March 1, 2012 – Two of three remaining charges under the Occupational Health and Safety Act against the Municipality of Meaford and its fire department have been dropped by the prosecution but the trial will proceed on the charge of failing to set up an accountability system.
Ontario Ministry of Labour spokesman Matt Blajer confirmed Wednesday that charges of failing to establish a rapid intervention team and failing to set up a command post have been withdrawn. A trial on the remaining charge is scheduled for the week of April 30, he said.
Meaford Fire Chief Mike Molloy learned of the development Wednesday afternoon.
“We’re somewhat disappointed that we have to go back to court,” he said.
Meaford and its fire department were charged by the ministry under OH&S legislation for failing to take every reasonable precaution to protect workers.
Two Meaford and District Fire Department firefighters were injured in September 2009 while searching Reeds Restaurant for the owner, who they believed was inside the burning building.
Three of six original charges against the municipality and the fire department were withdrawn last fall by the Crown. The court heard Crown evidence on the remaining three charges in December, after which defence lawyer Norm Keith asked for a directed verdict of acquittal based on what he said was a lack of evidence to support the charges.
In a lengthy written decision filed with Provincial Offences Court in Owen Sound last Thursday, Justice of the Peace Thomas Stinson says there was “absolutely no evidence to support” the allegation of failing to set up a rapid intervention team, and that “there was simply no evidence provided to the court that in any way addressed the particulars of count #4,” failing to establish a command post.
However, he says, “it is clear to the court that there is certainly some evidence which, if believed, could lead a trier of fact to conclude, beyond a reasonable doubt, that an accountability system was not properly activated at the scene of the Reeds fire and that every precaution reasonable in the circumstances was not taken.”
Stinson notes that there is no specific legislative requirement for a fire service to set up an accountability system at a fire scene but that Ministry of Labour guidance notes outline the importance of doing so.
“It is recommended that employers establish written policies and operational guidelines for personnel accountability and entry control in accordance with the provision of their own incident command systems,” the guidance note says.
Stinson’s decision notes that the guidance note on accountability is just a single page in length and is not specific about when to establish an accountability system on scene or how to do so.
Stinson also says the guidance note acknowledges that “the accountability system may be adapted to individual fire department resources” but must account for the location and function of personnel and provide a means for extraction of firefighters from the interior of a hazard zone when conditions present an immediate life hazard.
Stinson notes that according to the defence witnesses who testified in December, there were inconsistencies in the accountability process at the Reeds Restaurant fire, and, he says, an inspector with the Office of the Fire Marshal (OFM) testified that the accountability board had not been in operation at the time of the fire.
Keith, the fire department’s lawyer, said in December that if the court opted to proceed with any of the charges he would ask to have the charge or charges stayed on the basis of abuse of process by the Ministry of Labour.
“Part of the complaint that the fire department has about the Ministry of Labour is that the Ministry of Labour’s inspector . . . made promises to the fire department in the course of the investigation that there would be no charges – so a breach of those promises will be argued, amounting to Charter violation and an abuse of process.”
Keith was not immediately available for comment on Wednesday but he told Fire Fighting in Canada in December that the ministry’s decision to lay the charges, and the role of the OFM in the proceedings, has significant implications for Ontario fire departments.
“It shows a willingness on the part of the Ministry of Labour to prosecute not only the fire service but also emergency services such as police and EMS. And it’s disturbing, because emergency services respond to crisis situations, where often the community expects the emergency services, including fire, to take risks and protect the community, and emergency services respond to uncertain circumstances that are very hard to predict and prepare for.
“So, if emergency-service personnel, including a firefighter, is injured because of uncontrolled or unforeseen circumstances, it’s disturbing to think that the Ministry of Labour might point the finger of blame at the emergency service, or the fire chief, or the firefighter who was trying to serve the public interest.”
Meaford trial to proceed on single charge
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