SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-10-48082
DATE: 20151208
RE: ABDI ALI, and FATUMA HERSI, Plaintiffs/Applicants
AND
THE CITY OF OTTAWA, THE OTTAWA FIRE DEPARTMENT, OTTAWA COMMUNITY HOUSING CORPORATION, OTTAWA POLICE SERVICE, Defendants/Respondents
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL:
Martin Reesink, for the Plaintiffs/Applicants
Chantelle Blom, counsel for the Non-Party, Her Majesty the Queen in right of Ontario
HEARD: December 3, 2015
ENDORSEMENT
[1] The Plaintiffs bring this motion to join her Majesty the Queen in Right of Ontario and seven individually named fire investigators to the within action. Further to the oral reasons delivered on December 3, 2015, for the following reasons, this motion is dismissed.
Background
[2] The Plaintiffs are the parents of Khalid Ali, a two-year-old child who died tragically in a fire at his home on March 31, 2008. The proposed Crown defendants are investigators from the Office of the Fire Marshal who were involved in the mandatory investigation into the cause and origin in circumstances of the fire.
[3] On August 25, 2009, the Office of the Fire Marshal issued a report that concluded that the cause of the fire was determined to be “accidental - children playing (ages 11 and under).” A copy of that report was provided to the Plaintiff, Mr. Abdi Ali, on or about November 19, 2009.
[4] On March 26, 2010, the Plaintiffs commenced an action against the City of Ottawa, the Ottawa Fire Department, the Ottawa Police Service and the Ottawa Community Housing Corporation (“OCHC”) seeking $250,000 in damages in relation to the loss of their son. The OCHC is the only remaining Defendant. The allegation against the OCHC is that it failed to take seriously reports of electrical malfunctions within the residence.
[5] On August 8, 2013, the Plaintiffs obtained an order under rule 31.10(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 granting discovery of two investigators (Choudry and Dubuc) from the Office of the Fire Marshal. They were discovered on March 21, 2014 and on April 9, 2014.
Joinder
[6] This motion is governed by a rule 5.03(4) of the Rules of Civil Procedure which provides:
The court may order that any person who ought to have been joined as a party or whose presence is a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding should be added as a party.
[7] The onus is on the moving party to show whether proposed defendants are necessary in their claim for the loss of their son and to explain any delay. Rule 5.03(4) is not meant to capture persons who are merely necessary as witnesses.
[8] To the extent that the Plaintiffs are also seeking to amend the pleadings to include a new allegation against the proposed Crown defendants, rule 26.01 of the Rules of Civil Procedure apply.
[9] The Court of Appeal[^1] has confirmed that there is no absolute right to amend a pleading and the court has a residual right to deny amendments where appropriate. The factors to be considered:
a) An amendment should be allowed unless it would cause an injustice not compensable in costs;
b) The proposed amendment must be shown to be worthy of trial and prima facie meritorious;
c) No amendment should be allowed which, if originally pleaded, would have been struck; and
d) The proposed amendment must contain sufficient particulars.
Applicable Limitation Periods have Expired
[10] In this case, the Fire Marshal’s report was provided to the Plaintiffs on November 19, 2009. The issue of the cause of the fire as set out in that report was discoverable as of that date. Mr. Ali’s affidavit, sworn April 15, 2015, confirms that he discovered the issue after he received the 2009 report and raised the issue with the author of the report before retaining his counsel. The issue of the cause of the fire was also raised in the statement of claim issued on March 23, 2010 where the Plaintiffs allege that the OCHC failed to take seriously reports of electrical malfunctions within their residence.
[11] The issue of the cause of the fire was raised again on August 12, 2012 when counsel for the Plaintiffs wrote to the Office of the Fire Marshal requesting copies of notes with respect to the investigation. Similar requests were made on October 31, 2012 and December 2, 2012. The Plaintiffs did not raise the issue of a joinder motion with counsel for the proposed Crown defendants until December 12, 2014, more than two years after the issue was discovered by the Plaintiffs and their counsel. In support of this motion, the Plaintiffs provided the affidavit of Abdi Ali. That affidavit does not explain why the alleged negligence of the proposed Defendants was not discoverable prior to the expiry of the applicable two-year limitation period.
