R. v. 0927000 BC LTD. Date, 2016 BCPC 283

Citation: R. v. 0927000 BC LTD. Date: 20160912 2016 BCPC 283 File No: 34502 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Bylaw) REGINA v. 0927000 BC LTD. REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE Z. MAKHDOOM Counsel for Crown : R. LeBlanc Appearing for 092700 BC Ltd. : J. Skeet and Y. Nickpour Place of Hearing: Vancouver , B.C. Dates of Hearing: November 9, 2015 & February 22, 2016 Date of Judgment: September 12, 2016 INTRODUCTION [ 1 ] The disputant, 0927000 BC Ltd., is a corporation, registered pursuant to the Business Corporations Act, SBC 2002, c 57.

The Corporation owns the land and building at 33 West Hastings Street, in the city of Vancouver, province of British Columbia, where it operates a flophouse called, “Chelsea Hotel”. CHARGES [ 2 ] At trial the disputant faced a total of 15 charges pursuant to the Fire Bylaw #8191, as follows:

Count 1: Between March 4, 2014 and March 11, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to take an acceptable alternative measure to ensure that protection is maintained when any portion of a fire protection system is temporarily shut down, contrary to the form of the enactment in such case made and provided.

Sec t i on 6 . 1.1.4(1) By-law 8191; Count 2: Between March 4, 2014 and March 13, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to inspect and test the fire alarm system in conformance with CAN/ULC-S536 - M “ Inspection and Testing of Fire Alarm Systems”, contrary to the form of the enactment in such case made and provided.

Section 6.3.1.2(1) By-law 8191; Count 3: Between March 4, 2014 and March 13, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to inspect, test, maintain or recharge portable extinguishers in said building, to wit, 1st floor, in conformance with NFPA10, “ Portable Fire Extinguishers”, contrary to the form of the enactment in such case made and provided.

Section 6.2.4.1

(1) By-law 8191; Count 4: Between March 4, 2014 and March 13, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to inspect, test, maintain or recharge portable extinguishers in said building, to wit, 2nd floor hallway, in conformance with NFPA10, “ Portable Fire Extinguishers”, contrary to the form of the enactment in such case made and provided.

Section 6.2.4.1(1) By-law 8191; Count 5: Between March 4, 2014 and March 13, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, B r itish Columbia, did fail to inspect and tag the emergency lighting system located, to wit, 1st floor bottom of the stairs, at intervals not greater than 12 months to ensure they are functional, contrary to the form of the enactment in such case made and provided.

Section 6.7.1.7(1) By-law 8191; Count 6: Between March 4, 2014 and March 13, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to inspect and tag the emergency lighting system located, to wit, rear fire escape, at intervals not greater than 12 months to ensure they are functional, contrary to the form of the enactment in such case made and provided.

Section 6.7.1.7(1) By-law 8191; Count 7: Between March 4, 2014 and March 13, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to illuminate exit lighting and exit signs during times the said building is occupied, to wit, on wall in stairwell to front door stairs, contrary to the form of the enactment in such case made and provided.

Section 2 . 7.3.1(2) By-law 8191; Count 8: Between March 4, 2014 and March 13, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to illuminate exit lighting and exit signs during times the said building is occupied, to wit, above front door, contrary to the form of the enactment in such case made and provided.

Section 2.7.3.1(2) By-law 8191; Count 9: Between March 4, 2014 and April 2, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to have protective caps on all Fire Department connections to said building and said caps kept in place at all times, contrary to the form of the enactment in such case made and provided.

Section 6.4.1 . 7(2) By-law 8191; Count 10: Between March 4, 2014 and April 2, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did permit a door in a fire separation in said building, to wit, 1 s t floor, to be blocked, wedged or otherwise held open, contrary to the form of the enactment in such case made and provided.

