Court File and Parties

COURT FILE NOS.: CV-21-00661756-0000 CV-21-00664697-0000

DATE: 20220721

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TORONTO DISTRICT SCHOOL BOARD, Plaintiff

AND:

CITY OF TORONTO, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO and TORONTO POLICE SERVICES BOARD, Defendants

AND RE: POTENTIA RENEWABLES INC., Plaintiff

AND:

CITY OF TORONTO, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO and TORONTO POLICE SERVICES BOARD, Defendants

BEFORE: VERMETTE J.

COUNSEL: Pamela Pengelley and Charles Batrouny, for the Plaintiff Toronto District School Board Adam Grant, for the Plaintiff Potentia Renewables Inc. Domenico Polla, for the Defendant Her Majesty the Queen in right of Ontario Alison Barclay, for the Defendants City of Toronto and Toronto Police Services Board

HEARD: January 26, 2022

ENDORSEMENT

[1] The Defendant Her Majesty the Queen in right of Ontario (“HMQ”) brings a motion to strike under Rule 21.01(1)(b) of the Rules of Civil Procedure against the Plaintiffs in the two actions before me, the Toronto District School Board (“TDSB”) and Potentia Renewables Inc. (“Potentia”). HMQ seeks an order: (a) striking all or part of the Statements of Claim in both actions without leave to amend and (b) dismissing the actions as against HMQ. The other two Defendants, the City of Toronto and the Toronto Police Services Board, do not take a position on this motion.

[2] The manner in which this motion proceeded was far from ideal. In response to the points raised in HMQ’s motion, the Plaintiffs filed a joint Responding Factum in which they adopted new theories of liability that are either not raised – in the case of Potentia – or barely and incompletely raised – in the case of the TDSB – in their Statements of Claim. In addition, in support of their new theories, they attached inadmissible evidence as “schedules” to their joint Factum. HMQ did not have a chance to respond in writing to the new arguments raised by the Plaintiffs, which were confusing at times and unsupported by a properly developed pleading.

[3] In their current form, the pleadings in both actions disclose no reasonable cause of action as against HMQ. Given that the Plaintiffs have raised new theories of liability that have not been properly pleaded and were developed for the first time in their joint Factum and in oral argument, I cannot be sure, in the case of the TDSB, that it would not be able to allege further material facts so as to plead a reasonable cause of action as against HMQ. This is also the case for the claim of nuisance pleaded by Potentia. Therefore, I grant leave to amend to both Plaintiffs with respect to certain specific points, as this is not one of the clearest cases where leave to amend should be denied. However, as discussed in more detail below, there are major issues with the Plaintiffs’ allegations of liability as against HMQ and, as a result, I have significant doubts that the Plaintiffs will be able to plead negligence or nuisance as against HMQ in such a way that they have a reasonable prospect of success.

A. FACTUAL BACKGROUND

[4] The Plaintiffs’ claims arise out of a fire that largely destroyed the York Memorial Collegiate Institute (“School”) on May 7, 2019. The School is a public high school located in Toronto. It is owned by the TDSB and operated under its jurisdiction.

[5] Potentia is a corporation carrying on business as an owner and operator of renewable energy sites. In 2018, it entered into a lease agreement with the TDSB which permitted Potentia to install solar panels and ancillary equipment at the School. Potentia’s equipment was installed in 2018 and began supplying solar power to the grid pursuant to an agreement with the Independent Electricity System Operator.

[6] The following is a general summary of the facts alleged in the TDSB’s Statement of Claim, which is considerably more detailed than Potentia’s Statement of Claim.

[7] On May 6, 2019, at approximately 2:12 p.m., the School’s fire alarm was triggered by a fire in the auditorium on the second floor of the School.

[8] The School was evacuated. The Toronto Fire Services (“TFS”) responded to the fire and were on site at approximately 2:20 p.m. The TFS also contacted the Toronto Police Service (“TPS”) and the Office of the Fire Marshal (“OFM”).

[9] HMQ is alleged to be responsible for the OFM, the City of Toronto is alleged to be responsible for the TFS and the Toronto Police Services Board is alleged to be responsible for the TPS.

[10] The fire was located in a hallway space behind the stage in the auditorium. The TFS commenced an offensive attack on the fire within the School. The TDSB pleads the following with respect to the steps taken by the TFS:

In the process of fighting the fire, firefighting team R423, Platoon C, attempted to breach the stage wall to apply water but they were unable to do so due to the presence of multiple layers of wood. They found a false veneer wall, then a void, and then an original wooden wall which they could not penetrate. They exited the Building to change out their air cylinders, at which time they were told that the fire had been knocked down. They abandoned further efforts to access the area below the stage and apply water. They were then reassigned to silence the alarm, retrieve personal belongings for staff and students, and other such tasks.

Overhaul is a tactical priority of firefighting; the activity that makes sure the fire is completely out. It has priority over ventilation. After all visible fire has been extinguished, the area must be checked for residual fire, including any fire that could have extended into areas not originally involved, such as floors, walls and ceilings. Incomplete overhaul may allow the fire to rekindle. However, in this case, inadequate or no overhaul was conducted of the floor below the stage or the ceiling of the ground floor below the center stage and hallway in the area of the fire. Before TFS personnel had conducted a thorough overhaul of the fire scene, they were re-assigned to ventilate the Building and carry out other such tasks.

[11] During the TFS’s efforts to suppress the fire, only a single thermal imaging camera was used in the backstage area of the auditorium to look for heat signatures. This occurred at or around 3:32 p.m.

[12] At or around 5:54 p.m., a TFS fire investigator arrived on site. He advised the TPS that “they anticipated holding the scene overnight”.

[13] All fire trucks and other fire control apparatus departed the scene by 6:45 p.m. However, the TFS Division Chief and TFS fire investigator remained on site, as well as a TPS detective. The TFS did not post a fire watch at the School as it assumed that the fire was out and that a fire watch was not required.

[14] The TDSB pleads that the fire continued burning in the floor and walls at the time of the departure of the TFS. The TDSB states the following:

Given the age of the Building and numerous uncertainties surrounding the Building’s construction attendant with its age, including but not limited to the combustible nature of its construction (i.e., cellulotic insulation, cardboard and horsehair) and the presence of concealed spaces/voids in the walls and floor cavities and lack of a sprinkler system, there was a heightened risk of the fire causing a rekindling event of which the TFS, TPS and OFM ought to have been aware.

[15] The TPS advised the School’s principal that the matter was under criminal investigation and that, since the site was a potential crime scene, the TPS would secure the site and ensure that a fire watch was implemented overnight. The principal left the site with this understanding.

[16] At or around 7:06 p.m., an OFM investigator arrived at the site. He met with the TFS Division Chief and TFS fire investigator, as well as TPS personnel. Police seals were placed on all doors to the auditorium with the exception of the door at the right of the stage. The investigation was to continue in the morning. It was determined amongst them that in the interim, scene security would be maintained overnight by TDSB security, although this decision was not communicated to the TDSB at that time.

[17] The OFM investigator asked the School’s caretaker to turn off the electricity in the auditorium area and a TDSB electrician was called to the site. While the OFM investigator, the caretaker and the electrician were looking for the main power switches supplying electrical power to the auditorium, they went into the classroom located directly beneath the stage area where the fire occurred. The OFM investigator quickly looked inside and noted that there was no fire damage in the room, but there was water damage on the ceiling and water on the floor. He remarked that the room seemed “unusually warm”.

[18] Despite the OFM investigator’s expressed concern that the classroom directly below the stage in the area of the fire was unusually warm, no thermal imaging scanning of this room was undertaken at any time, nor was any overhaul or further investigation undertaken in this room by any of the TPS, TFS or OFM. The OFM investigator expressed his concern about the room being unusually warm to the TFS investigators, but no further action was taken.

[19] At approximately 8:00 p.m., the TPS detective asked a TDSB project supervisor who was still in attendance at the site to have the TDSB provide a security guard to guard the site. The TPS detective advised the TDSB project supervisor that they were treating the auditorium as a crime scene, and they needed to put security at the door of the auditorium to ensure that no one would enter. The TDSB project supervisor advised the TPS detective that air quality tests had failed. The TPS detective then instructed the TDSB to post security personnel outside the exit doors of the School instead.

[20] A TDSB security guard attended at the site. He advised the TPS detective that TDSB security personnel were needed at other schools as well. Upon further protest by the TDSB security guard, the OFM investigator intervened in the discussion, stating, “you’re the owner of the building and your fire alarm is not working so you need to provide a fire watch anyhow” (or words to that effect). The security guard called his boss and was instructed to stay at the site.

[21] The OFM investigator then told the security guard to park his car in the rear parking lot facing the auditorium and to pay attention to the windows directly below the auditorium. He said that the room seemed hotter than it should be, he was concerned about another flare up, and he wanted the security guard to pay attention to those windows for any signs of smoke. He instructed the security guard not to go into the School, stating that they would be back in the morning.

[22] None of the TFS, TPS or OFM personnel made inquiries of the security guard as to whether he had any training or the equipment necessary to conduct a proper fire watch.

