J. Q.B.G. A.D. 1996 No. 2272 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: JASON SPRINGER and SASKATCHEWAN GOVERNMENT INSURANCE DEFENDANT Margot A. Dynna for the plaintiff Joan M. Eremko for the defendant JUDGMENT MALONE J. July 6, 1998 On February 22, 1996, the plaintiff's residence, mobile home located on his grandparents' farm site in the Rocanville district was totally destroyed by fire. The mobilehome, and its contents, were insured with the defendant whohas denied liability on the policy alleging that the plaintiffdeliberately started the fire, or caused it to be started. The plaintiff testified that he was awakened shortly before 6:00 a.m. by buzzing noise from the smoke detector. He found the mobile home already to be in flames and rushed to his grandparents' house to have them call the fire department. He testified that when he returned to the mobile home, his brother, who also lives on the farm site, was present and they both attempted to gain access to the home but were prevented from doing so by the heat of the fire and heavy smoke. Constable Bell of the Moosomin detachment of the R.C.M.P. attended at the fire scene and took an initial statement from the plaintiff on that day. In that statement the plaintiff stated the following: Smoke detector buzzed few times and it woke me up. My bedroom is at the west end of the trailer. had to come down the hallway to escape. The fire was either in the living room or kitchen on the north side of the trailer. Once got out went over to grama [sic] and grandpa's and they called the fire department. raced back to the trailer to try and get somethings [sic] out of the trailer. We tried to get somethings [sic] out but we couldn't get near it. When walked down the hallway looked into the living room and kitchen the fire looked as if it the couch and chair were engulfed and was up the wall and across the ceiling and down the hall. When returned from my grandma's the fire was coming out of the window where the couch sits. On April 4, 1996, Constable Bell took warned statement from the accused wherein the following passage is contained: Q.Okay Jason in your own words, uh, could you just explain to me the morning of the fire. Uh the way that you explained in statement that you provided me earlier. A.Right from when woke up or what? Q.From when you, right from when you noticed the fire A.The smoke detector went off, which woke me Q.Okay A.And got out of bed, put my clothes on that wore the night before, always leave them laying by the bed. Put them on, got dressed quickly, got up to the exit going out of the hallway that goes into the living room or into the porch, and then went into the porch, got my boots on and ripped over to my grandma and grandpa's and called the fire department. came back from grandma and grandpa's and my (inaudible) grandparents and he came over right away too and we tried to get some of the stuff out of the trailer but there was so much smoke and stuff blowing out that we couldn't get nothing out and when was going out the hallway the fire was in the living room or kitchen or wherever and it was starting to come into the hallway, not on the sides or bottom but it was at the top. Q.Okay, on the ceiling A.On the ceiling yeah Q.Okay. Alright A.And then the fire department come Q.Okay, um, you say the fire was coming down the hallway? A.It was starting to come over Q.Okay, how far between the door that you enter out of and where the fire was? A.It was right above that door. Q.It was right above the door that you went out. A.Well, between that door, like the door is here and there is about feet before you walk into the wide open area. Q.Okay. A.So it was shade into the hallway. Q.Okay. A.So it was shade into the hallway. Q.Okay A.But it was in the hallway and between the door and right along the living room or something. Q.When you got back there did you get in could you see in their or did you get in there. A.No, cause um, by the time we got back the smoke was rolling so heavily over top of the trailer and was going directly from that roof right across and we tried to go up to the window but by the time we got the window broke you couldn't even breath Q.Okay A.The smoke was Q.So you broke the window to get into the office part? A.Yeah, we could never hold our breath that long for the smoke to get it Throughout the investigation and during his testimony, the plaintiff gave substantially this version of what he saw after being awakened by the smoke detector and his actions thereafter. The onus the defendant must meet to be successful in its defence of this action was set out by Maher J. in the case of Grover Holdings Ltd. v. Saskatchewan Government Insurance (1982), 1982 CanLII 2630 (SK QB), 18 Sask. R. 373. After reviewing the various authorities, Maher J. stated the following at p. 381: It is clear from these authorities that in an action where arson is