TDSB files $90M lawsuit against Toronto Fire Services, police, province over York Memorial CI fire

A $90-million lawsuit filed by the Toronto District School Board (TDSB) against the Toronto Fire Services (TFS), the Toronto Police Services Board and the Ontario government (responsible for the Office of the Fire Marshal) is alleging negligence and breach of duty after York Memorial Collegiate Institute was destroyed by fire in 2019, forcing nearly 900 students to be displaced.

“The consequences of the fire have been devastating for the TDSB as well as its staff and its students,” the 27-page statement of claim dated on Wednesday said.

“Fortunately, there were no injuries. However, the historic building sustained catastrophic damage, and there was significant environmental impact due to smoke, fire suppression chemicals and asbestos contamination.”

It was at around 2:15 p.m. on May 6, 2019, when firefighters were first called to the Trethewey Drive and Eglinton Avenue West-area school, which was originally built in 1929, for a fire that erupted in an auditorium hallway. Flames could be seen coming from a second-storey window of the school.

The statement of claim said firefighters tried to get behind a stage wall to flood it with water but couldn’t properly do so due to multiple wood layers. After a platoon left the building to change air cylinders and were told the fire was extinguished, the document said crews didn’t return to go below the stage to apply water and instead went to turn off the fire alarm and retrieve items belonging to staff and students.

“After all visible fire has been extinguished, the area must be checked for residual fire, including any fire that could have extended into areas not originally involved, such as floors, walls and ceilings. Incomplete overhaul may allow the fire to rekindle,” the statement of claim said.

“However, in this case, inadequate or no overhaul was conducted of the floor below the stage or the ceiling of the ground floor below the center stage and hallway in the area of the fire.”

It went on to say a TFS investigator told Toronto police “they anticipated holding the scene overnight.” However, the document said a fire watch wasn’t posted at the building and TFS staff “assumed that the fire was out.” It was alleged the fire continued to burn in the floor and walls.

The statement of claim said an Office of the Fire Marshal (OFM) investigator arrived at the site in the evening and police seals were put on all but one set of doors and the electricity to the auditorium was ordered off. It was determined the investigation would continue the following morning.

Guarding of the site was, according to the document, to be done by TDSB security, noting it was later determined that the order wasn’t conveyed to TDSB officials. It alleged the security guard was told to provide a fire watch even though they don’t have official training or equipment to respond.

The statement of claim also said before TFS, OFM and police left the scene that evening, the OFM investigator raised concerns about an “unusually warm room” near where the fire started and that concern was raised to the TDSB guard.

“The decision of the TFS, TPS and OFM to abandon the building on the evening of May 6, 2019, without ensuring a proper fire watch was in place, was driven primarily by cost concerns of senior personnel, including a desire to reduce overtime costs, and purported lack of adequate resources,” the document said.

It said a new security guard came to the scene late on May 6 for a shift change. Between 1 and 1:30 a.m. on May 7, the statement of claim said the guard noticed a haze in the hallway leading to the gym and around two hours later they saw “a flicker of light” in the auditorium, prompting a call to TFS and the arrival of crews within minutes.

A fire was subsequently discovered below the auditorium stage. It later spread and became a six-alarm blaze, leaving heavy damage to the school.

The statement of claim alleged TFS Chief Matthew Pegg “falsely reported” the fire detected on May 7 was “separate and distinct.” Ten days later, it was also alleged someone from the OFM called the TFS to say the conclusion on the cause of the fire “would not look good on the TFS.”

“After receiving the OFM’s phone call of May 17, 2019, certain of the narrative entries in the TFS Incident Report in respect of the May 6, 2019 fire were modified in an effort to suppress evidence of negligence on the part of the TFS,” the document said.

It also said Pegg met with the head of the OFM, his brother Jon Pegg, to review the TFS response.

