FIRE SAFETY COMMISSION
Safety, Licensing Appeals and Standards
Tribunals Ontario
Citation: Gondosch v. Waterloo Fire Rescue, 2016 ONFSC 10271/FSC
Date: 2016-Nov-15
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:
Robert Gondosch
Appellant
and
Waterloo Fire Rescue
Respondent
DECISION AND ORDER
Panel: Luisa Ritacca, Doug J. Ritcey and Tammy O’Neill
Appearances:
For the Appellant: Rob Gondosch, acting on his own behalf
For the Respondent: Christina Marina, Counsel for the Respondent
Place and date of hearing: Kitchener, Ontario September 28, 2016
REASONS FOR DECISION
A. OVERVIEW
This is an appeal of an order dated May 24, 2016 made by Kevin Kelly, the delegated official acting for the Fire Marshal (the “Review Order”). The Review Order amended the Inspection Order made by Fire Prevention Officer, Marc Desjardins of Waterloo Fire Rescue (“Inspector Desjardins”) on January 18, 2016 in respect of premises owned and operated by the Appellant and his brother through a numbered company.
The premises that is the subject of the Review Order consists of a three storey apartment building, with five units available for tenants on each of the first, second and third floors and four units available in the basement.
Pursuant to section 19 of the Fire Protection and Prevention Act, 1997 (FPPA), an inspector may enter the premises for the purposes of assessing fire safety, which is defined at section 18 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”.
Section 21 of the FPPA provides that following an inspection, the inspector may order that the owner of the premises take any measure necessary to ensure 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.
In this case, the Inspection Order required Mr. Gondosch to clean as often as necessary the stove/oven so that the accumulation of combustible deposits is no longer resulting in false fire alarms and/or false smoke alarm activations, and further that all smoke detectors connected to the fire alarm system located within each suite are to be replaced with heat detectors connected to the fire alarm system.
Mr. Gondosch requested a review of the Inspection Order by the Fire Marshal. In the Review Order dated May 24, 2016, the Fire Marshal’s Delegate modified the Inspection Order replacing the two action items in that order with the following:
- The smoke detector in Unit 3 is to be replaced with a heat detector.
Section 26 of the FPPA provides that 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 appealed the Review Order of the Fire Marshal’s Delegate to the Commission. Consistent with the legislation and the Commission’s rules of procedure, the appeal proceeded by way of oral hearing, wherein the parties were provided with the opportunity to call witnesses and file relevant documentary evidence.
B. EVIDENCE
- The Commission heard from four witnesses, including the Appellant who testified on his own behalf. The Appellant’s brother (Michael Gondosch or “M.G.”) and wife, Kim Gondosch (“Mrs. Gondosch”) also testified in support of the Appellant’s position. Fire Prevention Officer, Marc Desjardins (sometimes referred to herein as “Inspector”) testified on behalf of the Waterloo Fire Rescue.
Events Leading up to the Inspection
The Appellant and his brother testified that through their numbered company, they are the owners of the apartment building at issue. As explained above, the apartment building is three storeys, with units available for five tenants on floors 1 through 3 and four tenants in the basement (for a total of 19 bedrooms). Each floor has five (or in the case of the basement, four) bedrooms and a common living area, with a kitchen. Each bedroom has a door with a lock.
Mr. Gondosch and his brother testified that the building, which was constructed for them approximately seventeen years ago, is equipped with two types of fire safety systems. The first system consists of interconnected smoke detectors located in every bedroom of the building; in the event that smoke is detected in any bedroom, an alarm sounds throughout the building and causes the building owner to be alerted by telephone. The second type consists of a smoke detector and two heat detectors located in the common area of each floor; in the event that one of the detectors is triggered, an alarm sounds on that specific floor.
The Appellant stated that the system in place exceeded Building Code requirements in place at the time the apartment building was constructed. Both he and his brother believed that the system provided their tenants with exceptional fire safety.
Michael Gondosch explained that prior to the Fall of 2015, there were no issues with the fire safety system or false alarms. In or about November 2015, M.G. testified that he began responding to fire alarm activations at the apartment building approximately every seven to ten days. These alarms were all triggered by activity on the third floor. Upon review, it was clear to M.G. and the Appellant that the tenants on the third floor were smoking in their bedrooms, in violation of their lease, and were taking increasingly extreme steps to tamper with the smoke detection system to avoid a false alarm.
