RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Date of Order: 03/15/2022
Tribunal File Number: 13721 FSC
Case Name: Kemira Chemicals Canada Inc. v. St. Catharines Fire Services
Written Submissions by:
For the Appellant: Robert England, Counsel
For the Respondent: No written submissions
OVERVIEW
1This is a request for reconsideration of an Order of the Fire Safety Commission (the “Commission”) released January 12, 2022 (the “Order”).
2The Order denied the motion of Kemira Chemicals Canada Inc. (the “appellant”) for an order to extend the time to file an appeal to the Commission pursuant to s. 26(3) of the Fire Protection and Prevention Act, 1997 (“FPPA”).
3The Commission concluded that it did not have the power to extend the time for filing an appeal because the request for extension was not made within 30 days of service of the order being appealed, as required by s. 26(4) of the FPPA.
4The appellant asks that the Order be cancelled, and a rehearing ordered.
5The respondent did not file any submissions on reconsideration.
RESULT
6For the reasons given below, the appellant's request for reconsideration is dismissed.
CRITERIA FOR RECONSIDERATION
7The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended February 7, 2019 (the “Rules”).
8The appellant makes this request under Rule 18.2 (a) which is that the Commission acted outside its jurisdiction or violated the rules of procedural fairness, and also under Rule 18.2 (b), which is that the Commission made an error of law or fact such that the Commission would likely have reached a different result had the error not been made.
POSITIONS OF THE PARTIES
Appellant’s Submissions
9The appellant’s request for reconsideration raises two grounds:
Rule 18.2 (a): Commission acted outside its jurisdiction or violated the rules of procedural fairness
10In summary, the appellant submits that the Commission violated the rules of procedural fairness and made errors of law such that the Commission would likely have reached a different result had the errors of law not been made by identifying the threshold issue as whether the legislative time limits in s. 26(4) of the FPPA have been met. The appellant also submits that procedural fairness dictates that there be written reasons for an administrative decision, the importance of which has been recognized by the Supreme Court of Canada1 and submits that the Commission did not give adequate and meaningful reasons for its Order.
Rule 18.2 (b): Commission made an error of law or fact such that the Commission would likely have reached a different result had the error not been made
11In summary, the appellant submits that the Commission erred in law by failing to apply the law as set out in the Manuel2 and related cases and that the Order fails to give meaningful reasons for rejecting the submissions of the appellant with respect to Manuel and related cases. Further, the appellant suggests that errors of law were made by the Commission by incorrectly interpreting s. 26 of FPPA which it submits is “public welfare legislation” to be given a remedial, fair, large and liberal interpretation, so as to ensure attainment of its objectives and “in the public interest”.
Respondents Submissions
12The respondent did not make any submissions in response to the reconsideration request.
ANALYSIS
Rule 18.2 (a): Commission acted outside its jurisdiction or violated the rules of procedural fairness
13The appellant made no specific submissions as to how the Commission acted outside its jurisdiction. This ground of reconsideration is not established.
14The Commission did not violate the rules of procedural fairness. This ground of reconsideration is not established.
15Although the appellant submits that the Commission violated the rules of procedural fairness by identifying the threshold issue as whether the legislative time limits in s. 26(4) of the FPPA have been met, this is incorrect.
16The Commission is a creature of statute and is bound to apply the provisions of FPPA, including ss. 26(2), (3) and (4). The appellant’s request for an extension of the time to appeal was made much later than the 15-day appeal period provided for in s. 26(2) and much later than the 30-day period provided for in s. 26(4). As a result, the appellant’s request for an extension of time is not eligible for consideration by the express provisions of s. 26(4) of FPPA.
17Furthermore, the legal authorities put forward by the appellant at the hearing do not establish that the appellant’s request for extension should be granted despite s. 26(4) of FPPA. The appellant’s evidence, submissions at the hearing and legal authorities were all considered by the Commission. The legal authorities put forward were found not to be binding, persuasive or helpful in the appellant’s particular case for the reasons given in the Order at paragraphs 29 through 39.
18There was no failure of procedural fairness at the hearing or in the Order. No failure of procedural fairness at the hearing was alleged by the appellant. Written reasons for the Order were given which are fulsome, meaningful, reasoned, and clear in the circumstances of this particular case and meet all Vavilov standards.
19The Commission is not required to follow its own decisions which are, at most, persuasive. It is not required that the reasons for the Order set out all of the details of the appellant’s position or to refer to each submission, piece of evidence or legal authority put forward by the appellant or the reasons for finding them to be unhelpful. The Commission not following non-binding decisions that the appellant submits supports its position is not an error or violation of procedural fairness.
