Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210719 DOCKET: C67571 & C67653

Pepall, Roberts and Thorburn JJ.A.

BETWEEN

Kevin Flood and Anne Marie Laniak Plaintiffs (Appellants)

and

Shawn Boutette, Richard Marr, Lee Tome, Windsor Fire and Rescue Services Department, Mario Sonego and the Corporation of the City of Windsor Defendants (Respondents)

AND BETWEEN

Joseph Papic and Susan Papic Plaintiffs (Appellants)

and

Shawn Boutette, Lee Tome, Windsor Fire and Rescue Services Department, Mario Sonego, Marc Mantha and the Corporation of the City of Windsor Defendants (Respondents)

Counsel: Asha James and Jeremy Greenberg, for the appellants, Kevin Flood and Anne Marie Laniak (C67571) Steven Pickard, for the appellants, Joseph Papic and Susan Papic (C67653) Sheila C. Handler, for the respondents (C67571 & C67653)

Heard: May 25, 2021 by videoconference

On appeal from the judgments of Justice Renee M. Pomerance of the Superior Court of Justice, dated October 1, 2019, with reasons reported at 2019 ONSC 5633, 58 C.C.L.T. (4th) 261.

Thorburn J.A.:

OVERVIEW

[1] In Ontario, single-family dwellings require fewer safety protections than boarding, lodging, and rooming houses (collectively, “lodging houses”) because single-family dwellings operate as a single unit whereas the occupants of lodging houses are more autonomous. Owners of single-family dwellings used as lodging houses are therefore required to retrofit their premises in accordance with the regulatory requirements in the Fire Code, O. Reg. 213/07.

[2] The appellants Kevin Flood and Anne Marie Laniak (“the Flood appellants”), and Joseph Papic and Susan Papic (“the Papic appellants”), rented single-family dwellings to students in Windsor, Ontario. Mr. Flood and Mr. Papic were charged with Fire Code violations that apply to lodging houses following investigations by Shawn Boutette, a city fire-prevention officer.

[3] The central issue in Mr. Flood’s three-day trial was whether the properties were lodging houses within the meaning of the Fire Code. Justice of the Peace Renaud determined that the Flood property was not a lodging house for the purpose of the retrofit requirement in s. 9.3 of the Fire Code. Mr. Flood was therefore acquitted on a directed verdict. Shortly thereafter, the charges against Mr. Papic were withdrawn.

[4] The appellants then brought claims against the respondents, Shawn Boutette, Richard Marr, Lee Tome, Windsor Fire and Rescue Services Department, Mario Sonego, Marc Mantha and the Corporation of the City of Windsor (“the City”), seeking damages for claims that include negligent investigation, malicious prosecution, violation of the Charter, and bad faith.

[5] The claims against Richard Marr, Mario Sonego, and Marc Mantha were withdrawn on the eve of trial. The trial judge dismissed the remaining claims holding that (i) the respondents had reasonable grounds [1] to believe the properties were lodging houses prior to laying charges under the Fire Code, (ii) the investigator did not conduct a negligent investigation, and (iii) neither the investigation nor the laying of charges was motivated by malice.

[6] The appellants submit that the claims should not have been dismissed as (i) the investigator knew or ought to have known the buildings were not lodging houses and there were therefore no reasonable or probable grounds to lay the charges, (ii) the investigator conducted a negligent investigation, and (iii) the respondents acted in bad faith as their motive was not public safety, but to reduce student housing in Windsor. The appellants further claim that the usual deference owed to a trial judge is not owed in this case as the judge who heard the evidence passed away and therefore was not the judge who rendered the decision.

[7] The Papic appellants also submit that the trial judge ignored their claim of undue delay and abuse of authority in relation to the development of a property and seek to remit that claim to the Superior Court for determination.

[8] For the reasons that follow, I would dismiss the appeals.

BACKGROUND DISCUSSION

[9] The appellants are residential landlords who own properties around the University of Windsor.

[10] Mr. Flood is a partner in the Flood Rental Group. For many years, Flood has developed or renovated properties for the primary purpose of renting those properties to students attending university. The Papics own a duplex, also near the university, which they too rented as student housing.

[11] In June 2006, the mayor and City Council received a report from the respondent Mario Sonego (“the Sonego Report”), then the City of Windsor’s Chief Building Official. In his Report, Mr. Sonego recommended that the City Council endorse a proposed strategy “for pursuing fire safety with respect to multiple tenant residences.” In the background section, he stated:

As Council will recall, multiple tenant occupancy of single family or duplex residences, particularly around the University of Windsor, has been an issue since the double cohort year of approximately 2003.

Administration has had difficulty, as have other municipalities, with attempting to convince the Courts or the Justice of the Peace system that homes are not operating as single family units but are operating as lodging homes.

[12] The Report then discussed relevant jurisprudence, namely Good v. Waterloo (City) (2013), 67 O.R. (3d) 89 (S.C.) (“Good (ONSC)”), aff’d , 72 O.R. (3d) 719 (C.A.) (“Good (ONCA)”), which I will discuss in greater detail below, before proposing that:

One possible enforcement strategy is to proceed through the Fire Code to confirm compliance and the safety of occupants. This strategy was discussed with the Off Campus Issues Committee, whose membership has a representative from the West Windsor Homeowners Association. They were in agreement with the benefits if successful.

[13] The appellants and respondents disagree on the purpose of writing this Report and the subsequent retrofit enforcement strategy adopted by the City.

[14] The appellants claim the enforcement strategy following the Sonego Report, which led to the charges against them, was not motivated by a bona fide concern for the safety of the public, but rather by a desire to restrict student housing to appease other disgruntled homeowners. The respondents claim the enforcement strategy was based on a concern for fire safety.

