2020 QCCA 1676, 2020 QCCA 1676

Unofficial English Translation of the Judgment of the Court J. Noël Francoeur inc. c. Industrielle Alliance, assurances auto et habitation inc. 2020 QCCA 1676 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos.: 500-09-027879-188 (405-22-004999-178) DATE: November 4, 2020 ______________________________________________________________________ CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. GENEVIÈVE MARCOTTE, J.A. LUCIE FOURNIER, J.A. ______________________________________________________________________ J . NO Ë L FRANCOEUR INC. APP ELLANT – Defendant v.

INDUSTRIAL ALLIANCE, AUTO AND HOME INSURANCE INC.

RESPONDENT – Plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The appellant, an excavation company, is appealing a judgment of the Court of Québec [1] dated August 30, 2018, condemning it to pay the respondent $10,696.68, representing most of the indemnity paid by the respondent to two of its insureds to defray the cost of decontaminating and restoring land they own. * * * * * [ 2 ] The circumstances at the origin of the dispute have not been appealed.

The trial judge described them in two succinct paragraphs that it is useful to reproduce along with a few minor clarifications: [ translation ] [1] An excavation contractor [the appellant] was called to the premises at the request of firefighters [of the city of Drummondville] extinguishing a fire in a garage located behind a house. The contractor had to demolish what remained of the heavily damaged building. It also had to stir the debris so that the firefighters could completely extinguish the fire.

During the work, the contractor stirred around the debris, which pushed against part of a wall that collapsed and overturned an oil tank that was outside along one of the garage walls. [2] Oil spilled out for a short period and contaminated the surrounding ground. [ 3 ] At trial as on appeal, the dispute concerned the Fire Safety Act [2] (the “ FSA ”) and its

interpretation. [ 4 ] The judge identified three issues to be resolved: (

i) did the defendant’s employee commit a fault by proceeding as he did? (ii) if so, is the defendant exempt from liability under s. 47 FSA ? (iii) If there is no such exemption, how much is the plaintiff owed? [ 5 ] On appeal, only the second issue identified in the above paragraph remains. * * * * * [ 6 ] Before turning to the judge’s reasons, it is useful to reproduce in full every statutory provision likely to inform the resolution of the appeal.

Naturally, they appear in the FSA , but also in the Act respecting industrial accidents and occupational diseases [3] (the “ AIAOD ”) due to both the similarities and differences between these two texts. (Emphasis added in the following excerpts.) Fire Safety Act 33. If a fire in the territory of a local municipality or the territory served by its fire safety service exceeds its emergency response capabilities and those of the resources secured by the municipality by way of an agreement pursuant to the fire safety cover plan, the local municipality may, through its mayor or, if the mayor is absent 33.

En cas d’incendie sur son territoire ou dans le ressort de son service de sécurité incendie, lorsque l’incendie excède les capacités de celui-ci ou celles des ressources dont elle s’est assurée le concours par une entente prévue au schéma de couverture de risques, une municipalité locale peut, par la voix de son maire ou, en cas

or unable to act, through the acting mayor or two other members of the municipal council, or through any municipal officer designated for that purpose by by-law of the municipality, address a request to their counterparts for the intervention or assistance of the fire safety service of another municipality. The cost of the intervention or assistance shall be borne by the municipality having requested it, according to a reasonable tariff established by resolution of the assisting municipality, unless the municipalities concerned decide otherwise. […] 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, […] (7) accept or require, where the firefighting personnel available is insufficient, the assistance of any person capable of providing assistance ; […] 42.

The authority responsible for a service that has expressly accepted, required or requisitioned a person’s assistance or property under subparagraph 7 or 8 of the second paragraph of

section 40 is bound, within three months from the date a claim is filed with the authority by that person in the 12 months following the end of the event, to grant to the person compensation determined on the basis of the current rates for the hiring of that type of service or property as they stood immediately before the occurrence of the event. The authority responsible for the service must also assume the representation or defence of such a person in a coroner’s inquest or a fire investigation commissioner’s inquiry into the event during which the person intervened or in a proceeding concerning

an act in the performance of the tasks entrusted to the person during the emergency and referred to a court, a tribunal or a body exercising adjudicative functions. The authority may, rather than assuming a person’s representation or defence, agree with the person on the reimbursement of reasonable costs incurred by the person or the person’s representative.

