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A 2026 decision from the Ontario Superior Court of Justice clarifies two important principles governing fire liability in Ontario. A fire whose cause cannot be established on a balance of probabilities is deemed “accidental” by statute, shielding the property owner from liability for the fire’s origin. However, an accidental designation does not insulate a property owner from a negligence claim arising from the way the fire spread.
In Chatham Polish Canadian Club v. Grand Gold Incorporated,1 the Court granted summary judgment in favour of the defendants on the issue of the fire’s origin and cause but denied summary judgment on the question of whether the defendants’ failure to maintain adequate fire safety systems was negligent in contributing to the fire’s spread to the neighbouring property.2
Case Overview
The plaintiff, Chatham Polish Canadian Club [the “Polish Club”], owned and operated a 7,000 square foot social club and rental hall.3 The defendants, Grand Gold Incorporated and its principal Howard Gold [collectively, “Gold”], owned an adjacent, vacant 18,000 square foot building [the “Gold Property”], which was a former industrial facility that ran along the entire southern side of the Polish Club.4
Gold had acquired the Gold Property through a municipal tax sale in June 2013.5 From before the time of sale and throughout Gold’s ownership, all utilities, including water, electricity, and natural gas, had been disconnected. As a result, the building had no operational sprinkler system, fire alarms, smoke detectors, electronic surveillance, or motion detection.6 Howard Gold or one of his employees visited the Gold Property three to four times per week to conduct exterior and interior inspections.7 Nevertheless, the Gold Property had a history of unauthorised entry and occupation by trespassers,8 including individuals whom a nearby neighbourhood watch coordinator described as vagrants or persons engaged in drug-related or criminal activity, who entered through broken windows and unsecured doors several times per month on average.9
On the morning of May 19, 2021, Robert Bushey [“Bushey”], a neighbour who served as the neighbourhood watch coordinator, observed smoke coming from the Gold Property before fire services arrived to find a fully involved fire. The fire originated inside the Gold Property and spread to the Polish Club, and both structures were completely destroyed.10 The Polish Club sued Gold in negligence, alleging that Gold’s conduct caused or contributed to the fire and the resulting damages.
The Key Legal Framework
The central statutory provision at issue was s. 76 of the Fire Protection and Prevention Act, S.O. 1997, c. 4 [“FPPA”], which reads:
No action shall be brought against any person in whose house or building or on whose land any fire accidentally begins, nor shall any recompense 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.11
The Ontario Court of Appeal interpreted this provision in Neff v. St. Catharines Marina Ltd.12, holding that an “accidental fire” is not one that is proved to have been accidental, but rather one that cannot, on a balance of probabilities, be traced to a particular cause.13 Neff further held that where the cause of a fire cannot be determined, any analysis of whether the defendant breached the applicable standard of care is irrelevant, and negligence cannot be proven against the defendant on whose property the fire originated.14 However, Neff also recognised that the manner in which a fire spreads may nonetheless disclose negligence on the part of a defendant, even where its origin is undetermined.15
Issue 1: Summary Judgment Granted | The Accidental Fire Doctrine
The defendants moved for summary judgment on the basis that the fire was accidental within the meaning of s. 76 of the FPPA because multiple possible causes could not be excluded; even on the plaintiff’s own expert evidence.16
The plaintiff’s expert concluded that the fire was most likely caused, accidentally or intentionally, by an unknown individual who gained unauthorised access to the building, and that human activity as a cause of the fire could not be eliminated.17 Nonetheless, due to the complete destruction of both buildings and the resulting absence of physical evidence, the fire could only be classified as “undetermined,” a classification applied where two or more credible potential causes remain and none can be definitively excluded.18
The Court found several evidentiary deficiencies fatal to the plaintiff’s position. Although trespassers had at various times entered and possibly occupied the Gold Property, the Court was not satisfied that such activity had occurred in reasonably close temporal proximity to the fire. Bushey’s assertion that trespassers continued to access the Property “right up until the time of the fire” or “basically anytime they wanted” was characterised as a bald, conclusory statement carrying limited evidentiary weight. Crucially, the record did not disclose when either Bushey or Gold had last observed trespassers at or inside the Gold Property, nor when they had last observed signs of unauthorised entry prior to the fire.19 The fire investigation was further hampered by the complete destruction of the building and the fact that the plaintiff’s expert did not conduct a direct investigation of the scene, requiring him to rely on an already limited evidentiary record, which, in the Court’s view, materially undermined the reliability of his ultimate opinion.20
In the absence of proof establishing the specific cause of the fire on a balance of probabilities, the Court deemed it an “accidental fire” within the meaning of s. 76 of the FPPA. As a result, the plaintiff’s claim was barred. The claims in nuisance and strict liability, which equally required proof of causation, were similarly dismissed on the basis of s. 76.
Issue 2: Summary Judgment Dismissed | Duty of Care for Spread of Fire
Notwithstanding the finding that the fire was accidental, the Court declined to grant summary judgment on a distinct and independent claim: whether Gold was negligent in failing to take reasonable precautions to protect the neighbouring property in the event of a fire.
