Court File and Parties
Court File No.: City of Kenora 140123 and 140124
Date: 2015-01-06
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
William Krolyk and 1091263 Ontario Inc.
Before: Justice of the Peace D.J. MacKinnon
Heard: October 30, 2014
Reasons for Judgment Released: January 6, 2015
Counsel:
- N. MacDonald-Duncan for the prosecution
- No appearance by or on behalf of William Krolyk or 1091263 Ontario Inc., even though notified of time and place
JUSTICE OF THE PEACE D.J. MACKINNON:
Introduction
[1] The Defendant William Krolyk is charged on Information 140123 with seven violations of s. 28(5) of the Fire Protection and Prevention Act (FPPA), an offence stemming from his role as an officer of a corporation which is alleged to have violated the Fire Code.
[2] The Corporate Defendant, 1091263 Ontario Inc., is charged on Information 140124 with two offences under s.30 of the FPPA for failing to comply with inspection orders issued by the Office of the Fire Marshall. No one appeared for the Defendants at the trial of these matters on October 30, 2014. A plea of not guilty was entered for the Defendants and the evidence heard was to apply to the trials in absentia of both Defendants.
[3] My decision was reserved to today's date.
The Evidence
[4] On September 25, 2013, Officer Kembel of the Office of the Fire Marshall in Thunder Bay, attended at Willard Lake Resort on Highway 17 in the Longbow Lake area near Kenora. This was part of the routine inspection program carried out in the unorganized areas of Northwestern Ontario.
[5] Upon his arrival at the restaurant of the resort, Officer Kembel requested to speak to the owner and he was directed to William (Bill) Krolyk. The officer indicated that he was there to do an inspection of the premises in accordance with authority granted to him by the Fire Protection and Prevention Act, 1997. He was then directed to the cook and manager, Dennis Morrisette, who took him around the premises.
[6] The property contained a building with a restaurant, and a separate motel unit with two sections, one of which had a maintenance garage attached. There was also a workshop under the units. During his inspection, Officer Kembel discovered numerous violations including the need for appropriate smoke detectors in each motel unit, fire suppression for the kitchen, portable extinguishers, records of maintenance, electrical concerns, Wett certificates and other issues.
[7] After leaving the premises, Officer Kembel testified that he took steps to verify the ownership of the property as set out in Exhibits 1 and 2. He also obtained the corporate profile report. He returned to Thunder Bay and issued two orders pursuant to s. 21(f) and s.21(g) of the Act which were served by fax on Bill Krolyk on October 16, 2013 and are set out in Exhibits 4 and 5. The deadline for compliance with the orders was November 27, 2013 or about six weeks.
[8] The Office of the Fire Marshall did not hear from Mr. Krolyk.
[9] On December 6, 2013, another inspector, Officer Larry Lundy, did a follow-up visit to Willard Lake Resort. He testified that his intention was to work with the property owner to resolve the issues.
[10] Officer Lundy met with Mr. Krolyk and went over all of the items. Mr. Krolyk indicated that he had been ill and that was why he had been unable to complete the items and did not communicate before the deadline. He asked how he might remedy the situation and Officer Lundy told him that he should submit a letter of compliance to Officer Lundy setting out how and when he was going to remedy the situation.
[11] Mr. Krolyk sent his letter to Officer Lundy on December 8, 2013. The letter confirms the reason for his delay in responding (health issues), his intention to address the issues in a timely fashion and speaks to various particulars of the compliance. Parts had been ordered for the dryer and they had contacted a company to come in and address the main safety issues for them. The letter from Mr. Krolyk indicated that the motel units would be shut down until the alarms were installed and inspected.
[12] It appears that there was no communication from the Office of the Fire Marshall to Mr. Krolyk after this date.
[13] The Electrical Safety Authority became involved at the request of the Office of the Fire Marshall. They sent a Defect Notice (Exhibit #6) to Mr. Krolyk on December 13, 2013 requiring compliance to correct electrical defects by December 27, 2013. Another Defect Notice (Exhibit #7) was sent by them on December 16, 2013 requiring correction of defects by December 27, 2013 and a Defect Notice Follow-up (Exhibit # 9) dated December 27, 2013 indicated that, as the defects remained outstanding, an Electrical Safety Authority Order would be issued or the power would be disconnected.