Section 2.2.2.4(4) B y - law 8191; Count 11: Between March 4, 2014 and April 2, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did permit a door in a fire separation in said building, to wit, 2nd floor, to be blocked, wedged or otherwise held open, contrary to the form of the enactment in such case made and provided.

Section 2.2.2.4(4) By-law 8191; Count 12: Between March 4, 2014 and April 2, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, other than as provided in Sentence 2.4.1.5 By-law 8191, did permit combustible materials in or around the building, to wit, 1st floor rooftop, to accumulate in such quantities or locations that will constitute a fire hazard, contrary to the form of the enactment in such case made and provided.

Section 2.4.1.1(1) By-law 8191; Count 13: Between March 4, 2014 and April 2, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, other than as provided in Sentence 2.4. 1 . 5 By-law 8191, did permit combustible materials in or around the building, to wit, 2nd floor, to accumulate in such quantities or locations t h at will constitute a fire hazard, contrary to the form of the enactment in such case made and provided.

Section 2.4.1.1(1) By-law 8191; Count 14: Between March 4, 2014 and April 2, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, did fail to keep the means of egress, to wit, 2nd floor, in good repair and free of obstructions, contrary to the form of the enactment in such case made and provided.

Section 2.7.1.6(1) By-law 8191; Count 15: Between March 4, 2014 and April 2, 2014, being the owner of land and building at 33 West Hastings Street, Vancouver, British Columbia, wherein said building the fire separations were damaged so as to affect their integrity, did fail to repair said fire separations so that the integrity of the fire separations was maintained, contrary to the form of the enactment in such case made and provided.

Section 2.2.1.2(1) By -law 8191. REGULATORY CONTEXT [ 3 ] Pursuant to the Vancouver Charter S.B.C. 1953, c.55, the City of Vancouver has authority to enact bylaws regulating civic conduct of individuals and corporations within its jurisdiction.

[4] The City of Vancouver By-law 8191 commonly known as Fire Bylaw was in force until it was repealed by the City Council onJuly 21, 2015, and replaced by By-law No. 11312, which currently regulates standards for fire safety in buildings and facilities. Acursory read of the amended document shows that not much has been changed insofar as regulations are concerned. The new By-lawadopts the British Columbia Fire Code. At the time of the alleged commissioning of the violations, By-law 8191 was in force. FACTS 1.

The Corporation owns a three-storey building, located at 33 West Hastings Street, Vancouver, BC, that was built towards thebeginning of the 20th century. 2. Located at the ground level of the building is the “Lost and Found Café”, the remaining two floors house the Chelsea Hotel (Chelsea). 3. Chelsea has about 29 single rental rooms, which are designated pursuant to s.2.2 of the City of Vancouver Single RoomAccommodation By-Law No. 8733) as “single room accommodation” hotel.

Its patrons mainly are the inner-city poor a majority ofthem is likely faced with substantial challenges associated with mental health, drugs and chemical abuse. [5] Chronology of events leading up to the laying of the foregoing charges is as follows: 1. 1906: Chelsea Hotel building built. 2. 1950: Big improvement year. 3. 01 FEB 2012: The disputant purchased the property. 4. 17 MAR 2014: Routine annual fire inspection of the Chelsea by Inspector Colin Macaulay. A “Notice of Violation” from theVancouver Fire and Rescue Services, handed in to then manager of the facility, Blake Stewart.

The notice required the alarm system tobe serviced immediately with a direction to notify upon the completion of task. Thirteen other deficiencies were noted as well (seeExhibit 5). Printed in clear was this warning: This Notice of Violation makes you legally responsible for any consequences arising from this matter. Failure to comply with the aboveinstructions will result in a re-inspection service charge of $100.00 for each hour or part thereof (plus G.S.T.) to the Owner/Occupant,and possible legal action. a) 05 MAR 2014: Re-inspection by Inspector Macaulay.

