CITATION: Fitchett v. The Corporation of the Town of Gravenhurst, 2023 ONSC 1432
DIVISIONAL COURT FILE NO.: 21-1269-00JR
DATE: 20230214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, O’Brien and Hooper JJ
BETWEEN:
CLIFFORD GEORGE FITCHETT
Applicant
– and –
THE CORPORATION OF THE TOWN OF GRAVENHURST, TODD CLAPP, Deputy Fire Chief, and ROSS JEFFERY, Treasurer
Respondents
COUNSEL:
S. Rayman and L. Cummings, for the Applicant
M. Hodgson for the Respondents
HEARD: by videoconference in Oshawa on January 25, 2023
O’BRIEN J.
REASONS FOR DECISION
Overview
[1] On February 18, 2020, the Applicant, Mr. Fitchett, started a fire in a gravel pit on his rural property to dispose of debris from a demolished house. The fire department for the Respondent Corporation of the Town of Gravenhurst (“Town”) was dispatched to the property twice in response to calls that open-air burning was taking place on the property. After the first call, fire fighters attended to extinguish the fire. They received another call a few hours later and returned to find a new fire at the same location, which they again extinguished.
[2] Mr. Fitchett was charged under the Provincial Offences Act, R.S.O. 1990, c. P.33 for contravening the Town’s Burning Control By-Law[^1] (the “Burning By-Law”). He pleaded guilty to the charges against him and paid the set fine. The Deputy Fire Chief, the Respondent Todd Clapp, also determined that an invoice should be issued to Mr. Fitchett under the Town’s Fees and Service Charges By-Law[^2] (the “Fees By-Law”) to recover the costs of the fire department responses. In a letter sent the day after the fire, Mr. Clapp informed Mr. Fitchett that the fire crews’ investigations determined there had been a violation of the Burning By-Law and he therefore would receive an invoice in the coming weeks. The letter enclosed further information including answers to FAQs in a “Fact Sheet.” Approximately two weeks later, in a letter dated March 2, 2020, the Treasurer of the Town invoiced Mr. Fitchett in the amount of $9,445.44. Mr. Fitchett seeks judicial review in this Court of the decision to issue the invoice.
[3] Mr. Fitchett submits that the Respondents breached procedural fairness in the process of determining that he violated the Burning By-law and issuing the invoice to him. He claims that his guilty plea under the Provincial Offences Act was uninformed and did not constitute a waiver of his procedural rights, as he was only fined $250 and did not realize the collateral consequence would be an invoice of close to $10,000. In any event, in his submission, the Deputy Fire Chief decided to issue the invoice before he pleaded guilty and otherwise provided an insufficient process for him to contest the invoice. Mr. Fitchett further submits that the decision to issue the invoice was unreasonable in that neither the finding of a By-Law violation nor the calculations for the quantum invoiced were transparent.
[4] For the reasons that follow, the application is dismissed.
Standard of Review
[5] At the hearing of this application, it was agreed that the standard of review of the Respondents’ decision was reasonableness. With respect to procedural fairness, the question is whether procedural fairness was accorded.
No Violation of Procedural Fairness
[6] The Respondents do not rely on Mr. Fitchett’s guilty plea as a waiver of procedural fairness rights. Instead, in their submission, which I accept, Mr. Fitchett received a procedurally fair process with respect to the determination that he had violated the Burning By-Law and the subsequent issuance of the invoice.
[7] Mr. Fitchett was not owed a high level of procedural fairness in the circumstances of this case. As further discussed below, the incident commanders who attended the fires reached the initial determinations that he had violated the By-Law based on first-hand information. They advised him of the violations at their attendance on the first fire and also gave him an opportunity to extinguish the fire. The Deputy Fire Chief then confirmed their findings. The Respondents offered Mr. Fitchett the opportunity to speak with the Deputy Fire Chief to present his position that the invoice should be reconsidered, with the Deputy Fire Chief ultimately speaking with Mr. Fitchett about the invoice. Together, these steps were sufficient to meet the requirements of procedural fairness in all the circumstances.
