TDSB launches $90M lawsuit against city, fire department, over massive blaze that destroyed York Memorial Collegiate Institute

Thestar.com
May 6, 2021
Kristen Rushowy

Toronto’s public school board has launched a $90 million lawsuit against the city’s fire and police services, as well as the Ontario Fire Marshal, after a blaze two years ago that gutted York Memorial high school, alleging responders failed to secure the scene -- leading to the “rekindling” of an initial, smaller fire -- and then tried to cover up what happened.

The lawsuit, filed in Ontario’s Superior Court of Justice on Wednesday, accuses fire services of misleading the media and later filing a final report intended to “downplay, mislead, conceal and suppress evidence of negligence” after Toronto Fire Chief Matthew Pegg met with the provincial fire marshal’s office, which is run by his brother.

While initially providing a brief comment early in the day, the city took the unusual step of later issuing another statement about the “unfounded allegations against city staff” contained in the statement of claim filed by the Toronto District School Board, or TDSB.

“City staff co-operated fully and professionally in the investigation of the fires at York Memorial Collegiate,” said the statement from Chief Communications Officer Brad Ross.

“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.” (Pegg was appointed last year to lead the city’s pandemic response.)

The city “looks forward to vigorously defending against these allegations,” the statement said.

The City of Toronto is named in the suit as it oversees Toronto fire, and the province is named on behalf of the Office of the Fire Marshal.

A spokesperson for the Ministry of the Attorney General told the Star the province had yet to be served but when it is, “Ontario will respond to the claim. As this matter may be subject to litigation, it would be inappropriate to comment further.”

None of the allegations in the statement of claim have been proven in court.

Flames broke out in the auditorium of the 90-year-old school, a heritage building, on Eglinton Avenue West and Trethewey Drive and the school was “largely destroyed by fire on May 7, 2019 ... following a rekindling of a smaller fire on May 6, 2019 that was confined to the building’s auditorium,” the board says in its statement of claim.

The lawsuit alleges that the fire, a suspected arson, was deemed “under control” and that crews were later cleared, but that no one from police or Toronto fire secured the site overnight despite it being a potential crime scene, and also after a nearby classroom had been deemed “unusually warm” by an investigator from the fire marshal’s office.

Toronto Fire Services, or TFS, “did not post a fire watch at the building. The TFS assumed that the fire was out and that a fire watch was not required,” the statement of claim says.

“Given the age of the building and numerous uncertainties surrounding the building’s construction attendant with its age, including but not limited to the combustible nature of its construction (i.e., cellulosic insulation, cardboard and horsehair) and the presence of concealed spaces/voids in the walls and floor cavities and lack of a sprinkler system, there was a heightened risk of the fire causing a rekindling event” which Toronto fire, police and the fire marshal’s office “ought to have been aware” of, it says.

Instead, police and fire services left the night watch to an untrained school board security guard, a decision the board alleges “was driven primarily by cost concerns of senior personnel, including a desire to reduce overtime costs, and purported lack of adequate resources.”

The statement of claim also says that the fire services told reporters on May 7, 2019 “TFS would have posted a fire watch overnight, that they would have walked the building, gone in with thermal imaging and looked for any heat signatures. None of these things were, in fact, done.”

It also alleges that Pegg “falsely reported to the TDSB, media and others that the May 7, 2019 fire was ‘separate and distinct’ from the first fire on May 6, 2019.”

Then, on May 17, Toronto fire received a call from the fire marshal’s office that it had “reached a conclusion as to the cause of the fire and that ‘it would not look good on the TFS,’” the statement of claim alleges.

Toronto fire then said outstanding paperwork remained, and after that call “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 statement of claim says.

It further alleges that two months later Pegg met with the fire marshal’s office, “headed by his brother, Jon Pegg” and that “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 OFM report was drafted so as to downplay, mislead, conceal and suppress evidence of negligence and gross negligence” on the part of both Toronto fire and the provincial fire marshal.

No one was injured in the fire, but 900 students and staff have had to be relocated from the school, which opened in 1929 and was home to several memorials to youth killed in the First World War.

The board is seeking $90 million in damages.

At a COVID-19 media briefing Wednesday, Toronto Mayor John Tory and Matthew Pegg were asked by the Star’s David Rider about the lawsuit.

“I have confidence in all elements of the system but there are times when even in the same, broader public service family there are going to be differences of opinion as to things that took place and that’s why we have lawyers and courts,” Tory said.

Pegg added that it “is now in the hands of city (of Toronto) legal, as is our process at any point in time for any legal action and that’s where it’s best suited.”

At the school board, Interim Director of Education Karen Falconer said in a written statement it “will continue to rebuild York Memorial Collegiate Institute regardless of the outcome of this legal proceeding.”

She said “it is important to note that the cost of the rebuild is covered by the (board’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 province’s insurers.”