Meaford prosecution "misguided", lawyer says

May 03, 2012
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May 2, 2012 – Fire departments should not be prosecuted for alleged violations of health and safety guidelines issued by the Ontario Ministry of Labour (MOL) that have no basis in legislation, says the defence lawyer for the Meaford and District Fire Department.

Norm Keith said Wednesday after closing arguments in the trial on a charge of failing to establish an accountability system that the MOL’s Section 21 guidelines on accountability are not binding and should not be used as ground to lay charges against fire departments.

“There are no safety rules in Ontario for firefighters,” Keith said in an interview. “And it’s unfair to prosecute on a guideline. They [the Ontario government] needs to pass a law.”

The Municipality of Meaford and its fire department were charged in 2010 by the MOL under the Occupational Health and Safety Act (OHSA) after two firefighters were injured in a fire in September 2009. Five charges were later withdrawn; the trial resumed this week on the remaining charge on the accountability issue.

The Ministry of Labour’s Section 21 guideline on accountability recommends that departments have an accountability system in place. Earlier testimony indicated that there were efforts made to establish accountability, that the accountability board had been set up, that firefighters had been trained in accountability and usually gave their tags to the senior officer on scene, that some tags had been turned in and were on the board, and that with the urgent nature of the search and rescue and the RIT activation, some firefighters did not turn in their tags.

“The prosecution hasn’t proven the charge that the fire department failed to activate an accountability system,” Keith said. “That’s a different allegation than that [the accountability system] wasn’t perfect – it’s never perfect. They’re saying they never even activated accountability. That’s not true. There was an accountability officer . . . yeah, there was some chaos and there was some confusion and it wasn’t as good as if they had planned to have this fire. Our argument is that [the prosecution] didn’t prove their argument.” 

MOL lawyer Dan Kleiman said in an e-mail this morning that the prosecution's argument focussed on the fact that the municipality, as an employer of firefighters, failed to ensure that all reasonable precautions were taken to protect the safety of firefighters responding to a fire. 

"It's the Ministry of Labour's view that this standard of protection was not met because an accountability system to track firefighters was not activated and this delayed their rescue when firefighters without air became lost in the structure.

"The guidance notes are evidence that activating an accountability system is accepted by the fire service in Ontario as critical to firefighter safety and was therefore a reasonable precaution to take under the OHSA."

Justice of the Peace Thomas Stinson noted in his decision in February to proceed with the charge that although the guidance note does not specify when to set up an accountability system or how to do so, the system must account for the location and function of all firefighters on scene.

“And it must provide a means for extraction of firefighters from the interior of a hazard zone when conditions present an immediate life hazard,” Stinson noted.

Stinson had also noted that Gerry Pritchard, an inspector with the Office of the Fire Marshal, testified that although he observed the accountability board when he arrived on scene later in the day, after the fire had been extinguished, he described the board as not being in operation, with no obvious accountability officer present. Pritchard also testified that he located tags of two firefighters on the back of the cab in one of the pumpers.

Former Meaford fire chief Stephen Nickels testified on Monday that The Meaford and District Fire Department’s accountability policy, which was based on the Section 21 guideline, “was not expected to substitute for 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, this would give the officer a chance to adjust things in order to complete the tasks he needs to,” Nickels said.

Keith noted Wednesday that the police dispatcher had indicated to firefighters that the owner of Reeds Restaurant was inside the burning building, that the owner’s girlfriend told firefighters he was inside, and that the man’s car was in the driveway – all factors that contributed to the decision to send two firefighters into the building to search for the man.

Keith reiterated in the interview what he had noted in his closing argument: that the charge should be thrown out because it’s based on a non-legal guideline.

“They’re saying that [Meaford] breached the guideline,” Keith said. “Whether they did or not doesn’t matter because it’s not a law.”

He also noted that Nickels, and former Meaford volunteer fire captain Mike Molloy – who is now the fire chief – were told by Ministry of Labour inspector Charlie Nixon that no charges would be laid.

“They relied up on that, to their detriment,” Keith said. “And [the MOL] should be held accountable. The argument is, basically, that it is a breach of an undertaking not to prosecute.”

Further, Keith said, even if there had been a failure to activate the accountability system, the defence has established that the department took reasonable precautions for the safety of the firefighters on scene.

“They were trained to provincial and Office of the Fire Marshal standards,” Keith said. “They were well organized in their SOGs and they paid high attention to safety, and on the scene all reasonable precautions were taken.”

Lastly, Keith said, the fire department’s mandate is to protect life and property.

“Basically, there’s a legal defence that if you’re breaking the law and you’re doing so for a higher moral or social good: the reason [firefighters] were there was to save a life. They were told by the police operator that [the owner] was in the building, the girlfriend showed up and said he was inside, the guy’s car was in the driveway – so that points to the reasonableness. There was a moral imperative that gives the defence of necessity.”

Stinson is expected to rule on the charge in July or August. He can stay the charge, dismiss the charge or convict the municipality and the department. The maximum penalty for a conviction is a fine of $500,000.

Molloy, who testified all day Tuesday, said Wednesday evening that the cost of mounting a defence against the charges would have provided a RIT/firefighter survival train-the-trainer course for every fire department in Ontario, or new bunker gear for his 24 volunteers every 10 years for the next 90 years.

“As a chief, the fact that we have been charged is very disturbing. I feel we were preforming our duties, which are to save lives and protect property. The final cost to the municipality as been substantial, however, [the cost] was necessary to defend the integrity of our department as well as all fire services as a whole.”

Keith noted the frustration among fire chiefs over the process.

“There is no good purpose between the MOL and the fire service, or the OFM,” he said. “And for good reason. The fire service in Ontario should be concerned about the aggressive stance by the Ministry of Labour. It’s quite scandalous. In my opinion, in these circumstances, the prosecution of [the Municipality] of Meaford fire department was egregious, unnecessary and very misguided.”

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