ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-528533
DATE: 20150713
BETWEEN:
RICHARD GOEBEL
Applicant
– and –
CATHY ROBERTSON, ROMAN WOJNARSKI and THE CITY OF TORONTO and ATTORNEY GENERAL FOR ONTARIO
Respondents
Ken J. Berger for the Applicant
Mark Siboni, for the Respondents Cathy Robertson, Roman Wojnarski and the City of Toronto
Chris Badenoch, for the Respondent, Attorney General for Ontario
HEARD: June 26, 2015
FAIETA, j.
reasons FOR JUDGMENT
[1] The City of Toronto’s Fire Services Division received a complaint in January 2012 that the Applicant’s home was being occupied by a hoarder. Toronto Fire Services made numerous unsuccessful efforts to inspect the Applicant’s home in order to assess its fire safety. Finally, on May 7, 2015, Toronto Fire Services obtained a warrant issued by Justice of the Peace Hong under subsection 20(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”).
[2] The Applicant asks this Court to quash the warrant. However, the Notice of Application does not specify the basis for this Court’s authority to quash the warrant. At the hearing of this Application, the Applicant relied upon the following grounds: 1) this Court’s inherent jurisdiction; 2) Rule 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; 3) Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”).
[3] This Application raises two issues:
Should this Application be deemed to be an application for judicial review and heard by a single judge of the Superior Court?
Did the Justice of the Peace commit a reviewable error in issuing the warrant?
[4] For the reasons described below I have dismissed this Application. In my view, there were reasonable grounds for the issuance of the warrant.
[5] Further, at the outset of the hearing of this Application, I granted the Attorney General for Ontario’s motion to remove her as a party to this Application after the Applicant confirmed that he was not taking the position that section 20 of the FPPA violates the Canadian Charter of Rights and Freedoms.
FIRE PROTECTION AND PREVENTION ACT, 1997
[6] The objective of the FPPA is to promote fire prevention and public safety. To that end Part VI of the FPPA authorizes an inspector to enter on lands or premises for the purpose of assessing its fire safety. This inspection can be made without a warrant under section 19 of the FPPA or under the authority of a warrant issued by a justice of the peace under section 20 of the FPPA. Where appropriate, an administrative order requiring steps to be taken to address fire safety may be issued to the owner or occupier of the subject property under section 21 of the FPPA.
[7] The relevant provisions of Part VI of the FPPA are as follows:
Interpretation
For the purposes of this Part, fire safety includes the following:
Safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it.
Safety from the risk that the presence of unsafe levels of carbon monoxide on premises would seriously endanger the health and safety of any person. 2013, c. 14, s. 4.
Inspections
- (2) An inspector may, without a warrant, enter and inspect land and premises for the purposes of assessing fire safety. …
Powers during inspection
(6) An inspector conducting an inspection may,
(a) examine a document or other thing that is relevant to the inspection;
(b) demand the production for inspection of a document or other thing that is relevant to the inspection;
(c) remove any thing that is relevant to the inspection for review and examination and remove any document that is relevant to the inspection for review and copying;
(d) conduct tests, take and remove samples, take photographs and make videotapes and other images, electronic or otherwise, that are relevant to the inspection;
(e) in order to produce a document in readable form, use data storage, information processing or retrieval devices or systems that are normally used in the premises being inspected; and
(f) question a person on matters relevant to the inspection.
Warrant authorizing entry
- (1) A justice of the peace may issue a warrant authorizing an inspector named in the warrant to enter on lands or premises and exercise any of the powers referred to in subsection 19 (6) if the justice of the peace is satisfied on evidence under oath that there are reasonable grounds to believe that entry on the lands or premises is necessary to assess fire safety and,
(a) the inspector has been denied entry to the lands or premises or has been obstructed in exercising any other of those powers with respect to the lands or premises; or
(b) there are reasonable grounds to believe that the inspector will be denied entry to the lands or premises or obstructed in exercising any other of those powers with respect to the lands or premises. [emphasis added]
Execution and expiry of warrant
(2) A warrant issued under subsection (1) shall,
(a) specify the times, which may be at any time during the day or night, during which the warrant may be carried out; and
(b) state when the warrant expires.
