R. v. 0727219 BC Ltd. Date, 2010 BCPC 306

Citation: R. v. 0727219 BC Ltd. Date: 20101126 2010 BCPC 0306 File No: 189986-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. 0727219 BC Ltd. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.J. KITCHEN Counsel for the Defendant: Kathryn Denhoff Counsel for the GVRD: Don Howieson & Alyssa Bradley Place of Hearing: Vancouver, BC Dates of Hearing: October 5, 6, 7 & 8, 2010 Date of Judgment: November 26, 2010 [ 1 ] In this prosecution the Greater Vancouver Regional District (“GVRD”) has charged 0727219 B.C.

Ltd. (“the Company”) with two related offences of illegally discharging an air contaminant, Halon 1301. One charge is contrary to a GVRD by-law and the other contrary to the Environmental Management Act. The Evidence [ 2 ] These matters relate to a building at 3033 Beta Avenue in Burnaby that was formerly owned by the Teleglobe Corporation. That company apparently operated an international communication enterprise from the premises on a 24 hour basis. The business utilized sophisticated electronic equipment that would have been significantly water damaged by traditional firefighting techniques.

Teleglobe had therefore installed in the building an expensive fire suppressant system using Halon 1301. [ 3 ] This Halon system worked by depriving any fire of an oxygen supply. In the 1980’s it became obvious that the Halon would also destroy ozone over a very prolonged period and because of the damage done to the ozone layer, international treaties were entered by Canada, agreeing to phase out such use of ozone depleting substances. Strict controls were imposed on installations such as this one, the largest in Canada. The GVRD By-Laws and Environmental Management Act are such controls.

[ 4 ] Teleglobe sold the Beta property to the Company and vacated the premises on October 1, 2005, leaving the Halon suppressant facilities intact and functioning. Up to that point Teleglobe had retained the services of Simplex Grinnell, recognized as a competent company, to maintain the Halon System. The maintenance involved attending on trouble calls and false alarms from time to time, and conducting routine semi-annual maintenance, as required by the Fire Code, every April and September.

The evidence at trial confirmed that a semi-annual inspection was done in April, 2005 but the evidence was mostly silent as to whether the inspection due in September, 2005 was done. [ 5 ] In addition to retaining others, Teleglobe took direct responsibility for the system by having staff on the premises at all times. In the event of a fire alarm, false or real, a Teleglobe employee would be present to monitor the situation. There was a 30 second delay after the fire alarm system was triggered before the Halon was released so that an employee could intervene and prevent the release of Halon.

There was also the ability for an employee to discharge the Halon manually in the event the alarm system failed to do so. [ 6 ] When the Company took control of the Beta property, the building was empty except for a small room that contained some TELUS equipment, and another room or two containing the Halon tanks and equipment.

All of the electronic equipment that the Halon had been protecting had been removed; there was really no reason at all for the Halon system being present other than that it might be useful to a company wishing to rent or purchase the premises. [ 7 ] The intention of the Company was to lease the property, or to sell it, and the services of Colliers International were retained by the Company to find a tenant or a buyer.

At the same time, the Company retained Colliers International to also manage the property while it was vacant for a fee of $400 per month. [ 8 ] A Colliers representative was given a tour of the building by a Teleglobe employee on September 30, 2005 and Colliers took possession of the building on behalf of the Company, whose shareholders and management were in Los Angeles. Colliers put a 24 hour security guard on the premises and recommended to the Company that a security company be retained for 24 hour alarm monitoring and response.

The Company agreed with this recommendation and InterCon Security was retained for a fee of almost $2,000 per month. However, the Company instructed Colliers to cancel the 24 hour security guard on the premises. [ 9 ] Colliers retained Simplex Grinnell to continue with part of the arrangement that it had with Teleglobe. It would attend on call outs to trouble calls and false alarms concerning the Halon system, but there was no agreement that Simplex Grinnell would conduct semi-annual inspections.