raised as defence, once the assured establishes that loss by fire has occurred, the onus or burden of proof is then upon the insurer to establish, by balance of probabilities commensurate with the occasion, that the fire was caused by the deliberate act of the assured or at his behest. The more unlikely or improbable the allegation required to be proved, the more cogent is the evidence required to overcome the unlikelihood or improbability. But there is no obligation on an insured in the first instance to explain the cause of the fire. In this regard counsel for the defendant called several witnesses including two employees of the defendant's investigation unit. found their evidence to be suspect and their testimony has played no part in this decision. The evidence of three independent witnesses, however, find to be credible and persuasive. The first of these was Constable Bell who testified he had been voluntary fire fighter in the Northwest Territories for several years and had received certification as fire fighter. He stated that he was suspicious of the version of events given to him by the plaintiff because he showed no visible signs of having been involved in fire and did not smell of smoke. The second witness was Dr. Wo Yuen, senior research scientist with the Saskatchewan Research Counsel. He conducted tests on samples taken from the debris of the burned out home and found them to contain small quantity of petroleum hydrocarbons. He testified that in his opinion the hydrocarbons were likely gasoline. Finally Mr. Peter L. Heyerhoff, an experienced fire investigator from Oakville, Ontario, concluded on the basis of Dr. Yuen's findings and the plaintiff's own version of events that the fire was deliberately set. He testified that in his opinion significant quantity of "fire accelerant" had been used. In his written report he stated the following: In my opinion, if Springer had encountered the circumstances he described would have expected the following: he should have been suffering to some degree from carbon monoxide poisoning; he should have been coughing for some time; his hair should have been singed; he should have had soot on his face, at least around the nostrils and mouth; his clothes should have smelled of smoke. The entire scenario described by Springer is incredible and springs from mind which cannot have been in real fire situation. Any fire which develops within compartment such as this trailer, whether in the smouldering or free burning stage, will develop considerable volumes of smoke. Smoke will rise with the hot gases and migrate along the ceiling and will fill voids at the highest levels very rapidly. When the hot gases and smoke encounter obstructions (walls, door headers) they will build down. The hot gases will be transported by convection and radiation. As read the material, Springer showed no signs of the effects of heat, such as thermal burns on his skin or his hair having been singed. The plaintiff did not call evidence to rebut Mr. Heyerhoff's opinion nor was the plaintiff's brother called to confirm the plaintiff's testimony that he attempted to re- enter the mobile home after arranging for the fire department to be called. When I consider the evidence of the threeindependent witnesses I have referred to I am satisfied thedefendant has met the onus referred to in the Grover Holdingcase and has established that the fire was deliberately set. While there is no direct evidence to establish that theplaintiff set the fire himself, in the circumstances, I drawthe inference that he did or, in the alternative, causedsomeone else to do so. The plaintiff\'s claim is therefore dismissed. Counsel have leave to speak to the matter of costs at their convenience.
The plaintiff's residence, a mobile home, was totally destroyed by fire in 1996. The insure denied liability on the policy alleging the plaintiff deliberately started the fire or caused it to be started. HELD: The plaintiff's claim was dismissed. 1)When the evidence of the three independant witnesses was considered, the defendant insurer met the onus referred to Grover Holdings and established that the fire was deliberately set. While there was no direct evidence to establish the plaintiff set the fire himself, the inference was drawn that he did or, in the alternative, caused someone else to do so.  2)Had the plaintiff been in the mobile home he should have been suffering to some degree from carbon monoxide poisoning, he should have been coughing, his hair should have been singed, he would have had soot on his face and his clothes would have smelled of smoke. 3)The plaintiff did not call evidence to rebut the fire investigator's opinion that a significant quantity of fire accelerant had been used nor was his brother called to confirm his testimony that he attempted to re-enter the mobile home after arranging for the fire department to be called.