Rule 18.2 (b): Commission made an error of law or fact such that the Commission would likely have reached a different result had the error not been made
20The Commission did not make an error of law or fact, let alone an error of law or fact such that the Commission would likely have reached a different result. This ground of reconsideration is not established.
21The Commission did not err in its interpretation and application of s. 26 of the FPPA. Instead, after considering the submissions, evidence and legal authorities put forward by both parties, the Commission found that the appellant was not entitled to the extension of time requested for the reasons given in the Order.
22The applicable law and legislative analysis are set out in paragraphs 29 through 39 of the Order.
23Although the appellant submits firstly that the Commission is governed by procedural Rules which also apply to the Licence Appeal Tribunal, the authority for the Commission to consider granting an extension of time in certain circumstances is not, as a matter of law, derived from the Rules but from the FPPA. As explained in paragraph 30 of the Order, the Manuel case on which the appellant relies is specific to the Licence Appeal Tribunal and its specific legislative authority, which does not restrict or impose a time limit as to when an extension of time can be requested from the Licence Appeal Tribunal. Similarly, the OPSEU3 case relied on by the appellant involves legislation distinct from the FPPA.
24Although the appellant submits secondly that the Commission appears to have considered the dates in the FPPA as being in and of themselves determinative and in doing so, the Commission gave inadequate or no consideration to the submissions of the appellant as to factors that the Commission should consider in determining if there were reasonable grounds for allowing an extension, this submission does not reveal an error of law or fact. The appellant’s evidence and submissions at the hearing were considered as set out in paragraphs 18 through 27 of the Order. However, as explained in paragraph 41 of the Order, the Commission found that the strict time limit in s. 26(4) of the FPPA precluded further analysis for the reasons set out in paragraphs 29 through 40 of the Order.
25Although the appellant submits thirdly that the Manuel case has been referred to, relied upon and applied in prior decisions of the Commission, the Commission is not bound by its prior decisions. Here, the Commission declined to follow the reasoning in the Commissions prior decisions referred to by the appellant.4 However, it is of note that in both of these prior decisions the requests for extension of time were denied.
26Although the appellant suggests that errors of law were made by the Commission in incorrectly interpreting s. 26 of FPPA which it submits is public welfare legislation to be interpreted with a remedial, fair, large and liberal interpretation, so as to ensure attainment of its objectives and in the public interest, the Commission finds nothing in the Order which is inconsistent with the intent and purpose of the legislation. As explained in paragraph 32 of the Order, the FPPA has strict time limits for the appeal of orders made by fire officials and for requests for extensions of the time to appeal them. The Order is consistent with these strict time limits in the legislation.
27Contrary to the submissions of the appellant, the Commission’s Order interpreting and applying the FPPA and its strict time limits for filing an appeal does not contain errors of law which fail, as the appellant argues, “to address the submissions made by the appellant with respect to the applicable principles of statutory interpretation”, is not unreasonable and should not be departed from in this instance. The FPPA is not “under-inclusive legislation” which the Commission should “supplement” pursuant to its “inherent jurisdiction” and the Order does not produce an “absurd result”.
28Although the appellant submits that the Commission made errors of law, such that a different conclusion would have been reached, this suggestion is unfounded. In coming to its decision, the Commission carefully, and correctly, considered all materials before it at the hearing including the legal authorities that the appellant suggested would allow the Commission to depart from the clear provisions of the FPPA.
29Dissatisfaction with the result is not a ground of reconsideration. The Commission not accepting the appellant’s submissions, evidence or legal authorities at a hearing is not an error of law.
30Although the appellant may disagree with the Order, reconsideration is not an opportunity for the appellant to re-argue its position.
31The appellant has not established its grounds for reconsideration. The grounds for reconsideration of a Commission decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the appellant has requested reconsideration, the onus is on the appellant to establish its grounds and it has not done so.
CONCLUSION AND ORDER
32The appellant has failed to satisfy the Commission that any of its Rule 18.2 criteria for reconsideration have been established.
33For the reasons noted above, the appellant’s request for reconsideration is dismissed
Fire Safety Commission
Avril A. Farlam Vice Chair Fire Safety Commission
Released: March 15, 2022
Footnotes
- Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (SCC).
- Manuel v. Registrar, 2012 ONSC 1492.
- OPSEU, Local 234 v. Ontario (Ministry of Community Safety Correctional Services), 2019 CanLII 14451 (OLRB).
- For example, Brampton Fire and Emergency Services v. Credit Ridge Remedies Rx Pharmacy, 2021 ONFSC 9 (FSC); Batinic v. Waterloo Fire Rescue Service (2021) ONFSC 7 (FSC).