[15] I will begin by outlining the origins of the retrofit enforcement strategy, before turning to the decision by Mr. Boutette to investigate and lay charges against the appellants in 2007.

(1) The Origins of the Retrofit Enforcement Strategy

[16] According to Mr. Sonego, the City became concerned about student tenancies in 2003. That year, a “double cohort” of students would graduate from high school, placing pressure on limited student accommodation. The City was concerned that students would pick the cheapest accommodation, which might not always be the safest.

[17] By 2004, the City’s Building & Development and Bylaw Enforcement & Licensing departments had unsuccessfully pursued landlords renting premises the City felt were illegal lodging homes through bylaw enforcement. The City determined that the next step would be to proceed under the Fire Code to order the retrofit of homes lodging more than three persons, so as to comply with fire, safety, and building standards. This strategy was not implemented in 2004.

[18] On January 25, 2006, there was a fire at a student rental property in which students were seriously injured, bringing the problem of fire safety in student housing to the forefront. In March 2006, Mr. Sonego attended a meeting of the Off‑Campus Housing Committee at which he indicated that he would prepare a report for City Council. The report was delivered in June 2006.

[19] Various city departments approved the retrofit enforcement strategy proposed in the Sonego Report, which recommended that the Fire Department look at a few cases where they suspected lodging houses were being operated in an unsafe manner.

[20] Based on the above, the trial judge accepted that “it is open to inference that the underlying motivation was rooted in safety concerns rather than a desire to appease homeowners in the university district.” She held however that, even if it was rooted in a desire to appease homeowners in the university district, this would not have altered Mr. Boutette’s motive as he did not know of any such purported strategy until he had already begun the investigation.

(2) The Fire Code Provision

[21] One of the stated purposes of the Fire Code, as set out in s. 2.2, is to ensure that persons are not exposed to “an unacceptable risk of injury due to fire.”

[22] Section 9.3 of the Fire Code deals with the retrofit requirements for lodging houses. Subsection 9.3.1.1 reads as follows:

(1) This Section applies to boarding houses, lodging houses, rooming houses and private rest homes in which residents do not require care or treatment because of age, mental or physical limitations, where

(a) the building height does not exceed 3 storeys and the building area does not exceed 600 m 2 ,

(b) lodging is provided for more than four persons in return for remuneration or the provision of services or both, and

(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants. [2] [Emphasis omitted.]

[23] The terms “boarding houses, lodging houses, rooming houses” are not defined in the Fire Code. However, the Ontario Building Code, O. Reg. 332/12, s. 1.4.1.2 defines these terms to mean a building that meets substantially the same criteria set out in s. 9.3.1.1.(1)(a)-(c) of the Fire Code. [3]

[24] Buildings falling within the definition of s. 9.3.1.1 must comply with a number of specific safety requirements. For example, portable fire extinguishers must be located on each floor, exit signs must be installed, and walls that separate bedrooms must meet a specified fire-resistance rating.

(3) The Decision in Good v. Waterloo

[25] As noted above, the City was aware that certain jurisprudence might foreclose the possibility of student housing being considered lodging houses. In his Report, Mr. Sonego noted that:

The difficulty of the matter lies in the burden of proof that persons unrelated to each other live in a single unit dwelling not operating as a single housekeeping unit, but rather as a lodging home. To illustrate the difficulties of this enforcement, attached is a copy of the Superior Court Case of Good v. the City of Waterloo.

[26] In Good (ONSC), Gordon J. found that the home in that case, that was occupied by students, operated as a single housekeeping unit and was therefore exempt from the requirement to be licensed as a dwelling house under a City of Waterloo bylaw.

[27] This court affirmed his finding. Under the Municipal Act in force at the time, and the Waterloo bylaw, a lodging house was defined as:

a nursing home and any house or other building or portion thereof in which persons are harboured, received or lodged for hire, but does not include a hotel, hospital, nursing home, home for the young or the aged or institution if the hotel, hospital, home or institution is licensed, approved or supervised under any other general or special Act.

[28] The same bylaw exempted “residential units” from the requirement to obtain a license where the unit “is used as a single housekeeping unit, which includes a unit in which no occupant has exclusive possession of any part of the unit,” among other things.

[29] Gordon J. held, in Good (ONSC) at paras. 23-24, that:

[T]he distinguishing characteristic as between a lodging house and a residential unit focuses on the control of the premises…. Control, in a lodging house, is by the owner and the occupants on an individual basis, whereas in a residential unit it is by the group. Accordingly, for a residential unit there must be evidence of collective decision-making regarding the use of the premises.

[30] After articulating a list of factors present in that case, Gordon J. concluded that the student tenants lived together collectively and that the relevant premises were being used as a residential unit, not a lodging house.

[31] This result was upheld on appeal to this court, which found “collective decision-making sufficient to create a single unit for housekeeping purposes” to be “an appropriate criterion” to determine whether the premises in question were single housekeeping units: see Good (ONCA), at para. 3.

(4) Mr. Boutette’s Investigation

[32] Mr. Boutette was a fire prevention officer with the Windsor Fire and Rescue Services and a qualified fire inspector. One of his tasks was to investigate alleged Fire Code infractions. Mr. Boutette had the power to enter into any building in the City of Windsor to inspect property to ensure fire safety pursuant to the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4.

[33] Mr. Boutette knew that “boarding houses, lodging houses, and rooming houses” were not defined in the Fire Code but testified that he was trained to use the definitions found in the Building Code where the Fire Code did not define a term. Lodging houses are defined in the Building Code as buildings that have a building height not exceeding 3 storeys and a building area not exceeding 600 m 2 , in which lodging is provided for more than four people in return for remuneration or for the provision of services or for both, and in which the lodging rooms do not have bathrooms and kitchen facilities for the exclusive use of individual occupants. This wording is, as noted above, similar to the wording of s. 9.3.1.1 of the Fire Code.

