COURT FILE NOs.: CV-09-13500-00CM
CV-09-13501-00CM
DATE: 20191001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kevin Flood, Anne Marie Laniak, Joseph Papic and Susan Papic
Plaintiffs
– and –
Shawn Boutette, Lee Tome, Windsor Fire and Rescue Services Department, Mario Sonego, Marc Mantha and The Corporation of the City of Windsor
Defendants
Raymond G. Colautti, for the Plaintiffs, Kevin Flood and Anne Marie Laniak, and Steven Pickard, for the Plaintiffs, Joseph Papic and Susan Papic
Sheila C. Handler and Jennifer S. Stirton, for the Defendants
HEARD BY ROGIN J.: February 15, 16, 17, 21, 23 and 24; September 5, 6, 7, 8, 18, 19, 20, 21, 22, 25, 26, 27, 28 and 29; October 2, 3, 4, 6, 10, 12 and 13; November 20 and 21, 2017; January 24 and 25, 2018
POMERANCE J.: Oral submissions heard on May 31, 2019 and review of transcripts
REASONS FOR JUDGMENT
POMERANCE J.:
[1] The plaintiffs were landlords who rented houses out to students in Windsor, Ontario. Their buildings were investigated for infractions of the Fire Code, O. Reg. 213/07, and both were charged with operating boarding, lodging or rooming houses that did not comply with the requirements under the Fire Code. The charges against Papic were held in abeyance until the Flood matter was tried. Flood was acquitted on a directed verdict following a three-day trial in November 2008. Justice of the Peace Renaud concluded that the property did not qualify as a boarding, lodging or rooming house for purposes of the Fire Code.
[2] The plaintiffs now seek damages against the defendants[^1] Shawn Boutette, Lee Tome, Windsor Fire and Rescue Services Department, and the Corporation of the City of Windsor. The plaintiffs allege negligent investigation, malicious prosecution, violation of the Charter and other wrongdoing. It is said that the investigator who laid the charges knew, or ought to have known, that the buildings were not boarding, lodging or rooming houses. It is said that the investigators breached the duty of care because they did not have reasonable grounds to lay the charges. It is further alleged that they acted in bad faith. It is said that the City was looking for a way to reduce student housing, and used the charges to discourage landlords from renting to students.
[3] The defendants resist the action. The defendants argue that the law defining a boarding, lodging or rooming house under the Fire Code was unclear and in flux. It is said that it was reasonable for investigators to believe that the provisions of the Fire Code applied and that the landlords were not in compliance with the safety regulations. It is said that, if the investigator’s grounds were not objectively reasonable, this flowed from a mistake in interpreting the law. A mistake in applying a legal standard is not a breach of the duty of care. Finally, the defendants argue that the plaintiffs have failed to establish malice or oblique motive. The defendants say that the investigations were legitimately aimed at enduring that student housing was safe. This was not a colourable attempt to curb student housing through an improper and indirect route.
[4] The trial was heard before the late Justice Steven Rogin. He passed away before he could render his decision. On the consent of all parties, I was assigned by Regional Senior Justice Bruce Thomas to conduct a re-trial based on the transcripts of the evidence heard before Rogin J. I have reviewed the transcripts of evidence, the documents entered as exhibits at trial, and the detailed written arguments filed by all parties. In addition, I requested and heard oral submissions from counsel on the effect of the Court of Appeal for Ontario’s decision in Payne v. Mak, 2018 ONCA 622, 78 M.P.L.R. (5th) 179, which was released after trial submissions were made before Rogin J.
OVERVIEW AND CONCLUSIONS
[5] Much of this case is not realistically in dispute. The parties agree that:
Fire Safety Inspection Reports were issued against the plaintiffs by the investigator;
The plaintiffs did not comply with the Fire Safety Inspection Reports;
The plaintiffs did not intend to comply with the Fire Safety Inspection Reports issued by investigator.
If the properties were boarding, lodging or rooming houses, they were not compliant with the Fire Code and charges were properly laid.
[6] The point of contention in this action does not concern the facts, so much as it does the law. The core question is whether it was open to the investigator to believe that the plaintiffs’ properties were boarding, lodging or rooming houses for purposes of s. 9.3 of the Fire Code. At the time charges were laid, the investigator had one view of that issue, and the plaintiff landlords had another. That dispute continues to drive the litigation. While the trial was lengthy, involving many witnesses and several issues, the action stands to be resolved on the basis of one core question: Was it reasonable for the investigator to believe that the properties were boarding, lodging or rooming houses and therefore subject to the retrofit provisions in s. 9.3 of the Fire Code?
[7] The plaintiffs insist that the properties were not boarding, lodging or rooming houses and that the law made that clear. The plaintiffs argue that the decision of the Court of Appeal for Ontario in Good v. Waterloo (2003), 67 O.R. (3d) 89 (S.C.), aff’d (2004), 72 O.R. (3d) 719 (C.A.), foreclosed the laying of charges in this case. In Good v. Waterloo, the Court of Appeal set out a number of factors that determine whether a property is a boarding, lodging or rooming house, or a single dwelling unit. Those factors concern such matters as group decision-making and control or lack of control by the landlord. The plaintiffs argue that the investigator failed to sufficiently advert to the criteria in Good v. Waterloo and that had he done so, he would have known that there was no basis for charges.
[8] The defendants argue that it was not at all clear that Good v. Waterloo – a business zoning case – was dispositive of issues under the Fire Code. It is said that, despite that case, it was reasonable for the investigator to believe that the properties were, or could be found to be, boarding, lodging or rooming houses. It is said, in the alternative, that the investigator did collect information relating to the criteria in Good v. Waterloo. Finally, it is argued an error in interpreting the legal standard was not conduct that breached the duty of care.
[9] For reasons to follow, I find that the investigator did act reasonably in conducting his investigation under the Fire Code and in charging for infractions under s. 9.3. My conclusions are as follows:
The investigator did owe a duty of care to the plantiffs.
The standard of care required that the investigator have reasonable grounds to lay the charges in question.
The investigator did have reasonable grounds to believe that the properties were boarding, lodging or rooming houses and that they were noncompliant with the Fire Code:
a. On the existing law, it was open to the investigator to believe that Good v. Waterloo did not govern Fire Code investigations;
b. If Good v. Waterloo did apply, the criteria in that case – applicable to a judicial determination – were of uncertain application at the charging stage;
c. The standard of reasonable grounds did not require the investigator to definitively conclude that the properties were boarding, lodging or rooming houses; only that they could reasonably be found to be boarding, lodging or rooming houses;
d. In any event, the investigator did advert to the criteria in Good v. Waterloo, gathering information for purposes of trial.
If Boutette did not have reasonable grounds, he nonetheless acted reasonably in the investigation, by seeking advice and direction from various individuals and entities, including the Crown Attorney, before he laid charges. An error in the interpretation of a legal standard did not, in this case, result in breach of the duty of care.
The investigator did not act with malice or oblique motive. While there was evidence to indicate that the City of Windsor had concerns about an influx of student housing, the investigator was not privy to these discussions. I accept his evidence that he was acting in the interests of public safety, in response to specific complaints.
[10] My conclusion that the investigator either had reasonable grounds to lay charges, or reasonably believed that he had the requisite grounds suffices to dispose of the various claims advanced by the plaintiffs in this case. Failure to prove that the charges were laid in the absence of reasonable grounds is fatal to the claim of a breach of the duty of care. So too is a finding that the investigator met the standard of a reasonable investigator in like circumstances. Absent a breach of the duty of care, there can be no negligent investigation, or malicious prosecution: see Kellman v. Iverson, [2012] O.J. No. 2529, 2012 ONSC 3244 (S.C.J.) at para. 23; Fragomeni v. Greater Sudbury Police Service, 2015 ONSC 3937, [2015] O.J. No. 3797 at para. 101. Nor can there be an infringement of the Charter or abuse of process.
[11] I will elaborate on these conclusions in the paragraphs that follow.
BACKGROUND AND EVIDENCE
[12] The evidence in this case could fairly be described as voluminous. I have read and considered all of the evidence in arriving at my conclusions. I do not, however, intend to provide an exhaustive review of the evidence in this decision. Rather, I will focus in on those aspects of the evidence that are most germane to the legal issues. There are two broad categories.
