IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
656621 B.C. Ltd. v. David Moerman Painting Ltd.,  
022 BCSC 1683  
2
Date: 20220927  
Docket: S174526  
Registry: Vancouver  
Between:  
And  
6
56621 B.C. Ltd., Robert Goff and Maria Goff  
Plaintiffs  
David Moerman Painting Ltd., c.o.b. as Elite Trade Painting, Elite Trade  
Contracting Limited, University Contracting Corporation Limited, David  
Moerman, Joel Friesen, Dave Giesbrecht, Dylan Robinson, Brad Dornian,  
Mike Chan and John Doe  
Defendants  
And  
Langley Decorating Centre Inc., Visram Holdings Ltd. doing business as  
Fleetwood Paint & Decorating Centre, John Doe or ABC Company, Paul  
Loetscher, Dorothee Rosel and P&D Construction  
Third Parties  
Before: The Honourable Justice Blake  
Reasons for Judgment  
Counsel for the Plaintiffs and Third Parties,  
Paul Loetscher, Dorothee Rosel and P&D  
Construction:  
M.J. Bailey, K.C.  
R.A. Sottile  
Counsel for the Defendants, David  
A.L. Eged  
R. Shaw  
A. Lee, Articled Student  
Moerman Painting Ltd., David Moerman,  
Joel Friesen, Dave Giesbrecht, Dylan  
Robinson, Brad Dornian and Mike Chan:  
Place and Date of Trial:  
Vancouver, B.C.  
January 31,February 1-4, 7-11,  
1
4-16, 22-24, 28, March 1-4;  
April 4-8, and May 2-4, 2022  
Place and Date of Judgment:  
Vancouver, B.C.  
September 27, 2022  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 2  
Table of Contents  
I. OVERVIEW ........................................................................................................ 4  
II. ORIENTATION OF THE LODGE ....................................................................... 8  
III. ISSUES............................................................................................................... 9  
IV. BURDEN OF PROOF IN A FIRE CASE........................................................... 12  
V. RELEVANT LAY WITNESS EVIDENCE ON THE ISSUE OF LIABILITY........ 16  
A. SPONTANEOUS COMBUSTION WARNINGS FOR SIKKENS STAIN ........ 16  
B. PAUL LOETSCHER, DOROTHEE ROSEL AND REAY FOSTER................ 17  
C. DAVID MOERMAN ....................................................................................... 19  
D. LOCATION OF THE STAINING MATERIALS............................................... 21  
1
2
3
. Mr. Friesen ................................................................................................ 22  
. Mr. Robinson ............................................................................................. 24  
. Mr. Dornian................................................................................................ 25  
a) Examination for Discovery Read-Ins...................................................... 25  
b) Evidence at Trial .................................................................................... 29  
. Mr. Chan.................................................................................................... 32  
. Mr. Unger................................................................................................... 33  
4
5
E. MANNER OF STORING THE STAINING MATERIALS ................................ 35  
1
2
3
. Mr. Friesen ................................................................................................ 35  
. Mr. Robinson ............................................................................................. 35  
. Mr. Dornian................................................................................................ 36  
a) Examination for Discovery ..................................................................... 36  
b) Evidence at Trial .................................................................................... 37  
F. MR. DORNIAN’S CREDIBILITY AND RELIABILITY ..................................... 39  
G. SECURITY STILLS....................................................................................... 44  
VI. EVIDENTIARY ISSUES AND DETERMINATION............................................ 47  
A. FOR WHAT PURPOSE MAY THE MOERMAN NOTES BE ADMITTED...... 47  
1
2
. Law............................................................................................................ 51  
. Analysis ..................................................................................................... 55  
B. ADVERSE INFERENCES............................................................................. 57  
1
2
. Law............................................................................................................ 58  
a) Plaintiffs must establish a prima facie case............................................ 60  
. Analysis ..................................................................................................... 62  
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 3  
VII. FINDINGS OF FACT ON LOCATION AND MANNER OF STORAGE OF  
STAINING MATERIALS.......................................................................................... 69  
A. Location of the Staining Materials on May 16, 2016...................................... 70  
B. Manner of Storage of the Staining Materials May 16, 2016........................... 71  
VIII. EXPERT EVIDENCE ON ORIGIN AND CAUSE OF THE FIRE: MR. BROAD,  
MR. REED AND DR. CRAFT .................................................................................. 74  
A. Mr. Broad ...................................................................................................... 74  
B. Mr. Reed ....................................................................................................... 84  
C. Dr. Steven Craft ............................................................................................ 87  
IX. EXPERT EVIDENCE ON SPONTANEOUS COMBUSTION: MR. BOSHARD  
AND DR. DAVID HOWITT....................................................................................... 89  
A. Mr. Boshard................................................................................................... 89  
B. Dr. David Howitt ............................................................................................ 90  
X. ANALYSIS OF LIABILITY................................................................................ 96  
A. Standard of Care for Storing the Staining Materials...................................... 96  
B. Origin of the Fire ........................................................................................... 96  
C. Causation of the Fire..................................................................................... 97  
1
2
3
. Location of Storage of the Staining Materials ............................................ 97  
. Manner of Storage of Staining Materials.................................................... 97  
. Fire Spread................................................................................................ 99  
XI. CONCLUSION................................................................................................ 100  
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Page 4  
I.  
OVERVIEW  
[
1]  
On the evening of May 16, 2016 a building in a remote area of Jervis Inlet  
near Malibu Point was completely destroyed by a fire. The plaintiffs allege that the  
fire was caused by the spontaneous combustion of oil-soaked staining materials  
which had been used that day to commence staining a building. They say that the  
defendants, the Moerman Stainers (as defined below) negligently stored the oil-  
soaked staining materials which, as a result, spontaneously combusted, and that the  
defendants the Moerman Stainers, David Moerman and his company, David  
Moerman Painting Ltd., are responsible at law for the total destruction of the  
building.  
[
2]  
The plaintiff 656621 B.C. Ltd. is the legal owner of the property on which the  
building stood, and the plaintiffs Robert and Maria Goff are the beneficial owners of  
the property (the “Goff Property”). The Goff Property is comprised of a number of  
buildings, which include the main lodge, the building ultimately destroyed by the fire,  
(the “Lodge”), a dormitory (the “Dorm”), a writer’s cabin, a chapel, and two power  
houses. It is a remote property which can only be accessed from the water. The  
construction of the Lodge was finished in approximately 2006, and shortly after its  
completion a security camera system was installed at the Goff Property by Mr. Goff,  
with the assistance of Peter Talbot.  
[
3]  
Upon completion, the Lodge was stained with an oil based stain product  
called Sikkens Proluxe Cetol SRD RE in natural oak 005 (the “Stain”). All of the  
buildings and railings at the Goff Property were stained with the Stain.  
[
4]  
Mr. and Mrs. Goff testified that the Goff Property was a special place for their  
family to spend time together during the summer, and that numerous guests spent  
time at the Goff Property with them over the years. It was important to them that they  
kept the Goff Property in pristine condition, and they maintained it to the very best of  
their ability. They employed full time caretakers on site, the third parties Paul  
Loetscher and Dorothee Rosel, who provided caretaking services to the Goffs  
personally, and from 2013 onwards provided their services through P & D  
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 5  
Construction. Until May 2016 there were no major issues of any sort at the Goff  
Property neither electrical maladies, mechanical issues, propane leaks or any  
other issue outside of regular care and maintenance.  
[
5]  
On November 10, 2015 the defendant David Moerman emailed Mr. Goff to  
discuss a book Mr. Goff had written. Mr. Goff realized Mr. Moerman owned and  
operated a painting company, reviewed his website, and ultimately retained him,  
through his company David Moerman Painting Ltd., to stain four of the buildings at  
the Goff Property in May 2016. In April 2016 Mr. Goff hired Reay Foster to assist  
Mr. Loetscher and Ms. Rosel in readying the Goff Property for the Goffs’ arrival for  
the summer of 2016.  
[
6]  
Mr. Moerman was advised by Ms. Rosel that a Sikkens stain was previously  
used on the buildings at the Goff Property, and it was ultimately arranged that  
Mr. Moerman would pick up the necessary amount of the Stain to bring to the Goff  
Property. Mr. Moerman advised Ms. Rosel that he had a “really good crew of 3-4  
workers” who would be available to do the work. At trial it was clear that  
Mr. Moerman hired five workers to do the job in early May 2016; namely, the  
defendants Brad Dornian, Dave Giesbrecht, Mike Chan, Joel Friesen and Dylan  
Robinson (the “Moerman Stainers”). Of the Moerman Stainers, Mr. Dornian was the  
only one with any experience painting (although he had no experience using oil  
based stains), and so he was the crew leader. Mr. Moerman did not provide any of  
the Moerman Stainers with any training or instruction. Further, he did not alert them  
to the fact that oil-based products, of which the Stain was one, were flammable, and  
that rags soiled with the Stain could spontaneously heat and catch fire if they were  
stored in a way that does not follow the instructions on the warning label.  
[
7]  
Mr. Moerman picked up the Stain from two decorating stores: Langley  
Decorating Centre (on May 12, 2016) and Fleetwood Painting and Decorating (on  
May 14, 2016). He provided the Stain to Mr. Dornian, who together with the rest of  
the Moerman Stainers arrived at the Goff Property on May 15, 2016. Upon their  
arrival, Mr. Dornian met with Mr. Loetscher and discussed where they should start  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 6  
staining the Lodge. The two agreed that it would be best if the Moerman Stainers  
began to stain on what I will refer to throughout these reasons as the “Leftside of  
the Lodge (being the side of the Lodge which generally faced west, and was  
adjacent to the ocean). There was unfortunately significant confusion throughout the  
litigation by the parties about how to refer to the four sides of the Lodge. This  
confusion became a significant issue at trial, and is dealt with in further detail below.  
[
8]  
However, the evidence is clear that on the morning of May 16, 2016 the  
Moerman Stainers began to stain the Left side of the Lodge, commencing at the  
front left corner (the south west corner) and moving along the Left side of the Lodge  
during the day. They completed the majority of the staining on the Left side of the  
Lodge, stored their materials, including some of the remaining Stain, brushes, soiled  
rags and a drop cloth (the “Staining Materials”), and returned to the Dorm for dinner,  
recreation time, and eventually to sleep. Where the Moerman Stainers left the  
Staining Materials, and how they were stored, are the central issues in this litigation.  
[
9]  
At approximately 10:30 pm Mr. Giesbrecht saw fire at the Lodge (the “Fire”)  
from the balcony at the Dorm, and alerted the others. Mr. Loetscher quickly realized  
it was not safe to stay at the Goff Property, and arranged for everyone on site to be  
removed by boat to the nearby Malibu Lodge.  
[
10] The Fire was what origin and cause fire investigators refer to as a “complete  
burn”, and destroyed the Lodge entirely. Only the foundation was left by the next  
morning.  
[
11] Mr. Goff was alerted about the Fire, either late on May 16 or early on May 17,  
and immediately accessed the Lodge’s surveillance camera system and took screen  
shots of a number of the surveillance images. Most importantly he took screen shots  
of the security stills taken at 10:36 from the clifftop camera (the “10:36 Still”), 10:56  
from a camera mounted on a tree above the roof of the Dorm (the “10:56 Still”),  
1
1:01 from the great room camera inside the Lodge (the “11:01 Still”) and 11:11 also  
from the clifftop camera, showing the Lodge fully engulfed in flames (the “11:11  
Still”). Mr. and Mrs. Goff attended at the Goff Property on May 17.  
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 7  
[
12] The Moerman Stainers left Malibu Lodge the morning of May 17, and on May  
8 met with Mr. Moerman at his condominium to discuss what had happened the  
1
day of the Fire. Mr. Moerman made notes on his computer of his conversation with  
the Moerman Stainers at the time of this meeting (the “Moerman Notes”). He did not  
provide a draft of the Moerman Notes to any of the Moerman Stainers.  
[
13] As the Lodge was completely destroyed in the Fire, there is a dearth of  
physical evidence surrounding the origin and cause of the Fire. The critical evidence  
is that of Mr. Dornian, Mr. Friesen and Mr. Robinson, who cleaned up the work site  
at the end of the day on May 16, and who are the only witnesses who can testify as  
to the location in which the Staining Materials were left, and the manner in which  
they were stored. Mr. Dornian was the only one of the three to testify at trial.  
[
14] The plaintiffs rely upon two experts in the area of origin and cause, and  
spread and dynamics, of fires: Mr. Scott Broad, who they tender as an expert in the  
origin and cause of fires; and Dr. Steven Craft, who they tender as an expert in fire  
spread and dynamics. The defendants rely upon Christopher Reed who they tender  
as an expert in fire origin and cause determination, and fire progression and  
dynamics analysis. The weight given to the evidence of each of these experts is  
impacted significantly by the extent to which the facts they assumed to be true were  
proven at trial.  
[
15] The plaintiffs also rely upon the expert evidence of Greg Boshard, who they  
tender as an expert in the standard of care for storing stain soaked rags; and  
Dr. David Howitt, who they tender as an expert in the phenomenon of spontaneous  
combustion.  
[
16] This case turns on the sufficiency of the admissible evidence tendered at trial.  
It is a circumstantial evidence case. The plaintiffs say that common sense requires  
that I draw the inference that the Fire was caused by the negligence of the Moerman  
Stainers.  
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 8  
[
17] The defendants say the plaintiffs have failed to prove, on a balance of  
probabilities, their theory that the Staining Materials spontaneously combusted and  
caused the Fire. They do not suggest an alternate theory of the origin and cause of  
the Fire, and they are not obliged at law to do so.  
[
18] I must determine whether the plaintiffs have proven on a balance of  
probabilities that the defendants were negligent in the manner in which they stored  
their Staining Materials at the end of the work day on May 16, and that those  
staining materials spontaneously combusted and caused the Fire. However, by the  
end of trial, this case ultimately became one which turns not just on circumstantial  
evidence and the drawing of reasonable inferences, but also on two critical  
evidentiary rulings which arose late in the trial which I must determine in these  
reasons for judgment (which are set out in detail below). Upon a careful review of all  
of the admissible evidence tendered by the parties at trial, and upon determining the  
two evidentiary issues, I have concluded that the plaintiffs have failed to prove on a  
balance of probabilities that the Fire was caused by the negligent storage of the  
Staining Materials by the Moerman Stainers.  
II.  
ORIENTATION OF THE LODGE  
[
19] From the time of the Fire, confusion over the appropriate description of the  
four sides of the Lodge plagued the parties, the witnesses and the experts. This  
unfortunate disorientation continued through the examinations for discovery and in  
fact up to the time of trial. To an extent, the confusion arose from both the unique  
orientation of the Lodge and the fact that the Fire completely destroyed the Lodge.  
[
20] It was of great assistance that counsel settled on and used the following  
terms at trial, which I will also use in these reasons for judgment:  
a) “Front” is the side of the Lodge generally facing south;  
b) “Left” is the side of the Lodge when facing the Front that is the left or  
oceanside of the Lodge, generally facing west and adjacent to the ocean;  
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 9  
c) “Right” is the side of the Lodge when facing the Front that is to the right or  
mountain side of the Lodge, generally facing east; and  
d) “Back” is the opposite side of the Lodge as compared to the Front,  
generally facing north.  
However, notwithstanding I will use these defined terms, the lack of specificity in the  
manner in which various key witnesses described the four sides of the Lodge was a  
significant issue in the evidence.  
III.  
ISSUES  
[
21] The central issue raised in this litigation is liability. I must determine whether  
the plaintiffs have produced admissible evidence at trial which is sufficient to enable  
me to draw the reasonable inference that the Fire was caused by the spontaneous  
combustion of the Staining Materials: in the location the plaintiffs allege the Fire  
started; and as a result of the manner in which the Moerman Stainers stored the  
Staining Materials at the end of the day. Put another way, have the plaintiffs proven  
on a balance of probabilities that David Moerman Painting Ltd., Mr. Moerman and  
the Moerman Stainers (the Moerman Defendants”) should be found to be  
responsible at law for the damages to the Goff Property as a result of the Fire, or is  
the origin and cause of the Fire unable to be determined? For ease of reference I  
will refer to the Moerman Defendants as the defendants, as the remaining  
defendants settled with the plaintiffs before trial and entered into a B.C. Ferry  
Settlement.  
[
22] This trial is only on the determination of liability, as the parties have agreed on  
the quantum of damages. If I determine that the plaintiffs have proven that the Fire  
was caused by the negligence of the Moerman Stainers, I must then determine if  
any of the other defendants, the third parties, or the plaintiffs are also liable, and  
apportion liability accordingly.  
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 10  
[
23] To establish liability for the Fire, the plaintiffs must prove, on a balance of  
probabilities, that the admissible evidence (and the reasonable inferences I may  
make from the evidence) establishes the origin and cause of the Fire, namely, that:  
a) the Staining Materials were stored by the Moerman Stainers, at the end of  
the work day on May 16, in the location identified by the plaintiffs’ experts  
as being the location the Fire originated - namely the Back of the Lodge;  
b) the Staining Materials were stored in a manner which breached the  
standard of care for storage of rags soaked with the Stain - which  
although the plaintiffs’ theory evolved over the duration of the litigation, in  
reply argument they finally characterized as “left in a pile on the drop  
sheet”; and  
c) if the Staining Materials were stored at the Back of the Lodge, in a  
negligent manner, that they were able to spontaneously combust within  
the time line established - being from the time Mr. Dornian, Mr. Friesen  
and Mr. Robinson cleaned up the worksite when work concluded at  
approximately 6:30, to the Fire being discovered at approximately 10:30,  
to the Lodge being fully engulfed in flames by 11:11 pm.  
[
24] Cases where a damaged building has been completely destroyed by fire are,  
by their very nature, difficult cases to prove, as much of the critical evidence has  
been destroyed. Such cases necessarily turn on the reasonable inferences which  
can be drawn from the facts which are proven at trial. Such reasonable inferences  
must be grounded in the admissible evidence and cannot be based upon mere  
conjecture or speculation.  
[
25] To determine where and how the Staining Materials were stored, I will  
consider the totality of the lay evidence tendered at trial, as well as the weight I will  
give to the expert evidence tendered on the origin, cause and spread of the Fire by  
the plaintiffs and the defendants. To determine whether the Staining Materials were  
able to spontaneously combust within the time line established, I will consider both  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 11  
the lay evidence and the expert evidence tendered by the plaintiffs on the issue of  
the timing it takes for Stain soaked rags to reach flaming ignition as a result of  
spontaneous combustion.  
[
26] I will also consider my determination of two significant evidentiary rulings  
which arose late in the trial. While these two evidentiary issues would likely have  
been critical in many cases, they are particularly crucial in this one, given the lack of  
physical evidence of the origin and cause of the Fire as a result of the total burn of  
the Lodge.  
[
27] The first evidentiary issue arose when, the day before the defendants closed  
their case, they advised the plaintiffs they no longer intended to call the defendants  
Mr. Friesen and Mr. Robinson, who until that time had been on the defendants’  
witness list and on the trial schedule. The plaintiffs were caught by surprise by this  
decision, were given time to consider this unexpected event, and ultimately  
determined they would not seek to apply to re-open their case and call Mr. Friesen  
and Mr. Robinson as adverse witnesses; however, they argue I should draw a  
number of adverse inferences from the decision of the defendants to not call these  
two witnesses.  
[
28] The second evidentiary issue arose during closing argument when it became  
apparent that the plaintiffs were relying upon the Moerman Notes as being a  
probative piece of evidence, one which they characterized as centralto their case.  
The Moerman Notes record the comments of the Moerman Stainers at the meeting  
at the home of Mr. Moerman on May 18, 2016, two days after the Fire. The  
Moerman Notes were put to Mr. Moerman and to Mr. Dornian at trial, but not the  
other four Moerman Stainers (who did not testify at trial). The defendants objected to  
the admissibility of the Moerman Notes for the truth of their contents on the basis  
that they were a record of hearsay statements. The plaintiffs did not seek to have the  
Moerman Notes admissible as an admission by a party. Upon reflection, the plaintiffs  
then admitted they were not relying upon the Moerman Notes for the truth of their  
contents. However, during closing argument it became apparent that  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 12  
notwithstanding the plaintiffs’ admission the Moerman Notes were not admissible as  
evidence of the truth of the facts recorded in these statements, they were  
nonetheless taking the position they were admissible as evidence of the state of  
mind of the Moerman Stainers.  
[
29] Both of these evidentiary issues arose late in the trial. Their determination is  
necessary to determine the admissible and relevant evidence which I may consider  
to determine if the plaintiffs have proven liability for the Fire on a balance of  
probabilities. As a result, this case will turn not only on the reasonable inferences  
which I may draw from the findings of fact I make from the admissible evidence  
adduced at trial, but also on my determination of the use I may make of the  
Moerman Notes and the adverse inferences (if any) I determine are appropriate to  
draw.  
[
30] In my view, the plaintiffs have failed to prove on a balance of probabilities that  
the Moerman Stainers’ negligence caused the Fire. I do not accept that they have  
proven the Fire was caused by the spontaneous combustion of the soiled rags for  
the reasons set out below.  
IV.  
BURDEN OF PROOF IN A FIRE CASE  
[
31] The burden of proof in a civil case is proof on a balance of probabilities: F.H.  
v. McDougall, 2008 SCC 53 at para. 40. The plaintiffs bear the onus of proving the  
defendants were negligent in causing the Fire: that “but for” their negligence, the  
Fire would not have occurred: 1369349 Ontario Inc. v. Yanch Heating and Air  
Conditioning (Barrie) Limited, 2012 ONCA 182 at para. 5 [1369349 Ontario Inc.];  
Shorey v. Sesco Design/Build Inc., 2021 ONSC 869 at paras. 15 and 36.  
[
32] Counsel agreed that in this case no one saw the start of the Fire, and much of  
the evidence as to origin and cause of the Fire was destroyed. In such a case, the  
plaintiffs may discharge their evidentiary burden by adducing circumstantial  
evidence, which circumstantial evidence leads to a reasonable inference. This was  
addressed in R171 Enterprises Ltd. et al. v. Sunrise Construction Ltd. et al., 2005  
 
