In the aftermath of a fire or explosion, the immediate needs of the owner whose house, shop or plant has been reduced to cinders come first and foremost, of course. The 48 hours following the departure of the firefighters and ambulance crews are critical to the success of the adjuster’s task. In the face of recent developments in bath faith litigation and insurers’ demands to root out fraud and potential sources of subrogation recovery, preserving the evidence for the private forensic investigation is now a top priority. The firefighters have likely destroyed a great deal of the evidence in their fire suppression and overhaul efforts. Where there has been a large loss or injury or death, law enforcement officials such as the police, the Fire Marshal and the Technical Standards (Fuels Safety) and Electrical Safety inspectors are the first to take charge and remove physical evidence from the scene for examination. The experience in both civil and criminal litigation is, however, that the act of removal is the first in a series of destructive steps which may interfere in the ability of the interested parties in getting to the facts which will determine their rights and remedies.

Take, for example, the experience of one fire investigator who, by the time of his arrival at the fire scene, found a likely cause of the fire, an oil-fired furnace, removed from the structure and taken to the local fire hall. The firefighters, at the instruction of the Fire Marshal’s investigator, tore it out of the house. In the course of so doing, they had also knocked down a supporting stud and tipped over a hot water tank. Many hours of poring over photographs were later spent looking for the stud, because the mistaken premise that the stud was consumed by the fire led to an initial conclusion that the fire spread to the furnace room and not from it. When the insurer’s investigator tried to gain access to the furnace at the fire hall, he was turned away. After days turned to weeks before he was permitted to inspect it, he was finally allowed into the room where it was kept. By then, the Fuels Safety inspector had ordered it stripped down into dozens of pieces scattered on the floor. The inspector’s years of experience had all been limited to propane, and he himself did not know how to examine the oil-fired unit. So he had a local oil burner mechanic dismantle it for him and explain to him the workings of the appliance. This was, it turned out, the same mechanic who had finished working on the furnace less than a half-hour prior to the fire.

At the trial of the subrogation action against the oil burner mechanic, the Fuels Safety inspector testified as a witness for the defendant. Under cross-examination, he admitted that he had permitted the most obvious suspect to tamper with the physical evidence. He also admitted that he was not familiar with the NFPA 921 Guide for Fire and Explosion Investigations, and in particular the sections regarding the collection and preservation of physical evidence from a fire scene.

He then admitted that he had ordered the dismantling without any prior notice to the owner of the furnace or its insurer. In so doing, his actions were not only contrary to a fundamental rule of fire investigation, but constituted trespass. Under the statutory authority at the time, s. 4(1)(e) of the Energy Act, R.S.O. 1990, c. E.16, now s. 18(b) of the Technical Standards and Safety Act, 2000, S.O. 2000, c. 16, an inspector may remove physical evidence for examination, testing or inquiry only on notice to the appropriate parties, here the owner.

It is tough to say whether insistence on compliance with the statutory authority could have altered the course of events leading to the spoliation of the evidence. In practice, firefighters and official investigators are prone to play follow-the-leader with each other, and they tend to be set in their ways. Government representatives, acting entirely in good faith, frequently exceed their authority and trample over the legitimate rights of directly interested parties. As seen in this illustration, one cannot count on a so-called expert inspector to be aware of the most basic of forensic investigation techniques, or of the functioning of the type of appliance being examined. Examples of the impact of mishandled evidence do not stop at the altering of outcome of civil proceedings. In criminal proceedings for arson, charges could be dropped or an acquittal be registered on the grounds that the improper exercise of the official investigator or inspector’s authority resulted in the accused being deprived of the right to full disclosure and to make full answer and defence to charges. This is not only an issue of evidence, but one of a potential s. 7 Charter of Rights violation.

The adjuster may still be limited in what he or she can do to ensure preservation of the evidence. It does help to know, however, as a representative of the insurer, that the official representatives all operate under legislated authority, and to know what the sources of that authority are. On occasion, it does pay to weigh into the dispute because the evidence has not yet been tampered with. Here is a simple reference to the statutory authority of three types of officials typically encountered in the handling of a property loss.

FIRE MARSHAL
The Office of the Fire Marshal has the most sweeping powers of investigation. Its powers once a fire has occurred, legislated under Part V of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, include the power to enter and seal off land and premises (as well as adjacent properties) without a warrant, to remove, examine and retain any article or material, and to take samples and photographs. The inspector may also require that any machinery, equipment or device be operated, used or set in motion. Apart from the taking of samples (usually to test for accelerants) and operation of equipment, no destructive testing or dismantling per se is authorized. This is a grey area, because the operation of engines or furnaces, for example, will often obliterate or exaggerate the state of repair at the time of discovery at the fire scene. As a matter of interpreting the letter and the spirit of the legislation, it appears correct to assume that the Fire Marshal is obliged to notify the owner and insurer of the property, as well as any potential defendants in a liability suit, before destructive testing is performed which may affect the ability of a party to prove an issue in civil or criminal proceedings.

TECHNICAL STANDARDS AND SAFETY AUTHORITY (TSSA)
The TSSA brings under its umbrella, not only the former Fuels Safety Branch, but also various offices which formerly inspected amusement devices, boilers, pressure vessels, elevators, and stuffed articles. As stated earlier, there is no specific authority conferred on the inspector to interfere with physical evidence for testing, without first notifying the owner. It must be remembered that most inspectors are not fire investigators by training, but former steam, gas or oil fitters. The focus is on compliance with applicable codes, with regard to such concerns as proximity of burners to combustible structures, welding and fitting practices on supply piping and blocked chimneys. Because the skills are deeply set in field practice and fire prevention, the inspectors are more likely to be concerned about whether the appliance was installed or working properly than whether it was the cause of the fire or explosion.

ELECTRICAL SAFETY AUTHORITY (ESA)
The ESA is the successor to the inspection of arm of the former Ontario Hydro. Its powers are set out in by Part VIII of the Energy Competition Act, 1998, S.O. 1998, c. 15. Although its inspectors routinely inspect electrical connection equipment such as panel and junction boxes, as well as load-side wiring and appliances, the actual authority does not extend to an investigation of origin and cause of fire. Rather, as a matter of statutory duty, the inspection is performed to ensure the condition are safe to restore emergency and permanent power to the building. Inspectors are authorized to issue orders to the property owner to install, remove, alter, repair, protect, connect or disconnect electrical equipment, and may enter onto land to do so. However, the authority does not extend to destructive testing or removal of evidence. As with TSSA inspectors, ESA inspectors are mandated to promotion of good field practices and prevention of accidents. They tend to be former electricians, as opposed to investigators or engineers. More likely than not, the ESA inspector will check for loose cable terminals by tugging hard on the cable, much as one would as an installer. However, the inspector would thereby exert artificial force and make it impossible to determine whether the cable had already come loose through more subtle influences such as temperature change or vibration. In the times when the inspectors were also employed by the wholesale distributor, Ontario Hydro, the use of such investigative practices probably led to most electrical fires being classified as “Undetermined.”

R. Lee Akazaki received his B.A. and LL.B. from the University of Toronto, and practices law with Gilbertson Davis Emerson LLP, Barristers and Solicitors. He is certified by the Law Society as a Specialist in Civil Litigation.

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