[23] At approximately 9:15 p.m., the remaining TFS fire investigators, the OFM and the TPS left the fire scene. The TDSB pleads that at the time of their departure from the fire scene, the site had not been released to the TDSB, and the fire site remained under the care, power, direction and control of the TFS, OFM and TPS. The TDSB alleges that the decision of the TFS, TPS and OFM to leave the School in the evening of May 6, 2019, without ensuring a proper fire watch was in place, was driven primarily by cost concerns of senior personnel, including a desire to reduce overtime costs, and purported lack of adequate resources.

[24] The intention of the TFS, OFM and TPS was to return to the School the following morning at which time they would have inspected it for further safety concerns and initiated an investigation into the origin, cause and circumstances of the fire.

[25] Between approximately 1:00 a.m. and 1:30 a.m. on May 7, 2019, a TDSB security guard used his keys to briefly enter the School and use a bathroom in the caretaker’s area. The security guard observed that there was a “haze” inside the hallway leading to the auditorium, but he did not appreciate its potential significance. He assumed that the haze was due to a lack of ventilation of the School from the original fire.

[26] At approximately 3:15 a.m. on May 7, 2019, the security guard in the parking lot noticed a flicker of light in the auditorium window and immediately called the TFS.

[27] The TFS’s fire trucks arrived within 3-4 minutes of being alerted. At that time, the School was ablaze. A working fire was discovered beneath the auditorium stage which then spread quickly below and behind the stage area. The fire ultimately developed into a six-alarm fire.

[28] Once the fire was confirmed to be extinguished, several safety concerns were identified, “including, but not limited to, the presence of asbestos within the Building, active solar array panels providing power on the roof, structural integrity issues with several collapse zones, flooding in basement areas, and air quality concerns.”

B. LIABILITY ALLEGATIONS AGAINST THE OFM IN THE STATEMENTS OF CLAIM

[29] The TDSB’s Statement of Claim was issued on May 5, 2021. It has 26 pages. In it, the TDSB claims damages in an amount to be determined or, in the alternative, restitution, contribution and indemnity in an amount to be determined. The TDSB states that the damages it has suffered, including liability to third parties, are anticipated to meet or exceed $90 million.

[30] Potentia’s Statement of Claim was issued on June 28, 2021. It is only 6 pages long. The action was commenced under the simplified rules pursuant to Rule 76 of the Rules of Civil Procedure. Potentia claims damages in the amount of $200,000 for damage to its equipment and out-of-pocket expenses.

1. The TDSB’s allegations

[31] The TDBS pleads that had the TFS conducted a proper, thorough overhaul of the fire on May 6, 2019 and extinguished the initial fire, damage to the School would have been confined primarily to the stage area of the auditorium and the damages being claimed in this case would have been avoided. It further pleads that had the TFS, OFM or TPS ensured that a proper fire watch was in place inside the School by trained fire watch personnel equipped with proper personal protective equipment, the rekindled fire would have been identified and extinguished, so that the damages being claimed in this case would have been avoided.

[32] The TDSB makes the following allegations as against all the Defendants:

a. At all material times, the School was in the care, custody and control of the Defendants.

b. At all material times, the Defendants failed to exercise and ensure proper care, control, supervision of the fire scene and the School so as to ensure the safety of persons and property, and failed to ensure the same of others.

c. At all material times, the Defendants failed to ensure the clear, appropriate and direct transfer of custody/control of the fire scene and the School so as to ensure the safety of persons and property, and failed to ensure the same of others.

[33] The TDSB also makes specific allegations with respect to the liability of the OFM. The TDSB alleges that the OFM, having sent an investigator to attend at the fire scene on May 6, 2019, and in giving directives to the TDSB, placed itself in a relationship to the TDSB that carried with it a common law duty of care. It further alleges that the OFM owed a duty of care to the TDSB to ensure that its actions in respect of the fire on May 6, 2019, were carried out in a reasonable manner and without negligence, so as to ensure the safety of persons and property at the fire scene.

[34] The TDSB states the following with respect to the OFM investigator who went to the School on May 6, 2019:

The OFM investigator who attended the scene […] knew, or ought to have known, by reason of his professional experience, that there was a serious risk that the fire could rekindle and that a proper, adequate fire watch that complied with acceptable industry standards, was warranted in the circumstances.

Despite having a concern on May 6, 2019, that the classroom below the stage was unusually warm, and recognizing that there was a serious risk of fire rekindling, the OFM Investigator […] acquiesced in the decision of the TFS and TPS to abandon the Building without implementing further overhaul or ensuring the presence of a proper, reasonable fire watch overnight by qualified TFS personnel that would accord with industry standards in all of the circumstances.

[35] The TDSB states that its damages were caused by reason of the acts, omissions, negligence, gross negligence and breach of duty of the OFM, particulars of which include but are not limited to the following:

a. it failed to undertake reasonable, or any, steps, to ensure that the fire had been extinguished, with no possibility of rekindling;

b. it failed to undertake reasonable, or any, steps to ensure or require that an examination of the School with thermal imaging cameras was conducted in a proper, workmanlike and safe manner, in order to identify existing heat signatures;

c. it failed to institute a reasonable, adequate fire watch by trained, qualified personnel that accorded with industry standards in all of the circumstances, or to ensure the same of others;

d. it failed to adequately supervise and instruct employees, servants, and agents with respect to investigating the fire and implementing a fire watch;

e. it failed to warn the TDSB, or anyone, of the dangers inherent in leaving the School without having properly determined the cause of the fire, where there was a heightened risk of rekindling due to the presence of cellulose insulation, where the OFM investigator had expressed concerns about a classroom below the area of origin being “unusually warm”, and without the TFS and TPS having implemented a professional fire watch by qualified persons that conformed to reasonable industry standards in all of the circumstances;

f. it used incompetent employees, agents, and servants who lacked adequate knowledge, training, equipment, certification, education, and experience;

g. it failed to provide promised services;

h. it failed to act reasonably and prudently to ensure the safety of persons and property in all of the circumstances; and

i. it created a dangerous situation.

[36] The TDSB also pleads that after May 7, 2019, the TFS and OFM sought to mislead, misrepresent and suppress evidence of their negligence and gross negligence in respect of the fire. It makes a number of allegations in support of this pleading, including allegations that relate to the report that was prepared by the OFM with respect to the fire at the School.

2. Potentia’s allegations

[37] Potentia alleges negligence and nuisance against the Defendants. It does not expressly allege the existence of a duty of care, but it pleads the following particulars of the Defendants’ alleged negligence and lack of care:

a. they failed to take reasonable care in the extinguishment and investigation of the fire;

b. they failed to take reasonable care to ensure that the fire was fully extinguished prior to departing from the School;

c. they failed to identify ongoing hazards and dangers at the School;

d. they failed to ensure that an adequate firewatch was in place at the School;

e. they failed to conduct appropriate testing, or any testing, prior to departing from the School;

f. they failed to conduct appropriate testing and investigations upon discovery of the fire;

g. they failed to properly monitor the status of the fire;

h. they failed to act in a timely manner upon discovery of the second fire or reignition;

i. they failed to take any safety measures or any reasonable safety measures to protect the School from damage;

j. at the relevant time, they were incompetent or without sufficient knowledge or experience to extinguish and investigate the fire;

k. they failed to adhere to industry and regulatory standards related to extinguishment and investigation of fires;

l. they failed to warn Potentia, or anyone, of the risks of reignition, or steps to be taken to properly investigate or prevent such reignition;

m. they failed to supervise or train, or failed to properly supervise or train, their contractors, subcontractors, employees, agents and/or servants;

n. they hired incompetent contractors, subcontractors, employees, servants and/or agents, without proper knowledge of the work that was to be completed; and

o. they failed to act in the best interests of Potentia.

[38] Further, and in the alternative, Potentia pleads that the fire constituted an unreasonable interference with its property rights such that the Defendants are liable in nuisance.

[39] Potentia’s allegations of negligence and nuisance are against all the Defendants and do not differentiate between them or between their respective duties and obligations.

C. THE LEGISLATIVE SCHEME

[40] The most relevant statute for the purpose of a duty of care analysis in this case is the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”). Part II of the FPPA, which includes sections 2 to 7.1, is entitled “Responsibility for Fire Protection Services”. “Fire protection services” is defined as follows in the FPPA:

“fire protection services” includes,

(a) fire suppression, fire prevention and fire safety education,

(b) mitigation and prevention of the risk created by the presence of unsafe levels of carbon monoxide and safety education related to the presence of those levels,

(c) rescue and emergency services,

(d) communication in respect of anything described in clauses (a) to (c),

(e) training of persons involved in providing anything described in clauses (a) to (d), and

(f) the delivery of any service described in clauses (a) to (e); (“services de protection contre les incendies”)

[41] Part II of the FPPA outlines the responsibilities of municipalities with respect to fire protection services. Sections 2, 4, 5 and 6 read, in part:

Municipal responsibilities

2 (1) Every municipality shall,

(a) establish a program in the municipality which must include public education with respect to fire safety and certain components of fire prevention; and

(b) provide such other fire protection services as it determines may be necessary in accordance with its needs and circumstances.

