Fire Safety Inspector (Standard of Care)

Flood v. Boutette, 2019 ONSC 5633 (CanLII)

[9] For reasons to follow, I find that the investigator did act reasonably in conducting his investigation under the Fire Code and in charging for infractions under s. 9.3. My conclusions are as follows:

1. The investigator did owe a duty of care to the plantiffs.

2. The standard of care required that the investigator have reasonable grounds to lay the charges in question.

3. The investigator did have reasonable grounds to believe that the properties were boarding, lodging or rooming houses and that they were noncompliant with the Fire Code:

a. On the existing law, it was open to the investigator to believe that Good v. Waterloo did not govern Fire Code investigations;

b. If Good v. Waterloo did apply, the criteria in that case – applicable to a judicial determination – were of uncertain application at the charging stage;

c. The standard of reasonable grounds did not require the investigator to definitively conclude that the properties were boarding, lodging or rooming houses; only that they could reasonably be found to be boarding, lodging or rooming houses;

d. In any event, the investigator did advert to the criteria in Good v. Waterloo, gathering information for purposes of trial.

4. If Boutette did not have reasonable grounds, he nonetheless acted reasonably in the investigation, by seeking advice and direction from various individuals and entities, including the Crown Attorney, before he laid charges. An error in the interpretation of a legal standard did not, in this case, result in breach of the duty of care.

5. The investigator did not act with malice or oblique motive. While there was evidence to indicate that the City of Windsor had concerns about an influx of student housing, the investigator was not privy to these discussions. I accept his evidence that he was acting in the interests of public safety, in response to specific complaints.

[10] My conclusion that the investigator either had reasonable grounds to lay charges, or reasonably believed that he had the requisite grounds suffices to dispose of the various claims advanced by the plaintiffs in this case. Failure to prove that the charges were laid in the absence of reasonable grounds is fatal to the claim of a breach of the duty of care. So too is a finding that the investigator met the standard of a reasonable investigator in like circumstances. Absent a breach of the duty of care, there can be no negligent investigation, or malicious prosecution: see Kellman v. Iverson, 2012 ONSC 3244, [2012] O.J. No. 2529 at para. 23; Fragomeni v. Greater Sudbury Police Service, 2015 ONSC 3937, [2015] O.J. No. 3797 at para. 101. Nor can there be an infringement of the Charter or abuse of process.