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Weight of the World

Editor’s note: Fire Fighting in Canada has been following the court proceedings against the Meaford & District Fire Department and the municipality of Meaford, Ont., through news stories and blogs on our website. This analysis is a compilation of news reports from the trial, blogs, interviews and information gathered through Jan. 16.

Fire officers, particularly in Ontario – for now – are feeling the heat as the Ministry of Labour has laid charges in two cases in which firefighters have been injured or killed.

Fire officers in Canada’s most populous province are worried that decisions they make on the fire ground or at other incidents could be among the worst dangers they face in their careers.

In recent months, fire departments, fire officers and municipalities have been charged by the Ontario Ministry of Labour under Occupational Health and Safety legislation in two separate incidents in which firefighters were injured or killed at scenes or during training. Charges are expected in a third incident.

Fire officers say the invesigations, the court proceedings and the eventual outcomes – and the media coverage – are causing stress, frustration and fear among Ontario’s senior fire personnel.

While the litigation is happening only in Ontario so far, fire-service leaders say the results of the court proceedings and the implications of those decisions are likely to be felt across the country.

The issue in a nutshell: an investigation by the Office of the Fire Marshal (OFM) into fire-ground operations that resulted in firefighter injuries as an aid in the prosecution’s case against one fire department; and decisions by the Ministry of Labour (MOL) to lay charges in two cases so far under the Occupational Health and Safety Act. Those actions by the MOL and its lawyers have put the fear of God into fire-service leaders, who say they worry that decisions made on the fire ground will lead to litigation, reduced levels of service and, potentially, ruined careers.

As many fire chiefs have said in the last few months while watching a trial play out in Owen Sound, Ont., the ministry has one year from any incident to investigate and determine whether to lay charges in relation to fire-ground decisions that are made in seconds, under pressure, in potentially life-or-death situations.

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As this issue of Fire Fighting in Canada went to print, all eyes in the Ontario fire service were on provincial offences court in Owen Sound, where in December the trial resumed over charges laid under the Occupational Health and Safety Act against the Municipality of Meaford and its fire department.

Two Meaford firefighters were injured during a blaze at Reeds Restaurant & Bar in September 2009. They were searching for one of the owners, whose distraught and frantic girlfriend told a Meaford fire captain that he was still inside, in an upstairs apartment. Two firefighters began a search and ran low on air and had to be rescued; one firefighter needed to be resuscitated.

Three of six charges laid by the MOL were withdrawn by the Crown back in September, but three charges remained: failing to set up an accountability system; failure to establish a rapid intervention team; and failing to set up a command post.

The circumstances surrounding the rescue of the two Meaford firefighters has not been made public, and with two firefighter deaths in Listowel, Ont., last March and a training fatality in Point Edward, Ont., in 2010 (that case goes to trial in April), fire officers say that investigations, and, perhaps, changes, are warranted. But many are questioning the legal techniques involved in establishing evidence. 

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A key part of the Meaford trial in December was a voir dire – a trial within a trial – to determine whether the court would accept Gerry Pritchard, an investigator with the OFM, as an expert witness – for the prosecution.

As defence lawyer Norm Keith pointed out repeatedly during the voir dire, the Crown’s objective was to have the OFM’s Pritchard give expert evidence against the Meaford & District Fire Department on the charges.

(The Meaford case is just the second in Ontario in which a municipal fire department has been prosecuted by the Ministry of Labour. The other case, against the City of Port Colborne in 1992, was successfully defended by Mr. Keith, an expert in occupational health and safety legislation.)

Mr. Keith noted often in court in December that the OFM’s investigator – a distinguished-looking former fire chief who is approaching retirement age – had been served by the Crown to help to prosecute and convict the fire department.

There is considerable confusion among fire personnel over the role of the OFM in the Meaford affair.

According to the OFM’s website, its mandate under Ontario’s Fire Protection and Prevention Act is to “train firefighters and other fire department personnel, provide them with guidelines and best practices, and assist them with providing the best fire prevention and fire protection services they can.” The motto, familiar to those who have toiled for the OFM, is for fire personnel to be effective, efficient, safe, prompt and professional.

The MOL, on the other hand, is tasked with protecting all workers in Ontario – including firefighers – and its mandate is to investigate and determine what happened in Meaford and Point Edward and to prevent it from happening again, although the ministry does not provide training or funding for training.

From the evidence given in court in Owen Sound in December, it wasn’t clear to defence lawyer Mr. Keith what the OFM’s role was in the investigation into the Meaford incident. Indeed, Mr. Pritchard testified that he was told to go to Meaford and “find out what happened” without written guidance notes, scope, direction or other procedures. 

Further, Mr. Pritchard testified that he had been told by a MOL investigator that charges against Meaford and its fire department were not warranted, and it was unlikely that charges would be laid. Pritchard’s operating assumption was that he was in Meaford solely for the purpose of reviewing fire-ground operations.

Both the OFM and the MOL have declined to speak about their roles in the matter until after the Meaford trial concludes.

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In Ontario, the MOL issues guidance notes that advise departments on firefighter health and safety on the fire ground and in training. The guidance notes are based on advice from a committee – the Section 21 committee (because that’s the section of the Occupational Health and Safety Act under which the committee exists), which comprises representatives from labour and management, including the Association of Municipalities of Ontario and the Ontario Association of Fire Chiefs.

The guidance notes are issued publicly by the ministry, and the implementation of the recommendations within the guidance notes is left to interpretation by individual departments and chief officers.

