J.P. Conforzi & Associates Limited Trustee v. Toronto Fire Services, 2016 CanLII 100438

FIRE SAFETY COMMISSION

DATE: 2016-04-28

FILE: 9403/FSC

CASE NAME: J.P. Conforzi & Associates Limited Trustee v. Toronto 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

J.P. Conforzi & Associates Limited Trustee Appellant

-and-

Toronto Fire Services Respondent

AMENDED ORDER AND REASONS

ADJUDICATORS: Katie Osborne, Associate Chair Tammy O'Neill, Vice-Chair Daniel Woods, Member

APPEARANCES:

For the Appellant: John Peter Conforzi, Appellant John Edward Conforzi, on behalf of the Appellant

For the Respondent: Rodney Gill, Counsel for the Respondent

Heard in Toronto: February 5, 2016

AMENDED ORDER AND REASONS

I. OVERVIEW

1. John Peter Conforzi appeals a Review Decision made by an Ontario Fire Marshal Delegate. The Review decision upheld an Inspection Order issued under the Fire Protection and Prevention Act, 1997 (the “FPPA”). The Inspection Order was issued by the Toronto Fire Services (the “Respondent”) in relation to a commercial/residential building (the “building”) owned by the Appellant.

2. Briefly, the Inspection Order stated that the building lacked certain fire prevention and safety features required under the Ontario Fire Code (the “Fire Code”). The Order required the Appellant to install various fire safety items at specified locations in the building. Summarizing, the Order required the Appellant to install interconnected smoke alarms and manual pull stations, fire protection features for certain door and window openings located near fire escapes and a fire-rated door with self-closing device and latch for the furnace room. The Fire Marshal Delegate upheld all items contained in the Inspection Order.

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

4. The Commission finds that the measures are necessary to ensure fire safety at the Appellant’s building. The Commission confirms the measures ordered in the Review Decision and amends the dates for compliance.

II. BACKGROUND

(a) The Property at Issue

5. The property at issue in this appeal is located at 97 Carlton Street, Toronto. The building was constructed in 1924. It is a brick building with eight residential apartments, and a retail convenience store at the front of the building. The residential units are currently occupied by individuals who work at a neighbouring building.

(b) The Inspection Order

6. Subsection 21(1) of the FPPA gives power to an inspector to inspect property and order the owner or occupant to take specified measures to ensure fire safety on the land or premises. On April 30, 2014, Ram Venkataramaiah (the “Inspector”), an inspector with Toronto Fire Services, served an Inspection Order on the Appellant pursuant to s. 21(1)(f) of the FPPA. That section 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,

(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.

7. The Inspector issued the Order after determining that the building lacked fire protection and safety features required under the Fire Code. Schedule 1 of the Order describes items that do not comply with the Fire Code. It identifies deficiencies in three key areas: the building’s fire alarm system, certain door and window openings near the fire escapes, and the furnace room door. Schedule 1 reads as follows:

Schedule 1: It was found that:

1. Building lacks a fire alarm system in accordance with OFC Division B Section 9.5. 9.5.4.1(2)

2. Building lacks 20 minute fire protection rated closures with self-closing devices for doorway openings and 20 minute fire rated window openings that are located within 3 meters horizontally, 1.8 meters vertically and 10 meters below on the west and south side of the building’s fire escapes in accordance with OFC Division B Section 9.5 9.5.3.7(1)

3. Building’s furnace room lacks a 20 minute fire rated closure in accordance with OFC Division B Section 9.5 9.5.2.8(1)

4. As a result of these findings, the Order required the Appellant to do the following work by October 20, 2014:

Schedule 2: You shall

1. Install interconnected smoke alarms on or near the ceiling in public corridors of each floor area, adjacent to each stairway serving the public corridor and on or near the ceiling in the basement, adjacent to each stairway, audible throughout the suites, connected to an electrical circuit with no disconnect switch between the over-current device and the smoke alarms, listed for use in an interconnected installation and a manual pull station at each exterior exit door for the actuation of the smoke alarms.