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Page 13  
BCSC 1081 at para. 9, citing from Lamont Health Care Centre v. Delnor  
Construction Ltd., [2003] A.J. No. 1511 (Q.B.) at para. 138, which provides:  
As in many cases of fire loss, there is no direct evidence here of cause.  
Therefore, to paraphrase Ryan J.A. in Wilson v. Sutherland (1976), 16 N.B.R.  
2d) 377 at 382 (S.C.A.D.), the Court is left to determine whether sufficient  
(
proof has been led by the Plaintiffs to enable a reasonable inference to be  
drawn that the fire originated as alleged, or to exclude any other fair inference  
as to cause (see also P.R.O. Holdings Ltd. v. Atlantic Speedy Propane  
Ltd. (2001), 234 N.B.R. (2d) 81 at para. 11 (C.A.)). [Emphasis added.]  
[
33] The legal burden of proof in a case of fire loss remains on the plaintiffs.  
However, the plaintiffs must only prove the origin and cause of the Fire to the legal  
standard, that is on a balance of probabilities, not to a strict scientific standard.  
Courts must take a “common sense” approach to causation rather than requiring  
scientific proof: see Aviva Canada Inc. v. Isolation Chaleur Insulation Ltée/Ltd.,  
2
009 NBQB 20 [Isolation Chaleur]; British Columbia v. Canadian Forest Products  
Ltd., 2018 BCCA 124 at para. 135.  
[
34] The plaintiffs are not required to disprove all other possible causes of the Fire,  
but rather are required to produce evidence to prove that their theory of origin and  
cause is probable and to exclude any other fair inference as to the origin and cause  
of the Fire: Isolation Chaleur at para. 47; Elder v. Kingston (City), [1954] 3 D.L.R.  
3
69 at 375 (Ont. C.A.). As eloquently explained in Isolation Chaleur:  
[
43] The plaintiff must therefore provide sufficient evidence to enable a  
reasonable inference to be drawn that the fire originated as a result of the  
negligence or breach of contract on the part of the defendant Isolation  
Chaleur, and further exclude any other fair inferences as to the cause of the  
fire. As a result, the plaintiff has the burden of proving that Isolation  
Chaleur, out of negligence or through breach of contract, caused the fire at  
the plaintiff’s place of residence on December 19, 2000.  
[
44] The law recognizes that the plaintiff is not required to prove  
conclusively that the defendant’s negligence caused the fire. The plaintiff  
only has to convince the court that a reasonable inference can be drawn  
from the totality of the evidence that supports the fact that it is more likely  
than not that the defendant’s negligence was the cause of the fire. See  
Westco Storage Ltd. v. Inter-City Gas Utilities Ltd., 1989 7270 (MB  
CA), [1989] 4 W.W.R. 289 (Man.C.A.).  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 14  
[
35] There is, however, a significant difference between inference and conjecture.  
An inference can only be drawn if it logically flows from the proven facts. Conjecture  
however, may be plausible but can be of no legal value, for it is in essence a guess  
that does not rest upon a compelling evidentiary foundation: Isolation Chaleur at  
para. 45; Sobeys Land Holdings Ltd. v. Harvey & Company Limited, 2008 NLTD 154  
at para. 33 [Sobeys]. In Taylor v. West, 2016 BCSC 1821 at para. 158 [Taylor],  
Justice Fitzpatrick quoted Everatt v. Elgin Electric Ltd., [1973] 3 O.R. 691 (H.C.J.) at  
6
97 [Everatt] where Lerner J. summarized that [t]here must be evidence from which  
it can be fairly inferred, not simply guessed, that the damage caused by the fire was  
the result of the defendant’s conduct”. If, upon a review of the evidence, the origin  
and cause of the fire remains a mystery, the action must be dismissed as the  
plaintiffs have failed to satisfy their burden of proof: Everatt at 697.  
[
36] As set out by Justice Orsborn in Sobeys, caution should be exercised before  
making a determination that factual inferences should be drawn, especially when the  
scene of the Fire is under the control of the plaintiffs, counsel assist in developing a  
litigation case, and an intention exists to build a case against a defendant before any  
comprehensive investigation: at paras. 36 to 40. He noted:  
[
40]  
… Clearly, inferences can only be drawn from proven facts – they  
cannot be drawn from speculation or conjecture. But whether an inference  
should be drawn from proven facts is a decision that requires careful  
weighing of all of the facts, both pro and con, that bear on the inference.  
Once a factual inference is drawn, it is considered to be a proven fact; that is,  
the process of drawing the inference is equivalent to establishing proof of a  
fact. In the circumstances of this case, the proof of facts related to causation  
of the fire cannot be taken lightly. An attractive appeal to common sense  
cannot displace the need for a careful examination of the factual support, if  
any, for the various scenarios advanced by Sobeys. [Emphasis in original.]  
[
37] The plaintiffs’ position is that they have marshalled sufficient evidence at trial  
that allows me to draw reasonable inferences of fact. They say that when the body  
of evidence is viewed through the lens of common sense, the only reasonable  
conclusion is that the Fire started because the Staining Materials were negligently  
left at the end of the day, spontaneously combusted, and resulted in the Fire. They  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 15  
say that Mr. Moerman, his company, and the Moerman Stainers are completely and  
solely responsible for the Fire.  
[
38] The defendants say that the plaintiffs are asking that I make:  
a) findings of fact based on ambiguous examination for discovery read-ins as  
to what was meant by the “back” of the Lodge;  
b) the reasonable inference that the soiled rags were “left in a pile” when the  
evidence does not support such an inference; and  
c) the reasonable inference that the handling of the soiled rags increased  
their temperature to the point that they spontaneously combusted within  
the time frame established for the Fire, and that this resulted in the spread  
of the Fire, when the expert evidence does not support such an inference.  
[
39] They say that given the paucity of evidence, the plaintiffs are fundamentally  
seeking that I make a decision on the basis of res ipsa loquitur, which is no longer  
applied by Canadian courts in cases involving circumstantial negligence, to infer  
negligence where no other reasonable explanation exists: Fontaine v. British  
Columbia (Official Administrator), [1998] 1 S.C.R. 424 at 435; Marchuk v. Swede  
Creek Contracting Ltd., 116 B.C.A.C. 318, 1998 6280 (B.C.C.A.) at para. 9.  
In such cases the issue becomes whether “after weighing the whole of the direct and  
circumstantial evidence, the plaintiff has established a prima facie case of  
negligence against the defendant, and that inference has not been negated by the  
defendant’s evidence”: Marchuk at para. 10.  
[
40] As already set out, there is no necessity for the defendants to provide an  
alternative explanation for the origin and cause of the fire: Everatt at 698; Taylor at  
paras. 74 and 158. If, upon a review of the evidence, I determine that the origin and  
cause of the fire is unknown, then the plaintiffs have failed to establish the burden of  
proof upon a balance of probabilities, and I am required to dismiss the action:  
1
369349 Ontario Inc. at para. 5.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 16  
[
41] The defendants say that given the admissible evidence at trial and the  
inferences the plaintiffs are asking me to make - both reasonable and adverse the  
plaintiffs are asking me to reach a conclusion based on a determination that the  
occurrence of the Fire itself must imply negligence on the part of the Moerman  
Defendants. They say I must dismiss the claim, and to do otherwise would be to  
conclude that the occurrence of the Fire in and of itself is enough to support a  
conclusion of negligence, which would be to reach a conclusion based upon the  
doctrine of res ipsa loquitur.  
V.  
RELEVANT LAY WITNESS EVIDENCE ON THE ISSUE OF LIABILITY  
A. SPONTANEOUS COMBUSTION WARNINGS FOR SIKKENS STAIN  
42] The parties’ agree that the Sikkens Stain product carried with it warnings of  
[
the ability for improperly stored materials contaminated with the Stain to  
spontaneously combust.  
[
43] The Stain can had a flammable and poisonous symbol, and the following  
warning on the label:  
CONTENTS HARMFUL. DANGER OF COMBUSTION. MAY IRRITATE  
EYES. Do not swallow. Do not get in eyes. Keep away from flames or sparks.  
Keep out of reach of children. Wear protective gloves and eye/face  
protection: chemical splash goggles. Use chemical-resistant, impervious  
gloves. Materials such as rags used with this product may begin to burn by  
themselves. After use, put rags in water or lay flat to dry, then discard.  
[
44] There is also a Material Safety Data Sheet, a Technical Safety Data Sheet,  
and a Safety Data Sheet that provide warnings for the use of the Stain as set out  
below. These data sheets are available online, and are sometimes available at the  
time the Stain is purchased.  
[
45] The Material Safety Data Sheet contained a Hazard Identification of  
DANGER! COMBUSTIBLE LIQUID AND VAPOR. It went on to provide specific  
instructions for the proper handling of materials used in the staining process:  
Materials such as cleaning rags, paper wipes and protective clothing, which  
are contaminated with the product may spontaneously self-ignite. To avoid  
the risks of fires, all contaminated materials should be placed in a metal  
 
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 17  
container filled with water and sealed. Contaminated materials should be  
removed from the workplace at the end of each working day and be stored  
outside.  
[
46] The Technical Data Sheet warned, under Safety Measures, to “Read the  
Materials Safety Data Sheet” and went on to warn:  
DANGER OF COMBUSTION. Materials such as rags used with this product  
may begin to burn by themselves. After use, put rags in water or lay flat to  
dry, then discard. Keep away from flames or sparks.  
[
47] Finally, the Safety Data Sheet warned: “Keep away from heat, hot surfaces,  
sparks, open flames and other ignition sources. No smoking”. It went on to provide  
the following under “Supplemental label elements”:  
DANGER-RAGS, STEEL WOOL OR WASTE SOAKED WITH THIS  
PRODUCT MAY SPONTANEOUSLY CATCH FIRE IF IMPROPERLY  
DISCARDED. IMMEDIATELY AFTER EACH USE, PLACE RAGS, STEEL  
WOOL OR WASTE IN A SEALED WATER-FILLED METAL CONTAINER.  
B.  
PAUL LOETSCHER, DOROTHEE ROSEL AND REAY FOSTER  
[
48] Mr. Loetscher and Ms. Rosel are the caretakers of the Goff Property. They  
met the Moerman Stainers at the dock on May 15, 2016, and assisted them in  
getting settled in the Dorm. Mr. Loetscher then did a walk through of the job site with  
Mr. Dornian and one of the other Moerman Stainers. He showed Mr. Dornian where  
the scaffolding was set up at the corner of the Left side of the Lodge (adjacent with  
the Front of the Lodge), and recommended that the Moerman Stainers start work on  
the Left side of the Lodge because it had the most sun and so would get warm.  
Mr. Dornian agreed. They discussed sanding the logs, dusting them off, and then  
staining them.  
[
[
49] Ms. Foster was also working at the Goff Property on May 15 and 16.  
50] The morning of May 16, Mr. Loetscher checked on the Moerman Stainers to  
ensure they were good to go, and then he and Ms. Rosel left to do other work that  
day. Mr. Loetscher testified that most of the windows of the Lodge were opened up  
to air out the Lodge before the Goffsarrival.  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 18  
[
51] Both Mr. Loetscher and Ms. Rosel testified that the exterior lights at the Back  
of the Lodge were neither on a timer nor a motion sensor, but rather were operated  
with a manual switch inside the door, and that neither on May 16 nor in the days  
before had either of them turned the lights at the Back of the Lodge on.  
[
52] Mr. Loetscher also testified that he had a conversation with Mr. Dornian, likely  
on May 16, where Mr. Dornian asked whether he should bring the Staining Materials  
back to the Dorm at the end of the work day, and Mr. Loetscher told him he should  
store them at the Back of the Lodge (as I have defined it to be) where it was covered  
and out of the weather. However, neither Mr. Loetscher nor Ms. Rosel saw where  
the Moerman Stainers stored the Staining Materials after work on May 16.  
[
53] After dinner on May 16 Mr. Loetscher went to turn off the irrigation system by  
turning off the hose bib on the Left side of the Lodge, and on his way back to the  
Dorm he touched one of the logs on the Left side of the Lodge that had already been  
stained, noticed the Moerman Stainers had completed all 3 floors of staining on the  
Left of the Lodge, and that the log was still tacky.  
[
54] Mr. Loetscher and Ms. Rosel then went to bed in the Dorm, and were awoken  
at approximately 10:30 pm by someone screaming. When they went outside they  
realized the Lodge was fully engulfed in flames, and Mr. Loetscher realized the  
forest was starting to catch fire and there were sparks landing on the deck of the  
Dorm. He was concerned about the propane and gas tanks, and decided it was  
necessary for everyone to evacuate from the Goff Property. While the times on the  
Security Stills may not be exactly synchronized with the times reported by witnesses,  
when taken together they do provide a useful approximate timeline of events.  
[
55] Everyone present at the Goff Property loaded onto two boats and left to go to  
Malibu Camp. On the boat Mr. Loetscher was driving were also Ms. Rosel,  
Ms. Foster, Mr. Dornian, Mr. Chan, and some of the other Moerman Stainers. The  
remaining Moerman Stainers went in the second boat. Mr. Loetscher testified that he  
was looking at the Fire and wondering to himself what could possibly have caused it,  
and when he asked Mr. Dornian what he did with the Stain soaked rags, Mr. Dornian  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 19  
told him he had put them in garbage bags. Mr. Chan said the oiled rags were “not  
that soiled”. On-cross examination, Mr. Loetscher agreed that neither Mr. Dornian  
nor anyone else said the garbage bags were stored at the Back of the Lodge but  
rather that was an assumption Mr. Loetscher made. Mr. Loetscher further testified  
that when Mr. Dornian asked him why he asked, Mr. Loetscher answered  
“spontaneous combustion”. Ms. Rosel corroborated on cross-examination that she  
heard one of the Moerman Stainers telling Mr. Loetscher he put oily rags in a bag.  
Ms. Foster likewise corroborated that she remembers one of the Moerman Stainers  
saying repeatedly “I can’t believe we did this” over and over, and expressing guilt  
that they had started the Fire with bags of rags they had left on the porch or outside  
the house.  
[
56] On the boat leaving the Lodge, Ms. Rosel took a video of the Fire (the  
Video”). The parties reached agreement that the transcript of the Video records the  
following:  
Paul Loetscher:  
The oily rags you put inside the bag?  
Moerman Worker:  
They were like, just stuff we used to wipe down; they  
weren’t soaked or anything.  
Paul Loetscher:  
Dorothee Rosel:  
Moerman Worker:  
Yeah; we’ll never know what it is.  
Umm  
Yeah, like ….  
[
57] Mr. Loetscher believed it was Mr. Chan who said “They were like, just stuff we  
used to wipe down; they weren’t soaked or anything”.  
C.  
DAVID MOERMAN  
[
58] The defendant David Moerman is the sole owner and operator of Moerman  
Painting Ltd., which carries on business as Elite Trade Painting, and which operates  
as a franchisee of Elite Trade Contracting Limited. Mr. Moerman has operated as a  
painting franchisee since 2009, first as a franchisee of University Contracting  
Corporation Limited, and since approximately 2012 as a franchisee of Elite Trade  
Contracting Limited. Moerman Painting Ltd. is primarily a residential painting  
company, doing mostly exterior painting.  
 
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 20  
[
59] Mr. Moerman’s evidence was that prior to the work at the Goff Property, he  
had never used the Stain, nor any similar product. He did not do any research, nor  
make any inquiries, about the Stain. He had never heard of the phenomenon of  
spontaneous combustion before the Fire occurred.  
[
60] Notwithstanding Mr. Moerman advised Mr. Loetscher and Ms. Rosel on April  
3, 2016 that “I have a really good crew of 3 4 guys who will come up for 2 weeks  
2
if that is okay with you”, he agreed that as of the time of that email he had not yet  
hired the Moerman Stainers. He ultimately hired the Moerman Stainers for the work  
to be done at the Goff Property, as none of his existing employees were available for  
the job. Mr. Moerman made no inquiries as to whether any of them had experience,  
other than Mr. Dornian whom he knew had some painting experience. He did not  
provide any training to the Moerman Stainers before they commenced their work.  
Mr. Moerman was not present at the Goff Property on May 15 or 16.  
[
61] Mr. Moerman purchased the Stain from two third party defendants, Langley  
Decorating Centre Inc. and Fleetwood Paint and Decorating.  
[
62] The defendants acknowledge that neither Mr. Moerman nor any of the  
Moerman Stainers read the warnings on the labels of the Stain cans and pails.  
[
63] After Mr. Dornian called him on May 17 to tell him the Fire had occurred,  
Mr. Moerman testified he started to do his own initial research and googled “fire”,  
stain” and “rags”. That was when he learned that soiled rags could “spark up and  
start a fire”, and first became aware of the phenomenon of spontaneous combustion.  
He texted the Moerman Stainers to come to his condo on May 18, 2016 for a  
meeting, to make sure they were all okay, and to hear what had happened at the  
Goff Property. Mr. Moerman testified that the meeting on May 18, 2016 took  
approximately 30 to 40 minutes, and he took notes on his computer during the  
meeting (the “Moerman Notes” as defined above). All of the Moerman Stainers  
contributed to the discussion, but he could not recall who said what, nor did he  
attribute statements to any particular individual in the Moerman Notes. Prior to the  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 21  
meeting he never discussed the orientation of the Lodge with the Moerman Stainers,  
nor did he refer to any pictures during the meeting.  
[
64] When his memory was refreshed by the Moerman Notes, he could not recall  
any more specific details than what was written in them. Mr. Moerman did not send  
any of the Moerman Stainers a copy of the Moerman Notes, nor did any of them  
review the contents of the notes. He confirmed that he did his best to accurately  
record what the Moerman Stainers said at the meeting.  
D.  
LOCATION OF THE STAINING MATERIALS  
[
65] As neither Mr. Loetscher nor Ms. Rosel saw where the Moerman Stainers left  
the Staining Materials at the end of the work day on May 16, the only three potential  
witnesses as to the location of the Staining Materials (and the manner in which they  
were stored) are the three Moerman Stainers who cleaned up the work site at the  
end of the workday - Mr. Friesen, Mr. Robinson and Mr. Dornian. The parties agreed  
the workers stopped painting at approximately 6:30 pm, and then these three stayed  
behind to clean up. As neither Mr. Friesen nor Mr. Robinson were called by the  
defendants to testify at trial, their evidence is limited to the portions of their  
examination for discovery transcripts that the plaintiffs read in as part of their case  
(subject to the plaintiffs’ argument that adverse inferences should be drawn as a  
result of their failure to testify, dealt with below).  
[
66] Unfortunately, at none of the three examinations for discovery was the  
orientation of the Lodge discussed, nor were the four sides of the Lodge agreed to  
be described in a specific manner. Further, at Mr. Friesen and Mr. Robinson’s  
examinations for discovery, the photos put to them were not marked as exhibits.  
This is problematic as the document put to them had two photographs, not just one.  
[
67] The plaintiffs argue that I should conclude from the examination for discovery  
read-ins that the Moerman Stainers understood the “back” of the Lodge to be the  
side I have defined as the Back. Therefore, they argue that the references to the  
“back” of the Lodge during the examinations for discovery of Mr. Friesen,  
Mr. Robinson, Mr. Dornian and Mr. Chan must lead me to draw the reasonable  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 22  
inference that the Staining Materials were stored at the Back of the Lodge. This is  
the area of origin of the Fire both of their experts Mr. Broad and Dr. Craft - opine  
to.  
[
68] Further, should I find the Moerman Notes to be admissible in the manner  
argued for by the plaintiffs, they say the references to the location of the storage of  
the Staining Materials in the Moerman Notes should also be taken as relevant  
evidence as to where the Staining Materials were left at the end of the day.  
[
69] However, because counsel did not specifically address the orientation of the  
Lodge with the parties at the relevant examinations for discovery, nor were the four  
sides of the Lodge assigned specific designations, I cannot make the determination  
argued for by the plaintiffs based on the ambiguous and frequently confusing  
evidence. Such a finding would be to ascribe a particular definition to ambiguous  
evidence. Further, without clear definitions, descriptions such as “at the back” are  
capable of very different meanings than defined terms of Back and Front would  
delineate.  
1
.
Mr. Friesen  
[
70] The plaintiffs read in excerpts from Mr. Friesen’s examination for discovery as  
part of their case. There were no read-ins in which Mr. Friesen was oriented as to a  
description of the four sides of the Lodge, nor were any of the photographs put to  
him marked as exhibits. This is a problem because the document described in the  
transcript consisted of two photographs, not one - one photograph of just the Left  
side of the Lodge, and one photograph of the corner of the Left side and the Back of  
the Lodge. Further, the exhibits marked at Mr. Dornian’s examination for discovery  
were not put to Mr. Friesen. The relevant read-ins relied upon by the plaintiffs for  
Mr. Friesen are as follows:  
1
93 Q Sometimes. Okay. And then I’m showing you another photo. This is  
plaintiffs’ document 1.8, page 1 of that document. First of all, can  
you tell me if you’re able to, are you one of the two workers  
depicted in that photograph?  
A
Do you mind if I --  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 23  
1
94 Q Yeah, sure.  
I cannot say with certainty.  
A
195 Q Okay. And can you tell me what part of the lodge is depicted in this  
photo?  
A
Left side, touch of the back.  
[
Emphasis added.]  
[
71] The defendants admit it is clear from Q 193 which photograph the question is  
referring to, as it refers to two workers (being the document at Exhibit 3, Joint Book  
of Documents, Tab 16, which depicts the corner of the Back and the Left of the  
Lodge). Of the two photographs at plaintiffs’ document 1.8, I am satisfied that the  
photograph with two workers is the photograph showing the Left side of the Lodge,  
and part of the Back of the Lodge.  
[
72] The plaintiffs argue that Mr. Friesen’s answers to these questions  
demonstrates that he “clearly understood the Back of the Lodge to be the side  
shown on the left side of the photo”.  
[
73] The plaintiffs also read in the following questions and answers from  
Mr. Friesen’s examination for discovery:  
2
16 Q So at the end of the work day when everything was done for the  
day, who cleaned up, you know, brushes, rags, drop cloth, sanding  
materials, all of that, who cleaned up?  
A
The remaining three  
17 Q Okay. So the three of you guys worked together on that?  
Yes.  
18 Q Okay. And tell me how you did that. What did you do to clean up?  
2
2
A
A
We essentially moved our tools and materials to the back of the  
house.  
2
19 Q Yes.  
In the shade.  
Emphasis added.]  
A
[
[
74] Notwithstanding I accept that Mr. Friesen was being shown a photograph of  
the corner of the Left and Back of the Lodge when answering questions 193 through  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 24  
95, I am not satisfied that his answer to question 218 is clear evidence that they  
1
moved the Staining Materials to the Back of the Lodge. His answer is indicative of a  
direction they moved the Staining Materials in - to the back - but is not clear  
evidence they were in fact stored on the side of the Lodge defined as the Back. As a  
result of this ambiguity, I find this evidence to have no probative value.  
2
.
Mr. Robinson  
[
75] The plaintiffs also read-in as part of their case a number of excerpts from  
Mr. Robinson’s examination for discovery, but again, but there were no read-ins  
which clearly oriented Mr. Robinson to an orientation or description of the four sides  
of the Lodge, nor any specific identification of what he meant by the “back” of the  
Lodge. The relevant read-ins relied upon by the plaintiffs from Mr. Robinson are as  
follows:  
2
85 Q All right. So at the end of the day what did you do with the rags and  
brushes and sand blocks and the rest of the tools and equipment  
and supplies that were used?  
A
I think we gathered them from where they were and then I think we  
stored them under cover.  
286 Q Where?  
A
I believe - - I’m not 100 percent certain, but I think it was  
somewhere near the back of the building, what we would call the  
back.  
292 Q Okay. And on the same document, sir [being the Moerman Notes],  
close to the middle of the page there’s a sentence that begins  
Back of house at ground level”.  
Yeah, I see it.  
93 Q And then in brackets “(2nd storey), it reads:  
A
2
Sanding blocks, rags, paint brushes, drop sheets, half a pale  
of stain, empty stain cans, few feet from house, all under  
cover in shade.”  
Is that consistent with your recollection of where all the gear was  
left at the end of the work day that day?  
A
Yes. I remember it being stored at the back of the house under  
cover.  
[
Emphasis added.]  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 25  
[
76] I note that the issue of the admissibility of the Moerman Notes - as put to  
Mr. Robinson in this portion of his examination for discovery - is dealt with below.  
Counsel for the defendants had no objection to the use by plaintiffscounsel of the  
Moerman Notes at Mr. Robinson’s examination for discovery, nor any argument that  
it rendered this read-in inadmissible.  
[
77] For the same reasons as set out for Mr. Friesen, I find this evidence  
ambiguous and to have no probative value.  
3
.
Mr. Dornian  
a) Examination for Discovery Read-Ins  
78] The plaintiffs read in a number of excerpts from Mr. Dornian’s examination for  
[
discovery, but again there were no read-ins which clearly oriented Mr. Dornian to an  
orientation or description of the four sides of the Lodge. As with Mr. Robinson, the  
issue of the admissibility of the Moerman Notes - as put to Mr. Dornian in this  
portion of his examination for discovery - is dealt with below. Again, there was no  
objection by counsel for the defendants to either the use by plaintiffs’ counsel of the  
Moerman Notes at Mr. Dornian’s examination for discovery, nor any argument it  
rendered this read-in inadmissible.  
[
79] The plaintiffs read in the following from Mr. Dornian’s examination for  
discovery:  
4
02 Q Did you collect everything that was laying around?  
M’mm-hmm.  
03 Q Yes?  
Yeah.  
04 Q Okay.  
Yeah.  
A
4
A
4
A
405 Q And you don’t remember or you do remember putting all of the  
material together in one place?  
A
Yeah, they were all under cover.  
406 Q Okay. Do you remember putting them together and rolling them up  
in the drop sheet?  
 