[13] The first category involves the enforcement strategy adopted by City Council in relation to student rental properties. It is said by the plaintiffs that the charges were motivated by a desire to curb student housing, rather than a genuine concern about safety. City Council was apparently concerned about student housing, and in particular, the double cohort of students that would graduate in 2003. Council decided that, having failed to enforce other legislation, it would try to address student housing issues under the Fire Code. I accept that Council adopted this strategy, though it is open to inference that the underlying motivation was rooted in safety concerns, rather than a desire to appease homeowners in the university district.
[14] Whatever the intent of City Council, I find that it did not impact on the actions of the investigator in this case, Shawn Boutette. This takes me to the second category of evidence: evidence concerning the investigator’s actions, motivations, beliefs regarding the law, and his perception of his grounds for belief. This second category is critical in assessing whether Boutette acted reasonably in laying the charges, and whether he was motivated by oblique considerations. I find that Boutette’s conduct and beliefs were reasonable given the facts and the law as it then existed. He was not at the City Council meeting, and did not know of the enforcement strategy until later in his investigation. I am satisfied that Boutette investigated properties because he received complaints, and that the investigation and charges were based on genuine concerns about fire safety.
[15] I will now turn to the evidence that bears on these issues.
The Strategy to Enforce s. 9.3 of the Fire Code: City Council
[16] Mario Sonego was the Chief Building Officer for the City of Windsor in 2006. He wrote a report to Council dated April 10, 2006 regarding Fire Safety Enforcement for Tenant Properties. He was appointed under the Building Code Act, 1992, S.O. 1992 c. 23, as the Official responsible for enforcement of the Act.
[17] According to Sonego, the City became concerned about student tenancies in 2003. The double cohort was set to graduate in 2003/2004, which would put pressure on student accommodations around universities and colleges across Ontario. The City was concerned about fire safety and wanted to make sure that students picked safe accommodations. There was a fire safety concern, as students might choose the cheapest accommodation which might not always be the safest. The Planning Department developed various strategies. They informed students through a brochure about fire safety. They informed real estate agents about lodging homes. According to Sonego:
We had, over the years, done enforcement on, well, against the lodging homes with students and others, oh trying to, oh , determine if they were operating as lodging homes rather than just, oh single housekeeping units in a , in a, in a home. So we had been through that process in the Good versus Waterloo case that’s shown the difficulties of that.
So we finally got to a point where we had to, we wanted to come to council with a new strategy and how to try to address the issue of safety of students in a lodging home situation.
[18] As part of this process, various people were involved in meetings over the years.
[19] On February 15, 2004, representatives of the Windsor Fire Department, Bylaw Enforcement & Licensing, Legal, Building & Development and City Planner Departments met to discuss “current issues of lodging homes and problems in dealing with so called lodging homes and the Ontario Fire Marshal’s push to pursue the lodging homes.”
[20] Mr. Tome attended the meeting in February 2004, at which time he was a Fire Prevention Officer. Mr. Tome understood that the City was concerned about life safety in houses that were believed to be lodging homes.
[21] The Building & Development and Licensing & Enforcement Departments had tried to pursue lodging homes that the City felt were illegal but were unsuccessful. The City was also aware of the decision of the Court of Appeal in Good v. Waterloo. It was determined in 2004 that the next step would be to proceed under the Fire Code to order retrofit in homes lodging more than three persons to comply with fire, safety and building standards.
[22] The retrofit enforcement strategy was not implemented in 2004. On January 25, 2006, there was a fire at a student rental property at 614 Mill Street in which students were seriously injured. This brought the problem of fire safety in student rental houses to light.
[23] On March 21, 2006, Mr. Sonego attended a meeting of the Off Campus Housing Committee at which he indicated that Administration would prepare a report to Council recommending the retrofit enforcement strategy. The Minutes of Meeting stated:
Administration will be preparing a report to Council and is recommending that the Fire Department pursue, through the Fire Code, to make the units safe for fire as the method to go about addressing the situation. In these cases, where there are more than 3 persons lodging in a home, the Fire Department will review the building and place retrofit orders to bring the building up to standards to address lodging home or rental unit situations.
If the strategy is approved by City Council, the Windsor Fire Department will attempt a targeted number of suspected lodging situations to determine if the move is challenged in the Courts and evaluate the success rate.
[24] On April 10, 2006, Mr. Sonego prepared a report to Council. In the process of preparing the report, he consulted various departments including the City’s Licensing, Building and Legal Departments as well as the Fire Department. The people he consulted “absolutely” agreed with the proposed strategy and signed the report.
[25] The report made the following recommendation:
Since gaining compliance under Zoning and Licensing By-laws is not effective in the Courts, Administration is recommending that other provincial legislation be used to pursue suspected lodging homes or multi-tenant properties of greater than three tenants to ensure the safety of the occupants.
[26] The report recommended that the Fire Department look at a few cases where they suspected that lodging homes were being operated, and the Fire Department would make sure those situations were fire safe.
[27] The report was presented at the open session of Council. It was a public document once it was published. It was also addressed during an in camera session with just Administration and Council. When asked why they went in camera, Sonego said that it was anticipated that they would be discussing legal issues and legal strategy with the City Solicitor.
[28] When asked what the strategy was intended to accomplish, Sonego responded “Basically to make sure that if students were in lodging situations they would be, oh, safe”. He testified it was for the Fire Department to take next steps. It would be up to the Fire Department to do their inspections in accordance with their normal protocol.
[29] Mr. Sonego also prepared a private enclosure for the Mayor and Members of Council, which was reviewed in camera because legal issues would be discussed.
[30] The private enclosure attempted to set out for Council that while the strategy might make buildings fire safe, it is not going to address the other issues surrounding student housing complained about by constituents.
[31] City Council recommended:
Administration is recommending that the Fire Department proceed on a few properties to act under the Fire Code to make expected lodging situations where there is greater than 3 tenants to bring the single unit dwellings up to fire safety and to determine how effective the program is and whether the City will be challenged on this matter and the outcome reported as to success.
[32] On June 12, 2006, Council endorsed the recommended strategy for pursuing fire safety provisions with respect to multiple tenant residences (“the retrofit enforcement strategy”).[^2] This was a policy decision made by the City that was subsequently implemented by the Fire Department.
The Investigations
[33] Shawn Boutette was a fire prevention officer for Windsor Fire and Rescue Services who retired in 2011. Mr. Boutette began work with the Fire Department as a firefighter in 1988, moving into Fire Prevention in 2001. The Fire Prevention Division’s mandate is to enforce the Fire Code with authority derived from the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, (“FPPA”), including the power to enter into any building in the City of Windsor for inspection for the purpose of fire safety. The Fire Code is directed towards the purposes of fire safety and public safety. The Office of the Fire Marshal provides support to Windsor Fire and Rescue Services in the form of education and training.
[34] Between 2006 and 2008, Mr. Boutette was a qualified fire inspector and investigated several properties owned by Kevin Flood, as well as a duplex owned by Joseph Papic used for student housing. He laid informations and issued inspection orders with respect to those properties. He identified his motivation as ensuring compliance with the Fire Code and making the homes safer to the students.
[35] While an Off-Campus Housing Committee had made a recommendation in March 2006 to make lodging home or rental unit situations safe from fire through Fire Code enforcement, Mr. Boutette testified he was unaware of the meeting. He similarly testified that he was unaware of the June 2006 Windsor City Council endorsement recommending pursuing fire safety provisions with respect to multiple tenant residences. His superior Lee Tome, the chief of the Fire Prevention Division, was at those meetings. Mr. Boutette did become aware of these meetings before laying charges.
[36] Mr. Boutette denied any suggestion of targeting specific property owners. His understanding was that, partially due to resource concerns, enforcement of the Fire Code to student housing was to be handled by complaints submitted through their office which would then be assigned to an inspector.
The Rosedale Complaint
[37] On October 4, 2006, a complaint was called into the Fire Prevention Division by a neighbour to 659 Rosedale Avenue, a single-family dwelling in Windsor, Ontario, stating it had seven or eight students living in it without a second-floor exit. At the time, Mr. Boutette stated he was unaware it was owned by Mr. Flood. He attended the property on October 10, 2006 for about an hour to an hour and a half. He stated it was his practice to look in the Fire Prevention Division files before attending a property and reviewed a prior complaint about the property dating from June 19, 2006 which was investigated by John Lee, another fire inspector, that there were six students living on the property with no smoke detectors.
