Citation: Collins v. 1660524 Ontario Inc., 2013 ONSC 4960

DIVISIONAL COURT FILE NO.: DC-12-00449

DATE: 20130826

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, GLITHERO & HARVISON YOUNG JJ.

B E T W E E N:

ROB COLLINS, FIRE CHIEF OF THE MUNICIPALITY OF PORT HOPE

Applicant (Appellant)

– and –

1660524 ONTARIO INC. carrying on business as POLYFRAME MOULDING and NORTH AMERICAN MOULDING, and ASHKAN ARTS LIMITED C.O.B. as POLYFRAME MOULDING

Respondents (Respondents)

Michael M. Miller, for the Applicant (Appellant)

John A. Annen, for the Respondent, 1660524 Ontario Inc. (Respondent)

HEARD: March 8, 2013 at Oshawa

GLITHERO, J.:

[1] This is an appeal from an order made by a Superior Court Justice on July 19, 2012 on an application pursuant to s.32 of the Fire Protection and Prevention Act, 1997, S.O. 1997 c.4 (F.P.P.A.). That section permitted the appellant to apply to a judge of the Superior Court for an order requiring the respondents to comply with an inspection order made under the Act. The section also provides that the application judge “may make the order requested or such other order as he or she sees fit.”

[2] The respondent numbered company owns the subject property at 260 Peter Street in the City of Port Hope, and the respondent Ashkan Arts Limited, (Ashkan) carries on business there under various business names manufacturing picture framing products.

[3] Representatives of the appellant have inspected the respondents’ property on several occasions and found alleged violations of the Ontario Fire Code. Previous inspection reports were issued in August 2006, December 2008 and October 21, 2009, which have been addressed.

[4] On September 3, 2010, a further inspection order was issued requiring the installation of an approved sprinkler system, as well as requiring that other improvements be made. The latter items have been completed. It is the installation of the sprinkler system that is the contentious remaining item as between the parties.

[5] The respondents appealed the order requiring the installation of the sprinkler system to the Office of the Fire Marshall pursuant to s. 25 of the F.P.P.A.

[6] The decision of the Office of the Fire Marshall dated March 31, 2011 upheld the order requiring the installation of the sprinkler system, but also provided that the respondents could achieve compliance if they submitted alternative measures to the appellant fire department by May 31, 2011, and if such alternative measures were found to be acceptable by the appellant. The Fire Marshall’s order required that such alternative measures be formulated by a professional engineer on the respondents’ behalf.

[7] The decision of the Fire Marshall’s delegate recited the concerns of the respondents that the installation of a sprinkler system would be cost prohibitive as the estimate was $280,000 plus additional amounts for wiring and upgrades to the water service. The order further recited that the respondents were proposing alternative solutions relating to alternative storage arrangements of combustible materials. The decision indicated that these alternate proposals ought to be prepared by a professional engineer or architect and should include a schedule of compliance. The decision further allowed that such alternative proposals might be approved by the fire department and if so these improvements would then constitute compliance with the order.

[8] The reasons indicated that the respondents’ request for consideration of its proposed alternative measures was reasonable, and noted that the Fire Marshall’s order accommodated the respondents by contemplating that alternative measures might be developed by a professional engineer and if so developed and submitted, might be accepted by the fire department and thereby constitute compliance with the outstanding order. The decision of the Fire Marshall’s office required that the alternative proposals be submitted not later than May 31, 2011 to the fire department.

[9] The respondent submitted alternate proposals on August 12, 2011 pursuant to a report by a licenced professional engineer detailing steps the company had taken as an alternative to a sprinkler system. Four days later, on August 16, 2011, the fire department replied indicating that the engineer’s proposal was not acceptable. The fire department encouraged the respondents to work towards compliance. The respondent’s engineers promptly requested a reconsideration of its proposed