Tribunals ontario Fire Safety Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission de la sécurité-incendie
Appeal under subsection 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Camla Draven
Appellant
and
Toronto Fire Services
Respondent
MOTION DECISION AND ORDER
Adjudicator: Marisa Victor, Vice-Chair
Appearances:
For the Appellant: Self-represented
For the Respondent: Emma Luca, Counsel
Held in writing: February 14, 2022
OVERVIEW
1Camla Draven (the “appellant”) has brought a motion for costs pursuant to the Common Rules of the Commission.1
2The appellant is a tenant in unit 3 at 43 Dewson Street in Toronto (the building). The respondent issued an Inspection Order on March 24, 2020 requiring that combustible material in the corridor outside Unit 3 needed to be removed (the Inspection Order). The Fire Marshal upheld the decision on June 9, 2021 (the Review Order).
3On October 20, 2021, the respondent conducted a subsequent inspection. The respondent determined that the concerns in the Inspection Order had been corrected and that the subject of the appeal was now deemed in compliance. The respondent confirmed with the Commission on December 21, 2021 that the Inspection Order had been complied with.
4A case conference in this matter was held on December 23, 2021 beginning at 3:30 pm.
ISSUE
5Is the appellant entitled to a discretionary award of costs because the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith in this proceeding?
RESULT
6For the reasons below, I find that the appellant has not established grounds for an award of costs. The motion is denied.
THE RULES
7Rule 19.1 states that, where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.
8Rule 19.6 states that the amount of costs shall not exceed $1000 for each full day of attendance on a motion, case conference or hearing.
The Appellant’s Submissions
9The crux of the appellant’s complaint is that a few days prior to the case conference, the respondent informally suggested the appeal (and therefore the case conference) may no longer be necessary because the Inspection Order had been complied with.
10The appellant submits that this was an “informal motion” by the respondent which almost closed the case. The appellant submits the respondent should have served a Notice of Motion to dismiss the appeal and should have done so 10 days prior to the case conference.
11The appellant also submits that the respondent’s correspondence changed the nature of the case conference requiring the appellant to argue the merits of the appeal and jurisdiction with very little notice.
12The appellant submits that this caused her a lack of due process and prevented her from sending a representative. The appellant also claims this affected her mental and emotional well-being.
13The appellant also complains about the processes followed by the Commission triggered by the respondent’s actions.
14The appellant states that she was “held” for over two hours at the case conference.
15The appellant claims $1000 for her general anguish and mental distress and for having to personally attend the case conference.
16The appellant filed an extensive reply to the respondent’s submissions to this motion. However, the majority of the reply was irrelevant as it argued the merits of the case or improper as it simply reiterated her arguments in bringing of the motion for costs.
The Respondent’s Submissions
17The respondent submits that there is no basis for awarding costs against the respondent.
18The respondent submitted a chart documenting the history of the proceedings before the Commission and summarizing the correspondence sent by the parties and the Commission. The chart documents that on December 21, the respondent emailed the Commission, and noting that the Inspection Order was now in compliance, suggested the file could be closed. The appellant responded by asking for an adjournment of the case conference. The respondent consented to the adjournment request, however, the Commission advised that the case conference scheduled for December 23, 2021 would proceed.
19The respondent submits that s. 17.1 of the Statutory Powers Procedures Act, R.S.O. 1990, Chapter S. 22 (“SPPA”) allows a tribunal to order a party to pay all or part of another party’s costs in a proceeding but that these powers are limited by a tribunal’s rules. The Commission’s Common Rules at Rule 19 provide for the only situations where costs can be awarded. This is limited to when a party has acted unreasonable, frivolously, vexatiously or in bad faith.
20The respondent relies on A.B.B. v. Aviva Insurance Canada, 2021 CanLII 60469 (“ABB”), a decision from the Licence Appeal Tribunal which is subject to the same Common Rules. In ABB, at para 63, the tribunal found that, in reference to Rule 19.5, “the test for costs is a high threshold and costs are rarely awarded.”
