R. v. 555034 Ontario Limited, 2013 ONCJ 20

Citation: R. v. 555034 Ontario Limited, 2013 ONCJ 20 R. v. 555034 Ontario Limited Between Regina and 555034 Ontario Limited Ontario Court of Justice Toronto, Ontario P. Kowarsky J.P. Heard: August 18, November 22, 2011, March 20, April 16, September 6, 2012 Judgment: January 22, 2013 Provincial Prosecutor: Ms. S. Quadrini For the Defendant: Mr. R. Stewart, Counsel Y. Mikitchook REASONS FOR JUDGMENT P. KOWARSKY J.P. A. OVERVIEW OF DEFENCE REPRESENTATION 1. When this trial commenced on August 18, 2011, Mr. R. Stewart was the paralegal representing the defendant corporation.

After theconclusion of the proceedings on the second day of the trial on November 22, 2011, although earlier dates were available to theprosecutor and the court, the case was adjourned to March 20, 2012 in order to accommodate Mr. Stewart. 2. On March 20, 2012, I said the following: “At the commencement of court proceedings this morning, Counsel Y. Mikitchook, appeared in the capacity of amicus curiae. Heinformed the court that Mr. Stewart was no longer able to practice as a paralegal and that Mr.

Gupta had been called away on February 24th 2012, to India on a family matter and that he was returning to Toronto on April 7th 2012. Counsel Mikitchook advised that he has noauthority to speak any further to this matter.” “The prosecutor, Ms. Quadrini, provided the court with a written decision in the matter of Robert Allen Stewart v. The Law Society of Upper Canada, 2012 ONLSHP 32 , released on 21st February 2012. In this decision, the Law Society denied Mr. Stewart theright to practice as a paralegal.” 3. At the request of Mr.

Mikitchook, I adjourned the matter to April 16th 2012 to be spoken to before me, and I ordered section 39(1)summonses to be issued to Mr. Gupta and Ms. Andrade in order for them to attend before me to make arrangements for the continuationof the proceedings. 4. On April 16, 2012, Mr. Mikitchook appeared and advised the court that he had been retained by the defendant corporation, and herequested an adjournment so that he “could get up to speed.” 5. On September 6, 2012, the matter once again came before me for a continuation of the trial. Mr.

Mikitchook told me that “I am up tospeed in terms of what’s happened up to now and I have a synopsis of what the evidence was” and that he was ready to proceed with thecontinuation of the trial. The case then proceeded, and was completed on that day. I reserved my judgment until today, January 22, 2013. B. THE CHARGES 6. The defendant is charged with three offences pursuant to section 28(1) (

c) of the Fire Protection and Prevention Act which providesthat every person is guilty of an offence if he or she “contravenes any provisions of this Act or the regulations.” 7. The specific offences with which the defendant is charged are that on or about April 6, 2009 at 81 Wilson Park Road, Toronto, thedefendant -

i) Providing devices on required doors that could prevent such doors from being readily opened from the inside pursuant toSentence 2.7.2.2. (1) of Division B of Ontario Fire Code Regulation 213/07; and ii) Failed to maintain the Fire Alarm System in operating condition pursuant to

Article 6.3.1.4. of Division B of Ontario FireCode Regulation 213/07; and iii) Failed to maintain smoke alarms in operating condition pursuant to Sentence 6.3.3.2. (1) of Division B of Ontario Fire Code

Regulation 213/07. 8 . Ms. Paola Andrade, the duly authorised manager of the defendant corporation, pleaded not guilty to the three charges. C. THE EVIDENCE FOR THE PROSECUTION 9 . The evidence of Inspector Anabela Santos-Manraj may be summarised as follows:

a) She is a Fire Prevention Inspector employed by the City of Toronto, and was so employed at the time that these offences are alleged to have been committed by the defendant corporation.

b) The defendant’s property, which is the subject matter of these proceedings, is located at 81 Wilson Park Road in Toronto. It is a three-storey brick detached building, comprising sixteen rental units on three floors.

c) On April 3, 2009 the Toronto Fire Suppression Unit received a call reporting a fire at that location. The Fire Suppression Unit attended to deal with the fire in Unit #301 on the third floor. While on the premises the suppression unit found that, inter alia, there were no batteries in several smoke detectors, the hard-wired fire alarm system was in silence/trouble, and there were no carbon monoxide detectors on site.