New manager Fred Lincoln was handed another “Notice of Violation”(Exhibit 6). Requiring the following: • Have fire alarm system placed into proper working order by qualified technician immediately. • Maintain 24 hour firewatch until Fire Alarm is in proper working order. • Have extinguishers serviced by qualified technician. • Have emergency lights serviced by qualified technician.

b) The Fire-Watch required reporting of walkabout every 15-minutes during the hours of 10 p.m. and 8 a.m. and 30 minutes during thedaytime. Throughout the watch, an air-horn or any other means of alerting the residents of fire hazard must be maintained. The Fire-Watch is ordered in the event of the failure of the electronic Fire Protection Systems (see Exhibit 7). The notice repeated the warning setout in Exhibit 5. c) 10 MAR 2014: Re-inspection by Macaulay demonstrated no material effort to rectify his concerns noted on the notices of the FireBy-law violations. He photographed the deficiencies (Exhibit 8).

Consequently, later during the day an Order, pursuant to Fire By-law8191, by the Fire Chief was hand-delivered to the address at 33 West Hastings. A copy was registered mailed to the registered corporateaddress of the Corporation, 2610 -1255 Bidwell Street, Vancouver, BC. ANALYSIS [6] The present case is one of the many cases concerning the SRAs or SROs with almost identical facts that regularly occupy thedockets of this Court, see for example, R. v. Picadilly Investments Ltd. 2008 BCPC 97 , http://canlii.ca/t/1x1h0.

The mostcommon feature of these cases is the abject squalor in which the residents dwell. [7] The City called one witness. Inspector Colin Macaulay, a fire inspector for the City of Vancouver Fire Department. Twowitnesses for the defence were: Ms. Jillian Skeet, who did not reveal any job title but described her role as being that of advocacy,lobbying and rendering general administrative and financial management assistance and help to Mr.

Yahya Nickpour, who presumably isthe operating mind of the Corporation; and, Keith Norwood, a general maintenance person who works at the Chelsea as well serving atthree other properties owned by the Corporation or Mr. Nickpour. [8] The name “Chelsea Hotel”, should not conjure up thoughts of a tony, Bohemian retreat with necessary creature comforts thatone likely associate with the original Chelsea district of London, famous for its annual flower show and for being a neighbourhood of choice for almost who-is-who in letters during the 19th and 20th century Britain.

Chelsea that sits atop the “Lost and Found Café” inUnit Block of West Hastings Street, using my youngest son’s terminology for similar properties, is “a certified dive”, although the cafédownstairs is quite cute. There are 15 rooms on each of the second and third floors. Occupants share one bathroom located on each

floor. [9] The occupants of this collective dwelling place, are humans facing severe conditions of life. In addition to the evidenceadduced by both parties, I am able to take judicial notice of a fact that is well-known within the community that a majority of clienteleusing the SRO facilities are extremely poor, receiving some sort of financial assistance from the state, and are, in most cases, afflictedwith mental health and therapeutic conditions including substance abuse and addictions.

In the absence of these so-called “independentand community living” places afforded by the SRO providers, their typical client would either be living on the streets or would beadmitted as an in-patient in a psychiatric unit of a hospital or would be a full-time resident of a psychiatric hospital. [10] The parties agree that the offences charged are that of strict liability. Exhibit 8 furnishes sufficient proof of actus reusrespecting all 15 counts. These being strict liability offences, the owners of the property may avoid liability by establishing duediligence, on the test of balance of probabilities.

That is, I must reflect upon the question: did the accused corporation undertakereasonable steps to ensure compliance with the material Bylaws. [11] Societies are organic structures, in a constant state of flux. With our evolution into a complex industrial, more accurately assome sociologists and economists argue post-industrial society (see for, example, Bell, Daniel (1973, 1999), The Coming of PostIndustrial Society: A Venture in Social Forecasting. New York: Basic Books), the very nature of our social contract has transformed.