Assuming that the last scheduled such inspection in September 2005 had occurred and had not been cancelled by Teleglobe just prior to their vacating the premises, the next semi-annual inspection would have been due in April, 2006. Colliers also advised the Company that they would make inquiries concerning whether the Halon system should be deactivated and removed. [ 10 ] On December 14, 2005, there was a false alarm on the Halon system. One such alarm would not trigger the release of Halon; it required two simultaneous alarms from separate areas for the Halon to be discharged.

The Burnaby Fire Department attended with InterCon Security and Simplex Grinnell was called out to repair the Halon system and re-set the alarm. The Company was advised of the false alarm and given the invoice for the services of Simplex Grinnell, about which it expressed concern. [ 11 ] In April, 2006, when the semi-annual inspection was due, Simplex Grinnell sent a proposal to Colliers to provide this service. Colliers passed it on to the Company, noting that the services of Simplex Grinnell were known to be pricey and that quotes should be obtained from other companies.

The Company responded by directing Colliers to obtain other quotes. Colliers and the Company also discussed how the necessity for such inspections might be eliminated and whether that would be allowed. [ 12 ] On April 26, 2006 a second false alarm occurred in the system. A Colliers representative attended with the Fire Department but could not re-set the alarm system so the Fire Department issued a written order to the Colliers representative to put the system in proper working order. This permitted the Fire Department to leave the scene with the alarm not yet restored to operation.

Simplex Grinnell was called in and restored the system to good working condition as per the terms of the order from the Fire Department. [ 13 ] There were three false alarms in May, 2006; on May 3, May 21 and May 29. On each occasion Simplex Grinnell attended, repaired or replaced a part, and re-set the system.

The two Simplex Grinnell employees who gave evidence concerning the 5 false alarms over the 7 months the Company had owned the building did not indicate there was anything remarkable or unusual about these occurrences or about the necessity for Simplex Grinnell to attend and resolve such problems. [ 14 ] The evidence was not clear concerning the timing of the sale of the premises but on May 19, 2006 Colliers advised the Company that quotations from competitors of Simplex Grinnell had been obtained and both companies had stated the Halon system would have to be deactivated before they could provide a semi-annual inspection.

Colliers had told these companies to proceed with the proposal process forthwith even though “the property has been sold”. It appears that what actually ensued was that the Company itself was sold resulting in new ownership, management and control of the Company taking over the Beta property as an asset of the Company. In this decision, since it has no consequence concerning these charges, I will simply refer to the June 15 transaction as the sale of the property. [ 15 ] Following the fifth false alarm on May 29, 2006, Mr.

Barry Holmes of Colliers instructed InterCon Security to disregard all trouble signals on the alarm system until June 15, 2006 - the completion date of the sale of the property. The various witnesses referred to this as the “disregard order”. There was no evidence that the making of this order was authorized by the Company, or that the Company was even aware of it. It was the evidence of Holmes that this disregard order was not intended to include actual fire alarms.

There was confusion concerning this and the others involved in dealing with the building may have interpreted the order from Holmes to have meant all alarms from the system. This was certainly the case with InterCon Security. [ 16 ] This confusion was apparent on June 4, 2006, when the Burnaby Fire Department was dispatched to an alarm at the Beta property. The Fire Department patrolled the perimeter of the building but did not gain access.

Only one alarm was showing on the annunciator panel in the front of the building, this panel being a group of lights that displayed to the Fire Department information concerning the status of the alarm system. As noted earlier, one active alarm circuit would not be enough to trigger a release of the Halon.

[ 17 ] InterCon Security advised the Department that the alarm system was being worked on and all alarms to the building were to be disregarded until June 16, 2006. The Department accepted this and left the scene after one-half hour. The situation was similar to what had occurred on April 26, 2006 but this time the Fire Department did not issue an order to put the system in proper working order. Although Colliers and the Company had complied with the order of April 26, the Department may have assumed that the system was being worked on to comply with their previous order.

Or the Department may have been told that. In his disregard order, Holmes had stated to InterCon, “... the Fire Department has issued a notice to remedy the faulty system that is causing false alarms.” [ 18 ] The procedure that had been followed for the previous alarms at the site, at least since the Company had taken possession of the building, was that the Fire Department would attend the scene, gain access to the building, and determine whether there was a fire.

