If the specific cause of the fire cannot be determined, then the owner may be relieved of liability under section 76 of the Fire Protection and Prevention Act, which states:
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.
In the recent Court of Appeal decision, Moore v. 7595611 Canada Corp., the jury decision was being appealed and one of the bases for the appeal, was section 76 and whether it statute barred the action from proceeding. The Court of Appeal conceded that the cause of the fire, was undetermined at trial. However, it was held that:
“…the genesis of a fire does not immunize a landlord from a failure to take reasonable precautions to protect the occupants of a building from a fire, even if that fire breaks out accidentally.”
Accordingly, notwithstanding section 76, the landlord was found negligent due to “the failure to ensure that a safety plan for the building, was prepared, approved, and implemented; the failure to maintain smoke alarms in operating condition; and the failure to provide at least two exits from each “floor area” of the rooming house.” In this instance, the landlord’s actions or lack thereof, led to the eventual death of the child of the Plaintiffs. The child “was trapped in an inferno with no way to escape. The windows were barred, and the only exit to the apartment was engulfed in flames and smoke. The interior access stairway connecting the basement apartment to the main rooming house was blocked off, thereby leaving only one potential exit and entry point to the basement apartment. Alisha’s rescue had to await the firefighters who arrived on scene.”
Ultimately, the Court of Appeal dismissed the appeal on all counts, including section 76.
Reliance on section 76 is usually made to defend subrogation claims. For instance, if the fire occurred at a neighbouring property and spread to the Plaintiff’s property, then when the Plaintiff’s insurer commences a subrogation action against the neighbour, if the cause of the fire cannot be determined, the subrogation claim will fail, because the fire will be deemed “accidental” and will be statute barred under section 76.
However, as demonstrated in Moore v. 7595611 Canada Corp., liability for negligence relating to other issues, such as improper safety measures, will not be barred by section 76, even if the fire is deemed accidental.