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Negligence 101: part 2

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. We looked at two cases in the February issue of Fire Fighting in Canada. Three more cases are below. A final instalment will appear in May.

CASE 1. Smith v. Jacklin (1994) – Facts
The plaintiff was a tenant in a rooming house that was destroyed by fire on April 11, 1991.  The plaintiff was injured in the fire and commenced an action seeking damages against various defendants, including the fire department, for failing to properly carry out its obligations under its fire prevention bylaw.

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

Another tenant of the rooming house negligently caused the fire by attempting to cook a meal in his room. The plaintiff could not escape from his third floor room down the only stairwell and suffered injuries and burns when he had to jump from a window.

The plaintiff did not sue the municipality or the fire department for any shortcomings in fighting the fire, but rather sued them for negligence with respect to its prevention procedures, including inspection and enforcement of the Ontario Fire Code.

The Parry Sound Fire Department had notified the owners of the boarding house by letters in 1984 and 1986 about deficiencies in the building, including the lack of an alternative exit from the second and third floors, and advised them that the deficiencies constituted violations under section 9 of code. 

At the time of the fire, the fire chief had been acting as the fire prevention officer. He had not established a timetable or schedule for ensuring compliance by the property owners and instead, had relied on voluntary compliance with the code.

The plaintiff alleged that since the town had passed a fire prevention bylaw imposing a positive duty on the fire department to inspect buildings and enforce the code, the town owed a duty of care to any person who might make use of a deficient building.

■ Legal issue:

• Was the fire department negligent by not inspecting the rooming house and not enforcing of the code?

■ Court’s findings
The town was found to be 25 per cent liable to the plaintiff for injuries suffered in the fire because it had failed to enforce the fire prevention bylaw against the owner of the building, which contributed to the plaintiff’s injuries. 

The town’s decision to pass a fire protection bylaw was a discretionary policy decision.  Section 12 of the bylaw created the Division of Fire Prevention and imposed on the deputy chief the duty to conduct fire prevention inspections of premises and enforce the code.

Once the municipality assumed this obligation, it owed a duty of care to building occupants, including the plaintiff, to enforce the code. Failure to discharge this duty according to a standard of reasonableness contributed to the plaintiff’s injuries, which were a foreseeable consequence of the breach.

Though liable to the plaintiff for personal injuries caused by his difficulties evacuating the building, the municipality was not responsible for any of the personal belongings that had been lost. Construction of a second stairwell according to the Ontario Fire Code would have saved the plaintiff from personal injury but would not have made a difference with respect to the loss of his belongings.

The owners of the building, the tenant who caused the fire and the plaintiff, who had been in a deep alcohol-induced sleep that slowed his slow reaction time, shared the balance of liability.

■ Lessons learned
It was a policy decision for council about whether it would pass a bylaw assuming responsibility for the enforcement of the Ontario Building Code. However, once a municipality imposes on itself or its employees a positive duty to carry out certain stipulated fire-protection services, it will be negligent if it fails to carry out those duties in a reasonable manner and will be liable for any injuries or losses that are a reasonably foreseeable consequence of that negligence.

Case 2. Bayus v. Coquitlam (1993) – Facts
The plaintiffs were tenants in a duplex. The tenants discovered a fire in the carport of their unit and called 911, but gave an incomplete address that caused some confusion about which municipality the property was located in.

The fire department was eventually dispatched, but the maps available to the dispatcher were out of date and did not indicate that the duplex was on a dead-end street.  As a result, the fire department arrived three to four minutes later than it should have. 

Approximately 10 minutes elapsed between the time of the initial dispatch and the time when water was first applied to the fire. Expert evidence demonstrated that a proper response time was five minutes.

■ Legal issue:

• Was the municipality negligent in the delivery of firefighting services provided to the plaintiffs?

