Docket: CACV2049 Darrell Bellefeuille Appellant (Defendant) - v. –, 2012 SKCA 60

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 60 Date: 20120604 Between: Docket: CACV2049 Darrell Bellefeuille Appellant (Defendant) - and – Alan Aubrey Hansen, Michelle Rae Hansen and Robert Hansen Respondents (Plaintiffs) Coram: Cameron, Vancise and Richards JJ.A. Counsel: James G. Garden for the Appellant Murray W. Douglas for the Respondents

Appeal: From: 2011 SKQB 8 Heard: December 7, 2011 Disposition: Dismissed Written Reasons: June 4, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Vancise Richards J.A. I. Introduction [1] The appellant, Darrell Bellefeuille, owns a construction business. In December of 2004, he refinished the hardwood floors in ahouse occupied by the respondents Alan and Michelle Hansen. [2] Mr. Bellefeuille used a product called Varathane. Shortly after it had been applied, the house caught fire and burned. This led to acontest between insurers.

In the end, the Hansens sued Mr. Bellefeuille. They alleged he had been negligent with respect to how he hadused the Varathane. [3] The trial judge characterized the trial as a “battle of experts.” He ultimately concluded Mr. Bellefeuille had been negligent becausehe had applied the Varathane without providing for any ventilation. This, according to the findings of the trial judge, had led vapors toaccumulate at the floor level in the kitchen and to the ignition of those vapors by electrical arcing which had occurred in the normaloperation of the refrigerator. [4] Mr. Bellefeuille appeals from this result.

He argues that the trial judge made several errors in determining whether the applicablestandard of care had been met. These errors are said to include: (

a) failing to take proper account of the difference between “flammable”products and “combustible” products like Varathane; (

b) relying improperly on Schmitz v. Stoveld (1976), (ON SC),64 D.L.R. (3d) 615 (Ont. Co. Ct.), a case with some factual parallels to this one; and (

c) failing to give proper effect to the evidence ofGregory Dozorec, a floor installer and refinisher. Mr. Bellefeuille also contends the trial judge erred by admitting expert evidenceconcerning the degradation of the flash point of Varathane. II. The Basic Facts [5] Mr. Bellefeuille lives in Shaunavon. He is the sole proprietor of B & B Construction. Mr. Bellefeuille had refinished three or fourhardwood floors prior to doing the work which led to the present proceedings. [6] Mr. Bellefeuille was contacted by Alan and Michelle Hansen in 2004. Some of the finish had come off their floors and they wantedthem redone.

Mr. Bellefeuille agreed to do the work while the Hansens were away from their farm on holidays in early December of2004. [7] Mr. Bellefeuille arrived at the Hansens’ home on December 3, 2004. He began by sanding the floors. He applied the first coat ofoil-based Varathane on December 5 and a second coat on December 7. He did not unplug the refrigerator at any time. He left a windowopen in the living room and one open in the kitchen/dining room while he was working. He closed the living room window as he appliedVarathane in the area near it.

He applied Varathane to the floor in the kitchen/dining room area and then closed the kitchen windowbefore leaving the house.

[ 8 ] Mr. Bellefeuille returned to apply a third coat of Varathane on December 8, 2004. The finish on a large portion of the floor had blistered. He made inquiries of the manufacturer through the local Co-op where he had purchased the Varathane. Mr. Bellefeuille was told that the Varathane likely had not dried completely because it was not warm enough. He was advised to turn up the heat in the house. He also decided to use fans to hasten the drying process. [ 9 ] Mr. Bellefeuille returned to the Hansens’ home that same day, December 8, and re-sanded the floor.

At about 8:30 p.m., he applied a new coat of Varathane. He left the house at about 10:00 p.m. He used the same ventilation practices as he had employed previously, i.e. he left the living room window open until he was applying Varathane in that area and kept the kitchen/dining room window open until he left the house. He did not turn on either the kitchen or bathroom exhaust fans. [ 10 ] As planned, Mr. Bellefeuille deployed portable fans to promote drying. He placed one fan in the hallway and one in an area adjacent to a door of the kitchen/dining room. Both fans were oscillating. Mr.

Bellefeuille also adjusted the temperature setting of the thermostat up to between 23 and 25 degrees Celsius. [ 11 ] Alan Hansen’s father, Robert Hansen, was doing chores while his son’s family was on vacation. On the morning of December 9, 2004, he saw smoke coming from around a doorframe on the house. Mr. Hansen called 9-1-1, picked up a fire extinguisher and went to the back door of the house. He opened the door, took one step inside and emptied the extinguisher. He did not see any flames, only thick black smoke. Mr. Hansen then stepped back outside and closed the door.