The Appellant and M.G. both testified to finding smoke detectors pulled out from the wall, as well as detectors that were partially covered with shrink wrap and stuffed with masking tape. As landlords, the Appellant and his brother were very concerned about the safety of their tenants. They were in contact with both the fire department and Regional Police to try to address the matter. Ultimately, an inspection of the premises took place on January 4, 2016, which culminated in the Inspection Order and Review Order now under appeal.
The tenants were never charged for their conduct, however M.G. testified that as of the winter of 2016, the tenants had been evicted from the premises and that they have had no further difficulties with the fire safety system in the apartment building.
The Inspection
Fire Prevention Officer Desjardins testified about the inspection he conducted on January 4, 2016. The evidence as to why and how the inspection came to take place was in dispute. Inspector Desjardins testified that he attended at the premises to conduct the inspection following a false alarm activation in the early morning hours of January 4th. He testified that he was advised by his supervisor that firefighters had reported there were ongoing problems with the tenants on the third floor of the apartment building and that there was a history between those tenants and the landlords. He further testified that he was advised that the Regional Police had been involved with issues at the premises in the past.
On the other hand, the Appellant and his brother testified that the inspection took place as a result of their request that Fire Rescue attend at the premises to help them deal with the problems they were having with a number of tenants on their third floor, who were tampering with the smoke alarms.
Regardless of how the inspection came to take place, there is no dispute that an inspection did take place on January 4, 2016 and that the Appellant, his brother and the Regional Police were present outside of the premises during the inspection. There is also no dispute that following the completion of the inspection, Mr. Gondosch, Inspector Desjardins and the Regional Police re-entered the premises and entered the third floor unit.
Inspector Desjardins testified that the inspection was limited to the main floor common areas (i.e., hallway entrance) and the third floor unit. He explained that since the problems with the tenants and the false alarm activations appeared limited to the third floor, he chose to limit his inspection to that floor.
Upon entering the third floor, Inspector Desjardins noted a strong, distinct cigarette smell. He confirmed that there were three people who he assumed were tenants present and that he was able to gain access to at least one of the bedrooms. Inspector Desjardins testified that he observed a significant accumulation of burnt food on the stove located in the common area. He was advised by one of the tenants that when they cooked on the stove they would set off the fire alarm.
Inspector Desjardins explained that during his inspection of the third floor, he noted burns on the carpet and smoking paraphernalia, including cigarette butts, ash and ashtrays. He also noted that each bedroom he was able to observe had a smoke detector.
Inspector Desjardins also observed during his inspection that the fire alarm bell located in the common area had been removed from the mechanical device mounted on the wall. Upon being questioned by Inspector Desjardins, the tenant confirmed that he removed the bell because of the high number of “nuisance alarms” that had been activated over the course of the last couple of months.
Finally, in the course of his inspection, Inspector Desjardins noted that the wired (i.e., connected to electrical power) smoke alarm in the common area by the door did not have a green light. Upon further inspection, Inspector Desjardins confirmed that the breaker for the circuit powering the alarm had been placed in the “off” position.
Following his inspection, Inspector Desjardins spoke with the people on the third floor to remind them about safe practices with smoking and also reminded them to notify the landlord when there is a problem with the smoke alarms.
Upon exiting the premises, Inspector Desjardins spoke with the Appellant, advising him that the fire alarm system needed attention because the bell had been removed. He also advised the Appellant that he would be following up through orders for other issues observed.
Together with the Fire Prevention Officer and the Regional Police, the Appellant entered the premises and attended the third floor to address the fire alarm bell issue. The Appellant testified that he found the fire alarm bell that had been removed by the tenant on top of the refrigerator in the common area. The Appellant refastened the bell before leaving the premises with the Regional Police and Officer Desjardins. While the Appellant asked the Regional Police to lay charges on the tenant for tampering with the bell, the police did not do so.
During his testimony, Inspector Desjardins explained that he had no authority to lay charges for tampering with a smoke detector and could only lay charges where a party has taken steps to make a smoke alarm inoperable. He explained further that he could only do so where he has made direct observation of the conduct.
