Aug. 8, 2012, Toronto – The last of six charges under the Occupational
Health and Safety Act against the Municipality of Meaford, Ont., and its
fire department has been dismissed.
The ruling by Justice of the Peace Thomas Stinson on the charge of failing to activate an accountability system was released Tuesday, three months after a trial ended in provincial offences court in Owen Sound, Ont.
Stinson said that “in several different forms . . . an accountability system [was] in fact activated by the Meaford Fire Department at the scene of the Reeds fire” in 2009. The Crown, he said, did not prove its case beyond a reasonable doubt.
“It’s been tough,” Meaford Fire Chief Mike Molloy said in an interview Tuesday afternoon. “Incredibly tough. You go through doing your job and you always try to do the right thing, and then to be charged with something when you’re trying to save someone’s life . . . ”
Molloy had toned his volunteer firefighters to the Meaford and District Fire Department at supper time Tuesday to tell them about the ruling.
Meaford lawyer Norm Keith said in a phone interview from London Tuesday afternoon that although he is delighted with the ruling, he believes the prosecution under the Occupational Health and Safety Act (OHSA) by the Ontario Ministry of Labour (MOL) was without merit and never should have been initiated.
Keith also said he is frustrated that the court declined to rule on a defence application to stay the charge on the basis of abuse of process by the MOL. A ruling in the defence’s favour would have allowed Meaford to recover its legal costs from the MOL.
“In that regard, there’s no clear statement that the Ministry of Labour was wrong in this prosecution and, unfortunately, fire departments in Ontario are still at risk of prosecution because without clear legal standards there should not be enforcement of the Section 21 guidelines,” Keith said.
Keith argued in court and has said publicly that Ontario’s Section 21 guidelines for occupational health and safety of firefighters are not legally enforceable.
A trial on the single charge proceeded after five other charges were either withdrawn by the Ministry of Labour or dismissed.
The charges were laid after firefighters Rob Pilon and Bryan Gibbons were injured in the Reeds Restaurant fire on Sept. 9, 2009. The two had entered the restaurant to do a primary search for the restaurant owner. The owner’s girlfriend had told firefighters on the ground that the man was inside the building. Both firefighters ran low on air during the search and had to be rescued by the rapid intervention team.
Stinson says in his 16-page ruling that although there is no specific legislative requirement for a fire service to set up an accountability system at a fire scene, the Section 21 guidelines note the importance of doing so. He also says there is nothing specific in the guidance note about when or how to set up an accountability system or the number of firefighters required to do so. Stinson also points out that the guidance note says the “accountability system can be adapted to individual fire department resources.”
Several witnesses testified during the trial that the accountability system was in place but not all firefighters checked their tags.
Stinson noted that Meaford’s standard operating guideline (SOG) on accountability specifies that the system is not expected “to substitute for the good judgment and experience of a fire officer under unusual conditions.”
Stinson also noted former Meaford Chief Steve Nickels testified that the SOG “is included to cover circumstances where the fire department might not have an ideal number of personnel on scene, but a need still arises to extract someone from a burning building.”
Stinson notes in his ruling that Meaford’s SOGs were not fully followed at the Reeds fire.
“But,” the ruling says, “it is also clear that neither the OHSA nor any regulation pursuant to it specifically addresses the issue of fire departments’ accountability systems.”
Stinson says the guidance note on accountability is brief and it acknowledges that it can be adapted to different situations.
“Given the inherent unpredictability of fire scenes,” he says, “this makes sense.”
Stinson further notes that although the fire department’s own SOGs on accountability weren’t fully followed, “these SOGs set out much higher and more detailed standards than do the Section 21 guidelines.”
Stinson reiterated in the ruling that the charge under the Occupational Health and Safety Act is of “failing to activate an accountability system to track firefighters entering a burning structure," rather than the degree to which the accountability system is executed.
“It is important to note that the particulars do not allege that the defendant failed to implement fully an accountability system, or that it failed specifically to follow any of the Section 21 Guidelines or any of its own SOGs,” Stinson says. “The particulars bluntly allege that the defendant did not activate an accountability system.”
Stinson noted that although the Crown failed to prove its case and the charge was therefore dismissed, the possible defences put forward by Keith may be of use to other fire departments that are charged under occupational health and safety legislation. He also noted that firefighters face more difficult and unpredictable circumstances than other workers covered by OH&S legislation.
“This court merely wishes to point out that, because of the inherent unpredictable and dangerous nature of firefighting, defences such as mistake of fact and necessity may well be more easily relied upon by fire departments than they might by other defendants in workplace injury cases that occur, for example, on an assembly line in a factory.”
Chief Molloy agrees.
“It recognizes that what we do is inherently dangerous," he said of the ruling. "We do have to take certain risks in carrying out our duties. You will read in that says you’re not immune from general duty clause but we certainly feel that we didn’t do anything wrong. Having this kind of vindication is great.”
The Ministry of Labour has 30 days to appeal the ruling.