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 26  
A
I don’t remember that, no.  
07 Q Okay. Still looking at this same document, defendants’ document  
.36 [the Moerman Notes], the next paragraph from the one we  
were just looking at, it says “Gear,” it begins – it says:  
Gear was stored by the house at the back …”  
4
1
Now, by “gear” you mean the stuff that you had been working  
with through the day?  
A
Yeah, whatever we had used that day.  
4
4
4
08 Q The brushes, the rags, that kind of thing?  
M’mm-hmm.  
09 Q Yes?  
Yes.  
A
A
10 Q Okay. And it says here, these notes say those materials, that gear,  
was stored, that means at the end of the day presumably?  
A
Yeah.  
411 Q  
by the house at the back, but no staining had been done in  
that area.”  
So, again, doesn’t this seem to say that it’s at the back of the  
lodge, the side away from the front?  
A
Back, yes.  
[
Emphasis added.]  
[
80] However, the defendants were allowed to read in the following questions as  
context to clarify Mr. Dornian’s questions and answers 402 through 411:  
3
84 Q And when you finished up what did you do?  
When I finished ---  
A
385 Q You were still at the lodge and you finished staining  you were  
staining; right?  
A
M’mm-hmm.  
86 Q Yes?  
Yeah.  
87 Q And then what did you do?  
3
3
A
A
We would have everything kind of in this undercover area there.  
Like, it would have been the far side to the dormitory, yeah.  
388 Q Okay, you put them under cover.  
A
M’mm-hmm.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 27  
389 Q What did you do? What did you actually do with those?  
A
I don’t remember specifically what we did but we really just kind of  
crammed everything underneath that. Cram isn’t – we just put  
everything under the undercover because it started spitting at the  
end of the day and we were thinking it might, like, rain or whatever.  
Like, misting, I should say, and so we put everything -- that’s why  
we put everything under cover there.  
390 Q When you say “under cover”, you mean under the cover of the  
eaves?  
A
yeah, there was like a little deck on the back side -- or the farthest  
side there. Yeah.  
3
91 Q Okay. What did you do with the rags and the brushes?  
I don’t remember specifically.  
A
392 Q Okay. Again, if we look at defendants’ document 1.36, that same  
paragraph we were looking at a minute ago, it says:  
Rags stored at back of house”.  
A
M’m-hmm  
393 Q But you’re now saying you recall it being stored on the side of the  
house?  
A
Well, it depends what you define as the back I guess. Back being,  
like, as in if the dorm is here it was on the farthest back side from  
the dormitory. Like, I call it the side. I don’t know.  
3
3
3
94 Q So back to me means the opposite of the front.  
Yeah, so it was the side.  
95 Q So this notes says the back of the house.  
M’mm-hmm.  
A
A
96 Q So would you agree with me that normally people would say that  
the back of something is the opposite of the front of it.  
A
Yeah.  
[
Emphasis added.]  
[
81] The plaintiffs also read in the following questions and answers:  
581 Q All right, Mr. Dornian, we’re back at it. Following from your evidence  
about how the job progressed and where you ended for that first  
th  
day of May 16 , I showed you this photo earlier this morning. It’s  
plaintiffs’ document 1.8, page 1, and here it is in print, same photo.  
And I believe you said that this was a photo of the front. Do you  
want to reconsider your evidence on that point? Isn’t this where  
you guys ended up at the end of the day?  
A
Yes.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 28  
582 Q Okay. And, again, if we’re standing with our back to the water  
facing the front of the lodge –  
A
Yes.  
83 Q -- this photo depicts the rear left corner.  
Yes. Yes.  
5
A
5
84 Q Okay. So this is pretty close to where you  or maybe not you, but  
as you recall where the rags and the brushes and the drop cloth  
and the like were left?  
A
It would have been, yeah, to the left of the photo, yeah.  
[
Emphasis added.]  
[
82] The plaintiffs argue that questions 581 through to 584 were asked after some  
rather confusing evidence, and were intended to clarify Mr. Dornian’s evidence.  
They say that those questions are the relevant evidence, as it substantiates their  
argument that the Staining Materials were left at the Back of the Lodge. They base  
this on Mr. Dornian’s evidence that the Staining Materials were left “to the left of the  
photo”.  
[
83] However, the defendants were allowed to read in questions and answers 439  
through 462 as context to clarify questions and answers 581 through 584. Through  
those questions and answers Mr. Dornian clearly marked two exhibits in red marker  
at his examination for discovery, both clearly showing what is agreed to be the Left  
side of the Lodge. On both he clearly identified in red marker where he said the  
Staining Materials were stored at the end of the day on May 16 - underneath the  
balcony on the Left side of the Lodge. These two exhibits from Mr. Dornian’s  
examination for discovery were entered as exhibits at trial (Exhibits 48 and 49).  
[
84] I do not accept the plaintiffs’ argument that the two exhibits Mr. Dornian  
marked showing where the Staining Materials were stored at the end of the day on  
May 16 were confusing and inaccurate. Rather, they were clearly photos of the Left  
side of the Lodge, on which Mr. Dornian clearly identified that the Staining Materials  
were stored under a balcony on the Left side of the Lodge. These two exhibits are  
the best evidence tendered as to where the Staining Materials were stored at the  
end of the day.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 29  
[
85] Further, in questions 581 through 584, there is no identifying description of  
the photograph being put to Mr. Dornian (plaintiffs’ document 1.8, comprised of two  
pages of photographs - one of the Left side of the Lodge and one of the corner of the  
Left and Back of the Lodge), nor was the photograph marked as an exhibit. Given  
the orientation of the Lodge vis a vis the ocean, it is possible to stand with your back  
to the water facing the Left of the Lodge, or to stand with your back to the water  
facing the corner of the Left and the Front of the Lodge, but it is not possible to stand  
with your “back to the water” while “facing the front of the Lodge”. As there is no  
description of who was in the photograph, nor the orientation of the Lodge, nor was  
the photograph marked as an exhibit, I cannot determine which photograph was  
being put to Mr. Dornian through this questioning. However, and perhaps most  
critically, I do not find Mr. Dornian’s statement that the Staining Materials “were left  
to the left of the photo” to be contradictory to his clear evidence, in marking the two  
exhibits, that the Staining Materials were left on the Left side of the Lodge,  
underneath the balcony. I do not accept the plaintiffs’ argument that questions 581  
through 584 of Mr. Dornian’s examination for discovery transcript lead to the  
conclusion that his marking of these two exhibits was in any way incorrect or  
inadmissible.  
[
86] While the defendants acknowledge that Mr. Dornian’s answer to question 584  
is perhaps confusing given his marking of the two exhibits, they note this confusion  
could have been remedied at this time by again showing him those exhibits. At trial,  
when shown a photograph of the corner of the Back and Left side of the Lodge  
(Exhibit 16), Mr. Dornian clearly testified that the Staining Materials were not in fact  
stored to the left of the photograph (on the Back side of the Lodge) but rather were  
stored to the right of the photograph (or on the Left side of the Lodge). The marked  
exhibits from his examination for discovery were consistent with his evidence at trial.  
b)  
Evidence at Trial  
[
87] At trial, Mr. Dornian explained he graduated from high school in 2006,  
obtained a ticket in carpentry from BCIT in 2011, and he then worked as a former  
and framer. In 2015 and 2016 he went to bible college. From high school onwards  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 30  
he also worked for his mother, who owned a painting company, on a part time basis,  
working for her on summer holidays, in between his own jobs, and whenever she  
needed help. Through working for his mother, he had experience with residential  
interior and exterior painting, but no staining experience.  
[
88] Mr. Dornian was the oldest and most experienced of the Moerman Stainers,  
and he was assigned the role of crew leader or supervisor of the crew by  
Mr. Moerman. He agreed that he spoke with Mr. Loetscher on May 15 when they  
arrived, and walked around the Goff Property that day. He confirmed that he had no  
discussions with Mr. Loetscher about the orientation of the Lodge, nor descriptions  
of the four sides of the Lodge, and he confirmed that none of the Moerman Stainers  
had agreed upon terms for the sides of the Lodge. He testified that the Moerman  
Stainers started working where the scaffolding was located, and worked on the Left  
side of the Lodge on May 16. Mr. Dornian’s evidence was that he called the Left side  
of the Lodge the back, because it was the farthest side from the Dorm where they  
had walked from. He explained that they walked from the Dorm, up the gravel road,  
and across the lawn to the Left side of the Lodge. The Moerman Stainers started  
work where the scaffolding had been set up, and moved clockwise ending “by the  
chimney” on the Left Side, close to the Back side of the Lodge. The Moerman  
Stainers focussed on staining the body of the Left side of the Lodge, and  
Mr. Dornian’s explanation was that he wanted to focus on staining the one side of  
the Lodge to give the Moerman Stainers some experience, before they started to do  
more complicated work such as staining spindles or balconies. They did not stain  
these areas of the Left side on May 16.  
[
89] Mr. Dornian explained that neither he nor any of the other Moerman Stainers  
did any staining on what I have defined as the Back of the Lodge on May 16, and  
that his plan for work the next day was to continue to work clockwise, to move the  
scaffolding around the corner and to commence to stain the Back of the Lodge.  
Mr. Dornian did not go around to the Back of the Lodge, did not recall seeing anyone  
go around to the Back of the Lodge, nor did anyone tell him they went around to the  
Back of the Lodge.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 31  
[
90] At trial, Mr. Dornian testified he directed and supervised the clean up at the  
end of the day on May 16. He sent Mr. Chan and Mr. Giesbrecht back to the Dorm  
and he, Mr. Friesen and Mr. Robinson cleaned up at the end of the day. He testified  
in direct examination that they stored the Staining Materials under the balcony on  
the side of the Lodge they had stained that day, which he said he called the back”  
of the Lodge, but which for the purpose of these reasons for judgment I have defined  
as the Left side of the Lodge. They stored the Staining Materials centered under the  
cover of the balcony, in front of the door, two to three feet from the door (in the area  
that had not been stained yet). There was no evidence that as of May 16  
Mr. Dornian and the other Moerman Stainers had any agreed upon specific terms to  
describe the four sides of the Lodge. At trial Mr. Dornian again confirmed the storage  
location on the Left side of the Lodge, under the balcony and in front of the doorway,  
on a photograph admitted into evidence (Joint Book of Documents, Tab 14,  
photograph 047). The storage location he identified in direct and cross-examination  
was consistent with his evidence at his examination for discovery, and with the  
exhibits marked at that examination for discovery, and tendered as exhibits at trial  
(Exhibits 48 and 49). Mr. Dornian further testified that the scaffolding at the end of  
the day on May 16 was on what I have defined as the Left side of the Lodge, “tucked  
in that corner beside the chimney”, close to the corner of the Left and Back side of  
the Lodge.  
[
91] Mr. Dornian explained that he did not want to store the Staining Materials  
around the corner (on what I have defined as the Back of the Lodge) as he would  
then have to move them out of the way the next day to allow the Moerman Stainers  
to commence work on the Back of the Lodge the following morning. Storing them  
underneath the balcony on the Left side of the Lodge was in a shady location, and  
was undercover and protected from the “spitting” rain. Mr. Dornian remained clear in  
this evidence on cross-examination. Mr. Dornian also testified that the scaffolding  
was not moved from its location on the Left side of the Lodge at the end of the day  
on May 16, and that his plan for the morning of May 17 was to first move the  
scaffolding around the corner to the Back and then start work on that side of the  
Lodge.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 32  
[
92] On cross-examination, Mr. Dornian admitted he could not recall a  
conversation with Mr. Loetscher as to whether they should move all of the Staining  
Materials back to the Dorm at the end of the work day.  
4
.
Mr. Chan  
[
93] Notwithstanding that Mr. Chan did not assist in the clean up of the Staining  
Materials, the plaintiffs read in the following questions and answers as evidence of  
his understanding of what was meant by the “back” of the Lodge. As with  
Mr. Friesen and Mr. Robinson, there were no read-ins which clearly oriented  
Mr. Chan to an orientation or description of the four sides of the Lodge, nor any  
specific identification of what he meant by the “back” of the Lodge. Again, the  
photograph put to him was not marked as an exhibit, but given the description that it  
showed two workers on the scaffolding, it appears probable that it is the same  
photograph shown to Mr. Friesen. The plaintiffs argue his examination for discovery  
read-ins demonstrate he had the same understanding of the “back” of the Lodge as  
they say Mr. Friesen did:  
2
07 Q And if I show you plaintiffs’ document 1.8, page 1 of that document,  
you agree it shows two workers on scaffolding. Do you recognize  
either of those two workers? Could you identify either of them?  
MR. EGED: Let him see it closer.  
MR. BAILEY:  
208 Q Oh, sure.  
A
That’s Brad. I’m not sure who the top person is.  
209 Q Okay. So you identified Brad Dornian as the one on the lower level  
of the scaffolding?  
A
Correct.  
2
2
2
10 Q Okay. And, again, are you able to discern the time of day or the  
point in the job that this photo was taken?  
A
No.  
11 Q Are you able to tell from this photograph the part of the lodge that  
those two guys are working at?  
A
Yes.  
12 Q Okay. And what part of the lodge are they working at in this photo?  
It would be the left side if you’re facing the front.  
A
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 33  
213 Q All right. And on this same photograph there’s a door to the left.  
The wall that that door is in is the back of the lodge?  
A
Correct.  
[
94] The defendants argue that Mr. Chan’s evidence is not relevant, as he had left  
the work site before the Staining Materials were cleaned up, and so has no relevant  
evidence on either the location or the manner of storage of the Staining Materials at  
the end of the day. His understanding of what he believed the “front” and the “back”  
to be are not relevant. There is no evidence that all of the Moerman Stainers had  
agreed to designations for the four sides of the Lodge or had the same  
understanding. I agree.  
5
.
Mr. Unger  
[
95] Michael Unger was retained as an independent insurance adjuster. Mr. Unger  
attended at the Goff Property twice: first on May 20, 2016 with a colleague and  
second on May 23, 2016 with Scott Broad, whom he had retained as an origin and  
cause investigator for the Fire.  
[
96] On June 2, 2016, Mr. Unger reviewed Mr. Broad’s preliminary report on the  
origin and cause of the Fire, and realized Mr. Broad’s opinion was that the origin and  
cause of the Fire was indeterminate.  
[
97] Mr. Unger took a number of photographs after the Fire, which he included in  
his First Adjuster’s Report dated June 9, 2016. There was no disagreement at trial  
that in this report he referred to the four sides of the Lodge in a different manner  
than they were referred to by counsel at trial. He noted that the Moerman Stainers  
had stained the “rear” wall of the Lodge (which is the side I have defined as the Left).  
The plaintiffs stress that Mr. Unger only attended at the Lodge after it had been burnt  
to the ground, and that confusion over the proper description of the four sides of the  
Lodge is understandable. While I find it understandable, the lack of clarity is  
ambiguous and, to an extent, confusing.  
[
98] One of the photographs Mr. Unger took shows the scaffolding on the ground  
at the Back of the Lodge. Another photograph shows a stain pail on the ground at  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 34  
the Back of the Lodge, with a comment “paint cans used in staining - scattered  
around left side of property where stored”. In chief, Mr. Unger testified that when he  
took this photo he was standing facing the Back of the Lodge, approximately halfway  
from each side. It is clear his reference to the “left side” is a reference to what I have  
defined as the Back of the Lodge.  
[
99] The plaintiffs argue that based on these photographs, “there is a strong  
likelihood that the Moerman Workers left both the scaffolding and the stain pail on  
the Back side of the Lodge” and so a strong likelihood they left the Staining Materials  
at the Back side of the Lodge. They argue “it is inconceivable that they would leave  
the Rags in a location different from where they left the rest of the stain and  
equipment”. The defendants agree with this submission; however, they argue that  
Mr. Unger’s evidence supports their assertion that the scaffolding was left on the Left  
side of the Lodge at the end of the day, and the Staining Materials were also stored  
on the Left side of the Lodge.  
[
100] On cross-examination, when Mr. Unger was shown photographs of the Stain  
can and the scaffolding on the ground after the Fire, and shown a photograph of  
where the Moerman Stainers had finished staining at the end of the workday on May  
1
6 (with the scaffolding beside the chimney on the Left side of the Lodge), he  
confirmed that if you burned the deck where the scaffolding was at the end of the  
day, it would have ended up approximately in the general area he found it after the  
Fire. Further, when asked if a can was also left with the scaffolding on the Left side  
of the Lodge whether it would have ended up around where the photograph depicted  
it, he confirmed that such a can could have ended up anywhere on the Back side of  
the Lodge (or what he referred to as the “left”). Mr. Unger also confirmed that the  
location of the can was not far removed from the location of the scaffolding.  
Mr. Unger was not able to identify what the can was, and he acknowledged that it  
was possible that the can could have been at that location for months in advance of  
the Fire.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 35  
E. MANNER OF STORING THE STAINING MATERIALS  
101] As with the location of the storage of the Staining Materials, the only  
[
witnesses to the manner in which the Staining Materials were stored were  
Mr. Friesen, Mr. Dornian and Mr. Robinson.  
1
.
Mr. Friesen  
[
102] At his examination for discovery Mr. Friesen explained:  
220 Q Okay. Did you lay the rags out individually to dry.  
A
No.  
[
103] The defendants read in the following question as context to the plaintiffs’  
read-ins from Mr. Friesen:  
225 Q Okay. So I suppose my question is what did the three of you, if you  
were working together, what did the three of you do -- how did you  
leave those materials at the end of the day when you left the job  
site and returned back to the dormitory?  
A
The rags were on the drop sheet and the brushes, I don’t recall if  
they were laid on the drop sheet or put into empty cans.  
[
104] The plaintiffs also read in a portion of Mr. Friesen’s examination for discovery  
transcript in which he confirmed that Mr. Loetscher said, on the boat as they were  
leaving the Lodge the night of the Fire, that “sometimes – along these lines of  
course, sometimes oil-based stain can combust”.  
2
.
Mr. Robinson  
[
105] On the topic of the manner in which the Staining Materials were stored, the  
plaintiffs read in the following questions and answers from Mr. Robinson’s  
examination for discovery:  
295 Q Okay. Do you know if they were laid out? Like, did you lay out  
each of the rags?  
A
I don’t know. I don’t remember doing that personally.  
96 Q They weren’t put in cans of water?  
I don’t remember doing that personally.  
2
A
 
 
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 36  
2
97 Q Okay. And you don’t remember observing anyone else doing that?  
I don’t remember observing anyone else doing that.  
A
298 Q And you don’t remember observing anyone else laying out the  
rags?  
A
I’m not sure about that. I’m not sure if someone did or didn’t.  
299 Q Okay, but you didn’t observe it?  
A
I don’t remember observing that.  
3
.
Mr. Dornian  
a)  
Examination for Discovery  
[
106] Finally, on the issue of the manner in which the Staining Materials were  
stored, the plaintiffs read in the following questions and answers from Mr. Dornian’s  
examination for discovery:  
1
46 Q Before May 15th, 2016 did you have any discussions with  
Mr. Moerman or anyone else about what to do with brushes or rags  
with stain when you were done working with them at the end of  
day?  
A
You’re asking if I was asked before we went up?  
147 Q Yeah, I asked if there were any discussions with anybody before  
May 16th or 15th, I should say, 2016.  
A
No.  
148 Q Did you have any previous knowledge in that respect from the time  
that you worked with your mom?  
A
No.  
4
65 Q Now, you told us just a few minutes ago before the break that you  
have no clear recollection of what you did with the rags or the  
brushes at the end of the day?  
A
Not specifically, no.  
466  
Okay. So did you lay them out?  
I don’t remember.  
A
467 Q Okay. You didn’t put them in a can of water, you don’t remember  
that?  
A
No.  
468 Q You don’t remember – what you do remember is that they were left  
together under cover?  
A
Yes.  
 