Inspection of the Appellants’ Properties

[34] Between 2006 and 2008, the Fire Prevention Division received several complaints from neighbours and previous tenants about student rental properties owned by Mr. Flood and the Papics. Mr. Boutette attended at each of the properties.

[35] The first property was 659 Rosedale Avenue. Mr. Boutette said that when he began his investigation, he did not know the property was owned by Mr. Flood.

[36] In October 2006, Mr. Boutette visited the property and interviewed three of the seven tenants. He noted that there were locks on some of the bedroom doors and he obtained a copy of some of the leases and sublet agreements. The property had been rented to two people who sublet their tenancy to other students. The sublets were not all entered into at the same time. Different tenants were in charge of different household tasks. He also noted a lack of interconnected smoke alarms.

[37] Mr. Boutette concluded that the property was being used as a lodging house, as it was less than three stories and rented for remuneration to more than four people who shared kitchen and washroom facilities. He contacted Mr. Flood and told him about the Fire Code, s. 9.3 requirements. Mr. Flood claimed that the property was not a boarding, lodging, or rooming house and that the provisions in the Fire Code therefore did not apply. Mr. Boutette said he would look into things further.

[38] In February 2007, Mr. Boutette met with Mr. Flood and several other landlords. The landlords denied that their properties were boarding, lodging, or rooming houses. Mr. Boutette recalled that the Good cases were discussed at this meeting, as was another case which distinguished Good.

[39] Mr. Boutette’s second visit to 659 Rosedale Avenue took place in March 2007. He noted labelled food in the refrigerator and the presence of certain locks on the doors. He said that, at this time, he again concluded that the building was being used as a lodging house within the meaning of the Fire Code because the building was (i) less than three storeys and 600 m 2 , (ii) rented for remuneration or services to more than four people; and (iii) the tenants shared washroom and kitchen facilities. While certain changes had been made, he found that the property did not comply with the Fire Code requirements. Charges were laid on March 14, 2007.

[40] The second property was a duplex at 341 and 343 Askin Avenue, owned by the Papic appellants. In September of 2007, following a complaint by a previous occupant, Mr. Boutette visited the property with another inspector from the City’s building department. They discovered that the Papic tenants were strangers when they moved in, paid rent individually to the landlord, there were locks on the doors of the tenants’ rooms, and each was responsible for their own meals.

[41] Mr. Boutette concluded that both Askin properties were boarding, rooming, or lodging houses and decided to proceed with charges. In November 2007, charges were laid against Mr. Papic.

[42] The third set of properties were three residences on Bridge Avenue, owned by Mr. Flood. In January 2008, Mr. Boutette attended the properties with two junior inspectors. After speaking with the tenants, he learned that the properties were being used as student housing and that Mr. Flood was the landlord. He discovered that each tenant gave cheques for their own rent and paid it to another tenant who paid Mr. Flood; they came from various areas across Ontario; absent permission, tenant’s rooms were off-limits to others; and they each cooked their own meals and bought their own food.

[43] Mr. Boutette concluded that, using the same criteria he used in respect of the Flood properties, the Bridge Avenue properties were also boarding, lodging, or rooming houses.

[44] A few days later, instead of laying charges, Mr. Boutette proceeded by way of an inspection order under the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 21.

Mr. Boutette’s Due Diligence Process

[45] During this period, Mr. Boutette reached out to several individuals who worked in fire prevention. They provided guidance, which included cautioning him against an unsuccessful prosecution of s. 9.3 of the Fire Code on student housing; informing him of a successful conviction under s. 9.3 for a single-family home found to be operating as a lodging house (see City of Ottawa v. Bentolila, 2006 ONCJ 541); and advising him that student housing should be evaluated against indicators of a single housekeeping unit before enforcing the bylaw, and that Good contained criteria to distinguish between a single housekeeping unit and a lodging house.

[46] Bruce Weaver, an official at the Fire Marshal’s office, provided criteria to determine whether a building was occupied as a housekeeping unit and dwelling unit. These criteria included, among other things, the duration of the tenancies, the manner in which rent and utilities are paid, whether the occupants exercise collective decision-making and lived communally, the number of residents, whether rooms are assigned, and whether bedrooms are locked. Mr. Boutette was not told how to apply these criteria.

[47] Mr. Boutette also met with a Crown Attorney. Mr. Boutette shared the information he had received with the Crown. He did not relay the specific information from Mr. Weaver though the factors to be considered are taken from both the Good and Bentolila cases. He said that, as a result of the meeting, he understood that whether the Fire Code applied would be a judge’s decision. Mr. Boutette sought to meet with the Crown Attorney and the appellants, but this request was denied. When he endeavoured to speak with the tenants again, he was told by Mr. Flood that they did not wish to speak with him.

(5) The Prosecutions

[48] Mr. Flood’s trial for the charges relating to 659 Rosedale Avenue took place in November 2008. Mr. Flood was charged under s. 28(1)(c) of the Fire Protection and Prevention Act. Mr. Flood brought a motion for a directed verdict.

[49] Justice of the Peace Renaud granted the motion with respect to four of the five charges. She rejected the use of the Building Code definition of “lodging house”. She held that:

The prosecution witnesses seemed to be under the impression or feel that the term lodging house is defined by the criteria in section 9.3 [of the Fire Code] and more specifically in subsection 9.3.1.1. and that, so long as there is proof that the building has fewer than three stories, the building area does not exceed 600 square meters, that lodging is provided for more than three persons for remuneration and that lodging rooms are not individually equipped with bathroom or kitchen, then it follows that the building is a lodging house. This is an erroneous interpretation.