Methods of providing services

(2) In discharging its responsibilities under subsection (1), a municipality shall,

(a) appoint a community fire safety officer or a community fire safety team; or

(b) establish a fire department.

Services of be provided

(3) In determining the form and content of the program that it must offer under clause (1) (a) and the other fire protection services that it may offer under clause (1) (b), a municipality may seek the advice of the Fire Marshal.

Review of municipal fire services

(7) The Fire Marshal may monitor and review the fire protection services provided by municipalities to ensure that municipalities have met their responsibilities under this section and, if the Fire Marshal is of the opinion that, as a result of a municipality failing to comply with its responsibilities under subsection (1), a serious threat to public safety exists in the municipality, he or she may make recommendations to the council of the municipality with respect to possible measures the municipality may take to remedy or reduce the threat to public safety.

Failure to provide services

(8) If a municipality fails to adhere to the recommendations made by the Fire Marshal under subsection (7) or to take any other measures that in the opinion of the Fire Marshal will remedy or reduce the threat to public safety, the Minister may recommend to the Lieutenant Governor in Council that a regulation be made under subsection (9).

Regulation

(9) Upon the recommendation of the Minister, the Lieutenant Governor in Council may make regulations establishing standards for fire protection services in municipalities and requiring municipalities to comply with the standards.

Same

(10) A regulation under this section may be general or specific in its application and may be restricted to those municipalities specified in the regulation.

Community fire safety officer or team

4 (1) A community fire safety officer or a community fire safety team appointed in a municipality or in a group of municipalities shall provide the program established under clause 2 (1) (a) in the municipality or in the group of municipalities, as the case may be.

Same

(2) A community fire safety officer or a community fire safety team appointed by agreement with the Fire Marshal, a services board or a prescribed person or organization to provide services in territory without municipal organization shall provide a program which includes public education with respect to fire safety and certain components of fire prevention in the territory in accordance with the agreement.

Municipalities may establish fire departments

5 (0.1) The council of a municipality may establish, maintain and operate a fire department for all or any part of the municipality.

Fire departments

(1) A fire department shall provide fire suppression services and may provide other fire protection services in a municipality, group of municipalities or in territory without municipal organization.

Fire chief, municipalities

6 (1) If a fire department is established for the whole or a part of a municipality or for more than one municipality, the council of the municipality or the councils of the municipalities, as the case may be, shall appoint a fire chief for the fire department.

Responsibility to council

(3) A fire chief is the person who is ultimately responsible to the council of a municipality that appointed him or her for the delivery of fire protection services.

Powers of fire chief

(5) The fire chief may exercise all the powers assigned to him or her under this Act within the territorial limits of the municipality and within any other area in which the municipality has agreed to provide fire protection services, subject to any conditions specified in the agreement.

Delegation

(6) A fire chief may delegate his or her powers or duties under sections 14, 19 and 20 and such other powers and duties as may be prescribed to any firefighter or class of firefighters, subject to such limitations, restrictions or conditions as may be prescribed or set out in the delegation.

[42] Part III of the FPPA is entitled “Fire Marshal” and includes sections 8 to 11. The Fire Marshal is appointed by the Lieutenant Governor in Council pursuant to section 8. Section 9 sets out the powers and duties of the Fire Marshal:

Powers of Fire Marshal

9 (1) The Fire Marshal has the power,

(a) to monitor, review and advise municipalities respecting the provision of fire protection services and to make recommendations to municipal councils for improving the efficiency and effectiveness of those services;

(b) to issue directives to assistants to the Fire Marshal respecting matters relating to this Act and the regulations;

(c) to advise and assist ministries and agencies of government respecting fire protection services and related matters;

(d) to issue guidelines to municipalities respecting fire protection services and related matters;

(e) to co-operate with any body or person interested in developing and promoting the principles and practices of fire protection services;

(f) to issue long service awards to persons involved in the provision of fire protection services; and

(g) to exercise such other powers as may be assigned under this Act or as may be necessary to perform any duty assigned under this Act.

Duties of Fire Marshal

(2) It is the duty of the Fire Marshal,

(a) to investigate the cause, origin and circumstances of any fire or of any explosion or condition that in the opinion of the Fire Marshal might have caused a fire, explosion, loss of life or damage to property;

(b) to advise municipalities in the interpretation and enforcement of this Act and the regulations;

(c) to provide information and advice on fire safety matters and fire protection matters by means of public meetings, newspaper articles, publications, electronic media and exhibitions and otherwise as the Fire Marshal considers advisable;

(d) to develop training programs and evaluation systems for persons involved in the provision of fire protection services and to provide programs to improve practices relating to fire protection services;

(e) to maintain and operate a central fire college;

(f) to keep a record of every fire reported to the Fire Marshal with the facts, statistics and circumstances that are required under this Act;

(g) to develop and maintain statistical records and conduct studies in respect of fire protection services; and

(h) to perform such other duties as may be assigned to the Fire Marshal under this Act.

Application of Public Inquiries Act, 2009

(3) Section 33 of the Public Inquiries Act, 2009 applies to any inquiry or investigation by the Fire Marshal under this Act.

Employment of expert, etc.

(4) The Fire Marshal may employ legal, technical, scientific, clerical or other assistance that the Fire Marshal considers advisable or necessary in the conduct of any inquiry or investigation under this Act or in carrying out any of his or her powers or duties under this Act.

[43] Pursuant to section 10 of the FPPA, the Fire Marshal may delegate any power or duty that is granted to or vested in the Fire Marshal under the FPPA to any person or class of persons. Section 11 provides that the fire chief of every fire department is an assistant to the Fire Marshal who shall follow the Fire Marshals’ directives in carrying out the FPPA. The other assistants to the Fire Marshal identified in this section are the clerk of every municipality that does not have a fire department, any member of a fire prevention bureau established by a municipality, and every person designated by the Fire Marshal as an assistant to the Fire Marshal. The assistants to the Fire Marshal have a duty to report to the Fire Marshal all fires and other matters related to fire protection services as may be specified by the Fire Marshal.

[44] Part V of the FPPA is entitled “Rights of Entry in Emergencies and Fire Investigations”. It includes sections 13 to 17. Section 14 grants to the Fire Mashal or a fire chief certain rights to enter on land or premises. It states, in part:

Entry where fire has occurred or is likely to occur

14 (1) The Fire Marshal or a fire chief may, without a warrant, enter on land or premises if,

(a) a fire has occurred on the land or premises; or

(b) he or she has reason to believe that a substance or device that is likely to cause a fire may be situated on the land or premises.

Powers upon entry

(2) Upon entering on land or premises under subsection (1), the Fire Marshal or a fire chief may,

(a) close, and prevent entry to, the land or premises for the length of time necessary to complete the examination of the land or premises;

(b) in the case of an entry under clause (1) (a), remove from the land or premises, retain and examine any article or material, and take such samples or photographs, make videotapes and other images electronic or otherwise that in his or her opinion may be of assistance in determining the cause of the fire under investigation;

(c) make such excavations on the land or premises as he or she considers necessary;

(d) require that any machinery, equipment or device be operated, used or set in motion under specified conditions; and

(e) make any reasonable inquiry of any person, orally or in writing.

Entry to adjacent lands

(3) A person who enters on land or premises under subsection (1), may, without a warrant, enter on adjacent land or premises if the entry is necessary for the purposes of conducting an investigation into the cause of a fire or of determining whether a substance or device that is likely to cause fire is situated on the land or premises.

Same

(4) A person who enters on adjacent land or premises under subsection (3) may exercise any of the powers mentioned in subsection (2) on or with respect to the adjacent land or premises.

[45] Subsection 15(1) of the FPPA grants certain powers to the Fire Marshal, an assistant to the Fire Marshal or a fire chief if they have reasonable grounds to believe that a risk of fire poses an immediate threat to life. This provision reads as follows:

Immediate threat to life

15 (1) If the Fire Marshal, an assistant to the Fire Marshal or a fire chief has reasonable grounds to believe that a risk of fire poses an immediate threat to life, he or she may, without a warrant, enter on any land or premises and, for the purpose of removing or reducing the threat, may,

(a) remove persons on the land or premises;

(b) post a fire watch;

(c) remove combustible or explosive material or anything that may constitute a fire menace;

(c.1) dispose of any material or thing that was removed under clause (c), in accordance with any directives issued by the Fire Marshal;

(d) eliminate ignition sources;

(e) install temporary safeguards, including fire extinguishers and smoke alarms;

(f) make minor repairs to existing fire safety systems;

(g) do any other thing that the Fire Marshal, an assistant to the Fire Marshal or a fire chief has reasonable grounds to believe is urgently required to remove or reduce the threat to life.

[46] Section 16 provides that a person who enters on land or premises under section 14 or 15 may call on any other persons he or she considers advisable to assist.

[47] Part VI of the FPPA is entitled “Inspections”. This Part grants to the Fire Mashal, an assistant to the Fire Marshal or a fire chief the power to enter and inspect land and premises for the purposes of assessing fire safety. Section 18 states that for the purposes of Part VI, fire safety includes: (1) safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it; and (2) safety from the risk that the presence of unsafe levels of carbon monoxide on premises would seriously endanger the health and safety of any person.