On each occasion there had been no fire so Colliers, or InterCon Security on their behalf, had summoned Simplex Grinnell to resolve the alarm problems. Holmes’ disregard notice had changed this procedure and Simplex Grinnell was not called in to repair the system. [ 19 ] After the Fire Department left the scene on June 4, 2006 the events occurred that gave rise to these charges. An additional 16 alarms were activated at the building; the Fire Department was called to none of them.

This situation became apparent when Simplex Grinnell attended the scene on June 5, 2006 and the annunciator panel was “lit up like a Christmas tree”. The technician attending concluded that there had been a discharge of Halon because of the active status of multiple alarms and his observation that there was a Halon fog still present in the large vacant space in the building that the Halon system protected. [ 20 ] The annunciator panel did not tell the whole story.

It did not record in what sequence the alarms had occurred; they may have occurred singly in a prolonged sequence or in batches over a similar time, or all at once. The alarms may all have been false alarms, or they may have occurred because smoke detectors had detected smoke or other air pollutants that trigger smoke detectors. In fact, according to the alarm technicians, Halon fog itself will trigger the smoke detectors so that once the Halon is released more smoke detectors will be activated by the Halon.

Submissions - Prosecution [ 21 ] Counsel on behalf of the GVRD submits that the court should interpret the by-law and the legislation consistent with the purposes of the respective legislators. Therefore, the court should find that the Company was “in the course of conducting an industry, trade or business of whatsoever kind or nature”. The GVRD further argues that there was evidence that the Halon tanks were full, and evidence that the Halon tanks were found empty on June 5, 2006, and the court must conclude that the Company permitted the release of that Halon.

The GVRD says that with proof of the release, and nothing more, the actus reus has been proved and the onus shifts to the Company to establish due diligence. [ 22 ] Further, argues the GVRD, there was no evidence of there having been a fire, proof of which must be tendered by the defendant, so there was no justification for the release of Halon. [ 23 ] The GVRD argues that the history of what occurred over the eight months the Company owned the property, particularly the history of the relationship between the Company and Colliers, shows that the Company did not establish a “proper system” to care for the Halon facility and the Company did not take reasonable steps to ensure the proper functioning of any system it established.

Since the Company failed to prove that inspections were conducted pursuant to the Fire Code in September, 2005 and April, 2006, that alone shows there was a lack of due diligence on the part of the Company. [ 24 ] The Company retained agents to act on its behalf and was responsible for the acts of its agents. Any acts, including the issuance of the disregard notice, were the acts of the Company.

In any event, the disregard notice pertained to trouble alarms and not fire alarms and therefore the issuance of the disregard notice had no relevance to the fact that several fire alarms were triggered on June 4 or 5, 2006. Submissions - Defence [ 25 ] Counsel on behalf of the Company argues that the prosecution is unable to establish if and how the discharge of Halon occurred and therefore cannot prove the actus reus of the offence. The GVRD must prove not only that there was a release, but that it was caused by faulty operation of the alarm system and not otherwise.

For example, says the Company, there has been no proof that the system was not triggered by an actual fire. [ 26 ] The Company argues that it merely owned a vacant building, and did not possess the Halon while conducting an industry, trade or business, which is a prerequisite to the charge under this section. [ 27 ] The Company argues that it was responsible and diligent by retaining Simplex Grinnell to repair the system from time to time. The semi-annual inspection was being arranged and the Company had given instructions to proceed with calling for proposals for that work.

If the September, 2005 inspection was missed, that was the responsibility of Teleglobe and not the Company. [ 28 ] In any event, says the Company, the real cause of the release of the Halon was the intervening act of Colliers in issuing the disregard notice which prevented the problems with the system being repaired. This was beyond the authority given by the Company to Colliers and thwarted the arrangements made by the Company to care for the system. Was the Company conducting an industry, trade, or business? [ 29 ] It is clear from the evidence that Halon can be very dangerous.

