FIRE SAFETY COMMISSION
Safety, Licensing Appeals and Standards Tribunals Ontario
Citation: R.G. v. Toronto Fire Services, 2016 ONFSC 10061/FSC Date: 2016-09-23
In an appeal under subsection 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 and the Ontario Fire Code, O. Reg. 213/07
Between:
R.G. Appellant
and
Toronto Fire Services Respondent
DECISION
Panel: John Kromkamp, Doug J. Ritcey and Luisa Ritacca
Appearances: For the Appellant: Ken Berger, Counsel for the Appellant For the Respondent: Mark Siboni, Counsel for the Respondent
Place and date of hearing: Toronto, Ontario July 26, 2016
REASONS FOR DECISION
A. OVERVIEW
This is an appeal of a review decision dated January 25, 2016 made by Susan Clarke, the delegated official acting for the Fire Marshal (the “Review Decision”). The Review Decision upheld the Inspection Order made by Captain Roman Wojnarski of the Toronto Fire Services on July 22, 2015 in respect of premises (the “Inspection Order”).
The Appellant, R.G., is the owner and occupier of the dwelling that was the subject of the order being appealed. This dwelling is part of a five unit rowhouse complex. It is connected on both sides to other dwellings.
Section 18 of the Fire Protection and Prevention Act, 1997 (“FPPA”) defines fire safety to include “safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it”. Accordingly, fire safety includes not only the integrity of the premises and safety of the occupant but also the safety of adjoining or nearby premises, neighbours and firefighters who may be called upon to enter the premises in the event of a fire.
Pursuant to section 19 of the FPPA, an inspector may enter the premises for the purpose of assessing fire safety. Pursuant to section 21, the inspector may, amongst other things, order that the owner make alterations to the building, remove combustible or other material that may constitute a fire hazard, and do anything relating to the containment of possible fire, means of egress, and fire suppression. If on inspection, it appears that the electrical installations in a building pose a risk of fire the inspector may refer the matter for inspection by a representative of the Electrical Safety Authority.
In this case, the Inspection Order required R.G. to remove materials that Captain Wojnarski considered to constitute a fire hazard within the meaning of the FPPA. This order included a direction for the removal of excessive amounts of combustible material that the Fire Captain considered would negatively impact on the containment of fire; impair the means of egress for the occupants and first responders; and that would have an adverse effect on fire suppression capabilities. The Inspection Order also directed that access widths to all exits from all floor areas in the home be maintained.
R.G. appealed that order, as was his right, for reconsideration by the Fire Marshal. As noted, on reconsideration the order was upheld. The Fire Marshal’s Delegate did, for clarity, specify more particularly what actions needed to be taken to satisfy the original Inspection Order.
Pursuant to section 26 of the FPPA a person who feels aggrieved by an order of the Fire Marshal may appeal the order to the Fire Safety Commission (the “Commission”). The Commission may confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate. The Appellant has further appealed to the Commission for reconsideration. Pursuant to the legislation and the Commission’s rules of procedure, the appeal proceeded by way of oral evidence and relevant documentary evidence filed by the parties.
B. EVIDENCE
The Commission heard from three witnesses. R.G. testified on his own behalf. Captain Wojnarski and Inspector Damion Smith of the Toronto Fire Services testified about the inspection they conducted on July 22, 2015. The inspectors entered the home pursuant to a judicially authorized warrant. R.G. was present throughout and the inspection was conducted without incident.
R.G.’s home is a two-story house with a basement constructed of combustible material and is attached on both sides to similar dwellings.
While the gas supply for the home had been disconnected and sealed, there was still electrical service. On entering the premises on July 22, 2015, the two inspectors observed that there was a severe accumulation in all areas of the home of extraneous material, a situation often referred to as hoarding. They also observed that there were no fire smoke alarms in the premises. As a result, while Inspector Smith conducted the inspection, Captain Wojnarski installed alarms on both the first and second floor.