[14] The motel units burned down on January 7, 2014.
Onus
[15] The onus is on the prosecution to prove the elements of the offences even in the absence of the Defendants.
Charges Against the Corporation
[16] The Defendant, 1091253 Ontario Inc., faces two charges under s.30 of the FPPA. The section reads as follows:
Offence, failure to comply with inspection order
- Every person who fails to comply with an order made under section 21... is guilty of an offence and on conviction is liable to a fine of not more than $20,000 for every day during which the default continues...
[17] This is a strict liability offence which requires the prosecution to prove the essential elements of the offence and then shifts the onus to the Defendant to show due diligence or a mistake of fact. It is an essential element of this offence that the Defendant must have knowledge of the order, and fail to comply with the order.
[18] The inspection orders in this case were made under s.21 of the FPPA, which states:
Inspection orders
21 (1) An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant,
(f) to do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan;
(g) to remedy any contravention of the fire code.
(2) An inspector may...order that the owner or occupant of the land or premises close the land or premises and prevent persons from entering thereon until such time as the corrective actions ordered under subsection (1) have been completed...
(3) If, upon an inspection, it is determined that the electrical installations in a building or structure create or pose a risk because of fire....order that the electrical installations in the building or structure be inspected by a representative of the Electrical Safety Authority...
[19] The prosecution suggested in submissions that the issuance of an inspection order was simply a courtesy only, and unnecessary as charges could have been laid at the outset of this matter. I disagree.
[20] Inspectors are given authority to attend at privately owned commercial operations unannounced and without warrant. This section authorizes the issuance of a regulatory order to the owner or occupant of the property. An order is stronger than a simple recommendation and requires the body to whom the order is directed, to take measures to correct identified hazards. The inspector can order the premises closed until the corrective work has been done. The inspector can also involve the Electrical Safety Authority, as it did in this situation.
[21] These are tremendous powers. In section 21, the public establishes that a fair opportunity to correct the deficiencies must be made available to citizens that the inspectors deal with. This is the balance that the FPPA requires.
[22] Officer Kembel testified that he confirmed the ownership of the property by the corporation and the particulars of the corporation, prior to issuing the inspection orders.
[23] The parcel pin record for Willard Lake Resort shows that the corporation, 1091253 Ontario Inc. has owned the property since 1994.
[24] The corporate documents filed by the prosecution show that 1091253 Ontario Inc. was incorporated in 1994 and had two officers: William Krolyk, Box 127, Vermilion Bay Ontario and David James Roth (Resident Canadian) of 816 James Avenue S.E., East Grand Forks, Minnesota. No updated information was obtained or filed and the Minute Book of the corporation was not reviewed.
[25] Each of the inspection orders begins:
To/A
Bill Krolyk
An inspection of the following described property
owned
by you namely
motel/restaurant
[26] The words "Bill Krolyk", "owned" and "motel/restaurant" were all inserted into the blank spaces provided in the Inspection Order form. The name of the owner, 1091253 Ontario Inc. and the legal description of the property, do not appear anywhere on the inspection orders.
[27] Although he knew that the legal owner of the property was 1091253 Ontario Inc., Officer Kembel listed Bill Krolyk as the owner of the property on the inspection orders and directed that he comply with the orders by the deadlines. Mr. Krolyk was not the owner of the property and was not required to comply with the orders as an owner. The charges before the court against the Corporate Defendant clearly refer to the corporation as the owner of the property.
[28] Even if Mr. Krolyk held himself out to be the owner, the Office of the Fire Marshall knew that he was not the owner of Willard Lake Resort. The corporate records show that there was also another officer of the corporation, Mr. Roth, whose interests in the corporation may have diverged from those of the Mr. Krolyk. There could also have been shareholders of the corporation.
[29] The result of this inaccuracy is that the Corporate Defendant, 1091253 Ontario Inc. has been deprived of the opportunity to consider and comply with the orders, and to have the benefit of the review provisions of s.25 of the Act, which the prosecution argued it failed to take advantage of.
