alternative to the cause of the fire than that provided by MP&P and Mr. Hewitt, whose expertise and experience are clear and who have provided the foundation for their opinions. [ 48 ] The decision in Reed , as noted earlier, confirms that, for this court to consider an application under Rule 7-1, undisputable facts are not required. Given the evidence filed, and recognizing that little, if any, weight can be given to the opinions of either Mr. Mitchell or Mr.

Lindgren—if the former could even be considered admissible—it is uncontroverted that the fire originated beyond the electrical distribution system, although its exact cause remains an enigma. As both counsel emphasized, I am not being called upon to determine the precise origin of the fire. However, as counsel for SaskPower noted, I am able to accept what the evidence shows did not happen, namely a fire resulting from electrical failure. [ 49 ] With this background, consideration will now be given to the two legal questions raised. (

a) Is SaskPower immune from liability by reason of s. 3(2.1) (

b) of the PCA ? [ 50 ] For ease of reference, this

section of the PCA is repeated here: 3(2.1) Notwithstanding subsection (2), the corporation is not liable in any action: . . . (

interpretation: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that best ensures the attainment of its objects. [ 52 ] In Saskatchewan, SaskPower is the principal supplier of electricity. SaskPower operates under the mandate and authority of the PCA . The purposes and powers of SaskPower are set out in s. 8(1) and include, in ss. 8(1)(a), “the generation, transmission, distribution, purchase, sale and supply of electrical energy” and, from ss. 8(1)(h.1), “the promotion of, participation in or undertaking and carrying out of programs designed to encourage the prudent, judicious and economic use and conservation of electrical energy, steam and heat”.

These provisions, along with an overall review of the PCA , demonstrate the purpose and mission of SaskPower as being delivery of power in a safe and sustainable manner. [ 53 ] SaskPower is a public utility and Crown corporation and, as such, has limitations on the liability to which it is subject. This is recognized in s. 22 of The Crown Corporations Act, 1993, SS 1993, c C-50.101 : 22 Every Crown corporation and every designated subsidiary Crown corporation may:

(

a) sue with respect to any tort; and (

b) be sued with respect to liabilities in tort to the extent to which the Crown is subject pursuant to The Proceedings Against the Crown Act, 2019 , subject to any limitations on liability that are provided in the Act incorporating or continuing the Crown corporation or the designated subsidiary Crown corporation. [Emphasis added] [ 54 ] Limitations on liability are thus appropriately part of the scheme of the PCA and the context in which SaskPower operates in Saskatchewan. Reviewing the grammatical and ordinary sense of the words in s. 3(2.1) (

b) of the PCA , SaskPower is not liable in any action (which includes this action by the plaintiffs) for any loss or damage to property (injury to persons not having occurred in this case) arising out of, or directly or indirectly resulting from, the supply or use of electrical energy by a customer (the plaintiffs) beyond the point of delivery to the customer’s (the plaintiffs’) premises.

Therefore, in the context of s. 3(2.1) (b), in order for the plaintiffs to succeed in their action against SaskPower, they must not only establish, on the balance of probabilities, negligence on the part of SaskPower, including, inter alia, a breach of duty, but must also demonstrate that the resulting loss or damage arose, directly or indirectly, from the supply or use of energy prior to the point of delivery.

In the factual context of this case, discussed above, the plaintiffs would also be required to demonstrate that the point of delivery is not the splitter box. [ 55 ] A failure on the part of the plaintiffs to meet each aspect of the onus noted above would result in an absolute bar to the claim in light of the immunity provisions found in s. 3(2.1) (

b) of the PCA . The expert evidence, as discussed earlier, confirms a surge was not the cause of the fire and can provide no confirmation that the fire was electrical in nature. Indeed, as Mr. Hewitt notes at page 12 of his report, “the cause of the fire was unrelated to the electrical equipment . . . damage to the electrical equipment was as a result of secondary effect heating from a fire due to another cause”.

Thus, the plaintiffs would have a significant challenge in establishing that the property damage arose out of, or resulted from, the supply or use of electrical energy. [ 56 ] An even higher hurdle for the plaintiffs pertains to the issue of the point of delivery. The term is not defined in the PCA . However, again, in relation to this specific property and design of the electrical service, the parties had agreed that the splitter box was the point of delivery, as evidenced in the signed acceptance of the terms of Quote No. 50626, marked as Exhibit “A” to Mr.

Dabghi’s affidavit. [ 57 ] A reading of s. 3(2.1)(b), in its grammatical and ordinary sense and consistent with the overall scheme of the PCA , yields the conclusion that it was intended and operates as an immunization of SaskPower from liability in certain circumstances. Those circumstances are found in this case. If the fire’s origin was not electrical in nature, which the expert evidence suggests, then SaskPower cannot be held liable.