Inspector Smith was unable to enter fully into any of the rooms in the home because the accumulation of material in each room made entry impossible or unsafe. He was obliged to make his observations from the hallway or landing on each floor. He was unable to enter the basement because of the accumulation of material. Both inspectors were advised by the Appellant not to enter the main floor kitchen as the floor was unsafe. R.G. also reported a wildlife infestation at the rear of the upper part of the dwelling. Inspector Smith observed that one or more extension cords, plugged into electrical sockets, were buried under the accumulated material covering floors. He considered that this situation was particularly unsafe as heat generated by the extension cords and trapped under the accumulated material could ignite the material. Both Captain Wojnarski and Inspector Smith observed exposed electrical wiring. Additionally, they subsequently learned that raccoons or other wildlife had gnawed through wiring insulation in the wall adjoining one of the neighbour’s premises.
Inspector Smith outlined some of the risks associated with the storage of extensive amounts of combustible materials, including physical access, the intensity of the fire due to a higher load of materials, the difficulty of delivering fire fighting water around stored materials in order to reach the base of the fire and the increased time required to bring the fire under control. The risk of fire spreading to adjacent townhouse units, particularly in a building of this age and construction, was also described. Inspector Smith took photographs of the premises and all of the rooms. The photographs were filed as exhibits in these proceedings. From their experience and by comparing their observations to published standards, the inspectors concluded that an order was necessary to ensure fire safety. They also concluded that an electrical inspection was warranted.
R.G. has resided in this home for approximately thirty years. He has little income and suffers from both physical and mental disabilities. Within this context, however, he has been able to reside within the community. He pointed out that there was no natural gas service to the premises and limited electrical service. He considered the electrical service to be safe and pointed out that he had resided in the home for many years without a fire.
He complained that the inspection was part of an ongoing pattern of harassment by municipal authorities. He filed with the Commission a large number of documents dealing with difficulties that he had had with municipal building inspectors in about 2010. Apparently these inspections resulted in orders for his removal from the property pending its repair. According to his testimony and the documents filed he was incarcerated for a short period of time and then obliged to reside in a shelter for a number of months. He became ill and required medical treatment.
We ruled that as these historic orders were not before us for consideration, further testimony seeking to attack those orders was not relevant to these proceedings. However, we did allow the Appellant to give evidence with respect to any alleged harassment or misconduct by the Toronto Fire Services’ members in respect of the events leading up to the inspection on July 22.
R.G.’s testimony referred only briefly to numerous letters and attendances by the inspectors. R.G. complained that every time his home was inspected for one purpose the inspection resulted in further inspections by other city departments. From material filed we note that, having received a complaint, fire inspectors attempted to gain entry on a number of occasions to conduct an inspection but R.G. was either not at home, refused entry or did not answer the door. Efforts to communicate directly with R.G. and through his lawyer to arrange a time for inspection were unsuccessful. As a result, Captain Wojnarski sought and obtained a warrant to enter the premises for the purpose of conducting an inspection. The Appellant challenged that warrant in Superior Court but the validity of the warrant was upheld.
R.G. conceded at the time of inspection that the hoarding problems in his home needed to be dealt with. In his subsequent dealings with the authorities and again in his testimony at the hearing, he accepted that work needed to be done. His position was that given his financial, physical and mental states, he would deal with the problems but he needed assistance and more time to deal with the clutter and state of disrepair of his home.
Captain Wojnarski is a member of a city appointed committee – the Specialized Program for Interdivisional Enhanced Response to Vulnerability (SPIDER). This is a multi-departmental committee whose purpose is to assist residents with financial, physical or mental difficulties to access municipal assistance as needed. R.G.’s case was referred to SPIDER and some assistance was provided although that assistance did not resolve the issues contained in the Inspection Order.
R.G. testified that since the making of the order, he had been able to arrange with a tradesman to rectify the problems identified in the Inspection Order. He produced an email from Paul Peixoto that indicated that the property had been completely cleaned. R.G. indicated that he is now at a crossroads where he would have to decide whether to further repair his home and reside there or pursue other alternatives. In cross-examination, when shown photos taken by Inspector Smith, he testified that all of the clutter and accumulated material had been removed. He was not enthusiastic about permitting the Toronto Fire Services, in general, and Captain Wojnarski, in particular, to conduct an inspection to verify that the order had been complied with.