[30] The prosecutor has urged the court to consider that Bill Krolyk as an officer of the corporate entity could rightfully be directed to comply. There is a distinction between the person who can be served in respect of the corporation, and the entity to which an order must be directed. The orders, in my view, were directed to the wrong party.
[31] In regard to service of the orders, the FPPA in s.24, provides that the owner of a property will have notification of the order:
s.24 (1) A copy of an order made under section 21 shall be served upon the owner and any occupant of the land and premises.
[32] The use of the term "shall" provides that both the occupant and the owner are to be served with a copy of the inspection order made under s.21. Regardless of whether a choice is made to direct the order to the owner or to the occupant, the service of inspection orders on the owner, found in s. 24(1) of the FPPA, is mandatory.
[33] Were the inspection orders served on the Corporate Defendant?
[34] The service component of the inspection orders filed as Exhibits 4 and 5 indicate that Bill Krolyk was served by facsimile transmission on October 16, 2014. The fax number is not identified. There is no fax verification attached to the documents, nor an affidavit of service.
[35] The corporate records show an address for the corporation as a box number in Vermilion Bay, Ontario. There is no evidence of service to this address. There is no fax number in the corporate records. The letter from Mr. Krolyk (Exh.10) shows a fax number, but it has been stroked out by hand and replaced with another number. Neither officer testified as to why they believed the fax number to which the inspection orders were sent was related to the corporation.
[36] The prosecution must prove that the inspection orders were served on the corporate defendant. While an officer of a corporation can be served for the corporation, the service recitation does not suggest that Mr. Krolyk was served in that capacity and for that purpose.
[37] The facts in this case do not support a conclusion that the corporation, 1091253 Ontario Inc., was properly notified of and directed by the inspection order to correct the deficiencies in its property, nor that it was served with the orders. On this basis, there will be a finding of not guilty and the charges against the Corporate Defendant are dismissed.
Charges Against William Krolyk
[38] The Defendant William Krolyk faces seven charges under s.28(5) of the Fire Protection and Prevention Act, alleged to have occurred on December 6, 2013 at Willard Lake Resort. Each charge cites a violation of the Fire Code, Division B of Ontario Regulation 213/07, which is a violation of s.28(5) of the FPPA which states:
28(5) A director or officer of a corporation who knows that the corporation is violating or has violated a provision of the code is guilty of an offence and on conviction is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both.
[39] The alleged violations of the fire code are:
a) failing to inspect portable extinguishers monthly;
b) failing to maintain a permanent maintenance record for portable extinguishers;
c) failing to maintain commercial cooking equipment exhaust and fire protection systems;
d) failing to ensure that the solid fuel burning appliance in the maintenance shop was installed in accordance with regulations;
e) failing to maintain the solid fuel burning appliance in the maintenance shop in accordance with the standards;
f) failing to ensure the lint trap in the primary dryer was cleaned to prevent the accumulation of lint.
Nature of the Offence
[40] The Fire Protection and Prevention Act is public welfare legislation. Clear language is necessary to find a mens rea offence in a public welfare statute. (R. v. Timminco, 153 C.C.C. (3rd) 521)
[41] In accordance with the case of R. v. Sault Ste. Marie, 40 C.C.C. (2nd) 353, the use of the word "knows" presumptively creates a mens rea offence. Further, the possibility of incarceration and high fines as a penalty strengthens the interpretation of this offence as a full mens rea offence in a regulatory regime.
Onus
[42] The onus is on the prosecution to prove that the defendant had the requisite knowledge beyond a reasonable doubt. This is a high standard, applicable even in a trial in absentia.
Elements of the Offence
[43] I am satisfied that the prosecution has proven beyond a reasonable doubt that Mr. Krolyk was an officer of the corporation, 1091253 Ontario Inc., and that the corporation owned the Willard Lake Resort. It has also been proven that there were fire code violations found at Willard Lake Resort on September 25, 2013 by Officer Kembel.
[44] The charge involves knowledge by the defendant of violations of the fire code. The question for the court is what is the nature of the knowledge or mens rea required for a conviction under this section?