d) After receiving a written report from the Fire Suppression Unit, she attended the property on April 6, 2009 together with Inspector Sam Colavita. Upon arrival they met George Young who identified himself as the building superintendant. He informed the inspectors that he resided in one of the units of the building, and that he had keys to some of the units.

e) The two inspectors went into several of the units on each floor and found that there were several smoke alarms not working and some without batteries at all. The smoke alarm in Unit 301 where the fire had broken out had no battery. Also, they found that the smoke alarm in the public hallway on the third floor was not working, and that the “Exit” door leading from the hallway to the back of the property was locked. Further, they found that on the second floor, the two doors leading to the fire escape metal stairs in the front and back of the building, which were supposed to latch, did not. This causes the smoke to migrate into the public hallway and impedes the exit of the tenants.

f) In the basement, they found that the heat detector for the fire alarm system had exposed electrical plugs hanging off the rotting rafters. They entered the “so-called electrical room,” where the water heaters and fire alarm panel were located. The ceiling tile was disintegrating, and the floor was wet. g) “The fire alarm panel was beeping. A few wires were disconnected and just sort of hanging. At the same time there is a trouble signal light at the front of the building at the entrance.” That light did not show that there was any trouble, and seemed to be disconnected from the fire alarm panel.

The purpose of the signal light is to indicate to the fire fighters when they arrive that there is a fire problem in the building. The alarm was beeping when they entered the electrical room, warning that something was wrong.

h) The doors to and in the basement did not have the required self-closure arms, which enable the doors to close on their own when people are running out from an electrical fire in the event of one occurring.

In addition, the fire safety plan box at the entrance to the building did not contain the requisite fire safety plan. i) “It’s a requirement there is a fire safety plan for the building, so that when the firefighters and so forth arrive they can actually cut the lock on that box, look at the fire safety plan, see if there’s any disabled individuals or anybody that needs assistance, find the contact person to call.” The drawings on the plan indicate to the firefighters the location of the fire panel and other parts of the building into which they should go.

The box was empty; there was no plan or keys enabling the firefighters to gain entry to the units without having to break the doors down.

j) On April 6, 2009, after the conclusion of the inspection, Inspector Santos-Manraj telephoned Ms. Paola Andrade, and provided her with details of the inspection and what was required to be done to rectify the entire situation. She made an appointment to meet with Ms. Andrade at the building for a further inspection on April 8, 2009

k) Thereafter, on April 6, 2009, the Inspector issued and mailed a Notice of Violation specifying what required immediate action.

l) Under cross-examination, the Inspector testified that she conducted a re-inspection on April 8, 2009 on which date the matters had not been fully rectified. However, they had been rectified by April 21, 2009. 10 . The prosecutor tendered the following documents into evidence as exhibits: Exhibit #1 is a Notice under the Evidence Act notifying the defendant that the Prosecution intended to submit certain documents into evidence at the trial.

Exhibit #2 is a Ministry of Government Services document, certified true copy of the Registry Act, Land Titles Act, indicating that on October 7, 1992, the corporate defendant, 555034 Ontario Limited became the owner of the property at municipal address 81 Wilson Park Road, Toronto. Exhibit #3 is corporate profile report from the Ministry of Government Services, Ontario, produced on April 27, 2009, indicating that the corporate defendant, 555034 Ontario Limited, is an active corporation whose mailing address is 1065 Bloor Street West, Toronto.

Exhibit #4 is a copy of the Notice of Violation signed by Inspector Santos- Manraj, and served on the defendant corporation by mail as indicated earlier in her testimony.

D. THE EVIDENCE FOR THE DEFENCE 11 . Ms. Paola Andrade was the first witness for the Defence. Her evidence may be summarised as follows:

a) She is the office manager, employed by Mr. R. Gupta, who owns the defendant corporation, and is involved in assisting Mr. Gupta in the upkeep and the rental of the units in the building located at 81 Wilson Park Road, Toronto. Through various corporations, Mr. Gupta owns 10 residential buildings in all, and she manages all of them. She has worked for Mr. Gupta for 13 years, but only the last two years in the capacity of office manager.

b) When she was appointed to the position of office manager, Mr. Gupta did not explain to her what her responsibilities would be in that capacity. She is the only person who works in the central office at 1065 Bloor Street West, Toronto. She’s the bookkeeper as well as the property manager responsible for dealing with all rental applications.

c) She goes to the building “once or twice a week” to check that “everything is in working order, that the alarms are sounding, that the doors are closed, that the garbage is being picked up from the back, that it’s clean.”