Extension of time
(3) A justice of the peace may extend the date on which a warrant expires for such additional periods as the justice of the peace considers necessary. …
Inspection orders
- (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,
(a) to remove buildings or structures from the land or premises;
(b) to make structural and other repairs or alterations, including material alterations, to the buildings or structures;
(c) to remove combustible or explosive material or any thing that may constitute a fire hazard;
(d) to install and use specified equipment or devices as may be necessary to contain hazardous material on the land or premises and, in the event of a fire, to remove or transport the material;
(e) to discontinue the manufacturing, production or fabrication of any material, device or other thing that creates or poses an undue risk of fire or explosion;
(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.
BACKGROUND
[8] Captain Cathy Robertson of Toronto Fire Services provided the Justice of the Peace with an “Information to Obtain a Warrant” and her affidavit sworn May 7, 2015.
[9] The Information to Obtain a Warrant states that:
I have reasonable grounds to believe and do believe that,
It is necessary for the purpose of the administration of the Fire Protection and Prevention Act to enter upon the land and premises at 275 Lappin Avenue, Toronto, ON M5S 2H1.
And further say that my ground for so believing is:
See attached affidavit
Therefore I request that a warrant be issued to enter upon the said land and premises for the purposes set out in the attached affidavit, sworn the 7th day of May, 2015 for the said reasons.
[10] Captain Robertson’s affidavit states:
I, Cathy Robertson, of Toronto Fire Services, Toronto, in the Province of Ontario, am advised by Inspector Chuck Campbell and verily believe that the residence municipally known as 275 Lappin Ave is being occupied by a hoarder, the owner is Albert Goebel.
This building is a single family, 2 storey, townhouse/rowhouse. There are 5 townhouses/rowhouses in this block. The construction of this building is combustible.
Section 18 states “For the purposes of this Part, fire safety includes safety from the risk that a fire, if started would seriously endanger the health and safely of any person or the quality of the natural environment for any use that can be made of it.” 1997, c.4, s.18
Section 19 states: “An Inspector may, without a warrant, enter and inspect land and premises for the purposes of assessing fire safety.”
As outlined below, between January 20, 2012 and December 11, 2012, Inspector Chuck Campbell has repeatedly requested inspections, to ensure fire code compliance, however has been unsuccessful.
Toronto Fire Services believes the excessive amounts of combustible materials presents a serious risk to Mr. Goebel, to the occupants of the attached dwellings and to any responding emergency personnel, in the event of a fire emergency. The life safety requirements may be inadequate for the increased combustible load, and the Ontario Fire Code requires the following: a considerable amount of the combustibles, currently being stored, to be removed, the means of egress to be maintained and installation of a working smoke alarm on each level of the house.
Section 20 allows a Fire Prevention Officer who has been denied entry the authority to request a warrant for entry be issued by a Justice of the Peace for the purposes of conducting a fire safety inspection pursuant to s.19.
January 20, 2012 received complaint, attended address; knocks on door, no access; voice mail left for Mr. Goebel.
January 23, 2012 attended address, knocks on door, no access.
January 24, 2012 attended address, knocks on door, no access, business card left in door.
February 3 2012 attended address, knocks on door, no access.
June 7, 2012 entry letter mailed, inspection date set for June 22, 2012.
June 22, 2012 attended address, knocked on door, no access, business card left.
July 4, 2012 2nd entry letter sent, inspection date set for July 20, 2012. Letter hand delivered to 275 Lappin and sent via Canada Post.
July 20, 2012 attended address, knocked on door, no access.
September 12, 2012 3rd entry letter sent, inspection on September 28, 2012.
September 28, 2012 attended address, public health nurse on site, no access.
October 1, 2012 entry letter sent via registered mail, inspection set for October 24, 2012.
October 24, 2012 attended address, no access, registered letter not picked up.
December 11, 2012 attended address, no access.
April 29, 2014 Captain Cathy Robertson, Legal Section, sent registered letters to Mr. Goebel and Mr. Ken Berger (counsel for Mr. Goebel).
May 2, 2014 Mr. Berger picks up registered letter.
June 4, 2014 Captain Cathy Robertson calls Mr. Berger (counsel) and explains Toronto Fire Services requires entry into the premise to ensure there are no fire safety hazards. Mr. Berger advises he will speak to his client and advise.