Counsel for R.G. produced two documents for consideration by the Commission. The first was an article published in the Toronto Globe and Mail from 2009 which indicated that Canadians living in homeless shelters and rooming houses have a shorter life expectancy than those who reside in their own home. Accordingly, Counsel submitted that any order that would require R.G. to leave his home might have unwarranted effects on his health and life expectancy. The second document tendered by Counsel was a document published on the website of the Ministry of Community Safety and Correctional Services entitled “Fatal Fires: Summary”. This document tracked the number of fatal fires in Ontario for a 10-year period between 2004 and 2013. In particular, he pointed out that the term “hoarding” did not appear anywhere in this report as a cause of fires.
C. ISSUES
The issue before the Commission was whether the measures ordered by the Inspector, and confirmed in the decision of the Fire Marshal’s Delegate, were necessary to ensure fire safety in this case.
Counsel for the Appellant raised some broader considerations for the Commission to consider. He conceded that he was not raising a Charter issue in respect of the legislation but submitted that inspections must be conducted in accordance with “Charter values”. He urged that a pattern of harassment by the Toronto Fire Services is not in accordance with these values. Further, any order that might result in a removal of the Appellant from his home would have a disproportionate impact on his life expectancy and was therefore objectionable. Finally, any inspection should be conducted in a manner that was consistent with Charter values. As a result, if the inspection was not consistent with Charter values, Counsel submitted that the Commission should rescind the order.
Counsel for the Appellant further argued that hoarding is not per se a cause of fires and therefore there was no fire safety issue in this case. If there was no fire safety issue then there was no authority for Captain Wojnarski to make an order. As result, the order should be rescinded, he submitted.
Finally, even if the original order was justified, the problems identified in the initial order of Captain Wojnarski as confirmed by the order of the Fire Marshal’s Delegate, Susan Clarke, have been rectified. As a result, the order under appeal should be rescinded and, having been rescinded, no further inspections by the Toronto Fire Services are necessary.
D. ANALYSIS
Was the inspection conducted in accordance with “Charter values”?
The FPPA provides for inspections of premises to ensure the safety of the premises, its occupants, and others including neighbours, firefighters and other first responders. The Appellant does not raise the validity of the legislation that provides right to enter and inspect premises for this purpose. If the Toronto Fire Services is engaged in a pattern of harassment, it could be argued that the inspection was not conducted for the purposes of ensuring fire safety but was conducted for some oblique purpose.
On the evidence, however, we are satisfied that no pattern of harassment has been established in this case. The Appellant had an unfortunate involvement with city inspectors a number of years ago and this appears to have affected his perception of the events leading up to this inspection. Indeed, on the evidence, it appears that the numerous contacts with the fire inspectors resulted not from their attempt to harass him but his refusal to respond to the request to gain entry to conduct an inspection. The Appellant’s testimony was that it seemed to him that every time inspectors came for one purpose the inspection generated further inspections by other city departments. He was of the view that this was evidence of harassment. In this particular case, however, pursuant to section 21 (3) of the FPPA, if on inspection concerns are raised with respect to the “inadequacy” or want of repair of the installations and their wiring” the inspector may refer the matter for a further inspection by a representative of the Electrical Safety Authority. Given the evidence of exposed wiring and the use of extension cords that were buried under a significant accumulation of material, the referral of the matter for an electrical inspection was justified and cannot support an inference of harassment.
While the legislation does provide for the closure of the premises and removal of the occupier from it until corrective actions are taken, no such order was made in this case. There is no evidence that one was even contemplated. As a result, the evidence regarding the negative impact that the removal of the Appellant from his home would have on his life expectancy is not relevant to whether the actual order under appeal was justified.
Captain Wojnarski and Inspector Smith conducted the inspection in a sensitive and professional way. The Appellant adduced no evidence that the manner of the conduct of the inspection was objectionable. The only significant “intrusion” on the premises was the installation, free of charge, of two smoke detectors by Captain Wojnarski. He subsequently brought the Appellant’s situation to the attention of the SPIDER program for consideration of what assistance might be available to the Appellant. There is nothing in the evidence to suggest that the two inspectors engaged in any conduct that was inappropriate when measured against Charter values. As a result, we do not give effect to this argument made by the Appellant.
Was there a fire safety issue?