21The respondent submits that, as the moving party, the appellant bears the burden of proving that the high threshold for costs has been met.
22The respondent submits that it has acted reasonably and in good faith throughout. The respondent notes that Rule 14.2 of the Common Rules states what issues can be raised at a case conference and these include settlement of the case and narrowing of issues. The respondent states that it was incumbent upon it to update the Commission on the status of the Inspection Order subject to the appeal. The respondent states that its purpose in doing so was to disclose a change in circumstances and to seek direction from the Commission. The respondent argues that it was reasonable to ask whether the appeal would continue in light of the deemed compliance with the Inspection Order.
23The respondent rejects the appellant’s characterization of the respondent’s actions as attempts to undermine the appellant’s case. The respondent also states that it consented to the appellant’s adjournment request, however, the Commission determined the case conference should proceed.
24The respondent states that there is no jurisdiction for the Commission to award damages based on general anguish and mental distress. The Common Rules sets out the only basis for a cost award. The appellant’s request can be better characterized as a request for damages for intentional infliction of emotional distress, a civil remedy that the Commission does not have the power to grant.
25Finally, the respondent submits that the Common Rules limit costs to $1000 per full day and are meant to compensate a party for costs expended unnecessarily as a result of unreasonable, frivolous, vexatious of bad faith conduct by the other party. The appellant has failed to show that she had any costs associated with her attendance at the case conference.
ANALYSIS
26I concur with the decision in ABB that there is a high threshold to the tests for costs and as a result costs are rarely awarded. The appellant acknowledges in her opening submissions that she understands that costs are only awarded in exceptional circumstances. It is abundantly clear that the actions complained of by the appellant are not exceptional in any way. The appellant has failed to establish that the respondent acted unreasonably, frivolously, vexatiously or in bad faith, therefore no costs are warranted.
27The scope of a case conference is broad. The overall purpose is to prepare the parties for the upcoming hearing and to settle or narrow the issues in dispute. It was entirely proper for the respondent to advise the Commission that the Inspection Order had been complied with in advance of the case conference. This did not change the nature of the case conference; on the contrary, it was necessary to focus the case conference on whether the issues before the Commission were still in dispute and that such dispute is within s. 26(6) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (FPPA).
28Contrary to the appellant’s position, the information provided by the respondent was not a motion. If a motion had been brought, the Commission would have determined the proper procedures for the hearing of the motion. No motion was brought; therefore, the appellant cannot have been denied any procedural fairness in that regard.
29The Commission decides if a case conference is to proceed or not. That decision is not in the hands of the respondent. Further, as stated in Rule 14.6, parties are required to attend their case conference. The appellant was required to attend the case conference independent of any actions taken by the respondent. She was not “held” by the Commission at the case conference, but required by the Rules to attend as the appellant in this matter. Further, Rule 6.7 states that a party may be represented or self-represented. The respondent’s actions did not affect the appellant’s right to be represented.
30The appellant complains of her mental anguish and emotional upset at the procedures followed. While the appellant certainly may have felt these emotions, it does not follow that the respondent is at fault. The respondent’s actions appear to fall squarely within the typical actions of a party before the Commission and in accordance with accepted procedure. In any event, I agree with the respondent that the Commission has no jurisdiction to grant an award for mental anguish or emotional distress.
31A motion for costs is a tool meant to punish extremely inappropriate behaviour by one party towards another in a proceeding before the Commission. This is set out in the Common Rules. The Common Rules recognize the extraordinary nature of a costs award which must be denied in all but the clearest cases. All of relevant the factors listed in Rule 19.5 must be met and considered by the Commission before ordering costs, lest there be a potential adverse impact on individuals wishing to access the Commission. Costs are therefore discretionary and are awarded only in the most exceptional of cases. This is clearly not one of those situations. The appellant has not met her onus to show that an award of costs is warranted.
ORDER
32I dismiss the appellant’s motion.
Released: March 03, 2022
Marisa Victor, Vice-Chair