There was an explosion which blew out the window in the door. The house was soon engulfed in flames and, ultimately, it was largely destroyed by fire. III. The Trial [ 12 ] The key witnesses at the trial were experts. The first was Mazen Habash. He explained the potential sources of ignition found in a refrigerator of the type which had been in the Hansens’ home. These were said to include the start relay for the compressor, the overload protector on the compressor, and the motor for the compressor fan. When such equipment turns on and off, it creates “parting arcs”, electrical discharges across gaps of air.

These arcs are very localized but very hot – several thousands of degrees Fahrenheit. [ 13 ] The Hansens’ main witness was Richard Kooren. He is a vice-president of Origin and Cause Investigations and was qualified as an expert with respect to the origin and cause of fires and “the ignitability of materials and the properties of those materials.” Mr. Kooren had visited the site of the fire on December 11, 2004 and had conducted an investigation at that time. [ 14 ] Mr.

Kooren’s opinion was that vapors from the Varathane had accumulated in the nook where the refrigerator was located, that they had been ignited by a parting arc from the refrigerator and then flashed back to the wet Varathane on the floor, igniting it. He said the fire could have remained in a “ventilation controlled burn state” for several hours. [ 15 ] In the course of his evidence, Mr. Kooren also explained that one of the main ingredients of Varathane is mineral spirits and that “minerals spirits” is a generic name for Stoddard solvent. Mr. Kooren then referred to an information sheet on Stoddard solvent.

He was of the opinion that, as Varathane dries and the Stoddard solvent evaporates, the flash points of the vapors from the individual chemicals comprising Stoddard solvent would range from 21 degrees Celsius to 60 degrees Celsius. [ 16 ] Mr. Bellefeuille called Peter Senez of Seneca Fire Consulting Ltd. He was qualified to give opinion evidence with respect to “fire causation and/or origin and the application of building and fire Codes.” His firm had been retained in July of 2007 to review Mr. Kooren’s report. [ 17 ] Mr. Senez questioned Mr. Kooren’s analysis. In his opinion, (

a) the properties of Varathane would not have led to the emission of flammable vapors in sufficient concentration to create a flammable environment, (

b) if the Varathane had produced enough vapor to create a combustible atmosphere, it would have done so within two hours of its application, (

c) there had been no explosion as would have been expected in a situation where vapors had accumulated and then ignited, and (

d) the fire occurred well after the anticipated curing time for Varathane and, accordingly, a sudden ignition of the entire floor would not be expected. In Mr. Senez’s view, it was not possible to determine the cause of the fire. He suggested several potential triggers including baseboard heaters, light fixtures and the refrigerator. [ 18 ] After analyzing the experts’ evidence in detail, the trial judge decided to place significant weight on Mr. Kooren’s written report and testimony. He did this because Mr.

Kooren had actually examined the fire site and because, in the trial judge’s assessment, his evidence offered the only logical explanation of the origin of the fire. The judge said he preferred and accepted Mr. Kooren’s evidence

over that of Mr. Senez. [19] In the end, the trial judge decided the fire had started at floor level. The relevant evidence included the deep charring (as opposedto scorching) of the floor and the burn patterns on the cupboards. He also acknowledged there was no evidence confirming when the firehad started but, in this regard, he referred to Mr. Kooren’s testimony about the fire having been in a “ventilation controlled” burningstage for some time.

Based on all of this, the trial judge concluded there was a high degree of probability that the fire was caused fromVarathane vapors being ignited by a parting arc created by the normal operation of the refrigerator. [20] The trial judge concluded Mr. Bellefeuille had been negligent because he had used Varathane before, was aware it gave offpotentially flammable vapors, and understood it was to be used in a well-ventilated area. Despite all of this, Mr. Bellefeuille had closedthe windows of the Hansens’ house and thereby eliminated any possibility of ventilation. IV. Analysis [21] Mr.

Bellefeuille does not contest the trial judge’s decision concerning the cause of the fire. Rather, his argument is focused onnegligence and, in particular, it is focused on the trial judge’s findings with respect to whether the applicable standard of care had beenbreached. Mr. Bellefeuille also raises a concern about the admissibility of Mr. Kooren’s evidence concerning the degradation of theflash point for Varathane. [22] I propose to first consider Mr. Bellefeuille’s arguments concerning the standard of care and to then deal with his submissions aboutMr. Kooren’s evidence. A.

The Standard of Care [23] Before turning to the particulars of Mr. Bellefeuille’s submissions concerning the standard of care, it is perhaps important to notethat, on an appeal of this kind, our Court may not simply re-make the decision of the trial judge. Rather, the trial judge’s decision ispresumptively valid. It is Mr. Bellefeuille’s burden to demonstrate that it involves a reviewable error. [24] Significantly, there is no disagreement between Mr. Bellefeuille and the Hansens about the standard of care itself. They take noissue with the trial judge’s reference to Ryan v.

