FIRE SAFETY COMMISSION
Safety, Licensing Appeals and Standards
Tribunals Ontario
In 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
Between:
Gregory Paul Kong
Appellant
and
Hamilton Fire Department
Respondent
Concerning the property located at 50 Westwood Avenue, Hamilton, Ontario.
Appearances:
For the Appellant: Gregory Paul Kong, Appellant
Kristen Ley (Cohen Highly LLP), Counsel
For the Respondent: Melissa Summers, Inspector, Hamilton Fire Department
Colleen Robertshaw (City of Hamilton), Counsel
ORDER AND REASONS
OVERVIEW
The Appellant, Gregory Paul Kong, is appealing a Fire Marshal Review Decision (the “Review Decision”) concerning two Inspection Orders (the “Orders”) issued by the Respondent (“Hamilton Fire Department”) under the Fire Protection and Prevention Act, 1997 (the “FPPA”). The Review Decision concerns a house in Hamilton that is owned by the Appellant and occupied by tenants.
The Review Decision upholds most of the items in the Orders, requiring the Appellant to make changes to the house to comply with sections of the Ontario Fire Code (the "Fire Code") that are appropriate to a lodging, boarding or rooming house. Two issues have been presented to the Commission: (a) whether the building is instead an individual dwelling unit (for which the Fire Code provides certain exemptions); and (b) whether the measures contained in the Review Decision are necessary to ensure fire safety at the Appellant’s property.
The evidence presented by the Appellant did not convince the Commission that the building is an individual dwelling unit. The evidence presented by the Respondent did convince the Commission that the fire safety measures in the building were not designed for its current use and that they do not provide adequate fire safety for its current use. The Commission confirms the Review Decision and amends the dates for compliance. It is also the Commission’s decision that if the building occupancy is reduced to four persons or less, the measures in the Review Decision pertaining to Part 9 of the Fire Code will no longer apply.
BACKGROUND
(a) Property Description
- The property that is the subject of this hearing is a two storey residential building with basement, located at 50 Westwood Avenue, Hamilton (the “building”). The original building construction included two second floor bedrooms and a main floor kitchen; subsequent renovations have resulted in a building that contains nine bedrooms and two kitchens. There are two bedrooms on the second floor, three bedrooms and a kitchen on the main floor and four bedrooms and a kitchen in the basement. This is one of several properties owned by the Appellant and rented to tenants; the Appellant does not live at the property.
(b) Summary of Orders and Appeals
- Two Inspection Orders were issued by the Hamilton Fire Department on November 11, 2014, subsequent to a fire that occurred on the stairs leading to the basement and that is believed to have been deliberately lit. The Orders were made under clause (f) of s. 21(1) of the FPPA, which states,
21 (1) An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner or occupant 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.
At the time of the fire, which took place in October 2014, all nine bedrooms in the house were occupied by students who attended McMaster University in Hamilton. The Orders describe the building as a “residential lodging home” and require measures to address the requirements of Part 2 - Fire Safety, Part 6 - Fire Protection Equipment and Section 9.3 - Boarding, Lodging and Rooming Houses of Division B of the Fire Code.
An appeal of the Orders was made by the Appellant to the Ontario Fire Marshal in accordance with the procedure outlined in s. 25(1) of the FPPA. The resulting Review Decision, provided by the Fire Marshal Delegate on May 22, 2015, finds that the property closely meets the criteria of a lodging house and affirms most of the requirements in the Orders. The Decision orders actions that include the repair of openings in walls and ceilings, maintenance of exit lighting and fire extinguishers, the provision of additional fire extinguishers, the preparation of an acceptable Fire Safety Plan, the construction of fire separations associated with stairwell exits and the provision of a second exit for the living quarters in the basement.
The Review Decision was appealed to the Fire Safety Commission on June 3, 2015, in accordance with the procedure outlined in s. 26(1) of the FPPA, on the grounds that the property is an individual dwelling unit and that the sections of the Fire Code that form the basis of the Orders and Review Decision do not apply.
POWERS OF THE COMMISSION
- Section 26(6) of the FPPA authorizes the Commission to confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.
ISSUES
- The Commission is presented with two principal issues related to the Appellant’s building at 50 Westwood Avenue, Hamilton:
(a) Is the building an individual dwelling unit?
