CITATION: Casey’s Propane v. Technical Standards and Safety Authority, 2024 ONSC 2457
DIVISIONAL COURT FILE NO.: DC-23-00001385-0000
DATE: 20240430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Sutherland, and O’Brien JJ
BETWEEN:
Casey’s Propane Inc. and Daniel Vollering
Appellants
– and –
Technical Standards and Safety Authority
Respondent
G. Petch and S. Fleming, for the Appellants
R. Bharati and B. Osler, for the Respondent
HEARD: April 18, 2024 by video conference in Oshawa
O’BRIEN J.
REASONS FOR DECISION
Overview
[1] The issues in this case arise from an inspector’s orders following a carbon monoxide poisoning incident in a home. After the incident, an inspector of the respondent, Technical Standards and Safety Authority, which regulates fuel burning appliances and fuel distributors in Ontario, made twelve orders against the appellants, Casey’s Propane Inc. and Daniel Vollering. Casey’s is a registered propane distributor and had a contract to supply propane to the home. Mr. Vollering is a Casey’s employee. He completed two inspections[^1] of the propane system and connected appliances at the home.
[2] The appellants appealed the inspectors’ orders to a director appointed under the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16 (the Act). In his decision dated May 10, 2023, the director partially affirmed three of the inspectors’ orders. The director rescinded the other nine orders.
[3] The director concluded the proximate cause of the incident was that a condensate drain hose was disconnected from the propane boiler, which allowed the products of combustion to enter the living space. He also found the failure to convert the boiler for use with propane from natural gas would likely have contributed to increased carbon monoxide production. Of the twelve orders, the director only affirmed part of two orders pertaining to Mr. Vollering -- for failing to identify that the boiler was not converted to propane – and part of one order pertaining to Casey’s. The order against Casey’s was for failing to ensure its employees complied with applicable regulatory provision, again only relating to the boiler not being converted for propane use.
[4] The appellants appeal the director’s decision to this court. Their primary arguments are as follows:
The director erred in affirming the orders based on insufficient evidence caused by an inadequate investigation;
The director breached procedural fairness by holding a hearing in writing; and
The director breached procedural fairness by failing to order further production of documents.
[5] As further detailed below, I reject these submissions. The director’s role was to weigh the evidence before him. Any inadequacy in the investigation meant the evidence before him was less compelling and resulted in the director only affirming parts of three out of the twelve orders. The appellants have not shown he erred in his weighing of the evidence. Further, the appellants were not entitled to the requested high degree of procedural fairness. The in-writing hearing met the director’s procedural obligations and the appellants have not demonstrated any unfairness caused by the failure to produce documents. For the following reasons, the appeal is dismissed.
Motion for Fresh Evidence
[6] The appellants filed a motion seeking to adduce fresh evidence on appeal. The fresh evidence consisted of an affidavit of Stephanie Fleming, counsel for the appellants, attaching correspondence between counsel. At the outset of the hearing, respondent consented to the admission of the evidence. It was therefore admitted and considered on the appeal.
Jurisdiction and Standard of Review
[7] The appellants appeal to this court under s. 11 of the Act.[^2] The appellate standard of review is correctness for questions of law and palpable and overriding error for questions of fact. For questions of mixed fact and law, extricable legal questions are reviewable on a correctness standard. Otherwise, questions of mixed fact and law will not be overturned absent a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
Did the Director err in affirming the orders based on insufficient evidence?
[8] The appellants submit the director erred by affirming the orders when he had insufficient reliable and persuasive evidence before him. In the appellants’ submission, the inspector and director had an obligation to “fully investigate the alleged offences” before confirming the orders.
[9] I disagree. The question before the Director was whether to uphold the inspector’s orders. Paragraph 21(1(a)) of the Act authorizes an inspector to make an order against a person the inspector believes to be a “contravener” as defined in the provision. It also authorizes an order against the contravener’s supervisor and/or employer. It provides:
21(1) If an inspector finds that any provision of this Act, the regulations, a Minister’s order or an alternate rule is being contravened, or that a thing under this Act is unsafe or is not being operated or used in accordance with the authorization relating to it, the inspector may,
(a) serve the person he or she believes to be the contravener or that person’s supervisor or employer, or both, with an order in writing directing compliance with the provision or authorization and may require that the terms of the order be carried out forthwith or within such other time specified in the order.
[10] The question before the director therefore was whether the inspector had established contraventions and justified his belief that the appellants were contraveners. The appellants acknowledge the director correctly stated the standard of proof, which was on a balance of probabilities. He further adverted to the need for reliable and persuasive evidence before making adverse findings.
