Kitchener Fire Department v. Charlie Vanezi, 2015 CanLII 104367

FIRE SAFETY COMMISSION

DATE: 2015-02-25

FILE: 9177/FSC

CASE NAME: Kitchener Fire Department v. Charlie Vanezi

IN THE MATTER OF AN APPLICATION FOR AUTHORIZATION TO DO WORK pursuant to section 33(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997,c. 4, and the Ontario Fire Code, O. Reg. 213/07

Kitchener Fire Department (Richard Brooks, Fire Prevention Officer) Applicant

-and-

Charlie Vanezi Respondent

AMENDED ORDER AND REASONS

ADJUDICATORS: Tammy O'Neill, Vice-Chair, Presiding Member Eleanor White, Member David Hopper, Member

APPEARANCES:

For the Applicant: Richard Brooks, Kitchener Fire Department Phil Mellor, Kitchener Fire Department

For the Respondent: Charlie Vanezi

Heard in Kitchener: February 6, 2015

AMENDED ORDER AND REASONS

I. INTRODUCTION

1. This is an application by Richard Brooks, Fire Prevention Officer, on behalf of the Kitchener Fire Department (the “Applicant”), for an order authorizing work to be done, as required in two Inspection Orders made under subsection 21(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (the “Act”).

II. BACKGROUND FACTS

2. The property referenced in the Inspection Orders is a three storey residential building approximately 120 years old. It was originally a single family home and has been turned into a residential apartment building. It contains eight units. At the front of the building, there is a door that gives access to six of these units. There are two units on the third floor, two on the second floor and two on the first floor. At the back of the building, there is access to the two basement apartments. On the south side of the building, there is access to one of the first floor units that is also the Respondent’s unit. There is one central stairway giving access to the six units at the front of the house with each unit door coming directly off this stair.

3. Charlie Vanezi (the “Respondent”) is the owner of the premises and resides in a unit on the first floor.

4. The Respondent was served with an Inspection Order issued under subsection 21(1) of the Act on October 8, 2013. The work required in the Inspection Order was not completed.

5. The Respondent was served with a second Inspection Order issued under subsection 21(1) of the Act on January 23, 2014. The work required in the Inspection Order was not completed.

III. POWERS OF THE COMMISSION

6. The Commission must decide if there are sufficient grounds to authorize the Applicant to complete the work required in the Inspection Orders pursuant to subsection 33(1) of the Act.

7. The Act provides that the fire inspector may make an application to the Commission under section 33(1) for an order authorizing the inspector to do the work that was required to be done under the inspection order. Section 33(1) of the Act states:

33 (1) If an order made under subsection 21(1) or (2) or section 25 or 26 requires a thing to be done, an inspector may apply to the Fire Safety Commission for an order authorizing him or her to cause the thing to be done.

8. The Commission may grant an order under section 33(1) only if it finds that there exists the required grounds as outlined in section 33(4) of the Act. Section 33(4) provides as follows:

33 (4) The Fire Safety Commission may authorize the inspector to cause to be done anything required to be done by an order made under subsection 21 (1) or (2) or section 25 or 26 if,

(a) the person required by the order to do the thing,

(i) has refused to comply with or is not complying with the order,

(ii) is not likely, in the Commission's opinion, to comply with the order promptly,

(iii) is not likely, in the Commission's opinion, to carry out the order competently, or

(iv) requests the assistance of the inspector in complying with the order; and

(b) In the Commission's opinion, failure to do the thing would seriously endanger the health or safety of any person or the quality of the natural environment for any use that can be made of it.

IV. ISSUE

9. The issue the Commission must decide is whether the measures contained in the Inspection Orders are necessary to ensure fire safety on the land and premises that are the subject of this hearing.

V. THE POSITION OF THE PARTIES

The Applicant

10. The Applicant gave evidence that an Inspection Order issued under subsection 21(1) of the Act was served to the Respondent on October 8, 2013, requiring the following:

It is ordered that:

1. Fire separations comply with Fire Code O. Reg. 213/07 Div B. 2.2.2.1

Where fire separations between rooms, corridors, shafts and other spaces are damaged so as to affect the integrity of their fire-resistance rating, the damaged fire separations shall be repaired so that the integrity of the fire separations is maintained.

2. Door closures comply with Fire Code O. Reg. 213/07 Div B. 2.2.3.1

Where closures are damaged so as to affect the integrity of their fire-protection rating, the damaged closure shall be repaired so that the integrity of the closures is maintained.

3. Door closures comply with Fire Code O. Reg. 213/07 Div B. 2.2.3.2.(c)

Closures in fire separations shall be maintained to ensure they are operable at all times by making necessary adjustments and repairs to door hardware and accessories to ensure proper closing and latching.

4. Extinguishers shall comply with Fire Code O. Reg. 213/07 Div B. 6.2.4.3.

Portable extinguishers having a gross weight of 18 kg or less shall be installed so that the top of the extinguisher is not more than 1.5 m above the floor.