[48] Sections 19 and 21 provide, in part:

Inspectors

19 (1) The Fire Marshal, an assistant to the Fire Marshal or a fire chief is an inspector for the purposes of this Part.

Inspections

(2) An inspector may, without a warrant, enter and inspect land and premises for the purposes of assessing fire safety.

Time of entry

(3) The power to enter and inspect land and premises without a warrant may be exercised at all reasonable times.

Assistance

(4) An inspector who enters land or premises under this section may take with him or her a police officer or such other person as he or she considers advisable to assist.

Powers during inspection

(6) An inspector conducting an inspection may,

(a) examine a document or other thing that is relevant to the inspection;

(b) demand the production for inspection of a document or other thing that is relevant to the inspection;

(c) remove any thing that is relevant to the inspection for review and examination and remove any document that is relevant to the inspection for review and copying;

(d) conduct tests, take and remove samples, take photographs and make videotapes and other images, electronic or otherwise, that are relevant to the inspection;

(v) in order to produce a document in readable form, use data storage, information processing or retrieval devices or systems that are normally used in the premises being inspected; and

(f) question a person on matters relevant to the inspection.

Inspection orders

21 (1) An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant,

(a) to remove buildings or structures from the land or premises;

(b) to make structural and other repairs or alterations, including material alterations, to the buildings or structures;

(c) to remove combustible or explosive material or any thing that may constitute a fire hazard;

(d) to install and use specified equipment or devices as may be necessary to contain hazardous material on the land or premises and, in the event of a fire, to remove or transport the material;

(e) to discontinue the manufacturing, production or fabrication of any material, device or other thing that creates or poses an undue risk of fire or explosion;

(f) to do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan;

(g) to remedy any contravention of the fire code.

D. General principles applicable to a motion to strike

[49] On a Rule 21.01(1)(b) motion, a pleading will only be struck out if, assuming the facts pleaded to be true, it is plain and obvious that it discloses no reasonable cause of action – that is, where the pleading has no reasonable prospect of success: Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 at para. 18.

[50] The Court of Appeal set out the principles applicable to a motion to strike in McCreight v. Canada (Attorney General), 2013 ONCA 483 at para. 39 (“McCreight”):

• In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping dimension underlies Rule 21.
• If the cause of action pleaded has been recognized, all of its essential elements must be pleaded.
• If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed.
• The claim should not be struck merely because it is novel.
• Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion.
• The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading.
• No evidence is admissible on such a motion.
• The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
• A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.

[51] Although the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 at para. 31.

[52] Each defendant named in a statement of claim must be able to determine, upon review of the pleading, what they are alleged to have done that caused harm to the plaintiff, and when it was done: Burns v. RBC Life Insurance Company, 2020 ONCA 347 at para. 16.

[53] While no evidence is permitted on a motion to strike, the court may consider documents referred to in the claim. For a document to be properly considered as being incorporated by reference into the pleading, it is not enough that it has been referenced in the statement of claim. It must “form an integral part of the plaintiff’s claim” or of the “factual matrix of the statement of claim”: see McCreight at para. 32 and Etherington v. National Hockey League, 2020 5789 at para. 127.

[54] While a pleading may be struck, leave to amend should be denied only in the clearest of cases. The fact that the allegations are bald is not, in itself, a basis for refusing leave. Leave to amend should only be refused where it is clear that the deficiencies in the pleading cannot be cured by an appropriate amendment and the plaintiff cannot allege further material facts that the plaintiff knows to be true to support the allegations. The fact that amendments may have previously been made is a relevant consideration. See Miguna v. Ontario (Attorney General), 2005 CanLII 46385 at para. 22, Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27, South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456 at para. 6 and Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381 at paras. 33-34.

[55] As stated above, the Plaintiffs have relied on inadmissible documents and evidence on this motion. In their Factum, they refer to a Directive issued by the Fire Marshal to fire chiefs in 2019, and they attach the Directive as a schedule to their Factum. The references to the 2019 Directive are improper as no evidence is admissible on this motion and the 2019 Directive is not referred to in the Statements of Claim. The Plaintiffs also refer in their Factum to the Statement of Defence of the other Defendants, and they similarly attach the Statement of Defence as a schedule to their Factum. These references are also improper: see Desjardins v. The Society of Obstetricians and Gynecologists of Canada, 2012 ONSC 7294 at para. 5.

E. Tort of Negligence

[56] The primary cause of action alleged against HMQ in the Statements of Claim is negligence. The elements of the tort of negligence are the following:

a. the defendant owed the plaintiff a duty of care;

b. the defendant’s conduct breached the standard of care;

c. the plaintiff sustained damage; and

d. the damage was caused, in fact and in law, by the defendant’s breach.

See 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 at para. 18.

[57] This case is mainly concerned with the first element of the cause of action, i.e. whether the OFM owed the Plaintiffs a duty of care. When allegations of negligence are made against a public authority, it is appropriate to examine the negligence claim at the pleading stage to determine whether there is any possibility that a duty of care can be found to exist: see Kassian Estate v. Canada (Attorney General), 2015 ONCA 544 at para. 22.

[58] The Anns/Cooper test provides a unifying framework to determine when a duty of care arises, including for allegations of negligence against government officials. The framework applies differently depending on whether the plaintiff’s claim falls within or is analogous to an established duty of care or whether the claim is novel because proximity has not been recognized before. See Nelson (City) v. Marchi, 2021 SCC 41 at para. 16 (“Nelson”).

[59] In novel duty of care cases, the full two-stage Anns/Cooper framework applies. Under the first stage, the court asks whether a prima facie duty of care exists between the parties. The question at this stage is whether the harm was a reasonably foreseeable consequence of the defendant’s conduct, and whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. See Nelson at para. 17.

[60] Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered. See Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 at para. 21 (“Rankin”).

[61] When determining whether reasonable foreseeability is established, the proper question to ask is whether the plaintiff has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged. The foreseeability question must be framed in a way that links the impugned wrong to the harm suffered by the plaintiff. See Rankin at paras. 24-25.

[62] Proximity arises in those relationships where the parties are in such a “close and direct” relationship that it would be just and fair having regard to that relationship to impose a duty of care in law upon the defendant. See Nelson at para. 17. The proximity inquiry considers the expectations, representations, reliance, and the property or other interests involved as between the parties. See Rankin at para. 23.

[63] If there is sufficient proximity to ground a prima facie duty of care, it is necessary to proceed to the second stage of the Anns/Cooper test, which asks whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care. The second stage of the test raises questions relating to the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. See Nelson at para. 18.

[64] When the duty of care at issue is not novel, there is generally no need to proceed through the full two-stage Anns/Cooper framework: see Nelson at para. 19 and Rankin at para. 18. To determine whether a previously established category of duty applies, a court should be attentive to the particular factors which justified recognizing that prior category in order to determine whether the relationship at issue is, in fact, truly the same as or analogous to that which was previously recognized. Courts should avoid identifying established categories in an overly broad manner. See Nelson at para. 27 and Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 at para. 28 (“Livent”).

[65] An important consideration in this case is that the claims are against a government body. There are generally two situations that may create a prima facie duty of care in claims against a government defendant: where a duty of care arises from the statutory scheme or where a duty of care arises from interactions between the plaintiff and the government and is not negated by statute. Proximity might also be based both on the government’s statutory duties and interactions between the parties. See Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 410 at para. 41 and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 43, 46 (“Imperial Tobacco”).

[66] The Supreme Court of Canada stated the following on this issue in Imperial Tobacco (at paras. 43-47):

[43] A complicating factor is the role that legislation should play when determining if a government actor owed a prima facie duty of care. Two situations may be distinguished. The first is the situation where the alleged duty of care is said to arise explicitly or by implication from the statutory scheme. The second is the situation where the duty of care is alleged to arise from interactions between the claimant and the government, and is not negated by the statute.

[44] The argument in the first kind of case is that the statute itself creates a private relationship of proximity giving rise to a prima facie duty of care. It may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care. Some statutes may impose duties on state actors with respect to particular claimants. However, more often, statutes are aimed at public goods, like regulating an industry (Cooper), or removing children from harmful environments (Syl Apps). In such cases, it may be difficult to infer that the legislature intended to create private law tort duties to claimants. This may be even more difficult if the recognition of a private law duty would conflict with the public authority’s duty to the public: see, e.g., Cooper and Syl Apps. As stated in Syl Apps, “[w]here an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity” (at para. 28; see also Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, at para. 39).

[45] The second situation is where the proximity essential to the private duty of care is alleged to arise from a series of specific interactions between the government and the claimant. The argument in these cases is that the government has, through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care. In these cases, the governing statutes are still relevant to the analysis. For instance, if a finding of proximity would conflict with the state’s general public duty established by the statute, the court may hold that no proximity arises: Syl Apps; see also Heaslip Estate v. Mansfield Ski Club Inc., 2009 ONCA 594, 96 O.R. (3d) 401. However, the factor that gives rise to a duty of care in these types of cases is the specific interactions between the government actor and the claimant.

[46] Finally, it is possible to envision a claim where proximity is based both on interactions between the parties and the government’s statutory duties.