[38] There were seven bedrooms at the property. Mr. Boutette interviewed three out of the seven tenants who were present that day and noted locks on some of the bedroom doors. He obtained a copy of some of their leases and sublet agreements. The property had been rented to two people who sublet their tenancy to other students. The lease indicated some of the tenants were in charge of different responsibilities such as garbage, snow removal, and paying utilities.
[39] He made notes on floor separations and fire safety issues such as fire extinguishers and a lack of interconnected smoke alarms. He came to the conclusion the building was being used as a boarding, lodging and rooming house, considering: a) the building was less than three storeys; b) the property was rented; c) for remuneration; d) there were more than four people residing in the unit; and e) there were shared kitchen and washroom facilities.
[40] On that day or the next, Mr. Boutette contacted Mr. Flood, as the owner of the home, to go over his concerns and the necessary requirements of s. 9.3. He recalled that Mr. Flood was angry and did not think the Fire Prevention Division had the right to classify the property as a boarding, lodging and rooming house. Mr. Boutette said they would look into things further. He prepared a fire inspection report outlining various violations of the Fire Code if the property was a boarding, lodging and rooming house. The report automatically populated that failure to correct the violations within 30 days may result in prosecution. This report was supposed to be provided to Mr. Flood but the address on file was apparently incorrect. His supplementary report states further inspection was delayed until further conversation with the Crown Attorney and a scheduled workshop with the Ontario Fire Marshal in November.
Boutette’s Understanding of s. 9.3 of the Fire Code
[41] Mr. Boutette considered the retrofit provisions of the Fire Code, which ensure older or established buildings are brought up to Fire Code standards. Section 9.3 of the Fire Code deals with the retrofit of boarding houses, lodging houses, rooming houses, and private rest homes where certain conditions are met. They are designed to provide a level of protection for occupants who may not have access, control, or knowledge of hazards that may exist in other parts of the building. While he had investigated s. 9.3 Fire Code retrofit violations before, he had never laid charges. He understood from Mr. Tome that it was to be the practice of the Fire Prevention Division to apply these provisions to student housing going forward.
[42] Section 9.3.1.1(1), dealing with the application of the retrofit provisions, reads:
9.3.1.1. (1) This Section applies to boarding houses, lodging houses, rooming houses and private rest homes in which residents do not require care or treatment because of age, mental or physical limitations, where
(a) the building height does not exceed 3 storeys and the building area does not exceed 600 m2,
(b) lodging is provided for more than four persons in return for remuneration or the provision of services or both, and
(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.
[Emphasis in original.]
[43] The Fire Code does not define what constitutes a boarding, lodging or rooming house. However, the Building Code, O. Reg. 332/12, s. 1.4.1.2 does. The Building Code is a companion document to the Fire Code. Mr. Boutette testified he was trained to turn to the Building Code where the Fire Code does not define a term. Section 1.4.1.2 of the Building Code defines these as:
Boarding, lodging or rooming house means a building,
(a) that has a building height not exceeding three storeys and a building area not exceeding 600 m2,
(b) in which lodging is provided for more than four persons in return for remuneration or for the provision of services or for both, and
(c) in which the lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.
[Emphasis in original.]
[44] This definition was identical to the application section of the retrofit provisions of the Fire Code, with the exception that before November 2007, s. 9.3.1.1(1)(b) of the Fire Code referenced ‘more than three persons’ and not more than four.
[45] Mr. Boutette further researched whether s. 9.3 would apply to student housing, coming to the conclusion it would. He considered a Guide to the Licensing of Lodging Houses. He considered a 2006 City of St. Catharines Fire Service document which stated:
In those properties that house more than three students sharing facilities, the retrofit requirements of 9.3 of the Ontario Fire Code generally apply.
Initial Requests for Guidance and Advice
[46] Boutette reached out to several individuals he had interacted with at the Fire College. One was Dave Pottruff, the fire prevention chief in the City of London, who cautioned him about an unsuccessful prosecution of s. 9.3 to student housing and potential application issues depending on the lease agreement and layout of the home. Another was Mr. Narraway, a fire prevention officer in the City of Ottawa, who had laid an information that ultimately resulted in a conviction under s. 9.3 for a single-family home found to be operating as a boarding, lodging and rooming house. The conviction was upheld in City of Ottawa v. Bentolila, 2006 ONCJ 541.
[47] At the invitation of Lee Tome, the chief of the Fire Prevention Division at the time, the Office of the Fire Marshal presented a workshop on retrofit issues in November 2006. One of the slides during the workshop contained the following:
Note: Section 9.3 does not apply to buildings that exclusively contain dwelling units.
Dwelling units are not defined in either the Fire Code or the Building Code. A ‘housekeeping unit’ was also referred to as part of the definition of a dwelling unit. Various criteria were identified as indicators of a single housekeeping unit. Student housing was to be evaluated using these indicators to determine whether there was a resemblance to a single housekeeping or not before enforcing. The Fire Marshal slides noted difficulty applying the section 9.3 provisions to off campus single family houses shared by students. They further cautioned that houses cannot be classified as rooming houses simply because the occupants are unrelated.
[48] However, there was no discussion at the workshop as to how to apply the indicators to assess a property, nor was there discussion about how many would be sufficient to make a particular residence a single housekeeping unit rather than a boarding, lodging and rooming house.
Meeting with the Landlords
[49] Mr. Boutette called Mr. Flood back on January 31, 2007, again indicating that the building was being used as a boarding, lodging and rooming house and that he would like to do a second inspection to see if the property was in compliance. He stated Mr. Flood became irate, denied the property was a rooming house, and told him he would not be allowed on the property. On the same day, Mr. Boutette was also in the room when Mr. Flood called Mr. Tome, telling them again not to visit the property.
[50] On February 2, Mr. Boutette had a meeting with Mr. Flood and two other landlords, Stan Francic and Stephen Szewczuk. The landlords denied that the properties were being operated as a boarding, lodging and rooming house and stated they rented out the whole premises. Mr. Flood noted he had built new homes for the purpose of student housing and obtained permits from the City to construct the buildings accordingly. Mr. Boutette became aware Mr. Flood’s mailing address was incorrect and that he did not receive a copy of the initial fire inspection report and corrected it.
[51] At this meeting, the case of Good v. Waterloo (City) was discussed. It suggested that the distinguishing characteristic between a residential or “single housekeeping unit” and a lodging house was the control of the premises, and collective decision-making was an important interpretive criterion in determining whether it was a residential unit. The Fire Prevention Division took the position Good was based upon the zoning in the City of Waterloo and did not impact what they were doing in the City of Windsor. Mr. Boutette had been aware of it, though had not read it ‘word-for-word’ at the time of his inspection of 659 Rosedale Avenue.
[52] The case of City of Ottawa v. Bentolila was also discussed, which declined to apply the Good criteria and distinguished it based on dealing with a different legal context with differently worded definitions and statutory purposes. Mr. Boutette was aware of this case beforehand, having already reached out to Mr. Narraway, the fire prevention officer who had laid the charges in the case and which resulted in conviction. He recalled the landlords pointed out the significant differences between the Bentolila factual situation and their own. He could not recall if he had read the judge’s reasons for decision.
Inquiries of Bruce Weaver
[53] On February 5, 2007, Mr. Boutette reached out to Bruce Weaver, a contact at the Fire Marshal’s Office by email. He noted that three landlords had come to their office and contended that, as their student rental properties had already been classified as single-family dwellings by the Building Code and s. 2.1.2.1 of the Fire Code, s. 9.3 of the Fire Code was thus inapplicable. Section 2.1.2.1 of the Fire Code outlines that buildings should be classified according to their major occupancy by the chief fire official in conformance with the Building Code.
[54] Mr. Weaver confirmed that the Building Code should be used by the chief fire official as a reference guide to assist him in classifying a building. He provided the definition of a boarding, lodging and rooming house from s. 1.4.1.2 of the Building Code. He stated fire officials needed to evaluate and determine whether or not s. 9.3 applies in an existing building or whether it is occupied as a housekeeping unit and dwelling unit. He cautioned that where a structure is constructed legitimately as a dwelling unit under a Building Code permit for students, intended for use by students, and continuing to be occupied as a dwelling unit, it is “reasonable to conclude” that the occupancy would not be subject to the s. 9.3 retrofit provisions.
