COURT FILE NO.: 02-046-DV
DATE: 27-09-04
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
MATLOW, LACK, HEENEY, JJ.
B E T W E E N:
VICTOR VERI
George Limberis, for the Appellant
Appellant
- and -
CITY OF HAMILTON, as represented by Claudio Mostacci, Assistant to the Fire Marshall
Ronald Sabo, for the Respondent
Respondent
HEARD: September 23, 2004
LACK J.
[1] On September 18, 2001 Claudio Mostacci, Assistant to the Fire Marshall with the City of Hamilton Fire Services, issued an Inspection Order under subsection 21(1)(f) of the Fire Protection and Prevention Act[^1]. The order provided that the appellant, Victor Veri, could burn piles of brush and tree limbs on his farm only if he complied with the 10 conditions outlined in the order. The order was reviewed by the Fire Marshall Delegate and upheld. Mr. Veri then appealed the Fire Marshall’s decision to the Fire Safety Commission. On June 26, 2002, the Commission upheld Inspector Mostacci’s order. Mr. Veri now appeals the Commission’s decision[^2] to this Court under section 27 of the Fire Protection and Prevention Act.
[2] The first ground of appeal is that the Commission erred in failing to find that Inspector Mostacci did not have jurisdiction to make the Inspection Order because the Fire Code[^3] exempts farms from its provisions. There is no merit in this submission. Under subsection 21(1)(g), the Inspector may make an order for the enforcement of the Fire Code, and this submission would be relevant had the Inspection Order been made under that subsection. However, the Inspection Order was made under subsection 21(1)(f) to which subsection 21(1)(g) has no application.
[3] While that ground of appeal was in essence the only one in the Notice of Appeal before us, Mr. Veri’s counsel, in his oral submissions, contended that the decision of the Commission was procedurally unfair because the Commission failed to give adequate or any reasons for upholding the Inspection Order, other than making a conclusory finding that subsection 21(1)(f) applies.
[4] These 3 provisions of Inspector Mostacci’s Inspection Order are of particular concern to Mr. Veri:
- Condition 2 – All fires are to be completely extinguished at the end of each working/burning day;
- Condition 4 – All fires must be kept to a maximum size of 2 m. X 2 m. X 2 m. in height;
- Condition 9 – No more than three piles at the current locations to be burned at a single time.
[5] Before the Commission, the grounds in Mr. Veri’s Notice of Appeal were confined to the applicability of the alleged farm exemption provisions in the Fire Code[^3]. Notwithstanding that, much of the evidence heard by the Commission focused on the 10 conditions imposed in the Inspection Order and submissions were directed, in part, to the reasonableness of the conditions. Before us, Mr. Veri’s counsel argued that the Commission’s failure to make factual findings or deal in its decision with the reasonableness of the conditions imposed in the Inspection Order was procedurally unfair to the appellant.
[6] The appellant’s failure to include the alleged unreasonableness of the conditions in his Notice of Appeal to the Commission, and his failure to include the alleged procedural unfairness ground in his Notice of Appeal to this Court is a matter of concern. However, it is apparent that neither omission took the respondent by surprise. The appellant raised the issue in paragraph 30 of his factum. In its factum the respondent wrote: “The Commission upheld the list of restrictions. It is submitted that implicit in its decision is that the list of restrictions were necessary for fire safety at those premises. The content of the list of restrictions and need for those restrictions are factual findings only or based entirely on factual findings.”[^4] The respondent’s counsel addressed the submissions of appellant’s counsel on the issue in this Court, without objecting that the ground was not set out specifically in the Notice of Appeal.
[7] The effect of the Commission’s decision was to uphold the conditions. The alleged unreasonableness of the conditions was at the heart of the appellant’s case before the Commission and the Commission heard evidence and submissions on the issue. While one may infer that the Commission found the conditions to be reasonable and necessary, there is a complete absence of any reasons for arriving at that conclusion.
[8] Decision-makers have a duty to be fair. In Baker v. Canada (Minister of Citizenship and Immigration)[^5], L’Heureux-Dube J. wrote:
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
[9] The hearing before the Commission focused to a large degree on the issue of the reasonableness of the conditions imposed by Inspector Mostacci. The conditions imposed were important to Mr. Veri. There is a statutory right of appeal of the Commission’s decision. Under those circumstances it was incumbent on the Commission to address the reasonableness of the conditions, make appropriate findings of fact in that respect and give reasons for the findings. The Commission failed to do that. The failure was unfair to Mr. Veri and hinders this Court in understanding the basis of the Commission’s decision.
[10] Accordingly, the appeal is allowed. The matter is referred back to the Commission for reconsideration of its decision.
[11] The issue of costs remains. The parties may make written submissions. The appellant may forward his submissions to the Court within 15 days. The respondent may respond within 10 days thereafter. The appellant may then reply within 7 days. Submissions should be sent, in triplicate, to the Divisional Court Registrar at Hamilton.
Lack J.
Released: September 27, 2004
COURT FILE NO.: 02-046-DV
DATE: 27-09-04
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
MATLOW, LACK, HEENEY JJ.
B E T W E E N:
Victor Veri
Appellant
and –
City of Hamilton, as represented by Claudio Mostacci, Assistant to the Fire Marshall
Respondent
REASONS FOR JUDGMENT
Lack J.
Released: September 27, 2004
[^1]: Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 [^2]: Appeal No. 2001A006, Decision No. 2001A006-135 dated June 26, 2002 at Hamilton, released July 22, 2002. [^3]: Fire Code, O. Reg. 388/97, s.1.1.6.1 [^4]: Respondent’s Factum, paragraph 25 [^5]: [1999] 2 S.C.R. 817 (S.C.C.) at page 848 paragraph 43