FIRE SAFETY COMMISSION
FILE: 9511/FSC and 9512/FSC
CASE NAME: Mennonite Brethren Senior Citizens Home v. City of St. Catharines Fire Services
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
Mennonite Brethren Senior Citizens Home Appellant
-and-
City of St. Catharines Fire Services (Jim Somerville, Assistant to the Fire Marshal) Respondent
ORDER AND REASONS
ADJUDICATORS: Tammy O'Neill, Vice-Chair, Presiding Member Doug Ritcey, Member Eleanor White, Member
APPEARANCES:
For the Appellant: Patrick J. Kraemer, Counsel
For the Respondent: David Wood, Fire Chief, St. Catharines Fire Services Stacey Wells, Counsel
Heard in St. Catharines: September 28, 2015
ORDER AND REASONS
I. INTRODUCTION
1This hearing is an appeal by Mennonite Brethren Senior Citizens Home (the “Appellant”) of two Review Decisions of the Fire Marshal's delegate of the Office of the Fire Marshal and Emergency Management.
2The Review Decisions related to two properties located at 3 and 5 Tabor Drive in St. Catharines. The Review Decisions upheld Inspection Orders, applying to each of the two addresses, made by the Fire Marshal's delegate, Jim Somerville, an assistant to the Fire Marshal with the City of St. Catharines (the “Respondent”).
3The issue for the Fire Safety Commission (the “Commission”) in this appeal 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.
4It is the decision of the Commission that 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.
II. BACKGROUND FACTS
5The properties referenced in the Orders were constructed in the mid 1990's. 3 Tabor Drive contains 62 apartments and is four storeys in height plus a basement. The basement contains maintenance, storage, laundry, electrical, mechanical rooms, but contains no residential suites. The building basement also contains a kitchen and common dining rooms, and Doctor's office and Home Support Services room. The building is not sprinklered, and no full time staff is stationed within it. 5 Tabor Drive contains 58 apartments and is four storeys in height plus a basement. The basement contains maintenance, storage, laundry, electrical, mechanical and vacant rooms but contains no residential suites. The basement also includes a kitchen and common dining rooms. The building is not sprinklered, and no full time staff is stationed within it.
6On January 22, 2015, the Respondent served the Appellant with Inspection Orders under section 21(1) (g) of the Fire Protection and Prevention Act, 1997 (“FPPA”). Briefly that section allows an inspector to order the owner or occupant of the land or premises “to remedy any contravention of the Fire Code”. Section 21(1) reads, in part, 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;
(g) to remedy any contravention of the fire code.
7The Orders served by the Respondent identified the following reasons, as specified in Appendix A of the Orders:
- Division B – 2.8.2.2. (1) There shall be sufficient supervisory staff available in care or detention occupancies to carry out the duties as required in the fire safety plan.
Contravention:
As a result of the inadequate built in protection measures for the current use of the building a person or persons in the building or facility will be exposed to an unacceptable risk of injury due to a fire.
The buildings’ early warning systems do not provide for adequate early warning to allow staff to facilitate emergency response as outlined in the Office of the Fire Marshal and Emergency Management (OFMEM) technical guideline, “TG-01-2013, Staffing Levels in Care and Treatment Occupancies and Retirement Homes”, as demonstrated during the witnessed fire drill completed on December 22, 2014, which would delay or impeded occupants from moving to a safe place during a fire emergency.
8The Orders served by the Respondent required the following, as specified in Appendix B of the Orders:
- It is ordered that the following work must be completed:
As a result of the approved fire drill scenario carried out, staff could not evacuate residents in the specified building area in the approved time.
Provide additional staffing, building alterations or other measure to meet approved time available to evacuate residents to point of safety.
The Orders prescribed a compliance date of May 29, 2015.
9The Appellant requested a Review of the Order dated January 22, 2015, in a letter to the Office of the Fire Marshal dated January 22, 2015.
10The Decision of the Fire Marshal dated March 24, 2015, was to uphold the Order and required compliance with the Order by May 29, 2015.
