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Editor’s blog

Nov. 12, 2013, Toronto – This morning, in Elliot Lake, Ont., lawyers for
the parties involved the rescue portion of the inquiry into the
collapse of the Algo Centre mall in June 2012 give their final
summations.

Written submissions were due Friday and are posted online here (pour a large coffee – there’s lots of reading below and in the submissions).
That said, I was a bit surprised when I opened the files over the weekend to find that the submission by the Hicks Morley lawyers for the Ontario Association of Fire Chiefs (OAFC) includes just four recommendations:

1. That the fire chief be the incident commander for the duration of a rescue/recovery operation;
2. That the OPP’s UCRT team have a senior officer in the command tent;

3. That the province consider funding the shortfall in HUSAR support created by the cancellation of the federal Joint Emergency Preparedness Program – and possibly divert UCRT funds to HUSAR;

4. That the role of the Ministry of Labour during an emergency response be clarified.

Surprisingly, to me anyway, there are no recommendations dealing with consistency in incident command (although the IAFF submission calls for mandatory IMS in all Ontario municipalities), interoperable communication, or communication in general given the lack thereof during the incident – almost everyone who testified during phase II of the inquiry, including Elliot Lake Fire Chief Paul Officer, noted that communication was, by times, a problem.

Communication is, however, addressed by the province in its submission; the Ministry of Community Safety and Correctional Services says it will try to bolster the level of support it provides to municipalities during incidents and will identify communications leads and protocols for critical incidents.

Interestingly, interoperable communication was noted by Commissioner Paul Belanger during the inquiry as a significant issue, but is not mentioned in the commissioner’s terms of reference for the submissions which explains, I guess, why it is not addressed in any of the parties’ recommendations. (My understanding is that this issue may still be addressed in the commission’s recommendations.)

While I didn’t sit through all of phase II, I was in Elliot Lake for much of the testimony relevant to the OAFC’s mandate – that of Fire Chief Paul Officer, firefighters John Thomas and Darren Connors, HUSAR’s Bill Neadles, several OPP officers and OPP Chief Supt. Robert Bruce. And I watched much more testimony online.

While I understand that the OAFC’s interest specifically involved the role of the fire chief and the fire department and not the broader issue of emergency management in Ontario, I find it interesting that some of the topics that consumed such enormous chunks of inquiry time, are specifically related to fire, and significantly affected the response (which was commanded by the fire chief), aren’t addressed.

Further, given the hours spent during the inquiry on explanations of incident command in general, unified command, PIMS, NIMS, the OPP’s own incident command system, Fire Chief Paul Officer’s role as the IC and the focus on the need for all agencies to understand and embrace the same incident-command practices, I wondered why there was no mention of this by the OAFC.

Some e-mail exchanges and conversations over the last couple of days, have provided some clarity. As I’ve said in previous posts, incident command in Ontario is a mish mash of the province’s own system (which is under revision) and others such as Blue Card, and it’s not mandatory. According to OAFC president Matt Pegg, making Ontario’s provincial incident command system mandatory would necessitate considerable changes to the Section 21 Occupational Health and Safety guidance notes, which, apparently, is a significant task.

“Does the OAFC support the provincial IMS?,” Pegg said Monday. “Yes, we’re partners in that but . . . by and large provincial IMS needs to be an EOC tool and not infiltrate or negatively affect the fire-ground command system – it’s all around recognition of the fact that we we’ve built much of the firefighter health and safety program via Section 21, and you can’t change part of it without changing the whole thing.”

The province, in its submission, acknowledges that in Elliot Lake, “the roles and responsibilities of various responding agencies were not fully understood by those persons managing the emergency,” and that the provincial IMS was not being applied consistently. It says it will review the system with the groups that participated in its development – including the OAFC – in an effort to develop a better culture of compliance.

Further, the province says, it is:

• evaluating the continued use and adoption of IMS across all aspects of emergency response;
• clarifying definitions of emergency-management related terms;
• encouraging the establishment of an incident-command structure at the initial stages of an emergency response, and, in particular, when provincial resources are deployed;
• enhancing the province’s ability to support the municipal response to building collapse;
• revising the MOU regarding HUSAR response to clarify areas such as incident command;
• and engaging with the MOL to clarify roles of inspectors and engineers.

Back to the OAFC’s recommendations. We heard repeatedly during the inquiry that Chief Officer was indeed the incident commander for the overall operation; at times, members of other agencies – the OPP in particular – were confused about this because HUSAR’s Bill Neadles was the IC for the rescue component and members of the OPP’s UCRT team reported to Sgt. Jamie Gillespie, and some of them weren’t aware of the overall command structure. I’m not sure where it says that the fire chief, in a recovery, wouldn’t be the incident commander (nowhere, I confirmed yesterday), so it seems the OAFC’s recommendation is specifically in response to the OPP assuming command in Elliot Lake after the rescue was deemed a recovery. (Chief Officer testified that he handed over command to the OPP once the rescue operation became a recovery.)

Indeed, Pegg explained yesterday that as with a fatal fire at which the fire chief is the IC and remains so for the duration of the incident – including while police and the coroner are completing their duties – there is no need in any rescue/recovery to transition command to another agency. I’m still not quite clear on this (and there is no further detail in the submission) – certainly at fatal fire scenes the investigation continues well after the fire chief/IC leaves the scene, and someone else assumes control of the scene. (Pegg notes that in many instances, mult-jurisdictional investigations are carried out but not until all related rescue and recovery operations are completed under the IMS that is operating on scene.)