[55] Definitions were provided along with considerations to determine how a building was occupied. A dwelling unit was defined by Mr. Weaver to mean “a suite operated as a housekeeping unit, used or intended to be used as a domicile by one or more persons and usually contain cooking, eating and living, sleeping and sanitary facilities.” A list of criteria was provided:
● What is the tenancy duration of individuals who are residing there or are expected to reside there?
● How is the rent paid?
● Do the occupants exercise collective decision-making and living communally in the sense of substantiating the property as operated as a single housekeeping unit?
● How many people are going to be residing in the structure?
● Does the landlord or tenant provide the furnishings?
● How are the utilities paid?
● Does the landlord assign the rooms or do the occupants allocate the rooms?
● Are the bedrooms locked?
● Who provides the locks?
● Are other areas of the building locked and not accessible to the occupants?
● How is the housekeeping done or not done?
● Does the landlord provide cleaning services, meals, etcetera?
[56] How these criteria were identified was not mentioned or established, nor was information given about how to apply these considerations to assess a particular residence. Regarding Mr. Flood’s permit to construct the buildings, Mr. Weaver noted the situation “poses a question” on what is contained in the building permit, though he fell short of telling Mr. Boutette to review it. He advised Mr. Boutette to review the Bentolila case.
[57] Mr. Weaver’s email described what a fire official would need to prove for a conviction, stating:
As a minimum at trial, the fire official must provide evidence proving that the property in question is a boarding, lodging and rooming house falling within the scope of application of the section 9.3.1. In addition, where the fire official has investigated the factors listed above during the inspection and documented his or her findings, this evidence can also be presented at trial to offset a defence that the structure is occupied as a dwelling unit, used as a housekeeping unit or by unrelated people as opposed to a boarding, lodging and rooming house.
Boutette Meets with the Crown Attorney
[58] Mr. Boutette then met with Len Menard, the Crown Attorney in Provincial Court at the time, bringing some information he had learned from the Ontario Fire Marshal’s Office and details about the size of the house, the number of students, how the students paid rent, and whether they shared kitchen and washroom facilities. It did not include the emails from Mr. Weaver. Mr. Boutette relayed his belief after consulting the Ontario Fire Marshal’s office that s. 9.3 would be applicable to deal with student housing. Mr. Boutette proposed a meeting between Mr. Menard and the landlords which was rejected. An information had not been laid. Following the conversation with Mr. Menard, Mr. Boutette’s understanding was that ultimately whether or not the Fire Code applied would be a judge’s decision.
Reinspection of Rosedale
[59] Mr. Boutette reattended the Rosedale Avenue property on March 1, 2007 for a reinspection along with Richard Marr, the assistant chief fire prevention officer at the time. While some of the Fire Code requirements for the property applicable if it were a boarding, lodging and rooming house were rectified by the addition of an interconnected smoke alarm system, exit sign, and fire extinguisher, others remained outstanding.
[60] Mr. Flood was present and was provided with a questionnaire for the student tenants to complete. The questionnaire was obtained from another department and in line with the criteria outlined in Mr. Weaver’s emails from the Fire Marshal’s Office.
[61] Mr. Boutette tried to closely follow Mr. Narraway’s successful procedure in his investigation. He took various photographs and made notes of what Mr. Flood said, including gathering information about the student tenants, noting labelled food in the fridge, and taking pictures of bedrooms with and without room locks. Some of the bedroom locks were “privacy locks” such as on bathroom doors, which are locked from the inside.
[62] The requested information did not factor into Mr. Boutette’s investigation and he did not know how to apply it. He believed it would be presented at trial to offset a defence the property was being used as a residential unit. All he felt he needed to prove was the building was less than three storeys and less than 600 square metres, was being rented for remuneration or services to more than four persons, and that those persons shared washroom and kitchen facilities (the “mantra”). He again came to the conclusion the property was being operated as a boarding, lodging and rooming house. He told Mr. Flood he would be bringing this to the Crown’s office and an information would be laid. He completed another fire inspection report on March 1, 2007 to be provided to Mr. Flood. It did not contain the definition from the Building Code. In terms of compliance, it read:
No extension of time will be allowed for compliance. Windsor Fire and Rescue Services is proceeding with charges for these offences.
[63] On March 8, 2007, Mr. Boutette attempted to follow up with the tenants. He spoke with one who indicated he would have to speak with others in the home and that it was in his new lease that he was not able to speak with the Fire Department. Mr. Flood called Mr. Boutette and told him the tenants did not want to speak with him and had signed a letter indicating as such and to stay off the property. He contacted another tenant who advised him he could pick up the letter and that Mr. Boutette was invading his privacy. He picked up the letter and spoke with three of the tenants on the front porch for about an hour. They indicated that they lived together and looked after each other. He read the letter which indicated that the students went to work, played, ate, and participated in sports together. However, he did not feel the tenants had authored it but instead had merely signed it. He informed the tenants that he would respect the letter and did not follow up about the questionnaire for them to complete. The letter and discussion did not impact his opinion about the residence’s operation as a boarding, lodging and rooming house.
[64] Mr. Boutette proceeded with charges against Mr. Flood regarding 659 Rosedale on March 14, 2007, and turned over his investigation file. He did not review the building plans or permit for the building. He understood that the crucial determination was whether the property was being occupied as a dwelling unit and that he needed to consider and evaluate each case on its own merits to determine whether s. 9.3 applied.
[65] He needed to collect and record evidence on the indicators of whether it was a dwelling unit to rebut the defence the property was in fact not operated as a board, lodging and rooming house. He did not think he needed them to lay a charge. He felt uncomfortable making a determination of whether it was a single housekeeping unit on the evidence he collected.
[66] He would later testify at trial. There he indicated he was unable to prove with precision whether the house was operated as a cohesive group. Although students sometimes indicated on a questionnaire that they were close and did social activities together like watch television or party, he was hesitant to not order something that could mean the difference between life and death. He erred on the side of caution. He was concerned with fire and life safety.
Papic’s Askin Property
[67] On September 7, 2007, a complaint was received about 343 Askin Avenue by a previous occupant that it was an unsafe student home. The complainant stated the loft unit of the third floor had an inadequate fire access and there was only one exit. He looked up the address on a city computer and identified the homeowner as Joseph Papic. Attending the property on September 27, 2007, he brought along Marc Mantha, an inspector from the building department of the City of Windsor. He was seeking confirmation that the property would meet the Building Code definition of a boarding, lodging and rooming house.
[68] The inspectors talked with some of the tenants and collected evidence, taking photographs and noting locks on the doors. The property was a duplex and they also inspected the other side - 341 Askin Avenue. Mr. Boutette did not have the tenants complete a questionnaire. By Mr. Boutette’s account, Mr. Mantha opined that there had been a change of use from a single-family dwelling and the properties were being used as a boarding, lodging and rooming houses as defined in the Building Code. Mr. Boutette came to the conclusion both units were being operated as a boarding, lodging and rooming house. He prepared a report which allowed no time for compliance and that they would be proceeding with charges for the offences, consistent with Mr. Narraway’s procedure.
[69] There was a meeting held on November 5, 2007 at the Fire Prevention offices between the Papics, Mr. Boutette, Mr. Tome, and someone from the Building Department. The Papics disputed the property was a boarding, lodging and rooming house. There was again discussion of Good v. Waterloo and City of Ottawa v. Bentolila. They informed the Papics that they would speak to the City’s legal department and the Crown Attorney. They proceeded with charges in November 2007. The charges did not go to trial.
Mr. Flood’s Bridge Properties
[70] On January 3, 2008, the Fire Prevention Office received a complaint from a refuse collector about three residences (796 Bridge Avenue, 800 Bridge Avenue, and 814 Bridge Avenue) used for student housing on the southeast corner of Rooney Street and Bridge Avenue in Windsor. There were bars on the windows which could not be removed. Mr. Boutette attended in person along with two junior inspectors on January 8 and identified the three houses.
[71] After speaking to some tenants, he realized the properties were being used as student housing and that Mr. Flood was the landlord. He came to the conclusion that, like the Rosedale property, they would also meet the definition for a boarding, lodging and rooming house – they were less than three storeys and less than 600 square metres, were being rented for remuneration to more than four persons, and those persons shared washroom and kitchen facilities.