Counsel for the Appellant cited a report that referred to the causes of fatal fires. He pointed out that the term “hoarding” does not appear as a cause of fires. Therefore, the making of an order to clear out the excessive amounts of combustible material from the Appellant’s premises was not justified as there was no fire safety issue. We disagree with his argument for three reasons.
First, the report itself when considered as a whole does not purport to deal with or consider the impact of hoarding on fire fatalities. In any event, the report itself leaves a significant number of causes and ignition sources as “undetermined”. Counsel submitted that, in effect, hoarded material does not cause fires and therefore is not a fire risk. However, this report does not address this issue and therefore cannot support such an argument. There was no other evidence in this case to support an argument that hoarded material could or could not result in combustion.
Secondly, and more importantly, fire safety is defined in the statute as “safety from the risk that a fire, if started, would seriously endanger the health and safety of any person…”. As a result, in our view, whether the hoarded material itself would be the ignition source or cause of a fire does not resolve the issue of whether there is a fire safety issue. Fire safety engages the concept that a fire, “if started”, would endanger the health or safety of any person. It is not only the cause of the fire that is important but also the potential effects on “any person”. “Any person” would include the occupant, neighbours and firefighters and other first responders. Where, as in this case, combustible material blocked doorways and was piled so high that it made it difficult or even impossible to enter or cross rooms it would be difficult and dangerous for first responders to attempt to contain a fire or rescue any persons in danger.
Thirdly, the evidence of Inspector Smith made reference to exposed wiring which could be an ignition source. The use of extension cords which were buried under the debris could overheat and cause ignition of the hoarded material. Hence, the combination of live electricity and accumulated material made the risk of fire a real possibility.
We find that there was a fire safety issue in light of the evidence that if a fire were started by any cause, the hoarded material would seriously endanger the health and safety of the occupier, neighbours and first responders.
As a result, we find that the original Inspection Order made by Captain Wojnarski as confirmed by Susan Clarke, the Fire Marshal’s Delegate, was reasonable and justified based on the evidence available at the time of the making of the orders.
Should subsequent events result in the rescinding of the order?
The Appellant testified and provided an email suggesting that the Inspection Order and order under appeal have now been complied with since almost all of the hoarded material had been removed and the electrical situation somewhat ameliorated. He did concede that his personal bedroom had not been fully cleaned as he was still separating materials that he wished to save from material that could be discarded. We recognize his efforts and encourage him to complete his task for his own well-being and for the safety of others.
However, the matter before us is an appeal from the order of the Fire Marshal’s Delegate. As noted above, we have found that the original Inspection Order was appropriate and that the Review Decision of the Fire Marshal’s Delegate was fully justified on the basis of the evidence placed before her. We found no error in her decision. Our jurisdiction permits us to confirm, amend or rescind the order or make such other order as we deem appropriate. In our view, the fact that an order may have subsequently been complied with is not a basis for rescinding the order under appeal.
Similarly, we are not disposed to direct that no further inspections take place. The order under appeal included a covering letter from the Delegate pointing out that the Toronto Fire Services was still responsible for ensuring compliance with the order under appeal. Similarly, she amended the order to further particularize how the Appellant could comply with the order. She stated in her reasons that she did so in an effort to reduce the number of times that further inspections would be necessary. It is clear that the Fire Marshal’s Delegate intended that the fire department would follow up with inspections to ensure that the Appellant had complied with her order. In any event, the statute authorizes an inspector to enter premises for the purposes of assessing fire safety. In circumstances where a previous order has been made, good practices dictate that there be follow-up inspections even if the Fire Marshal’ s Delegate had not explicitly referred to them in her covering letter and reasons.
E. CONCLUSION
- For the foregoing reasons, the appeal is dismissed and the order of the Fire Marshal’s Delegate, Susan Clarke, made on January 25, 2016 is confirmed. We encourage the Toronto Fire Services to continue to act with sensitivity toward the Appellant in light of his particular circumstances when scheduling follow up inspections.
F. ORDER
The Fire Safety Commission confirms the requirements set out in the Review Decision.
The compliance dates set out in the Review Decision are amended as follows:
(a) Items 1 to 6 shall be completed by Friday, October 7, 2016.
Released: September 23, 2016
John Kromkamp
Doug J. Ritcey
Luisa Ritacca