[47] Since this is a motion to strike, the question before us is simply whether, assuming the facts pleaded to be true, there is any reasonable prospect of successfully establishing proximity, on the basis of a statute or otherwise. On one hand, where the sole basis asserted for proximity is the statute, conflicting public duties may rule out any possibility of proximity being established as a matter of statutory interpretation: Syl Apps. On the other, where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult. So long as there is a reasonable prospect that the asserted interactions could, if true, result in a finding of sufficient proximity, and the statute does not exclude that possibility, the matter must be allowed to proceed to trial, subject to any policy considerations that may negate the prima facie duty of care at the second stage of the analysis.

F. POSITIONS OF THE PARTIES

1. Position of HMQ

[67] HMQ argues that the Statements of Claim in both actions fail to articulate a coherent theory of liability against HMQ, fail to identify a duty of care consistent with the governing legislative scheme and fail to set out acts or omission on the part of the OFM investigator that caused or contributed to the damages for which the TDSB and Potentia seek recovery.

[68] HMQ submits that the relevant provisions of the FPPA do not establish a relationship of proximity between an OFM investigator and a property owner affected by fire such as the TDSB and Potentia. It states that the legislation imposes the duty to provide fire suppression and protection services on the municipality or municipal fire department, while the Fire Marshal and his delegates are tasked pursuant to subsection 9(2)(a) of the FPPA with investigating the cause, origin and circumstances of the fire for the general public’s benefit, not the individual property owner. HMQ refers to the cases Ali v. Ottawa (City), 2015 ONSC 7597 at para. 23 (“Ali”) and Elliott v. Insurance Crime Prevention Bureau, 2002 NSSC 229 at paras. 5-6; aff’d 2005 NSCA 115, where it was found that the Fire Marshal’s powers and duties were public in nature and did not give rise to a private duty of care.

[69] According to HMQ, the OFM investigator attended at the School for the sole purpose of fulfilling his delegated statutory duty of investigating the cause, origin and circumstances of the fire. HMQ submits that the Plaintiffs improperly conflate the distinct statutory roles of the OFM and the municipal fire department responsible for suppressing or extinguishing the fire, the TFS in this case. It states that the responsibility to provide fire suppression and protection (including extinguishment of the fire and overhaul) and fire prevention (including fire watch) was statutorily assigned to TFS.

[70] HMQ argues that the Plaintiffs have no reasonable prospect of success of establishing that any of the alleged “duties” in the Statements of Claim reproduced in paragraphs 35 and 37 above were owed by the OFM investigator.

[71] HMQ further argues that neither foreseeability nor proximity can be established on the facts pleaded in either action. HMQ’s position is that there was no close and direct relationship between the OFM investigator and the School such that the investigator was required to be mindful of the interests of either the TDSB or Potentia in attending the School to conduct his public interest investigation pursuant to section 9 of the FPPA.

[72] HMQ states that the OFM investigator could not have reasonably contemplated that any act or omission on his part could have resulted in damage to the School through a rekindled or continued fire because the extinguishment, overhaul and monitoring of the fire was not under his control and was the responsibility of a distinct statutory actor. HMQ notes that by the time the OFM investigator attended the School, the TFS had announced that the fire had been extinguished; the firefighters and fire trucks had departed; and the TFS had decided not to implement a formal fire watch. According to HMQ, it was not within the OFM investigator’s role or power to question, second guess or overrule the decisions of the municipal fire officials. With respect to the concerns expressed by the OFM investigator about the “unusually warm classroom”, HMQ points out that the TDSB’s Statement of Claim admits that he acted reasonably and appropriately in relaying those concerns to the appropriate authority, namely the TFS.

[73] HMQ submits that the pleaded interactions between the OFM investigator and the Plaintiffs do not assist in establishing a prima facie duty of care. It points out that Potentia does not plead any interaction between itself and the OFM. With respect to the interaction pleaded by the TDSB between the OFM investigator and the TDSB security guard, HMQ argues that the mere fact that the OFM investigator attended the School and interacted with TDSB personnel is insufficient to establish the requisite relationship of proximity. It states that the FPPA remains relevant in assessing whether the pleaded interactions create the necessary degree of proximity because the legislation shapes the relationship between the statutory actor and the Plaintiffs. In HMQ’s view, nothing the OFM investigator said to the TDSB security guard could have had the effect of displacing the statutory reality that the decisions related to fire suppression and protection rested with the TFS. Moreover, HMQ argues that the TDSB’s Statement of Claim fails to link the pleaded interactions with any direct impact on the TDSB, or to the harm ultimately suffered.

[74] According to HMQ, the admission in the Plaintiffs’ joint Factum that no duty of care is owed with respect to an investigation by the OFM under section 9 of the FPPA is fatal to the Plaintiffs’ claims as the OFM investigator did not exercise any other powers in this case.

[75] With respect to the Fire Marshal’s power to issue directives, HMQ states that this power is limited to issuing directives to assistants to the Fire Marshal (here, the fire chief) and that a proper interpretation of this power does not include verbal statements made at a particular fire scene or to a property owner. The directives have to relate to the FPPA and the regulations. HMQ submits that the OFM does not have the power to dictate what the TFS should do in the context of a particular fire.

[76] As for the Plaintiffs’ reliance on subsection 8(1)(b) of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7 (“CLPA”), HMQ points out that this provision is not pleaded in the Statements of Claim and that the Plaintiffs have not identified any duty that attached to the property that has been breached. HMQ states that the Plaintiffs cannot articulate a duty without referring to the fire and the fact that a fire happened, which it submits is fatal given that the OFM had no duty to ensure that the fire was properly suppressed, that the fire did not restart or that a fire watch was in place.

[77] HMQ argues that any prima facie duty of care on the OFM investigator would be negated at the second stage of the analysis by two residual policy considerations. First, HMQ submits that a duty of care imposed on the Fire Marshal and his delegates in the circumstances of this case would conflict with the FPPA because: (a) it would violate the legislative policy to create a division of labour between the municipal fire departments and the Fire Marshal; and (b) it would create a real potential for conflict at any given fire scene between the Fire Marshal and his delegates and the attending local fire department. According to HMQ, this jurisdictional uncertainty may endanger public safety and cause a chilling effect on the OFM’s investigations.

[78] Second, HMQ submits that the Plaintiffs have an alternative remedy, i.e. their action against the TFS. HMQ points out that the common law has recognized a duty of care on fire departments to take reasonable care in suppressing, overhauling and monitoring a fire scene, and it argues that recognizing an additional overlapping duty of care on the Fire Marshal would introduce confusion in the law in circumstances where the Plaintiffs have an available remedy.

[79] In addition to arguing that there was no duty of care, HMQ argues that the Plaintiffs cannot succeed for the additional reason that the Statements of Claim do not disclose facts upon which a finding of causation could reasonably be made. HMQ reiterates that the OFM investigator was not responsible for any acts or omissions in relation to fire extinguishment, overhauling or fire detection through a proper fire watch. It states that to the extent that the Plaintiffs rely on the statements of the OFM investigator to the TDSB security guard, the pleadings fail to causally connect those statements to the damages caused. HMQ points out that there are no material facts pleaded to suggest that any party modified its position as a result of these statements, or that the rekindled or continued fire would not have occurred but for the statements made.

[80] HMQ submits that leave to amend the Statements of Claim should be denied as the defects in the claims are a matter of law and statutory interpretation rather than drafting deficiencies capable of clarification or improvement. HMQ argues that the claims are based on a fundamental misapprehension of the duties of the OFM.

[81] Finally, HMQ asks that the allegations that the OFM and TFS sought to mislead and suppress evidence of their negligence be struck as scandalous. Among other things, HMQ submits that the TDSB has no legal interest in the contents of the OFM’s report or its conclusions.

2. Position of the Plaintiffs

[82] As stated above, the Plaintiffs submitted a joint Factum for both actions.

[83] According to the Plaintiffs, they do not claim that their damages were caused by a breach of the OFM’s duty to the public to conduct a fire investigation under subsection 9(2) of the FPPA or its findings as to the cause of the fire. Further, they assert that they take no issue with the case law that states that there is no private law duty of care owed to persons who have suffered harm because of the OFM’s determination about the origin and cause of a fire. The Plaintiffs argue that the OFM’s liability in the instant cases arises from an established category of duty of care that is created when a person assumes temporary care, custody, power and control over the property of another and then fails to take proper care of it. They further argue that the OFM is also liable for its decision to exercise its statutory power and authority in a negligent manner that caused a foreseeable, heightened risk of fire damage to private property. They state that their claims are not based on a duty of care arising from the FPPA, but, rather, on a duty of care that arose from specific interactions.

