Kaigo v. Sawchuk Developments Co. Ltd.

2014 BCSC 1857 Kaigo v. Sawchuk Developments Co. Ltd. et al

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kaigo v. Sawchuk Developments Co. Ltd. et al, 2014 BCSC 1857 Date: 20140813 VLC-S-S-106910 Registry: Vancouver Between: Kaigo Retirement Communities Ltd. Plaintiff And Sawchuk Developments Co. Ltd., Okanagan Fire Protection Services Ltd., Okanagan Plumbing & Gasfitting Ltd., McDonell Quiring Neumann, Chapman Mechanical Ltd., Darren Wattie, Technovation Engineering Ltd., ABC Co. #1-5 and John Doe #1-5 Defendants And Okanagan Fire Protection Services Ltd., Okanagan Plumbing & Gasfitting Ltd., McDonell Quiring Neumann, Chapman Mechanical Ltd., Darren Wattie, Technovation Engineering Ltd., ABC Co. #1-5 and John Doe #1-5 Third Parties Before: The Honourable Madam Justice Sharma Oral Reasons for Judgment Counsel for Plaintiff: J. Kim B. McLean Counsel for Defendant, Okanagan Fire Protection : D. Lewthwaite Counsel for Defendant, Sawchuk Developments: W.G.Neen L. Williams Counsel for Defendants, Technovation and Darren Wattie: V. Reakes Counsel for Defendant, Okanagan Plumbing: R.G. Boswall Place and Date of Trial/Hearing: Vancouver, B.C. August 13, 2014 Place and Date of Judgment: Vancouver, B.C. August 13, 2014 [1] THE COURT: This is my ruling with respect to the expertise of Mr. Brox and admissibility of some of his opinions proffered by the plaintiff. [2] Mr. Brox is a certified professional engineer and has a degree in

metallurgical engineering. He has previously been accepted by courts to give expert opinion evidence relating to failure analysis, forensic engineering, metallurgical engineering, and fire cause and origin. The plaintiffs offer him in this case as an expert qualified to give opinion evidence on the standards and guidelines governing professional engineers when fulfilling obligations under letters of assurance as they relate to sprinkler systems. [3] The defendants object to this opinion evidence on two bases: first, that some of the opinions offered, specifically within sections 7.1, 7.2 and 7.5 of his report, are beyond the scope of his expertise and therefore inadmissible; and secondly, he offers an opinion going to the ultimate issue that I as a trier of fact must decide. [4] Mr. Brox is president of Brox Engineering Incorporated and describes his profession as an engineering expert in failure analysis, forensic engineering, accident investigation and analysis. He's a member of the National Fire Prevention Association although I understand that no particular professional affiliation or qualification is required to be a member. [5] He describes his professional activities as focussed on failure analysis and provides in his CV this description of failure analysis, and I am quoting from page 2 of his CV: Failure is the unacceptable difference between expected and observed

performance. Within this broad definition my assignments have encompassed the examination, documentation and analysis of various component systems, processes and accidents to identify all of the contributing factors, acts and omissions that contributed to the cause, the particular failure or accident at hand. My degree in metallurgical engineering, supplemented by a variety of specialized courses, and 20 years of investigating failures and accidents provides me with the comprehensive multidisciplinary background necessary to investigate failures. [6] He then describes his practice to be divided into four areas, the first of which is most relevant to this case, traditional failure analysis and forensic engineering which he describes in his CV as the investigation and analysis of both metallic and non-metallic mechanical and electromechanical components deployed in both industrial and domestic service. Examples of these are pipes, place fasteners and various machinery and equipment from marine, mining, construction and forestry industries. To assist in understanding the failure of these, investigations frequently involve a comprehensive laboratory investigation of the failed material and the interpretation of both macro and microscopic physical features to establish how it behaved or performed and the potential contribution of any environmental factors. [7] He testified that he

has investigated hundreds of water escape issues from a variety of causes including domestic plumbing, HVAC systems, mechanical issues and fire protection systems. Specifically he estimated that he has done a couple dozen or more investigations of fire sprinkler systems. This is described in his CV under notable matters investigated as "Investigation of numerous water escapes involving domestic, commercial and industrial plumbing, piping and fire sprinkler systems constructed from a variety of materials such as steel, cast iron, PVC, PV, PSH APE." [8] Although not exhaustive, he specifically identified the investigation of fire sprinkler investigation malfunction in June 2001 at a commercial site, and post-loss analysis of intended integrity and potential mitigation of the fire sprinkler systems at a Prince George sawmill in 2012. Mr. Brox prepared a report dated April 4, 2014, relating to the loss at issue in this case, which occurred at the plaintiff's facility on December 29th, 2008. For that report he was asked to: Attend the property to examine the fire sprinkler system, examine the recovered physical evidence, and to opine on the most likely cause of the water escape. In addition, I was also asked to opine on whether the undertakings as set out by the letters of assurance with regard to the fire suppression system had been fulfilled. [9] Turning to the legal test, the