 
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 37  
469 Q Do you remember how wet the rags and brushes were with stain at  
the end of the day when you finished working?  
A
I don’t remember specifically what they looked like, but they weren’t  
soaked, I know that, because they were used to dab more or less.  
Yeah.  
470 Q Okay. And the brushes, was anything done to the brushes that you  
recall?  
A
Not that I recall specifically, no.  
b) Evidence at Trial  
[
107] On direct examination Mr. Dornian was asked how he recalled storing the  
Staining Materials at the end of the day on May 16. He testified that they had a 4 x  
2 drop sheet, which was “pretty standard”, which they folded into a 4 x 4 square,  
1
set underneath the balcony, and they then put the can with the Stain and the empty  
cans on top of the folded drop sheet, then the six to ten rags on top of the drop  
sheet, and then the brushes on top. When then asked next in his direct examination  
if he had a specific recollection as to how the rags were stored, Mr. Dornian  
acknowledged he had no such specific recollection. When asked how he would  
typically store them he answered he “would spread them out more so he could let  
them dry out overnight so he could use them the next day”. He recalled that the rags  
had only a few drips and stuff from catching drips on them, and that there was very  
little stain on the drop sheet. Mr. Dornian could not recall what they did with the  
brushes. Insofar as the stain cans, he testified that they would have emptied them  
back into the main can, closed the lid on the can with the Stain in it, and left the  
other two empty Stain cans open.  
[
108] When asked on direct examination specifically if he ever stored rags bundled  
up, he said he never had, and he explained he would never bundle rags up because  
if he was “looking to use them the next day” he would need them to dry out, and you  
would need to “spread them out so they can dry”. Mr. Dornian further explained he  
had never put used rags or used drop cloths in a plastic bag, and he had never  
rolled up a drop cloth as it was both inconvenient (as you would need to unroll it) and  
not practical (as it would not allow it to dry).  
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 38  
[
109] In direct examination Mr. Dornian was taken to the Moerman Notes, and he  
disagreed with a number of the references contained within those notes, and he  
testified that:  
a) the Staining Materials were stored on the Left side of the Lodge (as I have  
defined it), not the Back of the Lodge; however, he confirmed that at the  
area where they were stored, underneath the balcony, no staining had  
been done;  
b) he doesn’t recall the number of soiled rags being discussed at the meeting  
on May 18, 2016, but had previously thought the number of rags was six  
to ten;  
c) the soiled rags were not placed in a plastic bag;  
d) he does not recall seeing the soiled rags rolled up in a drop sheet;  
e) the soiled rags were not put in a distinct pile but were rather laid out to dry;  
and  
f) he recalls pouring the remaining Stain into a can rather than a pail.  
[
110] On cross-examination, Mr. Dornian confirmed that he had no specific  
recollection of what he, Mr. Friesen and Mr. Robinson did with the Staining Materials  
at the end of the day, but that his evidence on his direct examination was of what his  
best practices were, what he had always done. He acknowledged that his answer at  
his examination for discovery (to question 465) that he had no specific recollection of  
what he did with them at the end of the day was correct. He candidly admitted on  
cross-examination that he did not have a specific recollection of what he did that  
day.  
[
111] Mr. Dornian could not recall any discussions with Mr. Loetscher on the boat  
during the evacuation from the Lodge, and described himself as anxious, shocked  
and freaked outat that time. On cross-examination he acknowledged that he did  
not recall much from the time they left the Dorm until they got to the Malibu Lodge,  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 39  
and explained he was in shock. He does not recall what they did, what was said, or  
what anyone asked him.  
[
112] The following morning Mr. Dornian called Mr. Moerman and had a brief  
conversation in which he advised him about the Fire. Mr. Dornian confirmed that he  
and the rest of the Moerman Stainers met at Mr. Moerman’s residence on May 18,  
2
016 to discuss what had happened. He confirmed that Mr. Moerman wrote notes  
on his computer, but Mr. Dornian had no opportunity to review those notes after the  
meeting. Mr. Dornian could not recall the specifics of the conversation, just that it  
was a discussion of what had occurred the previous day, and that he was truthful  
and accurate in what he said at that meeting.  
F.  
MR. DORNIAN’S CREDIBILITY AND RELIABILITY  
[
113] Credibility and reliability are separate concepts. Credibility relates to honesty,  
whereas reliability relates to accuracy.  
[
114] The well accepted factors to be considered when assessing credibility were  
summarized by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at  
para. 186, aff’d 2012 BCCA 296, as follows:  
Credibility involves an assessment of the trustworthiness of a witness’  
testimony based upon the veracity or sincerity of a witness and the accuracy  
of the evidence that the witness provides (Raymond v. Bosanquet (Township)  
(
1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment  
involves examination of various factors such as the ability and opportunity to  
observe events, the firmness of his memory, the ability to resist the influence  
of interest to modify his recollection, whether the witness’ evidence  
harmonizes with independent evidence that has been accepted, whether the  
witness changes his testimony during direct and cross-examination, whether  
the witness’ testimony seems unreasonable, impossible, or unlikely, whether  
a witness has a motive to lie, and the demeanour of a witness generally  
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,  
[
1952] 2 D.L.R. [354] (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484  
at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on  
whether the evidence is consistent with the probabilities affecting the case as  
a whole and shown to be in existence at the time (Faryna at para. 356).  
[
115] In the context of determining the credibility of interested witnesses, it is not  
enough to only consider personal demeanour, but rather, the witness’ evidence must  
be subject to an examination of its consistencies with the probabilities of the  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 40  
circumstances surrounding the “currently existing conditions: Faryna v. Chorny  
1951), [1952] 2 D.L.R. 354 at 357 (B.C.C.A).  
(
[
116] The plaintiffs argue that Mr. Dornian’s testimony at trial was not credible, and  
that he “appeared contrived and not genuine”. They argue there are a number of  
inconsistencies with Mr. Dornian’s evidence, such that they say his trial testimony  
with respect to the location of the storage of the Staining Materials is not credible,  
and should not be accepted. They argue that when he was asked to explain the  
work done on May 16 he went to great lengths to explain why the Moerman Stainers  
did not stain the pickets of the balcony on the Left side of the Lodge, which they say  
was an attempt to provide a justification in accordance with the Moerman Notes and  
was “almost orchestrated”. They also argue that his testimony was inconsistent with  
the Moerman Notes. However, as the plaintiffs acknowledged in closing argument  
that the Moerman Notes cannot be admitted for the truth of their contents, this  
argument is not persuasive. In the same manner, the plaintiffs’ argument that I  
should look to the Moerman Notes as evidence that the Moerman Stainers all  
understood the back of the Lodge to be opposite to the Front of the Lodge is also  
problematic given the admission the Moerman Notes are hearsay evidence that is  
not admissible for the truth of its contents. This issue is discussed at length below.  
[
117] Further, the plaintiffs argue that Mr. Dornian’s evidence at trial that he  
understood the Left side of the Lodge to be “the back” lacks credibility. While on  
direct examination he stated that he called the side the Moerman Stainers stained  
on May 16 the “backas it was the furthest side from the Dorm; on  
cross-examination he admitted that he understood the “front of the Lodge to be the  
grand entrance, which is located on what is defined as the Front. The plaintiffs argue  
that Mr. Dornian’s evidence on this point is evasive and contradicts the evidence he  
gave on his examination for discovery.  
[
118] Mr. Dornian gave evidence at trial that he could not recall a discussion with  
Mr. Loetscher on the boat as to how they stored the rags because he was in shock.  
The plaintiffs say this evidence is inconsistent with the evidence of Mr. Loetscher.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 41  
[
119] They also argue that Mr. Dornian’s evidence at trial as to the manner in which  
he stored the staining rags is not credible, as it directly contradicts his evidence from  
his examination for discovery when he said he could not remember whether he laid  
out the rags (see question 466 at paragraph [106]). They argue that Mr. Dornian’s  
evidence at trial as to how he handled the Staining Materials at the end of day is  
simply not credible.  
[
120] Further, the plaintiffs argue that in his direct examination, Mr. Dornian was  
asked to explain how he recalled the Staining Materials were stored, not what his  
normal practice was for storing staining materials. Their position is that Mr. Dornian  
responded to this question by providing a detailed account of how he allegedly  
recalled storing the Staining Materials, without explaining his answer was based on  
his “typical practice”. The plaintiffs argue there are differences in Mr. Dornian’s  
evidence on direct examination, when he provided a detailed account of how he  
recalled storing the Staining Materials, and on cross-examination, when he  
acknowledged he had no specific recollection and had provided evidence based on  
his typical practice. They say these differences negatively impact his credibility. The  
plaintiffs say that Mr. Dornian’s direct evidence on his recollection of what he did  
with the Staining Materials was “led in a manner to suggest that he had a specific  
recollection as to how the Staining Materials were stored” at the end of the day on  
May 16.  
[
121] Finally, they say his explanation is not credible, as he had worked for years  
as a framer, and that while he had prior painting experience working for his mother,  
he had no prior staining experience, and so would have no normal practice for  
storage of stain soiled rags and drop cloths. They say his explanation is hard to  
believe, to the point of being incredible, and so is simply not believable.  
[
122] In response, the defendants take the position that Mr. Dornian was clearly  
asked in his direct examination if he had a specific recollection of how the rags were  
placed on the drop sheet, and when he answered he did not, his direct examination  
proceeded on the basis of what his typical practice was. They say on  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 42  
cross-examination Mr. Dornian candidly admitted he had no clear recollection what  
he did with the Staining Materials, but he gave evidence as to what his normal  
practice would have been. They say there was no contradiction between  
Mr. Dornian’s direct evidence and his evidence on cross-examination.  
[
123] The defendants take the position that Mr. Dornian’s evidence at trial was  
clear, candid, and consistent with his evidence at his July 23, 2018 examination for  
discovery. They say he “elegantly and humbly withstood an aggressive and  
argumentative cross-examination, and his evidence is both credible and reliable.  
Their position is that the best evidence on the location of the Staining Materials at  
the end of the day on May 16 is his trial testimony.  
[
124] While I accept that Mr. Dornian’s direct evidence was led in a manner to  
initially suggest he had a specific recollection as to how the Staining Materials were  
stored at the end of the day on May 16, I do not accept the plaintiffs’ argument that it  
impacts negatively on his credibility and reliability. At most, the question asked of  
him on direct examination had a premise built into it which was not established on  
the evidence. Mr. Dornian admitted in his direct examination that he had no  
recollection of how the staining rags were stored at the end of the day, nor of what  
happened to the brushes, and explained his evidence as to what happened with the  
staining rags was based on his typical practice. Further, he clearly, candidly and  
without any attempt at obfuscation, acknowledged on cross-examination that he had  
no specific recollection of how the Staining Materials were stored, and agreed his  
evidence on direct examination had been based on his typical practice. While his  
evidence on the manner of storage is based on his typical practice, and not an  
actual recollection, I do not accept that means his evidence at trial was neither  
credible nor reliable.  
[
125] Rather, I found Mr. Dornian to testify in a clear and forthright manner, to  
acknowledge when he did not have a specific recollection, and to clearly explain the  
basis for his evidence.  
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 43  
[
126] I do not accept the plaintiffs’ argument that as Mr. Dornian worked for years  
as a framer, and had no experience working with stain, this meant it was not credible  
that he had a typical practice. Mr. Dornian never claimed to have experience with  
stains, and testified as to the periodic experience he had working for his mother’s  
painting business. I find it is reasonable for a person with his experience in painting  
to have a typical practice as to how they handle supplies and materials at the end of  
the work day, regardless of whether they are using paint or stain.  
[
127] Similarly, I do not accept the plaintiffs’ argument that it is not credible that  
Mr. Dornian could not recall a conversation with Mr. Loetscher on the boat while  
fleeing the Fire. Mr. Dornian did not deny such a conversation occurred, but rather  
said he could not recall such a conversation, nor in fact, anything between the time  
they left the Dorm and arrived at Malibu Lodge, as he was in shock. I do not find his  
explanation to be unreasonable in light of the traumatic events of that evening,  
particularly when it is put in the context that the Fire was a complete burn that  
devastated the entire Lodge.  
[
128] Finally, I cannot accept the plaintiffs’ argument that Mr. Dornian’s evidence of  
his description of the four sides of the Lodge was not believable. Mr. Dornian’s  
evidence as to where the Staining Materials were stored at the end of the work day  
on May 16 was consistent, and his explanation as to why he stored the Staining  
Materials there was reasonable in all of the circumstances. Further, I find  
Mr. Dornian’s clear marking of the place in which the Staining Materials were stored  
on a photograph of the Lodge to be highly relevant and probative evidence. This  
evidence was devoid of all of the confusion resulting from ambiguous descriptions of  
the various sides of the Lodge, and was clear evidence of the actual location of the  
storage. His evidence on that point did not change from examination for discovery to  
the time of trial.  
[
129] Accordingly, I find Mr. Dornian’s evidence on the location of the storage of the  
Staining Materials at the end of the day on May 16 to be credible and reliable.  
Similarly, I accept his evidence that while he has no specific recollection of the  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 44  
manner in which the Staining Materials were stored, he did have a typical practice  
which he expects he would have followed.  
G.  
SECURITY STILLS  
[
130] As set out in paragraph [11], when Mr. Goff was notified of the Fire, he  
downloaded a number of security stills from the Lodge’s security system (the  
Security Stills”). In September 2016 Mr. Goff provided the Security Stills to his  
counsel, to Mr. Unger, and ultimately to Mr. Broad. Mr. Goff was of the view the  
Security Stills confirmed the time of the Fire, and the location where the Fire  
commenced (in the Back of the Lodge, where he believed the Staining Materials  
were stored).  
[
131] Four of the Security Stills provide relevant evidence as to the events of the  
night of the Fire, and were reviewed carefully by the experts retained by the parties.  
Both Mr. Goff and Mr. Talbot (who helped install the security system) testified that  
they looked at the security camera images on a regular basis before the Fire, and  
were familiar with the normal images from those cameras.  
[
132] The 10:36 Still was taken from the clifftop camera, and shows the exterior  
Front of the Lodge, with light emanating from below the canopy at the front of the  
Lodge, the adjacent deck, and the ocean and dock in the background. It also shows  
light being cast from the Dorm on the left of the photograph.  
[
133] The 10:56 Still is taken from a camera mounted on a tree above the roof of  
the Dorm, pointing towards the Front of the Lodge. A source of light is seen in the  
lower left corner of the 10:56 Still. Mr. Talbot and Mr. Goff testified that the light  
shown is from the deck of the Dorm. When compared to a daylight photo of the  
same orientation, it is clear that a very small amount of the Front of the Lodge can  
be seen over the roofline of the Dorm. There is no light seen from the Front of the  
Lodge in the 10:56 Still.  
[
134] The 11:01 Still was taken from the infrared great room camera, which was  
located to the left of, and above, the French doors into the great room, on the Left  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 45  
side of the Lodge. This is the only Security Still showing the interior of the Lodge.  
The 11:01 Still shows a haze, which Mr. Talbot testified was not normally seen on  
that camera. The 11:01 Still has light shining in three locations in the upper left  
quadrant of the photograph. When compared to a photograph of the interior of the  
great room, it appears probable that the light is shining through the windows on each  
side of the door to the Back of the Lodge, and through an upper floor window on the  
top story.  
[
135] Both Mr. Goff and Mr. Talbot testified that the light seen in the 11:01 Still was  
unusual and had not previously been seen by them when looking at the security  
camera images. Mr. Goff testified that he believed he saw flames in the 11:01 Still.  
However, neither Mr. Talbot nor Mr. Loetscher testified that they saw fire in the  
1
1:01 Still. Mr. Talbot testified that the light shining through pickets on the lower left  
portion of the photograph was not a normal light source, but he did not testify to the  
source of that light. He further testified that he believed the lights depicted were  
shining from outside the Lodge. Mr. Loetscher testified that the light shining through  
the pickets on the lower left portion was more consistent with light coming from the  
light fixture on the left side of the Back exterior door.  
[
136] On the issue of a possible source of exterior light, Mr. Loetscher and  
Ms. Rosel testified that the back lights were turned on through a manual switch  
inside the Lodge, and both confirmed they did not turn those lights on that day or  
any other day leading up to the Fire. The only other person who went inside the  
Lodge on May 16 was Ms. Foster, who testified she only went into the kitchen and  
pantry area, and that she did not leave any lights on when she left.  
[
137] Finally, the 11:11 Still, again taken from the clifftop camera, shows the Front  
of the Lodge clearly fully engulfed in flames.  
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 46  
[
138] Upon a careful review of the 10:36 Still, the 10:56 Still, the 11:01 Still, and the  
1
1:11 Still, I am satisfied that:  
a) the 10:36 Still depicts the Front of the Lodge, and while there is light  
shown under the front canopy of the Front of the Lodge, I see no smoke or  
flames at the Front of the Lodge;  
b) I may make the reasonable inference that as of 10:36 the Front of the  
Lodge was not on fire;  
c) the 10:56 Still, depicting the view over the roofline of the Dorm, shows no  
light seen from the Front of the Lodge;  
d) the 11:01 Still depicts the great room in the Lodge, and clearly depicts  
smoke within the great room;  
e) there is no evidence before me which leads me to conclude the lights at  
the Back of the Lodge were on as of the time of the 11:01 Still, and so I  
may reasonably infer they were off;  
f) I may make the reasonable inference that the light shown in the 11:01 Still  
is light reflected from a fire; and  
g) the 11:11 Still depicts the Lodge fully engulfed in fire.  
[
139] I note that the 11:01 Still only depicts the great room in the Lodge, and does  
not depict the rest of the main floor of the Lodge, the basement nor the upper floors  
to either side of the Still.  
[
140] Further, I am not satisfied that based on the totality of the admissible  
evidence it would be reasonable to infer that the 11:01 Still depicts a large fire  
extending from the deck to the roof structure on the Back of the Lodge because:  
a) the light visible at the upper left of the 11:01 Still is not all of the same  
brightness;  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 47  
b) neither Mr. Loetscher nor Mr. Talbot testified that they observed fire on the  
1:01 Still; and  
1
c) I do not observe fire nor flames in the 11:01 Still.  
[
141] This is relevant to the weight I put on Dr. Craft’s expert evidence, as  
discussed in detail below.  
VI.  
EVIDENTIARY ISSUES AND DETERMINATION  
[
142] The manner in which the two evidentiary issues arose has been set out  
above.  
A.  
FOR WHAT PURPOSE MAY THE MOERMAN NOTES BE  
ADMITTED  
[
143] The parties agree that the Moerman Notes are a document recording hearsay  
statements of the Moerman Stainers. However, the purpose for which the Moerman  
Notes may be admitted became a significant, contested issue in closing argument. I  
accept that the Moerman Notes are admissible evidence of the fact a meeting  
occurred with Mr. Moerman and the Moerman Stainers on May 18, 2016, during  
which the events that occurred on May 15 and 16 were discussed, and that the  
Moerman Notes record discussions that occurred at that meeting. I do not accept  
that the Moerman Notes are admissible as evidence of the collective recollection of  
the Moerman Stainers on May 18, 2016 with respect to where and how the Staining  
Materials were stored (as argued by the plaintiffs), for the reasons set out below.  
[
144] As Mr. Moerman had no knowledge of events that transpired on May 15 and  
May 16, the only witness who testified at trial who could have asserted the Moerman  
Notes accurately represent his knowledge was Mr. Dornian, and he disagreed with  
key aspects of their accuracy. These points of disagreement include that he says the  
number of rags was six to ten rather than the apparently sixteen referenced in the  
Moerman Notes. Further, based on his normal practice, he says the rags would not  
have been rolled in a drop sheet, the drop sheet would not have been rolled up, the  
 