[84] The Plaintiffs summarize the underlying basis for HMQ’s liability as follows:

a. After the initial fire on May 6, 2019, the OFM assumed temporary care, custody, power and control of the School as a suspected crime scene (either solely, or jointly with the TPS and TFS).

b. Having assumed care, custody, power and control over the School for this purpose, the OFM had the power and authority under its enabling statute to issue directives to the Fire Chief, TPS, TDSB and others to take such steps as it deemed necessary to ensure the safety and security of the School.

c. During the time in which the OFM had care, custody, power and control over the School, it knew or ought to have known that there was a heightened risk of the fire rekindling. In particular, the OFM: (i) had knowledge that a room below the origin of the fire was unusually warm; (ii) expressed concerns to others about the heightened risk of a fire rekindling; and (iii) knew or ought to have known that a proper fire watch should be put in place overnight to ensure fire safety and mitigate the heightened risk of fire. It was therefore at all times foreseeable to the OFM that the absence of a proper fire watch at the School could lead to a rekindling of the fire that could damage the Plaintiffs’ property.

d. Despite this, the OFM not only failed to ensure that a proper fire watch was present, it used its statutory power and authority to actively intercede in and impede the TDSB’s efforts to compel the TPS and TFS to take care of the site, thereby preventing a proper fire watch from being implemented. The OFM then further exercised its statutory power and authority over TDSB personnel by actively directing the TDSB to place an untrained security guard with no fire watch experience in a car outside the School to “keep an eye out” for smoke. The OFM falsely represented to the TDSB at the time (and later, to the public, in its fire investigation report) that this was a “fire watch”, despite this failing to constitute a fire watch under any reasonable industry standard or practice.

e. Had the OFM ensured a proper fire watch was in place inside the School by trained fire watch personnel equipped with proper personal protective equipment, thermal imaging cameras, and overhaul and fire suppression equipment, any rekindling of the fire would have been identified and extinguished before it spread, so that the damages being claimed would have been avoided.

[85] The Plaintiffs acknowledge that there is no case in which the OFM is alleged to have exercised its powers in a negligent way that resulted in property damage. However, they submit that while the case is novel in this respect, it is well established that a person who assumes care and control of the property of another has a sufficiently proximate relationship to impose a private law duty of care to the other to act reasonably in respect of that property. The Plaintiffs rely on subsection 8(1)(b) of the CLPA, which states that the Crown is subject to all liabilities in tort to which it would be liable if it were a person in respect of a breach of duty attaching to the ownership, occupation, possession or control of property.

[86] The Plaintiffs submit that if their claims against the OFM give rise to a novel duty of care, then the foregoing facts are sufficient to create a relationship of proximity between the OFM and the Plaintiffs that justify imposing a duty of care on HMQ towards the Plaintiffs’ property. They further submit that all public authorities remain subject to private law negligence principles for the manner in which they exercise their powers in the discharge of public duties, and they point out that there is no bar in the FPPA with respect to the imposition of a private duty of care. The Plaintiffs’ position is that where the OFM chooses to exercise its powers in an unreasonable manner that directly interferes with private property and causes fire damage as a result, it cannot be said that it is acting wholly in the public interest and immunized from liability.

[87] The Plaintiffs argue that since the OFM assumed power, care and control over the fire scene, either individually or jointly, it was in a sufficiently proximate relationship with the TDSB that it owed a duty to take reasonable care of the School to prevent a foreseeable risk of the fire rekindling. They point out that while the School was under the temporary control of the OFM, the TDSB was forced to rely on the OFM and other emergency services personnel to ensure that a fire did not rekindle. The Plaintiffs also submit that proximity is further established by the OFM’s active intervention in the TDSB’s efforts to make the TPS take care of the site, and in exercising its power to direct the TDSB to post an untrained security guard at the site, in lieu of implementing a proper fire watch.

[88] Potentia’s position is that the OFM owed a duty of care to all persons who had property within the School as damage to such property was reasonably foreseeable. It states that it ought to have been in the OFM’s contemplation that, if it did not take reasonable steps to avoid the risk of a fire rekindling at the School, there could be resulting fire damage that could injure the School owners and others with property at the site.

[89] The Plaintiffs argue that HMQ misrepresents the scope of powers and jurisdiction accorded to the OFM under the FPPA. They state that the FPPA essentially gives the Fire Marshal unlimited jurisdiction over fire scene investigations and that the OFM shares jurisdiction with the fire chief in respect of matters of fire safety. The Plaintiffs state that the FPPA “bestowed upon the OFM the actual and apparent powers, jurisdiction and authority over the fire scene, the TDSB and others in respect of the impugned conduct giving rise to the cause of action asserted in this case”, including the following powers:

a. the power to close, prevent entry to, and remove persons from the site (including TDSB personnel);

b. the power to issue directives to the TFS, TPS and TDSB in respect of the fire scene;

c. powers to take any measures necessary to ensure that the School was safe from the risk of a rekindling fire;

d. the power to post a fire watch; and

e. “any powers as may be necessary” to investigate the cause of the fire.

[90] The Plaintiffs submit that the two policy reasons advanced by HMQ to negate a prima facie duty of care should be rejected:

a. With respect to HMQ’s argument that the legislature intended a division of labour between municipal fire departments and the OFM, the Plaintiffs submit that this argument is based on a narrow selection of the OFM’s powers, which misrepresents the existing scope of powers and jurisdiction accorded to the OFM under the FPPA. The Plaintiffs also point out that the OFM and the fire chief share jurisdiction in respect of matters of fire safety.

b. With respect to HMQ’s argument that to impose joint responsibility could create jurisdictional uncertainty that could endanger public safety and cause a chilling effect on the OFM’s investigations, the Plaintiffs state that the FPPA contains various mechanisms for resolving jurisdictional uncertainty, including the issuance of directives by the Fire Marshal. The Plaintiffs also state that the OFM has the power to overrule municipal fire departments whenever it chooses to do so.

c. With respect to HMQ’s argument regarding the existence of an alternative remedy, i.e. a lawsuit against the TFS, the Plaintiffs submit that this argument disregards the legal basis for recognizing the joint and several liability of concurrent tortfeasors.

[91] With respect to the TDSB’s allegations that the OFM issued a fire investigation report that was specifically intended to downplay, mislead, conceal and suppress evidence of negligence and gross negligence on the part of the OFM and TFS, the TDSB argues that these facts are not pleaded with a view to establishing a separate cause of action, but, rather, they are pleaded because they are highly relevant and material to the causes of action pleaded by the TDSB. The TDSB submits that the post-loss conduct of both the OFM and the TFS provides context for the actions taken by the Defendants at material times, during and after the loss. The TDSB states that it will rely on these facts in support of its claim of negligence against both the OFM and the TFS.

[92] The Plaintiffs argue that any issues with the pleadings can be dealt with by a request for particulars or, if necessary, can be rectified by amendments.

G. DISCUSSION

1. TDSB’s claims

[93] While the TDSB refers to a “breach of warranties” and the failure “to provide promised services”, no specific warranties or promises are alleged, and no material facts are pleaded in support of these allegations. Therefore, the discussion below only addresses the TDSB’s claim for negligence. I also discuss the arguments raised by HMQ regarding the TDSB’s allegations of wrongful conduct by the OFM in the weeks after the fire in the context of the preparation of its report.

a. Allegations of negligence

[94] In my view, the duty of care that is alleged in this case does not fall within, and is not analogous to, an established category of duty of care.

[95] The Plaintiffs acknowledge that there is no case in which the OFM is alleged to have exercised its powers in a negligent way that resulted in property damage. However, they submit that while the case is novel in this respect, it is well established that a person who assumes care and control of the property of another has a sufficiently proximate relationship to impose a private law duty of care to the other to act reasonably in respect of that property. The Plaintiffs cite no specific case in support of this proposition, but they refer to a passage in Nelson where the Supreme Court stated that “government employees who drive vehicles or public authorities who occupy buildings clearly owe private law duties of care and must act without negligence”. This statement is followed by a reference to a tort textbook.

[96] This passage is wholly insufficient to establish that this case falls within an established or analogous category of proximate relationships. As stated above, to determine whether a previously established category of duty applies, a court needs to be attentive to the particular factors which justified recognizing that prior category in order to determine whether the relationship at issue is, in fact, truly the same as or analogous to that which was previously recognized. The general statement in Nelson about public authorities occupying buildings could cover many different types of relationships, including, for instance, the relationship between the government as owner or tenant of a building and an invitee. This kind of relationship is not analogous to the relationship in this case, which involves alleged control over a fire scene or a crime scene in the exercise of public duties.

[97] The Plaintiffs also rely on subsection 8(1)(b) of the CLPA, which states that the Crown is subject to all liabilities in tort to which it would be liable if it were a person in respect of a breach of duty attaching to the ownership, occupation, possession or control of property. Leaving aside the fact that section 8 of the CLPA is not pleaded in the Statements of Claim, I agree with HMQ that the TDSB has not identified any duty attaching to the possession or control of the School that was breached by the OFM. In any event, subsection 8(1)(b) of the CLPA is in itself insufficient to establish that this case falls within an established or analogous category of proximate relationships. This provision only subjects the Crown to the same tort liability as a regular person. It does not speak to the novel nature of any alleged duty of care.

[98] Given my conclusion that a novel duty of care is alleged in this case, the full two-stage Anns/Cooper framework applies.

