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Negligence 101

Editor’s note: Lawyer Timothy Wilkin of Cunningham Swan Carty Little & Bonham in Kingston, Ont., prepared a review for the Ontario Association of Fire Chiefs of reported Canadian court cases in the last 15 years that dealt with negligence by municipalities and their fire departments. Over the next few months, we will look at those cases.

There is a surprising lack of reported court cases in Canada dealing with the issue of negligence by municipalities and their fire departments. This dearth means either that fire departments are rarely accused of negligence or that most of the claims against them settle before trial. Given the rigorous commitment to training typical of most fire departments, the lack of cases probably means it’s the former. Even from the reported cases, findings of negligence are more the exception than the rule. 

A negligence claim alleging that an Ontario fire department failed to ensure an adequate water supply was unsuccessful.

But mistakes happen. And when they do, the conduct of the fire department, its officers and firefighters will be held up to the same legal principles and standards that apply when determining the issue of negligence in all types of action.

Negligence is based on the principle that people in positions of responsibility owe a duty of care to exercise their responsibilities in a manner that does not cause harm or loss to others. Whether the alleged negligence relates to a person operating his or her automobile, or a doctor performing surgery, or a fire department responding to a fire call, each of them has a duty at law to carry out their responsibilities according to a standard of reasonableness.

A standard of reasonableness can be a very high standard, especially for people such as professional firefighters who possess specialized skill, training and expertise, but it is not a standard of perfection. In each case, the issue must be answered by comparing the alleged negligent conduct to the standard that would reasonably be expected of another person of similar training, skill and experience operating in similar circumstances. 

The fact that another person might have done things differently does not necessarily mean that there has been negligence. Instead, the issue is whether the conduct can be said to have been reasonable. As a rule, the courts do not want to second-guess decisions that had to be made in the heat of the moment (pun intended!); however, in examining whether particular conduct was reasonable, the courts will look for guidance from any applicable operational or policy manuals and will hear evidence of normal standards of training, practice and procedure. The further the conduct in question deviates from those manuals, policies and standards, the greater the probability of a finding of negligence.

In Ontario, the Fire Protection and Prevention Act, 1997, generally protects fire chiefs, firefighters and other fire department personnel from personal liability for negligence as long as their alleged neglect or default has occurred in the “good faith” execution of their powers or duties. Section 74(1) states: 

No action or other proceeding for damages shall be instituted against a firefighter (definition: a fire chief and any other person employed in, or appointed to, a fire department and assigned to undertake fire protection services, and includes a volunteer firefighter), a fire co-ordinator, a community fire safety officer, a member or employee of the Fire Safety Commission, an assistant to the Fire Marshal, the Deputy Fire Marshal, the Fire Marshal or a person acting under his or her authority, for any act done in good faith in the execution or intended execution of his or her power or duty or for any alleged neglect or default in the execution in good faith of his or her power or duty.

Though this protects fire department personnel from personal liability, section 74(2) renders the municipality (i.e., the taxpayers) vicariously responsible for the losses suffered by an injured party because of a finding that the fire department or individual firefighters acted in a negligent manner.

The reported court cases can be grouped into three categories. The first considers the distinction between policy decisions that might compromise firefighting capacity, but for which there can be no finding of negligence, and operational decisions that, once taken, can be used a basis for a finding of negligence.

The second category examines the extent to which courts try to avoid second-guessing the many difficult and rapid decisions that had to be made in response to a fast-moving and potentially dangerous situation. Even though there may be clear evidence that doing things differently might have had a different outcome, the scope of what the courts will consider reasonable in these circumstances is quite broad.

The third category takes a closer look at operational decisions that involve situations where there is a much closer connection between the situation at hand and generally accepted standard operating procedures. These included situations such as completing a proper overhaul, maintaining a proper fire sentry to prevent rekindles and standards of emergency vehicle operations. In these cases, errors in judgment that are clearly at odds with generally accepted procedures are more likely to result in a finding of negligence.

Case 1.
Riverscourt Farms Ltd. v. Niagara-on-the-Lake (1992)
The plaintiff’s building was destroyed by fire on Feb. 9, 1984. The plaintiff alleged that the municipalities had been negligent by failing to ensure an adequate water supply for firefighting purposes in the municipal fire hydrant. Several firefighters confirmed and the court accepted that there had been an inadequate supply of water to fight the fire.

The fire chief testified that he had conducted flow tests and advised the defendant municipality over a five-year period before the fire that there was an insufficient flow of water in the Niagara Parkway area to fight a large fire in the area where the fire later occurred. He had advised that 1,000 GPM was required, whereas flow tests showed that only between 160 and180 GPM were available.

The director of public works for the town had expressed his concerns and made annual recommendations to council for budget expenditures for the water mains; however, the required funds were not allocated because of budget constraints and other municipal priorities.