… The three criteria relied upon by the prosecution witnesses and prosecutor simply limit which boarding, lodging and rooming houses are covered under section 9.3. A plain reading reveals this to be the case, but this is further supported by the fact that the Code itself contemplates that some boarding, lodging and rooming houses will not be covered under section 9.3….

Therefore, the issue to be resolved is whether or not 659 Rosedale was a lodging house.

[50] Justice of the Peace Renaud went on to consider whether the premise was a lodging house based on the dictionary definition of that term. She concluded that “a lodging house or rooming house is a house that rents out rooms to individuals on an individual basis where the landlord controls who occupies each individual room, collects rent separately for each individual room and where, when a room goes vacant, he ceases to collect money for that room and where he has the right to replace the tenant for that room.” She held that there was no evidence that this was the case with respect to 659 Rosedale Avenue because the property was rented to “a group of friends” who pooled their resources to rent the building. Following this ruling, she dismissed the final charge at the Crown’s request.

[51] The Papic charges, relating to the duplex on Askin Avenue, were withdrawn and did not proceed to trial.

[52] The appellants then commenced their action against the respondents for negligent investigation, malicious prosecution, and violations of the Charter, among other things.

THE TRIAL JUDGE’S DECISION

[53] The appellants claimed Mr. Boutette knew or ought to have known their properties were not boarding, lodging, or rooming houses and there were no reasonable and probable grounds to lay the charges. They also claimed the respondents acted in bad faith by using the charges as a means to discourage landlords from renting to students.

[54] The trial took place in 2017, over 31 days, before the late Justice Steven Rogin. The central issue was whether it was reasonable for the investigator to believe the properties were boarding, lodging or rooming houses subject to the Fire Code. Sadly, Rogin J. passed away before rendering a decision. On consent, Pomerance J. conducted a re-trial based on the trial record. She also heard the party’s arguments concerning this court’s decision in Payne v. Mak, 2018 ONCA 622, 78 M.P.L.R. (5th) 179 (“Payne (ONCA)”), aff’g 2017 ONSC 243 (“Payne (ONSC)”), released after the trial submissions had concluded before Rogin J.

[55] Pomerance J. concluded that, in her words:

1. The investigator did owe a duty of care to the plaintiffs.

2. The standard of care required that the investigator have reasonable grounds to lay the charges in question.

3. The investigator did have reasonable grounds to believe that the properties were boarding, lodging or rooming houses and that they were noncompliant with the Fire Code: a. On the existing law, it was open to the investigator to believe Good v. Waterloo did not govern Fire Code investigations; b. If Good v. Waterloo did apply, the criteria in that case – applicable to a judicial determination – were of uncertain application at the charging stage; c. The standard of reasonable grounds did not require the investigator to definitively conclude that the properties were boarding, lodging or rooming houses; only that they could reasonably be found to be boarding, lodging or rooming houses; d. In any event, the investigator did advert to the criteria in Good v. Waterloo, gathering information for purposes of trial.

4. If Boutette did not have reasonable grounds, he nonetheless acted reasonably in the investigation, by seeking advice and direction from various individuals and entities, including the Crown Attorney, before he laid charges. An error in the interpretation of a legal standard did not, in this case, result in breach of the duty of care.

5. The investigator did not act with malice or oblique motive. While there was evidence to indicate that the City of Windsor had concerns about an influx of student housing, the investigator was not privy to these discussions. I accept his evidence that he was acting in the interests of public safety, in response to specific complaints.

[56] There was therefore no negligent investigation, malicious prosecution, infringement of the Charter, or abuse of process. She dismissed all of the appellants’ claims.

ANALYSIS OF THE LAW AND CONCLUSION

[57] Normally, a trial judge’s factual findings are reviewable on a palpable and overriding error standard and are entitled to deference. Whether those facts are sufficient in law to constitute reasonable and probable grounds is reviewable on a correctness standard: Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at paras. 43-45, citing R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20, R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289, at para. 13; Payne (ONCA), para. 30.

[58] The Flood appellants urge this court to apply a less deferential standard of review to the trial judge’s factual findings as this court is no better placed than Pomerance J. to assess the original trial record as she was not present when the evidence was adduced.

[59] This submission runs contrary to the settled principle that appellate deference to a trial judge’s factual findings does not change simply because the trial record is in writing. As this court explained in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, 85 O.R. (3d) 561, at para. 46:

The principle of appellate deference to a trial judge's fact-finding and inference-drawing applies even when the entire trial record is in writing. That is so because the principle of deference is grounded in more than a trial judge's ability to see and hear the witnesses. Deference recognizes that even on a written record, the trial judge “lives through” the trial while a court of appeal reviews the record only through the lens of appellate review. Deference also preserves the integrity of the trial process, maintains the confidence of litigants in that process, reduces the number and length of appeals and therefore, the cost of litigation, and appropriately presumes that trial judges are just as competent as appellate judges to resolve disputes justly.

[60] In IFP Technologies (Canada) Inc. v. EnCana Midstream and Marketing, 2017 ABCA 157, 53 Alta. L.R. (6th) 96, at paras. 66-77, leave to appeal refused, [2017] S.C.C.A. No. 303, the Alberta Court of Appeal considered the standard of review applicable in similar circumstances. The trial judge passed away before rendering a decision and, on consent, a new judge rendered a decision on a written record. On appeal, the court found that the usual standard of appellate review governs. As Fraser C.J. explained, appellate review is not intended to be a retrial, duplicating the trial judge’s efforts. The principal function of the appellate courts is to ensure consistency in the law, not correctness of factual findings in particular cases. Even when they do not hear evidence in person, trial judges have expertise in weighing evidence and navigating complex records. Appellate courts, on the other hand, must be mindful that a consistent standard of review helps maintain the effectiveness of appellate review for all litigants in the justice system.