parties agree on the governing law, to be admissible, expert evidence must meet four criteria as set out in R. v. Mohan, [1994] S.C.R. 9: the expert evidence must be relevant; the expert evidence must be necessary to assist the trier of fact; there must be no exclusionary rule otherwise prohibiting the receipt of the expert evidence, and, the evidence must be proffered by properly qualified expert witnesses. [10] The parties also agree that if the Court finds a portion of the expert report to be inadmissible then the remainder can be entered into evidence, relying on Dhaliwal v. Bassi, 2007 BCSC. 547. [11] The defendant Technovation Engineering Limited and Darren Wattie, supported by the other defendants, emphasized that expertise requires specialized knowledge that a trier of fact does not already have and an expert must demonstrate experience beyond familiarity or involvement. On behalf of the Supreme Court of Canada, Justice Binnie elucidated on these points in R. v. J-L.J., [2000] S.C.R. 600. [12] The issue in that case was different in two respects. It was a criminal case, and as described at page 603, the Court was being asked to consider aspects of the gatekeeper function performed by trial judges in the reception of novel scientific evidence. Nevertheless, in the course of his analysis, Justice Binnie does provide helpful guidance in general on admissibility of expert

opinion. Quoting from page 613: In the course of Mohan and other judgments, the Court has emphasized that the trial judge should take seriously the role of "gatekeeper." The admissibility of the expert evidence should be scrutinized at the time it is proffered and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility. The Court's gatekeeper function must afford the parties the opportunity to put forward the most complete evidentiary record consistent with the rules of evidence. Nevertheless, the search for truth excludes expert evidence which may "distort the fact-finding process." [13] The defendants also rely on Hughes v. Haberlin and Inglis v. ICBC. In Hughes the Court was concerned with a particular general physician who had previously been offered and rejected as an expert (see paragraphs 3 and 4). Inglis v. ICBC is a case where the Court rejected admissibility of the chemical engineer who had extensive experience in the pulp and paper industry to opine on motor vehicle accident reconstruction (see paragraph 22). The gulf between those two areas of inquiry is considerably wider than what is in this case. [14] Other than repeating already accepted general statements of law, neither case is particularly helpful to the issue before me. I do not fault counsel for this because an examination of the admissibility of a particular expert opinion or report is necessarily very fact-driven.

ANALYSIS [15] With regard to the scope of expertise, I agree with the defendants that Mr. Brox lacks the specific qualifications to permit him to offer opinion evidence on standards, guidelines governing professional engineers when fulfilling obligations of letters of assurance as they relate to sprinkler systems. [16] I do not understand the defendants to object to his ability to proffer an opinion on the most likely causes of the water escape based on his expertise on the causes of sprinkler system failure from a metallurgical engineering perspective, and I agree with the defendants in that regard. [17] The plaintiffs quite properly agreed that the first full paragraph and first full sentence of the second paragraph on page 31 of the record should be redacted and I so order. [18] I base this conclusion on several factors. The most important of these is that Mr. Brox does not have professional certification as a fire suppression engineer, which I understand to be a recognized speciality within the engineering profession. Mr. Brox easily admitted that he relied on his extensive experience in general failure analysis and his familiarity with applicable codes and standards and legislation rather than specific professional training. [19] As he testified, he would not be comfortable and would not design or provide professional engineering seal to a fire protection system because he

is not a fire suppression engineer. This, in my view, is a very significant factor, requiring me to scrutinize carefully his qualifications. While it is tempting to simply admit his evidence and ask the parties' counsel to address what weight I should place on it, at the end of the day I am mindful of the Supreme Court of Canada's comments that my function is to be a gatekeeper and I should not admit evidence that would unduly distort the fact-finding process. [20] Other factors that I found significant are that Mr. Brox lacks education or specific technical training on fire suppression engineering, design or maintenance. His professional experience does include investigation of fire sprinkler failure, but it appears from his discussion on his CV that those investigations were limited to the examination of physical components as they related to system failure and there is no mention made at all about an examination or opinion on standards of conduct. [21] I do not see and do not understand Mr. Brox to have experience or to have been accepted as an expert on the standards expected of a fire suppression engineer or as required under the letters of assurance for a fire suppression system. [22] The defendants also say his testimony reveals his familiarity and relevant experience on standards and guidelines for letters of assurance relating to sprinkler systems comes only from his

