Arch Transco Ltd. (“Arch Transco”) succeeded in its appeal of the decision dismissing its application seeking to quash an Order made by the fire inspector of the City of Regina (the “City”). The Court of Appeal held that the City’s failure to outline the process of appealing the Order at the time of issuance was fatal and rejected the City’s proposal to issue a new Order containing such appeal details as this was not a sufficient remedy.

Administrative law – Municipalities – Fire inspection – Underground storage tanks – Judicial review – Compliance with legislation – Procedural requirements – Appeal process – Remedies – Certiorari

Arch Transco Ltd. v. Regina (City), [2002] S.J. No. 637, Saskatchewan Court of Appeal, November 13, 2002, Tallis, Cameron and Jackson JJ.A.

On January 3, 2001, a fire inspector employed by the City wrote to Arch Transco with an Order requiring Arch Transco to remove all out of service underground storage tanks. This Order was made pursuant to section 19 of the Fire Prevention Act, S.S. 1992, c. F-15.001. Arch Transco disputed this Order on the basis that the Order failed to outline the process by which an appeal from the Order could be made. The court reviewed the avenues of appeal available to Arch Transco and noted that there were three rights of appeal, all of which were precluded by the failure to appeal the original Order.

On October 31, 2001, the City laid an information against Arch Transco alleging a violation of the Act due to Arch Transco’s failure to comply with the fire inspector’s Order of January, 2001. Arch Transco applied for an Order in the nature of certiorari quashing the fire inspector’s January 3, 2001 decision. This application was adjourned. On June 19, 2002, the City withdrew the information and laid a new one alleging a violation of the Act without referring to the original January 3, 2001 Order. The City’s solicitor wrote a letter to Arch Transco acknowledging that Arch Transco had not been advised of the opportunity for an appeal when the fire inspector’s original Order was mailed. The City’s solicitor suggested a new Order be made for the removal of the tanks and noted that Arch Transco could pursue the appeal procedure to which it was entitled for this new Order. Arch Transco decided to proceed with its motion requesting an Order in the nature of certiorari. At the hearing, the Queen’s Bench chambers judge dismissed the application.

On appeal, the Court of Appeal held that the chambers judge erred in holding that certiorari could be refused on the basis that a right of appeal of sufficient scope existed for the new Order. The Court of Appeal noted that the failure to outline the appropriate appeal procedure in the original Order was the very deficiency alleged by Arch Transco and that the making of a new Order did not remedy the deficiency in the January 2001 Order. The court found that the Act also gave the power to enforce the Order to a “fire commissioner”, which was a position created under the Act and employed by the Government of Saskatchewan, not by the City. Therefore, notwithstanding the City’s assurances, Arch Transco was under statutory jeopardy of being held in non-compliance of the original Order unless that Order was quashed.

In the result, the court found that the failure to outline the right of appeal in the original Order was fatal and granted an Order in the nature of certiorari quashing the fire inspector’s decision of January 3, 2001.

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