Some hitherto reified values and principles at law succumbed to this overwhelming force of an evolving social contract. The purity andsacrosanct nature of the notion of fault at common law underwent a significant makeover. Mental element or mens rea was no longer aHoly Grail in the context of an ever-increasing body of public welfare regulations. [12] The raison d’être of establishing regulatory regimes is to establish a uniform standard of conduct for individuals or collectives,such as corporations or companies.

The objective of the state in doing so is to lead individuals and corporations into adoptingmeaningful, realistic, and reasonable practices that would reduce social or environmental costs and assuage common harm. [13] The offences created in Fire Bylaw are strict liability. These are regulatory offences wherein the fault element is simplenegligence rather than mens rea in the traditional sense. In R. v. Sault Ste. Marie (1978) (SCC), 40 C.C.C. (2d) 353S.C.C., Mr.

Justice Dickson wrote: Strict liability offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibitedact, prima facie, imports the offence…” [14] Notwithstanding negligence being the fault element of a strict liability offence, the prosecution need only prove actus reusbeyond a reasonable doubt, leaving it open for the accused to avoid liability by proving on a balance of probabilities that they tookreasonable care or acted under a reasonable mistake of fact. In Sault Ste.

Marie, supra, Dickson J, stressed the burden on the accused toestablish “due diligence”, (see also, R. v. Metro News Ltd. (1986), (ON CA), 56 O.R. (2d) 321, 53 C.R. (3d) 289,(C.A.), R. v. Pontes (1995) (SCC), 100 C.C.C. (3d) 353 (S.C.C.) This involves consideration of what a reasonable man could have done in the circumstances.

The defence will be available if theaccused reasonably but mistakenly believed in a set of facts which, if true, would render the act or omission innocent, or if he took allreasonable steps to avoid the particular event. (From the headnote). [15] I have no reason to doubt the narrative of Inspector Macaulay. His testimony was unshaken. In his testimony, Mr. Norwooddid dispute location of some of the photographs. He is at best an itinerant handy-person at Chelsea. He works for Mr. Nickpour and hiscompanies, taking care of minor repairs in his other properties, particularly another SRO, Persepolis.

He does not maintain an officespace in the material property. He does not have a regular

schedule of visit on site. He attends when a need is expressed by a facilitymanager. When on stand, he demonstrated startling defensiveness coupled with fairly aggressive stance. He worked through Exhibit 8;identified many photographs, which in his view, did not belong to Chelsea. Others he tried to explain without providing any basis for hisdeductions.

Respectfully, he presented as a self-serving, rather flippant, and somewhat not very truthful witness, who is willing to do thebidding in protecting the interests of his employer. [16] I have no doubt that the photographs entered are a true representation of the condition of Chelsea on March 10, 2014. Thesewere not altered and were presented as is. In sum, they furnish an objective and rather stark and graphic view inside Chelsea. In R. v.Nikolovski, (SCC), [1996] 3 S.C.R. 1197, (S.C.C.), Mr.

Justice Cory articulated the following for the majority: Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissibleand relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but itis to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has beencommitted and whether the accused before the court committed the crime.

It may indeed be a silent, trustworthy, unemotional, unbiasedand accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself itwill demonstrate clearly either the innocence or guilt of the accused. [17] Admittedly, the condition of Chelsea does not come even close to the condition of some other SRA facilities (see, for example,Picadilly, supra.), which could very well be reminiscent of the 19-century lodging houses that dotted the slums of the newlyindustrialising London of Charles Dickens. In comparison, Chelsea seems decent enough place.

Nevertheless, multiplicity of FireBylaw violations render its clients seriously vulnerable and exposed to hazardous consequences of fire. I take judicial notice of the tragicoutcome of the fire of August 19, 2008, which burned the Columbus Hotel in Prince George, BC, causing three deaths. [18] While testifying, Mr. Norwood and Ms. Skeet laid the blame at the feet of the clientele of Chelsea, painting a rather Sisypheanpicture that renders supervision of property or repairs futile.

