Canada: Quebec Court Of Appeal Rules On The Immunity Of Municipalities For Firefighting Under The Fire Safety Act

Approximately two years ago, the Quebec Superior Court was called upon to rule on a dispute concerning the interpretation to be given to a provision of Bill 112, adopted in June 2000. This bill, which would become the Fire Safety Act,1 was the culmination of several years of consultations by the Quebec Public Security Ministry with the various stakeholders in the area of fire prevention. The goal of the process was to reduce human and material loss attributable to fire. The Act introduces "fire safety cover plans" as a primary tool for fire safety management by elected municipal officials. It is also meant to assist the planning of emergency response operations by fire safety personnel on the ground. A major benefit for a municipality or regional county municipality (RCM) of adopting and implementing a "fire safety cover plan" is that it affords immunity from being sued in relation to fire service interventions. That immunity, conferred pursuant to section 47 of the Act (the Immunity), had not been considered by the Quebec courts until March 31, 2011, when Justice Daniel W. Payette of Quebec Superior Court handed down his judgment in Compagnie canadienne d'assurances générales Lombard c  St Jérôme (Ville de).2

On June 5, 2013, the Court of Appeal upheld the Superior Court ruling and the interpretation given by Justice Payette to the scope of the Immunity. The Union of Quebec Municipalities (UMQ) obtained authorization from the court to act as intervener in this appeal.

Trial judgment

In first instance, Justice Daniel W. Payette had to rule on a single question, namely, whether the City of St-Jérôme (the City) could benefit from the Immunity in connection with legal proceedings taken in regard to an intervention by its fire department at the scene of a fire in April 2005.3 The insurer (Lombard), subrogated to the rights of the owner of the damaged property, alleged in the action that the City's fire department had been negligent by, among other things, not ensuring that the fire was truly extinguished before the responders had left the scene. In fact, the fire had started again after the firefighters left, resulting in substantial additional damage to the property. In defence, the City invoked the Immunity under section 47 of the Act since, in the summer of 2003, it had established a fire safety cover plan (the Cover Plan). The Cover Plan had been adopted in August 2003 and been declared compliant by the Minister of Public Security (the Minister) in May 2004.

Since the questions relating to the adoption, the entry into force and the implementation of the Cover Plan by the City were the subject of joint admissions by the parties, the court's analysis was limited to the dispute regarding the interpretation of the word "intervention" as used in section 47 of the Act. The section provides that the fire safety service of an entity that has duly adopted and implemented a fire safety cover plan is "exempt from liability for any damage that may result from [its] intervention during a fire [...]."

Justice Payette began by pointing to a statement by the Minister at the time indicating that the Act's adoption had sought to neutralize the "pernicious" effects of decisions rendered by the courts in the wake of the ruling in Laurentide Motels Ltd. v Beauport (City).4 In that case, the Supreme Court of Canada had found that while municipalities could not be held liable for their discretionary policy decisions, they could be held liable for the decisions made by them in relation to the practical execution of those policy decisions. Justice Payette went on to cite the Minister's comments at the time of the parliamentary debates to the effect that the adoption of the Act was intended to stem the steady growth in liability suits against municipalities relating to firefighting services since the Laurentide Motels decision. For Justice Payette, these objectives showed that the lawmaker had wished the Immunity to apply broadly to all firefighter interventions at the time of a fire.

Justice Payette concluded his analysis with a review of related or comparable legislation containing immunity provisions similar to the one in the Act. For example, the Act respecting pre-hospital emergency services5 provides for persons who act as first responders at the scene of a disaster or accident to have immunity. During the debates that led to the adoption of that act, the Minister of Health and Social Services had noted that firefighters were already "exempted from liability in the course of their work" under the Act and that it was necessary to harmonize the two acts since firefighters are often de facto first responders. Justice Payette therefore deduced from this statement that the Immunity granted under the Act must cover all the operations that a firefighter may be called upon to perform at the time of a fire, including clearing and surveillance of the fire's remains.

Arguments on Appeal

During the appeal, Lombard maintained that the expression "intervention" in section 47 of the Act should be construed narrowly, limited to situations where the alleged negligence was related directly to the four components of a fire safety intervention, as defined by the Minister in his statement of the general policies accompanying the Act6 (Orientations), namely, (1) the intervention timeline, (2) the intervention personnel, (3) the intervention equipment, and (4) the water supply needed. As no reference is made in the Orientations to clearing and searching for and extinguishing a fire's remains, the Immunity does not, according to Lombard, apply to these activities.

The City argued that the expression "intervention" should be given the broad interpretation frequently ascribed to it in the field of fire safety and consequently should encompass all operations performed by firefighters, including post-fire inspections. The UMQ attempted to place the passage of the Act in its context and, like the City, argued for a broad interpretation of the concept of an "intervention" by the firefighting services.

Court of Appeal ruling

In a brief, unanimous decision, the Court of Appeal dismisses Lombard's appeal and upholds Justice Payette's first instance judgment. According to the court, it is erroneous for Lombard to claim that the first judge based his interpretation of the Act solely on the parliamentary work and failed to take the Orientations into account. In fact, the reasons given by Justice Payette show an interpretation of the Act on several fronts, including a semantic analysis of the words used, a reference to similar statutes and an interpretation of the Orientations. Moreover, the court refuses to see an error in the first judge's decision to consider the expert evidence presented by the City regarding what generally constitutes an "intervention" during a fire. According to the court, the expert's interpretation was not considered by the first judge as an expression of the lawmaker's intent, but, rather, as a demonstration by the City of the steps and operations involved, day by day, in the various interventions of the firefighting services. Lastly, the court sets aside Lombard's argument holding that the clearing operations had to be, under sections 11 and 47 of the Act, specifically included in the Cover Plan in order to benefit from the Immunity, since, according to the court, a reading of those provisions makes it clear that section 11 does not apply to building fires.

This ruling by the Court of Appeal marks a major development in Quebec municipal law in that it establishes the effectiveness of the defence that the lawmaker has seen fit to introduce for the benefit of municipalities and RCMs that have duly adopted and implemented a fire safety cover plan. In light of this decision, it would now appear that plaintiffs wishing to hold such entities liable for the actions of their firefighters may succeed in doing so only if they are able to show that there was gross negligence or intentional wrongdoing or that the fire safety cover plan adopted by the municipality or RCM and approved by the Minister was not properly executed. This suggests that the Minister's stated objective at the time the Act was adopted, namely, to rein in lawsuits against public entities in relation to firefighting services, will be facilitated by the ruling.

Norton Rose Fulbright (Charles A. Foucreault) acted for the UMQ before the Court of Appeal in this matter.


1 Fire Safety Act, RSQ, c S-3.4 (the Act).

2 Compagnie canadienne d'assurances générales Lombard c St-Jérôme (Ville de), 2011 QCCS 1464 (CanLII), J.E. 2011-722 (S.C.), Justice Daniel W. Payette, inscription in appeal, 2011-04-29 (CA), 500-09-021653-118.

3 In accordance with article 452 CCP, the parties chose, during the proceedings, to ask the court to rule on this question of law alone, based on the facts and allegations set out in the proceedings, which they asked the court to consider as if proven.

4 Laurentide Motels Ltd. v Beauport (City), [1989] 1 SCR 705 (Laurentian Motels).

5 Act respecting pre-hospital emergency services, RSQ, c S-6.2.

6 As provided for in sections 135 and following of the Act, the Orientations are guidelines concerning fire prevention, personnel training, emergency preparedness and emergency response that are published in the Gazette officielle du Québec and that are to be considered by the RCM and other local authorities in the establishment and implementation of their fire safety cover plans.

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