Veri v. Hamilton (City), 2011 ONSC 5860

CITATION: Veri v. Hamilton (City), 2011 ONSC 5860

DIVISIONAL COURT FILE NO.: DC-09-00000047

DATE: 20111025

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CHAPNIK, GORDON AND LAUWERS JJ

BETWEEN:

VICTOR VERI

Appellant

– and –

CITY OF HAMILTON

Respondent

Anthony Wellenreiter and Walter R. Wellenreiter, for the Appellant

Byrdena M. MacNeil, for the Respondent

HEARD: September 19, 2011

CHAPNIK J.

REASONS FOR DECISION

INTRODUCTION

1The appellant is a farmer who was ordered not to burn brush or tree limbs on his farm property except in accordance with certain conditions set out in an Inspection Order. The Inspection Order was issued on September 18, 2001, by a fire inspector with the Hamilton Fire Department under the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 (“the Act”).

2This appeal is the second attendance before this Court in respect of the Inspection Order. The appellant appealed a decision of the Fire Safety Commission (“the Commission”) rendered June 26, 2002, upholding the Inspection Order.

3In its Reasons for Judgment dated September 27, 2004, this Court allowed the appeal on the basis of insufficient reasons, and referred the matter back to the Commission to reconsider its decision, and specifically “address the reasonableness of the conditions, make appropriate findings of fact in that respect and give reasons for the findings.” As directed, the Commission held a second hearing on March 24, 2009, and issued a second decision on April 17, 2009, this time with written reasons; and with two exceptions, it upheld the stated conditions for burning on the farm. It is that decision that forms the subject of this appeal.

BACKGROUND

4The appellant is a “lifelong farmer”, now 65 years of age. Since 1999, he has rented the farmland in question located in the area of Hamilton. The property is approximately 10 acres in size and is located on the fringe of Waterdown in the City of Hamilton, fronting Highway 6 to the west and Parkside road to the north. The appellant uses the property for normal farming operations.

5In September, 2001, the appellant advised the Hamilton Fire Department of his intent to open air burn three piles of brush, made of tree limbs and stumps, on the property. Following a visit to the property, the assistant Fire Marshall issued an Inspection Order, ordering the appellant not to burn on the property unless he met certain conditions, including significantly reducing the size of the burn piles.

6Specifically, the 2001 Inspection Order, issued pursuant to Section 21(1)(f) of the Act, stated:

Burning not be conducted under the current site conditions and proposed methodology outlined by Mr. Victor Veri. Burning is only to occur in accordance with the conditions noted in the attached Appendix “A”.

7Appendix “A” of the Inspection Order is titled “Approval Guidelines For Open Air Burning” and it provides the following conditions:

1. The fire is to be attended and supervised at all times.
2. All fires are to be completely extinguished at the end of each working/burning day.
3. Burning is not to take place when winds will cause smoke to be an annoyance to nearby property or roadways.
4. All fires must be kept to a maximum size of 2m x 2m x 2m in height.
5. Only the burning of brush and tree limbs is permitted.
6. Equipment capable of extinguishing the fire at any time conditions warrant is to be on site at all times burning is carried out (i.e., Portable fire extinguishers, garden hose, portable pump and hose, bobcat etc.).
7. The owner must contact the Ministry of Environment and comply with the Environment Protection Act.
8. Open air burning shall not be carried out on Smog Alert days as declared by the City of Hamilton.
9. No more than three piles at the current location to be burned at a single time.
10. An area of 3m is to be cleared of all vegetation around the perimeter of each of the piles.

8The stated reason for the no-burn order was that “[t]he proposed open air burning of piles of brush and tree limbs in the quantities and pile size found creates a fire hazard to adjacent properties, buildings and roadways.”

9The appellant asks that the decision of the Commission rendered April 17, 2009, and the Inspection Order of the assistant Fire Marshall, be set aside.

JURISDICTION AND STANDARD OF REVIEW

10An appeal from a decision of the Commission lies to Divisional Court pursuant to the Act on a question of law and mixed fact and law.

Appeal to Divisional Court

27. (1) Any party to the hearing before the Fire Safety Commission under section 26 may appeal from the decision of the Commission to the Divisional Court in accordance with the rules of court on any question that is not a question of fact alone.