June 4, 2014 Captain Cathy Robertson receives lengthy email from Mr. Berger (counsel). Mr. Berger states “Please make sure you provide advanced notice and an opportunity to contest any matter in court. That said, I will try to speak to him and it is best that you try to work with him, but it takes a lot of time to do so.”
June 18, 2014 Captain Cathy Robertson called Mr. Berger (counsel) and left a voice mail.
September 25, 2014 No response has ever been received from the voice mail that was left for Mr. Berger (counsel) on the 18th of June 2014.
I have reason to believe that the owner, Albert Goebel, will not grant Toronto Fire Services access to his residence on the 27th of May 2015. We will be using the assistance of Toronto Police Services and the use of force may be required to gain access to the building.
I make this affidavit in support of an Information to Obtain a Warrant to enter the lands and premises municipally known as 275 Lappin Ave, to conduct a fire safety inspection.
[11] The warrant states:
TO: Captain Roman Wojnarski and such other persons as he considers advisable.
Whereas, upon reading the Information on oath of Cathy Robertson, Captain, made on the 7th day of May 2015 at Toronto and attachments thereto.
This is to authorize you to: …
Enter upon the land and premises municipally known as 275 Lappin Avenue, Toronto, Ontario M5S 2H1, for the purpose of the administration of the Fire Protection and Prevention Act.
Take all steps necessary to do one or a combination of the following:
a) Conduct a fire safety inspection
b) Make any reasonable inquiry of any person, orally or in writing.
This warrant expires at 12:01 a.m. on May 28, 2015.
ISSUE #1: SHOULD THIS APPLICATION BE DEEMED TO BE AN APPLICATION FOR JUDICIAL REVIEW AND HEARD BY A SINGLE JUDGE OF THE SUPERIOR COURT?
[12] The Notice of Application states that the Applicants make application for the following relief[^1]:
(a) “A temporary order, ex parte, based on urgent and exigent circumstances, to stay the execution of the warrant pending adjudication of the Application on the merits to prevent an illegal entry into the home of Mr. Goebel, leading to very serious harm to Mr. Goebel’s mental and physical security”;
(b) “An order to quash the invalid warrant dated May 7, 2015 to force an illegal entry into Mr. Goebel’s home planned for May 27, 2015 at 10:00 am”; and
(c) “The warrant and actions of the City are a serious violation of s. 8, s. 7, s. 12, s. 2 and s. 15 of the Charter.”
[13] The grounds for the Application are stated in the Notice of Application as follows:
Rule 38.03(3.1) (Rules of Civil Procedure) Urgent Applications
(a) Provincial Offences Act, R.S.O. 1990, c. P.33, s. 140
(b) A remedy under the Canadian Charter of Rights and Freedoms or in the nature of injunctive, mandatory or declaratory relief
(c) Inherent Jurisdiction of the Superior Court
(d) Abuse of process (Rules of Civil Procedure, r. 21.01(3)(d))
[14] At the hearing of this Application counsel for the Applicant acknowledged that the essence of the Applicant’s application is to ask this Court to quash the warrant on the basis that the Justice of the Peace did not have reasonable grounds to believe that entry on the Applicant’s premises was necessary to assess fire safety. Accordingly, the Applicant seeks an order in the nature of certiorari.
[15] I raised the issue of whether this Application should have proceeded by way of application for judicial review and whether I have the authority to hear and determine this Application.
Judicial Review Procedure Act
[16] Section 7 of the JRPA states that an application for an order in the nature of certiorari shall be deemed to be an application for judicial review and shall be made, treated and disposed of as if it were an application for judicial review.
[17] Subsection 2(4) of the JRPA states that where the applicant on an application for judicial review is entitled to a judgment declaring that a decision made in the exercise of a statutory power of decision is unauthorized or otherwise invalid, the court may, in the place of such declaration, set aside the decision.
[18] Under s. 1 of the JRPA, “statutory power of decision” is defined as follows:
“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court. [emphasis added]
[19] In this Application, the warrant was issued by the Justice of the Peace pursuant to section 20 of the FPPA. There is no right of appeal given in respect of such decisions by the FPPA. In my view, a decision to issue a warrant under section 20 of the FPPA is a “statutory power of decision” given that: (1) it is a power conferred under a statute to make a decision whether an inspector has a legal right to enter a premises to assess fire safety; and (2) it is a power given to an inferior court, namely a Justice of the Peace.