[72] Mr. Boutette noted the properties had similar Fire Code violations to the Rosedale property. He again followed Mr. Narraway’s procedure, successfully obtaining some tenant questionnaires. He completed Fire Safety Inspection Reports on January 8 and January 10 for the properties. There was no time allowed for compliance, again because none was provided in Mr. Narraway’s investigation.
[73] Mr. Flood called Mr. Boutette in response to a message left. The conversation was heated. Mr. Boutette testified Flood was again angry that inspections had been done and used foul language. Mr. Boutette brought the matter to the attention of his superior, Mr. Tome. The City of Windsor Legal Department subsequently sent Mr. Flood a letter to no longer contact Mr. Boutette directly.
[74] Mr. Boutette confirmed with a tenant at one of the Bridge Avenue properties that the violations were still outstanding. Instead of laying court charges, he consulted Mr. Weaver and proceeded by way of an inspection order for all three properties under s. 21 of the FPPA. This provided the ability to have the Fire Marshal review the orders within 15 days. Mr. Weaver inquired whether this was the same property owner as the Askin one before the courts. He did not see how the inspection order process would expedite compliance or enforcement. On March 10, 2008, an email from Mr. Boutette to Mr. Weaver read:
Bruce, the three houses that we are writing orders on are not in court. We are only using this on this particular owner due to the extensive number of properties he is running, using the how are they leased (single cooperative households) loophole. He is not willing to concede the lodging issue and is hanging his hat on Good versus Waterloo.
[75] In explaining his use of the word “loophole”, Mr. Boutette again referred to things he believed he needed to prove – the criteria in s. 9.3 and definition from the Building Code. In his mind the description or use of “single cooperative household”, particularly in a lease, seemed to be a way of getting around the fact that the property met the criteria. It was a “lifestyle over life safety” issue. Mr. Weaver cautioned that the Fire Marshal’s office was not giving solid confirmation the properties qualified as a lodging home and that the usage of the inspection order process would likely result in the same issues as the Rosedale prosecution.
[76] Mr. Flood had the orders reviewed by the Fire Marshal’s office who extended the time for compliance and gave him an extra 15 days.
ANALYSIS
[77] I will begin by examining whether the plaintiffs have established a breach of the duty of care. This allegation is at the heart of the claims of negligent investigation.
NEGLIGENT INVESTIGATION
[78] To make out a claim in negligence, a plaintiff must establish three things. First, that the defendant owed a duty of care to the plaintiff. Second, that the defendant’s conduct fell below what could be expected of the ordinary, reasonable and prudent person in the circumstances. Third, that the plaintiff suffered damages as a consequence of the defendant’s breach of the standard of care: see Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at paras. 21-28; Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 93.
The Duty and Standard of Care
[79] The defendants owed a duty of care to the plaintiffs, akin to the duty imposed on police officers who are investigating suspects. A municipality enforcing a by-law owes a duty of care to persons who were the subject of investigations: Rausch v. Pickering (City), 2013 ONCA 740, 369 D.L.R. (4th) 691 at para. 84. The standard is that of a reasonable investigator in like circumstances, or here a “reasonable bylaw enforcement officer”: Hill at para. 73; Rausch at para. 87; Upchurch v. Oshawa (City), 2014 ONCA 425 at para. 21. The standard of care, as it relates to the decision to charge, is satisfied by the presence of reasonable and probable grounds to believe the suspect is guilty. As it was put in Hill, at para. 3:
[P]olice are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. The tort of negligent investigation exists in Canada, and the trial court and Court of Appeal were correct to consider the appellant’s action on this basis. The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.
[80] Significantly, the law does not demand a perfect or optimal police investigation, only that investigators act reasonably. In the context of police investigations, the Supreme Court of Canada observed at para. 73 of Hill that:
The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of the reasonable officer, judged in the circumstances prevailing at the time the decision was made….
[81] In other words, the standard of care does not call for perfect or prescient interpretation of legal issues. While required to advert to the legal standard, and weigh evidence to some extent, investigators are not expected to make legal judgments, those tasks being reserved for prosecutors, defence lawyers and judges. This principle was endorsed in the regulatory context in Upchurch, in which the court addressed the holding in Rausch, at paras. 23 and 28:
The Court did not suggest that the by-law enforcement officer had to necessarily be correct in his interpretation of the FFPPA or bylaws, but indicated that he consider the implications of those provisions.
Referring to the case before the court, it was said at para. 28:
…Assuming that a claim for negligent investigation is appropriate in these circumstances, it is insufficient to merely show that the City’s interpretation of the Building Code was not ultimately sustained. As the trial judge correctly determined, the standard of care in a negligent investigation claim requires that the City representatives exercised their duty reasonably, not that their interpretation of the law was ultimately correct.
Did the Standard of Care Require Compliance with Good v. Waterloo?
[82] It was argued by Flood that the standard of care in this case required that the investigator apply the criteria in Good v. Waterloo. I am not persuaded that the standard of care should be particularized in this fashion. First, there was no expert evidence tendered on the point at trial. The general rule is that the content of a standard of care of a professional will require expert evidence. There are exceptions. For example, it is well settled that a trial judge can determine the existence or absence of reasonable grounds without an expert. This is seen as a non-technical matter falling within the knowledge and experience of the ordinary person. However, any further requirements relating to specialized investigations under the Fire Code would require the testimony of an expert.
[83] Evidence was led about an email communication from Bruce Weaver, one of the investigator’s contacts at the Fire Marshal’s Office. Bruce Weaver also testified about the email at trial. The investigator had reached out to Mr. Weaver, among others, to seek advice about his investigations. Mr. Weaver’s correspondence referred to the criteria set out in Good v. Waterloo. However, there is no basis on which to conclude that Mr. Weaver’s correspondence was evidence about the standard of care. He was not qualified as an expert witness for this purpose. When defendants’ counsel sought to ask him questions about the standard of care, counsel for the plaintiff Flood objected. Having prevented opposing counsel from exploring the issue of standard of care with the witness, plaintiff’s counsel cannot later rely on Weaver as a standard of care witness. Third, Boutette consulted other experienced investigators, including Jeff Naraway, the officer who laid charges in the successful prosecution of Bentolila. Mr. Weaver was not the only advisor. Fourth, as noted above, the standard of care does not require perfect interpretation or application of a legal standard. Fifth and finally, to hold that Good v. Waterloo sets the standard of care in this case is to beg the ultimate question underlying the litigation.
[84] For all of these reasons, I find that there is a duty of care, but it did not extend a requirement that the investigator have subjective and objectively reasonable grounds to support the laying of the charges.
Reasonable Grounds to Believe
[85] The standard of care will be met when charges were based on reasonable grounds to believe that an offence or infraction had occurred. In 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, the Court of Appeal for Ontario summarized the reasonable grounds standard in paras. 48-52:
The Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51 S.C.R., defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more. … In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make an arrest: R. v. Storrey, at p. 251 S.C.R.
The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251 S.C.R.; Wong v. Toronto Police Services Board, [2009] O.J. No. 5067, 2009 CarswellOnt 7412 (S.C.J.), at para. 54; Gioris v. Toronto (City) Police Services Board, [2012] O.J. No. 5634, 2012 ONSC 6396, 2012 CarswellOnt 15071 (S.C.J.), at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:
The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused.
The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.
Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds: Kellman v. Iverson, [2012] O.J. No. 2529, 2012 ONSC 3244 (S.C.J.), at para. 16; Wong, at para. 59.
[86] Similar comments were made by the Court of Appeal in Payne v. Mak, at para. 47:
Based on the evidence before him and the statutory inference, Cote had reasonable and probable grounds to believe that the appellants had committed an offence under s. 436. He had no obligation to determine whether the charge would succeed at trial. He was not required to evaluate the evidence to a legal standard or to make legal judgments. Nor was he required to exhaust all possible investigations, to interview all potential witnesses prior to arrest, to obtain the accused’s version of events or determine that the accused had no valid defence to the charge, before being able to establish reasonable and probable grounds: Tremblay v. Ottawa (Police Services Board), above, at para. 60, referring to 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241 (C.A.). [Emphasis added.]
[87] These passages are, of course, consistent with the jurisprudence in the criminal law context. I note the dicta of the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220. While the court was dealing with the standard of reasonable suspicion, it affirmed at paras. 33-34 the principle that police are not required to determine guilt or innocence, or seek out exculpatory defences:
Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 751, “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. This is self-evident.