Powers of court on appeal

(3) The judge who hears an appeal under this section may,

(a) refer the matter back to the Commission for reconsideration by the Commission;

(b) confirm or alter the decision of the Commission; or

(c) make such other order as he or she sees fit, including an order that the Fire Marshal or an inspector do any act he or she is authorized to do under this Act.

11In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada held that the determination of the appropriate standard of review requires a contextual analysis and is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal.

12Under the Act, all appeals of fire safety inspection orders made under s. 21(1) are heard by the Commission.

13Section 26(6) of the Act contains a privative clause that gives the Commission specific powers to confirm, amend or rescind an inspection order or to substitute its own decision for that of the inspector.

14As noted by this Court in Oshawa (City) v. Rayplex Ltd., 2006 CarswellOnt 5953, at para. 5, the Commission has a “high level of expertise”. This lends support to the parties’ submissions that a standard of review of reasonableness applies to its findings of fact and mixed fact and law. On questions of law, other than questions of law of central importance to the legal system as a whole and outside the Commission’s expertise, the standard is also reasonableness.

THE LEGISLATION

15The relevant sections of the Act, under Part VI – Inspections, are as follows:

Interpretation

18. For the purposes of this Part, fire safety includes safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it.

Inspection orders

21. (1) An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant,

(f) to do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan. [Emphasis added.]

ANALYSIS

16At the outset, it should be noted that the Commission, in its 2009 decision, modified condition #5 and deleted #7 but upheld the other conditions stipulated in the 2001 Inspection Order. The appellant claims the Commission erred in that it upheld the conditions despite making no findings into whether there was a fire safety risk on the appellant’s property that “would seriously endanger” people, property or the environment, as required by the Act, and in failing to find that the imposed conditions are excessive and based on speculation. In the course of argument, the appellant limited his objections to conditions numbered 4, 8, 9 and 10. The decision as it relates to each of those restrictions is particularly unreasonable, he argues, and must be set aside.

17The two principal issues raised in the appeal are, firstly, whether the Commission’s interpretation of the relevant sections of the Act, as applied to the facts, was reasonable; and secondly, whether the Commission properly considered the evidence before it.

ISSUE #1 – Was the Commission’s interpretation of the Act reasonable?

18The appellant contends that the applicable test for inserting a condition in the Inspection Order is that a fire, if started, “would seriously endanger” the health and safety of others.

19In support of this contention, he cites and relies upon the definition of the word “would” as found in Black’s Law Dictionary and other interpretative sources, as: “A word sometimes expressing what might be expected or preferred or desired. Often interchangeable with the word ’should’ but not with ‘could’”.

20According to the appellant, section 18 is the operative section of the Act and it represents a prerequisite for a section 21 order; that is, the test for the inspector or the Commission in imposing a condition must be whether a fire, when started, would seriously endanger the health and safety of any person.

21With respect, for the following reasons we do not agree that that is the correct test:

(a) Section 18 is an interpretive provision under Part VI of the Act, which deals generally with inspections. It uses the word “includes” when defining fire safety, indicating that it is not meant to be exhaustive or limiting in terms of what constitutes fire safety. It also stipulates that fire safety includes a “risk” of fire seriously endangering, among other things, the health and safety of persons. The phrase “risk” implies that the legislature was concerned with safety beyond simply protecting against highly likely or certain consequences of fire.

(b) The Inspection Order was not issued under s. 18 but rather s. 21(1)(f) of the Act, which gives an inspector authority to take any measure necessary to ensure fire safety in the lands and premises, including anything relating to the containment of a “possible” fire.

22In our view, neither section 18 nor 21 of the Act would require an inspector to prove the appellant’s activities “would seriously endanger” anyone or anything, prior to issuing an order under s. 21(1)(f) of the Act.

23The Commission considered whether each of the conditions separately was “reasonable and necessary” to ensure fire safety at the property. It did not exceed its jurisdiction nor did it err in its interpretation of the legislation which, in our view, was the appropriate and correct one in the circumstances of this case.

ISSUE #2 – Did the Commission properly consider the evidence before it?

24Over the course of two days of hearings, the Commission heard testimony from five witnesses, and it reviewed photographs of the property and the proposed burn piles, as well as the results of a previous burn on the property.

