TRIBUNALS ONTARIO Fire Safety Commission

TRIBUNAUX DÉCISIONNELS ONTARIO Commission de la Sécurité-Incendie

Citation: 2416300 Ontario Ltd. et al v. Cornwall Fire Services, 2023 ONFSC 26

Date: 2023-11-03

FSC File Numbers: 14749 and 14750, 14751, 14754, 14756, 14759, 14760, 14761, 14763, 14764, 14767, 14769, 14776, 14777, 14781, 14782, 14783, 14784, 14785, 14856 and 14857

Motion by Cornwall Fire Services for costs against one of the Appellants in this proceeding, as contemplated by Rule 19 of the Fire Safety Commission’s Common Rules of Practice & Procedure (the “Rules”) and section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22.

Between:

2416300 Ontario Inc. et al Appellants

and

Cornwall Fire Services Respondent

ORDER

Order Made By: Susan Clarke, Vice-Chair Claudine Wilson, Member Rocco Iamello, Member

Appellants: Daniel Orr, Agent for 2416300 Ontario Inc. Suzanne Villeneuve, assistant to Daniel Orr

Other Appellants: See page 2

Respondent: Matthew Stephenson, Fire Chief Leighton Woods, Deputy Fire Chief Inspector Frank McNeely, Cornwall Fire Services Emma Blanchard, Counsel

Suzanne Villeneuve (14750/FSC) Shirley Heagle (14751/FSC) Raymond Pilon (14754/FSC) Colleen Primrose (14756/FSC) Danielle Lavoie (14759/FSC) Andre Theriault (14760/FSC) Rosalie Armstrong (14761/FSC) Claude Pacquette (14763/FSC) River Waters (14764/FSC) Lynda Thompson (14767/FSC) Bruce Jeeves (14769/FSC) Mark Brunet (14777/FSC) Rheal Rochon (14777/FSC) Bruce Jeeves (14781/FSC) Thomas Roter (14782/FSC) Albert Gallagher (14783/FSC) Flora Orr (14784/FSC) Kevin Hodgins (14785/FSC) Denise Leduc (14856/FSC) Tyler Taillon (14857/FSC)

MOTION DECISION AND ORDER

OVERVIEW

1The Respondent (Cornwall Fire Services) has brought a motion for costs against one of the Appellants, 2416300 Ontario Inc., in this proceeding, pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice & Procedure, 2017, (the “Rules”) and section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”).

2Daniel Orr¹, a Director of 2416300 Ontario Inc., and also an Appellant, represents the corporation and made written submissions on its behalf at this motion.

3Following the hearing of an appeal before the Commission, the Respondent seeks costs in the amount of $5,000.00, referencing the maximum of $1,000 per day the Fire Safety Commission (the “Commission”) can award for each full day of attendance at a motion, case conference or hearing, as described in Rule 19.6.

42416300 Ontario Inc. represented by the primary Appellant, Mr. Orr, owns the building complex located at 510/520 Second Street East, in Cornwall in which all Appellants lived (the “Building”).

5In June, 2023, the Commission heard an appeal² of an Inspection Order made by Inspector Frank McNeely of Cornwall Fire Services issued on March 23, 2023, pursuant to clause 21(1)(f) of the Fire Protection and Prevention Act, 1997³ (“FPPA”).

6Case conferences were held on April 3 and 17, 2023. Initially, a hearing was scheduled for two days between May 17-19, 2023. On May 18, 2023, the hearing was rescheduled to June 5 and 6 because of the availability of both parties. The hearing convened on June 5, 2023, but was adjourned for a number of issues related to disclosure. The hearing was then continued on June 21 and 28, 2023. In total, between the case conferences and the hearing, the Commission sat for five days.

7The hearing of the motion for costs proceeded in writing, scheduled for August 7, 2023.

ISSUES

8Is the Respondent entitled to costs?

THE RESPONDENT’S SUBMISSIONS

9The Respondent asserts in its written submissions that between March and July of 2023, the appeal process was unnecessarily delayed and complicated due to the Appellant’s conduct as follows:

1. On April 3, 2023, Cornwall Fire Services and some of the Appellants attended a preliminary case conference before the Commission. CFS had not received copies of any of the requests for appeal⁴ as of that date, but the Appellants advised that they planned to appeal the March 23, 2023 Inspection Order and the authorization to have Inspectors close the building in which the Appellants resided, which was approved by the Fire Marshal under section 21(2)(b) of the FPPA (the “Authorization to Close”). This position required the preparation of lengthy written submissions by CFS before the hearing with respect to the scope of the Commission’s statutory jurisdiction to hear an appeal of the building closure.
2. On April 17, 2023, the principal parties attended a second case conference, during which time a three-day hearing was scheduled. Mr. Orr attended on behalf of 2416300 Ontario Inc., and Suzanne Villeneuve attended on her own behalf as an individual Appellant. The hearing dates were subsequently re-scheduled for June 5 and 6, 2023, due to parties’ availability, and at that time all parties were ordered to deliver Will Say statements by May 26, 2023.
3. By way of the Case Conference Report and Order dated April 19, 2023, the Commission advised the parties that it did not have jurisdiction over the Authorization to Close, such that the sole issue to be considered during the Review was whether the Order should be confirmed, amended, or rescinded, or such other order be made as the Commission deemed appropriate.
4. At the April 17, 2023 case conference, Mr. Orr, on behalf of the corporate Appellant, advised the Commission that he would call one or two expert witnesses, including a mechanical engineer and a fire alarm technician. No expert Will Say statements were prepared or filed and no Appellant called any expert witnesses to testify in the hearing.
5. On June 5, 2023, the parties attended for the intended start of the hearing, at which time Mr. Orr alleged that he was not prepared to proceed, including because he had not had access to documents stored within the Building that were necessary for his preparations. The CFS disputed these allegations. After a lengthy attendance on that day, the hearing was adjourned to June 21 and 28, 2023.
6. During the attendance on June 5, 2023, and by way of Order released June 7, 2023, the Commission ordered a detailed procedure for the exchange of documents between the parties and access to the Building for Mr. Orr and his assistant, Ms. Villeneuve. CFS made numerous attempts to contact Mr. Orr and Ms. Villeneuve to arrange access to the Building but, despite those efforts, they never attended the Building to obtain the purportedly necessary documents. According to the Respondent, this failure indicates the requested adjournment was at best, frivolous and, at worst, vexatious but in either event, unnecessary. CFS incurred costs thrown away to prepare for the hearing that did not proceed as scheduled.
7. On June 21 and 28, 2023, the parties attended at the hearing of the appeal. Mr. Orr was more than an hour late on the first day of the hearing. The hearing days were characterized by constant interruptions and a consistent disregard of the Commission’s directions by the Appellants, including in respect of the proper form and scope of questioning, which greatly lengthened the hearing days. In addition, the Appellants pursued questioning and made submissions regarding the Authorization to Close, despite the FSC’s clear direction this was not within the scope of the appeal, further delaying the proceedings.

10The Respondent further submits that the Appellants failed to respect procedural timetables, required last minute adjournments, and were unresponsive and uncooperative despite express direction from the Commission, all of which resulted in additional costs being incurred by CFS in the course of the appeal.

11The Respondent points out that although there were initially more than 20 Appellants who were party to the Review by the Commission, the main parties advancing the matter were Mr. Orr on behalf of 2416300 Ontario Inc. and Ms. Villeneuve. CFS limits its requests for costs to be made against the corporate Appellant, as it is the party whose representatives engaged directly in the alleged unreasonable conduct.

THE APPELLANT’S SUBMISSIONS

12The Appellant submits that no costs should be granted.

13In responding to each of the enumerated assertions/submission of the Respondents, the Appellant, represented primarily by Daniel Orr, states in summary that:

1. The Respondent should have addressed its request for costs to the Fire Marshal, since it was the Fire Marshal that transferred⁵ the appeal to the Commission. Secondly, the Appellant asserts that counsel for the Respondents did not fulfill an undertaking because she did not submit any legal argument and relied instead on a letter from the Fire Marshal.
2. The Appellant confirms that the hearing dates were scheduled in June due to the availability of the Respondents and/or their counsel.
3. The Commissions’ lack of jurisdiction concerning the closure of the building should have no bearing on the request for costs.
4. On the fourth point, the Appellant explains that an expert witness was not retained because CFS obstructed, through their prohibiting the attendance of a mortgage broker to view the inside of the property, the Appellant’s ability to secure a mortgage and thus be in a position to cover the expense of retaining the expert.
5. On the fifth point about the adjournment request, the Appellant points out that he, Mr. Orr, never requested an adjournment and that it was the Panel who expressed that, for the sake of fairness, the hearing should be postponed upon hearing submissions.
6. On the sixth point, the Appellant questions how numerous attempts could have been made to contact the other Appellant, Ms. Villeneuve, as she did not have phone or email access. Mr. Orr further made reference to an email received on June 6, 2023⁶ by the Chief of CFS, stating that the electricity had been shut down and no access to the building would be allowed until the Chief gave another decision. He provided a copy of the email.
7. On the seventh point with respect to Mr. Orr’s tardiness to the hearing on June 21, 2023, Mr. Orr stated that since he had not been receiving email, he had used a link from a previous attendance to access the virtual hearing portal (this was the wrong link), resulting in his being late to the hearing.
8. On the final point, the Appellant submits that Ms. Villeneuve, as an Appellant had the right to make a closing statement, and that Ms. Villeneuve followed the direction of the Panel Chair to submit a written closing statement given how late in the day the hearing had concluded that day at 6:00 p.m.
9. Taken together, the Appellant’s position then is that he acted reasonably.

RULES, STATUTORY AUTHORITY AND LEGAL ANALYSIS

14Rule 19 of the Rules governs the determination of costs in these proceedings.

15Rule 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.”

16Rule 19.5 states:

In deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall consider all relevant factors including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.

