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NEGLIGENCE - Duty and standard of care

Friday, August 20, 2021 @ 5:23 AM  


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Appeal by the plaintiffs from trial judgment dismissing their actions for damages for negligent investigation, malicious prosecution, violation of the Canadian Charter of Rights and Freedoms, and bad faith. The appellants owned single-family dwellings that they rented out to students in Windsor, Ontario. The appellants were charged with Fire Code violations that applied to lodging houses following investigations by the respondent Boutette, a city fire-prevention officer. Boutette attended each of the premises at least once to investigate. He also sought the opinion of several people in other municipalities who dealt with similar issues. He consulted with the Fire Marshal and the Crown Attorney. The Justice of the Peace determined that the houses were not lodging houses within the meaning of the Fire Code and thus not subject to the retrofit requirement in s. 9.3 of the Fire Code. The charges were thus dismissed, and the appellants commenced the present actions. The trial judge held the respondents had reasonable grounds to believe the properties were lodging houses prior to laying charges under the Fire Code, the investigator did not conduct a negligent investigation, and neither the investigation nor the laying of charges was motivated by malice.

HELD: Appeals dismissed. The trial judge did not err in concluding that Boutette had reasonable and probable grounds to lay charges against them. Boarding, lodging, and rooming houses were not defined in the Fire Code. Boutette believed that the appellants’ properties were lodging houses subject to the Fire Code regulations because they met the criteria set out in s. 9.3.1.1 in that they were less than three storeys and 600 m2, they were being rented for remuneration or services to more than four people, and the tenants shared washroom and kitchen facilities. There was no obligation to correctly determine whether the charges would succeed at trial, and that the trial judge made no error in her standard of care analysis. The question of whether a residence was a lodging, boarding, or rooming house, within the meaning of the Fire Code was a contextual one. Boutette’s conduct was not outrageous and the norms of fire safety investigation were not obvious. It was far from clear that Boutette’s conduct did not meet the standard of care. There was no error in the trial judge’s conclusion that Boutette acted reasonably in conducting his investigation.

Flood v. Boutette, [2021] O.J. No. 3918, Ontario Court of Appeal, S.E. Pepall, L.B. Roberts and J.A. Thorburn JJ.A., July 19, 2021. Digest No. TLD-August162021010