d) During April 2009, she and a person named Agostino, who was the “maintenance guy” then, “went in and made sure that the smoke detectors are all working, we changed the batteries in the ones that were not working, and changed the actual detector for the ones that were damaged.”

e) At that time a company called Licata Fire Protection was in the employ of Mr. Gupta for the purpose of attending from time to time when required, inspecting and ensuring that the fire warning and protection equipment in the building were in proper working order. The person who attended the building on behalf of that company was a Mr. Berhane. She does not know how many times a month or a year the company came to inspect the building or how often Licata was supposed to be attending the building for inspection.

f) Under cross-examination she testified that when not specifically requested to come to the building to deal with a particular fire problem, Licata came no more than once a year, and provided an annual report to Mr. Gupta. She sees the report but does not read it because “I don’t understand those things.” Neither Licata nor any one else did any monthly or other regular fire inspection. Whenever work on the fire protection equipment was required to be done, all arrangements for doing so were made by Mr. Gupta directly with the people being contracted to perform the work.

She presumes that after work has been done, Mr. Gupta somehow finds out whether the work was done properly because he does not personally attend at the buildings. She really has no idea what has to be done, by whom, when or whether it was done properly. Mr. Gupta does not attend at the building when a fire inspection is being done. “He drives around and checks, I guess, his buildings.”

g) Licata Fire Protection Company is no longer working for Mr. Gupta because “they didn’t complete the work that we needed done for this building.” The Fire Prevention Company which was hired after Licata is far better and responsive.

h) Although the fire had occurred on a Friday, she only found out about it on the following Monday when Mr. Young, the superintendant, called to tell her. She did not know why the superintendant had not called her on her 24 - hour cell number when the fire occurred on the Friday. She then called Mr.

Gupta to report the fire, and he did not seem to have known about it either. i) “When I did find out about it, we went in to check the smoke detectors…. the tenants….. told me that they had removed the battery, and we told them to put it back, and that was it.” She actually spoke to the tenant of Unit #301 where the fire had broken out, and understood that the tenant had removed the battery from his smoke detector.

j) Tenants smoke in their units so they remove the batteries from the smoke detectors. After receiving the Immediate Action Report she and Agostino, the maintenance person, replaced the batteries in the units which required them. “We remind the tenants as often as we can, to make sure that they have batteries in their smoke detectors. If they request one, we’ll give them one.”

k) During examination in chief she testified that she sends notices to the tenants three or four times a year reminding them that their smoke detectors must always be in working order. Under cross-examination, however, she told the court that she had never reminded the tenants in writing nor had she suggested to Mr. Gupta that this should be done. Only once a year prior to Christmas, she sends letters to all the tenants in all the buildings to be careful with the Christmas lights and ensure that smoke detectors have batteries and are in working order.

l) The smoke detectors in the hallways are inspected “by the fire protection person that is there, and that’s the only inspection that’s done on them.” But if she happens to be in the building, and she hears beeping from a smoke detector in a hallway, she will replace the battery.

m) After the fire, Mr. Berhane came to inspect the fire alarm system. The fire alarm panel in the basement had loose, dead wires with knobs on them hanging from it. He worked on the fire panel “for a few hours, and then he needed some other parts so he was going to come back the next day,” which he did. He completed the required repairs to the fire panel, and she understood that it was then “in proper working condition.”

n) With respect to the charge in relation to the locked exit door, she testified that because she had informed the City of Toronto Building Inspector that there were squatters, drug paraphernalia and condoms left lying around at that location, the Building Inspector had told her to lock that door, which she did with a dead bolt lock. Whenever the building inspector required things to be done at the building, she asked for a written report from the Inspector. However, she did not receive any written notification requiring the lock to be placed on the exit door concerned. After Inspector Santos-Manraj’s inspection, the lock was removed at her direction.

o) On the wall of the lobby there is a metal box with a door and lock, in which they are supposed to keep “the paperwork that we receive from the fire inspection company.” That box is regularly vandalized, the lock is broken and the papers removed. The lock had to be replaced several times in 2009 but the vandalism did not cease so the papers were then kept elsewhere. Now that box is kept locked because “the tenants that we had there before …have all left the building,” pursuant to Eviction Orders. “The new tenants that I have in

there are behaving themselves,” and there are no vandals anymore.