However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.S. 1 (1989), at p. 10 (citing Illinois v. Gates, 462 U.S. 213 (1983), at p. 244, footnote 13), “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts”. In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case. However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution.
[88] What then is the standard of reasonable grounds to believe? It is predicated on notions of credibly based probability. It is not a mathematical concept. Reasonable grounds does not require a showing on a balance of probabilities; nor is it equated with a prima facie case. In R. v. Sanchez (1994), 20 O.R. (3d) 468 (Ont. Gen. Div.), Hill J. aptly described the standard in para. 29 as a “practical, non-technical and common-sense probability”:
Mere suspicion, conjecture, hypothesis or "fishing expeditions" fall short of the minimally acceptable standard from both a common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case. The appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical and common-sense probability as to the existence of the facts and inferences asserted. [Citations omitted.]
[89] This approach was endorsed by the Court of Appeal for Ontario in Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, 371 C.C.C. (3d) 149, a case concerned with the standard of reasonable grounds as it applies in the regulatory context. Relying upon Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, the Court observed at paras. 61-62:
The Supreme Court affirmed Federal Court of Appeal jurisprudence holding that “reasonable grounds to believe” requires something more than “mere suspicion”, but less than proof on the balance of probabilities. It requires “an objective basis for the belief which is based on compelling and credible information”: Mugesera, at para. 114.
In discussing this formulation of the standard, the Federal Court in Canada (Minister of Citizenship and Immigration) v. U.S.A., 2014 FC 416, at para. 22, noted that the standard of reasonable grounds to believe is “novel” given that beliefs are “very open ended”. The court explained that “[r]equiring the belief to be ‘reasonable’ brings the standard into the factually-bound legal world … fixing the meaning of the standard by reference to elements of its composition that are familiar in the juristic world.”
Summary of Principles
[90] I suggest that the following principles may be extrapolated from the above passages:
• The appropriate standard of care for the tort of negligent investigation is that of the reasonable investigator in similar circumstances.
• In the laying of charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence.
• The standard of reasonable grounds to believe is rooted in credibly based probability. It is something less than a balance of probabilities, or a prima facie case.
• The police are not required to make legal judgments or predict findings of guilt or innocence.
• A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.
• The law does not demand a perfect or optimal police investigation, only that investigators act reasonably. An error in the interpretation of a legal standard, if reasonable, does not breach the standard of care.
[91] These principles will guide my analysis of the evidence and issues in this case.
APPLICATION OF GOOD V. WATERLOO
[92] I will now turn to the central issue in this case: whether it was reasonably open to Boutette to lay charges despite the case of Good v. Waterloo.
The Holding in Good
[93] Good was a business licencing case. The court was asked to make a declaration that the property in question was a single housekeeping unit, and therefore exempt from the requirement to be licenced as a dwelling house. As in this case, the property in Good was occupied by student tenants. Gordon J. considered a number of factors, including the following at para. 27, in determining that the property was a single housekeeping unit:
In this regard, the evidence of the three occupants indicates collective decision-making for renting together, assigning bedrooms, payment of rent and utilities, housekeeping (or lack of), furniture, entertaining and respect for others' privacy. Some decisions are arrived at after collective discussion, such as assigning bedrooms and payment of utilities, while others occur naturally, including privacy.
[94] The Court of Appeal affirmed the decision of the Gordon J., endorsing a list of factors relevant to the determination at paras. 3-6:
The motions judge correctly addressed the critical phrase to be interpreted, namely whether the premises in question are a "single housekeeping unit". He used as an important interpretive criterion whether there was collective decision- making sufficient to create a single unit for housekeeping purposes. We agree this is an appropriate criterion.
In this case, there was ample evidence to support his decision that there was sufficient collective decision-making to meet this criterion, including:
(a) how the rent was paid;
(b) the furnishing of the apartment and rooms by the occupants;
(c) payment of the utilities by the occupants;
(d) the assignment of the rooms by the occupants; and
(e) how the housekeeping, or lack of it, was to be done.
The cohesiveness of this unit is further exemplified by the fact that most of the occupants had occupied the premises for lengthy periods of time.
There was also ample evidence on which the motions judge could conclude that this was not a circumstance in which there was exclusive possession of any parts of the unit.
Good v. Waterloo Concerned a Different Statutory Context
[95] The investigator in this case was not convinced that Good v. Waterloo applied to Fire Code investigations. This was not an unreasonable stance, given the law as it existed at that time. While the Good case involved the same statutory definitions, the statutory contexts at play are very different. This case concerns enforcement of the Ontario Fire Code, a regulation with its own provisions and objectives. The interpretation of the statutory term “boarding, lodging or rooming house” must be sensitive to the surrounding juridical context. As a public welfare regulation, the Fire Code and its enabling legislation the FPPA are to be given a liberal interpretation. As Sharpe J.A. held in Ontario (Ministry of Labour) v. Hamilton (City), [2002] O.J. No. 283 (ON CA), at para. 16:
The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided. [emphasis added]
[96] The Ontario Fire Code is a regulation made under the FPPA and consists of a set of minimum requirements respecting fire safety within and around existing buildings and facilities. By virtue of s. 1.2.1.1. of the Ontario Fire Code, the “owner”, as defined under the Fire Code, is responsible for complying with the Fire Code, except where otherwise specified. In addition, the Fire Department for each municipality enforces the Fire Code.
[97] The objectives or purposes of the Ontario Fire Code as they relate to fire safety are expressly set out in a table in s. 2.2.1.1. of the Fire Code. One of the objectives in respect to fire safety is set out as objective number “OS1(b)” in Table 2.2.1.1. and provides that “An objective of this Code is to limit the probability that, as a result of” … “the condition of specific elements of the building or facility,” … “a person in or adjacent to the building or facility will be exposed to an unacceptable risk of injury due to fire.” Furthermore, objective number “OS1.5” of Table 2.2.1.1. describes particular risks of injury due to fire that are mentioned in the Code which could be caused by certain events and include, “The risks of injury due to fire addressed in this Code are those caused by:” … “persons being delayed in or impeded from moving to a safe place during a fire emergency” [emphasis above].
[98] Given the context of the Fire Code, and its status as public welfare legislation, can it be said that Good v. Waterloo is dispositive of investigations designed to ensure compliance with fire safety rules? Good is no doubt relevant, but may not be the sine qua non of the Fire Code issue.
[99] Boutette relied on the case of Bentolila, another decision in existence at the time Boutette did his investigation. Bentolila was a prosecution under the Ontario Fire Code which was ultimately successful, resulting in findings of guilt. Boutette had contacted the investigator in that case, Jeff Naraway, and had obtained information and advice from him as to how he had conducted his investigation. When the matter was tried, Beaman J. considered Good, but also considered other authorities. She found that, on the facts of her case, the property was properly characterized as a boarding, lodging or rooming house. The inhabitants did not live as a community in the sense of sharing interests, religious beliefs or lifestyle choices. She observed the following facts to be relevant to her conclusion at para. 56:
• the building contained fourteen bedrooms, three communal baths and a communal kitchen;
• the owner’s son lived on the third floor in a self-contained unit, to which only certain residents had access;
• a “superintendent student” lived in a unit with better amenities than the other students;
• the remaining bedrooms were occupied by students selected by the owner’s son or the superintendent student;
• each resident was required to sign a lease with the owner’s son, and pay a fixed rent to the owner’s son by way of post-dated cheques;
• there were no organized activities involving the group, except for ad hoc meetings to assign housekeeping chores;
• each resident provided for his or her own nutritional needs, and shared use of a number or refrigerators;
• there was no evidence of a sharing in utilities or other expenses associated with operating the house;
• apart from their attendance at Carleton University, there was no mention of any other connection between the inhabitants;
• the only area where a resident could assert privacy was in his or her own bedroom.
[100] Beaman J. noted, at para. 17, that tenants united primarily by a need for housing are not likely to satisfy the concerns underlying the Fire Code requirements:
Adherence to the requirements of the Building Code will not necessarily create automatic compliance with the Fire Code, as well. Under both the Building Code and the Fire Code, a building is classified by the principal occupancy for which the building is being used. The category of occupation will determine both the building and fire safety requirements. For example, many of the fire safety measures are more stringent in buildings accommodating those residents not related by some sort of bond, such as by consanguinity or domestic intimacy. The rationale for this would appear to be that, in the event of a fire, people associated with one another, such as those in a family group, are more likely to advert to the evacuation needs of their own members. This may not necessarily be true in the case of strangers.