25In its decision, the Commission set out facts relating, among other things, to the characteristics of the subject and adjoining properties, the size of the proposed burn piles, their location and their proximity to adjoining roadways, lands and structures.

26In doing so, the Commission considered each of the conditions and, as noted above, it modified condition #5 and deleted condition #7 in accordance with the evidence. However, it found the other conditions to be reasonable and necessary to ensure fire safety on the premises.

27In our view, notwithstanding its findings that some conditions would minimize the possibility of the fire not being manageable, such a finding, on a contextual approach, was subsumed in the overall umbrella findings of the Commission related to fire safety. This was clear in the record. For example, the following exchange occurs in the cross-examination of the respondent’s witness as to how they arrived at the maximum size of the piles (at p. 91 of the transcript):

Q. If the burning was greater than 2 metre [sic], do you feel it would pose a safety hazard?

A. Well, if [I] didn’t feel -- if it wasn’t a safety hazard, then I would have increased it. That’s the figure that we felt was comfortable and so that’s why we went with the 2 metres.

28Reading the Commission’s reasons in context, the test that the Commission applied throughout was not, as the appellant alleged, whether the conditions were imposed to “mitigate” what “possibly” could happen. Rather, as stated in the Inspection Order and the Decision, the test applied was whether the conditions were reasonable and necessary to ensure fire safety.

29The appellant insists that the Commission ignored normal farm practices that are reasonable. However, the record indicates that the imposed conditions, for the most part, conformed to that standard. For example, when the Fire Marshall was asked the basis for limiting the number of piles to three in condition #9, he responded (at pp. 87-88):

Working with Mr. Veri, and we recognize that some of these things we try to work with people that are doing these burns. We actually going [sic] to allow three burns at the same site to help him out in the sense of allowing him to burn three piles at one time, which is contrary to our current bylaw that would allow only one.

30Secondly, the appellant’s own witness regarding normal farm practices and burns, believed that a majority of the conditions, including those disputed, were reasonable and fell within normal farm practices. In the end, the modifications made by the Commission accorded with his testimony.

31Finally, the respondents produced evidence of a fire that occurred on November 17, 2001, when the appellant had begun to burn one of the piles (at p. 96 of transcript):

Our firefighters had to go there, they had to extinguish the fire. They actually found that Mr. Veri was trying to control a grass fire which had developed because of the burn pile. Now that grass fire if left unattended, if the firefighters hadn’t attended, can get further – go crawl along the ground. There’s a brush line it could have gone in to. There are homes around that area. And that’s what I’m thinking that we’re trying to do, is that we’re trying to manage that so that it does not happen. We don’t want anything that’s going to endanger the lives around the property and endanger even the firefighters that are going there and the roadway. If smoke starts going into the roadway and affects visibility for people who are driving that road way.

32And earlier, at page 88:

And [condition] number 10 is an area of three metres to be cleared of all vegetation around the perimeter of each pile. And again, that speaks to we don’t want grass fires. Even though sometimes they look nice and green, grass doesn’t -- wind temperatures -- when a product reaches ignition temperature, even grass, green grass will burn. And when it does it will create smoke. That was evident from the fire that we responded to. The fire report indicated that the grass was scorched from the fire and we responded to put out the fire that Mr. Veri had set.

33The Commission properly considered each disputed condition separately within the context of the totality of the evidence. It found them to be reasonable and necessary in the circumstances. We find no error in that regard.

CONCLUSION

34The Commission’s reasons, taken as a whole, are transparent, intelligible and justifiable. We find no error, in fact or law, no misapprehension of the evidence and no miscarriage of justice. It was open to the Commission to find that the appellant’s proposed burn without each of the conditions would, on a balance of probabilities, be unsafe and pose a potential fire hazard to him, his neighbours and drivers travelling on adjoining highways. In doing so, the Commission considered the totality of the evidence and its findings were reasonable and well-supported by the evidence. In particular, its findings in respect of each of the impugned conditions met the standard of reasonableness.

35The decision of the Commission clearly falls within the range of possible, acceptable outcomes that are defensible from a factual and legal perspective.

36The appeal is therefore dismissed.

37Costs are awarded to the respondent in the sum of $8,721.40 all-inclusive, assessed on a partial indemnity scale. This amount is considerably lower than that requested by the appellant were he successful, and within the reasonable expectation of the parties.