Like anything that is dangerous that we utilize, such as

explosives or radioactive material, there must be strict legislative controls to ensure that those using such materials are responsible in protecting the rest of society from the danger. The legislation and by-laws at issue here were intended to deal with the mischief of the inappropriate or unnecessary release of Halon which would contribute to the devastating depletion of the ozone layer. The court should give a broad and expansive

interpretation to that legislation to ensure that the legislation is effective. The Supreme Court of Canada directed in Shell Canada Products v. Vancouver , 1994 CanLII 115 (SCC) , [1994] 1 S.C.R. 231 , that the court should adopt an

interpretation that is consistent with the purposes of the municipality and legislators. [ 30 ] The defendant Company argues that the discharge of the Halon did not occur “in the course of conducting an industry, trade or business” - a requirement in the by-law.

The Company submits that no commercial enterprise was being conducted in the building and therefore the by-law does not apply. [ 31 ] I conclude that the intention of the municipal legislators was to discriminate between cases where an individual might release a very small amount of Halon, such as from an aerosol can, and where a much more significant amount of Halon might be released by an enterprise that was benefitting financially from possessing the Halon. [ 32 ] In the present case, the Halon system had been installed by an admittedly commercial enterprise, Teleglobe, to protect valuable electronic equipment that would be very expensive to replace.

The system was sophisticated, complicated, and very large - described in evidence as the largest or second largest such system in Canada. Those witnesses who had knowledge of such systems found it to be impressive, and almost intimidating. [ 33 ] The Company bought the premises from Teleglobe as a vacant building. The original intention of the Company may have been to lease the building but within eight or nine months the Company sold the building. During the time it possessed the building the Company possessed it with the intention of profiting from leasing or selling the property.

The Halon system, although of no use to the Company directly, was knowingly and voluntarily possessed or controlled by the Company. The system might have been attractive to a purchaser or lessee, or it may have been viewed by the Company as a liability. It was nevertheless possessed by the Company in its business of investing in real estate. I must conclude that any discharge of Halon that occurred was while the Company was engaged in its business of investing in real estate.

Actus Reus - Was Halon released? [ 34 ] Any element of the actus reus of a strict liability offence must be proved beyond a reasonable doubt before the defendant is called on to show due diligence. On the issue of whether Halon was released, the evidence is inferential. There was considerable evidence concerning the Halon system and how it operated. In particular, there was evidence that several tanks on the premises had been checked one or two years earlier and all contained Halon, including one huge tank that contained 7,000 lbs. of Halon.

There was evidence that this Halon would be “dumped” if two or more alarms in different areas of the building were activated. There was evidence that 16-17 alarms were activated on June 4-5, 2006 and when an experienced technician attended, he observed what he concluded was Halon mist or fog still lingering on the premises. He found that some of the Halon tanks, including the very large one, had been emptied. [ 35 ] I conclude that it has been proved beyond a reasonable doubt that Halon was discharged as alleged.

Actus Reus - Causation - Vandalism [ 36 ] The prosecution much prove beyond a reasonable doubt that it was

an act or omission by or on behalf of the Company that caused the release of Halon and not the intervening act of another. One aspect of this issue might be characterized as the vandalism defence. [ 37 ] Again, the evidence on this was circumstantial. There was no evidence to the effect that the building had been locked, secured, and strictly monitored during the time that the Halon was released. There was no evidence that an experienced technician had determined that the Halon had not been dumped by someone operating the mechanism that manually released the Halon.

As mentioned earlier, the system provided the capacity for a person to manually release the Halon. [ 38 ] There was evidence from which I conclude that it was the practice to keep the building locked and secured at all times. In fact, the Company, through Colliers, had retained InterCon Security at a cost of almost $2,000 per month to monitor its alarm system and ensure this security was enforced.

There was no evidence that at any time from October, 2005 until June, 2006 there was a problem in maintaining this security and in particular there was no evidence from those investigating the scene on June 5, 2006 that there had been any breach of the building’s security or an intrusion into the building. [ 39 ] There was overwhelming evidence that the fire alarm system rather than manual operation had triggered the release of Halon. The evidence concerning the status of the alarm system on June 5, 2006 supports that.