5. Extinguishers shall comply with Fire Code O. Reg. 213/07 Div B. 6.2.7.1

Maintenance and testing of portable extinguishers shall be in conformance with NFPA 10, “Portable Fire Extinguishers”.

6. Extinguishers shall comply with Fire Code O. Reg. 213/07 Div B. 6.2.7.2.

Portable extinguishers shall be inspected monthly.

7. Interconnected smoke alarms shall comply with Fire Code O. Reg. 213/07 Div B. 6.3.2.6.

(2) Interconnected smoke alarms shall be tested and maintained in operating condition in conformance with CAN/ULC-S552.

(7) Monthly and annual tests shall be recorded and kept in accordance with Article 1.1.2.1.

8. Interconnected smoke alarms shall comply with Fire Code O. Reg. 213/07 Div B. 6.3.3.2.

Smoke alarms shall be maintained in operating condition by owner.

9. Fuel-fired appliance service room shall comply with Fire Code O. Reg. 213/07 Div B. 9.5.2.10.

Fuel-fired appliances shall be enclosed in a service room separated from the remainder of the building by a fire separation having a 45 min fire-resistance rating where the building height is greater than 2 storeys or the building area is greater than 400 m².

10. Storage rooms shall comply with Fire Code O. Reg. 213/07 Div B. 9.5.2.9.(1)

Storage rooms for the use of occupants, not contained within a dwelling unit or suite

(a) shall be separated from the remainder of the building by a fire separation having a 45 min fire-resistance rating, and

(b) shall be (i) sprinklered, or (ii) subdivided into areas not exceeding 150 m² by fire separations having a 45 min fire-resistance rating and equipped with fire detectors connected to the fire alarm system.

11. Exiting shall comply with Fire Code O. Reg. 213/07 Div B. 9.5.3.2.(1)

Each floor area shall be served by a minimum of two exits.

12. Fire alarm requirements shall comply with Fire Code O. Reg. 213/07 Div B. 9.5.4.1.(2)

A building not greater than 3 storey in building height that contains not more than 10 dwelling units and provides sleeping accommodation for not more than 24 persons shall be equipped with a pull station at each exterior exit door for the actuation of the smoke alarm.

The work in this Order was to be completed by January 6, 2014.

11. The Applicant gave evidence that a second Inspection Order issued under subsection 21(1) of the Act was served on the Respondent on January 23, 2014, requiring the following:

It is ordered that:

1. Protection of openings in fire separations shall comply with Fire Code O. Reg. 213/07 Div. B Sentence 9.5.2.8

Closures shall be in accordance with the requirements of the 1990 Building Code.

2. A fire safety plan be prepared, approved and implemented for this residential occupancy. Fire Code O. Reg. 213/07 Div. B Sentence 2.8.2.1(2).

The work in this Order was to be completed by April 6, 2014.

12. The Applicant provided photographic evidence taken on November 14, 2014 that showed the violations set out in the Inspection Orders. The Applicant stated that although the first Inspection Order was issued over a year ago there had been no compliance to date.

13. The Applicant provided evidence that a Summons was issued under section 24 of the Provincial Offences Act, in the Ontario Court of Justice, charging the Respondent with failing to comply with Inspection Orders made under section 21 of the Act. The first appearance date was set for May 5, 2014. After several adjournments, a Justice of the Peace heard the matter on January 23, 2015. The Justice of the Peace adjourned the matter for sentencing and ordered the Respondent to complete the work by May 29, 2015.

14. The Applicant provided further testimony that the Respondent has completed some of the violations on the Inspection Orders over the past two months, but the majority of violations have not been completed. The Applicant has attempted to work with the Respondent to bring the building into compliance with the Fire Code but has not had any success in getting the Respondent to correct the serious life safety hazards present in the building.

The Respondent

15. The Respondent provided testimony that he has completed some of the items required in the Inspection Orders and stated that the remaining items would be completed by May 29, 2015, as ordered by the Justice of the Peace, Ontario Court of Justice.

16. The Respondent gave further testimony that failure to complete all violations set out in the Inspection Orders was as a result of personal financial constraints.

VI. REASONS

17. The Commission accepts the evidence and testimony of the Applicant and finds that there exists grounds under s. 33(4)(a)(i)(ii)(iii) and (b) of the Act to grant an Order authorizing the Applicant to undertake the work required by Inspection Orders dated October 8, 2013 and January 23, 2014.

18. The Commission further accepts the evidence of the Applicant that although some of the violations in the Inspection Orders have been completed there remain many items still outstanding that pose a severe threat to life and safety for the occupants and fire emergency responders should a fire occur.

VII. ORDER

19. The Commission hereby grants the Order authorizing the Applicant to carry out the work set out in the Inspection Orders.

20. Compliance with the Order shall be initiated immediately with completion by July 1, 2015.

Tammy O’Neill, Vice-Chair, Presiding Member

Eleanor White, Member

David Hopper, Member

Issued: February 25, 2015