Victoria (City), (SCC), [1999] 1 S.C.R. 201 at p. 222 and the idea thatMr. Bellefeuille was required to meet the standard of “an ordinary, reasonable and prudent person in the circumstances”. The “person”in issue here, obviously, is the ordinary, reasonable and prudent floor finisher, i.e. a person who possesses reasonable skill andexperience in that calling. See: Hill v. Hamilton-Wentworth, 2007 SCC 41, [2007] 3 S.C.R. 129 at para. 67. Accordingly, the realdispute in this appeal is about whether, on the facts, Mr.

Bellefeuille satisfied the standard of care. [25] All of this brings into play the deferential standard of review described by the Supreme Court of Canada in Housen v. Nikolaisen,2002 SCC 33, [2002] 2 S.C.R. 235. It was explained as follows in para. 36 of that case: To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a questionof mixed fact and law. Matters of mixed fact and law lie along a spectrum.

Where, for instance, an error with respect to a finding ofnegligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similarerror in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must becautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate thelegal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact".

Where thelegal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. Thegeneral rule, as stated in Jaegli Enterprises, supra [ (SCC), [1981] 2 S.C.R. 2], is that, where the issue on appeal involvesthe trial judge's

interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. [emphasis added] [26] With these points made, it is now appropriate to turn to the detail of Mr. Bellefeuille’s submissions concerning the trial judge’salleged error with respect to the standard of care. As noted, he says the trial judge: (

a) did not give effect to the differences betweencombustible and flammable materials; (

b) wrongly relied on the decision in Schmitz v. Stoveld; and (

c) did not take proper account of theevidence of Gregory Dozorec. I will consider each of these points in turn. 1. Combustible Liquids vs. Flammable Liquids

[ 27 ] Mr. Bellefeuille’s principal argument is that, in determining whether the applicable standard of care had been satisfied, the trial judge failed to properly consider the differences between “combustible” liquids such as Varathane and more easily ignited “flammable” liquids. He says his conduct was reasonable when seen in the light of the separate natures of these two sorts of products. [ 28 ] This aspect of Mr. Bellefeuille’s submission is rooted in a somewhat complicated regulatory scheme. The foundation of the scheme is the Hazardous Products Act , R.S.C. 1985, c. H-3. It imposes a duty on the suppliers of controlled products to both (

a) prepare a material safety data sheet (“MSDS”) disclosing prescribed kinds of information about the product and (

b) apply a label to the product displaying required information and hazard symbols (See: s. 13). [ 29 ] The Controlled Product Regulations , SOR/88-66 have been promulgated pursuant to the Hazardous Products Act . They flesh out the MSDS and labeling requirements imposed by the Act . They also draw a distinction between “flammable” liquids (those with a flash point of less than 37.8 degrees Celsius (100 degrees Fahrenheit)) and “combustible” liquids (those with a flash point of 37.8 degrees Celsius or more but less than 93.3 degrees Celsius (200 degrees Fahrenheit)) (See: ss. 37, 38).

A “flash point” is described by the National Fire Code of Canada as being the minimum temperature at which liquid within a container gives off a vapor in sufficient concentration to form an ignitable mixture with air near the surface of the liquid. [ 30 ] At trial, Mr.

Bellefeuille highlighted the difference between the MSDS for Varathane and the MSDS for a “flammable” liquid by putting into evidence the MSDS for a flammable floor refinishing product called “WATCO Clear Lacquer.” The parts of those sheets relevant to fire hazards posed by the two products are set out below (I have underlined their most relevant features): VARATHANE WATCO

Section 3 – Hazards Identification *** Emergency Overview ***: Harmful if inhaled. May affect the brain or nervous system causing dizziness, headache or nausea. Harmful if swallowed. Causes eye irritation. Vapors irritating to eyes and respiratory tract. Combustible liquid and vapor . . . .

Section 3 – Hazards Identification *** Emergency Overview ***: High vapor concentrations can irritate eyes, nose and respiratory passages. Causes nose and throat irritation. Harmful if inhaled. May affect the brain or nervous system causing dizziness, headache or nausea. Harmful if swallowed. Causes eye irritation. Flammable liquid and vapor . . . .

Section 5 – Fire Fighting Measures Flash Point: 106 F LOWER EXPLOSIVE LIMIT: 0.6 % (Setaflash) UPPER EXPLOSIVE LIMIT: 10 % Extinguishing Media: Dry Chemical, Foam, Water Fog Unusual Fire and Explosion Hazards : Keep containers tightly closed . . . .