2. For door and window openings located 3 meters horizontally of, 10 meters below of, or 1.8 meters above of: any balcony, platform or stairway of the fire escape; install door opening closures having a 20 min fire-protection rating and equipped with self-closing devices and install 20 min fire-protection rated windows that are fixed shut, wired glass screens set in fixed steel frames, glass block, or listed steel shutters arranged to close automatically upon the operation of a fusible link. The fusible link shall be in conformance with ULC-S505, “Standard for Fusible Links for Fire Protection Service.” The wired glass screens and glass shall be installed in conformance with Article 3.1.8.14 of the 1990 Building Code.

3. Install a listed and labelled 20 minute fire rated door with self-closing device and latch and 20 minute listed and labelled frame for the furnace room.

(c) The Review by the Fire Marshal Delegate

9. After receiving the Inspection Order, the Appellant requested a review of the Order by the Fire Marshal under s. 25(1) of the FPPA. Both the Appellant and the Respondent provided additional information to the Fire Marshal Delegate, Susan Clarke. The Fire Marshal Delegate also sought clarifying information from both parties regarding interior elevations of the building.

10. The Fire Marshal Delegate reviewed the matter and issued a Review Decision upholding all three items contained in the Inspection Order. For Item 3 – regarding a rated closure and door frame for the furnace room – the Fire Marshal Delegate indicated that this requirement may be deemed to have been satisfied if the existing closure is a solid core wood door, 45 mm in thickness throughout, is equipped with a self-closing device, and is installed in a solid wood or hollow metal frame. The Review Decision also set new dates for compliance (March 18, 2015 for Items 1 and 3, and April 17, 2015 for Item 2).

11. The Appellant appealed the Review Decision to the Commission.

III. ISSUE

12. The issue the Commission must decide is whether the measures contained in the Review Decision are necessary to ensure fire safety at the Appellant’s building at 97 Carlton Street, Toronto.

IV. POWERS OF THE COMMISSION

13. Under s. 26(6) of the FPPA, the Commission has the power to confirm, amend or rescind the Order of the Fire Marshal or make such other order as the Commission deems appropriate.

V. ANALYSIS

14. The Inspector issued the Order after determining that the building lacked the fire protection and safety features required under the Fire Code. The Order identified deficiencies in three areas: the building’s fire alarm system, certain doorway and window openings near the building’s fire escapes, and the furnace room door. The Inspection Order required the Appellant to take specific measures to comply with the relevant provisions of the Fire Code. In the Review Decision, the Fire Marshal Delegate upheld each of the three items contained in the Inspection Order.

15. The following sections discuss each of the areas addressed in the Inspection Order and Review Decision. In reaching its decision, the Commission considered the submissions of the parties and a great deal of evidence including witness testimony, photographs, measurements, surveys, site plans, floor plans and drawings.

(a) Item 1: The Fire Alarm System

16. Following an inspection of the Appellant’s property, the Toronto Fire Services’ Inspector found that the building lacked the fire alarm system required under s. 9.5.4.1(2) of the Fire Code. The Inspection Order required that the Appellant install interconnected smoke alarms and manual pull stations, as specified in Item 1 of the Inspection Order. The Fire Marshal Delegate upheld Item 1 of the Inspection Order in her Review Decision.

17. The Appellant submits that the building does not require an interconnected smoke alarm system with pull stations, as specified in the Order and Review Decision. He argues such a system is not necessary because each apartment has two means of exit: one to the hallway, and the other to the fire escape. He also indicates that all apartments and hallways have both smoke and carbon monoxide alarms. The Appellant believes that an interconnected smoke alarm system and manual pull stations are unnecessary. The Appellant also indicates that he did an informal survey of the building’s tenants and states that the tenants do not want them.

18. The Respondent takes the position that the fire alarm requirements set out in the Order are necessary and required under s. 9.5.4.1(2) of the Fire Code.

19. Under S. 9.5.4.1(2), interconnected smoke alarms and manual pull stations are required for buildings that are not more than three storeys in height and contain not more than 10 dwelling units. While the parties dispute whether the building is a two storey or three storey building, there is no suggestion that the building is more than three storeys. The parties agree that the building has eight dwelling units.

20. The Fire Code does provide exceptions to the requirement for interconnected smoke alarms and pull stations. Under s. 9.5.4.1.(3) of the Fire Code, a building can be deemed to be in compliance with the fire alarm requirements where:

• 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

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

21. The Respondent submits that the fire alarm requirements apply to the Appellant’s building because the building provides sleeping accommodation for more than 10 people. Drawings submitted by the Appellant in a 2011 application for a building permit to construct a fire escape for the building show 10 bedrooms spread out over eight units.

22. The Appellant claims that he was told by the property manager that only eight people live at the building. However, the Property Manager did not testify at the hearing, meaning that this statement is hearsay. On cross-examination, the Appellant confirmed that he does not know who lives at the building, and that he does not restrict in the lease the number of tenants who live in the building. The Appellant was unable to substantiate the number of residents with any objective evidence.

23. The Inspector, Ram Venkataramaiah, testified that Toronto Fire Services determines occupancy based on two persons per dwelling unit. On this basis, they would conclude that the building provides accommodation to 16 people.

24. While no uniform standard can accurately predict the number of residents in a building at any given point in time, we find the standard used by Toronto Fire Services to be a more objective way of assessing the number of residents. While it is possible that there could be 10 or fewer persons living in this building at a particular time, with 10 bedrooms spread over eight units it is reasonable to assume that the building may house more than 10 people.

25. The exception in s. 9.5.4.1(3) of the Fire Code (a deemed compliance provision) applies where each exit and public corridor is shared by not more than four dwelling units or not more than 10 persons. We have already concluded that the building accommodates more than 10 people. On cross-examination, the Appellant confirmed that although each of the eight dwelling units has a secondary fire exit, all eight units share the same main exit. The building’s shared main exit also prevents this part of the exception from being applied.

26. The photographs of the building indicate that the door from the third floor of the building is not near ground level. On cross-examination, the Appellant conceded that the third floor was not near ground level. His evidence was that the top floor was 15 feet from the ground.

27. On the basis of the evidence before us, we conclude that the building is subject to the fire alarm requirements in s. 9.5.4.1(2) of the Fire Code, as set out in the Inspection Order and confirmed in the Review Decision. Given our findings that the building may accommodate more than 10 residents, the main exit is shared by more than four dwelling units, and that all dwelling units do not have direct access to the outdoors by a door near ground level, the building is not eligible for any exception to the requirement for interconnected smoke alarms and manual pull stations set out in that section of the Fire Code.

28. We find that the measures relating to interconnected smoke alarms and manual pull stations contained in Item 1 of the Review Decision are necessary to ensure fire safety at the building. We therefore confirm Item 1 of the Fire Marshal Review Decision.

(b) Item 2: Doorway and Window Openings Near Fire Escapes

29. The Inspector found that the Appellant’s building did not meet the Fire Code requirements for protection of certain door and window openings near fire escapes. Item 2 of the Order required that the Appellant install specific fire protection features for door and window openings located 3 meters horizontally of, 10 meters below of, or 1.8 meters above any balcony, platform or stairway of the fire escape. The Fire Marshall Delegate upheld this part of the Inspection Order.

30. The requirements for fire escapes are set out in s. 9.5.3.7 of the Fire Code. Subsection 9.5.3.7(2) requires that certain doorway and window openings near fire escapes be protected in accordance with the requirements set out in s. 9.5.3.7(3) and (4) “if a fire escape serves any storey above the second floor”. A great deal of the evidence at the hearing focused on the question of whether the Appellant’s building is two or three storeys.

31. The Appellant takes the position that the building is a two storey building and that the door and window opening requirements therefore do not apply to the building. The Respondent submits that the building is three storeys and that it is therefore subject to the requirements set out in s. 9.5.3.7(3) and (4) of the Fire Code.

32. We considered a great deal of evidence on this issue, including witness testimony, building permits, surveys, sketches and site plans.

Building Permits

33. In 2011, the City of Toronto issued a building permit for renovations that identified the building as a two storey building. The Appellant questions how Toronto Fire Services concluded that the building is three stories, when the City of Toronto concluded it is a two storey building.

34. The Respondent concedes that in 2011 the City did issue a building permit identifying the building as a two storey building. The Respondent entered into evidence a letter from Paul Au, P. Eng., CBCO, Manager of Plan Review with Toronto Building, City of Toronto. In that letter, Mr. Au outlines the events that led to the issuance of the building permit.

35. In his letter, Mr. Au indicates that the Appellant submitted an earlier permit application for proposed renovations to the building (dated December 17, 2010), that identified the building as a three storey building, with the lowest level titled “first storey”.

36. On July 7, 2011, the Appellant submitted a revised permit application to Toronto Building. The revised application identified the building as a two storey building with the lowest floor level labelled as “basement”. Mr. Au explains that the revised classification of the building to a two storey building was based on a drawing of a professional engineer and a land survey submitted by the property owner. He notes that Toronto Building reasonably relied upon the drawing of the professional engineer and the land survey that were submitted in issuing the permit for the building as a two storey building. The permit was issued, the work carried out and inspected, and the permit was closed.

37. Following closure of the permit, Toronto Fire Services shared with Toronto Building the survey of the property that it had commissioned. That survey showed the building to be three stories. Mr. Au closes by concluding that, “after reviewing all of the information on file, Toronto Building would conclude that the Building is 3 stories, as indicated by the land survey procured by Toronto Fire”.

Surveys, Sketches and Site Plans

38. The Commission considered a significant amount of evidence relating to surveys submitted by both parties. These surveys were directed at establishing whether the building is two or three storeys.

39. The approach to determining the number of storeys in a building is based on the Ontario Building Code (the “Building Code”).

40. The Building Code defines the first storey in a building as:

The storey that has its floor closest to grade and its ceiling more than 1.8 m above grade.

Grade is defined as:

The average level of proposed or finished ground adjoining a building at all exterior walls.

Building height is described as the number of storeys contained between the roof and the floor of the first storey.

If the ceiling level of the building’s lowest level is more than 1.8 metres above grade, that level is considered to be the building’s first level.

41. This means that the Appellant’s building would be considered to be a three storey building if the ceiling of the lowest floor is more than 1.8 metres above grade. If the ceiling is 1.8 metres or less above grade, it would be a two storey building.

42. The Appellant focused on a survey performed by Helmut Mitsche, Ontario Land Surveyor with Mitsche & Aziz Inc. The survey and a letter from Mr. Mitsche indicate that, according to their measurements, the average elevation of the ceiling level of the lowest floor of the building is 1.74 metres above the average grade level immediately outside of the building. The Appellant argued that this survey demonstrates that the building is two storeys since the ceiling is less than 1.8 metres above grade.

43. The Respondent relied on other surveys that show the ceiling level of the lowest floor of the building is more than 1.8 metres above grade. The Respondent also provided evidence to explain why the ceiling heights in the Mitsche survey were lower than those found in other surveys.

44. One of those surveys was conducted by Danny Quinlan, an Ontario Land Surveyor who was called as a witness by the Respondent. Mr. Quinlan testified that the bottom floor of the building has bulkheads and dropdowns which are lower (and closer to the floor), than the rest of the ceiling in that level. Mr. Quinlan testified that he measured from the ceiling height, and not from the bottom of the bulkheads. In Mr. Quinlan’s view, the lower measurements for the ceiling height in the Mitsche survey were likely the result of him measuring from the bottom of the bulkhead to the floor.

45. A letter from Mr. Mitsche in response to questions from the Fire Marshal Delegate provides support for Mr. Quinlan’s view of why different (lower) ceiling height measurements are found in the Mitsche survey. In his letter to the Fire Marshal Delegate, dated February 4, 2015, Mr. Mitsche described the method he used in calculating the average grade and ceiling heights. As part of his response he explained that, “I then used a tape measure to determine the distance from the basement floor to the lowest ceiling heights I found”. This is consistent with Mr. Quinlan’s suggestion that the lower ceiling heights in that survey were likely the result of measuring from the bottom of the bulkhead to the floor.

46. The Respondent also relied on an additional survey and elevation sketch. A letter from LRI Fire Protection and Consulting Engineers dated June 9, 2014 concludes that: “[f]rom the calculations and site measurements undertaken, the building’s lower floor level ceiling of 1.83 m above the adjoining average grade and qualifies the building to be 3 storeys in height”. A 2013 elevation sketch provided by Toronto Engineering and Consulting Services, Land and Property Surveys indicates that the ceiling of the lowest floor of the building is 1.961 m above grade.

