R. v. Crystal Beach Co-operative Homes Inc., 2010 ONCJ 285

Information Number: 07-0799 Citation: R. v. Crystal Beach Co-operative Homes Inc. , 2010 ONCJ 285 ONTARIO COURT OF JUSTICE in the matter of the provincial offences act r.s.o. 1990 HER MAJESTY THE QUEEN Vs. CRYSTAL BEACH CO-OPERATIVE HOMES INC. * * * * * * * * P R O C E E D I N G S * * * * * * * * BEFORE HIS WORSHIP, JUSTICE OF THE PEACE, D. BROWN, HELD ON MAY 3, 2010 AT 71 KING STREET, ST. CATHARINES, ONTARIO * * * * * * * * CHARGE: FAIL TO MAINTAIN SMOKE ALARMS IN OPERATING CONDITION CONTRARY TO FIRE PROTECTION AND PREVENTION ACT 1997 S.O. 1997,

CHAPTER 4. SECTION 28(1)(C). * * * * * * * *

Appearances: Maloney, P., Mr. Prosecutor on behalf of the Crown Wolfe, D., Mr. Counsel on behalf of the Defendant ONTARIO COURT OF JUSTICE TABLE OF CONTENTS Exam. Cr- Re- WITNESSES : in-Ch. exam. exam. ********** EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE 1 Agreed Statement of Facts 14 **********

REASONS FOR JUDGMENT ********** Transcript Ordered: __ May 3, 2010 _____________ Transcript Completed: __ June 4, 2010 __________ Transcript Party Notified: ___________________ Monday May 3, 2010 REASONS FOR JUDGMENT BROWN, D. (Orally) THE COURT: On the basis of the Agreed Statement of Facts, attached hereto, I will make a factual finding that Crystal Beach Co- Operative Homes Inc., was in fact an owner of 105 Derby Road, Unit 16, within the definition of “owner” in the Fire Code .

I will also make a finding of fact that Crystal Beach Co-Operative Homes Inc., as owner, once again as defined, did in fact fail to maintain the smoke alarms in operating condition, and accordingly there will be a conviction. Submissions as to penalty. …Submissions by Mr. Maloney THE COURT: That is a joint submission Mr. Wolfe? MR. WOLFE: It is a joint submission on the terms of the Probation Order as were discussed today.

THE COURT: All right, and by way of submissions I have in fact been provided with draft suggested terms which I have reviewed, but I think before I discuss the appropriate penalty I should make a few comments in regard to both general and specific deterrence. Obviously, in sentencing I must address both general and specific deterrence. I note that Crystal Beach Co-Operative Homes Inc. is an “owner” within the meaning of the extended definition of owner in the Fire Code .

I also note because of the unique form of occupancy of Co-operatives as outlined in the Act governing Co-operatives that they would not have exclusive possession of that unit. I would note that the smoke alarm that was not maintained in this particular case, was not one general to the building but was specific to this unit. I also note that the hard-wired fire alarm as installed, was in compliance with the Fire Code provisions in effect at that time.

The problem if you like, which has been identified as a general problem with all of these hard-wired units, is that in order for them to function properly they require electricity from the mains. The difficulty with units that exclusively obtain their electricity from the mains is that if the power is off they do not function. The problem with units that are exclusively battery is that if the batteries are not installed, if the batteries are removed, or if the batteries have run out then they do not function. In this particular case, the electricity to the unit was cut off.

I would note that it was not cut off by the defendant corporation but that each particular Co-operative member contracts independently with the hydro utility supplier. So the Co-operative is not responsible for the supply of electricity to the unit and that is an independent contract with the hydro utility supplier. What is difficult to know is when electricity to a unit is cut off because of non payment of the hydro bill. What is difficult is how the Co-operative as the “Owner” or one of the owners of the unit would receive notification.

That also brings into account some privacy concerns with the hydro utility provider. I cannot ignore the fact that the fire here resulted in a fatality.

In addressing the issue of specific deterrence, there can be no doubt that this incident was a tragedy that personally affected all the members of the Crystal Beach Co-operative. The failure to maintain the smoke alarm here is almost the conjunction of a number of tragic coincidences with the result that everyone involved regrets. The proposed probation terms are certainly intended to provide specific deterrence and to provide a specific plan for the Co-operative unit for the future.