However, even if the fire was electrical in nature, SaskPower is immune from liability for any damage beyond the point of delivery to the customer. [ 58 ] Accordingly, in light of the wording of s. 3(2.1)(

b) of the PCA and the factual context established on the evidence filed, the first question on this application is answered in the affirmative. The immunity provisions of this

section operate as an absolute bar to the plaintiffs’ claim . [ 59 ] Although this conclusion would be sufficient to fully determine the application, two legal questions were posed. I turn now to a consideration of the provisions in the terms and conditions and SaskPower’s claimed immunity thereunder. (

b) Is SaskPower immune from liability by reason of s. 14.1 of SaskPower’s terms and conditions? [ 60 ] The provisions of s. 14.1 of the terms and conditions have been set out above, but are repeated here for convenience: 14.1 Limitation of Liability (

c) Notwithstanding the above, SaskPower shall not be liable for any injury, loss or damage to Persons or property arising out of, or directly or indirectly resulting from, the supply or use of Electrical Energy by a Customer beyond the Point of Delivery . SaskPower does not guarantee or promise uninterrupted service. [Emphasis added] [ 61 ] By s. 14.1(a), a very expansive limitation of liability is claimed by SaskPower. In his submissions, Mr. Abrametz stated that the plaintiffs have “made it clear that gross negligence and willful conduct are not on the table”. As such, s. 14.1(

a) would, on its face, bar liability on the part of SaskPower. On behalf of the plaintiffs, however, Mr. Abrametz submits that the terms and

conditions constitute a “red herring” and not true statutory immunity. He describes the terms and conditions as “just a document” referenced in s. 8(3) of the PCA , which has been quoted above at para. 24. By s. 8(3), the plaintiffs’ compliance with the terms and conditions is required. [ 62 ] While there may be some credence to Mr. Abrametz’s position that the terms and conditions do not provide statutory immunity, they were, in this case, expressly incorporated in the contract between the plaintiffs and SaskPower, which is Quote No. 50626, which was signed and accepted by the plaintiffs July 22, 2008. In the conditions

section of the contract, it was noted, inter alia, that the “Customer-supplied splitter box [was] to be installed prior to hook up” and that “This agreement, and any services provided hereunder, is governed by SaskPower’s Terms and Conditions of Service”. [ 63 ] At para. 4 of Mr. Dabghi’s affidavit, he states: 4. Quote No. 50626 also stated that the agreement and any services provided pursuant to the quotation were governed by SaskPower’s Terms and Conditions of Service. SaskPower has established Terms and Conditions of Service for all recipients of services in accordance with paragraph 8(3) (

b) of The Power Corporation Act . Attached hereto and marked as Exhibit “B” is a true copy of the Terms and Conditions of Service effective December 13, 2012, which was in effect when the fire at the Plaintiffs’ property occurred on April 3, 2019. [ 64 ] Although the terms and conditions of December 13, 2012 may not have been identical to those in place when the contract reflected in Quote No. 50626 was signed in 2008, s. 8(3) of the PCA refers to terms and conditions “established and revised” by SaskPower. [ 65 ] One of the terms, namely s. 14.1(c), echoes the provisions of s. 3(2.1) (

b) of the PCA , considered earlier. Thus, in addition to the statutory immunity, SaskPower’s liability is precluded by the contract. The provisions of s. 14.1(c), which have been incorporated into the contract between the parties, state: 14.1(

c) Notwithstanding the above, SaskPower shall not be liable for any injury, loss or damage to Persons or property arising out of, or directly or indirectly resulting from, the supply or use of Electrical Energy by a Customer beyond the Point of Delivery . SaskPower does not guarantee or promise uninterrupted service. [Emphasis added] [ 66 ] In the context of s. 3(2.1) (b), the term “point of delivery” is not defined in the legislation but, as previously discussed, is clearly defined in the contract. Quote No. 50626 clearly states, “This splitter box will be the point of delivery for this service”. [ 67 ] In considering s. 14.1(

c) of the terms and conditions, we are not dealing with provisions in two pieces of legislation which may appear to be in conflict, such as was addressed in Platana v City of Saskatoon and Szabo, 2004 SKQB 291 , 267 Sask R 44 , aff’d 2006 SKCA 10 , [2006] 6 WWR 396 . There, Allbright J. noted, at paras. 16 and 22 that “the conflict is avoided by applying the specific provision to the exclusion of the more general one”. However, if one consi ders that s. 8(3) of the PCA may simply make general reference to terms and conditions, the more specific provision is s. 3(2.1)(b).