Analysis
[45] The charges allege that Mr. Krolyk knew of the violations on December 6, 2013 during the visit of Officer Lundy. Officer Lundy did not inspect the premises on that date to confirm that the violations existed. He met with Mr. Krolyk with a view to working cooperatively to resolve the matters to the satisfaction of the Fire Marshall's office. He testified as to an admission made by Mr. Krolyk about compliance, but such statement was not proven voluntary and is presumptively hearsay.
[46] As Mr. Krolyk was served with the Inspection Orders of September 25, 2013, can his knowledge of the violations be imported from that time and the period until Officer Lundy's visit in December? This would mean that after the service of any inspection order, a defendant would immediately and unfairly be deemed to have the knowledge of the violations necessary to proof of the charge. In my opinion, the time when knowledge of a violation becomes an offence is when the officer of the corporation creates the violation knowing it to be contrary to the fire code, or knows of the violation and refuses to correct it.
[47] The case of A. Potvin Construction Ltd. v. Ontario (WSIB), [2011] O.J. No. 6340 dealt with charges under s.149 of the Workplace Safety and Insurance Act. The section reads: "a person who knowingly makes a false or misleading statement or representation to the Board in connection with any person's claim for benefits under the insurance plan is guilty of an offence." It is a mens rea offence in a regulatory statute. The description by the Justice of the Peace of the mens rea necessary to a conviction was upheld on appeal. The Justice stated:
Offences of mens rea include either a subjective or objective fault. The latter is described where the defendant failed to meet a standard of care of a reasonable person in the circumstances, regardless of the defendant's state of mind.
Objective mens rea includes areas of negligence and wilful blindness. Both describe circumstances where a person who has become aware of the need for some inquiry declines to make it because he/she does not want to know the truth. A determination of wilful blindness requires more than simply being negligent in failing to make inquiries that a reasonable person would have made.
[48] Does the evidence in this case support a conclusion that the defendant failed to meet the standard of care of a reasonable person, was negligent or was wilfully blind to the violations?
[49] A number of the fire code violations dealt with record-keeping and maintenance of the portable extinguishers, and yet no inquiry was made by the inspectors as to the job duties at the resort, and who made decisions about maintenance issues. No information was provided to the court about how the information about fire code issues would be transmitted to Mr. Krolyk as an officer of the corporation, and members of the board or shareholders.
[50] There was no evidence tendered that Mr. Krolyk knew of the violations prior to the inspection reports being served on him. Can it be said that after he became aware of the violations, that he declined to inquire or address the deficiencies and preferred to be wilfully blind? His willingness to meet with Officer Lundy, his explanation of the delay in responding and his letter of compliance which demonstrates he was already taking action, cannot be said to support a conclusion that he turned away from the issues raised by the Office of the Fire Marshall.
[51] It is clear from Exhibit #10 that Mr. Krolyk intended to comply with the requirements of the Fire Marshall's office. It is also appropriate that they were going to work with him to correct the deficiencies in the property.
[52] An officer of a corporation who has become aware of the fire code violations through the work of the Fire Marshall's office and wants to work to correct them, and in fact indicates that he will, at his own suggestion, close the premises until the work is done, does not have the culpable knowledge for a conviction under this section. This situation contrasts with that found in Stratford (City of) v. 1353837 Ontario Inc., 2007 ONCJ 30. In that case, the corporation refused to comply with the inspection orders, but did not appeal them.
[53] It is unfortunate that after the letter was sent by Mr. Krolyk to the Office of the Fire Marshall, there was no communication from them. The only communication came from the Electrical Safety Authority. Their correspondence required compliance in a few short weeks over Christmas, and a threat to disconnect hydro to the entire property which included other buildings. This was a contradiction to the cooperative approach of the Fire Marshall's office. It was unreasonable to expect that services in a remote part of the province at a remote location would occur in such a short time.
[54] For these reasons I find that the prosecution has failed to prove the elements of these offences under s.28(5) of the FPPA, namely proof beyond a reasonable doubt of the requisite knowledge by the officer of the corporation, and a finding of not guilty will be entered regarding Mr. Krolyk and the charges will be dismissed.
Released: January 6, 2015
Signed: Justice of the Peace D.J. MacKinnon