Facts
On March 16, 2023, a fatal fire destroyed a heritage building in Old Montréal owned by Plaintiff Mr. Émile Benamor. It is alleged that the fire was caused by a third party and was of a criminal nature. The plaintiff brought an action against the City of Montréal claiming $7 575 000, for the faults allegedly committed before and during the fire. According to the plaintiff, the City was at fault both in establishing preventive measures and in its firefighting efforts during this tragic event.
In response, the City filed an Application to Dismiss, raising the plaintiff’s failure to give notice of his claim within 15 days of the fire, as required by section 585 of the Cities and Towns Act (CTA). In reply, the plaintiff argued that this obligation was not incumbent on him, given that only an accident requires a notice of claim.
Justice Shaun Finn of the Québec Superior Court concluded that:
- The notion of “accident” applies to a claim for damage to immovable property.
- The incident is an accident as regards the criminal act of the perpetrator of the fire – an unknown third party – and the preventive measures taken by the City before the fire broke out, but not as regards the firefighting operations.
- The plaintiff neither alleged nor proved any valid impediment justifying his failure to provide notice of his claim regarding the City’s preventive measures within 15 days of the fire.
Legal Framework
Paragraphs 1 and 2 of article 585 of the CTA provide as follows:
585. (1) If any person claim or pretend to have suffered bodily injury by any accident, for which he intends to claim damages from the municipality, he shall, within 15 days from the date of such accident, give or cause to be given notice in writing to the clerk of the municipality of such intention, containing the particulars of his claim, and stating the place of his residence, failing which the municipality shall be relieved from any liability for any damages caused by such accident, any provision of law to the contrary notwithstanding.
(2) In case of any claim for damages to property, movable or immovable, a similar notice shall also be given to the clerk of the municipality, within 15 days, failing which the municipality shall not be liable for any damages, any provision of law to the contrary notwithstanding.
[…]Analysis
The judge pointed out that although the first paragraph of section 585 CTA, which deals with bodily injury, refers to an accident, the second paragraph makes no mention of it. Relying on the decisions of the Supreme Court of Canada and the Québec Court of Appeal, the judge remarked that absent any specific language, and by reading paragraph 1 with paragraph 2, it must be inferred that paragraph 2 requires that the damage be caused “as a result of an accident.” Therefore, the Court had to determine whether the City’s alleged conduct could be deemed an accident.
The Court reiterated constant jurisprudence that the notice of claim required by section 585 CTA is not a mere procedural measure, but rather a condition precedent to the existence of a plaintiff’s right of action. This right of action only arises if the claimant gives the notice of claim within 15 days of the accident. This delay is not one of prescription but rather forfeiture.
Given that the requirements set out in section 585 CTA are considered exorbitant, the interpretation of section 585 CTA must be limited to the cases clearly provided for therein: the occurrence of an accident, in the ordinary sense of the word.
The case at issue therefore presented the following question: can a fire qualify as an accident if it is the result of a deliberate and malicious act?
Relying on the jurisprudence of the Court of Appeal, the judge noted that the notion of “accident” refers to any event “involving an involuntary and unforeseen element” [our translation]. Case law generally refuses to consider a municipal employee’s illegal behaviour as accidental. The judge cited the example of a person injured by gunshot or resulting from the use of a garrotte by a police officer, which would not constitute an accident.
The judge then drew attention to the distinction made by the Court of Appeal between the cause of the event and its occurrence. “[T]he cause of the event that leads to or results in the harmful situation is irrelevant if the event is itself involuntary and unforeseen,” and “the question is not whether the event was foreseeable because of the nature of the fault, but whether its occurrence was unforeseen in the place and at the time it took place” [our translation].
Applying these principles, the judge concluded that the perspective of the parties must form the applicable framework for analysis. Accordingly, although the fire was voluntary from the point of view of the third party who caused it, its occurrence was entirely involuntary and unforeseen as it relates to the parties.
In its oral submissions, the plaintiff qualified the City’s alleged faults in preventing the fire as gross negligence. However, the allegations of the pleadings – which must be considered as proven on a Motion to Dismiss – are not characterized as such. Therefore, the judge concluded that the outbreak of fire qualified as an accident under section 585 CTA, meaning that the plaintiff’s claims concerning the City’s failure to prevent the fire were subject to the 15-day notice period. In the absence of such notice, the judge dismissed this portion of the claim.
The judge reached a different conclusion regarding the firefighting operations. Faced with divided case law on the issue, the judge favoured the view that such actions were not accidental. Citing the Court of Appeal’s decision in Châteauguay (Ville) v. Axa assurances Inc. 1999 CanLII 13730 (QC CA), the judge began by emphasizing that:
[…] a breach of a legal obligation cannot be considered accidental.Thus, a city unable to fight a fire effectively because it does not have the necessary resources to ensure the protection of its citizens cannot invoke the occurrence of an involuntary and unforeseen event.Secondly, the Court of Appeal noted that it would be “singular, to say the least, to qualify as accidental damage caused at the very moment when the City’s employees were committing prejudicial acts in the premises occupied by the victim.”
[Our Translation]
The judge considered that the alleged acts of negligence could not be construed as accidental because they were committed at the time and place of the incident and were committed “in the heat of the moment.” The judge emphasized that they could therefore not be described as “involuntary or unforeseen” without distorting the ordinary meaning of the word “accident.” Correspondingly, the judge also confirmed that a City unable to effectively combat a fire to ensure the protection of citizens on its territory due to insufficient resources cannot invoke the occurrence of an involuntary or unforeseen event. The Court emphasized the importance of distinguishing cases where such resources are lacking.
The judge therefore concluded that the allegations concerning damage caused by the firefighting operations were not subject to the 15-day notice requirement of section 585 CTA.
Both parties have been granted leave to appeal this judgment, and it will be interesting to see how the Court of Appeal will respond.
We will keep you updated on the outcome.