Section 5 – Fire Fighting Measures Flash Point: 53 F (Setaflash) Extinguishing Media: Film Forming Foam, Carbon Dioxide, Dry Chemical, Water Fog Unusual Fire And Explosion Hazards : Vapors may form explosive mixtures with air. Vapors can travel to a source of ignition and flash back. Isolate from heat, electrical equipment, sparks and open flame . . . .

Section 7 – Handling And Storage Handling: Wash hands before eating. Wash thoroughly after handling. Avoid breathing vapor or mist. Avoid contact with eyes. Follow all MSDS/label precautions even after container is emptied because it may retain product residues. Storage : Keep container closed when not in use. Keep away from heat, sparks, flame and sources of ignition. Keep containers tightly closed, isolate from heat, electrical equipment, sparks and open flame .

Section 7 – Handling And Storage Handling : Wash thoroughly after handling. Follow all MSDS/label precautions even after container is emptied because it may retain product residues. Use with adequate ventilation . Wash hands before eating. Storage : Keep containers tightly closed. Isolate from heat, electrical equipment, sparks and open flame. Keep away from heat, sparks, flame and sources of ignition. Keep container closed when not in use .

Section 10 – Stability And Reactivity Conditions To Avoid: Avoid all possible sources of ignition . . . .

Section 10 – Stability And Reactivity Conditions to Avoid: Avoid all possible sources of ignition . . . .

Section 15 – Regulatory Information CERCLA – SARA Hazard Category This product has been reviewed according to the EPA “Hazard Categories” promulgated under Sections 311 and 312 of the Superfund Amendment and Reauthorization Act of 1986 (SARA Title III) and is considered, under applicable

definitions, to meet the following categories: IMMEDIATE HEALTH HAZARD, CHRONIC HEALTH HAZARD, FIRE HAZARD

Section 15 – Regulator Information CERCLA – SARA Hazard Category This product has been reviewed according to the EPA “Hazard Categories” promulgated under Sections 311 and 312 of the Superfund Amendment and Reauthorization Act of 1986 (SARA Title III) and is considered, under applicable

definitions, to meet the following categories: IMMEDIATE HEALTH HAZARD, CHRONIC HEALTH HAZARD, FIRE HAZARD [ 31 ] Mr. Bellefeuille also points to the difference between the labeling requirements for a flammable liquid and those for a combustible liquid like Varathane. In this regard, he refers to the Consumer Chemicals and Containers Regulations, 2001 , SOR/2001-269 which have also been put in place under the Hazardous Products Act .

They prescribe the content of the label for a flammable liquid as follows: TABLE TO SUBSECTION 54(2) REQUIRED INFORMATION — SUB-CATEGORY “FLAMMABLE” Column 1 Column 2 Item Type of information English information 1. Hazard symbol 2. Signal word DANGER 3. Primary hazard statement FLAMMABLE 4. Specific hazard statement CONTENTS MAY CATCH FIRE or, when only the vapour or fume poses a hazard: FUMES MAY CATCH FIRE 5. Negative instructions Do not smoke. 6. Positive instructions Use only in a well-ventilated area.

Keep away from flames, such as a pilot light, and any object that sparks, such as an electric motor. [emphasis added] [ 32 ] On the other hand, the content of the label for a combustible liquid (like Varathane) is set out in these terms: TABLE TO SUBSECTION 54(4) REQUIRED INFORMATION — SUB-CATEGORY “COMBUSTIBLE”

Column 1 Column 2 Item Type of information English information 1. Positive instructions Keep away from flames or sparks. [ 33 ] At the end of the day, the key points Mr. Bellefeuille draws from these materials can be summarized as follows: (

a) Section 5 of the MSDS (Fire Fighting Measures) for WATCO says “Unusual Fire and Explosion Hazards: Vapors may form explosives with air. Vapors can travel to a source of ignition and flash back. Isolate from heat, electrical equipment, sparks and open flame”. The equivalent part of the Varathane MSDS says only “Unusual Fire and Explosion Hazards: Keep containers tightly closed”. (

b) Section 7 of the MSDS (Handling and Storage) for WATCO contains the words “Handling: ... Use with Adequate Ventilation”. On the other hand, s. 7 of the Varathane MSDS makes no reference to ventilation. (

c) The label mandated for a container used for a flammable liquid contains the words “Positive instructions - Use only in a well- ventilated area. Keep away from flames, such as a pilot light, and any object that sparks, such as an electric motor”. The label of a combustible liquid like Varathane mandate must contain the words “Keep away from flames or sparks”. [ 34 ] The upshot of all of this is said to be that it was reasonable for Mr.

Bellefuille to choose not to ventilate the Hansens’ home after applying Varathane. [ 35 ] It is somewhat difficult to assess the significance of the differences between the Varathane MSDS and the WATCO MSDS. Little evidence was called to explain the MSDS system or to shed light on the meaning of the variations in wording in the Varathane and WATCO sheets or their implications for either a supplier or a user of the products. Perhaps as a result of this, the significance of the MSDS materials and the labeling requirements for Varathane is not as clear as Mr. Bellefeuille suggests.