The Inspection Order
- Following the inspection, Inspector Desjardins returned to his fire station and over the course of the next several days prepared the Inspection Order, which was served upon the Appellant on January 18, 2016. The Inspection Order required the Appellant to:
(i) clean the stove/oven as often as necessary so that the accumulation of combustible deposits is no longer resulting in false fire alarm and/or false smoke alarm activations; and
(ii) replace all smoke detectors connected to the fire alarm system located within each suite with heat detectors connected to the fire alarm system.
The Inspection Order was issued pursuant to section 21(1)(f) of the FPPA, which allows for an order “to do 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”. Inspector Desjardins explained this provision was used because this was not a case where there were specific violations of the FPPA or Fire Code.
Inspector Desjardins explained that in his view, the smoke detection system in place had resulted in the significant number of false alarms at the premises, which in turn led some of the tenants to take steps to tamper with the smoke detectors and fire alarm bell. It appears that the tenants did so in an effort to minimize the chance that the detectors would be triggered as a result of smoking or cooking on the floor.
Inspector Desjardins testified that in his experience the smoke detection system in place in the Appellant’s apartment building, while not prohibited, was unconventional and not something he would expect to find in an apartment building. He explained that while smoke detectors are expected in common areas, such as hallways and stairwells, it is unusual to find them in individual rooms, such as bedrooms, where they could be triggered by an expected activity like smoking.
Further, Inspector Desjardins testified that the bedroom smoke detectors actually increase risk levels in the building because the building-wide false alarms cause people to lose faith in the fire safety system and make them complacent at the time of a genuine alarm. He said that it was also not unusual to see people tamper with the system, where there have been a number of false alarms.
Inspector Desjardins testified that it was as a result of his concerns for tenant safety (on the third floor and throughout the apartment building) that he issued the Inspection Order as set out above.
The Review Order
The Appellant sought a review of the Inspection Order on the basis that the Order was incomplete and inaccurate.
The Fire Marshal’s Delegate issued his Review Order on May 24, 2016. As set out above, the Delegate amended the Inspection Order replacing the two action items with one, which requires the Appellant to replace the smoke detector in Unit 3 with a heat detector.
C. ISSUE
- The issue before the Commission was whether the actions ordered by the Fire Prevention Officer in the Inspection Order and modified in the Review Order were necessary to ensure fire safety in this case.
(i) Appellant’s Position
The Appellant argued that the actions required under the Inspection Order, even as modified by the Review Order, were not necessary to ensure fire safety and in fact reduced fire safety at the premises. The Appellant submitted that the addition of smoke detectors in each bedroom on each level of the apartment building made the premises safer for the tenants and reduced the risk of fire. He argued that even though the master fire safety system in place was unconventional, it was better to take extra precautions where possible.
Further, the Appellant explained that with the eviction of the tenants on the third floor, he and his brother have had no further difficulty with false fire alarms and as such the requirement that he replace the smoke detectors with heat detectors is no longer necessary.
(ii) Respondent’s Position
Counsel for the Respondent argued that the actions required by the Inspection Order were necessary to ensure fire safety. False fire alarms give rise to tenant complacency and to the risk that people will take steps to tamper with the fire safety system in an effort to minimize the number of false alarms. This is particularly true where the false alarms are triggered by ordinary human behaviour, i.e. smoking, cooking.
In answer to a question from the panel, Counsel submitted the Review Order ought to be varied so to require the Appellant to replace all smoke detectors located in the bedrooms on each level of the apartment building with heat detectors.
D. ANALYSIS
Was there a fire safety issue?
The Appellant argued that the master fire safety system in place in the apartment building provided exceptional safety for the tenants and did not pose any fire safety issue warranting the Inspection Order. While we accept that the Appellant and his brother took what they believed were significant steps to ensure the safety of their tenants, we find that the fire safety system in place on the premises does in fact pose a fire safety issue. We reach this conclusion for two principal reasons.