[61] In this case, the parties consented to a trial on an extensive written record, totalling over 4,000 pages of transcripts and 5,000 pages of exhibits. The trial judge made factual findings and drew inferences after reviewing all of the evidence adduced. I see no basis on which to depart from the established standard of review which accords deference to the trial judge’s findings of fact absent palpable and overriding error. It is not this court’s role to navigate the voluminous record afresh, nor would it be desirable for this court to do so.

[62] For these reasons, the usual standard of appellate review applies.

(1) The First Issue: Whether there were reasonable and probable grounds to lay charges

[63] The appellants claim the trial judge erred in concluding that Mr. Boutette had reasonable and probable grounds to lay charges against them.

[64] First, the Papic appellants argue that the trial judge failed to assess the charges against them independently of those laid against the Flood appellants.

[65] The Papics have not explained how the investigation against them differed in any material respect from the investigation against Mr. Flood. In both cases, the argument is that Mr. Boutette conducted negligent investigations because he knew, or ought to have known that the residences in question were not boarding houses such that the requirements of s. 9.3 of the Fire Code were inapplicable and, thus, he lacked reasonable and probable grounds to lay charges. The trial judge was therefore entitled to consider this issue jointly in the circumstances.

[66] Second, the appellants claim the trial judge applied the wrong standard of review: she determined that Mr. Boutette had a subjective belief that he had reasonable and probable grounds to charge them but failed to also address whether there were objectively reasonable and probable grounds to lay charges. Viewed objectively, they argue, a reasonable officer would determine that the properties consisted of shared living space and were not lodging houses.

[67] In my view, for the reasons that follow, the trial judge correctly found that Mr. Boutette had objectively reasonable and probable grounds to lay the charges, notwithstanding that the charges ultimately failed, and the trial judge both considered and applied the correct test.

(a) The duty of care in laying charges

[68] Investigators such as Mr. Boutette owe a duty of care to those they investigate. In Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73, the Supreme Court held that the standard of care “is the overarching standard of a reasonable police officer in similar circumstances,” or in this case, a reasonable fire safety inspector in similar circumstances: see Upchurch v. Oshawa (City), 2014 ONCA 425, 27 M.P.L.R. (5th) 179, at para. 21. Writing for the majority of the Court, at para. 73, McLachlin C.J. held that the duty is to exercise discretion in a manner that falls within the range of reasonable decisions available at the time the decision was made. She explained, further at para. 73, that in the analogous context of police investigations:

The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results. Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. [Internal citations omitted.]

[69] In laying charges, “the standard [of care] is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty; since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them”: Hill, at para. 68.

[70] An investigator’s personal belief that there are reasonable and probable grounds is not sufficient: a reasonable person standing in the shoes of the investigator must believe there are reasonable and probable grounds to believe that the person charged committed the offence: see R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250; Payne (ONCA), at para. 31.

[71] In determining whether there are reasonable and probable grounds to lay charges, the investigator need not “evaluate evidence to a legal standard or make legal judgments” as “[t]hat is the task of prosecutors, defence lawyers and judges”: 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 51; see Hill, at para. 50.

[72] The standard of care to be applied by a professional generally requires expert evidence unless the standard is clear to an ordinary person or the conduct so outrageous that it is obvious the standard has not been met: 495793 Ontario Ltd. (Central Auto Parts), at paras. 53 and 57; Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598, at paras. 130-131, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319.

(b) The effect of a withdrawal of or an absence of conviction on the charges

[73] The withdrawal of charges or the absence of a conviction does not lead to the conclusion that reasonable and probable grounds did not exist to lay charges. Reasonable and probable grounds may still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to lay charges: Collis v. Toronto Police Services Board (2007), 228 O.A.C. 333 (Div. Ct.), at para. 66; see also Wong v. Toronto Police Services Board, at paras. 59-68; Charlton v. St. Thomas Police Services Board, 190 C.R.R. (2d) 103, at para. 41 (Ont. S.C.); Lawrence v. Peel Regional Police Force, at para. 48.

[74] Payne (ONCA), released about a year and a half before the judgment under appeal, also concerned a fire at a rental property and the alleged violation of s. 9.3 of the Fire Code. Two owners of the home were charged with arson by negligence under s. 436 of the Criminal Code. The charges against one homeowner were dropped, while the second homeowner was discharged after the preliminary inquiry judge found an insufficiency of evidence. The homeowners then brought a claim for negligent investigation. The trial judge dismissed the claim, a result affirmed by this court. Strathy C.J.O. held, at para. 47, that the individual who charged the appellants:

had no obligation to determine whether the charge would succeed at trial. He was not required to evaluate the evidence to a legal standard or to make legal judgments. Nor was he required to exhaust all possible investigations, to interview all potential witnesses prior to arrest, to obtain the accused’s version of events or determine that the accused had no valid defence to the charge, before being able to establish reasonable and probable grounds. [Citations omitted.]

(c) Mr. Boutette did not breach the standard of care in laying charges

[75] In this case, boarding, lodging, and rooming houses are not defined in the Fire Code. Mr. Boutette believed that the appellants’ properties were lodging houses subject to the Fire Code regulations because they met the criteria set out in s. 9.3.1.1: (i) they were less than three storeys and 600 m 2 , (ii) were being rented for remuneration or services to more than four people; and (iii) the tenants shared washroom and kitchen facilities.