Install a protective cap on the Fire Department connections, it would gomissing forthwith; shut a door in fire separation, it would be wedged open immediately; clear accumulated combustible materials orobstructions around places of egress, more obstructive items would pile up rapidly. In other words, together they painted a rather gloomyportrait of an urban wasteland inhabited by an assortment of the homeless, the destitute, the mentally challenged, the tramps, the junkies,the afflicted, all having one thing in common: they occupy our social, political, and perhaps legal blind spot; they exist outside our

comfort level. Perhaps an easy target to locate blame for the multiple lapses of the disputant. However, I am not convinced thatknowing their clientele, the disputant acted in a manner a reasonable and conscientious corporation would act. [19] The stark reality is that non-compliance of the Fire Bylaw could cause death and untold misery to a large number of humanbeings who may be faced with tremendous challenges to look after their own safety and security. Mr.

Nickpour emphasized utterdisregard for property that was demonstrated by the residents at Chelsea and how no sooner a task is completed, it would be destroyedagain. As a landlord, Mr. Nickpour should have been cognisant of the nature of its clientele. [20] Reasonableness is not an absolutist construct. It must be sought, found, examined, and analysed within the context andconceptual frame of Chelsea’s patrons, a highly vulnerable clientele with demonstrably severe mental illnesses and addictions.

As such,the threshold for establishing diligence in this case must be higher. [21] The lack of diligence in the area of housing for the hard-to-house members of our society would in all likelihood lead to tragichuman, social and economic consequences. In R. v.

Wholesale Travel Group Inc. (SCC), [1991] 3 S.C.R. 154, Mr.Justice Cory wrote that: “…It is absolutely essential that governments have the ability to enforce a standard of reasonable care inactivities affecting public welfare.” In my respectful view, the quantum for reasonableness must not be watered down to the point thatthe laudable purpose of the State in regulating our civic life is thwarted. [22] Chelsea is a lodging facility for individuals with multiple special needs. The building is one hundred and ten years old,requiring constant care.

A majority of its patrons are mired in a tragic cycle of dispossession, helplessness, and the concomitantalienation. Some of them are probably at the very end of their life; others may not have much control upon their circumstances. Dispossession breeds alienation. Professor Allen Wood of Cornell University suggests, alienation is, “A psychological or social evil,characterized by one or another type of harmful separation, disruption or fragmentation, which sunders things that belong together” (inHonderich, Ted (1995). The Oxford Companion to Philosophy. Oxford: OUP, p. 21).

Is it reasonable to expect individuals withdemonstrably limited self-care skills and abilities to remain gracious, responsible, and conscientious guests of a lodging place? What ifthe lodging place itself is a sad representation of the classic Hollywood post-apocalyptic scene of urban squalor or a minor improvementon the theme of penny-hangs? Would a dilapidated place engender concern for its upkeep in the hearts of its patrons? [23] There is no evidence that the property was obtained by the disputants to run a charitable facility.

In 2012, when they boughtChelsea, they knew exactly what they were buying: management of an aging facility, subject to the SRA rules, to provide lodging to thehard-to-house individuals, afflicted with multiple conditions. They knew very well Chelsea was not a sister hotel of Shangri-La. Thetenants would not pay “market rental rates” but pay what they receive as “rental allowance” from the State. The state, in turn, is facedwith the dichotomy of shrinking public resources and increasing public needs.

The disputant made a business decision, which oneassumes was driven by the logic of the market place – investing for profit and growth. [24] When one chooses to locate inside a municipality they become subject to its regulations. Owning a lodging house in the City ofVancouver is a regulated activity. Employing a conscientious and erudite helper and advocate like Ms. Skeet or employing a handyperson like Mr. Norwood or keeping a fire-safety company on a permanent retainer, are insufficient grounds for extinguishing anowner’s liability.