11The Fire Marshal's decision to uphold the Order stated the following reasons:
While the Inspector classified the facility as a care and treatment occupancy, this was apparently based on medications being administered. From the description of the use of the apartments, the occupancy type is a care occupancy based on the current definitions in the Fire Code as follows:
Care occupancy means an occupancy in which special care is provided by a facility, directly through its staff or indirectly through another provider, to residents of the facility
(a) who require special care because of cognitive or physical limitations, and
(b) who, as a result of those limitations, would be incapable of evacuating the occupancy, if necessary, without the assistance of another person.
Based on information from both the Inspector and the Appellant, the buildings have many residents living here because they require special care because of cognitive or physical limitations, such as the provision of meals, assistance with ambulation, administration of prescription medication, and assistance with bathing. In addition, the Inspector identified that during the fire drill many occupants required assistance to evacuate and would not have been able to independently evacuate in the time limit dictated by the building features.
As such, reference to Article 2.8.2.2. in its entirety applies:
2.8.2.2. (1) There shall be sufficient supervisory staff available in care occupancies, care and treatment occupancies, detention occupancies and retirement homes to carry out the duties required in the fire safety plan.
12The Appellant filed an appeal with the Commission on April 1, 2015.
13Prior to the commencement of the hearing, the Appellant and Respondent submitted a Terms of Resolution executed by both parties to resolve the outstanding issues. A copy of the Terms of Resolution is attached and marked as Exhibit 4.
III. POWERS OF THE COMMISSION
14Under s. 26(6) of the FPPA, the 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 Inspection Order are necessary to ensure fire safety on the land and premises that are the subject of this hearing.
V. REASONS
16In this case, the parties filed Terms of Resolution with the Commission at the beginning of the hearing. The Commission accepts the Terms of Resolution filed and the classification of the buildings as Group B Division 3, care occupancies. The buildings are subject to the relevant provisions in Ontario Regulation 213/07 (“Fire Code”) and the OFMEM technical guideline TG-01-2013 “Staffing Levels in Care and Treatment Occupancies and Retirement Homes”.
17The Commission finds that the Terms of Resolution agreement reached between the parties is fair and reasonable and the measures contained in the Terms of Resolution and the Inspection Orders are necessary to ensure fire safety and will significantly improve the level of fire safety for the occupants and fire emergency responders.
VI. ORDER
18The Commission upholds and amends the Order as follows:
(a) the Appellant shall install and have operational in accordance with all applicable regulations, a fully addressable fire alarm system in the Buildings (the “Fire Alarm”) enabling evacuation of the occupants, compliance with the approved fire drill scenario and compliance with sentence 2.8.2.2.(1) of Ontario Regulation 150/13 on or before January 31, 2016, subject to best efforts to meet all tendering and construction requirements and obtaining all required governmental and municipal approvals;
(b) the Appellant shall provide the Respondent with a verification report of the Fire Alarm to the satisfaction of the Respondent on or before January 31, 2016;
(c) the Appellant shall provide to the Respondent a compliance schedule including timelines related to completion of drawings, application for building permit, awarding of contract for installation and such compliance schedule shall be provided to the Respondent on or before October 9, 2015;
(d) The Appellant shall provide written notice to the Respondent of any unforeseen delays in compliance with paragraphs 1(a) and 1(b) above;
(e) the Appellant shall provide a fire watch every hour, twenty-four hours per day, 7 days per week in the Buildings until such time as the alarm system contemplated in paragraph (a) above has been completed;
(f) the Appellant confirms and acknowledges that the Buildings are classified as Group B Division 3, care occupancies pursuant to the Fire Code, and that the Buildings are accordingly subject to the provisions in Ontario Regulation 213/07 as amended governing care occupancies; and
(g) the Appellant shall distribute the pamphlet entitled “No Time To Spare” to the occupants of the Buildings, such pamphlets shall be provided by the Respondent, the Appellant shall arrange an educational information meeting for the occupants of the Buildings on the pamphlet, and such educational information meeting shall be given by the representatives of the Respondent.
Tammy O'Neill, Vice-Chair, Presiding Member
Doug Ritcey, Member
Eleanor White, Member
Released: November 25, 2015