I conclude that it has been proved beyond a reasonable doubt that third party intervention was not involved in manually triggering the release of Halon. Actus Reus - Causation - Fire [ 40 ] If a fire triggered the alarm system resulting in the release of Halon, this release was permitted and no offence was committed. The prosecution must prove beyond a reasonable doubt that it was

an act or omission by or on behalf of the Company that caused the release of Halon and not a fire. [ 41 ] The Company argues that a fire was the most likely cause of activating the alarms. The system was designed to release Halon

only when smoke was detected in two areas of the building. A technician from Simplex Grinnell testified that in his 21 years experience he had never known Halon to discharge where there was no fire. As a simple matter of probability then the Company says the release must have been caused by fire. [ 42 ] However, this case must be determined on the particular evidence concerning this Halon release and not on likelihoods that apply to typical systems over time. There was evidence from which it must be concluded that false alarms were occurring in the system with increasing regularity.

On June 4, 2005, what was obviously a false alarm occurred and this false alarm was left “active” on the annunciator panel. This left a dangerous situation where another false alarm in another area of the building would result in the system registering two active simultaneous alarms and releasing Halon. [ 43 ] When the scene was investigated the next day, there was no indication that a fire had occurred.

Since the building was empty, particularly in the area protected by the Halon system, evidence of any actual fire would have been obvious. [ 44 ] The Company now argues that the occurrence of a fire was a possibility or likelihood but neither side mentioned this as an issue at trial and there was little or no examination or cross-examination of the witnesses concerning this possibility. [ 45 ] I conclude beyond a reasonable doubt that no fire occurred and that it was false alarms or a malfunctioning of the alarm system that triggered the release of Halon.

Actus Reus - Causation [ 46 ] There are two different ways triggering of the Halon release could have occurred. [ 47 ] There was an alarm on June 4, 2006 that brought out the Fire Department. It was obviously a false alarm because the Department was on the perimeter for about one-half hour and saw no fire, leaving the scene satisfied with the explanation that the system was being worked on and they should ignore the alarm, and any other alarm that occurred prior to June 16, 2006. [ 48 ] This alarm was left active and not re-set by Simplex Grinnell as had been the practice.

This left a dangerous situation where a second alarm, even a false alarm, in another area, would trigger a massive release of Halon. Such a second, single false alarm may have occurred releasing the Halon, with the fog or mist from the Halon triggering the other smoke detectors so that the annunciator panel showed the 16-17 alarm lights visible on June 5, 2005. [ 49 ] This occurrence of a second triggering alarm is the most likely scenario, and it may have occurred shortly after the Fire Department left, or hours later.

There is no way to determine the time frame. [ 50 ] The other less likely way the alarm system could have triggered the Halon release would have been for two false alarms to have occurred simultaneously in different areas of the building. This is always a possibility with any alarm system but would have to be much more of a coincidence even in a system that was becoming less reliable.

The chances of two simultaneous false alarms became less remote as the routine servicing of the system remained outstanding but it was still much more likely that the two alarms that triggered the release were sequential and not simultaneous. [ 51 ] In this second, less likely way the events could have occurred, the false alarm investigated by the Fire Department on June 4, 2006 may well have been irrelevant.

If two subsequent but simultaneous false alarms later triggered the Halon release, they may or may not have involved the same areas of the building as the previous false alarm that remained active. [ 52 ] As mentioned earlier, there was no way to tell from the annunciator panel in what order the alarms occurred, whether any were simultaneous, and which alarms were false alarms and which ones were registering the presence of Halon.

It is likely in this second scenario that three of the alarm lights were the first to occur and were false alarms, and the other lights on the annunciator panel registered the presence of Halon after it was released. Mens Rea - Due Diligence [ 53 ] I have concluded beyond a reasonable doubt that the Company, in the course of carrying on its business of investing in real estate, allowed the discharge or release of Halon.

The actus reus has been proved but it remains for the Company on its part to prove on the balance of probabilities that it was appropriately diligent in its possession and control of the Halon and the release or discharge was in spite of that diligence – Regina v. Sault Ste. Marie (City) 1978 CanLII 11 (SCC) , [1978] 2 S.C.R. 1299 . [ 54 ] In such matters the courts must ascertain whether there was a plan or scheme in place that sufficiently dealt with the concerns addressed by the legislation.

