FIRE SAFETY COMMISSION
FILE: 9234/FSC
CASE NAME: Huecking v. City of Belleville 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
Walter Huecking Appellant
-and-
City of Belleville Fire Department (John Lake, Senior Fire Prevention Inspector) Respondent
ORDER AND REASONS
ADJUDICATORS: Tammy O’Neill, Vice-Chair, Presiding Member Isaac Lallouz, Member Eleanor White, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Scott Harwardt, Counsel Carlton Thorne, Counsel
Heard in Belleville: January 15, 2015
ORDER AND REASONS
I. ORDER
1This hearing is an appeal by Walter Huecking (the “Appellant”) of the Review Decision of the Fire Marshal's delegate, Susan Clarke, dated November 3, 2014, (the “Review Decision”), of the Office of the Fire Marshal to the Fire Safety Commission.
2The Review Decision upheld the Inspection Order made by John Lake, an assistant to the Fire Marshal with the City of Belleville (the “Respondent”) with respect to the premises located on Front Street, Units N, O and P, Belleville, Ontario.
3It is the decision of the Fire Safety Commission (the “Commission”) to amend the Review Decision as set out below.
II. BACKGROUND
4The property referenced in the Order was constructed in the mid 1970's. The building is 3 storeys in building height, and is of combustible construction. The subject premise area is sprinklered. The current use of the building comprises business and personal services on the first two floors, and residential on the third floor. The Appellant is the tenant of Unit #N, #O and #P within the premises and does not own the property.
5The Appellant was served by the Respondent with an Inspection Order dated August 19, 2014, under the authority of Section 21 of the Fire Protection and Prevention Act, 1997 (“FPPA”). The Order was made pursuant to clause (c) of subsection 21(1) of the FPPA. The Order served by the Respondent identifies the following work to be done:
Appendix “A”: Required Action(s)
It is ordered that: “6.5.1.5 (1) No obstruction shall be placed so as to interfere with the effectiveness of water discharge from sprinklers.
Therefore: reduce the height of stored combustibles in your rental units to ensure that there is a MINIMUM clearance of 18” between the combustible materials and the sprinkler deflectors that protrude through the ceiling, as per NFPA 13 section 8.6.6.1
Be advised that an inspection was performed on the visible portions of this building. Belleville Fire Services assumes no responsibility for Ontario Fire Code violations that may be located behind walls/ceilings, in attics, crawl spaces or otherwise obscured from view. Rectification of these deficiencies is essential. You are advised to have the violations corrected forthwith.
Where applicable, the owner shall ensure compliance with all zoning bylaws and any other Provincial or Municipal regulatory standards (Building code, electrical code, etc.). The Order prescribed a compliance date of September 2, 2014.
6The Appellant requested a Review of the Order dated August 19, 2014, in a letter dated August 29, 2014, to the Office of the Fire Marshal.
7The Decision of the Fire Marshal dated November 3, 2014, was to uphold the Order and require compliance with the Order by November 24, 2014.
8The Fire Marshal’s decision to uphold the Order stated the following reasons:
The Inspector has clearly established a violation of the Fire Code by providing photographic evidence, and specified what needs to be done based on the referenced standard. While the Appellant has argued that the issue is not one of “public safety”, this argument is irrelevant as any Fire Code requirements have been deemed to be exactly that:
“The Minister may make regulations that are considered advisable or necessary for the purpose of establishing a fire code for Ontario governing fire safety standards for equipment, systems, buildings, structures, land and premises including regulations,
(c) requiring and regulating fire protection equipment and systems and respecting the maintenance of such equipment and systems;”
(Section 12, Fire Protection and Prevention Act, 1997)
The Appellant stated that he is not the owner or the renter of the premises, but an employee of the firm, and therefore requested that the order be withdrawn. Article 1.4.1.2., Division A defines “owner” as:
“Owner means any person, form or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property”.
While the Appellant is an employee of the firm occupying the rental units, documentation provided by the Inspector establishes that the Appellant has control over the contents in the rental units. The following items were provided:
A business card establishes that the Appellant is the General Manager, Broker and Financial Advisor of Eurocan Financial Corporation, and gives the same address as is on the Inspection Order.
A letter from the Appellant to the Fire Department, dated July 28, 2014, on Eurocan letterhead, and signed by the Appellant and identified as the General Manager.
An e-mail forwarded by the Inspector from the building management, confirming the Appellant has been a tenant for the past 8 years.
As General Manager of the company occupying the premises, the Appellant is considered to be in a position to control the level of combustibles to ensure that the sprinkler heads are not obstructed.
9The Appellant filed an appeal with the Commission on November 21, 2014.
10Prior to the commencement of the hearing, the Commission noted that the Appellant was in possession of a recording device. The Appellant advised the Commission that he wanted to record the hearing for his personal use. The Commission advised the Appellant that recording devices are not permitted to be used by the Appellant or the Respondent in the hearing room. The Commission further advised the Appellant that the Administrator for the Commission would be recording the proceeding and a transcript would be available to him. The Appellant advised the Commission that this was not acceptable to him and removed himself from the hearing.