Five points must be noted in this regard. [ 36 ] First, the only two witnesses who gave evidence relating to trade practices concerning the use of products like Varathane were Mr. Bellefeuille and Mr. Dozorec. Neither was asked if they had read the MSDS for Varathane or for a flammable floor finishing product like WATCO. On the whole of their evidence, it seems clear that they were not familiar with those documents and did not rely on them when deciding how to apply Varathane. This does not mean that the MSDS for Varathane is irrelevant to the standard of care issue.

However, at the same time, it obviously is not determinative of it either. The MSDS material is but one factor to be considered in determining whether Mr. Bellefeuille met the standard of care that would be expected of an ordinary, reasonable and prudent floor finisher. [ 37 ] Second, it is important to recognize that the precise contents of an MSDS are not prepared by a single regulator or a central testing agency. Rather, that content is apparently generated by individual suppliers of controlled products. This is done with reference to a set of general requirements found in

Schedule I of the Controlled Products Regulations . As a result, and on the basis of the record developed at trial in this case, it would seem that some caution must be exercised when comparing the differences in the MSDS wording of one product versus another. [ 38 ] Third, the MSDS for Varathane, in s. 3 (Hazards Identification), says, among other things, “Combustible liquid and vapor ”. This would suggest that Varathane vapor can pose a fire hazard and can be ignited.

For my part, I would have thought that this would suggest to reasonable people that Varathane should not be used in enclosed areas where there are ignition sources. [ 39 ] Fourth, the ultimate significance of the words “Combustible liquid and vapor” as found in s. 3 of the Varathane MSDS is obscured by the fact that s. 11(4) of the Controlled Products Regulations says “Information disclosed under one heading of a material safety sheet is not required to be repeated under any other heading”.

This provision was not referred to or explained at the trial but, on its face, it means that it is not necessary to repeat the words “Combustible liquid and vapor” under, for example, s. 10 (Stability and Reactivity) of the MSDS where one finds the words “Avoid all possible sources of ignition”. This is of potentially considerable significance because, if the language of s. 3 had been reproduced in s. 10, a risk of exposing Varathane fumes to ignition sources would seem to be self-evident. In other words, s. 10 of the Varathane MSDS would have said “Combustible liquid and fumes.

Avoid all possible sources of ignition”. [ 40 ] Fifth and finally, s. 10 of the MSDS (Stability and Reactivity) contains these words: “Conditions to Avoid: Avoid all possible sources of ignition.” This seems to suggest the wisdom of keeping not just liquid Varathane, but Varathane fumes as well, away from

sources of ignition. After all, it is presumably difficult to draw a clear line between the liquid and the fumes. Once a container ofVarathane is opened, it will immediately and necessarily begin to emit fumes. [41] The significance of the differences between the wording found in the MSDS materials for Varathane and WATCO and thedifferences in the labeling of the containers for the two products is further undermined by the significant fact that the label on theVarathane used by Mr. Bellefeuille specifically says “Use only in a well ventilated area”.

The relevant part of the Varathane label readsas follows: FUMES MAY BE HARMFUL. Do not swallow or breathe fumes. Do not get in eyes. Wear an organic vapour respirator and safetyglasses. Use only in a well ventilated area. Keep away from flames or sparks. Keep out of reach of children. [emphasis added] (For reasons which are not clear, the equivalent portion of the WATCO label was not put in evidence.) [42] Counsel for Mr.

Bellefeuille attempts to explain the words “Use only in a well ventilated area” by suggesting they should be read asrelating exclusively to the toxic qualities of Varathane and as being aimed at preventing injury to people who might be exposed toVarathane fumes. There is some merit in this line of argument.

Section 3 of the Varathane MSDS does say, among other things,“Harmful if inhaled . . . High Vapor concentrations are irritating to the eyes, nose, throat and lungs. . . Harmful if inhaled”. Further, s. 8(Exposure Controls/Personal Protection) does say “Engineering Controls: Prevent build-up of vapors by opening all doors and windowsto achieve cross-ventilation.

Use process enclosures, local exhaust ventilation, or other engineering controls to control airborne levelsbelow recommended exposure limits”. (The WATCO MSDS contains parallel language). [43] However, at the same time, it is not at all certain that the “Use only in a well-ventilated area” feature of the Varathane label relatesonly to potential health hazards caused by the inhalation of Varathane fumes or would be read by a reasonable floor finisher in that way. After all, immediately after the words “Use only in a well-ventilated area” one finds the phrase “Keep away from flames or sparks”.