A. Degree of Procedural Fairness Required
[8] The Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 states that the degree of procedural fairness required of any administrative decision maker is to be determined by reference to all the circumstances of that decision. These include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of the procedure made by the administrative decision maker itself: at paras. 21, 23-27. Taken as a whole, the circumstances of this case did not lead to high level of procedural fairness owed.
[9] Nature of decision being made and process followed in making it: Mr. Fitchett characterizes the decision as leading to a quasi-criminal conclusion. He also submits that the amount of the invoice is substantial and attracts significant consequences. Specifically, he notes that if the invoice remains unpaid, the municipality is entitled to recover it through a tax sale of his property.
[10] I disagree that the decision to issue the invoice had quasi-criminal consequences. Mr. Fitchett’s conviction for a provincial offence under the Burning By-Law, as a result of his guilty plea, occurred under a separate process. The Respondents did not rely on the guilty plea or conviction to conclude an invoice should be issued. Instead, they separately determined that the Burning By-Law was violated for the purpose of issuing the invoice. In other words, the determination at issue here was simply a monetary matter.
[11] Further, the process for deciding to issue this type of invoice is far from quasi-judicial. Allegations of a Burning By-Law violation typically arise in response to an emergency call. The decision as to whether a violation has occurred is then based on information collected from firsthand observations at the fire. Specifically, the incident commander who attends on the scene of the fire takes photographs and makes notations of any violations. The Deputy Fire Chief then promptly reviews the information and makes a decision whether to confirm any violations.
[12] The property owner also has the opportunity to become immediately involved at the scene of the fire to mitigate any impacts. Subsection 446(1) of the Municipal Act, 2001, S.O. 2001 c. 25 provides that where the municipality under a by-law can direct a person to do a “matter or thing,” the municipality may also provide that in default of the person doing it, the matter or thing shall be done at the person’s expense. In the context of an attendance at a fire, this means that the first step will be for the fire fighters to direct the property owner to cease the activity and extinguish the fire. If the owner does not extinguish the fire, the fire fighters will do so and the owner will be responsible for the related fees.
[13] Subsections 9(2) to 9(4) of the Burning By-Law establish this sequence of events mores specifically. They provide:
9(2) Open air fires in contravention of this by-law are not approved by the Chief Fire Official and shall be extinguished.
(3) Where the person does not comply with the directive to extinguish the open air fire, the Chief Fire Official, his firefighters, fire trucks or any other fire equipment may enter upon the land where the fire is located to extinguish the fire.
(4) Upon the fire department attending to extinguish the open fire, whether it since has been extinguished or not, the owner will be responsible to pay fees as established in the Fees and Services Charge By-law.
[14] In short, the decision-making process here includes the notation of the alleged violation(s) as the incident unfolds and the immediate opportunity for the property owner to mitigate the damages.
[15] Nature of statutory scheme: The statutory scheme reflects the immediacy of the decision-making process with respect to the Burning By-Law violation, as outlined above. With respect to the issuance of the invoice, it also provides the municipality with broad powers to charge an individual for a service done on their behalf. For example, s. 391(1) of the Municipal Act provides:
391(1) Without limiting sections 9, 10 and 11, those sections authorize a municipality to impose fees or charges on persons,
(a) For services or activities provided or done by or on behalf of it;
(b) For costs payable by it for services or activities provided or done by or on behalf of any other municipality or any local board; and
(c) For the use of its property including property under its control.
[16] Subsection 391(4) confirms that the municipality may impose a charge whether or not the service was mandatory:
391(4) A fee or charge may be imposed whether or not it is mandatory for the municipality or local board imposing the fee or charge to provide or do the service or activity, pay the costs or allow the use of its property.
[17] Further, the Fees By-Law makes it mandatory to invoice the property owner once it is determined the Burning By-Law was violated. It provides that the fees set out in Schedule 1 to the Fees By-Law “shall be paid for the services and activities listed.” Schedule 1 includes a fee for the fire department’s response to a violation of the Burning By-Law. The description reads:
When fire department responds as a result of a violation of the provisions of the Burning Control By-law. Property owner invoiced.