However, the authority is dispensed from that obligation where (1) the person specifically consents thereto in writing; d’absence ou d’empêchement de celui-ci, du maire suppléant ou de deux autres membres du conseil municipal, ou encore par la voix de tout fonctionnaire municipal désigné à cette fin par règlement de la municipalité, demander, auprès de l’un ou l’autre de leurs homologues, l’intervention ou l’assistance du service de sécurité incendie d’une autre municipalité.

Le coût de cette aide est à la charge de la municipalité qui l’a demandée suivant un tarif raisonnable établi par résolution de celle qui l’a fournie, à moins que les municipalités concernées n’en décident autrement. […] 40. Pour accomplir leurs devoirs lors d’un incendie, d’un sinistre ou d’une autre situation d’urgence, les pompiers peuvent entrer dans tout lieu touché ou menacé ainsi que dans tout lieu adjacent dans le but de combattre l’incendie ou le sinistre ou de porter secours.

Dans les mêmes conditions et sous l’autorité de celui qui dirige les opérations, ils peuvent également : […] 7° lorsque les pompiers ne suffisent pas à la tâche, accepter ou requérir l’aide de toute personne en mesure de les assister ; […] 42. L’autorité responsable du service qui a accepté expressément ou requis l’aide ou les biens d’une personne en vertu du paragraphe 7° ou 8° du deuxième alinéa de l’

article 40 est tenue, dans un délai de trois mois à compter de la demande qui lui est adressée par cette personne dans les douze mois qui suivent la fin de l’événement, de lui accorder une compensation déterminée sur la base du prix courant de location de ce type de service ou de bien tel qu’il s’établissait immédiatement avant l’événement.

Elle est également tenue d’assumer la représentation ou la défense d’une telle personne dans une enquête du coroner ou du commissaire- enquêteur aux incendies sur l’événement auquel celle-ci a participé ou dans une procédure portant sur un acte posé dans l’exécution des tâches qui lui ont alors été confiées et dont est saisi un tribunal ou un organisme qui exerce des fonctions juridictionnelles. L’autorité peut, au lieu d’assumer cette dernière obligation, convenir avec la personne de lui rembourser des frais raisonnables assumés par celle-ci ou par son représentant.

Elle est toutefois dispensée de l’obligation : 1° lorsque la personne y consent de façon spécifique et par écrit ;

(2) the authority is the plaintiff in the proceeding; (3) the act in question amounts to a gross or intentional fault; or (4) the person is convicted of an offence or indictable offence and had no reasonable grounds to believe that his or her conduct was in conformity with the law. […] 47. The members of a fire safety service and the persons whose assistance is expressly accepted or is required under subparagraph 7 of the second paragraph of

section 40, are exempt from liability for any damage that may result from their intervention during a fire or during an emergency or disaster situation in respect of which mandatory emergency procedures are set out in the fire safety cover plan pursuant t o

section 11 , unless the damage results from their intentional or gross fault.

The exemption applies to the authority having established the service or having requested the person’s intervention or assistance, except if the authority has failed to adopt a plan for the implementation of the fire safety cover plan as required or if the measures or procedures provided for in the applicable implementation plan and relating to the acts in question were not implemented as established. 2° lorsqu’elle-même est la demanderesse dans la procédure ; 3° lorsque l’acte posé constitue une faute lourde ou intentionnelle ; 4° lorsque la personne est déclarée coupable d’une infraction ou d’un acte criminel et qu’elle n’avait aucun motif raisonnable de croire que sa conduite était conforme à la loi. […] 47.

Chaque membre d’un service de sécurité incendie ou toute personne dont l’aide a été acceptée expressément ou requise en vertu du paragraphe 7° du deuxième alinéa de l’article 40 est exonéré de toute responsabilité pour le préjudice qui peut résulter de son intervention lors d’un incendie ou lors d’une situation d’urgence ou d’un sinistre pour lequel des mesures de secours obligatoires sont prévues au schéma en vertu de l’

article 11 , à moins que ce préjudice ne soit dû à sa faute intentionnelle ou à sa faute lourde. Cette exonération bénéficie à l’autorité qui a établi le service ou qui a demandé son intervention ou son assistance, sauf si elle n’a pas adopté un plan de mise en oeuvre du schéma alors qu’elle y était tenue ou si les mesures, qui sont prévues au plan applicable et liées aux actes reprochés, n’ont pas été prises ou réalisées conformément à ce qui a été établi. Act respecting industrial accidents and occupational diseases 1.