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 48  
rags would have been spread out to dry, and he recalls pouring the remaining Stain  
into a can rather than a pail.  
[
145] During their initial closing submissions, the plaintiffs argued that the Moerman  
Notes were recorded within 48 hours of the critical events, were recorded as  
carefully as possible by Mr. Moerman, and that Mr. Dornian confirmed that he was  
accurate, truthful and forthright at the meeting. The plaintiffs said they should be  
accepted as “very strong evidence of the events that occurred”, akin to witness  
statements, and should be accepted for the truth of their contents. Their position was  
that the Moerman Notes were “the best evidence as to the location and manner in  
which the Rags and staining materials were left by the [Moerman Stainers]”. The  
plaintiffs took the position that the Moerman Notes were more reliable evidence than  
the Video from the night of the Fire, or the evidence as to conversations on the boat  
when fleeing the Fire. They argued the Moerman Notes corroborated the read ins  
from the examinations for discovery, and should be taken to conclude that:  
a) the Staining Materials were stored at the Back of the Lodge; and  
b) neither Mr. Dornian, Mr. Friesen nor Mr. Robinson laid the rags out to dry,  
nor put them in water, but rather placed them on the drop sheet.  
[
146] In response, the defendants noted that it was apparent in closing argument  
the plaintiffs were presuming the Moerman Notes to be admissible for the truth of  
their contents. While the defendants did not object to the use during trial of the  
Moerman Notes to revive and test Mr. Moerman and Mr. Dornian’s recollections,  
they did object in closing argument to the admissibility of the Moerman Notes for the  
truth of their contents. They submitted that the Moerman Notes, though well  
intentioned, contain unsworn, untested, unattributed comments and conjecture, lack  
precision of definition and are taken by an amateur recorder during an unorganized  
and seemingly hectic (and relatively brief) informal meeting. Accordingly they say  
they are not worthy of being admitted as an exception to the rule prohibiting the  
tendering of hearsay evidence for the truth of its contents.  
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 49  
[
147] When this issue first arose during closing argument, plaintiffs' counsel  
confirmed he did not seek the Moerman Notes to be admitted for the truth of their  
contents; however, he argued the Moerman Notes could properly be admitted as  
evidence that the statements within them were made and recorded. Given the  
importance of this issue, the plaintiffs were given leave to argue it further. Written  
submissions were directed to be exchanged, and further time to hear the argument  
was scheduled.  
[
148] The plaintiffs did not argue that the Moerman Notes were admissible as an  
admission by a party (the defendant Moerman Stainers). Nor did they argue that the  
Moerman Notes were admissible under a principled exception to the hearsay rule.  
After the written submissions were exchanged, the plaintiffs again confirmed they  
were not seeking to have the Moerman Notes admitted for the truth of their contents,  
but rather were seeking to have them admitted as an out of court statement, as  
evidence of what was said during the meeting among Mr. Moerman and the  
Moerman Workers on May 18, 2016, the purpose of which, according to  
Mr. Moerman’s testimony, was to “get the facts” about what occurred at the Property  
the day of the Fire. They say the Moerman Notes are admissible evidence of the  
following:  
a) a meeting occurred with Mr. Moerman and the Moerman Stainers, during  
which the events that occurred on May 15 and 16, 2016 were discussed;  
b) the various facts stated in the Moerman Notes were discussed at that  
meeting; and  
c) the collective recollection of the Moerman Stainers on May 18, 2016 with  
respect to, among other things, where and how the Rags were stored was  
communicated to and recorded by Mr. Moerman.  
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 50  
[
149] Their position is that the state of mind of the Moerman Stainers is relevant  
and probative to the issues in this proceeding as:  
a) the Moerman Notes clearly show that the manner in which the Staining  
Materials were stored was important to the Moerman Stainers when they  
were considering how the Fire happened; and  
b) the fact they were discussing this topic in a significant manner shows they  
somehow became aware that the manner in which the Staining Materials  
were stored was important when understanding, or trying to understand,  
how the Fire started.  
[
150] They also argue that the fact the Moerman Stainers discussed the location  
and manner of the Staining Materials is relevant to Mr. Dornian’s reliability and  
credibility. They argue that as Mr. Dornian could not recall the conversation with  
Mr. Loetscher on the boat about spontaneous combustion, his “state of mind two  
days later suggests that Mr. Dornian was suddenly live to the fact that the manner of  
storage of the Rags was important, which could only have come from Mr. Loetscher  
during this conversation”, and should negatively impact his credibility. For reasons  
set out above I disagree. Their position was summarized in their closing argument:  
The admission of the Moerman Notes for these purposes does not engage  
the Hearsay rule. The probative value to the issues in dispute arises from  
how the notes indicate the importance of where and how the rags were left,  
as well as the states of mind of the Moerman Workers at the time, particularly  
an awareness of the importance of where and how the rags were left.  
[
151] The defendants agree that the Moerman Notes may be admitted into  
evidence for the first two purposes proposed by the plaintiffs. However, the  
defendants’ position is that these are the only two uses I can make of the Moerman  
Notes in determining the material facts in issue in this litigation.  
[
152] The defendants object to the third purpose, or the “collective recollection” of  
the Moerman Workers. The plaintiffs argue that admitting the Moerman Notes for  
this purpose does not engage the hearsay rule. They argue that the Moerman Notes  
indicate the knowledge by the Moerman Stainers of the importance of where and  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 51  
how the Staining Materials were left, and the states of mind of the Moerman Stainers  
at the time in question. In response, the defendants say that admitting the Moerman  
Notes for such a purpose amounts to improperly admitting them for the truth of their  
contents.  
[
153] In the event I accept the Moerman Notes into evidence for the truth of their  
contents, the defendants submit they ought not to be preferred over the sworn,  
tested and specific, evidence given by Mr. Dornian at trial. Further, they say, with  
respect to evidence regarding storage location, the Moerman Notes are consistent  
with Mr. Dornian’s evidence in every way (stored under cover, in an area that had  
not been stained, a few feet from the house and at the “back” of the house). They  
say it would be unfair and unreasonable to “after the fact” import upon the meaning  
of “back” as used in the Moerman Notes the meaning recently ascribed by the  
parties to defined term “Back”.  
1
.
Law  
[
154] It is trite law that facts must be proven by admissible evidence: Pfizer  
Canada Inc. v. Teva Canada Limited, 2016 FCA 161 at para. 79 [Pfizer].  
[
155] An out-of-court statement which is admitted for the truth of its contents is  
hearsay. As clearly explained in Sopinka, Lederman & Bryant, The Law of Evidence  
in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) at 249:  
Written or oral statements, or communicative conduct made by persons  
otherwise than in testimony at the proceeding in which it is offered, are  
inadmissible, if such statements or conduct are tendered either as proof of  
their truth or as proof of assertions implicit therein.  
[
156] The reasons underlying the rule of hearsay are foundational to the truth  
seeking function of the court. Any statement carries risk of inaccuracies, mistakes,  
misperceptions, or falsehoods. When the declarant is not present to be observed by  
the court and challenged on their statement through cross-examination, the court’s  
ability to test the reliability of the statement is hampered: R. v. Khelawon, 2006 SCC  
5
7 at para. 2.  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 52  
[
157] For a hearsay statement to be admissible for the truth of its contents, it must  
fall within a recognized exception. First, the hearsay statement may fall under one of  
the many traditional exceptions to hearsay. Second, the hearsay statement may be  
admitted under the “principled approach”, if it is found to be sufficiently necessary  
and reliable. The traditional hearsay exceptions are applied in light of the indicia of  
reliability and necessity as required by the principled approach: R. v. Starr, 2000  
SCC 40 at paras. 191-192 [Starr].  
[
158] However, an out-of- court statement offered simply as proof that the  
statement was made (as opposed to proof of the truth of the contents of the  
statement) is not hearsay, and is admissible to that extent as long as it has some  
probative value: R. v. Evans, [1993] 3 S.C.R. 653 at 661-662. As expressed by  
Justice Iacobucci in Starr at para. 162: “hearsay evidence is defined not by the  
nature of the evidence per se, but by the use to which the evidence is sought to be  
put: namely, to prove that what is asserted is true”.  
[
159] The distinction between out of court statements introduced to provide the  
truth of their contents, and those introduced for the fact that the statement was  
made, was explained as follows by the Supreme Court of Canada in R. v. Smith,  
[
1992] 2 S.C.R. 915 at 924 [Smith], citing Subramaniam v. Public Prosecutor, [1956]  
1
W.L.R. 965 (P.C.) at 970:  
Evidence of a statement made to a witness by a person who is not himself  
called as a witness may or may not be hearsay. It is hearsay and  
inadmissible when the object of the evidence is to establish the truth of what  
is contained in the statement. It is not hearsay and is admissible when it is  
proposed to establish by the evidence, not the truth of the statement, but the  
fact that it was made. The fact that the statement was made, quite apart from  
its truth, is frequently relevant in considering the mental state and conduct  
thereafter of the witness or of some other person in whose presence the  
statement was made.  
[
160] The plaintiffs did not argue that the Moerman Notes were admissible as an  
admission by a party; presumably as they do not record specific statements  
attributable to specific parties, nor did any of the Moerman Stainers have a  
contemporaneous opportunity to review and approve of the content of the Moerman  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 53  
Notes. Neither did they argue that the Moerman Notes were admissible under the  
principled exception. There was no evidence that the Moerman Stainers had  
reviewed and approved of the Moerman Notes, nor was there evidence that the  
Moerman Stainers were, for any reason, unable to testify.  
[
161] Rather, the plaintiffs argued that the Moerman notes are admissible only as  
evidence that the statements within them were made, and to adduce the “collective  
recollection” or “states of mind” of the Moerman Stainers. From an analytical  
perspective, there are two ways they can do so. The following passage from Smith  
at p. 924 is apt in the circumstances:  
This statement of the "hearsay rule" is a useful illustration of the  
circumstances in which statements made by persons who are not called as  
witnesses have traditionally been considered inadmissible. When such  
statements are introduced to prove the truth of their contents, they have  
generally been considered to be inadmissible. However, when introduced  
simply to prove that they were made, they have traditionally been regarded  
as admissible, either under an "exception" to the hearsay rule, or more  
correctly from an analytical point of view because they fall outside the  
definition of hearsay. [Emphasis added.]  
[
162] As articulated above in the quote above, if the Moerman Notes are not sought  
to be admitted for the truth of their contents, there are two analytical paths by which  
they could be admitted as evidence of the Moerman Stainers’ state of mind or  
“collective recollection” (as the plaintiffs argue). First, because the purpose for which  
they are admitted falls outside of the definition of hearsay, or second under the state  
of mind exception.  
[
163] In Harshenin v. Khadikin, 2015 BCSC 1213 at para. 30 [Harshenin] Justice  
Dardi explains further:  
[
30]  
Hearsay evidence relied on for the truth of its contents is  
presumptively inadmissible. In some instances, the statements attributed to  
the Deceased are not relied on for the truth of their contents. In other cases,  
statements are admissible as an established exception to the hearsay rule  
which permits evidence to be given of statements made by deceased  
persons as to their state of mind or emotional state: Modonese v. Delac  
Estate, 2011 BCSC 82 at paras. 82-85. In R. v. P (R.) (1990), 58 C.C.C. (3d)  
334 (Ont. H.C.J.), Doherty J. explained this principle as follows, at 341:  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 54  
Assuming relevance, evidence of utterances made by a deceased  
(
although the rule is not limited to deceased persons) which evidence  
her state of mind are admissible. If the statements are explicit  
statements of a state of mind, they are admitted as exceptions to the  
hearsay rule. If those statements permit an inference as to the  
speaker's state of mind, they are regarded as original testimonial  
evidence and admitted as circumstantial evidence from which a state  
of mind can be inferred.  
[
Emphasis added.]  
[
164] Ultimately, the distinction does not have much significance: Sopinka at 357  
citing R. Cross, Evidence, 3d ed. (London: Butterworths, 1967), at 475. Regardless,  
the plaintiffs must show that the purpose for which the Moerman Notes are being  
admitted bears probative value.  
[
165] In the plaintiffs’ written argument, they largely argued that the Moerman Notes  
were admissible for a non-hearsay purpose. This accords with the distinction drawn  
in R. v. P. (R.), (1990), 58 C.C.C. (3d) 334 (Ont. H.C.) [P. (R.)] (as cited above in  
Harshenin), as the Moerman Notes do not contain an explicit expression of the  
Moerman Stainers’ state of mind. The plaintiffs said the Moerman Notes were  
admissible for the circumstantial purpose of proving a person’s state or mind, or to  
explain a subsequent course of conduct: Pfizer at paras. 89  92, 117; R. v. Ball,  
2
018 ONSC 4913 at para. 13; R. v. Lees, 2009 BCCA 240 at para. 21; Megaro v.  
Insurance Corporation of British Columbia, 2020 BCCA 273 at para. 33. They also  
argued that the Moerman Notes could be used as evidence to “cast light” on  
Mr. Dornian’s reliability and credibility, or lack thereof.  
[
166] However, during oral argument, they focussed on the traditional state of mind  
exception to the hearsay rule. This exception arises where “the declarant’s  
statement is adduced in order to demonstrate the intentions, or state of mind, of the  
declarant at the time the statement was made”: Smith at 925. The exception is  
available when the state of mind of the declarant, or their intentions as to  
subsequent conduct, is directly in issue at trial.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 55  
[
167] In P. (R.), cited with approval in Smith and Starr, Doherty J.A. explained the  
limits on the use of evidence admitted under this exception:  
The evidence is not, however, admissible to show the state of mind of  
persons other than the deceased (unless they were aware of the statements),  
or to show that persons other than the deceased acted in accordance with  
the deceased's stated intentions, save perhaps cases where the act was a  
joint one involving the deceased and another person. The evidence is also  
not admissible to establish that past acts or events referred to in the  
utterances occurred. [Emphasis added.]  
[
168] The defendants agreed with the broad proposition that the Moerman Notes  
may be tendered for a circumstantial, non-hearsay purpose. To be admissible for  
such a purpose, hearsay statements must satisfy the general evidentiary rule that  
the evidence is relevant and material and not otherwise excluded by any other  
evidentiary rule: Smith at 926; Starr at 182. However, they say that the third purpose  
the plaintiffs seek the Moerman Notes to be admissible for - the collective  
recollection of the Moerman Stainers with respect to, among other things, where and  
how the rags were stored, as it was communicated to and recorded by Mr. Moerman  
-
is in fact seeking to have the Moerman Notes admitted for the truth of their  
contents.  
[
169] As stated above, whether the Moerman Notes are admitted as non-hearsay,  
or under the state of mind exception, is largely inconsequential. On both arguments,  
for the Moerman Notes to be admissible I must find that they contain within them  
evidence of the state of mind of the Moerman Stainers, or intentions to explain  
subsequent conduct, and that their states of mind or intentions are relevant and  
material to the issues I must decide.  
2
.
Analysis  
[
170] The plaintiffs seek to have the Moerman Notes admitted as evidence of the  
collective recollection of the Moerman Stainers on May 18, 2016 with respect to,  
among other things, where and how the Staining Materials were stored was  
communicated to and recorded by Mr. Moerman.  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 56  
[
171] However, I cannot accept there is a basis upon which to conclude that the  
Moerman Stainers’ state of mind two days after the Fire is relevant. Their state of  
mind is irrelevant to the determination of the actual manner and location of the  
storage of the Staining Materials two days prior on May 16, 2016.  
[
172] Further, even were their state of mind to be relevant, it would allow for the  
Moerman Notes to be admissible only for the purpose of establishing the Moerman  
Stainers’ state of mind on May 18, 2016. The notes would be only be admissible to  
establish that the statements were made, and not be admissible to establish the  
truth of those statements. The Moerman Notes would not be admissible to establish  
the truth of the collective recollection of the Moerman Workers on May 18, 2016 with  
respect to, among other things, where and how the Staining Materials were stored,  
as communicated to and recorded by Mr. Moerman in the Moerman Notes. To allow  
them to be admitted for this purpose would be to allow them to be admitted for the  
truth of their contents. In the same manner, the Moerman Stainers’ conduct after the  
Fire is neither material nor relevant to the critical issues I must determine, nor to my  
assessment of Mr. Dornian’s credibility.  
[
173] Accordingly, the Moerman Notes are admitted into evidence only as evidence  
that a meeting occurred with Mr. Moerman and the Moerman Stainers on May 18,  
016, during which the events that occurred on May 15 and 16, 2016 were  
2
discussed, and that the various facts recorded in the Moerman Notes were  
discussed at that meeting. They are not admissible to establish that the events  
referred to in fact occurred. The Moerman Notes are not be admitted for the truth of  
their contents as to where and how the Staining Materials were in fact stored.  
[
174] I am satisfied that there was no inappropriate use of the Moerman Notes  
during the testimony of Mr. Dornian and Mr. Moerman, and counsel for the  
defendants agreed. The other two witnesses who relied upon the Moerman Notes  
were the plaintiffs’ experts Mr. Broad and Dr. Craft, and their reliance on the  
Moerman Notes as facts upon which their expert opinions were based will be  
properly dealt with when I consider each of their reports.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 57  
B. ADVERSE INFERENCES  
175] The plaintiffs seek that I draw a number of adverse inferences as a result of  
[
the decision of the defendants to no longer call Mr. Friesen and Mr. Robinson at trial.  
The plaintiffs were undoubtedly taken by surprise by this decision, but upon a  
consideration of the applicable law, I determine it is inappropriate to draw the  
inferences the plaintiffs seek, and I decline to exercise my discretion to do so.  
[
176] The night before the defendants closed their case they advised the plaintiffs  
they no longer intended to call two of the defendants, Mr. Friesen and Mr. Robinson,  
who until that point in time had been on their witness list and on the trial schedule.  
The plaintiffs take the position that as these two parties were the only two Moerman  
Stainers who, together with Mr. Dornian, at the end of the workday on May 16 were  
involved with cleaning up the worksite and storing the Staining Materials, I should  
conclude that had they been called, their evidence would not have supported the  
evidence of Mr. Dornian. They argue that as the defendants object to the  
admissibility of the Moerman Notes for the truth of their contents, the only other  
remaining evidence as to the location and manner of the storage of the Staining  
Materials was that of Mr. Dornian, Mr. Friesen and Mr. Robinson. They say this  
results in Mr. Friesen and Mr. Robinson being “uniquely situated” to provide critical  
evidence at trial.  
[
177] They ask me to draw the following adverse inferences:  
a) that the front of the Lodge is the side defined in these reasons for  
judgment as the Front, being the side that generally faced south, as  
depicted in Exhibit 3, Joint Book of Documents, Tab 13, p. 1 (photo 20)  
and p. 13 (photo 061), and that all members of the Moerman Stainers  
understood that to be true as of May 15 and 16, 2016;  
b) that the back of the Lodge is the side defined in these reasons for  
judgment as the Back, was directly opposite the front of the Lodge, as  
depicted in Exhibit 3, Joint Book of Documents, Tab 36, p. 4, and that all  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 58  
members of the Moerman Stainers understood that to be true as of May  
5 and 16, 2016;  
1
c) that the Moerman Stainers left their staining rags, all together, at the end  
of the day on May 16, 2016, on a drop sheet located at the Back of the  
Lodge; and  
d) that the staining rags were not laid out flat to dry and were not put in cans  
of water.  
[
178] With respect to the first two adverse inferences, they are tantamount to  
making a factual determination of the understanding of all five Moerman Stainers,  
which I find is an inappropriate adverse inference to draw from the failure of only two  
of the Moerman Stainers to testify. Either Mr. Friesen or Mr. Robinson could only  
have testified as to their own understanding, not as to that of their colleagues.  
[
179] Further, the issue of the adverse inferences the plaintiffs seek is intertwined  
with the issue of the admissibility of the Moerman Notes. As the Moerman Notes are  
not admissible for the truth of their contents, the references in those notes as to the  
location and manner of the Staining Materials are likewise not admissible for their  
truth. To draw the adverse inference that the Staining Materials were left at the Back  
of the Lodge, and the soiled rags were neither laid out flat to dry nor were put in  
cans of water, would be to make an evidentiary determination inconsistent with the  
evidence of Mr. Dornian that I have accepted as admissible, and whom I have found  
to be credible and reliable. In my view to draw such an adverse inference would be  
inappropriate, for the reasons set out below.  
1
.
Law  
[
180] The adverse inference rule is a discretionary rule of evidence that permits the  
Court to draw an adverse inference against a party by reason of his or her failure to  
call a witness who could be expected to give material evidence in their favour at trial:  
Singh v. Reddy, 2019 BCCA 79 at para. 1 [Singh]; Thomasson v. Moeller, 2016  
BCCA 14 at para. 35 [Thomasson]. The adverse inference rule is discretionary, and  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 59  
a trial judge is not obliged to draw an adverse inference: Singh at para. 9;  
Thomasson at para. 34.  
[
181] An adverse inference is not to be drawn unless a prima facie case is  
established: Thomasson at para. 35; Cranewood v. Norisawa, 2001 BCSC 1126 at  
para. 127 [Cranewood].  
[
182] In Singh, the Court of Appeal endorsed the following considerations listed in  
A. W. Mewett and P.J. Sankoff’s Witnesses (loose leaf) as relevant for consideration  
in determining whether it is appropriate to draw an adverse inference:  
whether there is a legitimate explanation for the failure to call the witness;  
whether the witness is within the “exclusive control” of the party, and was  
not “equally available to both parties”’  
whether the witness has material evidence to provide; and  
whether the witness is the only person or the best person who can  
provide the evidence.  
[
183] While the plaintiffs argue it is highly irregular for a party witness not to testify  
in a civil trial (relying upon Solberg v. Carriere, 2014 BCSC 1668 at para. 38), there  
is no automatic adverse inference drawn when a party fails to testify. Further,  
Solberg confirms that if the plaintiff has failed to establish a prima facie case against  
the defendant “no adverse inference will be drawn should the defendant not testify”:  
at para. 38. See also O’Connell v. Yung, 2012 BCCA 57 at para. 31; and Kern v.  
Forest, 2010 BCSC 938 at para. 174.  
[
184] In Chabot v. Chaube, 2014 BCSC 300 [Chabot] Justice Brown dealt with a  
case where the plaintiff failed to call a good friend, who had organized various  
recreational activities the plaintiff participated in. He noted at para. 137 that the  
existence of more contemporary liberal disclosure rules, which give parties equal  
opportunities to call witnesses who may assist with their “litigation position”, have  
“encouraged judges to move away from the idea that they ought to draw an adverse  
inference against a party who had failed to call a witness who might know relevant  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 60  
facts”: at para. 137, citing McIlvenna v. Viebig, 2012 BCSC 218 [McIlvena], and  
Canadian Encyclopedic Digest, CED (West. 4th), vol. 26, title 61 at para 71.  
a)  
Plaintiffs must establish a prima facie case  
[
185] The law establishes that an adverse inference is not to be drawn unless a  
prima facie case is established, but the parties disagree over the appropriate  
interpretation of this requirement. The plaintiffs argue that to seek an adverse  
inference, the plaintiffs need only show a prima facie case for the facts or inferences  
which they are asking the Court to make, not their case at large. They rely on the  
decision of Justice Spencer in Alavinejad v. Farimani, [1991] B.C.J. No. 3936 (S.C)  
[
Alavinejad] for the proposition that an adverse inference is “not permissible unless  
there is evidence lead for the plaintiff that would tend to prove the facts to be inferred  
to the extent that they demand an answer from the defendant: at para. 26  
(emphasis added). They also rely on the Alberta trial decision in Dandeneau v.  
Dandeneau, 2000 ABQB 959, which relies on Alavinejad, and makes clear that the  
party asking the court to draw an adverse inference must lead some evidence to  
support the inference, and that evidence must show on a balance of probabilities  
that the inference could be made: at paras. 11 -12. Finally, they point to McIlvenna  
at para. 74, where the trial judge concluded an adverse inference not to be  
appropriate where the plaintiff had not established a prima facie case that the  
accident at issue had occurred in a particular intersection.  
[
186] However, the defendants take the position that the law has evolved such that  
the plaintiffs must, as a threshold issue, establish a prima facie case at large. They  
rely upon the decision of Cranewood where the Court also considered and applied  
Alavinejad and held:  
[
127] It is well established that an adverse inference may be drawn against a  
party who fails to call a material witness. In Barker v. McQuahe, [1964] 49  
W.W.R. 685 (B.C.C.A.) the court held that an inference adverse to a litigant  
may be drawn, if, without sufficient explanation, he fails to call a witness  
who might be expected to give important supporting evidence if his case  
were sound. The law also establishes that such an inference is  
appropriate only on certain conditions: an adverse inference is not  
permissible unless a prima facie case has been established: see  
Alavinejad v. Farimani (9 August 1991), Vancouver Registry No.  
A903100 (B.C.S.C.); an inference should not be drawn if the witness is  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 61  
equally available to both parties: see Lambert v. Quinn (1994), 110 D.L.R.  
(
4th) 284 (Ont. C.A.). [Emphasis added.]  
[
187] They say this principle is well established in British Columbia and rely upon  
Singh at para. 8; Thomasson at para. 35; and Vo v. Navarro, 2021 BCSC 1534 at  
para. 86.  
[
188] While none of the case law provided by the parties addresses this issue  
directly, I am satisfied that upon a review of this case law, the jurisprudence  
establishes that the party asking the court to draw an adverse inference must  
present some evidence that, in the words of Justice Spencer in Alavinejad, “would  
tend to prove the facts to be inferred to the extent that they demand an answer from  
the defendant”, and does not require they present evidence that establishes their  
prima facie case at large. The adverse inference rule is a discretionary evidentiary  
rule. I am satisfied the party seeking the adverse inference must establish there is a  
prima facie case for the specific adverse inference being sought, and not for the  
case at large. This raises the issue of what standard of evidence is necessary to  
establish such a prima facie case.  
[
189] The parties agree that the Manitoba Court of Appeal recently described the  
standard for establishing a prima facie case in The Director of Criminal Property  
and Forfeiture v. Ramdath et al, 2021 MBCA 23 [Ramdath et al], in the following  
manner:  
[
21]  
The "prima facie" standard is situated on the standard of proof  
spectrum between "balance of probabilities" and "reasonable grounds to  
believe". Black's Law Dictionary defines prima facie as "on first appearance but  
subject to further evidence or information" (Bryan A Garner et al, eds,  
Black's Law Dictionary, 10th ed (St. Paul, Minn: Thomson Reuters, 2014)  
sub verbo "prima facie"). The term "prima facie" is used in several different  
contexts and is somewhat loosely defined. The phrases "prima facie proof",  
"
prima facie evidence" and "prima facie case" have at times been used  
interchangeably, contributing to the confusion around what, exactly, is the  
prima facie case standard of proof (Sidney N Lederman, Alan W Bryant &  
Michelle K Fuerst, The Law of Evidence in Canada, 5th ed (Toronto:  
LexisNexis, 2018) at sections 3.36-3.44).  
[
22]  
The Supreme Court of Canada has provided helpful guidance on  
what constitutes a "prima facie case" standard in the context of criminal law  
and extradition law. It is a "case containing evidence on all essential points of  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 62  
a charge which, if believed by the trier of fact and unanswered, would warrant  
the order sought]" (Mezzo v The Queen, [1986] 1 SCR 802 at 837; see  
also United States of America v Shephard, [1977] 2 SCR 1067 at 1074-  
7).  
[
7
[
190] The Court of Appeal describes the lower or less demanding standard of proof  
of “reasonable grounds to believe”, which entails an objective test which is based on  
credibly-based probability”, and is met “when it is probable that something will  
happen, and the lower standard of “reasonable suspicion” which must also be  
grounded in objective fact, and is met “when it is probable that something might  
happen: Ramdath et al at paras. 23 and 25.  
2
.
Analysis  
[
191] One of the critical issues at trial is the location and manner in which the  
staining rags were stored at the end of the day on May 16, 2016. There are only  
three individuals with personal knowledge of this fact: Mr. Dornian, Mr. Friesen and  
Mr. Robinson.  
[
192] The preliminary issue is whether the plaintiffs have established the requisite  
prima facie case. The plaintiffs’ position is that they must only establish a prima facie  
case with respect to the specific adverse inferences they are asking me to draw, and  
not a prima facie case at large. However, they say they have established a prima  
facie case at large in any event. Their position is that the admissible evidence  
establishes:  
a) the Fire started at the Back of the Lodge;  
b) the Moerman Stainers stored the Staining Materials at the Back of the  
Lodge;  
c) the Moerman Stainers understood ”the back” of the Lodge to be the side  
opposite the Front of the Lodge; and  
d) the cause of the Fire was the spontaneous combustion of the Staining  
Materials.  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 63  
[
193] The defendants say the plaintiffs have not established a prima facie case  
either at large nor for the adverse inferences they seek, as they have failed to  
tender evidence that, if accepted, would establish the Staining Materials were  
stored either in the area of the Back of the Lodge as opined to by Mr. Broad, or the  
area of the Back of the Lodge as opined to by Dr. Craft. They also argue the  
plaintiffs have not established a prima facie case that the staining rags were stored  
in a manner inconsistent with the reasonable standard of being laid flat to dry after  
use.  
[
194] The defendants argue that Mr. Friesen and Mr. Robinson’s examination for  
discovery evidence on the location of the Staining Materials is at best ambiguous,  
and does not amount to “evidence…if believed by the trier of fact and unanswered,  
would warrant the [order sought]”: Ramdath et al at para. 22.  
[
195] I agree. Notwithstanding I have determined the plaintiffs must only establish a  
prima facie case for the adverse inferences they seek to have drawn, there is no  
admissible nor probative evidence on which I may ground a determination that it was  
probable that either Mr. Friesen or Mr. Robinson were referring to the defined term  
Back of the Lodge, as opposed to possibly the Left of the Lodge, or a direction of “at  
the back” or “towards the back” as opposed to a defined side of the Lodge. Without  
such admissible evidence, the plaintiffs have not established a prima facie case for  
the first two adverse inferences they seek.  
[
196] In a similar manner, the plaintiffs have failed to establish a prima facie case  
for the second two adverse inferences they seek.  
[
197] The evidence does not establish on a prima facie basis that the staining rags  
were left “all together” at the Back of the Lodge (the third adverse inference); rather,  
the admissible evidence establishes they were left on the Left side of the Lodge.  
[
198] Finally, the evidence of Mr. Friesen, Mr. Robinson and Mr. Dornian  through  
the read-ins of their examinations for discovery and Mr. Dornian’s evidence at trial -  
addresses their respective recollections as to the manner in which the Staining  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 64  
Materials were stored (the fourth adverse inference). Mr. Friesen’s evidence as to  
the manner in which the Staining Materials were stored was that the rags were not  
laid out individually to dry and were placed on the drop sheet. Mr. Robinson’s  
evidence was that he had no recollection of the manner in which the Staining  
Materials were stored. Mr. Dornian’s evidence at trial was that he had no specific  
recollection as to how the rags were stored, but that it was his normal practice to lay  
them out to dry so they could be used the next day.  
[
199] To draw an adverse inference that “the staining rags were not laid out flat to  
dry and were not put in cans of water” would be to inappropriately draw a  
determinative adverse inference; rather than properly considering and weighing the  
admissible evidence tendered at trial.  
[
200] To draw the adverse inferences the plaintiffs seek, where I find the plaintiffs  
have not advanced a prima facie case that the Moerman Stainers all had a similar  
understanding of the description of the four sides of the Lodge, nor have they  
advanced a prima facie case that the Staining Materials were left “all together” on a  
drop sheet at the Back of the Lodge, and the rags were not laid out flat to dry nor put  
in cans of water, would be to effectively reverse the burden of proof: see McIlvenna  
at para. 74.  
[
201] However, even if the plaintiffs had established a prima facie case on a  
balance of probabilities to support the four adverse inferences they seek, in all of the  
circumstances I would nonetheless decline to exercise my discretion to make such  
adverse inferences for the reasons set out below.  
[
202] I accept the plaintiffs’ argument that with respect to the first criteria, there is  
not evidence of a legitimate explanation for why Mr. Friesen and Mr. Robinson did  
not testify. The defendants expressed an intention to call these two defendants, they  
were included on the defendants’ Witness List, they were factored into the various  
iterations of the trial schedule throughout the trial, and it is clear the defendants  
intended to call Mr. Friesen and Mr. Robinson up to the day before they closed their  
case. The defendants’ decision not to call Mr. Friesen and Mr. Robinson may very  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 65  
well have been a tactical decision. I accept that the decision of the defendants not to  
call them the day before they closed their case, after a lengthy break in the trial,  
came as a significant surprise to the plaintiffs.  
[
203] The defendants’ proffered explanation to their late decision was that  
Mr. Friesen and Mr. Robinson’s recall and memory of the events in question “can  
reasonably be expected to fade significantly, if not entirely” in the almost six years  
since the Fire and the almost four years since their examinations for discovery. The  
defendants acknowledge that neither were likely to assist the defendants in proving  
their case. When considering the reasons for not calling a witness, the court can  
consider the unsworn statements of counsel: Tower Waterproofing v. Mondiale  
Development Ltd., 2013 BCSC 1772 at para. 24.  
[
204] Singh makes clear that there “is no rule that a party must call a witness who is  
unlikely to help in proving one’s case” and there may be many reasons why counsel  
decides not to call a witness. It is not appropriate for the court to attempt to ascertain  
those reasons: Singh at para. 25.  
[
205] The defendants also say they were concerned about the length of the trial  
and the efficient use of trial time, and rely upon the recent decision of Thind v. South  
Coast British Columbia Transportation Authority, 2022 BCSC 197. The plaintiffs  
argue this is inconsistent with the defendants’ conduct throughout the trial, including  
the numerous objections to the admissibility of expert reports, and a lengthy  
argument during a voir dire on the admissibility of Broad’s report and evidence at  
large. I agree.  
[
206] The next step of the necessary analysis is whether Mr. Friesen and  
Mr. Robinson were in the exclusive control of the defendants or were equally  
available to both the plaintiffs and the defendants. Plaintiffs’ counsel acknowledge  
they had no agreement nor undertaking with the defendants that Mr. Friesen and  
Mr. Robinson would testify. The plaintiffs argue that as Mr. Friesen and  
Mr. Robinson are defendants, represented by counsel, they are “indisputably in the  
exclusive control” of the defendants, and are not available to both parties. Their  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 66  
position is that the defendants’ conduct led them to be of the understanding they  
would both be called, and that this continued to be their understanding after the  
plaintiffs closed their case. Fundamentally, they argue it is reasonable for the  
plaintiffs to rely upon the defendants’ trial brief, witness lists, and trial schedule.  
[
207] Their position is it would not be reasonable to require the plaintiffs to serve  
the defendants with a Notice of Intention to call Mr. Friesen and Mr. Robinson as  
adverse witnesses when they were listed on the defendants’ witness list. Similarly,  
they argue it is not reasonable to require the plaintiffs to bring an application to re-  
open their case, as they had no guarantee of success in such an application.  
[
208] I am not persuaded by these arguments. As noted by Justice Brown in  
Chabot at para. 137, “contemporary liberal disclosure rules have given parties equal  
opportunities to call witnesses who might assist their litigation position”. The plaintiffs  
had discovered both Mr. Friesen and Mr. Robinson, and had read in portions of their  
examinations for discovery as part of the plaintiffs’ case. The plaintiffs had the ability  
to subpoena both of them as an adverse witness, and likewise had the ability to  
make an application to re-open their case and call both of them as an adverse  
witness. They chose to do neither. They cannot now argue that these two potential  
witnesses were within the exclusive control of the defendants when they failed to  
take steps available to them to ensure Mr. Friesen and Mr. Robinson testified at trial.  
[
209] Finally, turning to the third step of the analysis, whether Mr. Friesen and  
Mr. Robinson have key evidence to give. The plaintiffs argue that the location and  
manner in which the staining rags were left at the end of the day is one of, if not the,  
most important material issue of fact in this trial. Mr. Friesen and Mr. Robinson were  
two of the only potential three witnesses who could testify to personal observations  
with respect to this critical issue. The plaintiffs argue that the Court may still draw an  
adverse inference when the party who fails to testify is one of several witnesses who  
can provide evidence on a material issue: Rakhra v. Jhutty, 2012 BCSC 882. They  
argue that when a witness is one of few who are uniquely situated to give evidence  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 67  
on a material issue, it should weigh very heavily in the Court’s consideration:  
Marcena v. Thomson, 2019 BCSC 1287.  
[
210] The plaintiffs’ position is that during the trial testimony of Mr. Dornian, the  
defendants successfully objected to the plaintiffs’ attempt to suggest that at his  
examination for discovery , Mr. Dornian was provided a photograph of the corner of  
the Back and Left of the Lodge and that he gave evidence that the rags were stored  
to the left of the photo. The defendants objected to the photograph being put to  
Mr. Dornian at trial, as this photograph was not clearly identified at his examination  
for discovery. Their objection was upheld.  
[
211] The plaintiffs argue this results in a clear determination that the evidence of  
Mr. Friesen and Mr. Robinson is key. They say that at his examination for discovery  
Mr. Friesen clearly identified a photograph of the corner of the Left and Back of the  
Lodge, which oriented his understanding of where the Back of the Lodge was. He  
then went on to explain that they “moved [their] tools and materials to the back of the  
house” (question 218).  
[
212] The plaintiffs’ position is that the ability to cross-examine Mr. Friesen on these  
issues, as to the location of the Staining Materials, and the understanding of all of  
the Moerman Stainers as to what was meant by reference to the “back” of the  
Lodge, is critical. They say his evidence would directly contradict Mr. Dornian’s  
testimony and establish that they left the Staining Materials at the Back, and that  
they all understood the “back” of the Lodge to be the Back. They likewise argue this  
has significance for the phrase “back of the house” as it was recorded in the  
Moerman Notes. They argue Mr. Friesen and Mr. Robinson would have been  
cross-examined on the manner in which the Staining Materials were stored at the  
end of the day, which would also have very likely undermined Mr. Dornian’s trial  
testimony with respect to the same.  
[
213] The defendants say this factor weighs most heavily against drawing an  
adverse inference. Their position is that the best and key witness to provide  
evidence on the location and manner in which the Staining Materials were stored  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
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was the crew leader, Mr. Dornian. He was the eldest, and most experienced, of the  
Moerman Stainers. As the crew leader, he was the only witness that could have  
testified about the basis for his decision to store the Staining Materials under the  
balcony on the Left side of the Lodge and his usual practice on how he stores such  
materials. Neither Mr. Friesen nor Mr. Robinson could testify to Mr. Dornian’s  
considerations on work flow or, given their lack of experience working with him, his  
practice on storing such materials.  
[
214] The defendants say it is obvious based on Mr. Friesen and Mr. Robinson’s  
examination for discovery transcripts that neither could provide key evidence on the  
location and manner in which the Staining Materials were stored at the end of the  
day. In respect of Mr. Friesen they say his evidence on the manner of storage is  
captured and apparently exhausted, and his evidence on location is ambiguous. In  
respect of Mr. Robinson they say his evidence on the manner of storage was clearly  
exhausted as he could not remember the manner of storage, and his evidence on  
the location of storage was essentially consistent with that of Mr. Dornian.  
[
215] The defendants say that an adverse inference may only be fairly drawn from  
the non-production of witnesses whose testimony would be superior to the evidence  
of the witness tendered in respect to the fact to be proven: Chabot at para. 136;  
Singh at para. 8. The law is clear that the adverse inference rule is related to the  
best evidence rule, and an adverse inference should only be drawn in regard to the  
non-production of a witness whose testimony would be superior to that of the  
evidence tendered: Buksh v. Miles, 2008 BCCA 318 at para. 30. I agree. In these  
circumstances I find that the plaintiffs have not proven that the evidence of either  
Mr. Friesen or Mr. Robinson would have been superior to that of Mr. Dornian on the  
specific facts of the location and manner in which the Staining Materials were stored  
at the end of the work day.  
[
216] In summary, I do not find that the plaintiffs have established a prima facie  
case to support the four adverse inferences they seek. Even if they had, I do not  
accept that Mr. Friesen and Mr. Robinson were within the exclusive control of the  
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 69  
defendants, and the plaintiffs had no ability to call them as witnesses, nor do I  
accept that they had evidence which was superior to that of Mr. Dornian. In all of  
these circumstances I decline to exercise my discretion to draw the adverse  
inferences the plaintiffs seek.  
[
217] Further, if I had decided to draw an adverse inference, it would not have been  
the adverse inferences the plaintiffs asked for; rather, any adverse inference drawn  
would have been limited to only an adverse inference that the evidence of  
Mr. Friesen and Mr. Robinson would not have supported Mr. Dornian’s evidence.  
VII. FINDINGS OF FACT ON LOCATION AND MANNER OF STORAGE OF  
STAINING MATERIALS  
[
218] The plaintiffs argued that the defendants made improper arguments in closing  
submissions on the discovery evidence read in by the plaintiffs. They specifically  
argue that it is improper for the defendants to refer to their own discovery evidence  
in closing submissions, and particularly to refer to attempted contextual read-ins that  
were not allowed. While I agree it is not appropriate to consider read-ins that were  
not allowed, in the circumstances of this case, where the plaintiffs read-in portions  
from the examination for discovery of the defendants as part of their case, those  
read-ins have become critical evidence. Accordingly, it is appropriate for the parties  
to argue as to the appropriate context within which to consider that evidence, and  
the allowed contextualized read-ins of the defendants, and the resulting weight that  
should be placed on the relevant and admissible evidence.  
[
219] The plaintiffs argued that there was a theme that ran throughout the  
examinations for discovery and at trial of the defendants attempting to create  
confusion and ambiguity that did not actually exist. The defendants argued that the  
plaintiffs intentionally chose not to clarify the evidence they obtained at examination  
for discovery for strategic reasons, as doing so would have caused more damage to  
the plaintiffs’ theory of the case than leaving the key fact of where the Staining  
Materials were stored open to speculation. Neither argument is relevant, nor  
persuasive, for the key findings of fact I must make. Those findings, if I am able to  
 
