2014 QCCQ 2325, 2014 QCCQ 2325

Kelly c. Séguin 2014 QCCQ 2325 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-015715-131 DATE: The 20 th day of February, 2014 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ BRIAN PHILLIP KELLY Plaintiff v.

STÉPHANE SÉGUIN, GORDON STANHOPE, CITY OF PINCOURT, Me ÉTIENNE BERGEVIN BYETTE, AND CLAUDE ROBILLARD Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is a claim against the Town of Pincourt, three of their employees, and a volunteer photographer, claiming $7000 for alleged breach of human rights that happened on April 30, 2013, when the firefighters intervened to extinguish a fire that started in Mr. Kelly's car in his garage. THE FACTS: [ 2 ] Mr.

Kelly owns an antique Jaguar, which was in his garage on April 30, 2013. The garage is attached to the house, located on Cardinal-Léger boulevard in Pincourt. Mr. Kelly states that after the fire was extinguished, Stéphane Séguin, assistant director of the firefighter service in Pincourt, entered his house, and asked someone to take photographs in the kitchen and every bedroom. He says that Mr. Séguin talked with him about fire detectors and took pictures of the garage; he adds that the firefighters entered his house as if they owned it, without asking the permission. [ 3 ] If Mr.

Kelly seems to understand that the firefighters had to take pictures of his garage, he says it was not correct that they photograph the interior of his house. He thinks that it is harassment against him, as they had no mandate to come into his house, and that the photographer, Claude Robillard, also entered his house without his consent. [ 4 ] This situation is the last of a series of events that led Mr. Kelly to believe that the Town is harassing him, and that gave rise to three other lawsuits. [1] [ 5 ] Mr.

Kelly has sued the Town of Pincourt, Stéphane Séguin and Gordon Stanhope, a firefighter and preventionnist, because he was on the site and acted as supervisor to Mr. Claude Robillard; Claude Robillard, who took pictures of the scene, and Étienne Bergevin Byette, Assistant Town Manager and Town Clerk for the Town of Pincourt.

[ 6 ] Me Bergevin Byette is sued because he did not provide Mr. Kelly, within the legal delays, the answer to his questions, asked under the Act respecting access to documents held by public bodies and the protection of personal information [2] , as regards the name of the photographer who was on site, and copy of the photographs taken that day. [ 7 ] During the hearing, Mr. Kelly also reproached to the Town that the firefighters had broken the rear window of his garage, and that they took his car out of the garage after the fire. ANALYSIS AND DECISION: [ 8 ]

Section 44 the Fire Safety Act reads as follows: 44. For the purposes of

section 43, the fire chief or the person designated by the fire chief may, during the 24 hours following the fire, (1) prohibit access to the scene of the fire to facilitate the search for or the preservation of any thing relevant for the purposes of his or her functions; (2) inspect the fire-damaged premises and examine or seize any document or thing found on the premises and which the fire chief believes may be of assistance in determining the point of origin, probable causes or immediate circumstances of the fire; (3) take photographs of the premises and of any thing; (4) make copies of any documents; (5) conduct or commission, on the premises, the expert appraisals considered necessary; (6) collect the accounts of witnesses. 43.

Subject to any restrictions that may be imposed by a police service in the cases referred to in

section 45, the fire chief or a qualified person designated by the fire chief for that purpose must, in respect of every fire having occurred in the territory served by the service, determine the point of origin, probable causes and immediate circumstances, including the characteristics of the fire-damaged immovable or property and the sequence of events. [3] [ 9 ]

Section 40 is also important: 40. Firefighters may, in the performance of their duties, enter any premises affected or threatened by fire, a disaster or any other emergency, and any adjacent premises, for the purpose of fighting the fire, responding to the emergency or providing assistance.

Firefighters may also, in the performance of their duties and under the authority of the person directing operations, (1) use the necessary means to enter premises where there is serious threat to persons or property or adjacent premises for the purpose of removing or reducing the threat or providing assistance; (2) prohibit access to and interrupt or divert traffic in a protection zone or impose special rules in that zone; (3) order evacuation of the premises as a safety measure in a perilous situation where there are no other means of protection; (4) order the shutting off of an establishment's energy supply or, where a simple procedure suffices, shut off the supply themselves to guarantee the safety of operations after ensuring that such an action will not put others at risk;

(5) authorize the demolition of a structure to prevent the spread of fire or of the effects of a disaster; (6) order any other measure necessary to secure the premises; (7) accept or require, where the firefighting personnel available is insufficient, the assistance of any person capable of providing assistance; (8) accept or requisition the necessary private firefighting resources where the resources of the service are insufficient or not readily accessible in an emergency. [ 10 ] Mr. Séguin explained to the Court that it was necessary for Mr.