The OAFC does point out in its submission that under provincial legislation, fire is responsible for rescue whereas the Police Services Act makes no mention of such, so perhaps the recommendation is simply meant as a clarification for the OPP. (It’s interesting to note too that the OPP’s submission is wrapped into the province’s submission rather than in a separate document with separate recommendations.)

As for recommendation 2 – that the OPP’s UCRT have a senior officer in the command tent – OPP officers who testified said the lack of OPP presence in the command tent was due to insufficient staffing (the senior officer was away and did not deploy to Elliot Lake) and are on record several times saying protocols will be changed to ensure that a superior officer deploys with the team at all times. I’m sure there’s a political reason for this recommendation, given the OPP’s attention to the issue during the inquiry.

“We’re very pleased that OPP has acknowledged that that needs to be done differently,” Pegg said in an interview. “That acknowledgement doesn’t necessarily mean that it gets done and doesn’t determine that the necessary procedural amendments will happen. Having the already-agreed to changes documented in the recommendations will help to ensure that these improvements get implemented.”

Recommendation 3, the HUSAR funding, is addressed by the OAFC, the IAFF and the City of Toronto. All three ask that funding be provided: the OAFC by the province; the IAFF by Ottawa and, if that fails, then by the province; and the City of Toronto would “welcome any recommendations the commission may make with respect to funding for TF-3,” which, to me, seems a rather feeble statement given the magnitude of the issue.

“Toronto would strongly support a recommendation that the federal government reinstate the JEPP funding and/or that the province consider implementing a similar program,” the City of Toronto submission says,

Not that I’m an expert on HUSAR or JEPP, but my understanding is that the JEPP program will not be resurrected, that representatives from Calgary and Vancouver – which both have HUSAR teams – are leading the talks with Ottawa to find an alternative for funding.

Indeed, Vancouver Chief John McKearney explained in an e-mail yesterday that representatives from the four HUSAR teams have asked that Public Safety Canada maintain the program through $1.6 million in annual funding ($400,000 per team.) The cost to maintain each team is $1.2 million, which means provincial and local governments would need to provide $800,000.

Only the OAFC suggests that the province divert UCRT funding to HUSAR, which seems extreme given that the two teams’ roles are different and, as I understand it from listening to the testimony, there’s much a need for UCRT as there is for HUSAR; other submissions encourage the two teams to train together. To me, it’s bad form to publicly suggest that money be taken away from one agency and given to another, particularly when the two teams are supposed to work together.

Pegg, who is a deputy chief in Toronto, disagrees.

“The real undercurrent to this,” he says, “is that the OAFC has very significant concerns with existing funding model that includes money being allocated to UCRT at the expense of HUSAR.

“We have a HUSAR team in Ontario that is underfunded, yet considerable funds being funneled toward UCRT.

“There may be a perception that they have very different roles but when you look at the urban search and rescue competencies and skill sets of UCRT, which is being described as a medium-level team, there’s nothing from a USAR perspective that UCRT can do that the heavy team can’t, but the reverse is not true.

“So, living in a provincial system like we are right now where funding and resources are very tight, if you don’t have enough money to go round cart blanche, does it not make sense that you would allocate all of your funding to developing and maintaining one team that is ready and able to be deployed when required so that you don’t end up with two partially and inadequately funded teams?”

It will be interesting to see what the OPP representative at the Dec. 5 and 6 inquiry roundtable has to say about that.

Finally, the recommendation that the role of the Ministry of Labour be clarified. There was, by all accounts, in Elliot Lake, confusion about whether the MOL could issue a stop work order during a rescue. I listened to and read hours of testimony on this issue and I was still in the dark at the end of the inquiry given the conflicting versions of events.

So it’s perfectly logical that the OAFC and others are asking for clarity. I still don’t understand, however, whose job it is to ensure that fire chiefs and other responders understand the powers of MOL inspectors at incidents and what authority they have over rescues and/or recovery operations.

Which is why I spent a good chunk of Sunday reading the submission by the province to the inquiry commissioner.

Here’s some of what I learned:

1. Contrary to some of the testimony, the Occupational Health & Safety Act does not differentiate between a regular workplace and a rescue or recovery.

2. Contrary to some of the testimony, first responders are NOT, under any circumstances, exempt from the act.
 3. First responders can disturb a scene (evidence) to save a life, maintain an essential public utility or transportation system, or prevent unnecessary damage to other property.

4. If an inspector finds a contravention of OH&SA, a stop work order may be issued – either permanent or temporary.

5. MOL inspectors must always exercise their enforcement authority appropriately to the circumstances. According to the province’s notes, this may require that inspectors exercise their discretion under the OH&SA differently in a rescue situation than in an investigation but the OH&SA must be complied with to the extent necessary to protect first responders from dangers.

It becomes clear from reading the province’s submission that incomplete meeting minutes, semantics, rumours, assumptions, and stress clearly led to a situation in which confusion reigned.

Further, the province says, “There is no evidence that it was ever the intention of the MOL to issue an order preventing all access to the collapse zone. In any event, no such order was ever issued. The rescue had already been called off by Staff Insp. Neadles before MOL did issue an order, and when it was finally issued, the order explicitly excluded rescue and recovery workers, which allowed the rescue and recovery operation to continue.”

Better communication – which, again, is not among the recommendations (but may yet be a recommendation of the commissioner) – may have prevented some of the confusion and frustration.

Summaries of the submissions from all parties – the OAFC, the City of Toronto and its HUSAR team, the IAFF, the City of Elliot Lake and others – were to be heard this morning. Commissioner Paul Belanger hosts the roundtable in Ottawa in a few weeks, with groups of experts to consider the recommendations. Pegg will represent the OAFC; names of the other participants have not been made public yet.