While having on hand a team of workers and helpers may indicate some diligence, the latter’s belief in the futility oftheir actions towards bringing the property in compliance, likely renders their toil or engagement less effective, perhaps even useless. [25] During his Court appearance, Mr. Nickpour, as stated earlier, an operating mind of the corporation, expressed helplessness andfrustration with the “heavy-handed” approach of the City in enforcing the Fire Bylaw. He did not testify. For the most part, hemaintained control over the conduct of the trial. Ms.

Skeet added to his arguments and submissions at the conclusion of trial. In hersubmissions, Ms. Skeet demonstrated empathy and concern for the well-being of their clients. She directed the Court to look into hertrack record of advocating for better housing conditions for the mental-health challenged and addicted humans of “Downtown Eastside(DTES) Vancouver”. [26] Ms. Skeet made a powerful submission. She is ostensibly a thoughtful person with her heart in the good place. As an “agent”of the owners, she demonstrated superior knowledge concerning the unique nature, presentiments and proclivities of their tenants.

In hersubmissions, however, rather than addressing the specifics, Ms. Skeet proffered a relevant and thoughtful, albeit much broad, critique ofthe relationship between the City and the SRA owners.

While I appreciate her passion and concern for the hard to house clientele of heremployers, applying the rules of evidence, I did not find her testimony helpful in determining whether or not the offences alleged werecommitted. [27] Part of her submissions, presented a powerful sketch of the relationship between the SRA owners and the City. “…the owners of SROs, Single Room Occupancy hotels on the Downtown Eastside are expected to go far and beyond any hotel manageror apartment owner in any other jurisdiction.

They are asked to be babysitters and wardens and mental health experts and addictionexperts and maintenance experts”. [28] I am sensitive to the tenor of her reflections. That, when closing down the mental health residential facilities, the State,represented by the City as well as provincial and federal governments, failed to build proper network for a wide spectrum of services andsupports crucial in the rehabilitation of the afflicted in the mainstream of our society.

A short walk through many of the downtownVancouver streets affords powerful insights into the exceptionally distressing circumstances of the addicted and the afflicted humanbeings. I also realise that the SRA facilities are probably insufficiently remunerated. However, despite necessary compassion for andunderstanding of the circumstances of the SRA owners, it is important to note their task is limited to providing lodging facilities that areconsistent with the provisions in City bylaws respecting safety, security, and comfort of the rent-paying residents.

Notwithstanding, therectitude of the critical material reported in our media concerning the foregoing, the fact is that a fairly large number of therapeutic andother support services operate inside a fairly small postal code of “DTES”. The owners of Chelsea are not expected to act as atherapeutic facility; they are only compensated by their clients to afford them safe housing. [29] The Fire By-Law, while being an essential regulatory instrument, is also an expression of our citizenship, or the manner inwhich we must ensure safety of the weak, the ill, the addicted, and the destitute in our midst.

In many ways than mere few, it serves as a

minimum standard of safety that must be maintained in the collective dwelling places, especially the ones occupied by the foregoing. [ 30 ] An owner of a SRA facility, demonstrably cognisant of the conditions of his clientele, is expected to establish realistic and verifiable benchmarks for ascertaining the safety and security of its clientele. The society at large rightfully expects that there would be proper controls, procedures, systems, and monitors in place, which on the one hand ensures safety of its tenants. On the other, engenders respect for the premises.

Respectfully, the disputant has failed to do that. [ 31 ] The case of R. v. Gulf of Georgia Towing Co. Ltd., [1979] CanLii 483 (BCCA), < http://canlii.ca/t/23gjz > , Mr. Justice Seaton of our Court of Appeal underscored the contextual appropriateness of safeguards in the realm of public welfare: I think that the length that the employer must go to will depend on all the circumstances including the magnitude of the damage that will be done in the event of a mistake and the likelihood of there being a mistake…I am sure they have not hired infallible people. There will inevitably then be a spill.

