City of North Bay v. Emil Iliescu, 2012 ONCJ 108

Court File and Parties

Court File No.: City of North Bay 110339 and 110340 Date: 2012-02-24 Ontario Court of Justice

Between: City of North Bay — AND — Emil Iliescu

Before: Justice of the Peace L.M. Scully

Heard: February 3, 2012 and February 10, 2012

Reasons for Judgment Released: February 24, 2012

Counsel:

• Christina (Tina) Murphy, for the prosecution
• The defendant Emil Iliescu on his own behalf

Reasons for Judgment

Justice of the Peace L.M. Scully:

Background and Charges

1This trial proceeded with 5 charges in relation to the Fire Code after the Prosecutor withdrew 3 of the charges. The Fire Code is a regulation passed pursuant to the Fire Protection and Prevention Act, 1997, namely Ontario Regulation 213/07. These 5 charges are all violations of section 28(1)(c) of the Fire Protection and Prevention Act, 1997.

2The Prosecution called one witness that being Fire Prevention Officer Joe Gardiner of the North Bay Fire and Emergency Services. As a result of a complaint by a tenant to the Building Department and a subsequent memo from the Building Dept. to the Fire Dept. alerting them to Fire Code concerns, Officer Gardiner attended at 662 Main St. E., North Bay, and conducted an inspection. The inspection took place on June 2, 2011, the date of offence for these 5 charges.

Ownership and Building Characteristics

3This building is owned by the defendant. Ownership of this building was not in dispute. The Prosecution filed certified documents (exhibits 2, 3 and 4) to prove ownership and the defendant admitted he was the owner during cross-examination. I am satisfied that the defendant was the legal registered owner and the owner as that word is defined in the Fire Code, of the building located at 662 Main St. E., North Bay on the offence date of June 2, 2011. The definition of "owner" in the Fire Code is found in section 1.4.1.2 and reads as follows: "owner means any person, firm or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property."

4The Prosecution has the burden of proving each and every essential element of these offences beyond a reasonable doubt. I am satisfied beyond a reasonable doubt based on the evidence I heard from Officer Gardiner, the defendant himself and the defendant's witness Mr. Franz of the following matters in relation to this building:

• It is 3 storeys in building height with a basement level
• It contains 4 separate apartments which are "dwelling units" as defined in the Fire Code
• It is a "building" as defined in the Fire Code therefore Part 2 of the Fire Code applies
• There is a front entrance off Main St. which accesses a public corridor and an exit stairway (south stairway). This stairway allows access to second floor apartment 2 and third floor apartment 3. Apartment 1 is also accessed through this entrance and public corridor and is located on the main floor.
• Apartment 4 is accessed through a separate door at the rear of the building and was an add-on to the original building. This apartment encompasses part of the basement, main floor and second floor but in an addition to the main building.
• The defendant resided in apartment 1 on the date of offence.
• Ken Stevens (and possibly others) resided in apartment 4 on the date of offence
• There is a rear exterior stairway (north side) which allows a second means of egress for apartments 2 and 3. It rises to and services the 2nd and 3rd storeys.

I would characterize these above noted building characteristics as being not in dispute by the defendant.

Count 1: Combustible Materials in Means of Egress

5With respect to count 1 on the 6 count Information (charges 5 and 6 being withdrawn) I find that photos 3, 4, 5, and 6 (from composite exhibit 1 – photos taken by Officer Gardiner) clearly show that combustible materials consisting of wood, fabric and plastic are being kept in the south stairwell means of egress contrary to Division B, section 2.4.1.1(2) of the Fire Code. There are numerous items many of which appear to be piled haphazardly in this area consisting of a few wood doors, a plastic vacuum, a refrigerator, a bicycle, cardboard boxes, unknown pieces of fabric and plastic, etc. These items are located at the bottom of the stairs and to the side of the stairs in the stairwell.

Count 2: Obstruction of Means of Egress

6With respect to count 2 on the 6 count Information, photos 4, 5 and 9 (from composite exhibit 1) clearly show the south side means of egress; specifically the stairs being obstructed with combustible and non-combustible materials contrary to Division B, section 2.7.1.7(1) of the Fire Code. There are numerous items piled directly upon the stairs consisting of metal and plastic tools, unknown pieces of fabric and metal and a large plastic tub or shower insert. These items are obstructions in the means of egress and would create a tripping hazard for anyone attempting to escape a fire or for firefighters going up the stairs to rescue people or fight a fire. The Fire Code does not define "obstructions" however Black's Law Dictionary (sixth edition) defines an "obstruction" as "a hindrance, obstacle or barrier. Delay, impeding or hindering". The defendant's argument that people could get by these items and walk to one side of the stairs does not provide a defence to this charge. The stairs being partially blocked with items still creates a hazardous situation which I believe this section was designed to address if one looks at the definition of "obstruction" and the wording of section 2.7.1.7(1). In a fire there may be a panic situation; speed is of the essence in escaping and smoke may hinder the view of the stairs therefore any impediment, obstacle or barrier on the stairs is an obstruction.

