DATE: 20011113 DOCKET: C36400

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (The City of Mississauga) (Appellant/Prosecutor) – and – 2200 SHEROBEE ROAD INCORPORATED (Respondent/Defendant)

BEFORE:

MORDEN, CARTHY and MOLDAVER JJ.A.

COUNSEL:

Michal E. Minkowski for the appellant

Robert Maxwell for the respondent

HEARD:

November 6, 2001

RELEASED ORALLY:

November 6, 2001

On appeal from the judgment of Justice Vibert T. Rosemay dated February 2, 2001.

ENDORSEMENT

[1] The information in this proceeding alleged that the respondent on or about June 8, 2000

did fail to provide a sprinkler system in the squash courts in accordance with Articles 3.2.5.13. to 3.2.5.16. of the 1990 Building Code contrary to Sentence 9.6.5.5.(1) of 0. Reg. 388/97 and did thereby commit an offence under the Fire Protection and Prevention Act, S.O. 1997, c. 4. subsection 28(1)(c).

[2] The trial court dismissed the charge on the basis that it was not properly laid. The appeal court dismissed the appeal, agreeing with the trial court that the revocation of the 1990 Building Code, R.R.O. 1990, Reg. 61 by the 1997 Building Code, O. Reg. 403/97, precluded its revival through reference in regulations under the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4.

[3] Neither of these courts had s.12(1)(l) of the Fire Protection and Prevention Act, 1997 brought to their attention. It provides:

12. (1) The Minister may make regulations that are considered advisable or necessary for the purpose of establishing a fire code for Ontario governing fire safety standards for equipment, systems, buildings, structures, land and premises including regulations,

(l) adopting by reference, in whole or in part, with such changes as the Minister considers necessary, any code or standard and requiring compliance with any code or standard that is so adopted.

[4] We emphasize the words “any code or standard”. If the provisions in the 1990 Building Code are not a “code” within the meaning of this provision, they are, at least, a “standard.” We are satisfied that the s. 12(1)(l) clearly authorizes the adoption, by reference, of part of the 1990 Building Code in s. 9.6.5.5.(1) of the Fire Code , O. Reg. 388/97 which reads:

Where a building or portion thereof is required to be sprinklered, the sprinkler system shall be designed and constructed in accordance with Articles 3.2.5.13. to 3.2.5.16. of the 1990 Building Code.

[5] Accordingly, the courts below erred in holding that the charge was not properly laid.

[6] The appeal is allowed, the judgments below are set aside, and the proceeding is remitted to the trial court for trial.

“J. W. Morden J.A.”

“J.J. Carthy J.A.”

“M.J. Moldaver J.A.”