In terms of general deterrence it may also serve as a guide post to any other organizations that hold property in a Co- operative format. I know there are many throughout the province of Ontario. Because this is a corporation the only other alternative that I would have had here would have been to impose a monetary penalty. I note that this is a non, or not for profit Co-operative, which is a rather unique form of corporation. The imposition of a large monetary penalty may have simply had the effect of lessening the Co- operatives ability to provide inexpensive, safe and efficient housing for its members.

Taking all that into consideration, and the very unique circumstances of this case, I feel that a period of probation is, in fact, appropriate. Sentence will be suspended and the defendant corporation will be placed on probation for a period of 18 months from the date of this Order. The terms will be as follows, first of all the statutory terms: One; That the defendant shall not commit the same offence or any related or similar offence or any offence under a Statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment .

In other words, should anything like this come up again they would be subject to a breach of probation charge as well as the other offence. Two; The defendant has to appear before the Court as and when required. Again that is a statutory term. Three; The defendant shall notify the Court of any change in the defendants address. That would simply mean the corporate address of the defendant corporation and again that is a statutory term. Dealing now with the specific terms, and I am going to address each of them as they go along.

The additional terms are as follows: Four; The defendant corporation is to permit the Town of Fort Erie’s Fire Department to conduct a complete fire safety inspection of the defendant’s premises at a pre-determined date within thirty dates of the date of this probation order . The Fire Department probably has that right anyway under the relevant statutory provisions but it also forms part of the probation order to indicate that this is expected and it is expected to be done within thirty days.

Five; Permit the Town of Fort Erie’s Fire Department to conduct a subsequent complete fire safety inspection within one year of the first inspection referenced in paragraph one. Again, the Fire Department probably, in fact it does, have the right to do that anyway, but this indicates an expectation that they will do that. I should add that there is no, and Mr. Maloney, you can confirm this for me, that there is no evidence that the defendant corporation has been anything but helpful and co-operative in terms of the Fire Department’s investigation of this incident.

MR. MALONEY: Absolutely, Your Worship, as far as I am aware they have been fully co-operative with the entire investigation. So not just with the Town of Fort Erie but through Ontario Fire Marshall and all that sort of thing. THE COURT: Thank you. Six; Permit the Town of Fort Erie’s Fire Department to conduct random fire safety inspections as determined by the Town of Fort Erie’s Fire Department. Again they probably have the right to do that or they do have the right to do that anyway but should they interfere – that right be interfered with, there will be a breach of this Order.

Seven; Complete inspections of all units, submit reports to the Town of Fort Erie’s Fire Department every three months. Just so it is clear, I assume that means written reports? MR. MALONEY: Yes, Your Worship, written reports. That provides a record of due diligence I suppose. THE COURT: It may be in the interest of the defendant corporation anyway and I am going to add that; complete inspections of all units and submit written reports to the Town of Fort Erie’s Fire Department every three months. Eight; Install smoke alarms with a battery back up in all units and on all levels within the defendant’s premises.

Statutorily they probably do not have to do that at this point because the hard-wired smoke alarms or battery alarms would probably still continue to comply with the legislation. I do not think that the Fire Code provisions that required hard-wired ones to have battery back- up were retrospective and that – so this is an additional requirement and Mr. Wolfe, if any of this has been completed you can advise me of that for the purposes of the record. MR. WOLFE: Certainly, with respect to number five and some of the other matters are already been done or been addressed but number five has already been completed.

THE COURT: That is good. MR. WOLFE: We are not opposed to it being there, we know that the Fire Department may make some inquires when they do their inspection but the Co-op has already gone to some expense and some inconvenience if I could put it that way, but quite willingly to install an upgraded system which includes battery back-ups in all the hard-wired smoke detectors. THE COURT: All right, that is going to be almost the gold standard these days. They are going to be required to maintain and repair the smoke alarms referred to in the previous paragraph.

Nine; Install new batteries for the smoke alarms, referenced to each occupant within the defendant’s premises by April 1 st and October the 1 st this year. That means batteries being replaced every six months. Now, are they supplying the batteries or are they installing them? MR. WOLFE: Both, Your Worship, that has been the program since these devices were installed. That they are more than twice a year as I understand it, but certainly in compliance with what is being requested here. Going into the units and actually replacing the batteries with fresh batteries.