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make them, must be based on the totality of the relevant and admissible evidence  
tendered at trial.  
A.  
Location of the Staining Materials on May 16, 2016  
[
220] I do not accept the plaintiffs’ argument that the two exhibits marked at  
Mr. Dornian’s examination for discovery are of no value because he “corrected his  
orientation of the Lodge” in questions 581 through 584. As there was no attempt at  
his examination for discovery to clearly reach a consensus of the appropriate  
description of the four sides of the Lodge, those two exhibits are the most probative  
evidence as to where the Staining Materials were stored at the end of the work day  
on May 16. They are not besieged with any orientation description confusion; rather,  
they are a clear depiction of what is the Left side of the Lodge, with the position the  
Staining Materials were left in clearly identified. Further, Mr. Dornian’s evidence at  
trial was consistent, both in direct and cross-examination, with the markings he  
made on these two exhibits.  
[
221] I accept that those two exhibits clearly show that the Staining Materials were  
stored on the Left side of the Lodge, underneath the cover of a balcony. This is  
consistent with Mr. Friesen’s evidence that the Staining Materials were moved “to  
the back of the house … in the shade”, and Mr. Robinson’s evidence that the  
Staining Materials were stored “under cover … somewhere near the back of the  
building”. I find it probable that Mr. Friesen and Mr. Robinson used the term “back”  
as a directional term, rather than as a defined term. By that I mean they used it to  
describe the direction of the storage as “to the back” or “near the back” as opposed  
to a defined side of the Lodge.  
[
222] I note that both Mr. Friesen and Mr. Robinson’s examination for discovery  
read-ins also confirm Mr. Dornian’s evidence that the Staining Materials were stored  
in a protective manner, being “under cover”. Further, Mr. Unger’s evidence  
corroborated that if the scaffolding had been left on the Left side of the Lodge, in the  
location identified by Mr. Dornian, it (and the can) could have been found after the  
Fire in the location he observed and photographed.  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 71  
[
223] I find that the totality of the admissible evidence establishes that the Staining  
Materials were stored on the Left side of the Lodge at the end of the day on May 16,  
underneath the balcony.  
B.  
Manner of Storage of the Staining Materials May 16, 2016  
[
224] The only individuals who could provide evidence of the manner in which the  
Staining Materials were left at the end of the work day on May 16 are Mr. Dornian,  
Mr. Friesen and Mr. Robinson.  
[
225] Mr. Loetscher testified that Mr. Dornian told him the night of the Fire that they  
had put oily rags in a bag, which Ms. Rosel corroborated, and Ms. Foster testified  
she also heard one of the Moerman Stainers express guilt that they had started the  
Fire with bags of rags. However, that is the only evidence of the manner of storage  
that is admissible for the truth of its contents. While there was additional evidence in  
the Moerman Notes as to the manner in which the rags were stored, for the reasons  
set out in section VI(A), those notes are not admissible for the truth of their contents.  
[
226] The only evidence that the soiled rags were stored in a bag comes from  
Mr. Loetscher, who testified that Mr. Dornian told him on the boat ride while they  
were evacuating from the Lodge that he had put the soiled rags in a garbage bag,  
which was corroborated by Ms. Rosel. This occurred at a time of significant drama  
and trauma, with heightened emotion. Mr. Dornian recalls nothing of the boat ride.  
Mr. Loetscher recalls the boat ride, but agrees he then made an assumption as to  
where the Staining Materials were stored. This information was then relayed to  
Mr. Goff and Mr. Broad, who treated the information as fact rather than assumption.  
[
227] Further, the Video does not record any of the Moerman Stainers confirming  
they put the soiled rags inside a bag; but rather, records Mr. Loetscher asking “The  
oily rags you put inside the bag?” In all of the circumstances, I prefer the evidence of  
Mr. Dornian to that of Mr. Loetscher and Ms. Rosel on the issue of the manner in  
which the soiled rags were stored, as I accept that the Moerman Stainers were  
planning on continuing to work the following day and so would have needed to reuse  
the soiled rags (particularly given the remote location of the work).  
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 72  
[
228] Mr. Friesen’s examination for discovery read-ins provide evidence that they  
did not lay the rags out individually to dry, and that the rags were on the drop sheet.  
He could not recall what was done with the brushes.  
[
229] At his examination for discovery, Mr. Robinson could not recall whether the  
staining rags were “laid out” but he did not remember doing that personally, and he  
was not sure if someone else laid the rags out. Similarly, he did not remember  
putting them in cans of water, or observing anyone else putting them in cans of  
water.  
[
230] Finally, during his examination for discovery Mr. Dornian also had no  
recollection of what he did with the staining rags, and could not remember if they  
were laid out or put in cans of water. However, during trial, Mr. Dornian testified that  
he would typically spread rags out to dry overnight, so he could use them the next  
day.  
[
231] The evidence on the manner of storage is wholly ambiguous and  
unsatisfactory. As already set out, I accept Mr. Dornian’s evidence that he had never  
stored rags bundled up and he had never put used rags in a plastic bag, and  
therefore I find it improbable he would have done so on May 16, 2016. There is no  
admissible evidence that would support the inference that the soiled rags were either  
rolled in a drop sheet or put in a plastic bag. Finally, none of Mr. Friesen,  
Mr. Robinson nor Mr. Dornian had a recollection that they placed the soiled rags in  
cans of water, and there is no admissible evidence that would support such an  
inference.  
[
232] I note that the plaintiffs’ theory of the case evolved, as is frequently the case,  
over the long years of litigation. While initially their theory was that the soiled rags  
were stored in a plastic bag, it later became that they were rolled in a drop sheet,  
and there was “no one distinct pile of rags”. This was the argument they advanced in  
their initial closing argument. However, after the admissibility of the Moerman Notes  
became an issue, in reply the plaintiffs argued that the rags were not laid out  
individually to dry, and they argued that it was a reasonable inference to draw that if  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 73  
they were not laid out individually to dry they must have been left in a pile on the  
drop sheet.  
[
233] I accept that none of Mr. Friesen, Mr. Robinson and Mr. Dornian have a clear  
memory of what they did with the staining rags when cleaning up the at the end of  
the workday. I am satisfied that it is reasonable that I draw the inference the soiled  
rags were laid out to dry in some manner, because:  
a) for the reasons set out above, I am satisfied that Mr. Dornian had a  
“typical practice”, and I accept his evidence that he would typically spread  
the rags out to dry overnight so they could be used the next day; and  
b) the Moerman Stainers were in a remote location, and so Mr. Dornian’s  
typical practice of ensuring the rags could be used the next day was even  
more important than had they been in an urban setting.  
[
234] With respect to exactly how the rags were set out to dry, Mr. Friesen gave  
evidence at his examination for discovery that they did not lay the rags out  
individually to dry. Mr. Dornian testified as to his regular practice to set the rags out  
to dry. To be clear, while I find that the soiled rags were laid out to dry in some  
manner, I do not find they were laid out individually to dry.  
[
235] However, I do not accept that the allowable evidence establishes that I may  
draw the inference that the soiled rags “were left in a pile on the drop sheet”.  
Mr. Friesen’s examination for discovery read in must be considered together with  
Mr. Dornian’s evidence. I am satisfied that they were laid out in some manner to dry  
on top of the folded drop sheet - either on top of the drop sheet or on top of the cans.  
While I accept they were not laid out individually to dry, I do not accept the plaintiffs’  
argument that as there was no evidence adduced that they were “laid out individually  
flat to dry”; it is then a common sense inference to conclude that were “left in a pile”.  
Soiled rags set out to dry could have been left in any number of manners that would  
neither qualify as individually laid flat nor in a pile. They may have been touching  
each other yet laid out in a single layer, they may have been overlapping to some  
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Page 74  
extent that would not qualify as a “pile, or they may have been left in some other  
manner. While I accept they were not laid out individually to dry, I do not accept it is  
reasonable to draw the inference they were then clearly “left in a pile on the drop  
sheet”.  
VIII. EXPERT EVIDENCE ON ORIGIN AND CAUSE OF THE FIRE:  
MR. BROAD, MR. REED AND DR. CRAFT  
[
236] The plaintiffs rely upon the expert evidence of Mr. Broad and Dr. Craft on the  
issue of origin and cause of the Fire. Their theory is that the evidence adduced at  
trial supports the reasonable inference that the Staining Materials were stored at the  
Back of the Lodge, in a negligent manner which allowed for spontaneous  
combustion.  
A.  
Mr. Broad  
[
237] Mr. Broad was qualified as an expert in the field of fire investigation to provide  
opinions on origins and causes of fires. The defendants objected to the admissibility  
of Mr. Broad’s final expert report dated January 22, 2022 (the “Broad Report”) and  
there was a lengthy voir dire to deal with both the admissibility of the Broad Report  
and Mr. Broad’s evidence at trial. My reasons for judgment on the voir dire are  
indexed as 2022 BCSC 318, and need not be repeated in detail here. By way of brief  
summary, I determined I was not satisfied that the risk in admitting Mr. Broad’s  
evidence was sufficient to exclude it at the gatekeeping stage, and concluded that  
the defendants’ arguments as to the potential unreliability of his evidence did not  
eliminate its potential probative value at that stage. Rather, I concluded that those  
arguments were properly to be addressed when I determined the weight I put on  
Mr. Broad’s evidence, after hearing the totality of the evidence at trial.  
[
238] At this time, after carefully considering all of the evidence tendered at trial, I  
conclude that I can put no weight on the Broad Report, for the following reasons.  
[
239] First, it is important to put the Broad Report into the appropriate context.  
 