11The Commission relies on the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22, specifically Section 23.(1) which states: “A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
12The Commission heard evidence from the Respondent with respect to the continuance of the hearing in the Appellant's absence. The Respondent gave testimony that this matter had originated on May 2, 2014 and poses a severe life and safety hazard to many occupants, tenants and emergency responders should a fire occur in the building. The Respondent gave further testimony that any further delay in implementing the order would be unacceptable.
13The Commission accepts the testimony of the Respondent and agreed that the hearing must proceed in the absence of the Appellant to ensure life safety on the land and premises for all occupants and fire safety personnel and that any further delay in implementing the order would be unacceptable.
III. POWERS OF THE COMMISSION
14The Commission may confirm, amend or rescind the Order of the Fire Marshal or make such other order, as the Commission deems appropriate.
IV. ISSUE
15The issue the Commission must decide is whether the measures contained in the Order of the Fire Marshal's delegate are necessary to ensure fire safety on the land and premises that are the subject of this appeal.
V. THE POSITIONS AND EVIDENCE OF THE PARTIES
The Appellant
16The Appellant submitted an Appeal to the Commission, prior to the hearing, on November 21, 2014. The Reasons stated in the Appeal were as follows:
I am appealing the order which was issued to me personally. I am not the renter of the premises in question. The Fire Inspector did not inform himself properly as to who is the renter of the premises. The renter is a corporate entity. The Fire Marshall's office made an error in fact and in law to confirm the order of the Fire Inspector which was issued to me personally. The building owner of the premises in question out of incompetence and miss-knowledge of business and law gave the wrong information to the Fire Inspector probably hoping that by doing so the Inspector would ease up on them on their own problems concerning the building. Since these premises have been occupied I have never paid the rent to the building owner. I have never issued a personal cheque to the building owner. I should not receive a personal order on this and I will not accept a personal order on this. This is not an issue whether the order and the reasons for the order are valid or not. I can certainly see mistakes in the order, but that is not the issue right now. Simply the order was issued to the wrong entity and I am not personally responsible to deal with this order. I am asking that the decision by the Office of the Fire Marshall be reversed or overturned and that the order against me personally be withdrawn. Furthermore the questionable required action in the disputed order is not an issue of public safety and there is no need of an immediate effect of the order. The order should be stayed until the withdrawal is granted by you. If you need any further clarification, please contact me.
The Respondent
17The Respondent, John Lake, an Assistant to the Fire Marshal with Belleville Fire Services gave testimony that the building was constructed in the mid 1970's. The building is 3 storeys with business and personal services on the first and second floor and residential on the third floor.
18The Respondent provided further evidence in an e-mail dated October 30, 2014 from the building management to Belleville Fire Services that stated:
Here is some basic information about Walter's tenancy at Front Street, Belleville, Ontario. Walter has been our tenant for the last 8 years. He is month to month and does not have a lease. For the first 6 1/2 years, Walter was renting Units N and O. Approximately a year and a half ago, he moved his belongings to one of our additional units, which was Unit P. Around the spring of 2014, Walter occupied an additional unit of ours, which is Unit Q, but we have not received any rent for Unit Q. We also want to emphasize that the belongings in the hallway downstairs are entirely Walter's.
19The Respondent submitted testimony and photographic evidence taken May 2, 14, 16, and 29, 2014 and July 9 and 29, 2014 demonstrating the presence of extensive amounts of combustibles in Units N, O and P during past inspections. It is the Respondent's position that these materials pose a severe threat to the safety of the occupant(s) and emergency responders.
20The Respondent provided evidence that an Inspection Order was served on the Appellant on May 9, 2014 pertaining to Unit N, O, P and Basement. The reasons for the order were as follows:
The above identified units contain an extensive amount of combustibles that would expose the occupants and fire fighters performing suppression activities to an unacceptable risk of injury, the building would be exposed to an unacceptable risk of damage, and there is a large risk of fire impacting areas beyond their point of origin. Therefore, pursuant to clause (c) of Subsection (1) of Section 21 of the Fire Protection and Prevention Act, 1997, S.O.1997, c. 4, it is ordered that “Remove a substantial amount of combustibles out of the above identified units to mitigate the above identified risk”.
The work in this Order was to be completed by June 10, 2014. The Respondent provided evidence that the work was not completed.
VI. REASONS
21The Commission accepts the evidence submitted by the Respondent and finds the Order, as amended, is necessary to protect the safety of occupant(s) and emergency responders in the event of a fire emergency.
22The Commission accepts the evidence submitted by the Respondent and finds that the Appellant is a tenant of the premises and considered to be in a position to control the removal of combustibles to ensure that the sprinkler heads are not obstructed.
VII. ORDER
23The Order is Upheld and Amended as follows:
Compliance with the Order shall be initiated immediately with completion by February 10, 2015.
Tammy O’Neill, Vice-Chair, Presiding Member
Isaac Lallouz, Member
Eleanor White, Member
Issued: January 29, 2015