In this case there was no explicit plan or scheme but an arrangement or understanding between the Company and Colliers, and among the group of the Company, Colliers, InterCon Security and Simplex Grinnell, concerning responsibilities related to the Halon. [ 55 ] The situation had evolved from the arrangements Teleglobe had in place. That company had staff on the premises at all times mainly for other purposes but also available to attend to the Halon system and to override it if it failed to activate or activated inappropriately.

In addition, Teleglobe had retained Simplex Grinnell to attend and repair the system as necessary from time to time, and to perform semi-annual routine inspections as required by the Fire Code to ensure the system was operating properly. [ 56 ] When the Company took over from Teleglobe it apparently assumed that the Halon system was in good operating condition and that the next semi-annual inspection was due in April, 2006. It appears that no inquiry was made about the September, 2005 inspection because neither side, prosecution nor defence, could offer evidence concerning that inspection.

That is a factor to consider in

determining due diligence. [ 57 ] The Company did arrange, through its property manager Colliers, for InterCon Security to monitor the alarm and fire system on a 24 hour basis. The Company had no staff, equipment or assets habitually on the premises and concluded that a 24 hour security guard was not necessary. I conclude that, at that time that was an appropriate and responsible arrangement for dealing with the Halon release system – it was a “proper system” as contemplated in the Sault Ste.

Marie (City) case. [ 58 ] It was a proper system because there was much less chance of a fire with no human activity or equipment in the building. InterCon was there to respond, and did respond, if there were fire alarms to the building. InterCon was providing general security to control the possibility of an intruder into the building who could interfere with the Halon system. Simplex Grinnell was there to correct, and did correct, trouble calls.

It was the opinion of the Simplex Grinnell employees during the first few months that the Company occupied the premises that the system was working well and the occasional trouble call was quite routine, meaning that the arrangement was satisfactory. I accept that. [ 59 ] However, the situation did change over time. In April, 2006, a semi-annual inspection was due but none had been arranged. Although this was a requirement under the Fire Code, a delayed inspection does not by itself mean that the arrangement had become unsatisfactory.

It is not unusual for a vehicle owner to delay for a period of time a warranty check-up with no real harm done. I conclude the Company was in a similar situation with the Halon system. Colliers was making inquiries concerning the inspection and the condition of the system was acceptable. [ 60 ] Even when there was a second false alarm on April 26 and the Fire Department issued an order to repair the system, the repairs were done promptly and Simplex Grinnell had no concerns about the system generally or the occurrence of two false alarms in the seven months that had elapsed.

My conclusion is that the condition of the system in late April would cause one to now begin to question whether the arrangements the Company had made to maintain the system were still appropriate or whether more now had to be done. [ 61 ] It became obvious in May that more now had to be done. With the three false alarms that occurred during the month, and the fact that the semi-annual inspection was a month or more overdue and not yet foreseeable, the Company was put on notice that the existing arrangement had become unacceptable and had to be corrected.

I have in mind particularly the danger to the environment if there were such a massive release of Halon. This added to the urgency and importance of vigilance concerning system maintenance – Regina v. Panarctic Oils (1983), 1982 CanLII 4944 (NWT TC) , 12 CELR 29 @ 37, Regina v. Gonder , (1982), 1981 CanLII 3207 (YK TC) , 62 CCC (2d) 326 @ 332. [ 62 ] The Company has argued in part that it should not be liable for any inadequacies or failings on the part of Colliers, InterCon, and Simplex Grinnell which may have played a

part in their arrangement having failed. But it was the Company that owned the Beta property and the Halon system contained therein. The Company had primary responsibility for the Halon. If the Company retained others who for one reason or another contributed to the Halon release, the Company was nevertheless responsible for their acts as long as they were generally acting within the terms of their arrangement and understanding – Regina v. Gulf of Georgia Towing Co. Ltd. (1979), 1979 CanLII 483 (BC CA) , 10 BCLR 134 , Vancouver (City) v. Picadilly Investments Ltd. 2010 BCSC 245 (CanLII) , [2010] B.C.J. No. 328 .

It was the Company’s decision to retain them and the Company was bound by their acts. [ 63 ] Therefore, if Colliers was slow to arrange the semi-annual inspection, the Company was ultimately responsible for the delay.

