Defending Regulatory Offences: The Fire Protection and Prevention Act

What is the Fire Protection and Prevention Act?

In Ontario, fire prevention, fire services, and fire safety for all buildings (including commercial, residential, personal use, landlords, etc.) are governed by the Fire Protection and Prevention Act (the “FPPA”). Even if you have not suffered a fire, but you are responsible for the maintenance of a structure, the storage of flammable or combustible liquids, or even providing and recharging fire extinguishers, you could still be charged under the Act.

Charges under this act are serious, but they are not criminal offences. Instead, they are dealt with in Provincial Offences Court and are governed by the Provincial Offences Act. Offences outlined under the Fire Code are only “strict liability” which means they have a lower level of intention than criminal offences and limited offences. However, they require more intention than “absolute liability” which is all that is required in rudimentary offences, such as parking violations.

Ontario fire code charges

The Fire Code

Section 28(1)(c) of the FPPA broadly states that:

28 (1) Every person is guilty of an offence if he or she,

(c) subject to subsection (2) contravenes any provisions of this Act or the regulations; or

This expands the scope of the offences to the regulations under the FPPA. The most relevant of these is Ontario Regulation 213/07 – the Fire Code (the “Code”). The Code is an extensive piece of legislation, spanning almost 300 pages, which, among other things, exhaustively defines every possible breach of the Code from physical requirements such as ventilation to the obligation to maintain and retain records. The Code also governs other aspects such as fire safety plans, parking of tank vehicles, signage, etc. Any breach of the Code triggers a breach under section 28(1)(c) of the FPPA.

How Could I Be Charged?

The FPPA provides Fire Marshals, their assistants, and Fire Chiefs with a wide array of powers to act as inspectors to seek out violations. Inspectors can seek warrants, from Justices of the Peace, to enter and examine premises, with or without the assistance of the police to execute these warrants using force. If a violation is discovered, you may be charged immediately, or you may be given a Notice of Violation and a window to resolve the deficiencies within a certain period before a reinspection. Should these deficiencies remain upon reinspection, you may be charged at this time. The approach is dependent on the circumstances, number and severity of the deficiencies, and the discretion of the inspector.

Inspectors also have wide authority to make orders under section 21 of the FPPA to close premises, cease manufacturing, make repairs, or even the removal of entire buildings.

Who Could Be Held Liable?

Should violations be found, inspectors, can swear a document called an Information which is used to lay charges against a person such as a landlord, tenant, owner of the property, corporation, or even a director or the officer of a corporation. With this Information, an individual or representative of a corporation, can be summoned to court to respond to the allegations. Depending on the circumstances, company structure, or shared liability between two or more parties, multiple parties could be charged with the same offence.

What is the Standard of Proof?

Unlike criminal offences where the standard is proof “beyond a reasonable doubt”, in FPPA offences, the prosecution has the burden of proving that you committed the act (or omission) on a “balance of probabilities“.

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In other words, the Crown must prove the requisite elements of the offence on a balance of 50.1% or more.

What Defenses Are Available to Me?

There are a variety of defences which may be available on a FPPA charge. However, they are heavily dependent the circumstances of your particular case. With any of these defences, the Crown must prove the commission of the offence on a balance of probabilities, thereafter, the onus shifts to the accused to prove the existence of a defence upon a balance of probabilities.

  • Due Diligence: This defence applies if someone took all reasonable care in the circumstances, but despite this, an offence took place anyway.
  • Reasonable Belief in Mistaken Facts: If someone commits an offence while acting under an honest and reasonable mistake of fact, without guilty intent, this defence may be available.
    • As a caveat, mistake or ignorance of the law is not a defence.
  • Officially Induced Error: If someone tries to follow the law, but commits an offence because they are misled by officials charged with the administration of the law, this defence may be available to them. To obtain the benefit of this defence, the accused must prove six elements:
    1. That an error law of law or mixed law and fact was made;
    2. That the person who committed the act considered the legal consequences of his or her actions;
    3. That the advice obtained came from an appropriate official;
    4. That the advice was reasonable;
    5. That the advice was erroneous; and
    6. That the person relied on the advice in committing the act.
    • As a caveat, Officially Induced Error is not a defence if a provincial regulatory body approves conduct that constitutes an offence under the Criminal Code.
    • As a further caveat, Officially Induced Error is not a defence to complete ignorance of the law. 
  • Necessity: If someone breaks the law, to prevent a greater harm than the harm the law intended to prevent, this defence may be available. The onus is on the accused to prove that the law was broken to choose the “lesser of two evils” where no reasonable lawful option was available.
  • Impossibility: If the avoidance or committal of an offence is rendered impossible through circumstances that are beyond the possible control of the accused, this defence may be available.
  • Res Judicata: If a matter has already been judged by a competent court, it should not be prosecuted again. In application, should an event give rise to prosecutions under both the FPPA and another statute, there should not be a multiplicity of POA prosecutions. This may also be a remedy to stay POA prosecutions if the matter is proceeding in the Ontario Court of Justice as a criminal matter.
    • Res judicata translates to mean “something that has clearly been decided”.

While these brief overviews of these defences may appear simple and straightforward, they are in fact nuanced and contain limitations and common law interpretation not explored here.

Fire Protection-and-Prevention Act Ontario FPPA

Criminal and Civil Liability

Is it possible to be charged under both the FPPA and the Criminal Code? Yes, there are situations which could result in charges under both acts as the Criminal Code deals with a higher level of requisite intention. Some examples include:

  • s. 219: Criminal Negligence,
  • s. 220: Criminal Negligence Causing Death, or
  • s. 436(1): Arson by Negligence.

It is also possible that, depending on the circumstances (especially if there is harm to human life or personal property that is not yours) you could be sued civilly. Should this happen, consult experienced civil counsel to respond to the suit and determine what your options are.

How Serious are the Fines?

Sections 28 to 30 of the FPPA provide the Court with high ceilings to impose for offences as defined by s. 28(1) (including the Code).

Individuals, Director/Officer of a Corporation: Can be fined up to $50,000 on a first offence and $100,000 on a subsequent offence and/or one year in prison, upon conviction.

A Corporation: Can be fined up to $500,000 on a first offence and $1,500,000 on a subsequent offence, upon conviction.

Any Person: Who removes a copy of an order or notice posted by an inspector in accordance with the FPPA, without proper approval, can be fined up to $50,000 on a first offence and $100,000 on a subsequent offence and/or one year in prison, upon conviction.

Any Person: who fails to comply with an order made by an inspector under sections 21, 25, of 26 or the FPPA can be fined up to $20,000 per day that the default continues.

What Should I Do if I Am Charged?

The odds of success with any responding to any of these charges are much higher with the insight and guidance of experienced counsel. Maybe you are a landlord and you have suffered an unexpected fire to a property and the police want you to make a statement. Alternatively, you are in-house counsel at a property management or development company, and you need litigation assistance with running a complex Fire Safety Protection Act trial involving limitations and discovery issues. If the Crown is seeking fines or even jail time – then it is strongly suggested that you retain competent legal counsel.

The lawyers in our firm offer experienced legal representation for both minor and serious Provincial Offences Act litigation matters including the Fire Safety Protection Act and Fire Code. You can reach us 24 hours a day by calling (416) 999-9389 or complete a consultation form here.