CITATION: Norquay Campus Properties Ltd. v. Office of the Fire Marshal and Emergency Management, 2018 ONSC 2361

DIVISIONAL COURT FILE NO.: 503/17 DATE: 20180411

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MORAWETZ RSJ, C. HORKINS and TZIMAS JJ.

BETWEEN:

NORQUAY CAMPUS PROPERTIES LTD. Applicant

– and –

OFFICE OF THE FIRE MARSHAL AND EMERGENCY MANAGEMENT Respondent

Kristin A Ley and Joseph J. Hoffer, for the Applicant Sylvia Davis, for the Respondent

HEARD at Toronto: April 11, 2018

C. HORKINS J. (Orally)

[1] The Norquay Campus Properties (“Applicant”) seeks a declaration that OFMEM-TG-02-2016 Fire Alarm Audibility in Existing Residential Occupancies (“Guideline”) is invalid.

[2] The Applicant also seeks an injunction prohibiting the Fire Marshall from imposing a minimum decibel level for fire alarm systems in existing residential occupancies in the absence of a clear regulation enacted through the legislative process.

[3] The Applicant is the owner of 201 Campus Parkway. On September 27, 2016, Inspector Sproule attended the building to conduct a fire inspection.

[4] On November 29, 2016, the Applicant was served with an Inspection Order requiring that:

(1) Those units tested by the Inspector provide “intelligible audibility levels in all residential units” complying with the Guideline;

(2) The owner conduct testing on the units not tested by the Inspector; and

(3) The owner submit a proposal to provide adequate fire alarm audibility.

[5] The Applicant appealed to the Office of the Fire Marshal on December 1, 2016, pursuant to s. 25(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c 4 (“FFPA”)

[6] On June 7, 2017, Fire Marshall Delegate Michael Ng upheld the Inspection Order. At issue in this hearing was the appropriate use the Inspector could make of the Guideline.

[7] The Applicant filed an appeal to the Fire Safety Commission on June 21, 2017, pursuant to s. 26(1) of the FPPA. In the Notice of Appeal, the Applicant challenges the Guideline.

[8] The grounds of appeal are set out in a Case Conference Report dated August 17, 2017 as follows:

a) That the Inspector lacked jurisdiction to make an order enforcing the terms of technical guidelines relating to the operation of fire alarms.

b) That in any event the alarm system was fully operational and could be adequately heard throughout the building and therefore the Inspection Order was unjustified and unreasonable.

[9] The Applicant sought a stay of the hearing. The Respondent objected to this stay.

[10] The Fire Safety Commission concluded “in my view it would be useful to have the decision, but that I [am] not prepared to adjourn the case for too long, given its age at this point. I suggested a hearing date in early March 2018.” The hearing before the Fire Safety Commission has not yet proceeded.

[11] For the following reasons, this application is premature and therefore dismissed.

[12] The Applicant argues that this is an exceptional circumstance because the Guideline that prescribes the regulatory standards for fire alarm systems exceeds the jurisdiction of the Fire Marshall. As a result, the Applicant says that this issue of jurisdiction is an exceptional circumstance that justifies this application being heard today.

[13] We disagree. The law is clear that absent exceptional circumstances parties cannot proceed to the court for relief until the administrative process has run its course.

[14] As stated by Stratas JA in C.B. Powell Ltd. v. Canada (Border Services Agency) 2010 FCA 61 at paras. 30-33 this is a general rule that has been enforced by courts “vigorously”. “Very few circumstances qualify as "exceptional" and the threshold for exceptionality is high”.

[15] The Applicant has not raised a true question of jurisdiction. As stated in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 2008 SCC 9 at para. 59:

“Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. … We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.

[16] Further, even if the Applicant was raising a true question of jurisdiction, “it is not by itself an exceptional circumstance that justifies judicial review prior to completion of the administrative proceedings” (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541).

[17] The two cases that the Applicant relies upon do not assist the Applicant. Ishaq v. The Minister of Citizenship and Immigration raised exceptional circumstances that do not exist in the case before us today. Ishaq dealt with allegations that a policy violated the Canadian Charter of Rights and Freedoms by requiring women to unveil in public for the citizenship oath. The Federal Court rejected the argument that the application was premature for two reasons:

(a) The existence of a policy could be dissuading those who wear a niqab from applying for citizenship; and

(b) The notice to appear is usually sent only two weeks before the citizenship ceremony. This would not give an individual enough time to give notice of a constitutional question which would likely preclude any review of the constitutional issues by both the citizenship judge and a review in court.

[18] The second case is Sweet v. R., 1999, CarswellNat 1923 (F.C.A.). This was a decision of the Federal Court of Appeal in 1999. The court rejected the argument that the appellant ought to first exhaust the appeal process set out in the corrections and conditional release regulations noting that “it is not certain that the constitutional validity of the practice or policy could have been ruled upon in the grievance processes.” Since Sweet was decided, the courts have recognized that administrative tribunals have the jurisdiction to determine issues of law including constitutionality. On this point, we rely on Nova Scotia (Workers Compensation Board) v. Martin, 2003 SCC 54, 2 SCR 504 at paras. 33-41.

[19] As a result of this more recent decision of the Supreme Court of Canada in Nova Scotia, the Applicant’s argument that the Fire Safety Commission lacks the expertise to decide what he says is a question of law has no merit.

[20] For all of these reasons, we dismiss the application.

MORAWETZ RSJ.

[21] I have endorsed the Application Record as follows: “For oral reasons delivered the Application for Judicial Review is dismissed as being premature. Costs to the Respondent in the amount of $5,000.00 inclusive of disbursements and applicable taxes.”

C. HORKINS J.

I agree

MORAWETZ RSJ.

I agree

TZIMAS J.

Date of Reasons for Judgment: April 11, 2018 Date of Release: April 12, 2018

CITATION: Norquay Campus Properties Ltd. v. Office of the Fire Marshal and Emergency Management, 2018 ONSC 2361

DIVISIONAL COURT FILE NO.: 503/17 DATE: 20180411

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MORAWETZ RSJ, C. HORKINS and TZIMAS JJ.

BETWEEN:

NORQUAY CAMPUS PROPERTIES LTD. Applicant

– and –

OFFICE OF THE FIRE MARSHAL AND EMERGENCY MANAGEMENT Respondent

ORAL REASONS FOR JUDGMENT

C. HORKINS J.

Date of Reasons for Judgment: April 11, 2018 Date of Release: April 12, 2018