This was so whether Colliers was hamstrung by lack of instructions and financial support from the Company (as they seemed to believe), or whether Colliers was simply not doing what it had agreed to do (as the Company seemed to believe). [ 64 ] So also the Company must take responsibility if Simplex Grinnell did not resolve all problems with the system when they repaired trouble faults and false alarms as they occurred. It was the decision of the Company to retain Simplex Grinnell on that basis and the Company must accept responsibility if that was not sufficient.

Due Diligence – Vandalism [ 65 ] The possibility of vandalism is no longer an issue but the comments that follow are instructive in examining the general attitude of the Company concerning its responsibility for the Halon system. [ 66 ] I concluded that vandalism had played no

part in the release of Halon. Had I concluded otherwise it would be open to the prosecution to argue that the vandalism had occurred because the Company had not properly protected the property from such criminal activity. I would have concluded, however, that the presence of a 24 hour security guard on the premises was unnecessary and that the services of InterCon were appropriate and sufficient to deal with concerns about building security and intrusion.

Due Diligence – Simultaneous Alarms [ 67 ] I concluded that the Halon had been released because two sensors in different areas of the building had been activated. I further concluded that these two alarms may have been triggered sequentially, or much less likely, simultaneously. There was no way to determine from the evidence that was available which of these possibilities had occurred. [ 68 ] The simultaneous triggering of two false alarms was always a possibility, even in a well maintained system.

Such a coincidence would be too remote to require that someone be in attendance on a 24 hour basis to deal with this concern. However, as time passed a sophisticated apparatus such as the Halon system would require inspection; the law required this be done semi-annually. That was past due and the system began exhibiting problems more often. In May there were suddenly three false alarms. It was clear that Colliers recognized the arrangement was becoming difficult and their employee, Holmes, responded in frustration by issuing the

disregard notice. [ 69 ] As it turned out, if the release was triggered by two simultaneous false alarms, the disregard notice would have been irrelevant because the Halon would have been released 30 seconds later – long before InterCon or the Fire Department could have responded and de-activated the alarm. If this had been what occurred, the Company would be guilty of both counts – their arrangement with Colliers, InterCon and Simplex Grinnell was no longer adequate to deal with a system that had deteriorated over time.

The Company needed to do more to be judged diligent in dealing with the danger of the Halon being released. Due Diligence – Sequential Alarms [ 70 ] It is much more likely that the release of the Halon was triggered by two alarms in different areas that were triggered at different times. The first in time may well have been the alarm to which the Fire Department responded on June 4, 2006 when they were told about the disregard notice.

Or the two sequential alarms may have been subsequent alarms that occurred at different times but remained active because the disregard notice remained in effect and no one was responding to deal with them. [ 71 ] However these alarms occurred, the existence of the disregard notice created quite a different situation from what the Company had arranged. Without the notice it is likely that the Fire Department would have responded to each false alarm and InterCon would have called in Simplex Grinnell who would have remedied the problem and re-set the alarm panel so there were no remaining active circuits.

The Company argues that this intervention by Colliers without the authority of the Company resulted in the arranged procedures to deal with these problems being subverted. The Company says it should not be responsible. [ 72 ] I earlier concluded that the Company must be responsible for the actions of those it retains to act on its behalf as long as such actions are foreseeable or within the ambit of their agreement. (Foreseeability is relevant – see Pope & Talbot Ltd. V. British Columbia [2009] B.C.J. No. 2492 , para. 106 , Reynolds v. G.H.

Austin & Sons Ltd., [1951] 2 K.B. 135 @ 149.) I now conclude that the disregard order by Colliers to InterCon (and in turn to the Fire Department) went beyond the terms of the agreement between Colliers and the Company. The notice would have been entirely unexpected by the Company. The evidence was that the Company was not aware of it. The technicians for Simplex Grinnell found it surprising and inappropriate. The Fire Department witness expressed similar views, even though the Fire Department respected the order.