■ Court’s findings
The court found that the city owed the plaintiffs a duty of care to provide adequate firefighting services by responding in a reasonable manner and without negligence. The failure to maintain up-to-date street maps and addresses constituted a breach of that duty. The city was negligent and held 15 per cent liable for the plaintiffs’ damages on the basis that had the fire trucks arrived earlier, there would have been less damage to the duplex.

The court determined that the most significant reason for the fire department’s delay in reaching the fire was the tenants’ own conduct at the time of the 911 call. Therefore, the tenants were found to have been contributorily negligent for the balance of their loss.

■ Lessons learned
Citizens are not entitled to expect a standard of perfection from their fire departments, or even a standard applicable to the best trained and equipped fire departments. Instead, they may expect a high standard of service consistent with the resources the community has made available for fire protection. 

One of the basic requirements for all municipalities is that their fire departments maintain up-to-date maps in order to avoid unnecessary or unreasonable delays in reaching a fire.

Case 3. Bell v. Winnipeg (1993) – Facts  
A fire at the plaintiff’s home on June 8, 1984, caused the destruction of the house and its contents, totalling $342,000. The person who initially reported the fire to 911 incorrectly informed the dispatcher that the home was outside the city’s limits.

At the time, there were no mutual-aid agreements between the city and the two surrounding municipalities. In the absence of an agreement, a decision had to be made about which municipality had jurisdiction over the fire. 

Though the precise location of the fire was not yet known, the duty fire captain dispatched one unit to the general location in an effort to locate the fire. In the meantime, and after asking other personnel, the dispatcher realized the location was within the city and dispatched the fire equipment to the property eight minutes after the call.

The home was totally involved in fire when the first personnel arrived. The fire had advanced rapidly between the time of the call and the arrival of the firefighters. The firefighters experienced trouble because of an inadequate water supply (the fire was in a non-hydrant area) and excessive mud. The firefighters feared that the firefighting equipment would get stuck in the mud because they were sinking into it over their ankles. 

A check was made to determine whether there was a person in the home. The firefighters then started taking steps to control the fire.

The plaintiff brought an action in negligence against the city of Winnipeg and the fire chief. The plaintiff’s expert was critical of the fact that a Coventry pump with hard suction capable of drawing water from a dugout approximately 350 metres from the home was not brought on the first truck to arrive at the scene. 

■ Legal Issues:

• Was the fire department negligent in failing to respond in a timely manner to the 911 emergency call advising of the fire?
• Was the chief negligent in failing to properly and adequately instruct the firefighters as to the location of the boundaries of the city?
• Was the department negligent in the manner in which firefighting efforts and equipment were applied at the scene (Did it fail to provide adequate and effective firefighting equipment to fight the fire? Did it fail to use the fire fighting equipment properly? And did it fail to use proper and adequate fire fighting techniques?)?

■ Court’s findings
The action was dismissed. There was no negligence attributable to the department or the chief. The decision was upheld on appeal to the Manitoba Court of Appeal.
The plaintiff was responsible for instructing his family and tenants on how to give information about the property’s exact location and how to reach the home in the event of an emergency.

The court found that the Coventry pump would have been brought on the first unit had the first 911 call given proper directions. It was the judge’s opinion that the department’s  policy was carried out and no negligence could be attributed to the pump not being carried on the first unit. 

There was also no negligence on the part of the firefighters in the strategy used and the methods employed to fight the fire. The firefighters determined it would be unsafe to attempt to draw water from the lagoon because of the excessive mud. In exercising this judgment, the judge found that they were not negligent.

■  Lessons learned
A fire department will not be held to a standard of perfection. If a department is incorrectly informed of the location of a fire and therefore slow to arrive on the scene, it cannot be held responsible for any additional loss that might have occurred.

The courts are prepared to assess a department’s strategy, methods and performance against a standard of reasonableness in the particular circumstances. However, there will only be a finding of negligence where it is clear that the department performed below the standard that would be normally be expected of a properly trained department operating in similar circumstances.

Part 3 will appear in May.