Stanhope to break the rear window in order to ventilate the premises, and that it was part of the operations to extinguish the fire. It was also necessary to take out Mr. Kelly's vehicle, to be sure that the fire was totally extinguished, as the firefighters has to make sure that the fire does not start over. [ 11 ] The Town or the firefighters committed no fault in their manoeuvres to extinguish the fire in Mr. Kelly's garage. [ 12 ] As for the photographs, Mr.

Claude Robillard, who is a volunteer, explained to the Court that he is called on almost every fire that occurs in a large territory, including Pincourt, and that the purpose of his photographs is to help the fire chief to establish the cause and origin of the fire. When he is outside the premises, he can take as many pictures as he wants, but inside the premises, he has to be authorized by an officer. He explained that he enters premises only when the officer asks him to do so, and that he photographs only what he is asked to. [ 13 ] In Mr.

Kelly's house, he took photographs of the garage, where the fire had started, and testified that he only took one picture of a space located immediately after the garage where there was a smoke detector that was not in operation. He testified that he did not go inside the house, in the kitchen or in the bedrooms, to take other pictures, and that the only picture that was taken was the one already transmitted to Mr. Kelly by Me Bergevin Byette. [ 14 ] Mr. Robillard's testified in a straight forward manner, and he personally had no interest in taking pictures of Mr.

Kelly's house, having never dealt with him before. The Court has no reason not to accept his testimony. [ 15 ] The presence of Mr. Robillard was allowed by Section 44 (3) of the Fire Safety Act , and the action against him is not founded. [ 16 ] As regards the action against Me Bergevin Byette, Mr. Kelly argues that a first demand for documents was sent to the Town on July 12, 2013. Me Bergevin Byette explained that this letter was not considered to be a formal demand under the Act , and that this is the reason why it was not answered.

The second demand was made in a letter dated August 23, 2013, and the answer was given to Mr. Kelly by a letter dated September 9, 2013. [ 17 ] Mr. Kelly amended its claim to sue also Mr. Robillard and Me Bergevin Byette on October 2, 2013, after he received the information. He alleged on paragraph 1 of its amended claim that Me Bergevin Byette "refuse to disclose a complete information requested following the request dated July 12, 2013" , though the information was in fact released on September 9, 2013.

At the hearing, he said that he was suing Me Bergevin Byette only because he did not respect the 20 day delay provided for by

Section 47 of the Act. [ 18 ] This delay, if we consider the letter of July 12, did not cause any damage to Mr. Kelly, as he received the photographs he asked for, and was informed of the name of the photographer, which he indeed sued after. Mr. Kelly pretends that Me Bergevin Byette gave him partial information and only the pictures that were self-serving for the Town. As was said earlier the Court accepts Mr. Robillard's testimony that he gave to Me Bergevin Byette all the pictures that he took from the inside of Mr. Kelly's house.

The action against Me Bergevin Byette must fail. [ 19 ] As concerns the human rights breach, the Court has asked Mr. Kelly if any racist words were pronounced against him, and he answered that Mr. Séguin told him that he could leave and go back to his country. Those words are strongly denied by Mr. Séguin. Mr. Kelly also said that most of the harassment is to be found in Mr. Séguin's attitude. [ 20 ] In the situation that occurred on April 30, 2013, the Court can see no discrimination, harassment or unreasonable demands made to Mr. Kelly. The firefighters did their job, and their main goal in going to Mr.

Kelly's house was to extinguish a fire and make sure that it would not spread within the house. They have acted within the powers given to them by the Fire Safety Act , which are quite large, but were enacted to allow the firefighters to do their job in a secure and efficient manner. [ 21 ] In its contestation, the Town of Pincourt have asked that Mr. Kelly's demand be declared abusive and that it be forbidden to Mr. Kelly to file any other complaint unless he has the authorization of the chief justice, and under the condition that he may determine, according

Section 54.5 of the Code of Civil Procedure , which reads as follows: 54.5. If the improper use of procedure results from a party's quarrelsomeness, the court may, in addition, prohibit the party from instituting legal proceedings except with the authorization of and subject to the conditions determined by the chief judge or chief justice.

[ 22 ] This demand by the Town can be understood easily. Me Bergevin Byette was sued without any right in this file, as Mr. Séguin was in the file involving the pictures of the chimney. Mr. Kelly has assigned seven witnesses in the case involving the October 2012 inspection, including the mayor and a city councillor. He has opened four files, claiming 7000$ in each one, against the Town or its employees, within 15 months. [ 23 ] Despite those facts, the Court is not ready to declare yet that Mr. Kelly is quarrelsome and to submit him to the conditions set forth in

Section 54.5 of the Code of Civil Procedure. FOR THE ABOVEMENTIONED MOTIVES, THE COURT: DISMISSES the claim against all Defendants; THE WHOLE without costs. __________________________________ CÉLINE GERVAIS, J.Q.C.