Canada: Spreading Fires: Issues That Arise When Fires Originate At A Neighbour's House


The determination of liability regarding fire loss cases in Ontario hinges upon the finding of a specific cause of the fire. If it is not possible to determine how the fire originated, the owner of the building may be relieved of liability altogether under s. 76 of the Fire Protection and Prevention Act, which reads as follows:

76. No action shall be brought against any person in whose house or building or on whose land any fire accidently begins, nor shall any recompense may be made by that person for any damage suffered thereby; but no agreement between a landlord and tenant is defeated or made void by this Act.


The recent decision of Mohamed v. Banville1 is a reminder that unless one can establish certain facts the Plaintiff will not succeed in a subrogated claim. Indeed in this case the claim was struck out at the summary judgment stage.

A fire started at the Defendant's residence. The fire spread to a neighbouring property owned by the Plaintiff. The Plaintiff settled his property damage claim with his Insurer. The Insurer then brought a subrogated action to recover approximately $150,000.00 for damages to the Plaintiff's property.

The Defendant had been out drinking and returned to his house intoxicated. He asked one of the other tenants if they could give him a cigarette, but they did not have any. He then went back to his residence and fell asleep on the couch.

The Defendant woke up to the sound of the smoke alarm. The couch he was sitting on was not hot or in flames. The Plaintiff's property was severely damaged and the Defendant's property burned to the ground.

The fire marshal's investigation did not reveal a cause of the fire. The Plaintiff's Insurer hired an engineering firm that concluded the most probable cause of the fire was careless smoking on the couch.

The evidence supporting the engineer's probable cause report were that, the Defendant was a smoker, he was impaired, he was asleep on the couch, and the burn pattern. Unfortunately there was no evidence of smoker's materials in the couch area.

The court granted the Defendant an order dismissing the case on a motion for summary judgment. In its reasons the Court stated that in careless smoking cases the Plaintiff must establish that there was smoking at or around the time the fire started, and in proximity to the origin of the fire. Without that evidence, it was deemed an "accidental fire" which is statute barred by section 76 of the Fire Protection and Prevention Act.

The Ontario Court of Appeal in Neff v. St. Catherines Marina2 held that a fire will be deemed "accidental" if it cannot be traced to a particular cause of action on a balance of probabilities.

In the recent case of Xie v. Jiang3 the facts were as follows. On the night of January 26, 2013, the Defendant, Jeffrey Jiang was reading upstairs in his condominium. He smelled smoke and immediately went downstairs to the basement of his townhouse. He discovered that there was fire inside the clothes dryer. He attempted to put the fire out with water, but was unsuccessful so he called 911. At the time of the fire, he was attempting to dry two comforters. He testified that he had washed and dried these items in the past without an incident.

The fire marshal had conducted an investigation and his report was entered into evidence at trial. The fire marshal was unable to eliminate accidental ignition as a result of the failure of the electric dryer as a potential cause of the fire. He was also unable to eliminate accidental ignition of the combustible materials in the clothes dryer as a cause of the fire.

The condominium corporation retained an origin and cause engineer who confirmed that the cause of the fire originated in the clothes dryer. He was unable to determine the cause of the fire, and in particular was unable to establish the specific sequences of events that caused the fire, the specific ignition source, the specific fuel first ignited, and how these elements came together. Further, he was unable to conclude what component may have failed in the dryer, or how the fire was generated.

Another expert was retained who concluded that there were three possible causes of the fire, including;

  1. a failure of the dryer components;
  2. the ignition of lint;
  3. the ignition of the load within in the dryer.

In light of the clear evidence that the exact cause of the fire could not be determined, the trial judge made the following conclusions:

  1. the court operates on a balance of probabilities;
  2. there is nothing to suggest negligence;
  3. the closest thing to negligence is the size of the load that was put in the dryer, however, there is no evidence that the load caused the fire or that the size of the load was negligent; and finally;
  4. the wording of the Fire Protection Act, and section 76(2) particularly create a very difficult onus on anybody trying to establish negligence, certainly without some independent expert evidence to counter either the Fire Marshall's Report if that report indicates the fire as accidental

The decision was upheld on appeal.

In the case of Kinsmen Club of Kingston v. Walker,4 the court held that since the evidence of careless smoking was obvious, section 76(2) of the Act did not apply. It does not apply when the fire was not one produced by mere chance or one that was incapable of being traced to any one cause.

Where does that leave us?

Cases where there is clear evidence of the cause of the fire should be pursued. If there is evidence of an accidental cause or a cause that cannot be pinpointed, the ability to pursue subrogation should be questioned.

The questionable cases may be open to defeat on a motion for summary judgment.

There has to be an ability to pinpoint a probable cause. Where there are statements in a report that an individual admitted to some activity that caused the fire, then these should be produced.

It will be more difficult when all that is being relied upon is the fire marshal's report and that report is inconclusive.

Prior to litigation it is also difficult to get access to the property to conduct an independent report. After litigation, one can get a court order to get access to the property, but prior to that it is very difficult. If the neighbour does not want to grant access there is not much that you can do. In those cases it may be appropriate to commence litigation as soon as possible and request access immediately.


1. Mohamed v. Banville (2009), 94 O.R. (3d) 709.

2. Neff v. St. Catherine's Marina, 37 O.R. 489.

3. Xie v. Jiang, 2015 ONSC 1231.

4. Kinsmen Club of Kingston v. Walker, 2005 CanLii 39885.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions