City of Kitchener Fire Department v. Terrace Good, 2015 CanLII 106163

FIRE SAFETY COMMISSION

DATE: 2015-12-17

FILE: 9520/FSC

CASE NAME: City of Kitchener Fire Department v. Terrace Good

IN THE MATTER OF AN APPEAL UNDER 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

City of Kitchener Fire Department (Richard Brooks, Fire Prevention Officer) Appellant

-and-

Terrace Good Respondent

ORDER AND REASONS

ADJUDICATORS: Tammy O'Neill, Vice-Chair, Presiding Member Doug Ritcey, Member Jeroen Louwers, Member

APPEARANCES:

For the Appellant: Richard Brooks, Kitchener Fire Department Corinn (Cory) Shantz, Counsel for the Appellant

For the Respondent: Self-represented

Heard in Kitchener: September 17, 2015

ORDER AND REASONS

I. OVERVIEW

1. Richard Brooks, Fire Prevention Officer, with the Kitchener Fire Department (the “Appellant”), issued an Inspection Order to Terrace Good (the “Respondent”) under the Fire Protection and Prevention Act, 1997 (the “Act”). The Inspection Order related to an apartment building owned by the Respondent.

2. The Inspection Order required the Respondent to make repairs and take steps directed at various fire safety matters, including fire separations, combustible materials, exit signage, emergency lighting, fire extinguishers and fire alarms. The work required in the Inspection Order was not completed. The Ontario Court of Justice convicted the Respondent and issued a Probation Order requiring him to remedy all deficiencies contained in the Inspection Order on or before January 19, 2016.

3. The Appellant applied to the Commission for an order authorizing the Fire Department to complete the work set out in the Inspection Order. At the start of the hearing, the Appellant and Respondent submitted Minutes of Settlement to the Commission that resolved the outstanding issues. Summarizing, the Minutes of Settlement provided the Respondent until January 19, 2016 to correct all of the deficiencies identified in the Order. If he does not complete the work on or before that date, the Minutes of Settlement provided that the Fire Department has authority to complete the work outlined in the Order.

4. In this case, the Commission has determined that the measures contained in the Inspection Order are necessary to ensure fire safety. The Commission also finds that there are grounds to authorize the Fire Department to complete the work in the event Mr. Good does not do so on or before January 19, 2016, as outlined in the Minutes of Settlement signed by the parties.

II. BACKGROUND FACTS

5. The property referenced in the Inspection Order is an apartment building owned by the Respondent. It is a three storey residential building that provides housing for 22 people. It contains eleven units with seven units coming off the front stairway and four units coming off the back stairway. There is a central stair that provides a second means of exit for all of these units.

6. On February 12, 2014, the Appellant served the Respondent with an Inspection Order under s. 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”. Subsection 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.

7. The Inspection Order served by the Appellant identified the following reasons, as specified in Appendix A of the Order:

8. 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 separation shall be repaired so that the integrity of the fire separation is maintained.

Comment: The fire separation in the ceiling outside the boiler rooms shall be repaired.

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.

Comment: The door to Unit 1 shall have a fire rated peep hole glass re-installed.

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.

Comment: All fire rated doors shall be tested, adjusted and maintained to ensure they close and latch upon release. All gapping shall be reduced to 6mm clearance beneath and not more than 3 mm at the top and sides.

4. Accumulation of combustible material comply with Fire Code 213/07, Div. B 2.4.1.1 (2).

Combustible materials, other than those for which the location, room or space is designed, shall not be permitted to accumulate in any part of an elevator shaft, ventilation shaft, means of egress, service room or service space.

Comment: All combustible items shall be removed from the back stairway.

5. Means of egress comply with Fire Code O. Reg. 213/07, Div. B 2.7.1.7(1).

Means of egress shall be maintained in good repair and free of obstructions.

Comment: All items shall be removed from the back stairway.

6. Exit signs comply with Fire Code O. Reg. 213/07, Div. B 2.7.3.2.

Exit signs shall be illuminated, externally or internally, as appropriate for each sign's design, while the building is occupied.

Comment: Ensure all exit signs are functioning properly.

7. Emergency lighting comply with Fire Code O. Reg. 213/07, Div. B 2.7.3.3.

Emergency lighting shall be checked monthly for operation, inspected monthly to ensure connections are clean, tight and corrosion free, and tested monthly to ensure the unit will provide the lighting duration required in emergency situations.

Comment: Ensure all emergency lighting throughout building is working properly and yearly documentation is provided.

8. Portable extinguishers comply with Fire Code O. Reg. 213/07, Div. B 6.2.7.2.

Portable extinguishers shall be inspected monthly.

Comment: Ensure extinguishers are inspected and documented on a monthly basis.

9. Separations of openings in fire separations comply with Fire Code O. Reg. 213/07, Div. B 9.5.2.8 (2).

Openings in fire separations having a 30 min fire-resistance rating shall be protected with closures having a 20 min fire-protection rating.

Comment: All door assemblies in the back stairways shall be replaced with 20 min. fire rated doors.

10. Stairway separations comply with Fire Code O. Reg. 213/07, Div. 9.5.3.3 (3).

Closures in stairway fire separations shall be equipped with self-closing devices.