[11] The appellants misapprehend the statutory scheme in suggesting the inspector and director were required to use the full statutory investigative powers before the director could reach his conclusions.
[12] First, the director’s role is to assess the evidence on an appeal of the inspector’s order. Once the inspector made his orders, the appellants were entitled to appeal them to a director who, under s. 22(3), is required to hold a hearing. Under s. 22(4), the director is authorized to substitute his or her findings for that of the inspector, or to revoke or affirm the inspector’s orders. Pursuant to s. 22(9), the director can require the attendance of a person for examination. I address below the appellants’ contention that the director breached procedural fairness by holding an in-writing hearing and not requiring examinations in this case. Overall, the director’s primary role is to assess the evidence rather than to direct the investigation.
[13] Second, this was an administrative inspection under the Act and not an investigation to determine criminal or quasi-criminal liability. The Act includes provisions defining and providing penalties for “offences”: s. 37. It also includes provisions that empower the Director to suspend or revoke an authorization. An authorization is needed under the Act to carry out any activity regulated by the statutory scheme: s. 6. The proceedings in this case did not involve an investigation of a potential offence, nor did they raise any prospect of the appellants losing their authorization. An inspector’s order under s. 21(1)(a) may only direct compliance with the relevant provision or authorization.
[14] Here, the orders directed the appellants to comply with the relevant provision in the regulations under the Act governing gaseous fuels (Ont. Reg. 212/01) and propane storage and handling (Ont. Reg. 211/01) but did not result in any other consequence. Their primary purpose was for documentation and data collection. As the respondent describes it in its factum, “[t]he inspection and supporting activities were administrative actions conducted for the regulatory purpose of determining the root cause of the carbon monoxide incident.” The respondent did not have an obligation to activate the full statutory investigative powers for this purpose.
[15] Third and in any event, any deficiencies in the inspection meant the inspector had less compelling evidence to justify his orders. Indeed, the director rescinded most of the inspector’s orders, in some cases because of insufficient evidence. For example, order 2-4 stated that Mr. Vollering had installed a propane cylinder that was not located on a level base and instead was placed on the frozen ground. Order 2-5 stated Mr. Vollering had failed to ensure the installation of the propane cylinder in compliance with the Propane and Storage Handling Code. The director rescinded both these orders because the appellants had submitted evidence to show they were not justified. Here, the deficiencies in the inspection were to the appellants’ benefit.
[16] I also reject the appellants’ submission that the director failed to sufficiently probe the evidence before him to ensure it was credible. The director carefully reviewed the appellants’ arguments, including their factual contentions, and explained his conclusions. For example, he considered the appellants’ argument that someone may have written on a pressure test tag that the boiler was converted, which Mr. Vollering relied on, but was removed by the time of the incident. The director concluded at para. 75 of his decision that even if such a pressure tag existed, he could not infer it contained information stating the appliance had been converted to propane. This and his other factual conclusions were open to him on the record before him. The appellants have not identified any palpable and overriding error that would justify this court interfering in the director’s findings.
[17] The appellants raise a further submission about the investigation that may more properly be characterized as a concern about procedural fairness. They submit it was inadequate for the inspector to fail to interview Mr. Vollering. I discuss procedural fairness further below. Regarding Mr. Vollering, there was no procedural unfairness since he made extensive submissions to the director, including swearing two affidavits totaling 30 pages of evidence, not including exhibits. The director then rescinded most of the orders made against him.
[18] Overall, the appellants have not demonstrated the respondent was required to conduct a more thorough investigation nor that the director erred in his weighing of the evidence. This ground of appeal fails.
Did the Director breach procedural fairness by not holding an in-person hearing?
[19] The appellants submit the director breached procedural fairness by holding a written hearing, which meant they did not have the opportunity to cross-examine witnesses.
[20] I do not find any unfairness in the procedure the director followed. The duty of fairness is flexible and may vary based on all the circumstances. Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 lists the following factors to consider in assessing the requisite degree of procedural fairness in a particular case: (a) the nature of the decision; (b) the statutory scheme; (c) the importance of the decision; (d) the legitimate expectations of the person challenging the decision; and (e) the choice of procedure made by the decision-maker.
