Jefford v. South River Machar Fire Department, 2015 CanLII 104365

FIRE SAFETY COMMISSION

DATE: 2015-12-02

FILE: 9773/FSC

CASE NAME: Jefford v. South River Machar Fire Department

IN THE MATTER OF AN APPEAL UNDER SECTION 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, and the Ontario Fire Code, O. Reg. 213/07

Art Jefford Appellant

-and-

South River Machar Fire Department Respondent

ORDER AND REASONS

ADJUDICATORS: Tammy O'Neill, Vice-Chair, Presiding Eleanor White, Member Jeroen Louwers, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Risto Maki, Chief, South River Machar Fire Department

Heard by teleconference: October 21, 2015

ORDER AND REASONS

I. INTRODUCTION

1. Art Jefford (the “Appellant”) appealed the Review Decision of the Fire Marshal's delegate dated July 31, 2015 (the “Review Decision”), of the Office of the Fire Marshal and Emergency Management (“OFMEM”).

2. The Review Decision upheld the Inspection Order (the “Order”) made by Risto Maki of South River Machar Fire Department (the “Respondent”) with respect to the premises located at 15 Maple Street, South River, Ontario (the “premises”), owned by the Appellant.

3. The issue for the Fire Safety Commission (the “Commission”) in this appeal is whether the measures contained in the Order are necessary to ensure fire safety on the land and premises that are the subject of this hearing.

4. For the reasons that follow, the Commission dismisses the appeal and confirms the Order and amends the Order with respect to compliance date.

II. BACKGROUND

5. Chief Risto Maki (the “Inspector”) of South River Machar Fire Department conducted an inspection of the premises on April 2, 2015, and served an Order on Edythe Anne Gunby on April 8, 2015, under the authority of s. 21(1)(g) of the Fire Protection and Prevention Act, 1997 (the “FPPA”). Briefly, that section allows an inspector to order the owner or occupant of land or premises “to remedy any contravention of the Fire Code”. Section 21(1) reads as follows:

21. (1) An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant,

(a) to remove buildings or structures from the land or premises;

(b) to make structural repairs and other repairs or alterations, including material alterations, to the buildings or structures;

(c) to remove combustible or explosive material or any thing that may constitute a fire hazard;

(d) to install and use specified equipment or devices as may be necessary to contain hazardous material on the land or premises and, in the event of a fire, to remove or transport the material;

(e) to discontinue the manufacturing, production or fabrication of any material, device or other thing that creates or poses an undue risk of fire or explosion;

(f) to do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan;

(g) to remedy any contravention of the fire code.

6. Under section 25 of the FPPA, the Appellant filed a request for a review of the Order, as received by the Fire Marshal on May 1, 2015.

7. The Order indicates the following reasons (extracted) for the work prescribed:

The building and/or the premises are in contravention of the Ontario Fire Code O. Reg. 213/07, as amended. Furthermore, the building consists of a single storey family dwelling unit approximately 78 square meters in size, combustible construction.

8. The Order served by the Inspector identifies the following work to be done:

APPENDIX A:

1. To reduce the probability that combustible materials located inside a building will be ignited, which could lead to a fire or the spread of fire, which could lead to harm to persons. Fire Code O. Reg. 213/07, as amended Div. B Article 2.4.1.1.(1)

Direction: Excess combustible materials stored in the front porch area and front bedroom area must be removed. The combustible materials would hamper the egress and increase the potential of injury or loss of life as a result of a fire. The excess materials would also greatly increase the fuel load of a fire as well as significantly increase the intensity of a fire.

9. The Order prescribed a compliance date of April 30, 2015.

10. The Fire Marshal’s Review Decision upheld the Order. The Fire Marshal's Decision dated July 31, 2015, stated:

For the purposes of this Decision, completion of the following actions is deemed to constitute compliance with the Order:

1. Remove combustibles in the building to maintain a minimum distance of 1 m from all ignition sources, to ensure that there is no accidental ignition. Examples of ignition sources include, but are not limited, to baseboard heaters, space heaters and cooking appliances.

2. Provide access to exit from all floor areas with a minimum 1 m clearance throughout the building. The access route must be clear of any obstructions from floor through to ceiling, with the intent to provide a safe means of egress for the occupant(s) and emergency responders.

3. Remove combustibles a distance of at least 1 m from the ceiling to ensure adequate clearance for smoke alarm(s) operation.

The work in the Order shall be completed by August 31, 2015.