InterCon obviously did not even understand the order and interpreted it to include false fire alarms as well as trouble alarms. [ 73 ] I observed that the order was issued in frustration. It was clearly the case that the Company was resisting spending anything more than necessary on the management of the building and this was making it very difficult for Colliers to deal with the increasingly problematic fire alarm system.

At the same time, Colliers had a buyer for the building and completion was fast approaching – any chronic problems with the alarm or Halon system that became obvious to the purchaser could have complicated completion of the sale and Colliers also had an interest as sales agent in that transaction. As counsel for the GVRD said in their written submissions at paragraph 35, “The GVRD says Colliers should have walked away but it did not.

Instead, it attempted to baby-sit and band aid the Halon fire suppression system to the extent that it could under its management contract.” [ 74 ] The issuing of the disregard notice went beyond “baby-sitting and band aiding” and was an action that was not foreseeable or to be expected from a property manager. The Company was not responsible for Colliers’ issuance of the disregard notice. [ 75 ] I have considered the fact that the disregard notice was not intended to apply to fire alarms – only to trouble alarms. I have also considered that Simplex Grinnell played a

part in the confusion over the matter by misinterpreting the intent of the disregard notice and giving the Fire Department incorrect advice concerning the disregard notice. Simplex Grinnell was retained by the Company and the Company should be responsible for any reasonably expected acts of its agents. [ 76 ] My conclusion is that all fault for this situation must be assigned to Colliers. It was generally agreed by the other witnesses that it was dangerous to issue such an order even if it did just apply to trouble alarms. But more than that, it was an order that could only lead to confusion.

The lawyers and the witnesses in this case spent a considerable amount of time sorting through the differences between trouble alarms and fire alarms and how each must be dealt with and serviced. To simply issue a notice advising others to ignore trouble alarms could only lead to confusion and Simplex Grinnell cannot be faulted for failing to understand what was really intended.

It was almost inevitable that the issuance of such an order would lead to some problem. [ 77 ] Even though the arrangement the Company had in place to deal with the Halon was no longer generally acceptable, it would nevertheless have dealt with what likely occurred. The disregard notice changed that. The Company was blameworthy, but its acts or omissions were not the cause of the Halon release.

The situation has some similarity to where an impaired driver is involved in an accident that is entirely the fault of another; the impaired driver is not criminally responsible for the property damage or the bodily harm that occurs. [ 78 ] In this case there is an interesting interplay in the analysis of causation, actus reus and mens rea .

Even though these issues were each dealt with in turn, they must be revisited and considered in light of each other. [ 79 ] Causation - The most likely cause of the release of the Halon was the sequential occurrence of false alarms at a time when an unauthorized disregard notice was in place. The release would not have occurred but for the presence of the disregard notice. [ 80 ] Actus reus - In my analysis of the actus reus I previously concluded beyond a reasonable doubt that the Company, in the course of carrying on its business of investing in real estate, allowed the discharge or release of Halon.

In light of the analysis of due diligence, I must now qualify that conclusion. I conclude it is likely that the release was as a consequence of there being sequential false alarms that occurred at a time when an unauthorized disregard notice was in place. A culpable act must be a voluntary act but the release of the Halon was not the voluntary act of the Company. The intervening act of another party, Colliers, caused the release. Since Colliers was acting without authority and beyond expectations in issuing the order, the action of Colliers cannot be imputed to the Company.

[ 81 ] Mens rea - This offence is one of strict liability and does not require mens rea in the sense of proof of intention or recklessness. It does permit the defendant to argue due diligence and prove on the balance of probabilities that it was not negligent. I conclude that the defendant has done that. The arrangements made by the Company, inadequate as they had become, would have dealt with the sequential alarms that likely occurred had it not been for the fact an unauthorized disregard notice was in place. [ 82 ] In

summary I conclude that the release of Halon was triggered by false alarms in the fire alarm system. Since these alarms likely occurred sequentially, the arrangements the Company had made to deal with such situations would likely have prevented such a Halon release had it not been for the unauthorized intervention by Colliers issuing a disregard order to InterCon Security which was passed on to the Fire Department. Although the passage of time had rendered the arrangements the Company had made generally unsatisfactory, that did not cause the release of Halon. [ 83 ] The charges are dismissed.