One issue in the Meaford case is the validity of the guidance notes on the establishment of accountability, command and RIT. According to Mr. Keith, although the ministry views the guidance notes as accepted practices, they are not law and are not binding. The guidance notes say that departments “should” do such and such, rather than “shall” do XYZ, because “shall” is reserved for legislation, and the guidance notes are meant to be accepted practices rather than laws.

Mr. Keith noted in an e-mail to media in January that the Meaford case has important implications for every fire service in Ontario and across Canada. “The prosecution has a theory” he said, that Section 21 committee guidelines are legally binding, “when they are clearly not legal standards if and when a fire department responds to an emergency situation . . . This theory, has never been advanced before in Ontario, or across Canada,” he said.

Further muddying things for fire departments, the Ministry of Labour does not supervise, inspect, check on, assess or critique fire departments to help chiefs and officers determine whether they are properly following the recommendations in the guidance notes, or help them improve their practices if they’re not up to snuff.

So, according to many fire officers, departments have no way of knowing if their fire-ground operations and practices meet the intent of the guidance notes, or if their procedures need work until something goes wrong – which may be a direct result of a fire chief or officer misunderstanding a guidance note, or a department not having the resources to properly meet its intent. At that point, the ministry can issue an order to comply or lay an appropriate charge(s) under the Occupational Health and Safety Act.

That’s one interpretation. A dissenting view is that fire chiefs are well paid and well trained to understand and implement the guidance notes (and they get a lot of information about the guidance notes through their associations and the Section 21 committee), and it’s the chief’s role – not that of untrained MOL inspectors – to evaluate specialized fire-ground operations such as the establishment of rapid intervention teams. 

Another issue is what some see as an uneven playing field.

Just as NFPA standards do not differentiate among volunteer, composite or career departments, many in the fire service believe that guidance notes do not consider the resources allotted to small, rural departments versus large, urban departments.

Several fire-service leaders have offered versions of the following scenario by way of explanation: A volunteer department in tiny Upsala, Ont., for example, is expected to meet the same standards and follow the same guidance-notes procedures for interior fire fighting or interior rescue at a structure fire as the 3,000-strong Toronto Fire Services.

Upsala, or Meaford or Listowel or any number of smaller, rural fire departments in Ontario do not have the same resources or manpower as Toronto or London or Ottawa and, therefore, the intent of the guidance notes is that those departments should not attempt the same kinds of responses.

The conundrum for fire services, then, is whether to continue to provide full firefighting services for taxpayers when, realistically, they can not meet the standards required to do so.

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While Justice of the Peace Thomas Stinson mulls the evidence presented by the prosecution in the Meaford case, and considers a defence motion for a directed verdict of acquittal based on the submission that the Crown did not present enough evidence to proceed with the trial, many in the Ontario fire service say they are frustrated by the situation and the lack of clarity about guidance notes and MOL/OFM investigations.

Tim Beckett, president of the Ontario Association of Fire Chiefs, again cautioned chief officers – as he did when the charges were laid – that regardless of the outcome of the Meaford trial, the onus is on them to ensure that their departments can meet the expectations of their councils and residents. 

“Firefighter health and safety is of utmost importance to the OAFC and critical to the fire-services goal to save property and protect lives and the environment,” Beckett said. 

“The OAFC continues to monitor the proceedings in the Meaford case,” Beckett said. “The outcome(s) may have a significant impact on firefighter training programs to meet health and safety requirements and, in return, may have impacts to the service delivery levels for municipalities. The OAFC is prepared to take the necessary actions to ensure that Ontario’s fire service is aware of any possible impacts that may result.

“We encourage municipalities and fire chiefs – regardless of the outcome – to be proactive and review the level of fire protection services that are delivered within their jurisdictions, including ensuring that the training, equipment and personnel resources are suitable for the level of service to be provided.”

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From Meaford Fire Chief Mike Molloy’s perspective, the charges are causing stress and confusion among fire-service leaders.

“My concern is that, if in future, potential incident commanders are worried about possible litigation, is that going to make them second-guess their rescue decision?” Molloy told The Canadian Press in December.

While Molloy chose his words carefully, defence lawyer Mr. Keith, an expert in health and safety legislation, said the tactics were “intimidating and aggressive” and have created the potential for a “war” between the MOL and fire departments.

Mr. Keith said in an interview that if the court opts to proceed with any of the three charges against the Meaford & District Fire Department, he will 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,” he said.

Regardless, Mr. Keith said the decision to lay the charges in the first place has significant implications.

“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.”

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Regardless of the outcome in the Meaford case, Chief Molloy said the fire service needs clearer direction from the ministry surrounding Section 21 of the Occupational Health and Safety Act so that everyone understands intent, roles and expectations.

“I think the outcome will be good for everybody,” Molloy said of the trial. “We are always operating out of fear.”

Russell Wangerksy, editorial page editor for the St. John’s Telegram in Newfoundland and Labrador and a former volunteer deputy fire chief in Nova Scotia, agrees.

“One of the first things you learn is that there are right decisions and wrongs – but if you dawdle and make no decisions at all, you’ve certainly made the wrong one,” Wangersky said in an editorial in December.

“It sounds trite, but seconds count, and you don’t have the opportunity to second-guess until after the fire’s done. You make mistakes and you learn from them, and hopefully, they’re small ones . . . The idea that you might now have to worry about whether you’ll be dragged to court as well? Good luck finding people willing to expose themselves and their families to that kind of risk, on top of every other risk they’ve already selflessly agreed to take on.”