Comment: All fire rated doors opening onto the stairway shall have self-closers installed to ensure the door closes and latches upon release.

11. Fuel-fired appliance service rooms comply with Fire Code O. Reg. 213/07, Div. B 9.5.2.10(1)

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 400m2.

Comment: The boiler rooms shall have both door assemblies replaced with 45 min fire rated doors.

12. Stairway separations comply with Fire Code O. Reg. 213/07, Div. B 9.5.3.3 (2)

Each exit stairway shall be separated from the remainder of the building by a fire separation having a 30 min fire-resistance rating.

Comment: The back stairway needs to have a fire separation installed to protect the stairway.

13. Exit signs comply with Fire Code O. Reg. 213/07 Div. B 9.5.3.5.(1)

Each exit door, except for the main entrance to a building, dwelling unit or suite, shall have an exit sign where the building serves a building exceeding 2 storeys in building height.

Comment: The back exit shall have exit signs installed.

14. Emergency lighting comply with Fire Code O. Reg. 213/07, Div. B 9.5.3.9 (1)

Emergency lighting shall be provided in exit stairways, public corridors and other principle access to exits where the occupant load in a building exceeds 24 persons or there are more than 10 dwelling units.

Comment: Emergency lighting shall be provided in all stairways.

15. Fire alarm requirements comply with Fire Code O. Reg. 213/07, Div. B 9.5.4.1.(1)

16. Fire alarm shall comply with Div. B - 9.5.4.1

(1) A fire alarm system shall be installed in accordance with Articles 3.2.4.2. to 3.2.4.6, 3.2.4.8., 3.2.4.9., and 3.2.4.17., and Sentences 3.2.7.8 (1) to (4) of the 1990 Building Code, where

(a) the building is greater than 3 storeys in building height, or

(b) sleeping accommodation is provided for more than 10 persons.

(2) A building not greater than 3 storeys in building height that contains not more than 10 dwelling units and provides sleeping accommodation for not more than 24 persons is deemed to be in compliance with Sentence (1) where the building is equipped with

(a) smoke alarms in accordance with Article 9.5.4.4., installed and interconnected so that the actuation of any smoke alarm will sound a similar signal in each of the interconnected devices, and

(b) a manual pull station at each exterior exit door for the actuation of the smoke alarms in Clause (a).

(3) A building is deemed to be in compliance with Sentence (1) where

(a) each exit and public corridor is shared by not more than four dwelling units or not more than 10 persons in boarding, lodging, rooming or dormitory accommodation, or

(b) each dwelling unit and suite has direct access to outdoors by a door near ground level.

Comment: This is a three storey apartment building with one pull station at the main entrance. There are hard wired smoke alarms on alternating stair landings. These are not interconnected and this is the only audible device to alert the tenants. There is no remote annunciator or audible trouble signal device at the front door. The existing system is not zoned. The property has 12 units and occupancy for 24 persons and requires a full fire alarm system.

8. The work required in the Inspection Order was not completed.

9. On May 19, 2015, the Respondent was charged and convicted by the Ontario Court of Justice in a proceeding commenced by information. A Probation Order was issued against the Respondent stating that “All deficiencies related to these charges and identified by the Fire Department Inspectors will be remedied on or before January 19, 2016”. A copy of the Probation Order is attached and marked as Appendix A.

10. Prior to the commencement of the hearing, the Appellant and Respondent submitted Minutes of Settlement signed by both parties to resolve the outstanding issues. A copy of the Minutes of Settlement is attached and marked as Appendix B.

III. POWERS OF THE COMMISSION

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

12. 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.

13. The Commission may grant an order under section 33(1) only if it finds that the required grounds exist 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. ISSUES

14. In this case, the Commission must determine:

(a) 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; and

(b) whether there are sufficient grounds to authorize the Appellant to complete the work required in the Inspection Order.

V. REASONS

15. Paragraph 3 of the Minutes of Settlement provides that Mr. Good has until January 19, 2016 to correct all the deficiencies outlined in the Probation Order, and requires that he advise the Appellant when the work is completed. Paragraph 3 goes on to confirm that Mr. Good consents to the issuance of an order by the Commission authorizing the Appellant to complete the work required under the Inspection Order if Mr. Good has not completed the work by January 19, 2016.

16. The Commission accepts the Minutes of Settlement filed by the parties as an acknowledgement by the Respondent that grounds exist under s.33(4)(a)(i), (ii), (iii), (b) of the Act to grant an order authorizing the Appellant to undertake the work required by the February 12, 2014 Inspection Order.

17. The Commission finds that the Minutes of Settlement agreement reached between the parties is fair, reasonable and in the public interest. The measures contained in the Inspection Order and the Minutes of Settlement are necessary to ensure fire safety and will significantly improve the level of fire safety for the occupants of the apartment building and fire emergency responders.

VI. ORDER

18. The Commission grants the application and authorizes the Appellant to complete, on or after January 20, 2016, all work set out in the Inspection Order dated February 12, 2014, if the Respondent does not remedy all deficiencies on or before January 19, 2016.

Tammy O'Neill, Vice-Chair, Presiding Member

Doug Ritcey, Member

Jeroen Louwers, Member

Issued: December 17, 2015