The appeal of a nursing home (“Grass Home”) from the decision of a fire marshal affirming an order of a fire inspector requiring the removal of locks was allowed where the Court found the fire marshal’s decision was reasonable but void due to an apprehension of bias

23. February 2010 0

Administrative law – Municipalities – Fire inspectors – Orders – Judicial review – Decisions reviewed – Fire inspectors – Judicial review – Procedural requirements and fairness – Bias – Standard of review – Reasonableness simpliciter

Grass Home Ltd. v. New Brunswick (Provincial Fire Marshall), [2009] N.B.J. No. 381, New Brunswick Court of Queen’s Bench, September 28, 2009, G.S. Rideout J.

Grass Home operated a nursing home which had electromagnetic door locks. The locks were designed to prevent dementia patients from leaving the premises without permission. A fire inspector who inspected the nursing home did not agree with the initial position of the fire marshal indicating that the electromagnetic locks should be removed and new hardware installed and refused to issue an order requiring removal of the locks. The fire marshal then directed the fire inspector to issue an order to Grass Home requiring the removal of the locks. The nursing home appealed from the order to the fire marshal. The fire marshal rejected the appeal and upheld the order issued by the fire inspector. Grass Home then appealed the decision of the fire marshal on the basis of a reasonable apprehension of bias.

The Court determined that the fire marshal’s decision should be reviewed on a judicial review standard rather than a trial de novo standard. The appropriate standard of review was reasonableness. In reviewing the decision, the Court noted that the fire marshal’s decision was based upon the appropriate legislation, building codes and bulletins and was within the jurisdiction of the fire marshal. Therefore, the decision itself was reasonable.

The Court found that the fire marshal had ordered the fire inspector to make the underlying order requiring the removal of locks. It was clear that the fire marshal and the fire inspector had disagreed on this matter and that eventually the fire marshal exercised his authority to order the fire inspector to make the order. This was the same order which he subsequently upheld in his decision. The Court cited from the decision of the Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, where the Supreme Court held that procedural fairness requires commissions and commissioners conduct themselves such that there can be no reasonable apprehension of bias. The test is “whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator”.

In this case, the fire marshal initially determined that the order must be issued and then ordered the fire inspector to issue an order finding non-compliance on the part of Grass Home. The same person, the fire marshal, decided on the appeal whether or not that order should be upheld. The Court concluded that a reasonably informed bystander could not avoid perceiving bias on the part of the adjudicator in these circumstances.

In the result, the Court held that the decision of the fire marshal was void due to an apprehension of bias and that the appeal of the order must be brought before a person who had not personally dealt with the matter.

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