[99] As stated above, there are generally two situations that may create a prima facie duty of care in claims against a government defendant: where a duty of care arises from the statutory scheme or where a duty of care arises from interactions between the plaintiff and the government and is not negated by statute. The TDSB’s position on this motion is that its claims are not based on a duty of care arising from the FPPA, but, rather, on a duty of care that arose from specific interactions. In my view, the TDSB was correct in conceding that its claim cannot be based on a duty of care arising from the FPPA. It is clear from a review of the FPPA that, with respect to the Fire Marshal, it does not create a private relationship of proximity giving rise to a duty of care. As found in Ali at para. 23, the powers and duties of the Fire Marshal under section 9 of the FPPA are public in nature and do not give rise to a private duty of care.

[100] Thus, to establish a duty of care, the TDSB relies on the alleged interactions between the OFM and the TDSB and on the allegation that the OFM assumed care, custody, power, and control over the School. However, all or almost all of the TDSB’s pleaded allegations as against the OFM, including the allegations relating to the OFM’s control of the School, are based on the position that the OFM should have taken steps to ensure that a fire watch was in place or that the fire had been properly suppressed. In my view, and as discussed further below, these allegations have no reasonable prospect of success. The alleged duty of the OFM to take such steps is negated by the FPPA and, therefore, such a duty cannot fall within any proximate relationship between the OFM and the TDSB. As stated by the Supreme Court of Canada in Imperial Tobacco at para. 45, even in cases where a duty of care is alleged to arise from specific interactions between the government and the claimant, the governing statute is still relevant to the analysis and may negate a finding of proximity.

[101] The failure to ensure that a “proper” fire watch was in place is central to the TDSB’s claim against the OFM. This is illustrated by the TDSB’s pleading that the damages claimed in this case would have been avoided had a proper fire watch been in place. The TDSB states the following:

Had the TFS, OFM or TPS ensured that a proper fire watch was in place inside the Building by trained fire watch personnel equipped with proper PPE, the rekindled fire would have been identified and extinguished, so that the damages being claimed in this case would have been avoided.

[102] The TDSB’s allegations with respect to the alleged failures of the OFM investigator (reproduced in paragraph 34 above) also relate to the failure to ensure that a fire watch was in place.

[103] Similarly, the new “spin” on the theory of HMQ’s liability advanced by the Plaintiffs on this motion and reproduced in paragraph 84 above is also premised on the OFM having the duty to ensure that a proper fire watch was posted, as well as the power to issue directives to the TFS or others to post one.

[104] I reject the Plaintiffs’ submission that the Fire Marshal had the power under the FPPA to post a fire watch at the School or the power to order or direct the TFS to do so.

[105] Statutory interpretation involves reading the words of a provision in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature. See Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26.

[106] In my view, the list of powers and duties of the Fire Marshal listed in subsections 9(1) and (2) of the FPPA show that the Fire Marshal does not operate at the same level as firefighters and fire departments. Broadly speaking, the Fire Marshal deals with issues of policy, general application and oversight. The only duty that requires the Fire Marshal’s involvement with a specific fire is the duty to investigate the cause, origin and circumstances of any fire set out in subsection 9(2)(a). The FPPA does not assign any duty to the Fire Marshal with respect to fire suppression. This duty belongs to municipalities and their fire departments.

[107] The Fire Marshal’s power to issue directives under subsection 9(1)(b) illustrates the scope of the Fire Marshal’s role. Contrary to the Plaintiffs’ submissions, it is clear that the Fire Marshal’s power to issue directives does not include the power to issue directives to TFS staff, the TPS and/or a property owner like the TDSB at a specific fire scene. Rather, the power to issue directives is limited to: (a) assistants to the Fire Marshal – here, the fire chief; and (b) matters related to the FPPA and the regulations. This is consistent with the general oversight role of the Fire Marshal.

[108] The other powers granted to the Fire Marshal in the FPPA must be interpreted in light of the role of the Fire Marshal, as set out in section 9.

[109] The power to enter on land or premises and the associated powers listed in section 14 of the FPPA are powers that can be exercised for the purposes of conducting an investigation or determining whether a substance or device that is likely to cause fire is situated on the land or premises. The latter purpose does not apply to this case – there is no allegation that when the OFM investigator arrived at the School, there was a substance or a device in the School that was likely to cause a fire. Assuming for the purpose of this discussion that the OFM investigator exercised the power to enter into the School to conduct an investigation and also exercised the associated power to prevent entry to the School for the length of time necessary to complete the examination of the land or premises, the exercise of such powers does not impose on the OFM the duty to post a fire watch or to take steps to suppress a fire. No such duty or power is mentioned in section 14 of the FPPA.

[110] In contrast to section 14, section 15 of the FPPA does grant to the Fire Marshal the power to post a fire watch and to “do any other thing that the Fire Marshal […] has reasonable grounds to believe is urgently required to remove or reduce the threat to life.” The introductory language of subsection 15(1) restricts the exercise of the powers listed in it to situations where the Fire Marshal “has reasonable grounds to believe that a risk of fire poses an immediate threat to life”. No immediate threat to life has been pleaded in this case for the period following the arrival of the OFM at the School, and the facts that have been alleged do not support the pleading of such a threat.

[111] It is significant that the only express mention in the FPPA of the Fire Marshal’s power to post a fire watch is in a situation of immediate threat to life. Given this and the general role played by the Fire Marshal, a broader power to post a fire watch cannot be implied.

[112] As for the Fire Marshal’s inspection powers, I conclude that they are irrelevant and inapplicable in this case. The OFM did not attend at the School for the purpose of conducting an inspection to assess fire safety. Further, it is clear from the definition of “fire safety” in section 18 of the FPPA that, in the context of inspections, “fire safety” has a prospective meaning and does not apply in the context of a fire scene, i.e. during or immediately after a fire. In any event, none of the provisions respecting inspections refer to a power to post a fire watch.

[113] Given that the OFM did not have the power to post a fire watch or to order the TFS to take specific steps at the fire scene (including posting a fire watch, using thermal imaging cameras or overhauling), the scope of any duty of care imposed on the OFM cannot include the obligation to post a fire watch or have the TFS post a fire watch or take other steps related to fire suppression. The OFM could not have undertaken such a responsibility.

[114] As stated above, almost all of the TDSB’s allegations as against the OFM are based on the position that the OFM should have taken steps to ensure that a fire watch was in place or that the fire had been properly suppressed. Some examples are set out above. With respect to its position that the OFM assumed control over the School, the TDSB argues that it was forced to rely on the OFM to ensure that a fire did not rekindle while the School was under the temporary control of the OFM. I note, however, that the TDSB has not indicated what, if anything, the TDSB would have done differently if it had been in control of the School and how the fire would have been avoided. In any event, the TDSB could not reasonably rely on the OFM to take steps that the OFM could not take, such as posting a fire watch or directing the TFS to take specific steps related to fire suppression. While this case is not a negligent misrepresentation case, the logic of the following statement of the Supreme Court in Livent at para. 31 applies to this case:

Any reliance on the part of the plaintiff which falls outside of the scope of the defendant’s undertaking of responsibility — that is, of the purpose for which the representation was made or the service was undertaken — necessarily falls outside the scope of the proximate relationship and, therefore, of the defendant’s duty of care.

See also Imperial Tobacco at para. 45.

[115] Turning now to the specific breaches of duty that are alleged in the TDSB’s Statement of Claim as against the OFM (reproduced in paragraph 35 above), they are, with one possible exception, all premised on the existence of a duty of care that encompasses obligations to take specific steps with respect to a fire watch or fire suppression. I note that some of these allegations are inconsistent with the position taken by the Plaintiffs on this motion that they are not alleging a breach of the OFM’s duty to conduct a fire investigation.[^1]

[116] The possible exception is the following allegation:

It failed to warn the Plaintiff, or anyone, of the dangers inherent in leaving the Building without having properly determined the cause of the fire, where there was a heightened risk of rekindling due to the presence of cellulose insulation, where he had expressed concerns about a classroom below the area of origin being "unusually warm", and without the TFS and TPS having implemented a professional fire watch by qualified persons that conformed to reasonable industry standards in all of the circumstances;

[117] As currently pleaded, the word “without having properly determined the cause of the fire” in the first part of this paragraph suggests a breach of the OFM’s duty to investigate and, in particular, a breach of a duty to complete an investigation within a certain time and without interruption. The FPPA does not support the existence of such a duty. However, it may be possible to plead a more straightforward duty to warn that is not based on the failure to complete the investigation into the cause of the fire on May 6, 2019, but, rather, that is based on the knowledge of the OFM investigator and his specific interactions with the TDSB. The second part of the paragraph above appears to be an attempt to do this, in part, but the allegation is not clear and is intertwined with other allegations that do not support a reasonable cause of action. Further, causation is not properly pleaded in the Statement of Claim regarding any alleged failure to warn. This is especially the case since it is pleaded that the OFM investigator did express his concerns about the unusually warm classroom to the TFS and to the TDSB caretaker, electrician and security guard. There is no pleading as to what more was required from the OFM investigator and what steps the TDSB would have taken had it been warned that would have avoided the fire.

[118] I conclude that in its current form, the TDSB’s pleading discloses no reasonable cause of action as against HMQ. This is because either: (a) the duty that is alleged falls outside the scope of any proximate relationship since the OFM could not take the steps that the TDSB alleges it should have taken; or (b) causation is not properly pleaded.