[76] The appellants claim Mr. Boutette breached the standard of care in laying charges and that the trial judge erred in determining that any further requirements relating to specialized investigations under the Fire Code, beyond the existence or absence of reasonable and probable grounds, would require expert evidence. They say Mr. Boutette was aware of legal authority in support of the requirement that there be a reasonable belief that the residence is not a shared living space but chose to ignore it. They also say Mr. Boutette ignored or failed to collect evidence that was consistent with the residences being shared living spaces.

[77] For the reasons set out below, I agree with the trial judge that there were reasonable and probable grounds to believe an offence had been committed when Mr. Boutette laid the charges, bearing in mind that there was no obligation to correctly determine whether the charges would succeed at trial and that she made no error in her standard of care analysis.

The Good decision did not foreclose the possibility of conviction

[78] Mr. Boutette was aware of this court’s decision in Good (ONCA) which, as discussed, concluded that in that case, whether a building was a lodging house or a residential unit for the purpose of a municipal business licensing bylaw depended on “whether there was collective decision-making sufficient to create a single unit for housekeeping purposes”.

[79] The statutory context in this case is different than in Good and the trial judge held that Mr. Boutette’s view that Good might not apply to Fire Code investigations was reasonable in the circumstances. It was therefore reasonable to think that the definition of a boarding, lodging, or rooming house under Fire Code might be more expansive than the bylaws at issue in Good.

[80] Good was a business licensing dispute. The trial judge in Good favoured a restrictive interpretation of the relevant bylaw in favour of the right of an owner to deal freely with the property: see Good (ONSC), at paras. 12-13 (noting, however, that his decision did not turn on this point); see also Good (ONCA), at para. 2.

[81] The Fire Code, by contrast, is a public welfare regulation. Such regulations are given a liberal interpretation by the courts, as to do otherwise would “interfere with or frustrate the attainment of the legislature’s public welfare objectives”: Ontario (Ministry of Labour) v. Hamilton (City), 58 O.R. (3d) 37 (C.A.), at para 16.

[82] It was objectively reasonable to think the different statutory context might be relevant and that factors other than those identified in Good might militate in favour of the applicability of the Fire Code. As the trial judge observed, subsequent jurisprudence has confirmed the view that whether a property is a lodging house within the meaning of a bylaw depends on the particular bylaw at issue: see Neighbourhoods of Windfields Limited Partnership v. Death (2008), 49 M.P.L.R. (4th) 183 (Ont. S.C.), at paras. 70-71, aff’d, 2009 ONCA 277, at paras. 3-4, leave to appeal refused, [2009] S.C.C.A. No. 253; Payne (ONSC), at paras. 142-144.

Whether a residence is a lodging house is a contextual analysis

[83] In Good (ONCA), this court set out several factors relevant to whether the occupants of a residence exercise sufficient collective decision-making to form a single housekeeping unit, including the manner in which rent and utilities are paid, how the residence is furnished, and how housekeeping is organized. In addition to Good, Mr. Boutette was also aware of the Bentolila case.

[84] In Bentolila, the appeal judge found that a residence occupied by students was a boarding house within the meaning of the Fire Code. Drawing on Good and other relevant authorities, that case set out a range of factors, at para. 56, relevant to this conclusion. These included, among other things, “[a]part from their attendance at [a university], there was no mention of any other connection between the inhabitants”, “the only area where a resident could assert privacy was in his or her own bedroom,” and “each resident provided for his or her own nutritional needs, and shared the use of a number of refrigerators.”

[85] Taken as a whole, the caselaw stands for the proposition that the question of whether a residence is a lodging, boarding, or rooming house, within the meaning of the Fire Code, is a contextual one. Mr. Boutette understood that, ultimately, this determination would be for the judge to make.

Mr. Boutette did a contextual analysis

[86] Mr. Boutette collected a body of evidence in anticipation of Good (ONSC) being raised at trial with respect to both the Flood properties and the Papic duplex. For example, during his investigation at 659 Rosedale Avenue, Mr. Boutette gathered evidence of some relevant indicia: there were seven rooms rented; no evidence of pre-existing relationships among the students, only of being fellow students; no evidence of shared utilities or other expenses; the only privacy areas were indoor locks on the bedroom doors; the property had been rented to two people who sublet their tenancy to the other students; the sublets were not all entered into at the same time; and food in the refrigerator was labelled, suggesting that they were not eating communally. At the Askin duplex, he discovered that the tenants were strangers when they moved in, paid rent individually, and ate separately.

[87] The Flood appellants claim Mr. Boutette ignored evidence that did not support his view, including a letter in which the tenants at 659 Rosedale stated that they “act as a joint group”. Mr. Boutette did not ignore this letter. He felt it was authored by someone other than the tenants. He was not required to take this letter at face value when considering whether to lay charges.

[88] Ultimately, the appellants argue that a reasonable investigator would have reached a different conclusion and not laid charges. I do not accept this submission. As the trial judge observed, the standard of care to be applied by a professional generally requires expert evidence, unless the standard is clear to an ordinary person or the conduct so outrageous that it is obvious the standard has not been met: 495793 Ontario Ltd. (Central Auto Parts), at paras. 53 and 57; Krawchuk, at paras. 130-131.

[89] Mr. Boutette’s conduct was not outrageous and the norms of fire safety investigation are not obvious. No expert evidence was adduced and the other evidence in the record, relied on by the Flood appellants, is no substitute.

