In 2010, Cunningham Swan’s municipal group undertook a three-part review of Canadian court cases dealing with negligence in firefighting. Today we are revisiting this topic to see how courts have approached claims about negligence in firefighting in recent years.
Responsibility for Negligent Firefighting Varies Across the Country
Whether a municipality is responsible for its fire department’s negligent acts continues to vary from province to province. For example, in Ontario, the Fire Protection and Prevention Act shields fire department personnel from personal liability for negligence from any act or omission done in good faith in the execution of their duties, and instead holds the municipality responsible for any damages caused by the fire department’s negligent acts or omissions. British Columbia municipalities are also held responsible for negligence by their fire departments. By contrast, in New Brunswick and Alberta, legislation protects municipalities and their fire departments from liability resulting from acts or omissions done in good faith in the course of carrying out fire services. Quebec and Nova Scotia municipalities are similarly immune except in cases of intentional or gross negligence.
There continue to be few reported decisions dealing with the issue of negligence by fire departments. Those few reported cases apply the same general principles of Canadian negligence law. Generally speaking, unless protected by legislation, a municipality can be held liable where its fire department or firefighters:
- Owed a duty of care to the person who suffered the loss;
- Failed to meet the standard of care that can be reasonably expected of them in the circumstances; and
- That failure caused the person’s loss.
Schouten v. Rideau (Township) – Ontario Court of Appeal (2009)
The first noteworthy case is Schouten v Rideau (Township). We reviewed the trial decision in our 2010 review, in which the Ontario Superior Court of Justice found that a fire chief had failed to adequately size up the fire scene but ultimately was not negligent because the failure did not cause any unavoidable losses.
The Court of Appeal subsequently overturned that decision. It found that the fire chief’s failure to conduct a proper size-up created a “domino effect” by causing him to choose an incorrect plan of attack, which doomed grain silos that may have otherwise been saved. The trial judge had failed to consider that the evidence showed the silos could have been saved had the fire chief properly sized up the fire and chosen a better attack plan. The Court of Appeal therefore ordered a new trial. However, no subsequent trial decision was reported, suggesting the parties settled the issue.
The Court of Appeal’s decision is an important reminder that negligence at any stage of the firefighting process can lead to significant liability even if the rest of the firefighting conduct was reasonable or exemplary – all that is necessary for liability is negligence in one area of the firefighting process that causes a loss that would not have otherwise occurred.
Léveillé c. Courses Stock-Car Drummond inc. – Quebec Court of Appeal (2010)
Private event firefighters at a stock car race responded to an accident on the track. One of the drivers was trapped in a burning car. The firefighters arrived at the scene within one minute of the accident, but their foam unit failed to spray for three minutes. During this time the driver sustained serious burns. The driver sued the firefighters. At trial, the firefighters gave no explanation for why their unit malfunctioned, leading the Quebec Court of Appeal to conclude they had failed to properly maintain the equipment. The court held the firefighters 50% liable for the driver’s injuries, reasoning that if the foam unit had worked, he would have been rescued from the burning car earlier and avoided much of his injuries. The court also held other event volunteers partly responsible for dousing the car with water, which had the effect of spreading the fire.
This case illustrates how courts apply the causation test: the firefighters were not responsible for the driver’s injuries from the crash or his initial injuries, but they were responsible for the injuries that could have been prevented had they properly maintained their equipment.
Levesque v Grand Falls (Town) – New Brunswick Court of Queen’s Bench (2014)
A fire destroyed four buildings on a street before firefighters could put it out. Four days after the fire, a neighbour noticed water accumulating in their basement. They eventually reported the leak to the Town, and the Town promptly investigated and identified that water was leaking from valves used during the firefighting efforts. It took the Town several months to identify and fix all the leaking valves.
The homeowners sued the municipality for the damage from the flooding. The Town argued that it was immune from liability because the water accumulation was the result of firefighting, and a provision in New Brunswick’s Municipalities Act (now the Local Governance Act) protected municipalities from liability arising from firefighting actions done in good faith.
The Court disagreed. It found that the provision shielded the municipality from liability for water damage in the immediate aftermath of the firefighting, but not the damages caused months later, “after the crisis”, when the Town failed to identify the remaining leaky valves. It held the Town partly responsible for some of the cost of repairs.
This case is a good example of the myriad ways that liability can arise long after the fire is extinguished. It also demonstrates how even municipalities in provinces with protective legislation can be held liable for indirect consequences of firefighting activities.
Egan v National Research Council of Canada – Ontario Superior Court of Justice (2021)
Residents of an Ottawa subdivision have brought a class action lawsuit against the National Research Council of Canada (NRC). The action alleges the NRC allowed perfluoroalkylated substances (PFAS) to escape its National Fire Laboratory and enter the surface and groundwater of nearby homes. Some wells were measured to have PFAS in levels exceeding federal guidelines.
In 2021, the court authorized the class action to proceed to a trial on the issue of whether the NRC is liable to residents for the contamination and loss of property value from the resulting stigma. While the court still has to decide if the NRC is liable, the case is another example of the lasting impacts of contaminants from firefighting foams, and how growing awareness has led to litigation about them.
The recent cases continue to emphasize that municipalities can be held liable for negligence by their fire departments before, during and after a fire. Firefighters are held to a high standard when confronting fires, but liability can also arise where equipment is not properly maintained, or substances or infrastructure used to fight the fire cause damage to others.
Please do not hesitate to contact us if you have questions.