Definition of "Combustible"

7Officer Gardiner testified that there were "combustible" materials in the south stairwell/stairway area. The Fire Code contains no definition of "combustible" per se although it contains definitions of "combustible liquid""combustible dust", etc. The National Fire Protection Association (hereinafter referred to as NFPA) publishes numerous fire safety standards many of which are referred to in the Fire Code. The NFPA standards contain many definitions of "combustible" and "non-combustible" some more technical and scientific than others. One of the simplest definitions of "combustible" is "something that is capable of burning". This may appear to be unhelpful in that just about any material can be capable of burning if it is exposed to high enough temperatures. One therefore has to look at the definition of "non-combustible." The definitions refer to materials which will only burn when exposed to certain extremely high temperatures. Examples are given of certain types of steel, concrete, masonry and glass. I am satisfied therefore from the evidence of Officer Gardiner; from every day knowledge of items that burn easily and from the definitions discussed above that some of the items located in the south stairwell and on the stairs are indeed combustible and some are non-combustible.

Kienapple Principle

8Although not raised by either party I have considered the Kienapple principle as it relates to counts 1 and 2 as at first blush the actus reus of these offences may appear to be the same (i.e. items stored in south stairway) but I'm satisfied that it does not apply in this case. The items I have referred to in relation to these counts are different items and are in slightly different locations and the charges deal with different issues (combustible materials in means of egress vs obstruction of the means of egress). The Kienapple principle is the legal principle that generally speaking a person can't be convicted twice for the same matter.

Count 3: Obstruction of Exterior Stairway

9With respect to count 3 on the 6 count Information, photos 21 and 28 (of composite exhibit 1) show the ladder and metal box which are obstructions for the exterior stairway means of egress for apartments 2 and 3. The ladder, metal box and a shed covered in a tarp at the bottom of the stairs create a "dead end" situation which leaves nowhere to go once the bottom of the stairs is reached. My comments with respect to the issue of obstructions and the defence raised in relation to count 2 are equally applicable to this charge.

Temporary Storage Defense

10Mr. Iliescu raised a defence that some of the items referred to in relation to counts 1, 2 and 3 were located in these areas temporarily. I find that this defence is not a defence in law. The Fire Code does not allow for any exceptions relating to temporary violations of the Code. Further I do not find that the exceptional and rare defence of de minimis non curat lex (which means the law does not concern itself with trivial matters) has been made out. On the evidence of Mr. Franz (the defendants' witness) and the defendant himself some of these items such as the tools were left in these locations for anywhere from a few days to 3 weeks depending on the evidence that is accepted. (I will make reference to the overall veracity of Mr. Iliescu's evidence later in the judgement.) The other items were stored in these areas as permanent or semi-permanent storage as the defendant said he had nowhere else to store them. This is not a defence. It is up to the defendant as the owner of this building to make proper arrangements for the storage of his belongings in a location and manner which does not violate the Fire Code.

Count 4: Failure to Maintain Exterior Stairway

11In relation to count 4 on the 6 count Information, photos 23, 24, 27 and 29 (of composite exhibit 1) show the rotting wood (and some missing pieces of wood) in various locations on the rear exterior (north side) stairway showing that the exterior stairway is not maintained in good repair as required by Division B, section 2.7.1.8(1). Officer Gardiner testified that while walking on this exterior stairway he could feel it moving and vibrating and he moved one of the stair stringers up and down by hand as the nails were loose due to the rotting wood. The defendant testified that he reinforced parts of this stairway at the request of the Fire Department in approximately 2006. But if one doesn't maintain the wood the reinforcements will not be of much use. A lot of changes to a structure that is not maintained can occur in 5 years.

Count 1 (2-Count Information): Fire Separation Breach

12In relation to count 1 on the 2 count Information (count 2 was withdrawn), photo 39 shows a small hole in the fire separation between apartments 4 and 1 near some copper piping and electrical wires. Officer Gardiner was able to push a broom handle through this hole to such a depth that he was satisfied it penetrated into apartment 1 from apartment 4. This is contrary to Division B, section 9.5.2.7(1) of the Fire Code which requires a 30 minute fire-resistance rating between each dwelling unit and adjacent areas. Mr. Iliescu spoke at length about doing repair work to blocked pipes in this area and attempted to explain the hole based on his repair work but ultimately during cross-examination and questioning from the court he admitted that he did not begin the repairs until after the offence date of June 2, 2011.