[20] Accordingly, this Application is subject to the JRPA. Pursuant to section 7 of the JRPA, this Application shall be treated and disposed of as if it were an application for judicial review.
[21] An application for judicial review must be made to the Divisional Court unless there are exceptional circumstances. Subsection 6(2) of the JRPA provides that an application for judicial review may be made to the Superior Court of Justice with leave to a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
[22] At the hearing of this Application neither party objected to this Application being heard as an application for judicial review. Counsel for the Respondents submitted that this case was an urgent matter on the basis that the assessment of the fire safety risk presented by the Applicant’s premises should not be delayed any further for fear that the fire risk could be realized. Given that the Applicant did not oppose this request, I will exercise my authority to hear this Application under s. 6(2) of the JRPA.
Provincial Offences Act, s. 140
[23] The Applicant also submitted that this court has authority to hear this Application pursuant to subsection 140(1) of the Provincial Offences Act, R.S.O. 1990 c. P.33 (“POA”) which states:
Mandamus, prohibition, certiorari
- (1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari. [emphasis added]
[24] Counsel for the Respondents submitted that the warrant is not a matter that arises under the POA but rather arises under the FPPA. I agree. Accordingly, section 140 of the POA provides no legal basis to bring this Application.
Inherent Jurisdiction
[25] The Applicant submitted that I had authority to rely upon my inherent jurisdiction as a Judge of the Ontario Superior Court of Justice to hear this Application. However, I decline to exercise my discretion to do so given that this Application is governed by the JRPA and there is a statutory process provided for the review of a decision of this type.
ISSUE #2: DID THE JUSTICE OF THE PEACE COMMIT A REVIEWABLE ERROR IN ISSUING THE WARRANT?
[26] Given that this Application is essentially an application for certiorari, the scope of review in respect of the Justice of the Peace’s decision to issue the warrant is narrow. In R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 the Supreme Court of Canada stated at para. 19:
The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, [page 815] supra, at p. 100 (citing Forsythe v. The Queen, 1980 15 (SCC), [1980] 2 S.C.R. 268). [emphasis added]
[27] The Applicant’s submission is that the Justice of the Peace acted in excess of his statutory jurisdiction because there was no evidence before him that there were reasonable grounds to believe that entry on the Applicant’s premises was necessary to assess fire safety. There was no evidence before the Justice of the Peace that the Applicant was hoarding combustible materials on the premises.
[28] The only sworn evidence before the Justice of the Peace was the affidavit of Captain Robertson. Counsel for the Respondents point to the following statements in the affidavit as explanations for the necessity to assess fire safety at the Applicant’s premises:
(a) “I…verily believe that the residence…is being occupied by a hoarder”
(b) “The construction of this building is combustible”
[29] Similarly, the transcript of the Intake Hearing before Justice of the Peace J. Hong on May 7, 2015, shows the following exchange with Captain Robertson:
Q: Is it a hoarder?
A: Yes. That’s like – all of our evidence shows it’s a hoarder.
A: So, we’re gonna to go in May 28, just to conduct an inspection. If we get in there and hoarding is not an issue, then we’re gonna clear the file.
“Reasonable Grounds” under the FPPA
[30] In my view, a complaint from an unidentified member of the public that a person is a hoarder was sufficient reason for the Justice of the Peace to issue a warrant under section 20 of the FPPA to authorize a member of Toronto Fire Services to inspect the Applicant’s home. Section 20 of the FPPA does not require that a fire safety risk have been observed in order for an inspection warrant to be issued. Such a narrow approach would severely limit the ability of those persons charged with administering the FPPA to ensure that its objectives are met. Further, a narrow interpretation of “reasonable grounds” under section 20 of the FPPA would be contrary to the scheme of the legislation given that the FPPA also authorizes warrantless searches of land and premises under section 19 without any pre-condition for reasonable grounds.
[31] In my view, given the purpose of the inspection and the FPPA more generally (namely, to assess, promote and ensure fire safety and thereby protect the public, including the Applicant and his neighbours in adjacent row houses), the affiant’s belief that the Applicant is a hoarder is sufficient evidence on which to find that there are reasonable grounds to enter the premises to assess its fire safety.
Canadian Charter of Rights and Freedoms, Section 8
[32] Section 8 of the Charter provides that:
Everyone has the right to be secure against unreasonable search or seizure.