[18] The Fees By-Law therefore does not afford the Town any discretion regarding whether to issue an invoice in these circumstances.
[19] Importance of decision – The decision that Mr. Fitchett violated the By-Law resulted in an invoice to him of close to $10,000. This is an amount that would be significant for many people. However, the decision does not otherwise affect Mr. Fitchett’s rights. Further, counsel submitted that Mr. Fitchett pursued this application judicial review as a matter of “principle;” he did not suggest the amount of the invoice would have unusually severe consequences for Mr. Fitchett.
[20] Legitimate expectations: Mr. Fitchett should not have expected a more extensive process than he received. As indicated, the legislation provides the municipality with broad discretion to invoice individuals. It has set out the terms for doing so in the Fees By-Law. Pursuant to that by-law, once it has been determined that the Burning By-Law was violated, the Town has no discretion with respect to issuing the invoice.
[21] The only other source of Mr. Fitchett’s legitimate expectations would have been the Fact Sheet that was sent to him the day after the fires. As further described below, the Fact Sheet invited Mr. Fitchett to follow up with the Deputy Fire Chief to ask questions. While this process was followed, and Mr. Fitchett, ultimately spoke with the Deputy Fire Chief, there was no suggestion in the Fact Sheet, by-laws or legislation that a more formal process would be available.
[22] Choices made by the administrative decision-maker: Under this factor, Baker states that weight must be given to the choice of procedures made by the administrative decision-maker itself and its institutional constraints. In this case, the Respondents provided a comparatively informal process to dispute the invoice, but one which provided Mr. Fitchett with direct access to the decision-maker, the Deputy Fire Chief.
B. Application of Principles to this Case
[23] Taking all these factors into account, the process provided to the Applicant with respect to the issuance of the invoice was procedurally fair. Mr. Fitchett’s first opportunity to receive information about and participate in the process occurred at the scene of the fire. The incident commander provided him with a copy of the Burning By-Law and verbally advised him of the primary concerns about the fire. Specifically, the incident commander told Mr. Fitchett that the fire had to be extinguished due to its size and the nature of the material in the fire. The incident commander also asked Mr. Fitchett to put out the fire, but he refused to do so. This was Mr. Fitchett’s first opportunity to participate in the process. When fire fighters returned to the scene a second time because the fire had been reignited, the incident commander’s notes record that there was no one present at the fire.
[24] After the fires, when the decision was made that there had been a By-Law violation, Mr. Fitchett was given the opportunity to follow up with questions or concerns. Specifically, Mr. Clapp, wrote to Mr. Fitchett the following day, on February 19, 2020, to advise that, upon investigation, the fires were determined to be a violation the By-Law. He stated that an invoice would be forwarded in the coming weeks to recover the costs of the fires. In the letter, Mr. Clapp also provided an avenue for Mr. Fitchett to follow up with respect to the invoice.
[25] The letter enclosed the Fact Sheet, which provided information about the policy to charge property owners for By-Law violations and on how the charges are calculated. The document also included a list of FAQs.
[26] The cover letter and Fact Sheet repeatedly invited the recipient to contact the Deputy Fire Chief with questions about the invoice. First, the Deputy Fire Chief concluded the cover letter by stating “[s]hould you have any questions about this fee for service, please feel free to contact the undersigned.” The Fact Sheet also included the following question and answer:
Q. What if I dispute the costs associated with the invoice?
A. Fee disputes may be discussed with the Deputy Fire Chief who is responsible for emergency operations. Please call 705-687-3414.
[27] At the bottom of the Fact Sheet, in large, bold font, is written:
We invite you to call us if you have other questions about the Fire Department open air burning cost recovery program – please connect with us by calling 705-687-3414.
[28] On March 2, 2020, the Town Treasurer wrote to Mr. Fitchett enclosing the invoice for $9,446.44. In the cover letter, he wrote that questions regarding the invoice could be directed to the same phone number as provided above.
[29] Mr. Fitchett did not take up the opportunity to contact the Deputy Fire Chief until April 13, 2020, when, in a handwritten letter, he set out why he considered the fires to be safe and controlled. He also questioned how the amount of the invoice could be justified.