The plaintiff also alleged that the fire chief had failed to take all reasonable steps to extinguish or control the fire in its early stages and prevent its spread. It was alleged that the fire department had been negligent by relying on water from a nearby river as an alternative source, rather than calling for assistance from an adjoining municipality under a mutual-aid agreement. 

It was also alleged that the fire department had failed to open the door to the main building from the compression room to determine the advance of the fire and to vent the main building by cutting the steel sheeting on the roof.

■ Legal issues

• Was the municipality negligent in providing an inadequate water supply with which to fight a fire?
• Was the fire department negligent in its delay of 20 to 25 minutes after arrival in drawing water from the Niagara River?
• Was the fire chief negligent in not calling on the mutual-aid assistance program set up with neighbouring municipalities because of the limited water supply?
• Was the fire department negligent in the deployment of its firefighting strategy?

■ Findings
All of the plaintiff’s negligence claims were unsuccessful.

■ Lack of water capacity
In this case, the court had to decide whether council’s budget decisions that did not allocate sufficient funds to upgrade the water supply as recommended by the fire chief and director of public works was a policy decision, or whether the failure to provide adequate water supply for fire fighting was an operational issue that contributed to the plaintiff’s loss and for which the municipality should be liable.

It is a discretionary policy decision for a municipality about whether to provide firefighting services and to establish, maintain and operate waterworks capable of supporting those services. As a result, the courts will not review or hold a municipality negligent in how it chooses as a matter of policy to exercise its discretion.

However, once a municipality exercises its discretion to provide firefighting services, it can be held liable for the negligent performance of those services in the operational sphere.

The plaintiff argued that once council made the policy decision to install a water system and to establish a fire department, the maintenance of the water system for firefighting purposes was an operational issue. The plaintiff also argued that the proper way for the municipality to exempt itself from liability was to pass a bylaw specifically exempting itself from liability when it decided not to upgrade the water system.

The court found that the municipality owed a duty of care to the plaintiff, that there was an inadequate supply of water due to an outdated water system, and it was foreseeable that the damage to the plaintiff’s property could occur, but there was no negligence or liability for the loss.

In rejecting the plaintiff’s arguments, the court concluded that to accept them would be to find that the municipality would owe a private duty of care in all cases when the water or fire system is inadequate by reason of budgetary constraints. 

By considering the recommendations of staff at a public meeting and allocating the budget bona fide at a public meeting according to priorities, council was making a discretionary policy decision not to upgrade its water system and, therefore, could not be held liable in negligence.

The court also held that the council did not have to specifically pass a bylaw to escape liability when for budgetary reasons it did not follow the recommendations to upgrade the water system.

■ Firefighting strategy
The firefighting strategy implemented by the fire chief could not be faulted.

The court found that the presence of combustibles in the building (oil, propane, oxygen, acetylene and paint) justified the firefighters not entering the building. With a propane tank in the building, the “defensive” strategy of not putting firefighters into the building was reasonable.

The fire department was also not negligent in failing to open the door between the main building and the transformer room to view the amount of smoke because of the danger of a backdraft.

Although a vent could have been made on the roof, it was a “judgment call” whether to do so. During the first hour after arrival, there had been time to go onto the roof to vent it and permit the escape of superheated gases, and to install a fire curtain, but the water supply of 250 GPM was insufficient flow to set up a fire curtain. 

Furthermore, even if there had been an adequate water supply, the fire chief determined that it was unsafe to put firefighters onto the roof. There was a risk of the roof collapsing because of the effect of the superheated gases on the wood trusses and the danger of an explosion of a nearby propane tank. This danger was further exacerbated by the lack of access to the buildings to save the firefighters if the roof collapsed.

The court also considered the decisions that had to be made by fire personnel upon arrival at the scene in determining whether it had acted reasonably. In reaching a decision, the judge took into account the following factors:

• The outside fuel tanks had to be pulled away from the building by a tractor;
• The fire was unusual because there was no access to parts of the building;
• There were propane tanks that could explode;
• The chief had to make arrangements to deploy men to protect the neighbouring houses;
• The chief had to have men go down a snow-covered, 80-foot embankment to the river as darkness approached.

The fire chief was not negligent in his decision to go to the river for an unlimited water supply rather than calling on mutual aid. He had invoked mutual aid two or three times before this fire, but in this case, decided that going to the river was the better decision. 

■ Lessons learned
A municipality’s decision not to upgrade an inadequate water supply due to budgetary constraints is a policy decision for which it will not be negligent, even in light of recommendations to do so from its fire department. It can therefore be assumed that the same reasoning would apply to other council decisions relating to the adequacy of the equipment provided to its fire department.

In assessing the performance of a fire department and whether it was negligent in its firefighting strategy, the court will consider all of the circumstances confronting the fire department at the time, especially potential danger to the firefighters. However, in the absence of clearly wrong decisions that fell below the standard of performance normally expected of a properly trained fire department, the courts will not try to second-guess operational decisions made at the time in order to make a finding of negligence.

Part 2 will appear in March.