11. On August 28, 2015, the Appellant submitted an appeal of the Review Decision to the Commission.

III. POWERS OF THE COMMISSION

12. The Commission may confirm, amend or rescind the Review Decision of the Fire Marshal or make such other order, as the Commission deems appropriate.

IV. ISSUE

13. The issue the Commission must decide is whether the measures contained in the Fire Marshal's Review Decision are necessary to ensure fire safety on the land and premises that are the subject of this appeal.

V. THE POSITIONS OF THE PARTIES

The Appellant

14. The Appellant provided written submissions and testified that the Inspector did not have a right to enter the premises for the purpose of conducting the inspection. It is clear from oral testimony and written submissions that the Appellant has serious concerns about the entry and inspection of private homes by fire officials. Testimony and documents filed in the appeal included comments and concerns on the part of the Appellant regarding lack of privacy and private property rights, allegations of trespass and concerns regarding entry, search and seizure. Documents filed in the appeal also include reference to alleged violations of the Bill of Rights, Charter of Rights and Freedoms and other Charter documents including the Magna Carta.

15. The Appellant gave further testimony that he considers his home “a shelter enclosure protected from the exterior elements or environment” and disputes the evidence of the Respondent that the premises is in relatively poor condition.

The Respondent

16. It is the evidence of the Respondent that the premises is a single storey detached house with no basement and is in relatively poor condition.

17. The Respondent submitted photographic evidence showing the accumulation of excessive combustible materials including furniture, mattresses, clothing and boxes piled to the ceiling in the enclosed front porch area and also in the bedroom next to the porch. The Respondent submitted further submissions that the piles that were visible extended to the ceiling and filled the entire porch with the exception of a small pathway to the front door.

18. The Respondent provided testimony that the means of egress was limited in the front porch area, the bedroom and rear of the building due to excessive combustibles. The Respondent provided further evidence that this poses a severe threat to life and safety for occupants and emergency responders should a fire occur.

19. The Respondent provided further submissions that the Order was issued to mitigate the access and egress issues. The excess combustible materials stored in the front porch area would greatly increase the fuel load and reduce the time to escape.

VI. REASONS

20. The Commission accepts the evidence of the Respondent regarding the presence of combustible materials and the lack of egress. The Commission notes that the testimony of the Inspector on these issues was supplemented by photographs which clearly showed the accumulation of excessive combustibles and impeded egress.

21. The Appellant did not provide any arguments with respect to the excessive combustibles and impeded egress. The Appellant’s appeal was based on concerns with the Inspector's right to enter the premises to conduct the inspection.

22. While it is clear that the Appellant feels very strongly about matters relating to the powers of government officials to enter and inspect a private home, the Commission finds that the Inspector had full authority to inspect the property under s. 19 of the FPPA. The FPPA is a regulatory statute that is concerned with protecting the public. The FPPA provides a legal framework that allows certain fire officials to enter and inspect properties to ensure compliance with the FPPA and the Fire Code. While the FPPA contains provisions for warrant-less entry for the purpose of conducting a fire safety inspection, we note that in this case the Respondent obtained a warrant authorizing entry and inspection of the Appellant's property under s. 20(1) of the FPPA. We are satisfied that the Inspector had authority to enter and inspect the premises under the FPPA.

23. Based on the evidence before us, the Commission concludes that the measures contained in the Order are necessary to protect the safety of occupants and emergency responders in the event of a fire emergency and that the measures contained in the Order are necessary to ensure fire safety on the land and premises that are the subject of this appeal.

24. The appeal is dismissed.

VII. ORDER

25. The Commission confirms the Review Decision of the Fire Marshal and orders the following:

1. Remove combustibles in the building to maintain a minimum distance of 1 m from all ignition sources, to ensure that there is no accidental ignition. Examples of ignition sources include, but are not limited to, baseboard heaters, space heaters and cooking appliances.

2. Provide access to exit from all floor areas with a minimum 1 m clearance throughout the building. The access route must be clear of any obstructions from floor through to ceiling, with the intent to provide a safe means of egress for the occupant(s) and emergency responders.

3. Remove combustibles a distance of at least 1 m from the ceiling to ensure adequate clearance for smoke alarm(s) operation.

The Commission amends the compliance date. The work in the Order shall be completed by December 30, 2015.

26. The Commission further orders, under the authority of section 26(6) of the Fire Protection and Prevention Act, 1997, that the Order be amended to be issued pursuant to clause (f) of s. 21(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4.

Tammy O’Neill, Vice-Chair, Presiding Member

Eleanor White, Member

Jeroen Louwers, Member

Issued: December 2, 2015