Assessment of Defendant's Evidence

13With respect to Mr. Iliescu's evidence as a whole I found it ranged from evasive to contradictory to uncertain to irrelevant. The transcript of the proceedings would speak for itself in this regard and there are too many examples to cite. Mr. Iliescu was at times contradicted by his own witness Mr. Franz. In addition Mr. Iliescu took lengthy pauses before answering certain questions which I would describe as the most pointed questions from the Prosecutor. He often answered questions with a "non-answer" which did not answer the question asked. I am satisfied that Mr. Iliescu understood the questions but was trying to avoid giving certain answers which he felt would hurt his case. This may not be accurately reflected in a transcript as it often involved demeanour, mumbling and lengthy pauses. As a whole I found his evidence to be very unreliable for the reasons indicated. Even if however I was to accept Mr. Iliescu's evidence completely, it does not raise any defence in law or any reasonable doubt. I found Mr. Franz testified in an honest and straightforward manner and I accept his evidence although on many issues he simply had no knowledge or relevant information or was uncertain and his evidence therefore adds very little. The evidence of the defence witness Mr. Franz does not raise any defence in law nor any reasonable doubt nor does the prosecution evidence. I found the evidence of Officer Gardiner to be detailed, clear and straightforward and to be corroborated by the photographic and documentary evidence and I accept his evidence. However I do wish to make it clear that I am not considering the evidence of Officer Gardiner as it relates to pre and post offence conduct of Mr. Iliescu. In some cases this may be properly tendered to rebut a defence of due diligence. In this case none of the evidence before me amounted to a defence of due diligence. Some of the evidence of the Prosecution regarding pre and post offence conduct may therefore be considered prejudicial to the defendant and I want to make it clear that it did not affect my decision nor was it considered in reaching my decision.

Consideration of Potential Defenses

14As Mr. Iliescu was self represented and appears not to have legal training I was very careful in trying to determine if any evidence disclosed any defence to the charges as the defendant would not have been able to articulate the legal names of possible defences. I considered the defences of necessity, due diligence and officially induced error and I am satisfied that none of the evidence came even close to establishing these defences so I will not labour the point by reviewing the criteria for these defences to be made out.

Occupancy Issue

15There was some evidence before the court that apartments 2 and 3 may not have been occupied on the offence date of June 2, 2011. For the reasons as indicated in paragraph 13 I find the defence evidence to be uncertain in this regard. The evidence surrounding the use (and lack of use) of the receipt book (exhibit 7) for example leads me to have concerns about the defence evidence with regards to occupancy. The prosecution had no specific evidence on this issue. If occupancy is required to prove the charges then the prosecution would have the burden of proving occupancy and any doubt is resolved in favour of the defence. However I find in this case that the specific issue of occupancy of units 2 and 3 is not relevant to these charges and is not required to prove the case. I will explain my reasons in paragraphs 16, 17 and 18 below.

Application of Fire Code to Building

16As per section 2.1.1.1 and 2.1.1.3 (1) and (2) of the Fire Code the charging sections in counts 1, 2 and 3 of the 6 count Information apply to "buildings" and not to individual "dwelling units". The definition of "building" in the Fire Code is found in section 1.4.1.2 and reads as follows: "building means any structure used or intended for supporting or sheltering any occupancy." Clearly this building is being used as a residential occupancy for apartments 1 and 4 on the date of offence and is intended to be used as residential occupancy for all 4 apartments, therefore on either criteria it meets the definition of a "building."

17Count 4 deals with section 2.7.1.8(1). This section refers to exterior stairways "in occupied buildings." For the reasons indicated in paragraph 16 this was clearly a "building" and was "occupied", at the very least in apartments 1 and 4.

18Count 1 on the 2 count Information deals with a charge located in section 9.5 of the Fire Code. Section 9.5.1.1(1) explains the application of section 9.5. This section applies to (and I will quote only the relevant parts): "buildings up to and including 6 storeys in building height with residential occupancies and containing (a) More than two dwelling units where (i) At least two dwelling units share common exit facilities and have interior access to one another."

"Dwelling unit" is defined in section 1.4.1.2 and reads as follows: "dwelling unit means a suite operated as a housekeeping unit, used or intended to be used as a domicile by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities."

Based on the evidence and these definitions this building falls within the scope of section 9.5 of the Fire Code.

Verdict

19Therefore, for all of the reasons given, I find that the Prosecution has proven all essential elements of the offences for all 5 charges beyond a reasonable doubt and I find Mr. Iliescu guilty of these 5 charges namely counts 1, 2, 3 and 4 of the 6 count Information and count 1 of the 2 count Information.