First, we accept the evidence of Inspector Desjardins that people tend to grow complacent about fire safety in the face of frequent false alarms. Such complacency extends beyond those triggering the false alarms (i.e. the tenants on the third floor in this case) to tenants throughout the entire building. The tenants are less likely to react to a fire alarm where they have had to endure repeated false alarms. Further, there is a risk that tenants who trigger the alarm as a result of smoking or cooking may be less likely to react to another fire alarm, triggered on another floor.
Second, we accept that people are more likely to tamper with fire safety systems in an effort to minimize false alarms. There was uncontroverted evidence before us that the smoke detectors and fire alarm bell had been tampered with in this case.
Fire safety complacency by all tenants and the increased chance of tampering poses a fire safety issue, which must be addressed.
Replacing Smoke Detectors for Heat Detectors
While there is no doubt that the Appellant and his brother have gone above and beyond what they believe is necessary for a fire safety system in their apartment building and that they installed the system with the best of intentions, we are nonetheless satisfied that the replacement of the smoke detectors in the bedrooms is necessary for fire safety.
A fire detection system must be designed to accommodate all sorts of ordinary uses at a given premises. In this instance, it was clear from the evidence that the unconventional use of smoke detectors in the bedrooms resulted in a number of false fire alarms likely triggered by tenants smoking. While the Appellant and his brother may prohibit indoor smoking as a term of their lease, such behaviour is not unexpected in a private residence. The evidence of false alarms and tampering in the present circumstances satisfies the panel that the smoke detectors in the bedrooms do not provide the additional level of fire safety intended by the Appellant.
The panel is satisfied that replacing the smoke detectors located in the bedrooms with heat detectors will minimize the risk of nuisance fire alarms, and together with the master fire safety system in place throughout the apartment building, will provide a reasonable measure of safety for the premises.
Modifying the Review Order
As is set out above, in the Review Order the Fire Marshal Delegate modified the Inspection Order replacing the two action items with one, which requires the Appellant to replace the smoke detector in Unit 3 with a heat detector.
There was some debate between the parties as to whether the Delegate intended for his order to include replacing all of the smoke detectors on the third level of the premises or to simply replace one of them.
The Appellant argued that on a plain reading of the Review Order, he was only required to replace one smoke detector for a heat detector on the third level and that he was under no obligation to replace any additional smoke detectors either on the third level or elsewhere.
The Respondent argued that it is clear from the reasons set out in the Review Order that the Fire Marshal Delegate intended for his order to apply to all of the smoke detectors on the third level and that it was strongly recommended that all of the smoke detectors throughout the apartment building be replaced with heat detectors.
It is unclear from the Review Order whether and to what extent the action item was to apply throughout the third floor and the apartment building as a whole. However, in light of our decision to modify the Review Order, it is not necessary for the panel to make a finding as to the Fire Marshal Delegate’s actual intent.
Having found a fire safety issue in having smoke detectors in the bedrooms in the apartment building, the panel concludes that the Review Order must be modified to require the replacement of the smoke detectors to heat detectors in all bedrooms on the premises.
The concern regarding nuisance fire alarms and complacency is not alleviated by simply requiring the smoke detectors to be replaced on the third floor only. While the panel understands that Inspector Desjardins’ inspection was limited to the third floor (and to some common areas in the main floor and basement), it is clear from the evidence and is in keeping with the Fire Marshal Delegate’s strong recommendation that replacing the smoke detectors in the bedrooms throughout the apartment building is necessary for fire safety.
E. CONCLUSION
- For the foregoing reasons, the order of the Fire Marshal’s Delegate, Kevin Kelly, made on May 24, 2016, is amended as follows:
- The smoke detectors located in the bedrooms on each floor of the premises are to be replaced with heat detectors.
- We commend the Appellant and his brother for their efforts to ensure fire safety in their apartment building. While we understand their frustration with the inspection and the ensuing orders, we encourage them to work cooperatively with Waterloo Fire Rescue to ensure compliance with this decision and any future orders.
F. ORDER
The Fire Safety Commission amends the Review Order as follows:
The smoke detectors located in the bedrooms on each floor of the premises are to be replaced with heat detectors.
Further, the compliance dates set out in the Review Order are amended as follows:
The work shall be completed by January 30, 2017.
Released: November 15, 2016
Luisa Ritacca, Member
Doug J. Ritcey, Member
Tammy O’Neill, Vice-Chair