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 75  
[
240] Mr. Broad was initially retained by Mr. Unger to conduct an origin and cause  
fire investigation. Mr. Broad attended at the Goff Property on May 23, 2016, and  
interviewed Mr. Loetscher. Mr. Broad identified the four sides of the Lodge in a  
different manner than I have defined them, and in particular said the Moerman  
Stainers had stained the front (western) exposure. This is a reference to the Left  
side of the Lodge. Given Mr. Broad only attended at the Goff Property after the  
Lodge had been completely destroyed, any confusion is understandable.  
[
241] Mr. Broad’s original origin and cause fire report was dated May 28, 2016 (the  
Broad Original Report”). In the Broad Original Report, Mr. Broad made a number of  
assumptions, based on his interview with Mr. Loetscher and information he received  
from Mr. Unger, including that:  
a) the Moerman Stainers moved their scaffolds, tools, staining materials,  
brushes and rags, and stored them on the north side of the structure  
(being the Back); and  
b) the Moerman Stainers placed the rags used for the application of the Stain  
in plastic bags, and sealed them up.  
[
242] Mr. Broad concluded that he could not determine a point of origin of the Fire,  
nor could he develop a probable cause for the ignition of the Fire. As a result, in the  
Broad Original Report, he classified the Fire as “Undetermined”.  
[
243] However, after tendering the Broad Original Report, Mr. Broad was involved  
in communications with Mr. Goff and his counsel at the time, Mr. Datt. He was  
ultimately provided a copy of the Video (described in paragraph [56]), and copies of  
the Security Stills.  
[
244] After reviewing them he did not believe they depicted what Mr. Datt and  
Mr. Goff had stated. He was clear that in his view, this new evidence did not  
necessarily provide evidence of a clear origin of the Fire. On October 16, 2016 he  
asked Mr. Datt if it was possible to go back to the site and examine the alleged new  
area of origin. He asked again on November 30, 2016, and was advised on  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 76  
December 6, 2016, that the site cleanup had already been completed and so it was  
not possible.  
[
245] Mr. Broad recommended that he undertake experimental testing on  
spontaneous combustion and Mr. Datt asked him for a budget for the same on  
January 31, 2017.  
[
246] Shortly after, Mr. Broad was advised a colleague of Mr. Datt’s, a Mr. Bush,  
would be attending at the Lodge site (together with Mr. Goff and the caretakers) on  
February 27 and 28, 2017. On February 27, 2017 Mr. Broad requested they obtain  
the following information:  
a) copies of the electrical and mechanical drawings for the Lodge;  
b) details regarding any previous electrical or mechanical issues at the  
Lodge;  
c) confirmation of the storage location of the Staining Materials;  
d) details regarding the location of the security camera that “caught the fire”  
in the images provided to him; and  
e) the pending experimental burn plan.  
[
247] By the end of February 2017, Mr. Broad testified that he had formed the  
opinion that the 11:01 Still appeared to show light from fire at the back of the Lodge.  
[
248] In his letter to Mr. Datt of May 1, 2017, Mr. Broad delivered his protocol and  
budget for the testing of the potential spontaneous combustion (the “Testing  
Protocol”). At the time he developed the Testing Protocol he did not have a copy of  
the Moerman Notes, which he would later receive. In his letter he noted:  
In light of new evidence that has come forward since our initial origin and  
cause report (dated May 16, 2016) we have reason to believe that we may be  
able to reclassify the Goff residence fire as an accidental, due to a  
spontaneous combustion event.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 77  
In the preparation of our supplementary report, it is our intention to show that  
the procedures employed by the “painting/staining crew”, contracted to  
refinish the exterior of the Goff residence, could have resulted in a  
spontaneous combustion event.  
It is our intention to run a series of laboratory tests to demonstrate the  
spontaneity of the Cetol stain if improperly discarded. These tests will be  
performed at the University of Waterloo fire laboratory under the guidance of  
the undersigned and Dr. Beth Weckman, professor, Waterloo University. Dr.  
Weckman is an expert in fire science, heat transfer and fire modeling.  
[
249] He confirmed on cross-examination that he designed the Testing Protocol  
and it was the most accurate and comprehensive protocol he could devise based on  
the data that was available to him at that time which, by that date, included the  
Security Stills, notably the 11:01 Still, and the Video.  
[
250] On June 12, 2017, Mr. Broad issued a new opinion reclassifying the Fire from  
Undetermined” to “Accidental”, caused by the spontaneous combustion of the  
Staining Materials, which he signed and affixed his professional stamp to (the “2017  
Reclassification Report”). He was clear this report was a summary overview, and not  
a complete technical report. In the 2017 Reclassification Report he opined that new,  
sufficient, credible evidence allowed him to reclassify the Fire from his original  
determination of Undetermined, to Accidental. He explained further:  
Prior to the production of this document [the MSDS for the Cetol SRD RE  
Stain], the author was presented with a series of photographs and a short  
video showing the originating location of the fire, at an early stage of the  
growth timeline. This evidence was not available to us at the time of our  
original investigation thus our “Undetermined” classification of the fire.  
However, in that we can now place the fire external to the structure, we can  
credibly eliminate the possibility that the fire was an internal electrical malady  
and any damages we found within the structure were a logical result of fire  
spread.  
Further, since our original classification was based on the fact that two  
credible ignition sources existed, each of which were “possible”, we were  
bound by the tenets of NFPA 021 to classify the fire as Undetermined. Now  
however, with a credible area of origin, we can conclude the most probable  
source of ignition of the fire was a spontaneous combustion event brought on  
by the careless handling of products used in the staining process.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 78  
[
251] As of the date of the 2017 Reclassification Report, Mr. Broad had not  
received answers to the questions posed in his February 27, 2017 email, nor had he  
conducted the proposed testing as set out in his Testing Protocol. He set out in the  
2
017 Reclassification Report that his intention was to carry out testing to  
demonstrate the spontaneity of the Stain if improperly discarded. In his email  
forwarding the 2017 Reclassification Report he noted “we still need to confirm the  
vulnerability of the Cetol to spontaneous combustion in accordance to the  
background information we have to date. Mr. Broad’s evidence was that the 11:01  
Still was sufficient to justify the reclassification of the cause of the Fire in June 2017.  
His opinion was:  
Because there is 1) a bright light outside the back door with a left side bias;  
and 2) the subject photo gives no indication of a fire elsewhere in the Lodge  
interior then Fire’s origin is probably at the Lodge’s northwest corner.  
This analysis fails to recognize that there could be an interior fire elsewhere in the  
Lodge that is not within the range of the great room camera. Mr. Broad’s failure to  
consider this possibility is problematic. However, I do not accept the defendants’  
criticism of Mr. Broad for engaging in “photographic interpretation”. I accept he used  
his expertise in looking at the 11:01 Still, and reaching a conclusion based upon his  
examination of the abundance of other evidence. I do not have difficulty with his  
ability to engage in that analysis, however I have difficulty with his conclusion,  
because there were areas of the Lodge out of range of the great room camera.  
[
252] The testing as designed in the Testing Protocol was conducted at the  
University of Waterloo campus over three days from November 30 to December 2,  
017 (the “Testing”). Briefly, the Testing included two separate storage scenarios for  
rags soaked with various degrees of the Stain. In the first scenario, four bundles of  
5 rags each, with the Stain saturation of 40, 60, 80 and 100% were placed in four  
separate metal trays. In the second scenario, two bundles of 15 rags (soaked with  
0% and 100% Stain respectively), were placed in plastic bags with the ends folded  
2
1
5
over and placed in separate metal trays. Each of the six bundles of rags had an  
electric thermocouple placed within it to monitor the internal temperature.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 79  
[
253] None of the six bundles of rags spontaneously combusted in the time frame  
established by the photographic and eye witness evidence the night of the Fire  
namely between approximately 6:30 pm and 10:30 pm). Only one of the six  
(
samples showed signs of combustion between 29 and 33 hours after the Testing  
commenced.  
[
254] Mr. Broad provided a draft report dated February 29, 2020, and tendered his  
initial expert opinion dated March 20, 2020 (which report is identical to the Broad  
Report, however without the footnotes). It is not disputed that Mr. Broad removed  
certain information from his draft report in the Broad Report, including the data that  
he had been able to obtain of the applicable ambient temperatures, which were in  
fact from Vancouver and not from the area of the Lodge. It is also not disputed that  
in the Broad Report he corrected his references to the sides of the Lodge.  
[
255] The Broad Report identifies the Moerman Notes as an “essential piece of new  
information”. Mr. Broad relies upon the Moerman Notes for the location in which the  
Staining Materials were stored:  
According to the notes prepared by Mr. Moerman, the stain work ended at  
approximately 6:35 pm. The majority of the staining equipment, supplies, and  
waste materials were stored at the north side of the structure (the “back” of  
the house).  
[
256] Mr. Broad clearly sets out the two new pieces of information that had been  
discovered, namely the Security Stills and the Moerman Notes. Mr. Broad  
summarizes what he characterizes as the “essential pieces of new information”  
which had been discovered and introduced. He wrote:  
Since the production of our original May 28, 2016 report, essential pieces of  
new information have been discovered and introduced. That information is  
listed below:  
It was discovered that a video surveillance system was installed at  
various locations throughout the property. Such information was not made  
available to use during our initial investigation.  
Notes prepared by Mr. Moerman of a meeting with the staining crew  
describe the way the stain infused rags and brushes were handled and  
stored at the end of the workday, prior to discovery of the fire.  
Mr. Moerman’s notes state:  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 80  
o
Rags stored at back of house 12 rags stain, 2 other dry rags,  
rags didn’t go in a plastic bag), rags were put and rolled in drop  
(
sheet. There’s no one distinct pile of rags. 2 brushes with rags  
around them. Rags weren’t drenched with stain but were spot  
stained.  
o
o
Gear was stored by the house at the back, but no staining had  
been done in that area. Possible stain on the drop sheet.  
25 degrees was warm working on the day, working on the sunny  
side.  
o Storing rags in steel bin was hindsight.  
Emphasis added.]  
[
[
257] In his evidence at trial, Mr. Broad clearly identified what he believed to be the  
origin of the Fire, as being along the Back of the Lodge, being anywhere from the  
corner where the Back met the Left of the Lodge (or the northwest corner) to  
approximately halfway along the Back.  
[
258] While Mr. Broad was examined at length on his reliance on the Moerman  
Notes, the issue of if or how his opinion would change if the Moerman Notes were  
not admissible for the truth of their contents was not canvassed. Given the plaintiffs’  
admission the Moerman Notes may not be tendered for the truth of their contents,  
the impact of Mr. Broad’s characterization of the Moerman Notes as “an essential  
piece of new information”, is a critical consideration for determining the appropriate  
weight to be placed on the Broad Report.  
[
259] As already set out, I have accepted the evidence of Mr. Dornian, which  
establishes that the Staining Materials were in fact stored on the Left side of the  
Lodge at the end of the day, not the Back. This factual determination alone is  
sufficient to conclude I cannot place any weight on Mr. Broad’s evidence.  
[
260] Were I wrong in my factual determination that the Staining Materials were  
stored on the Left side of the Lodge, I would nonetheless determine I cannot place  
any weight on the Broad Report because:  
a) Mr. Broad makes clear in the report that, among other things, witness  
statements had allowed him to determine the origin of the Fire as being at  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 81  
the Northwest area of the Lodge [i.e. the Back of the Lodge], and these  
witness statements - the Moerman Notes - are inadmissible for the truth of  
their contents;  
b) Mr. Broad likewise makes clear in the report that he has assumed the  
“rags were put and rolled in a drop sheet” and there was “no one distinct  
pile of rags”, when the evidence adduced at trial does not support this  
assumption; and  
c) Mr. Broad concludes that it was the careless handling of products and  
materials used in the staining process that led to a “spontaneous  
combustion event”, but fails to make reference to the Testing or its results,  
and fails to refer to any other evidence as to the tendency of the Stain to  
spontaneously combust.  
[
261] While by this time Mr. Broad had been provided the examination for discovery  
transcripts of David Moerman, all of the Moerman Stainers, Paul Loetscher and  
Robert Goff (the “Discovery Transcripts”), his evidence was he did not consider  
them. He also acknowledged he did not consider any of the other information in the  
Moerman Notes other than what was set out above.  
[
262] In the Summary of the Broad Report, Mr. Broad explained that:  
Based on our examination of the supplied information, it is Envista’s  
professional opinion that:  
Witness statements, surveillance camera photographs, fire intensity and  
movement patterns, and a fire dynamics analysis has allowed us to  
determine the origin of the fire being at the Northwest area of the Lodge.  
Examination of the supplied surveillance photographs allowed us to  
credibly eliminate the possibility that the fire originated within the  
structure. Further, the propagation of the fire from the interior to the  
exterior in such a short period of time is not consistent with the  
fundamental principles of fire science.  
With the elimination of the electrical anomaly hypothesis, and the credible  
area of origin, we conclude that the probable source for the ignition of the  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 82  
fire was a spontaneous combustion event brought on by the careless  
handling of products and materials used in the staining process.  
[
Emphasis added.]  
[
263] I appreciate that in his 2017 Reclassification Report Mr. Broad opined that the  
Security Stills alone gave him evidence the Fire had commenced at the northwest  
area of the Lodge (the corner of the Back and Left of the Lodge); however, the  
Broad Report makes clear that, among other things, he was also relying upon  
“Witness Statements” to determine the origin of the Fire. While I accept that the  
Security Stills provided Mr. Broad a detailed and reliable timeline of the development  
of the Fire, I do not find evidence within the Broad Report, nor his testimony at trial,  
to determine that the Security Stills alone, without the Moerman Notes, were  
sufficient “essential evidence” to allow Mr. Broad to establish the area of origin of the  
Fire at the Back of the Lodge.  
[
264] Further, while all of the experts acknowledge that the haze evident in the  
1:01 Still is smoke from a fire underway somewhere, I cannot accept that the 11:01  
1
Security Still alone is evidence of a Fire origin at the Back of the Lodge. On this  
issue I prefer the evidence of Mr. Reed (discussed below).  
[
265] Finally, there is the issue of the lack of evidence as to how exactly the soiled  
rags were stored, addressed above. The Broad Report assumes the “rags were put  
and rolled in drop sheet – there’s no one distinct pile of rags”. I have found there is  
no evidence to support this, nor to support a reasonable inference that this was the  
manner of storage. Without any admissible evidence adduced at trial to support this  
factual assertions, I am unable to afford the Broad Report any weight.  
[
266] As set out above, the issue arose in closing argument given the plaintiffs’  
admission that the Moerman Notes were not admissible as evidence of the truth of  
their contents. The plaintiffs’ position was that there was other evidence to support  
that the Staining Materials were stored at the Back of the Lodge, in the area  
identified by Mr. Broad as the origin of the Fire, which evidence is found in the  
examination for discovery read-ins of Mr. Friesen and Mr. Robinson, and in the  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 83  
adverse inferences the plaintiffs sought. For the reasons set out above, I do not  
accept this argument.  
[
267] The plaintiffs also argued there was other evidence to support that the soiled  
rags were left in a manner that could lead to spontaneous combustion. The plaintiffs  
argued that there is no evidence that the soiled rags were laid out individually to dry,  
and without that evidence there is a reasonable inference that they were laid out in a  
manner that could lead to spontaneous combustion. Again, for the reasons set out  
above, I disagree.  
[
268] As I have summarized above under the Findings of Fact on “Manner of  
Storage” I am satisfied that it is reasonable that I infer it is probable that the staining  
rags were laid out to dry in some manner (not individually), and were neither bundled  
in a plastic bag, rolled in a drop cloth nor bundled in any other significant manner.  
However, I do not accept this leads to the reasonable inference that there was a  
“pile” of staining rags on the drop sheet. I see no basis in the evidence for such an  
inference to be drawn.  
[
269] The defendants characterize the plaintiffs’ admission that they may not rely  
upon the Moerman Notes as evidence of the truth of their contents as a  
monumental event in the case”. They say with no evidence to support a conclusion  
that the Staining Materials were stored at the Back of the Lodge, and no evidence to  
support the finding that they were “rolled in a drop sheet” nor that there was no one  
distinct pile of rags, the Broad Report is not supported by the evidence and is so of  
no assistance. I agree.  
[
270] Further, the Broad Report contains no reference to either the Testing, or its  
results. Mr. Broad’s explanation for this was the Testing was unreliable in at least  
two ways: that the ambient temperature in the room in which the Testing occurred  
was too cold, and that the Testing was not sufficiently replicative of the conditions at  
the time of the Fire. He suggested the Testing was so wrong in the way it was done  
as to be completely useless and unreliable. The Testing cost approximately $20,000  
and Mr. Broad’s evidence was that he refunded that amount to his client.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 84  
[
271] However, in the Broad Report there is no explanation for his failure to  
demonstrate the spontaneity of the Stain if improperly discarded, nor is there an  
explanation for why he no longer believed it was necessary that he do so. While I  
appreciate that the plaintiffs say the opinion of Mr. Broad that spontaneous ignition  
was the cause of the Fire is corroborated by the evidence of Dr. Howitt, Mr. Broad  
fails to substantiate this opinion. On this basis alone I would not give the Broad  
Report any weight.  
[
272] Finally, on cross-examination Mr. Broad agreed that if the Staining Materials  
had been stored on the Left of the Lodge, underneath the balcony, as testified to by  
Mr. Dornian, he would opine that the cause of the Fire was undetermined.  
[
273] Upon a consideration of all of the evidence, I am satisfied I cannot put any  
weight on Mr. Broad’s expert opinion.  
B.  
Mr. Reed  
[
274] The defendants rely upon the expert report of Christopher Reed, who was  
qualified as an expert able to give expert testimony in the areas of fire origin and  
cause determination, and fire progression and dynamics analysis. He was retained  
to provide his expert opinion as to the probable origin of the Fire, and the probable  
cause of the Fire. Mr. Reed was given a list of facts and assumptions upon which his  
opinion was to be based. With respect to the location and manner of the storage of  
the Staining Materials, Mr. Reed was asked to assume:  
(
n) The Moerman Workers stored the Staining Materials on top of a Drop  
Sheet two or three feet from the Lodge under the balcony on the Left side of  
the Lodge’s Main Floor as indicated on Exhibits 2 and 3 from the Examination  
for Discovery of Brad Dornian.  
(
o) The Drop Sheet on which the Staining Materials were placed may have  
been spot stained from drips of Stain.  
(
p) The spot stained rags were placed on top of the Drop Sheet and the used  
brushes were either placed directly on the Drop Sheet or put into empty Stain  
cans also on top of the Drop Sheet.  
[
275] His expert report dated April 2, 2020 (the “Reed Report”) concluded that a  
point of origin or fire origin narrower than the premises of the Lodge itself could not  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 85  
be determined. He opined that without a defined origin of the fire, proof of the first  
fuel ignited, or the known relationships between the various ignition sources and  
fuels ignited, a probable fire cause could not be determined, and the Fire was  
properly classified as Undetermined.  
[
276] In addition to the specific facts and assumptions, he was then also asked to  
assume that “the light shining through the interior stair pickets in Security Still f) [the  
1:01 Security Still] is light, either direct or reflected, created by the Fire, and to  
1
consider if that would change his opinion on the probable origin and cause of the  
Fire. His opinion was:  
Following the scientific method, I have included the additional fact that the  
light shining through the interior stair pickets in Security Still (f) could be light,  
either direct or reflected, created by the Fire. This fact is included as a data  
set considered in the development of an origin and cause hypothesis.  
As considered in the Fire Dynamics section of this report, the light or  
reflection is not discernable as an incipient fire or reflection from an already  
developing fire. If the light was a reflection of a developing fire, the fire  
dynamics of an exterior fire are more consistent with the reflection as a result  
of a fire developing away from the back door.  
A fire originating from the exterior of the back entrance is contrary to the short  
timeframe of fire developing through the Lodge. Conversely, the approximate  
timeframe, limited Security Stills, power remaining on during fire  
development, and example of reflections of the Fire observed at the front of  
the Lodge better correlates with the reflection light at the back entrance as a  
result of a fire developing from the front quadrant of the Lodge.  
Accordingly, it remains my opinion that there is no cause hypothesis that is  
evidenced by the facts of the investigation to be more probable than another  
and that the cause of the fire at the Malibu Lodge should still be classified as  
undetermined.  
[
277] Mr. Reed’s opinion was that the cause of the Fire must be classified as  
undetermined”; further, he opined the timeframe, Security Stills, and the fact the  
power remained on during the development of the Fire (assumed as a result of the  
fact the security system was able to transmit the Security Stills) better correlated  
with the Fire developing “from the front quadrant of the Lodge”.  
[
278] In his second report dated May 15, 2020, Mr. Reed was asked to provide a  
responding report (the “Reed Responsive Report”). Mr. Reed was not given a copy  
of the Moerman Notes.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 86  
[
279] He was asked to consider specific facts set out in an expert report of Mr. Jan  
Null dated March 26, 2020 (which dealt with meteorological analysis and  
temperature assessment) and the Howitt Report (as defined below), and to then  
answer the following question:  
Do the Additional Facts [set out in the instruction letter] change, alter or affect  
your opinion on the probable:  
a) origin of the Fire; and  
b) cause of the Fire.  
[
280] He was also asked to review the Broad Report (of March 20, 2020) and to  
answer the following questions:  
2. Do the opinions in the Broad report change, alter or affect your opinion on  
the probable:  
a) origin of the Fire? If so, why? If not, why not?  
b) cause of the Fire? If so, why? If not, why not?  
[
281] Mr. Reed did not find that either the report of Mr. Null or Dr. Howitt changed,  
altered or affected his opinion on the probable cause of the fire, and it remained his  
opinion that there is no cause hypothesis that is evidenced by the facts of the  
investigation to be more probable than another and that the cause of the fire at the  
Malibu Loge should still be classified as undetermined”. In consideration of the  
Broad Report, Mr. Reed opined:  
The opinions in the BROAD Report do not change, alter, or affect my opinion  
on the probable origin of the fire. It is my opinion that a point of origin or fire  
origin narrower than the premises of the Lodge itself cannot be determined.  
This opinion concurs with the original PT & C Report [the Original Broad  
Report]. The BROAD Report however now concludes that witness  
statements, surveillance camera photographs, fire intensity and movement  
patterns, and a fire dynamics analysis allowed them to determine the origin of  
the fire being at the Northwest area of the Lodge.  
As discussed in the REC Report [the Reed Report] and additionally in this  
response, I have found no witness statements or fire intensity and movement  
patterns that assist in defining an origin of the fire. The surveillance camera  
photographs were previously considered in my analysis and except for a  
general timeline, do not assist in establishing a fire origin. I further do not find  
a fire dynamics analysis within the BROAD Report to substantiate the  
reported opinion.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 87  
The BROAD Report opines that a probable cause can now be determined  
because the fire origin is from the exterior northwest area and that all other  
credible ignition sources can be eliminated. As my opinion on the origin of the  
fire is not changed, I disagree that a probable cause is demonstrated.  
Accordingly, it remains my opinion that there is no cause hypothesis that is  
evidenced by the facts of the investigation to be more probable than another  
and that the cause of the fire at the Malibu Lodge should still be classified as  
undetermined.  
[
282] On cross-examination, Mr. Reed confirmed he reviewed Dr. Craft’s Report (as  
defined below), and after doing so, reviewed the 11:01 Still again. Upon doing so, he  
agreed with Dr. Craft that there was light reflected in three places at the top of the  
image, with one of the places obscured by the timestamp. He acknowledged that if  
the sources of light on the 11:01 Still were light reflected from an already burning  
fire, then that would favour an origin of the Fire at the Back of the Lodge. However  
the source of this reflected light would be critical to his opinion, and he explained  
that if he was told to assume there was a large fire burning on one side of the  
building, and that it was not burning anywhere else, that would be evidence to  
support the assumption the Fire was burning at the Back of the Lodge. However, to  
change his opinion, he would require either the fact to be given to him that the Fire  
was burning at the Back of the Lodge, or evidence from some source as to where  
the Fire was burning from.  
[
283] He confirmed that given the evidence of Mr. Dornian that the Staining  
Materials were stored on the Left of the Lodge, underneath the balcony, his opinion  
that the origin of the Fire could not be determined would not change. He also  
confirmed that upon reviewing the Moerman Notes during his cross-examination,  
nothing in those notes would cause him to change his opinion that the origin and  
cause of the Fire were undetermined.  
C.  
Dr. Steven Craft  
[
284] The plaintiffs also rely upon the expert report of Dr. Craft dated September  
3, 2021 (the “Craft Report”). Dr. Craft was qualified as an expert able to provide  
opinion evidence on fire progression and fire dynamics analysis. The defendants  
1
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 88  
objected to the admissibility of portions of the Craft Report, and I rendered an oral  
ruling finding discrete portions of the Craft Report inadmissible.  
[
285] In the Craft Report, Dr. Craft was asked to provide a rebuttal report to the  
opinion of Mr. Reed dated April 2, 2020, and was asked to provide his opinion of  
what is the most probable scenario with respect to the development, spread,  
progression and timeline of the Fire?” I note he was given, among other things, a  
copy of the Moerman Notes, although he did not rely upon them for any key facts.  
[
286] Dr. Craft’s opinion was based on his conclusion that the light seen on the  
upper level of the house in the 11:01 Still “would suggest the fire was large at this  
point, extending from the deck level of the first storey up to the roof structure above  
the back entryway”. He opined:  
Mr. Reed then estimates 11-20 minutes for the fire to vent out the front of the  
building. However, it is my opinion that the fire was relatively large at the back  
of the building when the 11:01 pm photo was captured, which would  
significantly accelerate the spread of fire into the roof/ceiling space over the  
central portion of the building. Given a large fire on the exterior, the fire would  
likely grow very quickly on the wood ceiling resulting in flashover in that  
space in a shorter timeframe than Mr. Reed estimates. This would be  
consistent with fire venting out the front in enough time to ignite the deck in  
front of the Lodge in the 11:11 pm photo. In my opinion, this is the only  
scenario which would allow the fire to grow quickly enough between the  
11:01 pm and the 11:11 pm time stamped photos. Therefore, Mr. Reed’s  
estimate of time to breach the windows into the Lodge and vent out the front  
of 20-35 minutes does not recognize the large fire that was likely burning on  
the back façade under the roof canopy over the doorway. This is one of the  
only locations where the fire could grow undetected (from security camera  
photos) and still lead to fire breaching the front windows and igniting the deck  
as visible in the 11:11 pm photo. Mr. Reed’s estimate for fire growth on the  
back of the façade is not helpful since it could have taken any amount of time,  
and no photos available would be able to confirm or refute any possible  
timeline for early fire growth in this location.  
[
287] Dr. Craft acknowledged on cross-examination that his opined area of origin  
was anywhere the entire length of the Back of the Lodge. He opined this as the “only  
scenario which is conceivable” given the limited timeline from the Security Stills “is  
the scenario of the fire starting on the Back of the Lodge.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 89  
IX.  
EXPERT EVIDENCE ON SPONTANEOUS COMBUSTION:  
MR. BOSHARD AND DR. DAVID HOWITT  
[
288] The plaintiffs rely upon the expert evidence of Greg Boshard as to the  
appropriate standard of care for storing soiled staining rags, and upon the expert  
evidence of Dr. David Howitt as to the ability of improperly stored soiled staining  
rags to spontaneously combust.  
A.  
Mr. Boshard  
[
289] Mr. Boshard was qualified as an expert able to provide opinions on:  
a) the knowledge a professional painting company, acting reasonably, would  
have pertaining to the risks of working with oil-based stains, particularly  
with respect to the storage or disposal of application materials, such as  
soiled rags or drop sheets;  
b) the information or training a professional painting company, acting  
reasonably, would provide to its workers, before they worked on a staining  
project involving the application of oil-based stains, when those workers  
do not have previous experience or training with oil-based stains; and  
c) the manner in which a professional staining crew, acting reasonably,  
would store or dispose of application materials, such as rags or drop  
sheets, soiled with oil-based stain.  
[
290] Mr. Boshard opined that it is common knowledge among painters in the  
industry that:  
a) rags soiled with an oil based stain can self heat and spontaneously  
combust if they are stored incorrectly; and  
b) proper disposal of rags soiled with an oil based stain is to either place the  
soiled rags in a metal container filled with water and sealed or to lay them  
flat to dry.  
 