p) In April 2009, a superintendant named George Young resided in the building. His responsibilities included making sure that doors were closed, the building was kept clean, and reporting to her any problems with alarms, noises and tenants. 12 . Mr. Rakesh Gupta was the second witness called on behalf of the defendant corporation. His testimony may be summarised as follows:

a) He has been the president of the defendant corporation for the past ten years. The corporation owns the building located at 81 Wilson Park Road, Toronto, and he personally attends there as frequently as necessary depending on the seriousness of the problem at the building.

b) The corporation also employs a “maintenance person” who attends twice weekly to take out garbage, clean floors, see that doors are closed, and to see that the emergency alarm system is not blinking which would indicate a problem.

c) There has been a positive change in the quality of the tenants in the past couple of years. Previously many of the tenants were prostitutes and drug dealers; the units were being rented by pimps and other unsavoury people. Currently the tenants are mainly families, “and now everything is neat and clean.”

d) After the fire in April of 2009, he stopped using Licata Fire Protection Company and hired a different company to do that work for his buildings. The new company is reliable and efficient; they check all the fire prevention equipment in the building once a year.

e) He was unable to recall what the defendant corporation actually did upon receipt of the Notice of Violation in relation to the charges before the court, but testified that while Mr. Berhane was working on the fire alarm panel and switching from the old panel to a new one, he was in attendance to ensure that the work was being properly done.

f) He resides in Oakville, Ontario, and attends all of his buildings once a day. He does not go into the buildings; he only looks to see whether everything seems to be in order. When problems arise which need attention either Ms. Andrade or he calls the required technician.

g) When asked by the prosecutor why he didn’t introduce some form of security because of the constant problems with the tenants, squatters and the like, he replied: “I can’t afford it.”

h) In relation to the charge of the locked exit door, he testified that it was the police who suggested they lock it because of all the vandalism. It was likely suggested at a meeting which he attended with the building inspector, the police and the city councillor for the area.

i) In April 2009 he had a female superintendant who was living in Unit #203. Although there is no specific

schedule for checking the fire prevention equipment, he, the manager, the maintenance person and the superintendant somehow collaborate to ensure that all of such equipment is properly maintained and in working order. 13 . The third witness for the defence was Mr. Jorge Garcia, whose evidence may be summarised as follows:

a) From 2009 to 2010 he was employed as a cleaner for the building at 81 Wilson Park Drive in Toronto. He also used to check whether the light on the fire enunciator panel was blinking, and when smoke alarms sounded, he would help with battery replacement.

b) He was not at the building when the fire broke out on April 3, 2009, and never even heard about it thereafter.

c) He remembered that on one occasion he saw the enunciator light flashing so he called and left a message at the office informing Ms. Andrade of the concern.

d) He was not aware that there was a superintendant at the building, and never met one even though he was there twice a week. If he encountered a problem he called Ms. Andrade. E. CHARACTERIZATION OF THE OFFENCES 14 . There is a presumption in favour of treating public welfare offences such as those in the case at bar, as strict liability offences unless there is compelling legislative direction to categorize them as either mens rea or absolute liability offences. I am satisfied that the presumption in relation to the three charges which the defendant is facing applies.

The effect of this is that – “the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably

believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.” See R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299. 15. Consequently, the prosecution is required to prove the actus reus, the essential elements of each offence, in order to secure a conviction. However, the defendant may avoid liability if it is able to satisfy the court, on a balance of probabilities, that it exercised due diligence in the circumstances. F.

FINDINGS OF FACT 16. I make the following findings of fact: 1. The defendant corporation is the owner of the property located at 81 Wilson Park Road, Toronto, which comprises sixteenresidential units on three floors.2. The overall responsibility for the day to day operations and maintenance of the building is vested in Mr. R. Gupta, who is thepresident of the corporation.3. Mr. Gupta hired Ms.

Paola Andrade some 13 years ago as bookkeeper for the corporation, and two years ago, she was a appointedoffice manager, solely responsible for the management of the defendant corporation’s central office at 1065 Bloor Street West,Toronto, through which the business operations of all ten residential buildings owned by Mr. Gupta through various corporations,are conducted.4. The building is equipped with various forms of fire prevention and protection equipment including smoke detectors, fire alarmpanel, and specific exit doors.5. On Friday April 3, 2009 a fire broke out in Unit #301 causing unspecified damage.

There was no battery in the smoke detector inunit #301.The fire was extinguished prior to the arrival of the Fire Suppression Unit on scene.6. Members of the Suppression Unit conducted an inspection of the building, and forthwith handed an Immediate Action Form to theresident superintendant, Mr. George Young, on behalf of the defendant corporation.7.

