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Safety - Technical Standards and Safety Act, 2000 (TSSA). Casey’s Propane v. Technical Standards and Safety Authority
In Casey’s Propane v. Technical Standards and Safety Authority (Div Court, 2024) the Divisional Court considers an appeal from "an inspector’s orders following a carbon monoxide poisoning incident in a home" by the investigator "Technical Standards and Safety Authority [SS: TSSA], which regulates fuel burning appliances and fuel distributors in Ontario".
Here the court discusses some TSSA procedures regarding propane, and related inspector's orders:[1] The issues in this case arise from an inspector’s orders following a carbon monoxide poisoning incident in a home. After the incident, an inspector of the respondent, Technical Standards and Safety Authority, which regulates fuel burning appliances and fuel distributors in Ontario, made twelve orders against the appellants, Casey’s Propane Inc. and Daniel Vollering. Casey’s is a registered propane distributor and had a contract to supply propane to the home. Mr. Vollering is a Casey’s employee. He completed two inspections[1] of the propane system and connected appliances at the home.
[2] The appellants appealed the inspectors’ orders to a director appointed under the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16 (the Act). In his decision dated May 10, 2023, the director partially affirmed three of the inspectors’ orders. The director rescinded the other nine orders.
[3] The director concluded the proximate cause of the incident was that a condensate drain hose was disconnected from the propane boiler, which allowed the products of combustion to enter the living space. He also found the failure to convert the boiler for use with propane from natural gas would likely have contributed to increased carbon monoxide production. Of the twelve orders, the director only affirmed part of two orders pertaining to Mr. Vollering -- for failing to identify that the boiler was not converted to propane – and part of one order pertaining to Casey’s. The order against Casey’s was for failing to ensure its employees complied with applicable regulatory provision, again only relating to the boiler not being converted for propane use.
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[5] ... Further, the appellants were not entitled to the requested high degree of procedural fairness. The in-writing hearing met the director’s procedural obligations and the appellants have not demonstrated any unfairness caused by the failure to produce documents. For the following reasons, the appeal is dismissed.
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Jurisdiction and Standard of Review
[7] The appellants appeal to this court under s. 11 of the Act.[2] The appellate standard of review is correctness for questions of law and palpable and overriding error for questions of fact. For questions of mixed fact and law, extricable legal questions are reviewable on a correctness standard. Otherwise, questions of mixed fact and law will not be overturned absent a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
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Did the Director err in affirming the orders based on insufficient evidence?
[8] The appellants submit the director erred by affirming the orders when he had insufficient reliable and persuasive evidence before him. In the appellants’ submission, the inspector and director had an obligation to “fully investigate the alleged offences” before confirming the orders.
[9] I disagree. The question before the Director was whether to uphold the inspector’s orders. Paragraph 21(1(a)) of the Act authorizes an inspector to make an order against a person the inspector believes to be a “contravener” as defined in the provision. It also authorizes an order against the contravener’s supervisor and/or employer. It provides:21(1) If an inspector finds that any provision of this Act, the regulations, a Minister’s order or an alternate rule is being contravened, or that a thing under this Act is unsafe or is not being operated or used in accordance with the authorization relating to it, the inspector may,
(a) serve the person he or she believes to be the contravener or that person’s supervisor or employer, or both, with an order in writing directing compliance with the provision or authorization and may require that the terms of the order be carried out forthwith or within such other time specified in the order.
[10] The question before the director therefore was whether the inspector had established contraventions and justified his belief that the appellants were contraveners. The appellants acknowledge the director correctly stated the standard of proof, which was on a balance of probabilities. He further adverted to the need for reliable and persuasive evidence before making adverse findings.
[11] The appellants misapprehend the statutory scheme in suggesting the inspector and director were required to use the full statutory investigative powers before the director could reach his conclusions.
[12] First, the director’s role is to assess the evidence on an appeal of the inspector’s order. Once the inspector made his orders, the appellants were entitled to appeal them to a director who, under s. 22(3), is required to hold a hearing. Under s. 22(4), the director is authorized to substitute his or her findings for that of the inspector, or to revoke or affirm the inspector’s orders. Pursuant to s. 22(9), the director can require the attendance of a person for examination. I address below the appellants’ contention that the director breached procedural fairness by holding an in-writing hearing and not requiring examinations in this case. Overall, the director’s primary role is to assess the evidence rather than to direct the investigation.
[13] Second, this was an administrative inspection under the Act and not an investigation to determine criminal or quasi-criminal liability. The Act includes provisions defining and providing penalties for “offences”: s. 37. It also includes provisions that empower the Director to suspend or revoke an authorization. An authorization is needed under the Act to carry out any activity regulated by the statutory scheme: s. 6. The proceedings in this case did not involve an investigation of a potential offence, nor did they raise any prospect of the appellants losing their authorization. An inspector’s order under s. 21(1)(a) may only direct compliance with the relevant provision or authorization.
[14] Here, the orders directed the appellants to comply with the relevant provision in the regulations under the Act governing gaseous fuels (Ont. Reg. 212/01) and propane storage and handling (Ont. Reg. 211/01) but did not result in any other consequence. Their primary purpose was for documentation and data collection. As the respondent describes it in its factum, “[t]he inspection and supporting activities were administrative actions conducted for the regulatory purpose of determining the root cause of the carbon monoxide incident.” The respondent did not have an obligation to activate the full statutory investigative powers for this purpose.
[15] Third and in any event, any deficiencies in the inspection meant the inspector had less compelling evidence to justify his orders. Indeed, the director rescinded most of the inspector’s orders, in some cases because of insufficient evidence. For example, order 2-4 stated that Mr. Vollering had installed a propane cylinder that was not located on a level base and instead was placed on the frozen ground. Order 2-5 stated Mr. Vollering had failed to ensure the installation of the propane cylinder in compliance with the Propane and Storage Handling Code. The director rescinded both these orders because the appellants had submitted evidence to show they were not justified. Here, the deficiencies in the inspection were to the appellants’ benefit.
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