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Kruger Products Limited v. First Choice Logistics Inc. Page 8 in the trial judge’s words, that the exhaust pipe would be wrapped with fibreglass insulation “in order to shield paper and debris from the hot surface of the exhaust pipe”. These measures “greatly reduced”, but did not eliminate, the problems with smouldering paper. (Paras. 12-3.) [15] Unfortunately, the Original Forklift had to be taken out of operation due to an accident on July 20, 2001. Mason supplied a replacement of the same type and make which it delivered to the warehouse on July 26, fitted with a roll clamp so that it could handle the parent rolls. The exhaust pipes, however, were not wrapped, nor was the hood vented to reduce overheating. The replacement forklift (the “Forklift”) was put into service immediately. 2013 BCCA 3 (CanLII) [16] On July 30, Mr. Bodnar returned from holiday. He noticed that the Forklift began overheating right away and had the same smouldering problems the Original Forklift had had. In his words, it “was right back to square one. Like smouldering, overheating, and just got [sic] to be really careful again.” (Para. 18.) The Forklift was blown out with compressed air about every ten or 15 minutes up to the time of the fire. [17] The trial judge found that on the morning of July 31, Mr. Bodnar was driving the Forklift, having picked up a roll. Mr. Bodnar testified that he did not notice any smell or detect any overheating, but a co-worker who was driving an electric forklift in the opposite direction saw something very concerning: Mr. Nijjar noticed a piece of paper approximately 2 to 3 feet long in the vicinity of the exhaust grill of the Forklift. The paper was on fire. Mr. Nijjar saw the paper drifting away from the back of the Forklift. The burning paper landed at the base of a stack of parent rolls. The burning paper immediately transferred flame to the stack of parent rolls. Mr. Nijjar made an attempt to stomp out the fire before running to get a nearby fire extinguisher. When Mr. Nijjar returned with a fire extinguisher, he felt the fire was already out of control so he left the area to report the Fire. [At paras. 23-4.] Mr. Bodnar testified that he immediately jumped off his machine, ran to the front of the Warehouse and yelled “9-1-1” to the office, ran back and tried to extinguish the
Kruger Products Limited v. First Choice Logistics Inc. Page 9 fire with a fire hose. He had to give up very soon thereafter. Fire and emergency trucks were called, but the entire inventory in the warehouse was quickly destroyed. [18] The trial judge approached the issue of causation of the fire beginning at para. 107, noting the “but for” test enunciated by the Supreme Court of Canada in Resurfice Corp. v. Hanke 2007 SCC 7, [2007] 1 S.C.R. 333. After describing the high standard of care imposed by the Warehouse Receipt Act and the reverse onus applicable to a bailee, he found that: ... [FCL] owed a duty of care to Scott not to allow paper debris to build up and to maintain the Warehouse as a “careful and vigilant owner”. A careful and vigilant owner would and should have foreseen that there was a risk of fire igniting due to smouldering paper debris coming into contact with various parts of a propane lift truck and if the Warehouse was not kept in a “foodgrade condition” so that paper debris was allowed to accumulate at the base of the stored parent rolls during each shift. A careful and vigilant warehouseman in the position of [FCL] would have taken steps to sweep up the paper debris not only in the aisles but also at the base of the stacked parent rolls on a regular basis and not just after each shift. I find that these failures amount to a breach of the duties owed by [FCL] to Scott. I am satisfied that Scott has demonstrated on a balance of probabilities that the damage which occurred would not have occurred but for the negligence of [FCL] in this regard. [FCL] has not shown that the duty that it owed to Scott has been discharged. As the standard of care if higher than merely not acting negligently, [FCL] has not met the onus of showing that the duty imposed upon it has been discharged. Scott has met the onus of showing that [FCL] did not discharge the duty that it owed to Scott. [At para. 116; emphasis added.] 2013 BCCA 3 (CanLII) and further : I find that [FCL] did not act throughout as a careful and vigilant owner despite the fact that it had an obligation to do so pursuant to the obligations imposed at common law and under the Warehouse Receipt Act. Scott has met the burden of proving its losses and damages were caused through the negligence of [FCL]. [Para. 123.] [19] As to exactly how the fire had started, the trial judge found that: ... it was paper debris coming into contact with the unwrapped exhaust system of the Forklift that caused the Fire. Burning tissue debris was seen by Mr. Nijjar to be trailing behind the Forklift. The fact that the burning paper was outside the Forklift, allows me to conclude that the paper had not been sucked up into the Forklift. This incident occurred only days after the Forklift had gone into service to replace the Original Forklift. This spatial and temporal proximity between the use of the Forklift with the unwrapped
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Case - Clark Wilson LLP

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