THE COURT: So they are actually installing them, they are not just handing… MR. WOLFE: They are not relying upon the occupants of the units to install the batteries but they in fact are themselves. THE COURT: Well, given my experience in Fire Code matters you cannot always depend upon the occupants of the units to install batteries. MR. COWAN: I just want to ask something, I’m sorry to interrupt. THE COURT: Sure.

MR. COWAN: As a member… THE COURT: Stand when you address the Court please. MR. COWAN: I apologize. As a member and a board member I generally go around with the maintenance person. We usually do this during the time changes, so roughly the same

schedule that is laid out here, and we make sure they are installed and tested four times a year. THE COURT: Good. MR. COWAN: Thank you. Ten; Develop and submit for approval of the Town of Fort Erie’s Fire Department of Fire Safety Training Program for the defendant’s Property Manager, the defendant’s Board of Directors and all occupants within the defendant premises. The Fire Safety Program will be developed in consultation with and on the advice of the Town of Fort Erie’s Fire Department.

Obviously a good idea that – and I would hope you would have complete co-operation from all the occupants in terms of doing that. I cannot order them to do anything but obviously given the tragedy that has happened here hopefully they will do it. Eleven; Upon receiving approval from the Town of Fort Erie’s Fire Department of the Fire Safety Training Program, to provide seminars to the occupants with the seminar to be developed in consultation with and on the advice of the Town of Fort Erie’s Fire Department . Now does the Co-op have regular meetings anyways? MR.

WOLFE: They have annual meetings in which membership – all members are expected to attend. THE COURT: All right, so that can - and then to provide further seminars to any new occupants that move into its units, subsequent to the date of the first seminar. Twelve; Supply and submit for approval a written fire safety package that will be given to all occupants.

The defendant shall require written acknowledgement from any occupant above the age of sixteen that they have read and understood the rules and responsibilities set out in the fire safety package, and the fire safety package will be developed in consultation with and on the advice of the Town of Fort Erie’s Fire Department.

I would assume, and it is not part of the order, but I would assume that this is going to include things like maintenance of fire alarms, identifying emergency exits, identifying meeting points, I forget what you call them, there is a technical name for that, where people are designed to meet in the event of a fire. Thirteen; Immediately revise the occupancy agreement with the members to add a provision that requires the member to provide written notification to the defendant if the hydro supply to the unit is disconnected at any time for any reason.

That imposes an obligation on the member who is occupying the unit to advise. MR. WOLFE: And that is something that has been done already. THE COURT: Good. Were it within my power I would like to be able to order that the utility supplier advise the Co-op if electricity is cut off to any units. I cannot do that. They are not a party to this proceeding and again it raises other concerns like privacy.

Fourteen; To immediately revise the occupancy agreement with the members to add a provision that provides notice to the members that no electrical work or electrical modifications may occur unless such work is completed by a certified electrician as approved by the defendant.

MR. WOLFE: Again, that has been implemented already, Your Worship. THE COURT: Excellent, because although it was not a factor in the ignition source of this fire, obviously there was some electrical work done that could have , presented a hazard in terms of temporary wiring. (emphasis added) Fifteen; Require the Property Manager or Board of Directors to assist the Town of Fort Erie’s Public Safety Officer with up to four presentations to other complexes about the responsibilities and seriousness of maintaining fire safety systems. This certainly addresses the issue of general deterrence.

I understand that the Co-op community if you like, in the province of Ontario, is fairly close knit and in contact with each other and share mutual ideas and concerns. This is a real opportunity to take advantage of that. I am glad to see that here. MR. WOLFE: If I may, Your Worship, I heard you say with four presentations, I wonder if it might be appropriate to say up to four presentations. It may be that the Township of, or the Town of Fort Erie will determine that there aren’t four presentations that are required. MR. MALONEY: That is agreeable, Your Worship. THE COURT: I have made that amendment.

Anything else then required in terms of sentencing? MR. MALONEY: No, Your Worship. THE COURT: All right. Again, nothing that has been said or done today detracts from the human tragedy. Hopefully the Orders that have been made will, for both this defendant and other defendants in a similar position assist carrying-out their duties in such a manner that will, at the very least minimize the chance of further such tragedies in the future.