The Immediate Action Form required the defendant corporation to take immediate steps to - • Ensure that the locked exit door leading from the hallway is unlocked and remains open at all times to enable easy exit foroccupants in the event of a fire; • Ensure that the building’s fire alarm system was in proper working order; • Ensure that all smoke detectors in the building have batteries and are in proper working condition. 8. On Monday April 6, 2009, Ms.

Andrade was notified by the superintendant that there had been a fire, and that he had been givenan Immediate Action Form by the Fire Suppression Unit which had inspected the building at the time of the fire.9. On April 6, 2009 Inspectors A. Santos-Manraj and S. Colavita, accompanied by Mr. Young, conducted an inspection of thebuilding and found numerous violations of the Ontario fire prevention and protection legislation.10. After the inspection, Inspector Santos-Manraj telephoned Ms. Andrade and provided her with details of the inspection and whatrequired immediate attention to rectify the problems.

She made arrangements to meet Ms. Andrade at the building on WednesdayApril 8, 2009 for a re-inspection.11. Neither Ms. Andrade nor Mr. Gupta had even been aware that there had been a fire until Ms. Andrade received notification thereof,and informed Mr. Gupta on April 6, 2009.12. On April 6, 2009, Inspector Santos-Manraj mailed a Notice of Violation to the defendant corporation. The notice is not a legislatedrequirement, but rather a courtesy notification.13. On April 8, 2009 Inspector Santos-Manraj conducted a further inspection of the building, and found that the matters had not beenfully rectified.14.

By April 21, 2009 the items set out in the Immediate Action Form and the Notice of Violation had been fully rectified. G. THE ACTUS REUS OF THE OFFENCES 17. The evidence of Inspector Santos-Manraj clearly sets out the essential elements of the three offences. Her evidence is uncontradictedby the evidence for the defence, and it has not been compromised by the cross-examination. 18. Accordingly, I am satisfied that the Prosecution has proven the actus reus of all three charges beyond a reasonable doubt. 19.

Having made such a finding, I now turn to the defence of due diligence which is the core of the case for the defendant corporation. H. THE DUE DILIGENCE DEFENCE 20. In Levis (City) v. Tetrault 2006 SCC 12 , 2006 S.C.C. 12 the Supreme Court of Canada noted that the approach adopted bythe court in R. v. Sault Ste. Marie (supra) is that-

“the accused has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under whichthe conduct of the accused is assessed against that of a reasonable person in similar circumstances.” 21. However, as the British Columbia Court of Appeal held in R. v. Imperial Oil Ltd., 2000 BCCA 553 , 148 C.C.C. (3d) 367:“the focus of the due diligence test is the conduct which was or was not exercised in relation to the ‘particular event’ giving rise to thecharge, and not a more general standard of care.” 22. Moreover, in R. v.

Strang 36 M.V.R. (2d) 87 the Nova Scotia Court of Appeal held that “the burden upon the accused to raise areasonable doubt ‘is not as great’ as the burden of an accused in a strict liability offence to establish due diligence by a balance ofprobabilities.” I. HAS THE DEFENDANT MET ITS BURDEN? 23. “Reasonable care and due diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt,and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absoluteliability.” See: R. v.

Courtaulds Fibres Canada (1992) (ON CJ), 76 C.C.C. (3d) 68 (Ont. Prov. Div.). 24. The level of diligence required in any particular case is largely hinged on the foreseeability and extent of the potential harm that maybe caused by

an act or omission relative to the responsibility for compliance with the legislation at hand. “The greater the potential forsubstantial injury, the greater the degree of care required.” See: R. v. Placer Developments Ltd. (1983), 13 C.E.L.R. 42 (Yuk. T.C.).Needless to say, the potential for death, injury and destruction in the event of a fire in a residential building is immeasurable. 25.

In relation to the level of due diligence required and the extent of potential harm, it is significant to note that in the National Post ofJanuary 12, 2013, Toronto Fire Chief, Jim Sales, is quoted as saying that the majority of fatal fires “were the result of no smoke alarmsor non-functioning smoke alarms on the premises.” 26. I find that the overall plan of fire prevention and the supervision and control of the fire prevention and protection equipment was inadequate for the protection of the tenants. The evidence points to a loose, disjointed and haphazard plan without any reasonable form of co-ordination.