The Proposed Amendments do not give Rise to a Recognized Cause Of Action
[12] The Plaintiffs allege that the conclusion in the 2009 report that the cause of the fire being “accidental” operates as a statutory bar to their proceeding against the existing Defendant OCHC by virtue the operation of section 76 of the Fire Prevention and Protection Act (FPPA). That section reads as follows:
No action shall be brought against any person in whose house or building or on land any fire accidentally begins, nor shall any recompense be made by that person for any damage suffered thereby; but no agreement between the landlord and tenant is defeated or made void by this Act.
[13] According to the case law[^2], a fire meets the definition of “accidental” if the cause of the fire is unknown or is un-determined. When such a finding is made, it becomes impossible to test the conduct of a defendant to assess the existence of negligence and to determine if the duty of care was breached.
[14] Plaintiffs’ counsel has misinterpreted section 76 of FPPA. It is clear from the 2009 Report that the cause of the fire was not undetermined or accidental. Plaintiffs’ counsel has confused the use of the word “accidental” in the Fire Marshal’s Report with the very specific meaning that is applied to that word in section 76 of FPPA. Plaintiffs’ counsel conceded he has no authority to support his interpretation. There is nothing in the Report that prevents the Plaintiffs from advancing a claim made in negligence against the OCHC. Moreover, the OCHC has not pleaded section 76 of FPPA in its defence of the Plaintiffs’ claim.
[15] Accordingly, the Plaintiffs’ allegation that the 2009 report prevents the Plaintiffs from proceeding against existing Defendants has no chance of success and it should be dismissed.
[16] On the return of this motion, Plaintiffs’ counsel has clarified that the proposed amendment also seeks to allege negligent investigation by the Defendants. This was not readily apparent upon my review of the pleadings as drafted. There is no pleading of a private duty care owed to these Plaintiffs or a breach of that duty; there is a simple allegation of negligence. Plaintiffs’ counsel also clarified that the Plaintiffs are claiming additional damages for psychological distress from the proposed Defendants as result of the conclusions of the 2009 Report. No such claim is apparent. As currently drafted, the only claim for damages is for the loss of care and guidance and companionship of their child.
[17] The test to determine whether a private law duty of care is owed in the particular case is the test developed by the House of Lords in Anns v. Merton as modified by the Supreme Court of Canada, more recently in R. v. Imperial (the “Anns test”).[^3]
a) Do the facts pleaded bring the plaintiff and the defendant within a relationship that is already been recognized as giving rise to a private law duty of care;
b) If not, the court must apply the two-part Anns test as follows:
i. At the first stage, the inquiry focuses on the relationship between the parties and is “whether the facts disclose a relationship of proximity in which the failure to take reasonable care might forseeably cause loss or harm to the plaintiff.” If foreseeability and proximity are established, then a prima facie duty of care arises.
ii. At the second stage, the focus is on factors outside the relationship between the parties and “asked whether there are policy reasons why this prima facie duty of care should not be recognized.”
[18] This case does not fit into any one of the categories of cases where the courts have recognized a duty of care. In a case that bears some similarities to this one, namely Wellington v. Ontario, 2011 ONCA 274, (2011), 105 O.R. (3d) 81, the Ontario Court of Appeal dealt with a claim for damages with respect to an allegedly negligent investigation conducted by the Deputy Director of the Special Investigation Unit (“SIU”) in the shooting death of the plaintiff’s son by police officers. The allegation was that the SIU’s finding that the shooting was lawful was negligent in that it lessened the plaintiff’s opportunity to recover damages in a civil action commenced against the officers.
[19] In determining that no duty of care was owed to the family of the victim, the Ontario Court of Appeal considered the legislation governing the SIU and found that the legislation imposed no explicit duties on the SIU in relation to victims or their families and that the purpose of the investigation was to carry out a public function.