The defendants argued that they had purchased the Gold Property in its existing condition, without a functioning sprinkler system or operational smoke, heat, or security alarms, and that the Gold Property met the standard of care expected of a reasonably prudent industrial property owner.21 Critically, however, the defendants filed no expert evidence to substantiate this assertion.22 The plaintiff argued that Gold’s failure to install and maintain fire detection and suppression systems constituted negligence that contributed to the spread of the fire to the Polish Club.
The Court applied the principles from Moore v. 7595611 Canada Corp.23, in which the Ontario Court of Appeal affirmed that the accidental origin of a fire does not immunise a property owner from negligence findings arising from a failure to take reasonable precautions to protect against the fire’s effects.24 As the moving parties, the defendants bore the burden of establishing the applicable standard of care, ordinarily through qualified expert evidence, and demonstrating that it was met. The Court found that the defendants failed to discharge that burden on the fire spread issue.25
The Court found a genuine issue for trial as to the standard of care expected of a reasonably prudent owner of vacant industrial property in a commercially zoned area to mitigate the risk of fire damage to neighbouring properties, and whether the defendants had met that standard.26 That dispute was underscored by the physical proximity of the two buildings, potentially separated by only inches, which the Court acknowledged could reasonably support the contention that, for the purposes of risk assessment and required precautions, the structures effectively functioned as a single building.27 The matter was accordingly ordered to proceed to trial on this issue.28
Practical Takeaways
(A) The accidental fire doctrine is a powerful defence, with limitations.
Section 76 of the FPPA bars liability for the origin and cause of a fire that cannot be traced to a specific cause on a balance of probabilities. However, the manner of a fire’s spread may still ground a viable claim.
(B) Plaintiffs bear a heavy evidentiary burden on fire origin.
A fire that cannot be traced to a specific cause on a balance of probabilities will be deemed accidental under s. 76 of the FPPA. For example, in this case, inferences drawn from a history of trespass or criminal activity on a property were insufficient in the absence of evidence connecting that activity to the fire itself in reasonably close temporal proximity.
(C) Defendants seeking summary judgment should expect to support their position with expert evidence.
On a summary judgment motion, the moving party bears the burden of demonstrating that no genuine issue requires a trial. Where negligence relating to property condition is in issue, and the standard of care is genuinely in dispute, that typically requires affirmative expert evidence as to the applicable standard of care and whether it was met. Failing to produce such evidence may result in the motion being dismissed, even where the defendant is otherwise in a strong position.
(D) Vacant industrial property owners face unresolved questions about their standard of care.
The Court expressly declined to determine the standard of care expected of a reasonably prudent owner of vacant industrial property to protect neighbouring properties from fire. That question will be resolved at trial, and the answer could have significant implications for owners of vacant or underutilised commercial and industrial properties, particularly where those properties are in close physical proximity to neighbouring structures.
(E) Proximity to neighbouring properties is a relevant factor in assessing risk.
The fact that the two buildings were potentially separated by only inches was treated as a material consideration in assessing the applicable standard of care. Property owners whose buildings are in close proximity to neighbours should be mindful of the heightened duties that proximity may attract.
Key Takeaway
An undetermined fire is an accidental fire, and an accidental fire bars liability for the fire’s origin. However, that is not the end of the inquiry. Where a defendant is alleged to have failed to take reasonable precautions to prevent or mitigate the spread of a fire to neighbouring properties, that claim survives the accidental fire designation and may raise a genuine issue for trial. For owners of vacant or disused properties, this decision is a reminder that fire-related liability can arise not only from what started a fire, but from a failure to take reasonable precautions against the fire’s spread to neighbouring properties. We will continue to monitor this case as it proceeds to trial and will provide further updates as developments arise.
Footnotes
1 Chatham Polish Canadian Club v Grand Gold Incorporated, 2026 ONSC 2193 [“CPCC”].
2 CPCC.
3 CPCC at para 9.
4 CPCC at paras 10-11.
5 CPCC at para 14.
6 CPCC at para 15.
7 CPCC at para 27.
8 CPCC at para 20.
9 CPCC at para 51.
10 CPCC at para 21-23.
11 Fire Protection and Prevention Act, S.O. 1997, c. 4, [“FPPA”] s 76.
12 Neff v St. Catharines Marina Ltd. (1998), 37 O.R. (3d) 481 (C.A.) [“Neff”].
13 CPCC at para 68, citing Neff at para 6.
14 CPCC at para 69.
15 CPCC at para 107.
16 CPCC at para 71.
17 CPCC at para 42.
18 CPCC at paras 43-44.
19 CPCC at paras 74-75.
20 CPCC at para 83.
21 CPCC at paras 102-103.
22 CPCC at para 111.
23 Moore v 7595611 Canada Corp., 2021 ONCA 459 [“Moore”].
24 CPCC at paras 107-108; citing Neff at para 16, and Moore at paras 10-11.
25 CPCC at paras 111-112; citing Sanzone v Schechter, 2016 ONCA 566, at paras 24 and 30.
26 CPCC at para 115.
27 CPCC at para 118.
28 CPCC at para 120.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
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