As previously discussed, that more specific provision operates as a bar to liability on the part of SaskPower in the circumstances of this case. [ 68 ] The more general provision, s. 8(3), references the terms and conditions. The definition of “point of delivery” in the terms and conditions may, at first blush, appear to run somewhat counter to the definition agreed upon in Quote No. 50626. In the terms and conditions, the point of delivery is said to mean “the location where SaskPower’s Facilities and Equipment end and the Customer’s Facilities and Equipment begin.” The

definitions of facilities and equipment state: “Facilities” means physical facilities including, without limitation, transmission and distribution lines, powerlines, wires, transformers, Meters, Meter reading devices and other electrical apparatus. “Equipment” means, including but not limited to, all electrical apparatus and equipment and other property utilized in or necessary for the supply and delivery of Electrical Energy by SaskPower to the Customer. [ 69 ] The term “meters” is included in the definition of “facilities”, albeit it would not be encompassed in “equipment” as it monitors consumption rather than being involved in the supply and delivery of the electrical energy.

Indeed, Mr. Mitchell recognizes this when he says, at para. 5 of his affidavit, that the meter merely “measured the amount of electricity consumed for billing purposes”. [ 70 ] However, as the evidence demonstrates, although SaskPower owns the meter in this case, the remaining equipment beyond the midpoint of the splitter box belongs to the plaintiffs. As such, that is where SaskPower submits its equipment ends and the customers begins, in keeping with the definition of “point of delivery” in the terms and conditions. [ 71 ] Mr.

Mitchell also states, at para. 3 of his affidavit, that he agreed that “the splitter box was on the outside of [his] building”. He added, “I agree that it contained the input, live, feeder, power wires from SaskPower and that the purpose of the splitter box is to provide electricity to my building”. Mr. Mitchell thus confirms that the splitter box is where his property begins, which is consistent with the definition of point of delivery in the terms and conditions of service, marked as Exhibit “B” to Mr. Dabghi’s affidavit. [ 72 ] Exhibit “B” to Mr.

Mintzler’s affidavit illustrates the point of delivery in a photo, with him explaining, at para. 5 of his affidavit, that inside the splitter box is where the SaskPower cables meet the blocks. Exhibit “C” to Mr. Dabghi’s affidavit shows two designs “identical or mirrored to what was installed at the Plaintiffs’ property", with the installation notes confirming that the point of delivery is “SaskPower termination in the customer supplied splitter”.

[ 73 ] As such, the location of the meter appears to be irrelevant, albeit the meter is included in the definition of “facilities”. Given that the location of the point of delivery was also specifically agreed between the parties as being the splitter box, such a particular and certain term in the main body of the contract, and not merely incorporated by the provisions of s. 8(3) of the PCA , would govern. Reading the specific provision in Quote No. 50626 together with the

definitions in the terms and conditions yields the conclusion, in the factual matrix of this case, that liability on the part of SaskPower is blocked by s. 14.1(

c) of the terms and conditions. [ 74 ] If, however, I am wrong in that conclusion, the limitation of liability found in s. 14.1(

a) of the terms and conditions would still be operative to shield SaskPower. The protection provisions of s. 14.1(

a) are not limited to damage beyond the point of delivery. That

section provides that SaskPower is only liable for gross negligence or willful misconduct, neither of which are asserted in this case. [ 75 ] Therefore, given the wording of s. 14.1 of the terms and conditions, and considering the facts established in evidence, the second question on this application is also answered in the affirmative. The provisions of s. 14.1 operate to bar the plaintiffs’ claim. (

c) If either of the above issues is determined in the affirmative, does such fully dispose of the claim such that the plaintiffs’ claim may be struck in its entirety pursuant to Rule 7-1? [ 76 ] In Weisbeck v Regina (City), 2018 SKQB 60 , 18 CPC (8th) 376 , the two -step application process under Rule 7-1 was collapsed into a single hearing.

At para. 12, the court noted: [12] . . . t he two steps can be combined into one in appropriate cases, for instance where the first step is readily dealt with, and the parties have proceeded on the basis of a single chambers appearance in which they are ready to argue the Rule 7 - 1 application on its merits. In such circumstances, formulaic adherence to a process that requires two separate appearances and two separate hearings would serve no purpose. … [ 77 ] This approach was applied in Osecap v Federation of Sovereign Indigenous Nations, 2020 SKQB 15 , in relation to the

interpretation of contract provisions. [ 78 ] In the case at hand, although Mr. Abrametz emphasized that the legal questions must be addressed first, he was clearly prepared to argue the application on its merits, having filed both affidavit evidence and a brief of law. As well, he agreed that the legal questions had been framed appropriately.

Thus, particularly in view of my findings in response to the two questions posed, a separate additional hearing would serve no beneficial purpose and would only increase costs to the parties. [ 79 ] Before proceeding to the concluding issues, however, some comment is warranted regarding a side issue that arose during Chambers and in relation to which both counsel were given leave to file additional written commentary.

It had been mentioned that the plaintiffs had not notified the fire inspector of the fire as required by The Electrical Inspection Act, 1993 , SS 1993, c E-6.3 [ EIA ], s. 27 of which states: 27 Where an accident involving an electrical installation or electrical equipment occurs and results in the death or injury of a person or in a fire or an explosion, the contractor or the contractor’s agent or the owner of the electrical equipment or the owner’s agent shall immediately notify the chief inspector, stating the precise location of the accident, its general nature and results. [ 80 ] On behalf of the plaintiffs, Mr.

Abrametz submitted that SaskPower had an equal obligation to report, given that SaskPower owned electrical equipment and the Crown, by s. 4, is bound by the EIA . Mr. Clayards, on the other hand, noted that the application of the EIA is circumscribed by s. 3(1) , which references “work of electrical installation”. This is a term defined in s. 2 of the EIA . From a reading of both ss. 2 and 3 , the EIA only applies to electrical equipment beyond “the point where electrical power or energy is delivered”.

This is akin to the language in the terms and conditions considered in this application, whereby the EIA would only apply to equipment beyond the point of delivery. This would be equipment within the purview of the plaintiffs and not SaskPower. [ 81 ] Thus, while not necessary to the determination of this application, SaskPower’s position that the plaintiffs had a duty to report, and SaskPower did not, is substantiated by the provisions of the EIA and the facts demonstrated in the evidence filed. [ 82 ] In relation to the first question, s. 3(2.1) (

b) of the PCA operates to bar the plaintiffs’ claim unless they can meet the elements of the onus identified earlier. In particular, the plaintiffs must demonstrate that the point of delivery was not the splitter box and that the fire originated from the supply of electrical energy at a point prior to the splitter box. Given that, even if considered admissible, virtually no weight could be given to either the opinion proffered by Mr. Lindgren or those provided by Mr.

Mitchell, it is clear that the plaintiffs could not meet the onus upon them. [ 83 ] The evidence demonstrates that the fire’s origin was not electrical in nature. In such circumstances, SaskPower cannot be held liable. As noted earlier, however, even if the fire was electrical in nature, SaskPower is immune from liability for any damage beyond the point of delivery to the customer. The point of delivery was agreed upon by the parties in 2008 as the splitter box. All of the elements of s. 3(2.1) (

b) have been satisfied and the statutory immunity afforded to SaskPower by this provision operates in this case, which fully disposes of the plaintiffs’ claim. [ 84 ] Regarding s. 14.1 of the terms and conditions, although these may be considered as contractual provisions incorporated into the agreement between the parties reflected in Quote No. 50626, such inclusion is required by the PCA . The parties agreed they would be operative. [ 85 ] As counsel for the plaintiffs aptly confirmed, neither gross negligence nor willful misconduct on the part of SaskPower has been alleged. As such, s. 14.1(

a) operates as a complete bar to the action and fully disposes of the plaintiffs’ claim.

[ 86 ] For the reasons discussed earlier, I am also of the view that s. 14.1(

c) of the terms and conditions also prevents a claim by the plaintiffs against SaskPower in this case. However, again, if I am incorrect in that conclusion, either s. 14.1(

a) of the terms and conditions or s. 3(2.1) (

b) of the PCA justify the striking of the plaintiffs’ claim at this juncture. COSTS [ 87 ] SaskPower has been entirely successful in its application and is entitled to costs. By its draft order, SaskPower has requested that there be only one set of costs payable by the plaintiffs on a joint and several basis, which is appropriate in the circumstances. ORDER [ 88 ] In light of these conclusions, I make the following order: (

i) Pursuant to Rule 7-1 of The Queen’s Bench Rules, the following questions have been heard and determined prior to trial, with answers in the affirmative to both questions: a. Is SaskPower immune from liability by reason of s. 3(2.1) (

b) of the PCA ? b. Is SaskPower immune from liability by reason of s. 14.1 of SaskPower’s terms and conditions? (ii) As an affirmative answer to either question fully disposes of the plaintiffs’ claim, and affirmative answers have been determined for both questions, the plaintiffs’ claim is struck in its entirety. (iii) One set of the costs of this action are payable to the defendant, SaskPower, by the plaintiffs on a joint and several basis. J. B.R. HILDEBRANDT

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