Conclusion on the reasonable and probable grounds

[90] Mr. Boutette’s duty was not to come to the correct conclusion regarding the legal status of the residence before laying charges. It was to exercise his discretion in accordance with the options open to him at the time that fell within “the range of reasonableness”: Hill, at para. 73. I agree with the trial judge that, in this case and in the absence of expert evidence, it was open to Mr. Boutette to conclude that there were reasonable and probable grounds to lay charges because:

a) The term “lodging house” is not a defined term in the Fire Code;

b) Interpretation of the term is contextual. A number of factors have been considered, as outlined above;

c) In Bentolila, a conviction was upheld in similar circumstances when applying a public safety regulation. Good did not apply a public safety regulation;

d) Mr. Boutette’s function was not to draw legal conclusions when deciding whether to lay charges;

e) No expert evidence was adduced and the other evidence in the record, relied on by the Flood appellants, is no substitute; and,

f) Mr. Boutette believed the properties were lodging houses and that several of the Good factors supported his view. There was evidence to support this belief.

[91] Mr. Boutette’s conduct was not outrageous and the norms of fire safety investigation are not obvious. For these reasons, I see no error in the trial judge’s conclusion that the investigator had reasonable and probable grounds to lay the charges.

(2) The Second Issue: Whether the investigation was negligent

[92] The second issue is whether Mr. Boutette conducted an otherwise negligent investigation.

[93] In my view, it is far from clear that Mr. Boutette’s conduct did not meet the standard of care. As noted above, the law distinguishes between unreasonable mistakes that breach the standard of care, and errors in judgment which a reasonable professional might make which do not breach the standard of care. The function of an investigator is to investigate incidents that might breach the Fire Code, make a conscientious and informed decision as to whether charges should be laid, and present the full facts to the prosecutor. Although investigators weigh evidence to some extent in the course of an investigation, they are not required to canvass all possible avenues of investigation, interview all potential witnesses, evaluate evidence according to legal standards, or draw correct legal conclusions: 495793 Ontario Ltd. (Central Auto Parts), at paras. 51-52; Wong, at paras. 56-59; Upchurch, at para. 28.

[94] Mr. Boutette attended each of the premises at least once to investigate. He also sought the opinion of several people in other municipalities who had dealt with similar issues. He consulted with the Fire Marshal and the Crown Attorney. Thereafter, he received little cooperation from the appellants to obtain further information about the premises or authorization to speak with their tenants again.

[95] Mr. Boutette gathered information and he knew that Good v. Waterloo involved a different statutory context (business licensing as opposed to fire safety) and may therefore not be determinative of the issue of whether he should charge the appellants with Fire Code infractions. He also reasonably relied on the Bentolila decision.

[96] For these reasons, I see no error in the trial judge’s conclusion that Mr. Boutette acted reasonably in conducting his investigation.

(3) The Third Issue: The claim of malicious prosecution

[97] The elements of malicious prosecution are (a) the initiation of a prosecution by the defendants; (b) termination of a prosecution in favour of the party prosecuted; (c) the absence of reasonable cause to commence the proceeding, and (d) a finding that the prosecutor acted with malice in setting the prosecution in motion: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339, at paras. 53-56. Malice is the wilful perversion of abuse of office for an improper purpose: Miazga, at para. 80. It is an intentional or wilful state of mind and must be specifically pleaded.

[98] As I have detailed above, the issue of malice does not arise in this case as Mr. Boutette, in the circumstances at the time, acted with reasonable and probable grounds to believe an offence had been committed. As the Supreme Court explained in Miazga, at para. 55:

As a matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused.

[99] In any event, the trial judge fairly concluded that there was no malice on the part of Mr. Boutette as not only did he conduct a protracted investigation of the facts, he demonstrated some concern for the appropriateness of the charges ultimately brought:

This is not a case in which an investigator was determined to lay charges, whatever the evidence or circumstances. To the contrary, Boutette sought advice and guidance from several investigators and individuals. He obtained information from Bruce Weaver, and Jeff Maraway. He considered the PowerPoint presentation made by a representative of the Ontario Fire Marshal’s office. He did his own research.

Significantly, the investigator went so far as to seek input from the Crown Attorney.

[100] Mr. Boutette’s evidence as to his motive was that, “[i]t’s very difficult for me as a fire investigator or a fire official to not order something that could mean a difference between life and death on how students who move into a house live.”

[101] The trial judge therefore concluded that Mr. Boutette did not base his decision to lay charges on improper motives and did not seek out or target these properties for investigation; rather, complaints were made to the Fire Prevention Division and Mr. Boutette simply responded to them; as found by the trial judge, the charges were motivated by a genuine and legitimate desire to enforce the Fire Code. Her decision is amply supported by the evidence, and she did not ignore evidence of the difficult relationship between Mr. Boutette and the appellants during the course of the investigation.

[102] The Flood appellants also raise the issue of malice on the part of City Council. They claim the trial judge ignored the evidence of a connection between the retrofit enforcement strategy and the prosecutions of the appellant. The Papics claim that malice on the part of City Council can be attributed to Mr. Boutette through the doctrine of vicarious liability.

[103] I do not accept these arguments. The trial judge observed that Mr. Boutette was not at the Council meetings and considered at length, at paras. 119-122 of her reasons, whether an improper motive for the retrofit enforcement strategy influenced Mr. Boutette’s decision to lay charges:

Finally, I must address the allegation that the charges were laid for an oblique motive, namely to discourage landlords from renting or continuing to rent to student tenants. Were the charges laid for an improper purpose, unrelated to fire safety, that would displace the finding that the investigator acted reasonably.

Evidence was led to indicate that officials with the City of Windsor had concerns about an influx of student housing. The enforcement under the Fire Code happened after the City had tried enforcement under the Building Code. That enforcement effort was unsuccessful, and therefore the City made the decision to use the Fire Code to address the issues. The question is what the motivation was. The plaintiffs allege that the Fire Code was used to crack down on or reduce student population.