Theeffect of this wording is simply not clear. As a result, it seems entirely possible that “Use only in a well-ventilated area” reflectsconcerns relating to both health and fire hazards. No evidence from the supplier of Varathane or from someone familiar with thepreparation of MSDS materials was called at trial to clarify the meaning of the label. [44] In the end, the evidence concerning the MSDS material and labels for Varathane and WATCO is not so straightforward orcompelling as to warrant overturning the trial judge’s treatment of the standard of care issue.

There may have been more than one wayto assess this aspect of the evidence, but, given all of the ambiguities in play, the trial judge’s approach did not involve a palpable andoverriding error. 2. Schmitz et al. v. Stoveld et al. [45] Mr. Bellefeuille’s next argument with respect to the standard of care is that the trial judge erred in his treatment of Schmitz et al. v.Stoveld et al., supra. He says the trial judge failed to appreciate the difference between Varathane and the floor finishing productinvolved in that case. [46] The impugned reference to Schmitz v. Stoveld is found in the “Conclusion”

section of the trial judge’s reasons for decision. Afterquoting some authorities speaking generally to the concept of standard of care in negligence, the trial judge wrote as follows: 104 The case of Schmitz et al. v. Stoveld et al.; MacNaughton-Brooks Ltd., Third Party (1976), (ON SC), 11 O.R.(2d) 17 (Ont. County Crt., J.D. of York), is strikingly similar to the present issues. 105 In Schmitz the defendants were hired to refinish the floors. When they finished they closed all the doors and windows which hadbeen opened to allow the vapours to escape.

Later a fire or explosion occurred causing extensive damage to the plaintiffs' house. 106 The label on that product used contained the following warning at p.22: Danger -- Flammable Do not smoke. Adequate ventilation to the outside must be provided. All spark-producing devices and open flames (furnaces, all pilotlights, spark-producing switches etc.) must be eliminated in or near working area. ... 107 In finding the defendant liable for the loss the court held at p. 23: In the case of dangerous things, or dangerous operations, the law recognizes that a special responsibility exists to take care.

The duty offirst defendants to the plaintiffs, whether in tort or implied contract, was to exercise a degree of reasonable care and skill, in the

circumstances, having regard to the dangers and risk involved. The more dangerous the act the greater is the care that must be taken inperforming it: North Western Utilities, Ltd. v. London Guarantee & Accident Co., Ltd., et al., (UK JCPC), [1936] A.C.108 at pp. 126-7]. It is a high degree of probability and a compelled inference, that the fire or explosion was caused, after the windows and doors wereclosed, by ignition of fumes or vapour which had collected and concentrated. The vapours which had collected and concentrated, andstill remained, could not escape.

I find the vapours were ignited by the open flame of a pilot light or pilot lights. The inflammable varnishon the floor was also a factor in the explosion or rapid spread of fire. Causality does not have to be established with absolute certainty but only by a preponderance of probabilities: Lévesque et al. v. Comeauet al., (SCC), [1970] S.C.R. 1010 at p. 1012, 16 D.L.R. (3d) 425 at p. 432, 5 N.B.R. (2d) 15 ; Grand Trunk R. Co. v.Griffith et al. (1911), (SCC), 45 S.C.R. 380 at p. 387, 13 C.R.C. 302. [Emphasis Added] [47] It is not entirely apparent why the trial judge referred to Schmitz v. Stoveld.

He arguably might have considered it to be factually onall fours with the case before him and as therefore offering a compelling reason for finding Mr. Bellefeuille liable in negligence. Indeed,at para. 104, he says that Schmitz v. Stoveld is “strikingly similar to the present issues”. However, at the same time, it is difficult toaccept that the trial judge failed to appreciate the differences in the label found on the Varathane used by Mr. Bellefeuille and the labelon the can containing the product used in Schmitz v. Stoveld.

He quoted the Varathane label in full at para. 9 of his reasons and referredto it again at para. 10 when he noted Mr. Bellefeuille’s evidence to the effect that he had read and followed the instructions on theVarathane label. Thus, by deliberately setting out the warning label from the Schmitz v. Stoveld product at para. 106 of his reasons, thetrial judge might well have been signalling that he was alert to the fact there was, to this extent at any rate, a difference betweenVarathane and the product at issue in Schmitz v.

Stoveld. [48] It is also relevant, in my view, that the trial judge did not simply default to Schmitz v. Stoveld and treat it as controlling the result ofthis case. Rather, after referring to it, he turned to the particulars of the evidence before him and used that evidence to determineMr. Bellefeuille’s liability. He wrote as follows: 108 The defendant had used this product before. He was well aware it gave off vapours from the solvent and that the vapours werepotentially flammable. He also knew that the product was to only be used in well ventilated areas.