47. Finally, the Respondent also referred to a July 2010 Site Plan for the Appellant’s property that was submitted for a proposed fire escape. The plan bears the Appellant’s engineer’s stamp. The building is described three times on the first page of the Site Plan as a three storey building. The Site Plan indicates that the building is a “3 STOREY BRICK DWELLING”, “3 STOREY BRICK APARTMENT BUILDING” and “3 STOREY BRICK & CONCRETE BLOCK COMMERCIAL BUILDING”. These references suggest that the Appellant himself previously held the view that the building was a three storey building.

Is the building two or three storeys?

48. While we are faced with some contradictory evidence on the issue of whether the building is two or three storeys, we prefer the evidence of the Respondent, and conclude that the building is three storeys.

49. The Appellant relied primarily on the results of the Mitsche survey. One of the Respondent’s witnesses, Mr. Quinlan, is an Ontario Land Surveyor who testified before the Commission about the methodology he used in obtaining his measurements. Mr. Quinlan also provided a reasonable explanation of the possible reason for the lower measurements found in the Mitsche survey.

50. The letter from LRI Fire Protection and Consulting Engineers and the Toronto Engineering and Consulting Services’ sketch and summary also indicate that the ceiling height is more than 1.8 metres above grade. An earlier Site Plan submitted by the Appellant for a proposed fire escape describes the building multiple times as a three storey building.

51. The evidence before us supports a finding that the building is three storeys. We conclude that the safety measures relating to doorway and window openings that are set out in the Review Decision are necessary to ensure fire safety at the building. We confirm Item 2 of the Fire Marshal Review Decision.

(c) Item 3: The Furnace Room Door

52. The Inspector found that the building’s furnace room lacks a 20 minute fire-protection rated closure required by s. 9.5.2.8(1) of the Fire Code. The Inspection Order required the Appellant to install a listed and labelled 20 minute fire rated door with self-closing device and latch and a 20 minute listed and labelled frame. The Fire Marshal Delegate upheld this part of the Order in her Review Decision (Item 3 of the Review Decision).

53. The Appellant does not think that a new fire rated door for the furnace room is necessary. The Appellant testified that the furnace room door is a solid wood door, clad with a metal sheet, and that it now has a self-closing device. He believes the current door is sufficient and feels there is no need to replace it. The Appellant thinks his door is safer than 20-minute fire rated doors.

54. On cross-examination, the Appellant agreed that the furnace room door is not labeled as a 20-minute fire-rated door and has not been tested to confirm that it meets the 20-minute standard. While the Appellant may believe that his door is safer than 20-minute fire rated doors, there is no evidence before us to support this view.

55. We note that under s. 9.5.2.8(4) where a 20-minute fire protection rating is required, existing closures consisting of 45 mm solid core wood doors installed in solid wood or hollow metal frames and equipped with self-closing devices are deemed to be in compliance with the requirement of subsection (1) and (2). However, there is no evidence before us to support a finding that the Appellant’s door meets this requirement. When questioned, neither the Appellant nor the fire inspector was able to state with any confidence the thickness of the door.

56. We conclude that the installation of a fire rated door for the furnace room is necessary to ensure fire safety at the building. We confirm Item 3 of the Review Decision.

VI. CONCLUSION

57. The Ontario Fire Code sets out uniform standards for fire protection and safety across the province. While the Fire Code does provide means for alternate methods of compliance, it is not left to individual property owners to make their own determinations about the level of safety that is provided to residents, fire fighters and others who might be at risk in the event of a fire.

58. We find that the measures contained in the Review Decision are necessary to ensure fire safety at the Appellant’s building at 97 Carlton Street in Toronto. We therefore confirm Items 1, 2 and 3 of the Review Decision.

VII. ORDER

59. The Commission confirms the requirements set out in Items 1, 2 and 3 of the Review Decision.

60. The compliance dates set out in the Review Decision are amended as follows:

(a) Item 1 shall be completed by June 1, 2016.

(b) Item 2 shall be completed by August 1, 2016.

(c) Item 3 shall be completed by May 15, 2016.

Katie Osborne, Associate Chair

Tammy O'Neill, Vice-Chair

Daniel Woods, Member

Issued: April 28, 2016