[101] Other, subsequent authority would confirm that there is scope for finding that Good v. Waterloo is relevant but not dispositive of charges under the Fire Code. In Neighbourhoods of Windfields Limited Partnership v. Death, [2008] O.J. No. 3298 (ONSC), Howden J. found that, because Good was decided under a different by-law it was not determinative of the Planning Act issues before him. He endorsed a contextual approach to the statutory definitions of boarding, lodging or rooming house and single dwelling unit. As he put it at paras. 70-71:
In my view, Good v. Waterloo (City) is fundamentally different from this case on two grounds:
(d) Good was an interpretation of a licensing by-law with differently worded definitions from those before me and a differing purpose from a zoning by-law passed under the Planning Act; and
(e) while the tests of control, voluntariness and consensual decision making were considered relevant in Good, I accept the submission of Mr. Lisus after considerable thought, that submission being that these tests are simply not the relevant factors to be considered in this case.
The by-law before me, in dealing with “dwelling unit”, focuses on the design of the building and its planning function. The activities of the occupants of a house internally in running their lives on a daily basis do not relate to the purpose and rationale for a zoning by-law nor are they the focus of the by-law in this case. The term “single housekeeping unit” must be interpreted contextually within the provision itself and in the light of the scheme and purpose of this by-law as a whole.
[102] In Windfields, Howden J. distinguished between family units and non-family groups. He noted that municipalities are prohibited from “people zoning”, and/or discriminating against non-family units. At the same time, he observed at paras. 61-62 that the existence or non-existence of a family relationship may be relevant to the legal determination:
While municipalities may not “people zone”, it is lawful to zone so that the use of premises is in accord with that which would typically occur in “single family dwellings” provided the definition of ‘family’ is broad enough to include some unrelated persons: see Smith v. Tiny (1980) 27 O.R. (2d) 690 (O.H.C.), affirmed (1980) 29 O.R. (2d) 661 (Ont.C.A.), leave to appeal refused (1980) 19 O.R. (2d) 661 (S.C.C.). That principle is codified in the Planning Act in s.35(2) which is aimed narrowly at a by-law that has the effect of distinguishing between related and unrelated persons. A single-family zoning measure, or one akin to it like this one, would not, in my view, violate s.35(2) where it included related and unrelated persons recognizing “most types of arrangement usual for people living together as a single housekeeping unit in premises commonly described as ‘single-family dwellings’ …”. Smith v. Tiny (Twp.), and see Phi Delta Beta of London Inc. v. London (City) C.B.U. (1995), 25 M.P.L.R. (2d) 140 (SCJ), which attempted much the same concept, using an element of “singleness”, a group of persons who come within the common use of the term ‘family’, traditional and untraditional, living as a quasi-family unit of some permanence. Under By-law 60-94, renting up to two units in the R1 zone is permitted, as a “lodging house” is defined to include rental of three or more units up to ten.
The definition of “dwelling unit” does not use the word ‘family’ because of the concern by City officials that it would be seen as people-zoning, according to the evidence of the DSC resolution in 2000. Nevertheless, I find that a single housekeeping establishment, when read in context, means a use typical of a single family unit or other similar basic social unit. For example, it could include a group of unrelated persons, one or more of whom are dependent on the others due to physical or related challenges; or one person, or a couple cohabiting with children (not theirs biologically), to whom they stand in loco parentis. There are many examples of such basic social units in today’s society which do not follow the traditional family model. However they involve more between them as a unit than simply short-term temporary sleeping quarters and shared facilities on a rental basis.
[103] The Court of Appeal for Ontario found no error in this analysis (The Neighbourhoods of Winfields Limited Partnership v. Death, 2009 ONCA 277 at paras. 3-4):
While there were some differences in the facts relating to the different landlords and their houses, the application judge found that generally the appellants purchased their houses for the purpose of renting out bedrooms on a room-by-room and a short-term basis to individual tenants, added extra rental bedrooms without building permits or with building permits that misrepresented use, and insured the properties as “rooming houses” and “student housing”. He found that the essence of the relationship between the appellants and their renters was one of “lodger” and “proprietor” as defined in the by-law. He essentially found that there was no relationship between the renters other than their use and occupation of single rooms rented for short-term accommodation.
We see no legal error in the application judge’s treatment of the relevant statutory provisions and case law. In particular, we reject the submission that s. 35(2) of the Planning Act which prohibits “distinguishing persons who are related and persons who are unrelated in respect of the occupancy or use of a building” barred the application judge from considering as a relevant factor how the renters related amongst themselves when determining whether they constituted a “single housekeeping establishment”. Moreover, his assessment of the factual situations with respect to 30 different houses and his application of the law to those houses is a matter of mixed fact and law and, therefore, is subject to review on a reasonableness standard.
[104] In Payne v. Mak, a case involving a fire in a property rented out to students, Heeney J. made a similar point at paras. 142-144:
Plaintiffs’ counsel frequently referred to the “lifestyle” of the occupants as being determinative of whether the property was a boarding, lodging and rooming house. In other words, the fact that two of them were related, and that they were friends with two other tenants, who socialized and played music together, somehow meant that the property became a single family residential unit, and not a boarding, lodging and rooming house.
I do not agree. Suppose that five individuals lived in this residence, each of whom were strangers to the others, who moved in at different times, and paid their rent separately to the landlord for their own bedroom. No-one could argue that this was anything other than a rooming house arrangement. But suppose that during the course of living in the same building, they became friends, and began socializing and sharing some meals together. They discovered a mutual interest in music and decided to form a band. Could it be argued that at some point in time this boarding, lodging and rooming house transformed itself into a single residential unit? Could it be argued that the more stringent fire and safety regulations that apply to a boarding, lodging and rooming house suddenly became inapplicable simply because the tenants became friends and began socializing? Clearly not. [Emphasis added.]
While the cohesiveness of the group of residents is a factor to be considered, it must be considered within the context of the entirety of the living arrangements, including the legal arrangements entered into with the landlord. Did the residents rent the entire house or apartment from the landlord, where they would have quiet possession of the entire unit and would decide who slept in what bedroom and, as a group, would be responsible for paying rent for the entire residence irrespective of one or more of them moved out? Or did they instead each, individually, rent nothing more than a bedroom, with the right to use the common areas, where the landlord decided who slept in what bedroom, where they did not have quiet possession of the whole unit but instead the landlord could enter the premises at will, and where the rent they paid for their room was unaffected by whether other tenants moved out or moved in from time to time?
[105] The Court of Appeal for Ontario affirmed Heeney J.’s decision, though it did not make specific reference to the above passages. The Court of Appeal did confirm in para. 6 that: “the investigation revealed that the Mill Street house was being used as a boarding, lodging and rooming house despite its classification in City records as a duplex…”.
[106] Logically, Good v. Waterloo might not apply “on all fours” to fire safety guidelines. For example, the absence of the landlord from the premise was a factor supporting the finding of a single dwelling unit in Good. However, the absence of the landlord from the premise may be less conducive to fire safety. The nature of the group and its degree of cohesion is relevant to fire safety but the issue involves a nuanced analysis of multiple factors. It cannot be said that just because students rent under one lease, or make decisions about who resides in what bedroom that there is no concern about fire safety. Persons who have a strong connection to one another may be more likely to alert and/or protect each other in the event of a fire. However, this will depend on the type of bond between individuals.
[107] This is not to say that investigators can lay charges whatever the circumstances. It is only to say that the criteria in Good v. Waterloo were not categorically and unequivocally the governing criteria for determination of charges under the Fire Code. It was open to the investigator to conclude that Good did not bar charges in this case.
Good v. Waterloo Involved a Final Judicial Determination
[108] In Good, the issue was whether the motions judge had erred in declaring that a particular property was a single dwelling unit. The motions judge had the benefit of a full body of evidence, properly tendered and subject to testing through cross-examination. The judge was able to consider and weigh the many criteria relevant to his determination, and on that basis, arrive at a legal conclusion. This determination is, by its nature, a multi-faceted and nuanced analysis of several potentially competing factors. It is by its nature, a determination best suited for an adjudicative, rather than an investigative, context.