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 90  
[
291] When asked to describe the manner in which a professional staining crew,  
acting in a reasonable manner, would store or dispose of soiled rags, he explained:  
In my experience, a professional staining crew would dispose of stain soiled  
rags by either placing them in a water filled can or by laying them out flat to  
dry. For example, the Safe Work Procedures sheet from our company, giving  
the following instructions.  
OR  
1
lay out or hang oily rags in single layer in a well ventilated area out of  
direct sunlight. Be sure to lay them on a non-combustible surface i.e.  
concrete or grass  
2
3
Let rags dry completely for at least two days, possibly longer depending  
on product  
Dispose of dried rags in accordance with local bylaws or hazardous waste  
centre  
In my experience, a professional painting crew would dispose of stain soiled  
rags in this manner and follow the instructions that are on every stain can.  
These procedures in fact are common knowledge and practice among  
experienced painters and stainers.  
[
292] The defendants agree that the reasonable standard of care for storing soiled  
rags and a drop sheet, contaminated with the Stain, includes laying or spreading  
them out flat to dry. They stress that both the Stain warning and Mr. Boshard warn  
that the proper disposal of soiled rags includes laying them out flat to dry.  
B.  
Dr. David Howitt  
[
293] Dr. Howitt was qualified as an expert in the field of materials science, able to  
provide expert opinion evidence on the properties of spontaneous combustion and  
the manner in which materials soaked with the Stain are susceptible to spontaneous  
combustion under defined conditions. The parties agreed to a number of redactions  
of Dr. Howitt’s report dated Match 16, 2020 (the “Howitt Report”), and I ordered two  
remaining contentious sentences admissible.  
[
[
294] I note Dr. Howitt was also given a copy of the Moerman Notes.  
295] While Dr. Howitt was asked to provide an evaluation of the properties of the  
Stain, his understanding of the chemical composition of the Stain was incorrect. The  
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 91  
plaintiffs properly conceded that that portion of the Howitt Report was unreliable;  
however, maintained that the portion of the Howitt Report which discussed the  
process of self-heating and spontaneous combustion was unaffected by this  
erroneous analysis. I agree.  
[
296] Dr. Howitt explained the phenomenon of spontaneous combustion as follows:  
Traditional varnishes such as the Sikkens Natural Oak stain contain drying  
oils, which polymerize (where individual molecules react with each other to  
form larger molecules) when they are exposed to the air. This polymerization  
is not a drying out of the oil, as the epithet suggests, but a chemical reaction  
that binds the glyceride molecules of the oil together, turning it from a liquid  
into a solid plastic. This particular chemical reaction produces heat which,  
although undetected when spread onto the surface of wood, behaves very  
differently on the surface of a woven fabric, like a cotton rag. This is because  
the surfaces of the individual fibers create an enormous area for the reaction  
to take place and under the right circumstances this can lead to a rate of heat  
production that when properly insulated is sufficient to set fire to the rags. The  
process is commonly referred to as spontaneous combustion because the  
rag itself acts as an ignition source and so no other influences are required,  
and this is the term that appeared on the warning label of the Sikkens can.  
This pyrophoric effect (catching fire by simply being exposed to air) can be  
brought about by the combination of really quite small amounts of these oil-  
based stains …  
[
297] In Dr. Howitt’s opinion, there were a number of facts in the present case that  
he opined made it likely for spontaneous ignition to occur:  
a) cotton rags, such as the ones Mr. Moerman purchased for the job at the  
Goff Property, are an ideal material for spontaneous ignition to occur;  
b) the stain soaked rags were not heavily soaked with stain (which Dr. Howitt  
assumed from his review of the Moerman Notes and of the Video  
discussed above); and  
c) the rags were bundled with other insulating materials (which Dr. Howitt  
again assumed from his review of the Moerman Notes, concluding that the  
“Rags were bundled in a drop sheet, which would in turn provide insulation  
for the heating process underway in the Rags”).  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 92  
[
298] As the Moerman Notes are not admissible for the truth of their contents, the  
second two facts must be proven by admissible evidence. Mr. Dornian testified that  
the soiled rags had only a few drips on them, and that there was very little stain on  
the drop sheet. I accept that the stain soaked rags were not heavily soaked with the  
Stain. However, as set out above, while I accept that the soiled rags were not laid  
out individually to dry, I do not find that they were bundled in any significant manner,  
such as in a garbage bag, trash can or drop cloth.  
[
299] On this specific issue of the “bundling” of the rags, Dr. Howitt explained:  
The rags need to be bundled with other rags or other insulating materials  
(
such as the drop cloth) to provide some insulation to reduce the heat losses,  
although it is unnecessary to tightly pack them. The hazard can therefore be  
avoided if the rags are spread out on the floor during the entirety of the  
polymerization reaction. However, if the rags are bundled even after several  
hours they still present a danger. Thus some stain manufacturers provide  
instructions that suggest spreading out the application cloths to dry as an  
alternative to placing them underwater.  
[
300] Dr. Howitt went on to explain that the ambient temperature is less important  
than the temperature of the soiled rag, as the soiled rag is normally above the  
ambient temperature as a result of its handling and use. The temperature of at least  
one rag in the bundle should normally be at or above 70°Fahrenheit (21°  
Centigrade) for the self-heating rate to progress to ignition. He explained it in the  
following manner:  
This is because a stained rag is normally above the ambient temperature  
because of handling and use. This is the temperature at which the self-  
heating rate is fast enough that a bundling of the rags will prevent the heat  
losses for long enough for autoignition to be achieved. This temperature is  
applicable to most disposal scenarios involving more than one stained rag  
using either a garbage bag, trash can or drop cloth to contain them, where  
the time it takes to achieve an autoignition is between 6 and 8 hours after  
discarding from use. [Emphasis added.]  
[
301] Dr. Howitt’s opinion was that rags, soiled with the Stain, bundled in such a  
manner that allowed for the self-heating process to continue, could achieve  
autoignition between six and eight hours after being discarded.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 93  
[
302] Dr. Howitt conducted an experiment using the Stain in question, and cotton  
rags of the same type as were used by the Moerman Stainers. He uniformly soiled  
three cotton rags (weighing 70, 72 and 23 grams respectively) with the Stain, and  
then loosely bundled them together outdoors, in a steel tray up against two sides of  
a cardboard box. The ambient temperature was 77° Fahrenheit. He detected the first  
traces of smoke after approximately two and a half hours, and the smoke became  
obvious after approximately four and a half hours. The intensity of the smoke  
steadily increased, and within five hours the first signs of scorching on the outer  
surface of the rags was apparent. Dr. Howitt explained that the smouldering rags  
would have a temperature of 500° to 600 ° Celsius (or 932° to 1112° Fahrenheit) for  
a period of three to four hours, and that:  
The ambient temperature is less important than the temperature of the  
stained fabric. The amount of surface blackening and smoke intensity  
continued to increase and within about 40 minutes [5 hours 40 minutes] the  
first signs of smoldering combustion and white ash began to appear until the  
smoke finally precluded the rag visibility which was cleared 10 minutes later  
by the transition to flaming ignition, which occurred 5 hours and 55 minutes  
after the rags were put in the tray.  
[
303] The plaintiffs argue that Dr. Howitt’s evidence was that the self-heating of the  
soiled rags begins as soon as the Stain makes contact with a rag. The defendants  
acknowledge this was Dr. Howitt’s evidence. However, the plaintiffs’ position is that  
the time to achieve autoignition is not between six and eight hours after being  
discarded from use as Dr. Howitt opined in his Report, but rather a shorter period of  
time as a result of the use and handling of the soiled rags. They argue that his  
experiment was not intended to exactly replicate the events that took place at the  
Goff Property on May 16, but rather to demonstrate the phenomenon of  
spontaneous combustion with the Stain, and to demonstrate that the Stain, applied  
to the specific rags in question, could spontaneously combust. The plaintiffsposition  
is that the process of spontaneous combustion begins to run from the time the Stain  
makes contact with the rag and starts drying, and not at the time cleanup occurs.  
They also stress that Dr. Howitt’s evidence was that the handling of the rags  
throughout the day by the Moerman Stainers would increase the temperature and  
encourage spontaneous combustion to occur.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 94  
[
304] The defendants argue that the experiment Dr. Howitt conducted was artificial  
in many ways, including the fact that there was a cardboard lid on top of the bundle  
of rags, and that Dr. Howitt removed the lid just before flaming ignition occurred.  
They note that:  
a) the ambient temperature at the Goff Property at the time the Staining  
Materials were stored was 66° or 67° Fahrenheit, not 77° Fahrenheit;  
b) Dr. Howitt used rags that were “uniformly” soiled with Stain, whereas there  
were no facts Dr. Howitt relied upon which indicated the number of rags  
that were used, the amount of Stain that was applied to those rags, nor  
whether the Stain was applied in a uniform manner;  
c) the manner in which Dr. Howitt bundled the three rags is inconsistent with  
the evidence of how the rags were stored, and also inconsistent with the  
plaintiffs’ theory they were “rolled in a drop sheet”(which theory the  
plaintiffs abandoned in any event); and  
d) Dr. Howitt covered the soiled rags for the duration of the experiment,  
which he acknowledged served to retain heat and stifle airflow to the  
bundle, which allowed the bundle to retain heat as the air was not present  
to dissipate it.  
They stress there was no evidence adduced at trial that either the handling of the  
soiled rags, nor the time that lapsed between their becoming soiled and being  
cleaned up, could have reduced the time to flaming ignition from Dr. Howitt’s opined  
time of six to eight hours, to the approximately three and a half to four hours from  
clean up of the Staining Materials to discovery of the Fire.  
[
305] Dr. Howitt agreed that a time to ignition of three and a half hours would  
require the Staining Materials to have a temperature of 120° Fahrenheit at the time  
of bundling, and for time to ignition of four hours would require a temperature of 110°  
Fahrenheit at the time of bundling. While Dr. Howitt explained that a stained rag is  
“normally above the ambient temperature because of handling and use”, he did not  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 95  
opine on how many degrees warmer than the ambient temperature a soiled, used  
rag could be. He acknowledged in cross-examination there was nothing in the Howitt  
Report that indicates the handling of rags could raise their temperature 40° to 50°  
Fahrenheit above the ambient temperature (which the parties agreed was 66° or 67°  
Fahrenheit between 6:00 and 6:45 in the evening).  
[
306] While I accept Dr. Howitt’s evidence that spontaneous combustion can occur  
with the Stain and these specific rags, and that the process of self-heating  
commences when the Stain first comes in contact with the rags, there was  
insufficient evidence before me to conclude that such could occur in the time frame  
necessary.  
[
307] Further, Dr. Howitt’s experiment was based on loosely bundling three rags  
and placing a lid on top of the bundle. While I accept that Dr. Howitt testified that the  
ambient temperature is not an important consideration but rather that the  
temperature of the rags themselves is the critical factor, and that the handling of the  
rags increases their temperature, he did not opine as to the effect of the handling of  
the rags on the increase in temperature nor on the effect of the handling on the time  
to flaming ignition. Further, in the Howitt Report, Dr. Howitt stated that for soiled rags  
bundled in some manner (either in a garbage bag, trash can or drop cloth to contain  
them) auto-ignition takes between six and eight hours after they are discarded. He  
did not opine on the time auto-ignition takes if soiled rags are not bundled in such a  
manner but rather laid out to dry in some manner, albeit not individually.  
[
308] I do not accept the plaintiffs’ argument that the Howitt Report, and Dr. Howitt’s  
testimony, “supports the probability that the Rags, piled on the drop sheet, self-  
heated to the point of ignition”. I agree with the defendants that to reach that  
conclusion would be entirely speculative, and would be to make an inference not  
based on the admissible evidence.  
[
309] Finally, Dr. Howitt testified that if soiled rags are hung out to dry or laid out  
flat, then while they will still self-heat, there will not be enough heat to result in  
self-ignition.  
6
56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 96  
X. ANALYSIS OF LIABILITY  
A. Standard of Care for Storing the Staining Materials  
310] The defendants do not dispute that when dealing with stain soaked rags, the  
[
appropriate standard of care is as set out by the manufacturer, and to either place  
the stain soaked rags in water or lay them flat to dry, and then discard them.  
B.  
Origin of the Fire  
[
311] I heard significant evidence from Mr. Reed and Dr. Craft on their  
interpretation of the Security Stills, and their opinion as to whether it was possible to  
identify a probable origin of the Fire. Dr. Craft looked at the 11:11 Still and described  
a large fire “extending from the deck level of the first storey up to the roof structure  
above the back entryway”. Mr. Reed was asked to assume the 11:11 Still showed  
light shining through the interior stair pickets, either direct or reflected, created by the  
Fire.  
[
312] Mr. Reed acknowledged on cross-examination that the source of this  
reflected light would be critical to his opinion.  
[
313] Both Mr. Reed and Dr. Craft were clearly intelligent, thoughtful, and  
possessed expertise of assistance. The fundamental difference between their  
opinions was Dr. Craft reviewed the 11:11 Still and opined it showed a fire  
developed on the Back of the Lodge, extending all the way from the first floor to the  
roof structure. Just as I was satisfied it was appropriate for Mr. Broad to review the  
1
1:11 Still, I am satisfied it was appropriate for Dr. Craft to review the 11:11 Still, and  
provide evidence of what he saw.  
[
314] Upon a careful review of the 11:11 Still, and of the expert reports and  
evidence of Mr. Reed and Dr. Craft, I prefer the evidence of Mr. Reed for two  
reasons. First, my own review of the 11:11 Still, as set out above, leads me unable  
to conclude that it shows light coming from a fire on the Back of the Lodge,  
extending all the way up to the roof of the Lodge. Second, I accept Mr. Reed’s  
explanation in cross-examination that for him to conclude that Dr. Craft’s  
 
 
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 97  
interpretation of that image was correct, he would need evidence as to the source of  
the fire; where the fire was “burning from”.  
[
315] I accept that the plaintiffs have failed to prove an area of origin of the Fire at  
the Back of the Lodge. I prefer Mr. Reed’s opinion that without an area of origin  
proven within the Lodge, the possible area of origin is too large to conclude, by  
reasonable inference, a probable origin and cause of the Fire.  
C.  
Causation of the Fire  
Location of Storage of the Staining Materials  
316] As set out above, I find that the Staining Materials were stored on the Left  
1
.
[
side of the Lodge, underneath the balcony that had not been stained. Mr. Dornian’s  
evidence at trial was consistent at his examination for discovery (through the two  
marked exhibits) and remained the same throughout both his direct and  
cross-examination. I also note that Mr. Dornian confirmed that the Staining Materials  
were not stored on any of the three possible “fire start locations” identified by  
Dr. Craft.  
[
317] Even if I were wrong on my determination that the Moerman Notes are not  
allowable for the purposes argued for by the plaintiffs, I would find the clear evidence  
of Mr. Dornian to be determinative of the location where the Staining Materials were  
left at the end of the day May 16, 2016.  
2
.
Manner of Storage of Staining Materials  
[
318] The instructions on the Stain can were that after use, soiled rags be either put  
in a can of water or laid flat to dry. As already stated, unfortunately, there is a paucity  
of clear evidence on how the Staining Materials were left at the end of the day. As a  
result of the scant evidence, the plaintiffs have altered their theory of the case over  
the years, as set out above.  
[
319] At the time of the Broad Original Report, Mr. Broad assumed that the soiled  
rags used for the application of the Stain were placed in plastic bags, and sealed  
them up.  
 
 
 
6
56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 98  
[
320] At the time of the Broad Report, Mr. Broad then assumed that the soiled rags  
were rolled in a drop sheet, and that there was “no one distinct pile of rags”.  
[
321] Finally, by the time of closing argument, the plaintiffs theory changed again.  
While during initial closing argument they continued to argue that the soiled rags  
were rolled in a drop sheet, and that there was “no one distinct pile of rags”, by the  
time of supplemental argument on the issue of the admissibility of the Moerman  
Notes, their theory changed to be that the soiled rags were left in a pile on the drop  
sheet. They based this argument on the examination for discovery read in of  
Mr. Friesen in which he explained the soiled rags were not laid out individually to dry  
and that “The rags were on the drop sheet and the brushes. I don’t recall if they were  
laid on the drop sheet or put into empty cans”.  
[
322] It is not unusual for the plaintiffs’ theory of the case to evolve over time,  
particularly in a difficult case such as the total burn of a building. The fact that their  
theory has changed is not a basis for criticism. While the description of the manner  
in which the soiled rags were stored may appear to be a matter of semantics, it is  
not. What turns on the various descriptions of the manner in which the soiled rags  
were left is whether they were stored at the end of the day in such a way as to allow  
for the possibility of spontaneous combustion. If soiled rags are bundled in such a  
way that there is some insulation to reduce heat loss, the danger of spontaneous  
combustion continues. However, if they are spread out in some way to dry, the  
hazard of spontaneous combustion is dissipated.  
[
323] However, for the reasons set out above, I do not accept that the allowable  
evidence establishes that I may make a reasonable inference that the soiled rags  
were left in a pile on the drop sheet”. I am satisfied that they were not laid out  
individually to dry, but rather were laid out in some manner to dry on top of the  
folded drop sheet. That manner may have involved them touching or overlapping in  
some manner or manners; however, I do not accept that it is a common sense  
inference to conclude that they were left in one pile and so effectively “bundled” in  
some way.  
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 99  
Fire Spread  
324] Finally, even were I to have concluded that the Staining Materials were left at  
3
.
[
the Back of the Lodge, and that the soiled rags were “left in a pile on the drop sheet”,  
the plaintiffs have failed to prove on a balance of probabilities that the soiled rags,  
“left in a pile”, could have spontaneously combusted within the time frame from clean  
up to the discovery of the Fire. There is a lack of evidence which would form a  
reasonable basis to make the critical inference that the soiled soaks rags were able  
to spontaneously combust within the necessary time frame. Any evidence is  
speculative at best, and considering the totality of the evidence in the circumstances  
of this case, I am not prepared to draw the inference that the Fire was caused by the  
spontaneous combustion of the soiled rags.  
[
325] The evidence adduced by the plaintiffs at trial on the ability of Stain soaked  
rags to spontaneously combust within the time frame in question failed to establish  
that handling of the soiled rags by the Moerman Stainers would significantly increase  
the temperature of the soiled rags. While Dr. Howitt explained that a stained rag is  
“normally above the ambient temperature because of handling and use”, he did not  
opine on how many degrees warmer than the ambient temperature a soiled, used  
rag could be, nor its impact on the time to flaming ignition. There was no evidence  
from Dr. Howitt that a soiled rag could have a temperature of 110° to 120°  
Fahrenheit at the time of clean-up - or bundling - as a result of its handling during the  
day. Such a temperature would be approximately 40° to 50° Fahrenheit above the  
ambient temperature, and would be required to have ignition occur within three and  
a half to four hours after clean up of the Staining Materials (or by approximately  
1
0:30 pm). Dr. Howitt acknowledged in cross-examination there was nothing in the  
Howitt Report that indicates the handling of rags could raise their temperature 40° to  
0° Fahrenheit above the ambient temperature. Dr. Howitt did not provide evidence  
5
that the handling of the soiled rags, nor the time elapsed between their first  
becoming contaminated with Stain and ultimately stored at clean-up, could have  
reduced the time to ignition from Dr. Howitt’s opined time of six to eight hours, to the  
approximately three and a half to four hours between their storage and ignition.  
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd. Page 100  
[
326] This is a hole in the evidence for the plaintiffs. Without such evidence, there is  
no basis upon which to make a reasonable inference that the soiled rags  
spontaneously combusted and resulted in the fire. This evidentiary hole must result  
in the plaintiffs’ claim being dismissed.  
XI.  
CONCLUSION  
[
327] For the reasons set out above, I find that the plaintiffs have failed to prove on  
a balance of probabilities that the Fire was caused by the spontaneous combustion  
of the soiled rags, stored in a negligent manner by the Moerman Stainers. The  
cause of the Fire remains a mystery.  
[
328] The finding of fact that the Staining Materials were stored on the Left side of  
the Lodge puts the location of those materials outside the area of origin opined to by  
the plaintiffs’ experts. The finding that the soiled rags were laid out to dry in some  
manner is clearly contradictory to the assumption made by Mr. Broad that they were  
rolled in the drop sheet, and there was no one distinct pile.  
[
329] Finally, even if the soiled rags were stored in the location opined to by the  
plaintiffs’ experts, and in a manner in which they opined spontaneous combustion  
could occur, Dr. Howitt’s evidence did not establish that the soiled rags would be of  
a sufficient temperature at the time of storage to ignite within the time frame  
necessary. The plaintiffs have failed to prove, on a balance of probabilities, that the  
soiled rags spontaneously combusted and caused the Fire. There is no basis for the  
plaintiffs’ argument that “but for” the actions of the Moerman Stainers in cleaning up  
and storing the Staining Materials, the Fire would not have occurred.  
[
330] Accordingly, it is not necessary to address the parties’ arguments on  
apportionment of liability.  
[
331] The plaintiffs’ claim is dismissed. If the parties wish to make submissions on  
costs, they may be filed within 30 days of the date of this judgment. If no  
 
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56621 B.C. Ltd. v. David Moerman Painting Ltd.  
Page 101  
submissions are received, the defendants the Moerman Stainers, David Moerman  
and David Moerman Painting Ltd. will have their costs at Scale B.  
Blake, J.”  


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