[119] Given that the Plaintiffs’ new theories of liability have not been properly pleaded and were developed for the first time in their joint Factum and in oral argument, I cannot be sure that the TDSB would not be able to allege further material facts so as to plead a reasonable cause of action as against HMQ. Therefore, given that this is not one of the clearest cases where leave to amend should be denied, I grant leave to amend to the TDSB with respect to: (a) a claim in negligence based on a duty of care arising from specific interactions between the OFM and the TDSB, including any duty to warn; and (b) a claim in negligence based on a duty of care arising from the allegation that the School was in the care, custody and control of the OFM. For both claims, the scope of the alleged duty cannot include responsibilities or the exercise of powers that the OFM does not have under the FPPA, such as posting a fire watch or directing the TFS to take steps at the fire scene. Further, causation must be properly pleaded.

[120] As stated above, I have significant doubts that, given the alleged facts of this case, the TDSB will be able to plead the tort of negligence as against HMQ in such a way that it has a reasonable prospect of success. However, I am not satisfied that it is impossible to do so, and I am mindful of the following statement of the Supreme Court in Imperial Tobacco at para. 47:

[…] where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult. So long as there is a reasonable prospect that the asserted interactions could, if true, result in a finding of sufficient proximity, and the statute does not exclude that possibility, the matter must be allowed to proceed to trial, subject to any policy considerations that may negate the prima facie duty of care at the second stage of the analysis. [Emphasis added.]

[121] Given that I have struck the existing allegations as against HMQ and I do not have an amended pleading to consider, it is unnecessary to consider the residual policy concerns raised by HMQ with respect to the second stage of the Anns/Cooper test. The residual policy concerns raised by HMQ may or may not apply to any amended allegations.

b. Allegations regarding the preparation of the OFM’s report

[122] The TDSB’s Statement of Claim contains more than two pages of allegations that the TFS and OFM “sought to mislead, misrepresent and suppress evidence of their negligence and gross negligence in respect of the fire.” In particular, the TDSB alleges that the OFM’s report failed to address key facts relevant to the cause of the rekindling of the fire and “was drafted so as to downplay, mislead, conceal and suppress evidence of negligence and gross negligence on the part of the TFS and OFM.” HMQ seeks to have these allegations struck out as scandalous. The TDSB admits that these allegations do not give rise to a separate cause of action, but argues that they are relevant to its allegations of negligence as against the OFM.

[123] Pursuant to Rule 25.11(b), the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is scandalous, frivolous or vexatious. The Court of Appeal recently discussed this Rule. It stated the following:

Rule 25.11(b) provides that the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is “scandalous, frivolous or vexatious”. A scandalous pleading includes those parts of a pleading that are irrelevant, argumentative or inserted for colour, and unfounded and inflammatory attacks on the integrity of a party: see George v. Harris, [2000] O.J. No. 1762 (S.C.), at para. 20. The focus in considering a challenge to a pleading under this rule is on the relevance of the pleading to a cause of action or defence. As this court recently noted in Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649, 147 O.R. (3d) 644, at para. 15, “[a] fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious. On the other hand, a pleading that raises irrelevant or superfluous allegations that cannot affect the outcome of an action is scandalous, frivolous or vexatious, and should be struck out”. [Emphasis in the original.]

[124] In my view, the TDSB has been unable to articulate the relevance of the allegations regarding the preparation of the OFM’s report. The TDBS correctly admits that these allegations do not give rise to a separate cause of action. As recognized in Ali, no private duty of care is owed by the Fire Marshal in the preparation of a report regarding the cause, origin and circumstance of a fire. The TDSB had no legal interest in the investigation of the fire by the OFM: see Wellington v. Ontario, 2011 ONCA 274. Further, the TDSB has not alleged spoliation or any other cause of action.

[125] Thus, in order to be relevant, the impugned allegations have to be relevant to the alleged negligence of the OFM on May 6 and 7, 2019. I find that they are not. Whether the OFM acted improperly and with improper motives in preparing its report weeks and months after the fire is irrelevant to the issue of whether it was negligent on May 6 and 7, 2019. In other words, even if the Court were to find that the OFM acted improperly in conducting its investigation and preparing its report, it would not in any way make a finding of negligence more likely as against the OFM regarding the events that took place on May 6-7, 2019.

[126] I conclude that the allegations against the OFM in relation to its investigation and the preparation of its report are irrelevant and superfluous, have been inserted for colour, and cannot affect the outcome of the causes of action pleaded as against the OFM. Therefore, they should be struck out without leave to amend. However, given that the TFS did not bring a motion for any relief, I only strike out the passages that contain allegations as against the OFM, which are the following in paragraph 49 of the TDSB’s Statement of Claim:

a. The reference to the OFM in the introductory first sentence of paragraph 49.

b. The second bullet point relating to the May 17, 2019 telephone call, and the reference to the same telephone call at the beginning of the third bullet point.

c. The 6th bullet point relating to a meeting on July 25, 2019.

d. The 7th bullet point and all of its sub-bullet points regarding the OFM’s report.

[127] These allegations cannot be repeated in any Amended Statement of Claim as against the OFM.

2. Potentia’s claims

[128] Potentia has not pleaded all the essential elements of negligence. It has failed to plead that the OFM owed it a duty of care and material facts in support of this position. Therefore, its claim for negligence should be struck out.

[129] In my view, this is one of the clear cases where leave to amend should be denied. The facts pleaded establish no direct relationship between the OFM and Potentia and, as admitted by counsel for Potentia, there were no specific interactions between the OFM and Potentia. Further, it has not been alleged that the OFM knew about the fact that Potentia had equipment at the School.[^2] In the absence of specific interactions, a finding of proximity with respect to the relationship between the OFM and Potentia must arise from the FPPA: see Imperial Tobacco at para. 49. However, as stated above, the powers and duties of the Fire Marshal under the FPPA do not create a private relationship of proximity giving rise to a duty of care.

[130] This leaves Potentia’s claim for nuisance, which is contained in one paragraph:

Further, and in the alternative, the Plaintiff pleads that the fire constituted an unreasonable interference with its property rights, such that the Defendants are liable in nuisance.

[131] To support a claim in private nuisance, the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances. See Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at paras. 18-21.

[132] Causation is a pre-requisite to a finding of nuisance: see Conrad v. Jinchi, 2011 ONSC 6985 at paras. 13-14. Here, Potentia pleads that the fire constituted an unreasonable interference with its property rights, but it does not allege that the OFM caused the fire, nor does it allege how the OFM specifically caused a nuisance. The allegation of nuisance is a conclusory statement as against all the Defendants.

[133] Given that Potentia has not pleaded all the essential elements of nuisance as against the OFM, its claim will be struck. While I have significant doubts that, on the facts of this case, Potentia can properly plead nuisance as against HMQ in such a way that it has a reasonable prospect of success, I grant to Potentia leave to amend its claim for nuisance. Neither HMQ nor Potentia discussed the cause of action of nuisance in their respective facta. Consequently, I am not satisfied at this stage that it is clear that Potentia cannot cure the deficiencies in its pleading by an appropriate amendment and allege further material facts that it knows to be true to support the allegations of nuisance: see Miguna v. Ontario (Attorney General), 2005 CanLII 46385 at para. 22 and South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456 at para. 6.

H. CONCLUSION

[134] The claims against HMQ in the TDSB’s Statement of Claim are struck. Leave to amend is granted to the TDSB with respect to: (a) a claim in negligence based on a duty of care arising from specific interactions between the OFM and the TDSB, including any duty to warn; and (b) a claim in negligence based on a duty of care arising from the allegation that the School was in the care, custody and control of the OFM. For both claims, the scope of the alleged duty cannot include responsibilities or the exercise of powers that the OFM does not have under the FPPA, such as posting a fire watch or directing the TFS to take steps at the fire scene. Further, causation must be properly pleaded.

[135] The allegations in paragraph 49 of the TDSB’s Statement of Claim in relation to the OFM’s investigation and the preparation of its report that are identified in paragraph 126 above are struck out without leave to amend. The claims against HMQ in Potentia’s Statement of Claim are struck. Leave to amend is granted to Potentia with respect to its claim for nuisance.

[136] The claims against HMQ in Potentia’s Statement of Claim are struck. Leave to amend is granted to Potentia with respect to its claim for nuisance.

[137] The claims against HMQ in Potentia’s Statement of Claim are struck. Leave to amend is granted to Potentia with respect to its claim for nuisance.

[138] If costs cannot be agreed upon, HMQ shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this decision. The TDSB and Potentia shall deliver their responding submissions (with the same page limit) within 14 days of their receipt of HMQ’s submissions. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J.

Date: July 21, 2022

[^1]: Among other things, the TDSB alleges that the OFM failed to adequately supervise and instruct its employees with respect to investigating the fire. The TDSB also appears to allege that it was dangerous for the OFM to leave the School before having determined the cause of the fire.

[^2]: I note that in the TDSB action, the Statement of Claim states that the presence of solar array panels on the roof was identified after the fire was extinguished on May 7, 2019.