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Former Meaford chief told charges not warranted

May 1, 2012, Owen Sound, Ont. – Former Meaford fire chief Stephen
Nickels was told at least twice by a Ministry of Labour investigator
that the municipality and the fire department would not be charged after
two firefighters were injured in the Reeds Restaurant fire in September
2009.

The municipality based its decision not to retain counsel and to comply with orders issued by the ministry on those assurances from investigator Charlie Nixon, Nickels said Monday afternoon in provincial offences court in Owen Sound, Ont.

“Did he say anything about the possibility of charges under Occupational Health and Safety [legislation],” asked defence lawyer Norm Keith.

“He said charges were not warranted in this situation,” Nickels said.

“You’re quite sure he said that,” Keith asked.

“I’m positive he said that.”

The municipality and the Meaford and District Fire Department were charged with six violations under the Occupational Health and Safety Act on Sept. 8, 2010 – 364 days after the fire in which two firefighters ran low on air while searching for the restaurant’s owner, and had to be rescued. Three charges were withdrawn before the trial started in September, and another two were withdrawn in February. The trial resumed Monday on the remaining charge of failing to set up an accountability system. The charges were the first laid against a fire department under OH&S legislation since 1994.

“On how many occasions did Mr. Nixon tell you there would be no charges?” Keith asked.

“At least two,” Nickels said.

“Did you believe him?”

“Yes.”

Nickels also said the investigator told him that, if anything, the municipality may be fined, but that his co-operation in the investigation could result in a lesser levy.

Nickels said under questioning by the defence lawyer that the investigator had issued three-page premise/project form shortly after he arrived at the fire scene that directed the Municipality of Meaford to produce certain records and reports.

Over time, the ministry issued several forms to the municipality, which complied with all the orders, including the creation of a compliance plan.

The premise/project forms include a caveat noting that the recipient can appeal any orders issued by the ministry. Nickels said he and the municipality were aware of the option to appeal but that it was easier and cheaper to comply than to mount an appeal, especially given the assurances from the investigator that no charges would be laid.

“If you had known on Oct. 6, 2009, or within the 30-day appeal period that the Ministry of Labour was going to lay charges, would you have taken a different approach?” Keith asked.

“Absolutely,” Nickels said. “We would have engaged legal counsel and moved forward in that direction.”

Earlier, Nickels had explained that the department had its own accountability policy, based on the Ministry of Labour’s Section 21 guidance note on accountability.

Nickels said the accountability policy is not expected to substitute for the good judgment of a fire officer under unusual conditions.

“It’s part of this for circumstances when you don’t have enough personnel on scene and you’re in a rescue situation and are attempting to extract a person from a building,” Nickels said. “This would give the officer a chance to adjust things in order to complete the tasks he needs to.”

Keith asked Nickels if during his tenure as fire chief there had ever been an incident to which all 24 of the department’s volunteer firefighters responded?

“Not that I can recall,” Nickels said.

“I suppose that’s part of challenge of volunteer department,” Keith said. “You’re  never sure who’s going to respond.”

Nickels also testified about the breathing apparatus of the firefighter who ran out of air during the search for the restaurant’s owner.  Two firefighters had been inside the restaurant for just a couple of  minutes when the low-air signal on one SCBA went off. The BA was tested by the manufacturer but there has not been a definitive explanation about why the firefighter ran out of air.

“Did Mr. Nixon ever tell you why there was no independent testing of the equipment?” Keith asked.

“He made some reference to the fact that they [the manufacturer] would know the equipment better than anyone,” Nickels said.

“Were you, as fire chief, ever provided with a satisfactory explanation as to why [the firefighter’s] BA  failed?” Keith asked.

“No.”

Earlier Monday, Barry Malmsten, the executive director of the Ontario Association of Fire Chefs (OAFC), testified about the value of the volunteer fire service to Ontario municipalities. Keith, the defence lawyer, produced a four-page report that Malmsten had written examining the cost-savings –  a total of $1.8 billion – to municipalities that use volunteer firefighters rather than full-time firefighters.

Crown lawyer Dan Kleiman objected to the introduction of the report on short notice – he was made aware of the report on Friday afternoon – and said he didn’t understand the relevance of the report to the proceedings.

Keith said the defence had wanted to have Fire Marshal Ted Wieclawek testify but that proved to be challenging given the fire marshal’s busy schedule.

“Our intention was to call the fire marshal,” Keith said, “to outline the cost value of volunteer fire departments in Ontario.

“Despite repeated attempts,” Keith said, “we were told the fire marshal is a very busy man.”

Keith said if the court did not allow Malmsten to testify, he may have to redouble efforts to have Wieclawek appear.

Justice of the Peace Thomas Stinson allowed Malmsten’s testimony and his four-page report.

Meaford Fire Chief Mike Molloy, who was a volunteer captain at the time of the incident and the entry-control officer on scene, testifies this morning. Summations are expected tomorrow.