It seems to me that the consequences are so serious that something will have to be devised by the company if it is to be protected here to prevent spills when employees are not as careful as they are told to be. [ 32 ] The table below shows the counts charged and their nexus with the photographs snapped by Officer Macaulay during an inspection of the property on March 10, 2014. Cumulatively these photographs were admitted into evidence as Exhibit 8. The condition of the property as photographed was not contested by the defence.

Consequently, it is fair to say that these photographs portray the reality of the property on the material day, hence prima facie case for guilt for counts portrayed. Count

Section of By-law 8191 Short Description Photograph # Actus reus proven? 1 6.1.1.4(1) Failure to take acceptable measure to ensure protection is maintained when any portion of fire protection system is temporarily shut down Yes 2 6.3.1.2(1) Failure to inspect & test fire alarm system in conformance with CAN/ULC-S536-M 3 Yes 3 6.2.4.1(1) Failure to inspect, test, maintain or recharge portable fire extinguishers - 1 st floor 13 Yes.

Subsume Count 4, 5, & 6 ( Kienapple ) 4 6.2.4.1(1) Failure to inspect, test, maintain or recharge portable fire extinguishers - 2 nd floor hallway 7 Stay 5 6.7.1.7(1) Failure to inspect & tag the emergency lighting system 12 Stay 6 6.7.1.7(1) Failure to inspect & tag the emergency lighting system 17 Stay 7 2.7.3.1(2) Fail to illuminate exit lighting & exit signs, wall in stairwell to front doors 19 Yes 8 2.7.3.1(2) Fail to illuminate exit lighting & exit signs, above front door 20 Yes 9 6.4.1.7(2) Fail to have protective caps on all Fire Dept. connections 2 Yes 10 2.2.2.4(4) Failing to ensure the door in a separation is shut, 1 st floor 18 Yes 11 2.2.2.4(4) Failing to ensure the door in a separation is shut, 2nd floor 5 Yes

12 2.4.1.1(1) Permit combustible materials in or around the building, 1st floor rooftop 15 & 16 Yes 13 2.4.1.1(1) Permit combustible materials in or around the building, 2nd floor 6 Yes 14 2.7.1.6(1) Fail to keep means of egress free of obstructions, 2nd floor 10 Yes 15 2.2.1.2(1) Fire separation damaged 9 Yes [33] The Kienapple principle, as it has come to be known, assumes two disparate positions: (1) against multiple convictions arisingfrom the same delict, and (2) against staying an indictment or a conviction for a greater offence when elements of a lesser offencecharged are factually identical, requiring application of the principle (see R. v.

Prince [1986] 2 S.C.R.) In Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729, the late Mr. Justice Laskin, as he then was, wrote: If there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence charged in a secondcount, the situation invites application of a rule against multiple convictions… [34] Counts 3 and 4, concern testing, maintenance, and recharging of portable fire extinguishers. There were two such extinguishers,one on each of the two floors, both had expired decals. Counts 5 and 6, concern inspection and tagging of the emergency lightingsystem.

The element of the foregoing offences is negligence of the disputants to sufficiently monitor and hold to account the serviceproviders entrusted with the task of maintaining these items. In my view, the failure of disputant to ensure its contractors perform theirtask, is a single act which should not attract multiple convictions. Applying the Kienapple principle, I am ordering stays on counts 4, 5,and 6. [35] The evidence in its entirety does not prove any diligence on part of the disputant.

They belatedly acted to get the fireextinguishers tested, fix the fire alarm system and exit lamps, remove piled up materials, find a solution to the fire separation doors beingwedged open and vandalism of the protective caps on the fire equipment. Their response followed a rather protracted process involvingan inspection, at least two re-inspections, verbal and written warnings, and two orders from the Fire Department. As a consequence, Irespectfully, find the disputant guilty on counts 1, 2, 3, 7, 8, 9, 10, 11, 12, 13, 14, and 15. ____________________ Zahid Makhdoom Judicial Justice