Mohamed v. Banville ]2009] O.J. No. 712 (S.C.J.)
Date of Decision: February 20, 2009
We brought a motion for summary judgment seeking a dismissal of a subrogating action brought against his client arising from a fire that damaged several residential dwellings. The subrogating insurer alleged that our client’s careless smoking caused the fire. We brought a motion for the summary judgment seeking a dismissal of the action on the basis that there was no evidence to support the allegation and therefore no genuine issue requiring a trial. The plaintiff argued that having eliminated all other potential source of ignition the Court could infer the fire was caused by the defendant’s smoking. Although a habitual smoker, the defendant denied having any cigarettes that evening. The motion judge granted summary judgment. In a detailed review of the authorities the motion judge held that without evidence that the defendant was in fact smoking and acted carelessly he could not be held liable. The motion judge also held that without evidence of cause, the action was barred by Section 76 of the Fire Protection and Prevention Act. .
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