Despite this he closed the windows ineach room as he was finishing so he would not have to walk on the wet varathane to close them later. He failed to turn on the bathroomand stove fans in an effort to channel some of the vapours outside. 109 Immediately upon finishing the application he sealed the house by closing all windows and doors, thereby eliminating theventilation required to prevent the build up of flammable vapours. None of the vapours could escape to the outside of the house and nooutside air could enter the house. 110 In so doing he breached the duty of care owed to the plaintiffs.

Therefore I find the proximate and effective cause of the fire wasdue to the negligence of the defendant in failing to provide proper ventilation so the vapour from the varathane would not be trappedinside the house as a source of fuel to be ignited by an arc or spark. In light of this line of analysis, it is not at all clear that Schmitz v. Stoveld played any role in the bottom line decision-making of the trialjudge. [49] All things considered, I am not persuaded that the judge’s reference to Schmitz v. Stoveld should be read as being so ill-founded thatit warrants overturning his decision.

This case and Schmitz v. Stoveld are in fact “strikingly similar” in the sense that both involve fireswhich broke out after a floor refinishing product had been applied in a house where the doors and windows had been closed. Althoughthe point is not entirely free of doubt, I think the trial judge’s comments are best seen as going no further than that, i.e. as noting thefactual parallels between this case and Schmitz v. Stoveld.

They should not be read as somehow indicating that the trial judge completelyoverlooked the particulars of the characteristics of Varathane as compared to the product which had been used in Schmitz v. Stoveld. 3. Mr. Dozorec’s Evidence [50] Mr. Bellefeuille’s third concern about the trial judge’s standard of care analysis relates to his treatment of the evidence of GregoryDozorec, a professional floor finisher. He underlines Mr. Dozorec’s testimony to the effect that he, Mr.

Dozorec, used ventilation whenusing oil-based products because of the toxicity of the fumes rather than because of any concern about fire hazard. Against thatbackground, Mr. Bellefeuille takes exception to the trial judge’s comment, at para. 20 of his decision, that Mr. Dozorec “is also awarethat vapor fumes can be ignited if in sufficient concentration”. Overall Mr. Bellefeuille says that, based on Mr. Dozorec’s practices, heacted reasonably in not ventilating the Hansens’ home. [51] Mr. Dozorec operates a floor refinishing business.

He had used Varathane about a dozen times over the six years preceding thetrial. He testified that “if possible” it was his practice to leave a window open to provide ventilation. He said this was done “just to ventsome of the solvent fumes to make it more comfortable to work in there and make it more comfortable for the customer as well”. He alsosuggested that there had been at least one time when he had not left windows open when refinishing the floors of a house. He apparentlydid this either because the windows had been painted shut or because of concerns about break-ins or other criminal activity.

[ 52 ] On cross-examination, Mr. Dozorec accepted that, when refinishing floors in a house configured like the Hansens’ home, he would, if possible, leave a window open in a bedroom. He said his practice was not to unplug refrigerators and he indicated that his safety concerns when using oil-based floor finishes related to the health consequences of inhaling fumes. He also testified that he had no experience with the fumes of oil-based finishing products catching fire. But, that said, Mr.

Dozorec also acknowledged the possibility of fumes igniting in the right conditions and accepted that this is why there are warning labels on containers. He said this: Q . . . If the vapours collect to the right concentration, there is a potential for them to be ignited; do you agree with that? A An extreme concentration it may be possible. Q Okay. And you’re not familiar with the concentration levels that are required for ignition, either on a Bonakemi product line or in the varathane line? A No, I don’t know what the exact content is. . . .

Q But in any event, you’re aware that the build up of fumes has a possibility of igniting if there’s a spark or flame ? A It’s possible . Q And you know that the fumes would come off an oil based finish either with Bonakemi or varathane are flammable? That’s why they’ve got the warnings on the labels; correct ? A Yes . [emphasis added] [ 53 ] In light of this testimony, I am not persuaded by Mr. Bellefeuille’s argument on this point. Mr. Dozorec’s evidence did not operate to unambiguously back stop Mr. Bellefeuille’s position. To be fair, Mr.

Dozorec did describe his motivation for providing ventilation as relating to the toxic nature of Varathane vapors rather than to any worry about fire hazard. However, as noted above, he also acknowledged that a build up of fumes has a possibility of igniting if there is a flame or spark. He also agreed that the fumes given off by a finish like Varathane are flammable and accepted that is why there are warnings on container labels. Thus, in the end, I see no palpable and overriding reviewable error in the trial judge’s treatment of Mr. Dozorec’s evidence. [ 54 ] Further, and in any event, Mr.