In essence Mr. Gupta and a couple of employees were somehow disjointedly responsible for the fire prevention and warning equipment in the building. There was no proper co-ordination or arrangement for regular monitoring or maintenance. The plan was reactive as opposed to preventive. In particular, there is no evidence whatsoever that the smoke detectors in the hallways were ever actuallychecked. 27. Furthermore, I found that during Mr. Gupta’s testimony he was meandering and circuitous, apparently endeavouring to divertattention from the actual issues before the court.

While under cross-examination, he constantly deviated from responding to questions inan apparent attempt to divert the focus of the examination. 28. The due diligence upon which the defendant relies must relate to the particular offences in question, otherwise it will not be relevant.(R. v. Emonts, [2007] O.J. No. 1206 (O.C.J.). Neither Ms. Andrade nor Mr. Gupta even knew about the fire and the Immediate ActionForm which had been provided to the superintendant immediately after the fire on Friday April 3, 2009 until the following Monday.

Andeven when a follow-up inspection was conducted on April 8, 2009, the items of concern had not been completely rectified. 29. Ms.Andrade testified that Mr. Gupta had never given her any specific instructions with respect to the monitoring and maintenance ofthe fire prevention equipment. Due diligence requires that the employer communicate adequate instructions to its employees, in verbaland/or written form, regarding safety precautions. See: R. v. MacMillan Bloedel Ltd. (1993), 12 C.E.L.R. 230 (Ont. Prov. Div.). 30. In Toronto (City) v. Barrasso,2006 ONCJ 463 , [2006] O.J.

No. 4829 (O.C.J.) the defendant was charged with variousviolations of the Fire Code in relation to an apartment building which it owned. The due diligence defence was rejected on the groundsthat the defendant could not avoid its responsibility to ensure that the building was in compliance with the Fire Code, merely due to the“type of tenants” or “nature of the neighbourhood.” – Cited by Libman J. in Libman on Regulatory Offences in Canada, Earlscourt LegalPress Inc. at 7- 7.3(n). J. DISPOSITION 31.

The inconsistencies and contradictions in the testimony of the three defence witnesses are of concern insofar as the practical plan offire equipment supervision is concerned, and lend support to my conclusion as to the haphazardness of the supervision. 32. In relation to the superintendant on April 3, 2009, Ms. Andrade told the court that George Young was the superintendant; Mr. Guptatestified that the superintendant was a female who resided in Unit #203; Mr. Garcia, on the other hand, had never even seen or met asuperintendant at all.

If the superintendant was part of the overall plan of fire equipment supervision, I would expect no controversy as tohis identity or existence at the time of the fire. 33. Furthermore, Ms. Andrade’s evidence was that Mr. Gupta never attended the building while repairs were being done. Mr. Gupta’sevidence was that when Mr. Berhane was working on the fire alarm panel after the fire, he was present to ensure that the work was beingdone properly. I do not make any finding of credibility with respect to this evidence save to say that it again supports my conclusion of

the ineffectiveness of the overall plan. 34 . According to the evidence of Ms. Andrade, when Licata Fire Protection company was summoned to address the concern about the state of the fire alarm panel, which appeared not to be functioning properly, Mr. Berhane had to leave in the middle of the repair, and purchase certain parts which were required to complete the job. This demonstrates a lack of regular monitoring and maintenance which should have been in place. 35 .

The glaring evidentiary inconsistency in relation to why a lock was placed on the exit door leaves me to conclude that in all likelihood, the decision was made by either Mr. Gupta or Ms. Andrade simply to keep the vagrants and squatters out. 36 . And finally, as the court held in Toronto (City) v. Barrasso ( supra), the defendant cannot shift the responsibility of ensuring that all smoke detectors had batteries and were in proper working order onto the shoulders of unsavoury tenants.

A reasonable means of supervision and enforcement is what is required as was eventually done when tenants were evicted and replaced by reliable and responsible tenants. 37 . For all of these reasons I am not satisfied that the defendant corporation has met its burden of proving due diligence, and consequently, I find the defendant guilty on all charges. K. SENTENCING 38 .

Prior to asking for submissions on sentencing, I wish to inform both parties that I will take into account as mitigating factors that by April 21, 2009 all matters had been satisfactorily completed, that the defendant’s attempts to improve the calibre of the tenants so as to reduce the instance of vandalism and risk, have been successful, and that the former fire inspection company has been replaced with a responsible and reliable one. P. Kowarsky J.P. January 22, 2013