The object of this Act is to provide compensation for employment injuries and the consequences they entail for beneficiaries. […] 7. This Act applies to every worker to whom an industrial accident happens in Québec or who contracts an occupational disease in Québec and whose employer, when the accident happens or the disease is contracted, has an establishment in Québec. 12.0.1. Every person who, during an event referred to in

section 40 of the Fire Safety Act (chapter S-3.4 ), assists the firefighters of a municipal fire safety service after the person’s assistance has been expressly accepted or required pursuant to subparagraph 7 of the second paragraph of that section, is considered to be a worker employed by the authority responsible for the service. 1. La présente loi a pour objet la réparation des lésions professionnelles et des conséquences qu’elles entraînent pour les bénéficiaires. […] 7.

La présente loi s’applique au travailleur victime d’un accident du travail survenu au Québec ou d’une maladie professionnelle contractée au Québec et dont l’employeur a un établissement au Québec lorsque l’accident survient ou la maladie est contractée. 12.0.1. Toute personne qui, lors d’un événement visé à l’

article 40 de la

Loi sur la sécurité incendie (chapitre S-3.4 ), assiste les pompiers d’un service municipal de sécurité incendie, alors que son aide a été acceptée expressément ou requise en vertu du paragraphe 7° du deuxième alinéa de cet article, est considérée un travailleur à l’emploi de l’autorité responsable du service. * * * * *

[ 7 ] The judge first found that the appellant’s employee operating the excavator was at fault. The facts on the record amply justify this finding. [ 8 ] To interpret the above-cited provisions, the judge relied on the Superior Court judgment in Lombard , [4] confirmed by the Court of Appeal. [5] She was of the view that s. 47 FSA contemplated two separate situations: (

i) where a person offers to assist firefighters, who expressly accept this assistance, and (ii), where the firefighting personnel available is insufficient and the firefighters require a person’s assistance. The judge was of the view that the notion of assistance is key here and continued by adding that this assistance must be at no charge or volunteered. In para. 40 of her reasons she wrote that [ translation ] “the legislature’s intention is to compensate, defend, and protect the person who volunteers to assist firefighters”.

Further on she added that were it otherwise, [ translation ] “the legislature would have clearly expressed its intention to exempt any person who participates, as a volunteer or for remuneration, in fighting a fire”. In this case, however, the appellant intervened under a contract for services. The record reveals that the appellant in fact sent the city of Drummondville an invoice for $620.87 (GST and QST included), dated December 24, 2016 (date of the fire), for the use of an excavator for four hours.

The appellant therefore could not rely on s. 47 FSA for an exemption. [ 9 ] The appellant contests this reasoning on two grounds. The judge erred by adding criteria to those prescribed in s. 47 FSA for granting the exemption. In so doing, she refused to grant the appellant the exemption it was entitled to under the FSA . Was the judge correct?

For the reasons below, the Court finds that the judgment’s conclusion is well founded, even though the judge may have been wrong on specific points in her reasons. * * * * * [ 10 ] In Lombard , the Superior Court thoroughly reviewed the origins of the FSA by referring in particular to the parliamentary proceedings and the Orientations du ministre de la Sécurité publique en matière de sécurité incendie . [6] This review, unsuccessfully challenged before the Court of Appeal, [7] is of interest here. [ 11 ] The judgment under appeal calls for four series of remarks. [ 12 ] First, according to what the parties to the appeal submitted orally before the Court, one passage from the reasons in paras. [33] and following might be interpreted as meaning that the word “person” in subparagraph 7 of the second paragraph of s. 40 FSA contemplates only a natural person.

In fact, the judge decided nothing of the sort and this notion comes not from the judge but from a parallel drawn by the respondent in its arguments with certain provisions of the Civil Protection Act . [8] It is unnecessary for the purpose of this appeal to further discuss this issue. [ 13 ] Second, in her reasons, the judge determined that s. 47 contemplates two separate situations that she described as follows: [ translation ] [ 36 ] What does the law say?