[30] There is conflicting evidence as to whether Mr. Clapp called Mr. Fitchett in response to the letter. Regardless, as described below, the two ultimately did have a discussion in August. Mr. Fitchett wrote a second letter dated August 20, 2020, enclosing his April letter. On August 26, 2020, Mr. Clapp sent a responding letter indicating that he was writing following several attempts to contact Mr. Fitchett by telephone. He reiterated that the fires on Mr. Fitchett’s property required the attendance of several fire department apparatus and numerous firefighters over several hours. He provided the hourly billable rate and stated that the rates were endorsed by the Town Council and non-negotiable.
[31] On August 31, 2020, Mr. Fitchett also spoke with Mr. Clapp on the phone. Mr. Fitchett disputed the cost recovery process and sought information as to how the fees were calculated. Mr. Clapp advised that in view of the information from the incident commanders who had attended the incident, the Town would be seeking to recover the full amount invoiced.
[32] Mr. Fitchett deposes the Mr. Clapp was “impatient and abrupt” during this phone call. He claims Mr. Clapp told him the decision was irreversible and that he was under no obligation to provide information concerning how the invoice was calculated.
[33] I am not able to determine the exact content or tone of the call. What is clear from the record, however, is that Mr. Clapp received Mr. Fitchett’s letter, wrote back to him, including with some information regarding how the invoice was calculated, and participated in a phone call with him.
[34] Mr. Clapp’s evidence is also that in a case where a property owner provides compelling evidence that an invoice was issued in error, he would bring this evidence to the attention of the Fire Chief for discussion, with the possible outcome of having the invoice rescinded. However, in this case, after speaking with Mr. Fitchett, he determined through consultation with the Fire Chief that cost recovery was warranted and the invoice would not be rescinded.
[35] Mr. Fitchett points to an internal email from Mr. Clapp sent at 9:01 a.m. on February 19, 2020, the morning after the fires, in which Mr. Clapp stated that the fire department would be invoicing Mr. Fitchett to recover response costs. Mr. Fitchett submits this email is evidence that a decision to invoice him was made prior to his guilty plea. However, the Respondents do not dispute this. They agree the process was separate and the decision to invoice was made prior to the completion of the quasi-criminal process. Their position instead is that the decision was made on the information collected by the incident commanders and that the process they undertook met their obligation to provide procedural fairness.
[36] I agree. While the decision to invoice Mr. Fitchett was made shortly after the fires, Mr. Fitchett was in attendance at the first fire and had the opportunity to extinguish the fire or provide input while there. Further, he was invited to contact the Respondents after the decision to issue the invoice was made. He provided written submissions and had a discussion with the Deputy Fire Chief, after which the Respondents decided not to rescind the invoice. Given the nature of the decision, which was made promptly based on first-hand observations in response to an emergency call, the monetary interest at stake, and the statutory scheme, the process met the Respondents’ duty of procedural fairness.
Decision Was Reasonable
[37] The Applicant also takes issue with the substance of the decision to invoice him. He submits the decision was not justified, intelligible and transparent, as it was not clear how the Respondents reached the conclusion that he violated the By-Law. In his submission, there also was insufficient information to explain how the quantum of the invoice was calculated.
[38] I find the Respondents’ decision to be reasonable. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 instructs at para. 90 that, “what is reasonable in a given situation will always depend on the legal and factual context of the particular decision under review.” Further, as set at para. 94, a reviewing court “must also read the administrative decision-maker’s reasons in light of the history and context of the proceeding in which they were rendered, including in some cases taking into account the evidence before the decision-maker.”
[39] In the circumstances of this case, which involved responses to an emergency call and a determination that there was a Burning By-Law violation, it is not expected that the Respondents would provide fulsome written reasons. However, the reasons for finding the violation of the Burning By-Law are justified, transparent and intelligible on the face of the record and were substantially communicated to Mr. Fitchett. The incident commander’s report from the first fire indicates that he specifically advised Mr. Fitchett that the fire had to be put out due to “its size and the items inside the fire.” The incident commander noted that in addition to large amounts of wood, the items in the fire included “drywall, insulation, decorations from Christmas, sheeting and other items.” The checklist and sketch he completed also indicate that the fire was larger than permitted and too close to a forested area.