personal view of those standards. They point out that he has not done a field report as required for a letter of assurance or prepared or designed a maintenance manual. [23] The plaintiff says Mr. Brox is permitted to rely on his professional experience as an engineer supplemented by his failure analysis expertise to offer opinions on the conduct of other engineers and specific standards. While I cannot rule out the possibility that such evidence might be admissible in some cases, the opinion in this case goes further than that. The redacted paragraphs on page 31 are clearly more than an opinion on metallurgical failure of the sprinkler system. [24] The plaintiff properly consented to those redactions. I add that those portions of the report are also inadmissible as they go to the ultimate issue that I as the trial judge must conclude. [25] This is also true of other portions of the report. Page 32, the paragraph just above the heading 8 "Summary" is inadmissible. The problem with this is that Mr. Brox links an assumed fact about water in the system directly to a conclusion not limited to metallurgical failure. He comments and offers an opinion that goes to the essential duty of Mr. Wattie as an engineer. This is the ultimate issue and is also beyond his expertise and therefore inadmissible. [26] Similarly I would redact as inadmissible the first sentence of the first paragraph

on page 32 which reads; If the maintenance program and manual is not supplied until after the subject loss and the system was not properly drained after commissioning the functional testing then in my opinion Mr. Wattie P. Eng as the registered design professional of record on the project for the fire suppression system did not complete or comply with the undertaking as set out in his Schedule B. [27] The defendants also object to other portions on page 32 including the phrases "well-known cause" and the sentence dealing with omissions. I do not find these portions to be inadmissible. In my mind they differ from the redactions that I have already described in the degree to which Mr. Brox concludes a direct nexus exists between a metallurgical fact and the duty or standards of a professional fire suppression engineer. However, defence counsel are free to address the weight of these statements in final submissions. [28] Similarly, I do not find the following portions inadmissible. At page 31 counsel referred to a sentence containing the phrase "correctly servicing." As I understood the argument, that particular phrase was submitted to be inadmissible because it would offer a conclusion on standard of care. [29] I do not agree primarily because it is not clear to me that "correctly" means compliance with the standards and duties, and "incorrectly" necessarily would not. [30]

Similarly I find nothing inadmissible for the same phrase at page 21. [31] More generally, the defendants also object to section 7.1 in his report labelled "the general description of a generic dry pipe fire sprinkler system." Not only do I find this portion admissible, it is necessary to assist me to assess the evidence and legal issues in this case. I view this evidence as important information to put the facts and later admissible opinions in the proper context. [32] The defendants pointed to certain specific portions that they say exceeds the acceptable background function of this type of information. At page 19, portions dealing with the paragraph labelled 3, trip testing, counsel pointed out that the phrase "dry pipe valve" is intended as possibly also speaking to standard of conduct. [33] At page 20 similar submissions were made with regard to what might be considered normal performance. For the same reasons that I did not find phrases containing "correctly" to be inadmissible, I do not find anything objectionable about these portions of the report. [34] The defendants also objected to section 7.2 of the report. Based on similar reasoning that I have described above about the importance of background and context, I do not find this portion to be inadmissible except for the following. [35] At page 25 the last full paragraph is inadmissible because it speaks to the duty or

jurisdiction of an authority which clearly goes to legal issues and for which I can see no basis in Mr. Brox's background to make commentary on. [36] The defendants also objected to the bottom paragraph on page 24 continuing on to page 25. I did not find these to be inadmissible because I do not see them as drawing the same direct nexus between his experience and the standards of professional engineers. [37] In conclusion, I note that it is a very difficult line-drawing exercise to separate portions of this report properly relating to the expertise of Mr. Brox from those that comment and go further than the admissible opinion or speak to the ultimate issue. [38] What I found to be inadmissible relates to his opinions with regard specifically to Mr. Wattie's fulfilment of his professional standards and any commentary designed to offer an opinion on that. [39] However, where Mr. Brox offered commentary or observations about required standards generally for sprinkler systems, that is admissible so long as they are providing background and context in a general sense to assist me in making conclusions in this case. With that as a guideline, it is still open to defence counsel to raise an objection to admissibility for any portion of the report I failed to note or that was not brought to my attention. And obviously it is open to counsel to argue the weight of the evidence at the end of the day. "Sharma, J."