Editor’s blog

Aug. 8, 2012 – Having sat through part of the trial against the Municipality of Meaford, Ont., and its fire department on a charge of failing to set up an accountability system at a 2009 restaurant fire, yesterday’s ruling by Justice of the Peace Thomas Stinson was no surprise.

As we reported last evening, Stinson dismissed the charge, saying lawyers for the Ministry of Labour failed to prove their case beyond a reasonable doubt.

The 16-page ruling – and evidence presented at the trial in the spring – clearly indicates that the Meaford and District Fire Department did indeed establish an accountability system at the Reeds Restaurant fire on Sept. 9, 2009.

It wasn’t a perfect accountability system – one firefighter’s tags were later found on the back of the pumper (by an OFM inspector, no less); another’s was with his second set of gear at the cleaners. And at least two people – if not three – acted at times as the accountability officer before frantically moving to other duties as two firefighters started a preliminary search of the building for a person believed to be trapped inside, ran out of air and had to be rescued by the rapid intervention team. But the Section 21 guidance note on accountability doesn’t say the accountability system needs to be flawless, rather it simply needs to exist. And that it did.

While the trial is over and there was a celebration in Meaford last night, there’s a big, smelly elephant in the room which, from my vantage point, has divided the Ontario fire service: one camp believes that the Ministry of Labour’s (MOL) Section 21 guidelines for firefighter occupational health and safety are necessary and that the MOL ought to investigate and, if warranted, lay charges when people are injured or killed at fires; the other is frustrated that the MOL has a year from any incident to investigate and judge split-second, potentially life-and-death decisions made on the fire ground, potentially by volunteers who may not have the same resources as career firefighters, and then lay charges that can mess up lives and livelihoods. That may be simplifying things a bit but given the complexities of both the Section 21 guidelines and the fire service, it covers the basics.

Both the Ministry of Labour and the Office of the Fire Marshal declined today to comment on the Meaford situation. But after talking with some fire-service types, I’m left wondering what’s next. When the charges were first laid there was all kinds of talk about volunteer chiefs running for the hills because there was too much at stake personally and professionally if their fire-ground decisions were going to be scrutinized by the MOL. Yet the fire service is widely consulted on Section 21 guidance notes and it seems logical that those calling the shots need to be held accountable for actions on the fire ground.

That said, even Justice of the Peace Stinson recognized in his ruling that firefighters are not the same as factory workers – the same Occupational Health and Safety legislation applies to both – and noted that for fire departments, certain defences against charges under the OH&S Act may have more clout given the danger and unpredictability of their work.

In the end, six charges originally laid in 2010 under the Occupational Health and Safety Act against the Municipality of Meaford and its fire department were either dismissed or withdrawn. Hundreds of thousands of taxpayer dollars were spent in what some have called a witch hunt against the fire service, money that most agree could have been better directed to education and training for firefighters.

For me, the lesson comes back to what frustrated fire-service leaders said when the charges were laid: those doing the investigating and laying the charges don’t have the necessary fire-service background, knowledge, skills, abilities, expertise, certification or credibility to understand how best to apply the legislation in an industry that is as complex as it is dangerous.

Whose job is it to fix that?

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A further note on Meaford.

We reported during the trial that former Meaford Fire Chief Stephen Nickels testified that MOL investigator Charles Nixon told him at least twice that no charges would be laid, and it was clear from the testimony that Meaford and its fire department would have proceeded differently – in other words, not turned over documents and the like to the MOL without legal counsel – had that assurance not been offered.

Defence lawyer Norm Keith had asked the court to stay the charge on the basis of abuse of process, and to consider whether any undertakings (that charges would not be laid) by Nixon were relied upon by the fire department to its detriment – again, in other words, that providing documentation and information to the MOL indeed resulted in the charges being laid.

Keith cited case law from 1979 in which an appeal court said that breaching an undertaking – or breaking a promise – not to prosecute was “vexatious, unfair, oppressive” and was grounds to stay the proceedings.

Lawyers for the Ministry of Labour, however, cited another case in which the Supreme Court of Canada ruled that the Crown can recoil from a plea-bargain agreement (which is not quite the same as an undertaking) without it amounting to an abuse of process.

While Justice of the Peace Stinson did not rule on abuse of process, he noted that fire departments that find themselves in similar circumstances as Meaford should consider using the abuse-of-process argument.

Again, from where I sit, this appears to be a clear message to fire chiefs and officers to ask questions – lots of questions – about the role of investigators from the MOL and/or the Office of the Fire Marshal or anywhere else, before offering up details and documents.

As former Chief Nickels told Keith during the trial in April when asked if he would have done things differently had he known the MOL would lay charges, “Absolutely. We would have engaged legal counsel and moved forward in that direction.”

That may have saved everyone a lot of time, effort, grief and money.