“As a result of the July 25, 2019 meeting between Fire Chief Pegg and the OFM and concerns about the potential liability of the TFS and OFM with respect to the May 7, 2019 fire, the final report of the OFM Report was drafted so as to downplay, mislead, conceal and suppress evidence of negligence and gross negligence on the part of the TFS and OFM,” the statement of claim said.

“Had the TFS conducted a proper, thorough overhaul of the fire on May 6, 2019 and extinguished the initial fire, damage to the building would have been confined primarily to the stage area of the auditorium and the damages being claimed in this case would have been avoided.

“Had the TFS, OFM or TPS ensured that a proper fire watch was in place inside the building by trained fire watch personnel equipped with proper PPE, the rekindled fire would have been identified and extinguished, so that the damages being claimed in this case would have been avoided.”

In August, the OFM deemed the fire accidental and the cause unknown.

2:05 Students displaced by fire find new home at vacant Scarlett Heights

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• GoFundMe created to preserve historic items at York Memorial C.I. after fire
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The statement of claim and the allegations within it haven’t been tested in court.

The document said the building’s emergency clean-up, demolition and rebuilding costs, loss of contents, damage to nearby buildings, preparing another school to accommodate students, increased insurance premiums and other damages will result in at least $90 million in costs to the TDSB.

When asked about the statement of claim, the interim director for the TDSB issued a statement and said the board was looking to settle the matter outside of court but that officials “were left no other choice” but legal action.

“It is important to note that the cost of the rebuild is covered by the TDSB’s insurer who has filed this claim to recover its policy payments and additional costs. If successful, it would be anticipated that these damages be paid by the City and/or (the) Province’s insurers,” Karen Falconer wrote, adding the rebuilding of the school is still proceeding.

Meanwhile, City of Toronto staff took the unusual step of issuing a news release in response to the statement of claim.

“The City does not normally comment on matters that are before the courts, but is doing so regarding this matter after reviewing the unfounded allegations against City staff contained within the TDSB’s claim,” Wednesday’s statement said.

“City staff cooperated fully and professionally in the investigation of the fires at York Memorial Collegiate. Staff took all appropriate steps to preserve evidence, and allegations in the claim that suggest otherwise are patently untrue and irresponsible.

“It is unconscionable that the TDSB and its insurers would impugn the integrity of Fire Chief Matthew Pegg and other Toronto Fire Services staff in this manner.”

During an unrelated news conference Wednesday afternoon, Pegg said he learned of the statement of claim just before he speaking.

“It is now in the hands of City legal as is our process at any point of time for any legal action and that’s where it’s best suited,” he said.

Mayor John Tory defended Pegg and City staff at the news conference, and issued a statement hours later calling him an “absolute professional and a leader of immense integrity.”

“I fully support Chief Pegg and know our City lawyers will energetically defend against these outrageous allegations. They have my full support,” he wrote.

On Thursday, Toronto city manager Chris Murray released a letter he sent to Falconer and slammed the lawsuit.

“I am compelled to express my extreme disappointment in the baseless and irresponsible allegations made against Fire Chief Matthew Pegg. I am also appalled at the calculated public release of the claim yesterday by the TDSB, which contained these allegations,” he wrote, before referencing past collaboration.

“Our respective sense of joint mission and the importance of our close relationship has never been more evident than in the current civil emergency. All of which makes this baseless attack on the integrity and professionalism of Chief Pegg, who leads the City’s emergency response management, all the more disappointing. It is difficult not to view this spurious attack on Chief Pegg as a betrayal of our close relationship.”

Murray went on to praise Pegg for his service to the City of Toronto.

“We ask you to consider the harm caused to Chief Pegg’s reputation by the false claims of misfeasance advanced in your lawsuit. We also ask that you reconsider maintaining those claims and consider whether a public apology is owing to Chief Pegg,” he wrote.

“To the extent you require any information to assure yourself and your insurer that those claims ought to be abandoned and a public correction of the record made, do not hesitate to have your legal counsel seek it from our counsel, who will oblige.”

— With files from Jessica Patton