Ontario Superior Court of Justice – Divisional Court

Oshawa (City) v. Rayplex Ltd.

Date: 2006-09-14

David J. Potts, for the appellants;

No one appearing for the respondent.

(75903-05)

Nature of Proceeding

[1] Meehan, J.: The City of Oshawa et al. (the appellants) appeal from a decision of the Fire Safety Commission, dated April 26, 2005. The Commission held that the appellants' appeal from a decision of an Ontario Fire Marshall Delegate was moot, as the work outlined in the inspection order that was the subject of the proceedings had been completed.

[2] The appellants seek an order setting aside the order of the Commission, making an alteration to the original order and confirming the original order as altered.

Court's Jurisdiction

[3] The Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, sets out the jurisdiction of the Divisional Court in this matter at s. 27:

"(1) Any party to the hearing before the Fire Safety Commission under s. 26 may appeal from the decision of the Commission to the Divisional Court in accordance with the rules of court on any question that is not a question of fact alone.

"(3) The judge who hears an appeal under this section may,

(a) Refer the matter back to the Commission for reconsideration by the Commission;

(b) Confirm or alter the decision of the Commission; or

(c) Make such other order as he or she sees fit, including an order that the Fire Marshal or an inspector do any act he or she is authorized to do under the Act. 1997, c. 4, s. 27."

[4] Upon the evidence before us the work required under the order was not completed and approved by an engineer at the time of the appeal before the Commission.

Standard of Review

[5] The standard of review upon the approach set out in Dr. Q., Re, 2003 SCC 19, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, indicates that this is an appeal. The tribunal has a high level of expertise, although apparently this is a first appeal of this nature.

[6] The legislation deals with issues of public protection and safety. The question at issue with the Commission appears to be a legal question. The same is submitted in regard to the decision of the Fire Marshal Delegate. On these legal questions, the standard to be applied is correctness.

[7] On September 26, 2004, Glenn Green, an Assistant to the Fire Marshal for the City of Oshawa, made an inspection order with respect to an industrial building at 341 Durham Court in Oshawa. The order stated that the premises lacked the required safety features for the use and storage of flammable and combustible substances, and required that all safety measures required by Part 4 of the Ontario Fire Code, O. Reg. 388/97, be implemented before October 8, 2004. The order was made pursuant to s. 21(1)(f), (g) of the Fire Protection and Prevention Act (FPPA).

[8] The respondent, who is the owner of the property in question, appealed to the Office of the Fire Marshal for an extension of time to comply with the order, not disputing its overall validity.

[9] The review decision of the Fire Marshal Delegate rescinded the order, on the basis that prosecution by the Fire Department and not the issuance of inspection orders is the mechanism to be used in enforcing "prescriptive non-discretionary requirements of the Fire Code". The Delegate confirmed that the respondent was in breach of the requirements and that all other necessary preconditions for the issuance of an inspection order had been met.

[10] The appellants claim that the Delegate's decision was based on the Guidelines issued by the Ontario Fire Marshal, which they claim are in conflict with the legislation.

Decision of Fire Safety Commission

[11] The Commission discussed the decision of the Fire Marshal Delegate, noting that the order in question was rescinded because the enforcement of Fire Code compliance is a responsibility of the fire department.

[12] The Commission held the appeal to be moot on the basis that the work in the original order had been completed. In their further comments, the Commission appears to support the decision of the Fire Marshal Delegate on the issue of the fire department's jurisdiction to enforce Fire Code compliance.

The Law

[13] Mr. Justice Sopinka defined mootness as follows in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; [1989] 3 W.W.R. 97; 92 N.R. 110; 75 Sask.R. 82; 33 C.P.C.(2d) 105; 47 C.C.C.(3d) 1; 57 D.L.R.(4th) 231; 38 C.R.R. 232. At p. 353 he said:

"The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter."

[14] Mr. Justice Lambert in giving judgment for the court in Cowling v. Brown (1990), 1990 777 (BC CA), 48 B.C.L.R.(2d) 63; 71 D.L.R.(4th) 713 (C.A.), referred to that passage and said at pp. 66 and 67:

"Even if a matter is moot within that general description, there is a power in the court to exercise its discretion in favour of hearing and deciding the appeal. The general rule is that if the matter is moot the court should not deal with it. The exceptions arise in special cases. An example is the case where rights arise and are terminated by the efflux ion of time in a brief period, and if the court does not agree to hear a moot case in those circumstances similar rights in the future will never be adjudicated upon.

"In the Borowski case Mr. Justice Sopinka talks about the basis for the exercise of the discretion to hear an appeal that is moot. He talks about three points that affect the decision of policy and practice."

[15] It is our view that the Commission committed a legal error by failing to deal with issues raised before it for an incorrect legal view of mootness and by failing to recognize the important public issues.

The Decision of the Fire Marshal Delegate

[16] When the decision of the Fire Marshal delegate is viewed in relation to the issues raised by the then appellant company, it is difficult to find an evidentiary basis for the decision.

[17] The reasons seem to emphasize the safety issues raised initially by the Fire Inspector. She as well indicates in a "note to Fire Department 'That you may have to prosecute'". It is unlikely that the involvement of the court process would deal with the safety issue as quickly as the original orders.

[18] There was ample evidence for the issuance of the orders. There was legal authority for the orders under s. 21(1)(g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, to remedy any contravention of the Fire Code. The issue before her was only whether an extension of time should be granted for rectification. Her decision was patently unreasonable, because her decision does not deal with the issue raised by the appellant and purports to strike down orders, the validity of which was raised by no one.

[19] The appeal from the decision of the Commission is allowed and the appeal from the decision is allowed as well. No one opposing, as requested, the Inspection Order issued altered by substituting an inspection date of August 11, 2004 and that said Inspection Order as altered is confirmed.

Appeal allowed.