[20] The Court noted that the SIU does not and should not conduct investigations to advance the private interests of any individuals citizen and that there is an inherent tension between the public interest in impartial and competent investigation and a private individual’s interest in the desired outcome of that same investigation which includes seeking to ground a viable civil action against the alleged perpetrators.
[21] In Elliott v. Insurance Crime Prevention Bureau, 2002 NSSC 229, (2002), 208 N.S.R. (2d) 356, the Nova Scotia Supreme Court dismissed an action against the Fire Marshal for Nova Scotia whose office had conducted an investigation into the cause of a fire pursuant to the applicable provincial legislation. In that case, the plaintiffs alleged that their insurer relied on the Fire Marshal’s report to deny their insurance claim. It was later determined that there may have been another cause of the fire and the homeowner brought a negligence claim against the Fire Marshal.
[22] In dismissing the action in negligence against the Fire Marshal, the Nova Scotia Supreme Court held that there was sufficient proximity between an insurance party and the investigator retained on behalf of the insurance company. However, the court concluded that there was no relation of proximity between the Fire Marshal and the plaintiff as there was no contractual relationship between the parties and the duty of the investigator under that legislation was to the public as a whole.
[23] My review of the powers and duties of the Fire Marshal, as set in section 9 of FPPA, confirms that these powers and duties are public in nature and no private duty of care was owed to these Plaintiffs.
The Breach of the Deemed Undertaking Rule
[24] On March 21, 2014 Plaintiffs’ counsel examined Mr. Choudry, and then examined Mr. Dubuc on April 9, 2014.
[25] The deemed undertaking rule is set out below 30.1 .01(3) and it provides:
All parties and their counsel part deemed to undertake not to use the evidence or information to which this rule applies for any purposes other than those of the proceeding for which the evidence was obtained.
[26] The deemed undertaking rule prevents parties connections with using information obtained through discovery through the disclosure of documents in relation to any other litigation or matter. [^4] Prejudice is presumed when a party takes part litigation on the understanding that they are a witness and then steps are subsequently taken to add them as a party to the litigation. The Plaintiffs have not provided any evidence to rebut this presumption nor have they set out any basis why the exception why this proposed claim meets the exception set out in rule 30.1 .01 (8); namely “that the interests of justice outweigh that prejudice.”
The Immunity of the Individually Named Proposed Defendants
[27] Section 74(1) of FPPA protects the seven individually named proposed defendants from personal liability for any alleged neglect or default in the good faith execution of their powers and duties. It provides:
No action or other proceedings for damages shall be instituted against a firefighter, a fire coordinator, a community fire safety officer, a member or employee of the Fire Safety Commission, an assistant to the Fire Marshal, the Deputy fire Marshal, the Fire Marshal, or person acting under his or her authority, for any act done in good faith in the execution or intended execution of his or her power duty for any alleged neglect or default in the execution in good-faith of his or her power duty.
[28] The Plaintiffs’ proposed amended statement of claim does not make any allegations that could give rise to a finding of bad faith on the part of seven individually named proposed Crown defendants. The only allegation against them is one of negligence.
Costs
[29] The Responding Party Defendants have not sought any costs, and therefore, none are awarded.
Mr. Justice Robert N. Beaudoin
Date: December 8, 2015
COURT FILE NO.: CV-10-48082
DATE: 20151208
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ABDI ALI, and FATUMA HERSI, Plaintiffs/Applicants
AND
THE CITY OF OTTAWA, THE OTTAWA FIRE DEPARTMENT, OTTAWA COMMUNITY HOUSING CORPORATION, OTTAWA POLICE SERVICE, Defendants/Respondents
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Martin Reesink, for the Plaintiffs/Applicants
Chantelle Blom, counsel for the Non-Party, Her Majesty the Queen in right of Ontario
ENDORSEMENT
Beaudoin J.
Released: December 8, 2015
[^1]: Marks v. City of Ottawa, 2011 ONCA 248
[^2]: Kinsmen Club of Kingston v. Walker Estate, [2005] O.J. No. 4622 (S.C.J.) at para. 29(e).
[^3]: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (SCC) at paras. 37- 44
[^4]: Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359 (ONCA)