[author: Adrian Miedema]
In a decision which suggests that fire departments faced with emergencies ought not to be judged too severely with hindsight under occupational health and safety laws, an Ontario fire department has been found not guilty of failing to activate an “accountability system” to track firefighters entering a burning structure.
The charges arose when one firefighter’s self-contained breathing apparatus failed while he was in the building. He substantially recovered after the incident.
In a previous post in March 2012, we reported on how two of the three charges against The Meaford and District Fire Department had been dismissed on a motion for a directed verdict of acquittal, similar to a non-suit.
The particulars – the specific factual allegations – of the remaining charge alleged that the fire department “failed to take the reasonable precaution of activating an accountability system to track firefighters entering a burning structure”. An accountability system tracks – often by physically displaying information on an “accountability board” – exactly which firefighters are on scene and what they are doing.
Although the court found that some of the fire department’s own ”Standard Operating Guidelines” were not fully followed, the particulars of the charge did not allege that the SOGs were not followed. Further, the particulars did not allege that the accountability system used was not appropriate. Rather, the particulars alleged only that an accountability system was not “activated”. The court stated that the Crown must prove the particulars alleged, not some other alleged violation.
The court found that an accountability system had, in fact, been “activated” in that, among other things, two firefighters told the Deputy Chief that they intended to enter the buidling; another firefighter made a request for a thermal imaging camera; and another firefighter (who was in the second vehicle to arrive on site) acted as an accountability officer and retrieved the accountability board.
This case demonstrates that when the Ministry of Labour lays charges under the Occupational Health and Safety Act, it must prove not only a violation of the named section of the OHSA or regulations, but it also must prove the specific particulars alleged. Here, the Crown had not approved a failure to “activate” an accountability system. The charge was, therefore, dismissed.
R. v. The Meaford and District Fire Department, 2012 ONCJ 573 (CanLII)