[33] The Applicant submits:
The defective warrant is a farce, on false perceptions and pretences of preventing fires and so called “public good”.
Forced entry of government agents needs to be strictly necessary, otherwise, the legislation would fail the Oakes test. We do not allow police officers and fire marshals forcing themselves into every home at will. There needs to be reasonable and probable grounds under s. 8 of the Charter.
The abuse of the state against Mr. Goebel continues to have very severe consequences to his liberty, health, his home and his property. It is reprehensible.
[34] The Applicant submits that a “man’s home is his castle” and as such he has a reasonable expectation of privacy from government intrusion.
[35] The purpose of section 8 is to protect an individual’s privacy against an intrusion by the state. Whether an inspection violates section 8 requires a balancing of a person’s reasonable expectation of privacy against the public interest in the state’s intrusion on that person’s privacy. This assessment turns on two questions:
First, does the individual have a reasonable expectation of privacy in the information sought?
Second, is the search an unreasonable intrusion on that right to privacy?[^2]
[36] In my view, neither branch of the section 8 analysis is satisfied in these circumstances.
[37] While there is a heightened expectation of privacy in a person’s home, such protection is not absolute: “To expect such protection would not only be impractical; it would also be unreasonable.”[^3] The warrant does not seek disclosure of “...biographical core data, revealing intimate and private information for which individuals rightly expect constitutional privacy protection.”[^4]
[38] Further, a lower expectation of privacy applies in respect of an inspection conducted to enforce regulatory standards than to a search to enforce the criminal law.[^5]
[39] The Applicant has the unreasonable expectation that a fire safety inspection of his house is only justified upon: (1) the issuance of a warrant by a Justice of the Peace (rather than by way of a warrantless search under section 19 of the FPPA), and (2) only if the warrant is based upon evidence from a person that has seen the condition of the Applicant’s premises. The Applicant’s view of how the inspection powers under the FPPA should be administered would thwart the public interest in promoting and ensuring compliance with its regulatory objective of fire safety.
[40] In R. v. Nicol (1997), C.C.C. (3d) 570 (Ont. C.A.), the Ontario Court of Appeal stated at para. 9:
For the most part, there is no requirement that regulatory powers, like the power of inspection in this by-law, be exercised on belief or suspicion of non-compliance. Rather, they are based on the common sense assumption that the threat of unannounced inspection may be the most effective way to induce compliance.
[41] In any event, even if the Applicant’s expectation of privacy was reasonable in these circumstances, the inspection under the warrant is not an unreasonable intrusion of the Applicant’s right to privacy. Captain Robertson indicated that her intention was simply to assess if there was a fire safety issue inside the Applicant’s premises as a result of the hoarding of materials. Further, unlike the execution of a search warrant in the context of a criminal or quasi-criminal investigation, there is little, if any, stigma associated with such inspection.
Conclusion
[42] For the reasons given above, I hereby dismiss the Application.
[43] At the conclusion of the hearing of this Application, I extended the expiry date of the warrant to July 17, 2015 with the consent of the parties. The warrant had previously been extended by Justice Himel to July 3, 2015. Given that I was unable to release this decision as quickly as I had hoped, I have further extended the expiry date of the warrant to July 28, 2015.
[44] Should the Respondents seek their costs of this Application, then they may submit their costs submissions within one week of today’s date. The Applicant may submit his reply submissions within two weeks of today’s date. The costs submissions are to be no more than five pages in length, inclusive of the costs outline.
Mr. Justice M. Faieta
Released: July 13, 2015
COURT FILE NO.: CV-15-528533
DATE: 20150713
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RICHARD GOEBEL
Applicant
– and –
CATHY ROBERTSON, ROMAN WOJNARSKI and THE CITY OF TORONTO and ATTORNEY GENERAL FOR ONTARIO
Respondents
REASONS FOR JUDGMENT
Mr. Justice M. Faieta
Released: July 13, 2015
[^1]: Also included are statements related to the grounds for such relief.
[^2]: R. v. Gomboc 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 20, 77-78.
[^3]: Gomboc, at para. 46.
[^4]: Gomboc, at para. 34.
[^5]: Comité Paritaire de l’Industrie de la Chemise et al. v. Potash et al 1994 92 (SCC), [1994] 2 S.C.R. 406, at para. 15.