Dozorec’s practices were not a complete answer to the standard of care question. His approach to the use of Varathane was clearly relevant to the issue before the trial judge but the trial judge’s bottom line challenge was to identify what an ordinary, reasonable and prudent floor finisher would have done when working at the Hansens’ house. Mr. Dozorec’s approach was not wholly determinative in that regard. B. Mr. Kooren’s Evidence on Flash Points [ 55 ] The final issue raised by Mr. Bellefeuille relates to testimony given by Mr.

Kooren, the Hansens’ expert, concerning what might be called the degradation of the flash point of Varathane. [ 56 ] In order to deal with this argument, it is necessary to review some background. That background starts with Mr. Kooren’s written report. In setting out his opinion as to the cause of the fire, he wrote as follows: Based upon the evidence observed and the information provided it is my opinion that this fire originated at floor level in the kitchen and living room areas of the house.

This fire was caused by the ignition of vapours from the varathane finish which had been applied to the floor in these rooms, the night before the fire. The most likely ignition source was the refrigerator. [ 57 ] While testifying at trial, Mr. Kooren offered what, according to Mr. Bellefeuille’s submission, was a new theory of causation. He said that, although the flash point of Varathane in the can is 41 degrees Centigrade, the various chemicals comprising Varathane separate as they evaporate. He indicated these vapors have flash points varying from between 21 degrees Centigrade to 60 degrees Centigrade.

Counsel for the Hansens took no objection to the introduction of this evidence and cross-examined Mr. Kooren on it. [ 58 ] At the conclusion of the evidence portion of the trial, counsel undertook to provide written arguments. The submissions ultimately filed on behalf of Mr. Bellefeuille took issue with those portions of Mr. Kooren’s testimony concerning the degradation of the Varathane flash point on the basis that the idea had not been referred to in Mr. Kooren’s original report. Mr. Bellefeuille argued that the Hansens had advanced “essentially a new theory of causation which was not contained in [Mr.

Kooren’s] written expert report.” (A36)

[ 59 ] The trial judge considered this submission and, in his reasons for decision, rejected it on the basis of some 12 considerations. He summarized them as follows: • Counsel for the defendant made no objection to Exhibit P11 [the foundation of Mr. Kooren’s evidence about flash point degradation] being entered into evidence at any time during oral testimony.

He proceeded to fully cross-examine Kooren on all issues including those raised by Exhibit P11; • Exhibit P11 had been previously disclosed to the defence; • The testimony of Kooren was in response to the expert report of Senez filed as Exhibit D3; • Senez gave oral testimony relating to "degradation" of the flash points; • the issue of the flash point was contained in Kooren's written report and he is entitled to expand on matters set out in his report; • the notice of expert witness dated May 7, 2009 indicated that Kooren would be giving evidence that the fire was caused by the ignition of vapours from the varathane applied to the floors; • the flammability of the vapours was encompassed in the notice of expert witness; • the defendant's notice of expert witnesses was given to the plaintiffs approximately one month prior to trial with no reasonable opportunity to the plaintiff to respond; • the whole focus of the pretrial issues and the trial revolve around the issue of the vapours from the varathane and the issue of flammability; • the plaintiffs would be prejudiced if the evidence was excluded; • the defendant knew or ought to have known the nature of this evidence prior to the commencement of the trial and has suffered no demonstrable prejudice by its admission; and • no adjournment was requested by the defendant when the evidence was introduced. [ 60 ] I can add little to what the trial judge said.

In my view, he fully and adequately explained why he was prepared to consider this aspect of Mr. Kooren’s evidence. There is no basis on which his reasoning can be impeached. [ 61 ] I should add that, in any event, Mr. Kooren’s testimony about the degradation of flash points is something of a red herring, at least in the context of this appeal. The trial judge did refer to this aspect of Mr. Kooren’s evidence in his decision. He observed that, in light of the evidence, it was open to him to infer that when the temperature exceeded 21 degrees in the Hansens’ home, the Varathane vapors could have ignited.

However, at para. 123 of his decision, the trial judge expressly indicated that he was not basing his conclusion on this theory. Rather, he found that a parting arc in the refrigerator (with a temperature of several thousands of degrees) was the ignition source. As a result, it is apparent that Mr. Kooren’s evidence with respect to the degradation of the Varathane flash point played no role in the trial judge’s ultimate decision. V. Conclusion [ 62 ] I conclude, for the reasons given above, that Mr. Bellefeuille’s appeal must be dismissed.

There may have been more than one way to assess the evidence in this case but, in light of the governing standard of review, the trial judge did not make any error warranting the intervention of the Court of Appeal. The Hansens are entitled to costs in the usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 4 th day of June, A.D. 2012. “Richards J.A.” _____________________ Richards J.A.

I concur “Cameron J.A.” ______________________ Cameron J.A. I concur “Vancise J.A.” ________________ Vancise J.A.