I would like to also take this opportunity to thank both counsel for their diligence and hard work in completing the joint submissions as to penalty and to the Agreed Statement of Facts. Thank you. MR. MALONEY: Thank you, Your Worship. THE COURT: So the record is endorsed: plea not guilty, found guilty, sentence suspended, probation for eighteen months with terms. EXHIBIT NUMBER 1: Agreed Statement of Facts – Produced and Marked. ******* COURT REPORTER’S NOTE: Agreed Statement of Facts not read into the record, added as an appendix per His Worship’s request. Agreed Statement of Facts 1 .

On Saturday, March 31st, 2007, at approximately 9:57 a.m., the Town of Fort Erie’s Fire Department was called to a dwelling fire located at Unit #16, 105 Derby Road, in the former Village of Crystal Beach, in the Town of Fort Erie (hereinafter the “Subject Dwelling”). 2 . The Subject Dwelling was a semi-detached dwelling in a collection of dwellings referred to as the Crystal Beach Co-op and was, and continues to be, owned by Crystal Beach Co-operative Homes Inc. (hereinafter the “Defendant”). 3 . The Defendant is a not-for-profit corporation incorporated pursuant to the Co-operative Corporations Act.

One of the mandates of the Defendant is to provide low income housing to its Members. The rent for Members within the Crystal Beach Co-op is based on “rent geared to income”.

4 . Upon arrival at the scene, the Subject Dwelling was engulfed in flames. Fire service personal from the Town of Fort Erie found Mrs. Amanda Held and her daughter, both occupants of the Subject Dwelling, suffering from burn injuries and breathing difficulties from smoke inhalation. Mrs. Held was the Member for the subject dwelling. 5 . On April 12, 2007, Mrs. Held succumbed to her injuries and passed away. 6 .

Following an investigation by the Ontario Fire Marshall’s office (hereinafter the “OFM”), the ignition source of the fire was determined to be a pocket lighter found at the area of origin of the fire, and spread via a substantial amount of combustible material near the area of origin. The cause of the fire was determined to be a child fire setter, under the age of twelve (12). 7 . The Subject Dwelling was equipped with interconnected hardwired smoke alarms located in different areas of the Subject Dwelling.

The smoke alarms are a combined smoke detector and audible alarm device that is designed to sound an alarm within a room when there is smoke within such room. On the date of the offence, there were no apparent defects in the hardwired smoke alarms for the Subject Dwelling. 8 . Each Member of the Defendant independently contracts with a hydro utility supplier. At the time of the fire, the main electrical service to the Subject Dwelling was disconnected due to non-payment of the hydro bill. The Defendant was not informed that the hydro was disconnected. 9 .

The investigation revealed that the electrical power to the Subject Dwelling was disconnected at the meter and a limited supply of electrical power was obtained by the occupants, though the use of an extension cord that ran from the exterior of the neighbouring dwelling unit through a partly opened basement window of the Subject Dwelling. The limited supply of electricity did not provide any power to the hardwired smoke alarms. 10 .

The OFM investigation also revealed that the hardwired smoke alarms did not include batteries to back up the smoke alarm in the event that the main electrical services became non-functional. Since the building electrical system was not functional, and since there was no battery back-up, the smoke alarms were not functional at the time of the fire. There was no legal requirement to install a battery for back-up. 11 . The OFM investigation revealed that there had been some tampering of the smoke alarms, prior to the fire. 12 . The Defendant undertook regular inspection of units with the Crystal Beach Co-op.

However, the Defendant did not have a current written record of inspection and maintenance of the smoke alarms for the subject dwelling. 13 . On September 20, 2007, the Defendant was served with an Information for committing the offence of “while being the owner of 105 Derby Road, Unit 16, in the Town of Fort Erie, Ontario, did fail to maintain smoke alarms in operating condition contrary to Sentence 6.3.3.2(1) of O.

Reg. 388/97 , as amended, and did thereby commit an offence.” ******* FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, we .........................................Pam Medvesky/Christine Smith.........................................…………….. certify that (Please print name of authorized person(s)) this document is a true and accurate transcript of the recording of …………. Stacey Sagriff..…........ ..…….…………..

……… R. v. Crystal Beach Co-Operative Homes Inc. .. in the ..... POA Court ……… …...............…... (Case name) (Name of Court) held at ……………………71 King Street, St. Catharines, Ontario………..................................... taken from the recordings of (Court address) ……........ May 3, 2010 ............................ , which has been certified in Form 1. …….June 4, 2010............... ................................................................…....…... (Date) (Signature of authorized person(s))