Prepared by Russell Yurkow, LL.B. of the Ontario Bar and Arthur Rappich, O.L.S.
Part I.3.(a)-I.3.(f) — Civil Liability — Accidental Fires
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I.3.(a) — General
A fire that is the result of negligence cannot be said to have started by accident. Accidentally means by mere chance or incapable of being traced to any cause, as opposed to arising from the negligence of either employer or employee. It does not mean accidental as opposed to wilful
An ignition is not accidental if combustible materials ignite when fire
is allowed to fall on them. There are points still unsettled as to the effect of the legislation: whether, for example, a fire originating in coal or cinder escaping from a domestic stove is to be treated as beginning with the lighting of the fire in the stove or with the fire kindled through the escaping fragment.
I.3.(b) — Fires Arising or Spreading Through Negligence
The protection of the legislation does not extend to fires that arise through negligence or to fires that, though accidental in origin, spread through negligence. In these cases
an action lies at
In determining whether a fire spread as the result of negligence, the court must consider the time and circumstances relating to the origin and continued existence of the fire. It must also consider the weather, the presence of wind, the proximity of combustible matter, the likelihood that if there was wind it might revive and help to spread a smouldering fire, and other matters serving as criteria for the prudence of setting a fire in the circumstances.
I.3.(c) — Intentional Fires
Fires intentionally lit are outside the purview of the legislation, and responsibility for them is governed by the common law. A distinction may have to be made, however, in the case of a fire intentionally set, without negligence, from which the fire causing the damage accidentally spread. In that case
the legislation may afford protection.
I.3.(d) — Rule in Rylands v. Fletcher
Predecessor legislation to the Fire Protection and Prevention Act, 1997, was held not to relieve one from liability if the case falls within the rule of Rylands v. Fletcher. The Act does not apply if a fire starts in the use of a dangerous thing knowingly used by the owner of the land on which the fire breaks out.
I.3.(e) — Fires from Railway Locomotives
Predecessor legislation to the Fire Protection and Prevention Act, 1997, was held not to apply to fires caused by railway locomotives. However, a case that did not turn on the legislation but took note of it suggested that a fire arising on a railway track when sparks from a locomotive ignite flammable material may be considered an accidental fire. Usually, railway cases have been decided on a different principle, that of immunity by reason of statutory authority. The fire in a railway locomotive is knowingly used, and the legislation does not apply to intentional fires.
I.3.(f) — Fires Set by Mental Incompetents
A mental incompetent who sets fire to property may be liable for resulting damage unless he or she is completely unable to recognize that the act was wrong.