[109] Indeed, harkening back to the principles earlier articulated, this is precisely the sort of legal conclusion that is not expected of investigators when determining whether they should lay charges. Boutette adverted himself to this, when he explained that, while he was aware of the criteria in Good, he did not understand just how he was to apply those factors as an investigator. For example, if some factors pointed in one direction, and some in another, could charges be laid?
[110] As he put it:
To me it’s very difficult for me as a fire investigator or a fire official to not order something that could mean a difference between life and death on how students who move into a house live. I can’t determine that. I don’t live there with them.
[111] This was an astute observation. Many of the considerations identified in Good were matters falling within the peculiar knowledge of the landlord and/or tenants. An investigator may or may not have access to information about decision-making and other inner workings of a multi-tenant dwelling. The mere fact that occupants rent under a single lease or make their own decisions about who rents which room, does not necessarily make a dwelling a single housekeeping unit. Nor does the fact that the occupants are united by a desire and/or need for temporary housing. Certain factors are manipulable. A landlord should not be able to escape compliance with the Fire Code by strategically constructing a single lease for multiple occupants.
[112] In this case, tenants in one of Mr. Flood’s properties objected to questions that were said to invade their privacy. Yet these are the very questions that the plaintiffs assert should have been investigated by Boutette. It does not lie in the plaintiffs’ mouths to withhold answers while at the same time arguing that answers are a pre-condition to the laying of charges. Nor is an investigator necessarily required to accept, without question, representations offered by a landlord and/or tenants in a building that is the subject of investigation.
[113] Within the trial or other adjudicative context, it is open to both the prosecutor and the landlord to introduce evidence bearing on the nature of the group and its tendencies. The judge may or may not find that the property is a boarding, lodging, or rooming house. Whatever the determination, however, a full range of evidence will be available. Boutette did collect evidence relating to the criteria in Good. As he put it, he gathered the information for possible presentation at trial. He believed that the factors in Good could operate as a defence at a trial. His perception was not, as the law then stood, unreasonable. Absent some further guidance on how he, as an investigator, was to weigh those factors, he cannot be said to have acted unreasonably.
The Standard of Reasonable Grounds Does Not Require a Legal Conclusion
[114] In any event, as noted above, the standard of reasonable grounds, applicable to the laying of charges, does not require a definitive conclusion on whether a particular property is or is not a boarding, lodging or rooming house. The investigator is not required to be satisfied that it is a boarding, lodging or rooming house. The question is whether it is reasonably probable, on compelling and credible grounds, that the property is a boarding, lodging or rooming house. Stated differently, are the facts such that the property could reasonably be found to be a boarding, lodging or rooming house?
[115] In this case, Boutette applied the statutory definition in the Fire Code in assessing whether the properties could be found to be boarding, lodging or rooming houses. He adverted to the legal test in the Fire Code, and applied it to his observations as a Fire Code investigator. On the basis of the regulation, and the uncertainty over the application of Good, he had reasonable grounds to believe that the properties could be found to be boarding, lodging or rooming houses. Indeed, the charges in this case – described in some instances as test cases – were a vehicle by which to have the courts determine whether and to what extent Good v. Waterloo actually did apply in this context. Ultimately, that did not occur. The Justice dismissed the case based on dictionary definitions, rather than the criteria in Good. v Waterloo. Be that as it may, that decision is not binding on this court: see Payne v. Mak. Properly construed, the standard of reasonable grounds was met by the investigator in this case, based on the law and circumstances as they existed at that time.
IN ANY EVENT, THE INVESTIGATOR ACTED REASONABLY
[116] If I am wrong, and the investigator did not have reasonable grounds to lay charges, I am nonetheless satisfied that the investigator acted reasonably in laying charges in this case.
[117] Boutette based his decision to lay charges on four criteria, taken directly from the statutory language in 9.3.3. In addition, and perhaps even more importantly, Boutette took steps to ensure that he was acting appropriately in the exercise of his enforcement function. This is not a case in which an investigator was determined to lay charges, whatever the evidence or circumstances. To the contrary, Boutette sought advice and guidance from several investigators and individuals. He obtained information from Bruce Weaver, and Jeff Maraway. He considered the PowerPoint presentation made by a representative of the Ontario Fire Marshal’s office. He did his own research.
[118] Significantly, the investigator went so far as to seek input from the Crown Attorney. This illustrates his concern to ensure that charges were appropriate before they were laid. Ultimately, he did not receive any detailed guidance from the Crown Attorney, having been told that it would be for the courts to determine the issue. However, he made the inquiry and faced with that response, was reasonably inclined to bring the matter to the courts for further guidance and interpretation.
NO OBLIQUE MOTIVE OR MALICE
[119] Finally, I must address the allegation that the charges were laid for an oblique motive, namely to discourage landlords from renting or continuing to rent to student tenants. Were the charges laid for an improper purpose, unrelated to fire safety, that would displace the finding that the investigator acted reasonably.
[120] Evidence was led to indicate that officials with the City of Windsor had concerns about an influx of student housing. The enforcement under the Fire Code happened after the city had tried enforcement under the Building Code. That enforcement effort was unsuccessful, and therefore the City made the decision to use the Fire Code to address the issues. The question is what the motivation was. The plaintiffs allege that the Fire Code was used to crack down on or reduce student population.
[121] There are some aspects of the evidence that give me pause. It is not clear to me why some of the discussion of the issue by Council was in camera. No landlords were invited to attend the council meeting. There had been complaints about student housing from neighborhood residents. It was recognized that the enforcement program might incidentally reduce student housing if landlords were not prepared to retrofit. On the other hand, there was also good reason to be concerned about fire safety in properties rented out to multiple students during the school year.
[122] Whatever the impetus for City Council’s enforcement strategy, I find that it did not affect, or infect, the conduct of the investigations carried out by Boutette. He was not at the City Council meetings. While he learned about the enforcement strategy from Lee Tome before he laid charges, there is no indication that the charges were based on dubious or nefarious intentions. Boutette insisted in his testimony that he focused on the plaintiffs’ properties because he had received complaints, because he observed various deficiencies in the properties, and because he was concerned about student safety. His evidence on this point was not shaken despite probing cross-examination. I accept that the charges were motivated by genuine and legitimate desire to enforce the Fire Code. The plaintiffs have failed to establish that the charges were based on oblique considerations, or that they were used as a means by which to curb or control student housing.
CONCLUSION
[123] I am satisfied that Boutette either had reasonable grounds to believe that there were infractions of the Fire Code regulations, or alternatively, that he acted reasonably in believing that he had such grounds. It was not incumbent upon Boutette to arrive at a definitive legal conclusion, or to predict whether the plaintiffs would be found guilty at a trial. The investigator was required to believe, on objectively reasonable grounds, that it was reasonably probable that offences had been committed. He considered the statutory definition. He sought advice and guidance from various individuals and entities. He perceived that the case of Good, decided in a different statutory context, did not assist him in assessing fire safety issues. Despite that, he took steps to collect information about the factors identified in Good for presentation in court. He was pursuing the objectives underlying the Fire Code and the FPPA. In all of the circumstances, I cannot find a breach of the duty and standard of care. Boutette acted with reasonable care in determining that fire safety was in issue in the plaintiffs’ properties, and that there was non-compliance with the retrofit provisions of the Fire Code.
[124] On this basis, I dismiss the plaintiffs’ claims.
[125] If counsel cannot agree as to costs, I invite them to arrange for a hearing before me through the office of the trial coordinator.
Original signed by Justice Renee M. Pomerance
Renee M. Pomerance
Justice
Released: October 1, 2019
COURT FILE NOs.: CV-09-13500-00CM
CV-09-13501-00CM
DATE: 20191001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kevin Flood, Anne Marie Laniak, Joseph Papic and Susan Papic
Plaintiffs
– and –
Shawn Boutette, Lee Tome, Windsor Fire and Rescue Services Department, Mario Sonego, Marc Mantha and The Corporation of the City of Windsor
Defendants
REASONS FOR JUDGMENT
Pomerance J.
Released: October 1, 2019
[^1]: The personal claims against Richard Marr, Mario Sonego and Marc Mantha were withdrawn on the eve of trial with the issue of costs to be determined.
[^2]: Council Endorsement, Exhibit 31A, Tab A23, p. 232 (DC Tab B17).