There are some aspects of the evidence that give me pause. It is not clear to me why some of the discussion of the issue by Council was in camera. No landlords were invited to attend the council meeting. There had been complaints about student housing from neighborhood residents. It was recognized that the enforcement program might incidentally reduce student housing if landlords were not prepared to retrofit. On the other hand, there was also good reason to be concerned about fire safety in properties rented out to multiple students during the school year.

Whatever the impetus for City Council’s enforcement strategy, I find that it did not affect, or infect, the conduct of the investigations carried out by Boutette.

[104] I see no basis to disturb this finding. An “oblique motive” was not proven at trial and, even if it were, that would not necessarily amount to malice. In any event, there is no evidence that such a motive affected Mr. Boutette’s conduct.

(4) The Fourth Issue: The unresolved Papic claims

[105] The Papics raised a number of claims in relation to the development property at 207 Askin Avenue. These claims were not addressed by the trial judge in her reasons and the Papic appellants therefore ask that the issues be remitted to the Superior Court of Justice for determination. The respondents request that this court determine these issues in accordance with its discretion under s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[106] In brief, starting in 2007, the Papics encountered difficulties getting approval for a minor variance for their 207 Askin Avenue property, where they hoped to build a new multiple-unit dwelling for student housing. Although the Planning Department supported the variance, the Papics encountered resistance from other community members. The City’s Committee of Adjustment denied the requested variance, on the basis that (i) it was not a minor variance, (ii) the variance was not desirable for the appropriate development of the land, and (iii) the granting of the application would depart from the purpose of the zoning bylaw and the City’s Official Plan.

[107] The Papics successfully appealed the Committee of Adjustment’s decision to the Ontario Municipal Board (“OMB”), but a City solicitor believed a site plan control process was required by the OMB decision. Papic’s legal representative acknowledged that the development would be subject to site plan control and would be circulated to area residents for approval and stated that Papic had no issue with that nor was there any disagreement about this issue at the hearing.

[108] The Papics went through the site plan control process and filed an application in January 2009. In February, a member of the Site Plan Review Committee recommended approval of the Papics’ application. City Council elected to vote on the application. The March 2009 vote was a tie, meaning the plan was not approved. The Papics once again appealed to the OMB which, in May 2009, issued an amending memorandum to its earlier decision, striking any reference to the Papics’ property being subject to site plan control or the site plan control process. The OMB’s amending memorandum indicated that it had been “incorrectly advised” by the Papics’ planning witnesses that their property was subject to site plan control and that the parties agreed the property is not subject to site plan control. At this point, the Papics could apply for and subsequently were granted the relevant building permit.

[109] The Papic appellants claim these delays were caused by Mr. Boutette and the City and resulted in significant cost.

[110] I agree with the respondents that there is nothing to be gained by sending this matter back to the Superior Court and that it is in the interests of justice that this court determine these issues: Klurfeld v. Nova Quest Logistics Inc., 2016 ONCA 348, 132 O.R. (3d) 66, at para. 33. The events giving rise to the Papics’ claims on these issues date back to 2007. The record before this court is full and allows for the fair adjudication of these issues without prejudice to the parties who have had the opportunity to present evidence and make full submissions at trial. Moreover, the claims are bound to fail.

[111] City departments supported the 207 Askin Avenue development throughout. There was no evidence adduced at trial to support a finding that the City solicitor, who believed a site plan control process was required by the OMB’s decision, acted negligently or with malice. Mr. Boutette appeared at one meeting at the request of a superior, said nothing of any moment, and was otherwise uninvolved.

[112] To the extent the Papics seek to hold the City liable for delays attributable to the decision of the Committee of Adjustment or the vote at City Council, these were policy decisions, made in good faith, for which there is no legal liability in tort under the Municipal Act, 2001, S.O. 2001, c. 25, s. 450.

[113] The Papics plead “harassment” and intentional infliction of emotional distress. There is as yet no recognized common law tort of harassment: see Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494, leave to appeal refused, [2019] S.C.C.A. No. 174. In my view, the circumstances of this case cannot plausibly warrant the recognition of such a tort. The claim of intentional infliction of emotional distress is also fatally flawed: none of the conduct at issue was flagrant, outrageous, or calculated to harm the Papics.

[114] Finally, the Papics’ claim of misfeasance in public office must fail. The City councillors were not acting unlawfully or in bad faith when they elected to vote on the site control plan application: see Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721, at paras. 37-39. They were acting in response to community opposition to the Papics’ proposed variance.

[115] In sum, the Papics sought a variance to a property. Community members objected and raised their concerns with City Council, the role of which is to resolve such disputes. There is nothing particularly unusual, much less tortious, about the events that followed.

DISPOSITION

[116] For the above reasons, I conclude that the trial judge made no error in finding that Mr. Boutette had reasonable and probable grounds to lay charges, his conduct did not fall below the standard of care, and he did not act with malice towards either the Flood or the Papic appellants. Moreover, there is no legal liability for the City’s treatment of the Papic request for the minor variance at 207 Askin Avenue. I would therefore dismiss the appeals.

[117] In accordance with the bill of costs submitted by the respondents, I would award partial indemnity costs of the appeals to the respondents in the amount of $45,000 inclusive of disbursements and HST.

Released: July 19, 2021 “S.E.P” “J.A. Thorburn J.A.” “I agree. S.E. Pepall J.A.” “I agree. L.B. Roberts J.A.”

Footnotes:

[1] The trial judge used “reasonable grounds” and the “reasonable grounds standard” as a short form for “reasonable and probable grounds”. Nothing turns on this abbreviation.

[2] Before November 2007, s. 9.3.1.1(1)(b) of the Fire Code, O. Reg. 388/97, referenced ‘more than three persons’, not more than four.

[3] The 2006 Building Code, O. Reg. 350/06, defines “boarding houses, lodging houses, rooming houses” in the same manner.