Since the adoption of the Fire Safety Act (R.S.Q., ch. S-3.4) (hereinafter “Act”), which came into force on September 1, 2000, cities and municipalities that have adopted a fire safety cover plan (hereinafter “Cover Plan”), can, in certain cases, benefit from an exemption of liability during the course of their intervention following a fire on their territory. The Superior Court recently addressed the issue of the firefighters’ immunity under Article 47 of the Act in the case of Lombard General Insurance Company of Canada vs. City of St- Jérôme.

In fact, this was the first time that the courts have had to interpret this article.

In a decision rendered on March 31, 2011 by the Honourable Daniel W. Payette, the Court was presented with a request for a Declaratory judgment (C.C.P. art. 452) to render a decision on a specific point of law, being whether a fault committed by the firefighters of the City of St-Jérôme (hereinafter “City”) when searching for and extinguishing all traces of a fire is covered by the exemption from liability provided for at Article 47 of the Act.  

Judge Payette summarized the facts as follows:  

“[10] On April 3, 2005, a fire occurred in the building.

[11] A team from the St-Jérôme Fire Department attended the scene of the fire in order to proceed with extinguishing it and/or to proceed with the usual verifications.

[12] After undertaking the firefighting operations and considering that the fire had been extinguished and was under control, the Fire Department team left the scene.

[13] However, the same fire continued to smoulder in the cellulose insulation in the attic, because the next day, April 4, 2005, another alert was issued for a localized fire in the roof of the building” (Our translation).

Following the fires on April 3 and 4, 2005, the Plaintiff, Lombard General Insurance Company of Canada (hereinafter “Lombard”) indemnified its insureds for the damages they suffered. Being subrogated into the rights of their insureds, Lombard subsequently instituted an action against the City of St-Jérôme, alleging that the firefighters were responsible for the reignition of the fire following their intervention.

Judge Payette first proceeded with an analysis of the Act, and specifically reviewed the goal sought by the implementation of the Cover Plan provided for in the Act. He described the Act as providing “ a broad pooling, on a regional basis, of information, resources and means for fire safety in order to prevent fires or respond more efficiently when a fire occurs” (our translation). As for the Cover Plan, he described it as a way for cities and municipalities to highlight the risks of fire and to prepare protective measures, taking into account either existing or anticipated resources. The Court reiterated that it is a plan that is prepared and implemented by cities and municipalities to ensure a quick and efficient response during a fire, and that by virtue of Article 8 of the Act, it is mandatory for cities and municipalities to adopt such a Cover Plan for their territory.

In the present matter, the City had duly adopted a Cover Plan, as well as a plan for its implementation. The point of contention between the parties was rather the interpretation of the term “intervention during a fire” within the meaning of Article 47 of the Act, which reads as follows:

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 to 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. [Our emphasis]

For its part, the City argued that a broad interpretation of this expression should be retained, in conformity with “the meaning that is generally given to it within the realm of fire safety” (our translation). In particular, it believes that the search for and extinguishment of all traces of a fire is part of the intervention and that consequently, any faults committed by the firefighters during the search and extinguishment should be covered by the exemption of liability.

On the other hand, Lombard argued that the expression should be interpreted narrowly. Referring to the publication of the Orientations du ministre de la Sécurité publique en matière de sécurité incendie, Lombard argued that:

The immunity only comes into play if the alleged faults are directly related to the four elements of intervention in matters of fire safety noted by the Minister in the Orientations du Ministre, namely:

  1. Response time;
  2. Response personnel;
  3. The necessary water resources;
  4. Emergency equipment”

(Our translation)

It is therefore clear that Lombard was seeking to restrict the scope of the expression “intervention during a fire”. According to them, since “the extinguishment of all traces of a fire [is not] part of the elements of intervention identified by the Minister, the exemption of liability does not apply in this case”. (Our translation)  

In light of the arguments put forth by the parties, Judge Payette proceeded with a review of the various principles of statutory interpretation in order to determine the intent of the legislator at the time of the adoption of the legislation in question, being Article 47 of the Act. The judge also proceeded with an analysis of the history of the adoption of the Act itself.

In his analysis, Judge Payette referred to the decision of Laurentides Motels Ltd. vs. City of Beauport ([1989] 1 S.C.R. 705) in which the Court of Appeal underlined a distinction between decisions made in the “political sphere” versus those made in the “operational sphere”. In particular, the Court concluded that in the realm of operational decision-making, the representatives of cities and municipalities could be held liable for their faulty decisions taken during the performance of their duties, “unless the enabling legislation expressly excludes liability” (our translation). Consequently, Judge Payette concluded that “many municipalities have chosen not to provide fire safety services in order to avoid engaging their civil liability, which affects the safety of their citizens”. (Our translation)

He then explained that one “of the objectives of the Act is to counteract the “perverse” effects of the jurisprudence resulting from the judgment rendered in Laurentides Motels Ltd vs. City of Beauport” (free translation). As such, the goal of the Act was to protect the representatives of the cities and municipalities, in particular, for decisions that are taken during an intervention following a fire. As concerns the intent of the legislator, Judge Payette concluded that the legislator wanted to ensure “that the exemption from liability applies broadly to the interventions undertaken by fire safety services”. (Our translation)

Having not contested the fact that the City duly adopted a Cover Plan in conformity with the Act, and having not pled an intentional or gross fault by the representatives of the City, the Court retained the argument of the latter, and concluded that a broad interpretation should be given to the expression “intervention during a fire”. Judge Payette was of the opinion that the limitation of the scope of the immunity proposed by Lombard was not supported by the Act or by the Orientations du Ministre. In fact, he concluded that “if the legislator had wanted only those acts performed in conjunction with the objectives proposed by the Minister be covered by the immunity, he would have said so”. (Our translation)

Finally, Judge Payette proceeded with a review of several publications relating to fire safety, such as the Guide des opérations à l’intention des services de sécurité incendie, published by the Ministry of Public Security, and the Fire Protection Handbook published by the National Fire Protection Association, as well as the City of Montreal’s guidelines for secure operations. He concluded that in all of these publications, the search for and extinguishment of all traces of a fire are part of the extinguishment of a fire, and take place during an intervention following a fire of a building.

Judge Payette therefore concluded that the faults alleged by Lombard against the firefighters of the City of St-Jérôme were related to actions undertaken during their intervention following a fire, and that consequently, the firefighters benefited from the immunity provided for at Article 47 of the Act.

Evidently, since this is a decision on a Declaratory judgment, it did not have the effect of dismissing the Plaintiffs’ action against the City of St-Jérôme.

Since this is the first time the courts have had to interpret Article 47 of the Act, it will be interesting to see the evolution of the jurisprudence concerning this article, and in particular, whether the courts will continue to attribute a broad interpretation to the notion of “intervention during a fire”.