Section 47 clearly contemplates two separate situations: (

a) where a person offers assistance, which the firefighters expressly accept; and (

b) where a person’s assistance is required by the firefighters when the firefighting personnel available is insufficient. […] [ 45 ] The contractor’s intervention does not correspond to either of the two situations contemplated by s. 47 FSA . It clearly was not assistance offered that was expressly accepted by the firefighters. It was also not a situation where the firefighting personnel available was insufficient and the contractor’s assistance was immediately required.

It was instead a decision by the firefighter captain to retain the contractor’s paid services to provide a backhoe to demolish the structures still standing and ensure that the debris was extinguished. [ 14 ] Subparagraph 7 of the second paragraph of s. 40 FSA is, however, inconsistent with this

interpretation. It emerges from s. 40 that the two situations contemplated by the provision are described as follows: (

a) the firefighters accept, where the firefighting personnel available is insufficient, the assistance of any person capable of providing assistance, or (

b) the firefighters require, where the firefighting personnel available is insufficient, the assistance of any person capable of providing assistance. [ 15 ] In other words, the condition in subparagraph 7 of the second paragraph of s. 40 applies only where the firefighting personnel available is insufficient and the firefighters must resort to external assistance. The English version of the provision is even more explicit than the French version and leaves no room for doubt on this point.

Section 47 refers expressly to subparagraph 7 cited above and merely adds that the assistance liable to exempt a person who helps firefighters must have been “expressly” accepted by them. [ 16 ] Third, the judge seems to be of the view that an emergency is a prerequisite to the application of the provisions raised by the appellant. At least that is what her reasons may suggest when she states: [ translation ] [44] There was no emergency when the defendant was called. The firefighters were putting away the hoses.

All that remained was to take down some walls and stir around the debris to ensure that the fire was completely extinguished. [45] The contractor’s intervention does not correspond to either of the two situations contemplated by s. 47 FSA . It clearly was not

assistance offered that was expressly accepted by the firefighters. It was also not a situation where the firefighting personnel available was insufficient and the contractor’s assistance was immediately required . It was instead a decision by the firefighter captain to retain the contractor’s paid services to provide a backhoe to demolish the structures still standing and ensure that the debris was extinguished. [Emphasis added.] This description is consistent with the evidence.

As firefighters Gaudreau and Cloutier testified at trial, an excavator was used once the fire brigade had already started to disperse, for efficiency (to quickly fully extinguish the fire by hosing down the piles of debris on the ground with water) and for safety (without putting the firefighters at risk of a building collapse).

Moreover, Lieutenant Gaudreau stated [ translation ] “it was no longer an emergency when we called for the backhoe, there was nothing left to save”. [ 17 ] The words “is insufficient” may certainly include emergencies where, for example, firefighters are overwhelmed during a fire and feel that they cannot control the flames. As a very general rule, fires are emergencies that require immediate action. This is not, however, the only meaning of these words. Lombard gave the word “intervention” in s. 47 FSA sufficiently broad scope to encompass the type of operation performed by the appellant.

Its services were sought due to the insufficient means immediately available to the firefighters. It was there for a specific purpose: to demolish a two-story structure that was still standing and smoking with an excavator, which was safer and quicker (therefore more efficient) than demolishing this same structure by sending in a team of firefighters equipped with ladders and mechanical saws.

The notion of an emergency should therefore not be a prerequisite or sine qua non to the application of s. 47. [ 18 ] To the extent that the judge’s reasons are or would be irreconcilable with the above subtleties, such subtleties must prevail when interpreting the FSA . In this case, however, they do not affect the judgment’s conclusions. [ 19 ] Fourth, the judge correctly concluded that subparagraph 7 of the second paragraph of s. 40 and s. 47 FSA contemplate assistance provided at no charge, and not an intervention paid under a contract for services.

The judge relied on two series of observations to reach that conclusion. [ 20 ] First, she examined s. 42 FSA , which requires that any person who supplied a service or property to assist firefighters be compensated, provided the person files a claim within the prescribed time. The authority responsible for the fire service has three months to grant the person compensation based on the current rates for the hiring of that type of service or property as they stood immediately before the occurrence of the event. Nowhere in this

section or in any other provision of the FSA is payment determined under a contract mentioned. The judge therefore inferred from s. 42 [ translation ] “that in principle, the assistance is volunteered, at no charge”, which necessarily applies to the “assistance” referred to in ss. 40 , 42 , and 47 FSA because it is one and the same. [ 21 ] Moreover, nothing indicates that the mechanism implemented by s. 42 could be consistent with the terms of a contract for services.