[40] The incident commander at the second fire noted that “there was no one present at the fire.” He also wrote that there was “various debris” in the burn piles including drywall, cement blocks, insulation, plastic pipe and various metal objects such as electrical wiring, duct work and a kitchen sink.
[41] The Burning By-Law, which the first incident commander provided to Mr. Fitchett, prohibits, among other things, setting a fire: using materials other than Class A combustibles; unless attended by a responsible person until out; unless placed in a single pile of less than a prescribed size; and within five metres of any forest. Mr. Fitchett violated each of these provisions, with the most significant being the two emphasized to him on the first attendance: the fire was too big and included non-class A combustibles. The reasons for the finding that the By-Law was violated are evident from the record and were communicated to Mr. Fitchett. That portion of the decision was reasonable.
[42] Once it was determined that the Burning By-Law was violated, the Respondents had no discretion regarding the issuance of the invoice. However, they did provide information to Mr. Fitchett regarding the policy reasons behind issuing the invoices and how the invoice would be calculated. Specifically, the Fact Sheet explained that the policy to recover costs for violation of the Burning By-Law was “based on the premise that law-abiding citizens should not subsidize or pay for the fire suppression activities created by those who break the law.”
[43] The Fact Sheet further specified that “[n]ormally, at least two fire trucks are dispatched to this type of incident, and so these will be invoiced at the rate of $485.00 (2020 rate) per hour per truck, plus the costs of attending fire personnel (plus HST).” [Emphasis in original.]
[44] The time sheet submitted on February 19, 2020, in support of the invoice, which forms part of the record of proceeding in this case, documents fees (not including HST) for firefighter wages and apparatus response totaling $8,358.80. As an undertaking arising from cross-examination, the Respondents provided a more detailed calculation of the precise times the different units left the station, arrived on the scene, and returned to the station. The Respondents state that these calculations reveal Mr. Fitchett had been undercharged for the amount of time spent.
[45] While the Applicant challenges these calculations, it is not the role of this Court to re-perform mathematical calculations on detailed information. The question for us is whether the decision regarding the invoice as a whole was reasonable. Three fire trucks and 11 fire fighters responded to the first fire. Three fire trucks and 20 firefighters responded to the second call. Mr. Fitchett had the opportunity to mitigate these costs by extinguishing the first fire himself but refused to do so. Given that he was responsible for the cost of both the apparatus and the firefighters’ wages for these two attendances, the amount invoiced was justified and reasonable overall.
Collateral Attack and Abuse of Process
[46] The Respondents submit that Mr. Fitchett’s challenge to the finding that he violated the Burning By-Law is an impermissible collateral attack on his guilty plea and amounts to an abuse of process. In view of my conclusions above that the process provided to the Applicant was procedurally fair and that the Respondents’ decision was reasonable, I do not need to address this issue.
Disposition
[47] The application is dismissed. In accordance with the agreement between the parties, the Applicant shall pay costs of $20,000 plus HST to the Respondents.
O’Brien, J.
I agree _______________________________
Lococo, J.
I agree _______________________________
Hooper, J.
Released: February 14, 2023
CITATION: Fitchett v. Gravenhurst, 2023 ONSC 1432
DIVISIONAL COURT FILE NO.: 21-1269-00JR
DATE: 20230214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Hooper, and O’Brien JJ
BETWEEN:
CLIFFORD GEORGE FITCHETT
Applicant
– and –
THE CORPORATION OF THE TOWN OF GRAVENHURST, TODD CLAPP, Deputy Fire Chief, and ROSS JEFFERY, Treasurer
Respondents
REASONS FOR DECISION
O’BRIEN, J
Released: February 14, 2023
[^1]: Town of Gravenhurst, by-law No. 2005, Burning Control by-law (20 December 2005). [^2]: Town of Gravenhurst, by-law No. 2019-68, User Fees and Service by-law (15 October 2019).