17Rule 19.6 states that the amount of costs shall not exceed $1,000 for each full day of attendance on a motion, case conference, or hearing.

18Section 17.1(2)(a) of the Statutory Powers Procedure Act states that a tribunal shall not make an order to pay costs under this section unless the conduct or course of conduct of a party has been unreasonable, frivolous, or vexatious or a party has acted in bad faith.

19Costs are not granted based on the amount of time or expense that the parties expended during an appeal. The standard for awarding costs is very high and should not be granted unless there is evidence that a party has conducted itself unreasonably, frivolously, vexatiously or in bad faith.

20Based on the totality of the submissions, we do not find that the Respondent established a solid evidentiary basis for this Panel to conclude that there was unreasonable, frivolous, vexatious action or bad faith on the part of the Appellant.

21Generally, we concur that throughout the hearing, there were adjournments occasioned and some delay, but that none of those were attributable to the level of action that would be required to justify the imposition of costs.

22Specifically, on the first point, neither the failure to provide a copy of notice of appeal, nor the preparation of lengthy submissions meets the threshold particularly because that was the first case conference.

23On the second point, it is not clear whether the Respondent’s reference to the hearing having to be re-scheduled to June was noted as a basis for costs, or was simply to provide a chronology of how the hearing process was scheduled. In either case, the panel agrees with both parties’ submissions that the hearing dates were scheduled in June based on the parties’ availability. Nothing turns on that point, and it provides no basis for a cost award.

24On the next submission by the Respondent, the failure of the Appellant to call an expert witness or to deliver a Will Say statement from said witness does not, in the Panel’s view amount to unreasonable, frivolous, vexatious or bad faith conduct on the part of the Appellant. It was up to the Appellant to lead whatever evidence was deemed necessary to meet their case.

25On the fifth point, we disagree with the Respondent’s submission, and concur with the Appellant, in that it was not Mr. Orr who signaled that he was not prepared to proceed as a result of not having obtained disclosure. Rather, on hearing that there was an outstanding issue of disclosure, the Panel took the lead in proposing, for the sake of procedural fairness, that the hearing be postponed for a brief period of adjournment to ensure that the disclosure obligations could be met.

26The Respondent’s submission related to the June 5, 2023 adjournment is unfounded. The Respondent’s assertion that the Appellant’s adjournment request and subsequent failure by the Appellant to attend the Building to obtain the “purportedly necessary documents” indicates action that was “at best, frivolous and at worst vexatious, but in either event unnecessary” is not supported by any evidence.

27The Panel accepts the Appellant’s reply submission on the seventh point that Mr. Orr was dialed in to the wrong number/link, thus resulting in his joining the hearing one hour late. There was no prejudice occasioned by the Respondent by Mr. Orr’s tardiness, as the panel permitted the Respondent to proceed with its case during that first hour.

28The Panel does agree that there were a number of interruptions and repeated instances where the Panel had to re-direct Mr. Orr. When strongly cautioned by the Panel Chair, Mr. Orr exercised restraint. Ultimately, the Panel does not find that his interruptions amounted to conduct punishable by costs. The Panel takes the same view with regards to the Appellant’s questioning and submissions regarding the Authorization to Close as the issue was no longer raised once the Panel emphasized that the issue would no longer be entertained.⁷

CONCLUSION

29Clear and compelling evidence related to all applicable factors set out in Rule 19.5 should be available in determining a cost order. The Respondent has not met the onus of demonstrating that an award of costs is warranted.

30The Respondent has not proven that the Appellant acted unreasonably, frivolously, vexatiously or in bad faith within the meaning of Rule 19 of the Common Rule, or s.17.1 of the Statutory Powers and Procedures Act.

RULING

31There shall be no order for costs. The Respondent’s motion is denied.

Released: November 3, 2023

_________________________ Susan Clarke, Vice Chair

_________________________ Rocco Iamello, Member

________________________ Claudine Wilson, Member

Footnotes

1. 121 Appeals were received by the Fire Safety Commission. Ultimately only two Appellants, Mr. Orr and Suzanne Villeneuve participated in the hearing. A named Appellant, Tyler Taillon attended each of the appearances, however he did not advance a position, call evidence or make submissions on his own behalf.
2. 22416300 Ontario Inc. v. Cornwall Fire Services, 2023 ONFSC 23.
3. 3S.O. 1997, Ch. 4
4. 4Throughout the Respondent’s submissions, reference was made to the Commission’s “review” of the Inspection Order. The correct terminology, as described in s.26(1) of the Fire Protection and Prevention Act, is “appeal.”
5. 5Clause 25(4)(a) of the FPPA states “The Fire Marshal may refuse to consider the substance of the request and refer the matter to the Fire Safety Commission for a hearing under s. 26.
6. 6The Panel notes that the Appellant referred to “July” but the Panel presumes this is meant to say “June” as the hearing had concluded prior to the month of July.
7. 7The Panel at one point had to also caution the Respondent and its expert witness to remain on track with the issue at hand as well.