Indeed, that would not be the case here, because the appellant’s invoice dated December 24, 2016, sent to the city of Drummondville, states the following: [ translation ] “ Net 30 days, administration fee of 2% a month, 24% a year charged on any overdue account”. In addition, it may be assumed that when, as in this case, a business invoices the service provided to firefighters at its regular rate, the price asked includes all of its operating costs as a service provider, including, where applicable, insurance coverage.

It is therefore doubtful that the “assistance” within the meaning of these provisions may include the services of a contractor paid at the regular rate determined by the contractor itself. [ 22 ] The judge then considered the usual meaning of the word “assistance” and observed that, according to various common dictionaries, the semantic field of this term encompasses notions that all refer to assistance that is volunteered or at no charge. Indeed, can it be said that a contractor who renovates an immovable under a contract for services “assists” its client, the immovable’s owner?

This proposition again seems very doubtful. [ 23 ] These indicia all weigh in favour of the judge’s conclusion. [ 24 ] Yet there is more. Sections 1 , 7 , and 12.0.1 AIAOD offer an additional indication that is very probative on its own. It is clear from the wording of s. 12.0.1 that it was drafted to extend the scope of s. 40 FSA . By specifying that the person referred to in subparagraph 7 of the second paragraph of s. 40 FSA is a “worker” within the meaning of the AIAOD , the legislature ensures that this person is also covered under s. 7 AIAOD and may claim compensation under that plan.

Such a precision is superfluous, however, for a person who, like the employee who operated the appellant’s excavator on December 24, 2016, is already a “worker” within the meaning of the AIAOD . It may be inferred therefrom that the hypothesis of volunteer assistance at no charge was one of the legislature’s primary concerns. This indicator is consistent with those previously discussed.

Together, they establish that the trial judge correctly ruled as she did when she concluded that the exemption under s. 47 FSA does not apply to the provision of a paid service and therefore to the appellant. [ 25 ] Naturally the above explanations do not mean that a contractor who provides assistance under s. 40 FSA may never be exempt under s. 47 FSA or be compensated under s. 42 FSA . [ 26 ] One of the witnesses heard at trial, firefighter Cloutier, offered striking testimony of his recent experience with the spontaneous assistance of third persons. He described it as follows: [ translation ] Q.

In another vein, have you ever, as part of your work, accepted assistance from people when you … you were fighting a fire? A. Me […] yes, it happened to me recently. Two (2) weeks ago there was a major field fire […] and the people there were the owners who had agricultural machinery to […] it was in their fields, in fact, they owned other land or I don’t know which. We were beating down the flames by foot on the side. The wind was spreading the fire. We saw the people arrive with their tractors.

Our officer, well, they probably discussed it as [...] as a strategy to dig a trench, that we call, to remove as much corn, the corn left was dry,

about two, three hundred (2-300) feet to properly remove the combustibles. So, we saw the tractors remove the […] voluntarily scrape their fields a little and it helped us prevent the fire from continuing to spread, and that’s what put out the fire. The above circumstances involved individuals, but it may be assumed that an excavation company such as the appellant, carrying out work close to a fire of this kind might be required by firefighters to lend a hand, without a contract for services or payment ever being contemplated before the intervention.

Of course, in such a situation, the company in question could later claim compensation and exemption under the FSA . It is neither the distinction between a natural person and a legal person, nor that between the status of company, contractor, or individual who is not a contractor, that is decisive. The only thing that matters is whether the intervention offered or required to assist the firefighters was at no charge or for payment.

FOR THESE REASONS, the Court: [ 27 ] DISMISSES the appeal, with legal costs. __________ __________________ YVES-MARIE MORISSETTE, J.A. __________ __________________ GENEVIÈVE MARCOTTE, J.A. __________ __________________ LUCIE FOURNIER, J.A. Mtre Pascale Caron DONATI MAISONNEUVE For the appellant Mtre Lisa Savoie INDUSTRIAL ALLIANCE, AUTO AND HOME INSURANCE INC. For the respondent Date of hearing: October 20, 2020