[21] The first three factors – the nature of the decision, the statutory scheme, and the importance of the decision -- do not point to a high level of procedural fairness in this case. As set out above, the statutory scheme includes stronger investigative powers to be used for proceedings with greater consequences to the affected person. Here, the proceeding was for an administrative, documentary purpose with comparatively low consequences to the appellants. The appellants were not at risk of quasi-criminal sanctions nor of having their authorization revoked.
[22] The statute also does not require an in-person hearing. The relevant provision for the hearing in this case, s. 22(4), requires the director to hold a hearing after receiving an appeal from an inspector’s order, but does not prescribe the nature of the hearing.
[23] Given that the statutory scheme does not specify an in-person hearing and considering the administrative nature of the proceeding, the appellants did not have a legitimate expectation of an in-person hearing. In addition, the appellants failed to object to the in-writing hearing in a timely way. The director directly advised the parties the hearing would be in writing by a notice of written hearing on March 26, 2021. The notice stated any party could object to the hearing proceeding in-writing within 15 days. The appellants included a request for an in-person hearing in supplementary submissions over a month after the expiry of the 15 days.
[24] In any event, the appellants could not have had a reasonable expectation of a full in-person hearing. The hearing took place in the spring of 2021, which was during the COVID-19 pandemic, when multi-party virtual hearings were not yet in widespread use. The appellants seemed to advert to this in their request, when they requested that the hearing “not be in writing but orally and in person, if possible.” (emphasis added) Further, given the pandemic and the administrative nature of the proceeding, it is appropriate for the court to defer to the director’s choice of procedure.
[25] The appellants had a full opportunity to present their case in-writing. They filed three sets of submissions (initial, supplementary and reply) including five affidavits. Although in its submissions to the director, the respondent offered to make the inspector available for a recorded examination once the pandemic stay at home order was lifted, the director was not required to order that such an examination take place. I reject the appellants’ contention that the inspector’s credibility was in issue. The appellants’ primary contention was not that the director ought to have disbelieved the inspector, but that the inspector should have conducted further investigation that may have uncovered facts supporting the appellants’ theories. The director was able to fairly address this position on the written record and, as set out above, in many cases concluded the inspector’s orders should be rescinded. Overall, I dismiss the argument that the in-writing hearing was procedurally unfair.
Did the Director breach procedural fairness by failing to require the respondent to produce certain documents?
[26] The appellants also submit the director breached procedural fairness by not requiring the respondent to produce certain documents. They point for example, to the inspector’s reference in his notes to a “logged report with the OPP,” which they did not receive. They also complain that the inspector’s notes were redacted.
[27] While the appellants made general requests to the director for further investigation, they have not identified any specific production request made to the respondent or raised with the director that was not met.
[28] Prior to the parties filing their submissions, the respondent produced the inspection reports and the inspector’s typed notes to the appellants. When the appellants received the inspector’s notes, they sent numerous follow-up questions and requests to respondent’s counsel, all of which were answered.
[29] For the in-writing hearing, the appellants had an opportunity to and did file submissions responding to the respondent’s submissions, including the inspector’s affidavit. The appellants have not shown that they raised any specific production request after receiving the respondent’s material, nor that they requested an adjournment to address any production issues. Further, they failed to raise these issues with the director, and ought to have done so. In any event, the appellants have not provided any submissions substantiating why the documents or information they now identify would have been necessary for a fair determination of the appeal before the director. This ground of appeal therefore is without merit.
Disposition
[30] For the foregoing reasons, the appeal is dismissed. The respondent advised it is not seeking costs and therefore no costs are ordered.
_______________________________ O’Brien, J
I agree _______________________________
Matheson, J
I agree _______________________________
Sutherland J.
Released: April 30, 2024
CITATION: Casey’s Propane v. Technical Standards and Safety Authority, 2024 ONSC 2457
DIVISIONAL COURT FILE NO.: DC-23-00001385-0000
DATE: 20240430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Sutherland, and O’Brien JJ
BETWEEN:
Casey’s Propane Inc. and Daniel Vollering
Appellants
– and –
Technical Standards and Safety Authority
Respondent
REASONS FOR JUDGMENT
O’BRIEN, J
Released: April 30, 2024
[^1]: As required by O. Reg. 211/01, s. 9. [^2]: As the respondent notes, although s. 22(5) of the Act states that a person affected by an inspector’s order may appeal to this court under s. 11, the text of s. 11 only applies to appeals from decisions affecting an authorization, which is not at issue here. Section 12 provides for an appeal by a person who “deems himself or herself aggrieved” by a decision of a director under the Act and would more properly apply. Regardless, there was no dispute that this matter was properly before this court as an appeal under the Act.