Our first case deals with a subrogation claim arising out of a house fire following installation of cellulose insulation by the defendant. The claim was successful on a finding that it was reasonable to infer the defendants caused the fire as no other individuals attended the area of the fire’s origin after the defendants departure.
In our second case, the plaintiff sought an Order to compel the defendants’ expert witnesses to disclose documents, as well as exclude the expert witnesses’ testimonies altogether. The Judge ruled that it was only fair the plaintiff have access to the documents and deferred the question of excluding testimonies to the Trial Judge.
Aviva Canada Inc. v. Isolation Chaleur Insulation Ltée/Ltd. 2009 NBQB 20.
A fire broke out in the insured’s property. He presented a claim to his insurer, Aviva Canada, under his homeowner’s insurance policy which included coverage for loss or damage by fire. Aviva indemnified its insured and commenced an action for recovery from the defendants who had installed insulation in the attic of the property.
The insured hired the defendant company to apply cellulose insulation in his attic. The defendant’s employees were to install a new insulated door in the attic, but as the door would not fit through the attic’s access hatch, they decided to enlarge it. Around 8 p.m. later the same evening, the insured noticed smoke coming from the attic, where he found a fire. He immediately linked the fire to the application of the cellulose insulation.
The defendant took the position that the on-site employees did not negligently cause the fire. The employees were both non-smokers, kept the cellulose away from the trouble light, and the saw, used for enlarging the hatch, did not strike nails or cut through wires, which could have created a source of heat. The employees did not notice any sparks, flames, or smoke while working in the attic. The defendant alleged that the fire must have been of an electrical nature, starting in the plaintiff’s junction box, which had no cover and from which hung a multitude of electrical wires. However, an expert electrician retained by the Bathurst Fire Department submitted a report negating the possibility of an electrical fire.
The plaintiff retained the services of experts Point of Origin Consultants Ltd., who submitted a report indicating that the fire originated within the insulation near the access hatch. It was also postulated that the lapse of time between the installation of the cellulose insulation and the time of the discovery of the fire was consistent with the flame- retardant attributes of the cellulose. Cellulose is chemically treated in a way that, while it does not catch fire easily, a sustained flame can make it smoulder and burn slowly.
The defendant subsequently submitted contradicting expert evidence. However, as the defendant’s experts had not attended the premises, the Judge found that such expertise represented “nothing more than a review of the original report”.
Justice Léger concluded that, on a balance of probabilities, a reasonable inference could be drawn from the evidence that the fire at the plaintiff’s residence was caused by the defendant’s breach of duty toward the plaintiff. No one else went into the attic after the defendant employees left that day. A judgment was rendered in favour of the plaintiff in the amount of $50,000, together with costs and disbursements.
From a practical standpoint, this case demonstrates why it is essential for defendants to retain cause and origin experts at the earliest opportunity. Doing so will ensure the expert has access to evidence and should put the defense’s expert on a more equal footing with the plaintiff’s, provided the expert has access to the scene and can conduct a proper examination.
Morin v. Roy, 2008 NBQB 408.
The plaintiff commenced legal proceedings against defendants Ruth Roy et al., the driver and owners of the minivan which collided with her, and against Zurich Insurance Company, her SEF 44 insurer. The plaintiff sought an Order to compel two physicians to produce documents they allegedly had in their possession, pursuant to Rule 52.01(4) of the Rules of Court of New Brunswick after she received a Notice of Intention to Call an Expert Witness from her insurer. The two physicians in question were retained to conduct medical examinations of the plaintiff on behalf of the Zurich Insurance Company, but under the Section B policy, not the SEF 44 one. The SEF 44 insurer sought to introduce the physicians’ reports into evidence along with their testimonies.
Rule 52.01(4) gives a Judge discretionary power to order the production of any records, documents or other materials on which a report is based and which an expert will testify. The Judge considered the decision of the New Brunswick Court of Appeal in Stone v. Sharp,  NBJ No. 301 (NBCA). He determined that the important issue in these cases was to facilitate the quest for truth and that Rule 52.01(4) applied to any document or report that had some bearing on the contents of the expert’s opinion. The Judge ruled that it was fair and necessary for the plaintiff to have the evidence sought to enable cross-examination of the expert witness at trial and ordered production of the documents to the plaintiff.
The second issue concerned the possibility of excluding experts’ evidence as a result of not complying with Rule 52, which governs the elements required to be allowed to testify as an expert. The defendants raised the argument that the present case was distinguishable from Spencer v. Quadco Equipment Inc., 2005 CarswellNB 6 (NBQB) as the physicians were not retained by any party to the action, but by the Section B insurer. The Judge concluded that a Motions Judge should not rule on matters of admissibility of evidence and deferred the question to the Trial Judge.
This case demonstrates the broad discretion a Trial Judge has when determining admissibility of evidence. The case also demonstrates a general trend towards allowing evidence to be introduced, subject to weight, as opposed to excluding it.