- Whether the building is an individual dwelling unit and therefore exempt from the parts of the Fire Code that form the basis of the Review Decision.
(b) Are the measures necessary to ensure fire safety?
- Whether the measures contained in the Review Decision are necessary to ensure fire safety on the land and premises of 50 Westwood Avenue, Hamilton, in accordance with the provisions of s. 21 (1) of the FPPA, the subsection under which the original Inspection Orders were issued.
ANALYSIS
- In reaching its decision the Commission evaluated the issues in conjunction with the submissions of the parties and evidence that included witness testimony, photographs and floor plans. The parties also submitted related decisions previously made at several levels in the Ontario legal system, including previous decisions made by the Commission (the “case law”). The analysis of these materials is discussed in the following sections.
(a) Definitions and Case Law
- Section 1.4 Terms and Abbreviations of Division A of the Fire Code provides definitions for a dwelling unit and related terms as follows (terms that are formally defined in the Code are written in bold):
Dwelling unit means a suite operated as a housekeeping unit, used or intended to be used by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities, and includes a residential unit.
Residential unit means a suite operated as a housekeeping unit, used or intended to be used by one or more persons that contains cooking, eating, living, sleeping and sanitary facilities.
Suite means a single room or series of rooms of complementary use, operated under a single tenancy, and includes dwelling units, individual guest rooms in motels, hotels, boarding houses, rooming houses and dormitories, as well as individual stores and individual or complementary rooms for business and personal services occupancies.
- The Commission notes that because the definition of a dwelling unit references the definition of a suite, any dwelling unit must meet three minimum requirements:
(a) It must consist of a single room or series of rooms of complementary use.
(b) It must be operated under a single tenancy.
(c) It must be operated as a housekeeping unit.
- A formal definition for lodging house is not provided by the Fire Code. Section 9.3.1.1(1) of Division B of the Code specifies that requirements for boarding houses, lodging houses and rooming houses apply where:
(a) the building height does not exceed 3 storeys and the building area does not exceed 600 m2,
(b) lodging is provided for more than four persons in return for remuneration or the provision of services or both, and
(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.
The Appellant concedes that the building is rented to more than four persons and meets the characteristics described in s. 9.3.1.1(1) of the Fire Code and summarized above. The Appellant submits that since there is no separate definition of “boarding, lodging and rooming house” in the Fire Code, the Commission should consider “the nature of the occupation in question and, primarily, the issue of control…given that a property, namely a rented house, can be either a dwelling unit or a boarding house”.
Both the Appellant and Respondent submitted case law that addresses the definitions of dwelling unit, housekeeping unit and boarding, lodging and rooming house, as used in the Ontario Building Code, the Fire Code or in municipal licensing and zoning by-laws. None of the situations addressed by the submitted case law are wholly comparable to the circumstances of this case.
The specific decisions that were provided in the submissions are,
Good v. Waterloo (City) (2003), 2003 CanLII 14229 (ON SC), 67 O.R. (3rd) 89 (Ont. S.C.J.), affirmed (2004),
2004 CanLII 23037 (ON CA), 72 O.R. (3d) 719 (Ont. C.A.) [Good v. Waterloo]
City of Ottawa v. Bentolila, 2006 ONCJ 541, 2006 ONCJ541 [Ottawa v. Bentolila]
Neighbourhoods of Windfields Ltd. Partnership v. Death (2008 CarswellOnt 5025) (Ont. S.C.J.), 2008 CanLII 424228 [Windfields v. Death]
2161907 Ontario Inc v. City of St Catharines et al, 2010 ONSC 4548 [Ontario v. St. Catharines]
Balmoral Developments Hilda Inc. v. Orillia (City), 2013 ONCA 212 [Balmoral v. Orillia]
R. v. Singh, 2014 ONSC 4564 [R. v. Singh]
Fire Safety Commission Decision 2013A007-198, 41 Stirton Street, Hamilton, Ontario [FSC 2013A007]
Fire Safety Commission Decision 2010A010-169, 900 Fanshawe Boulevard, London, Ontario [FSC 2010A010]
Case law that involves licensing and zoning issues under municipal by-law or issues that fall under the Ontario Building Code is not necessarily relevant to this Ontario Fire Code matter. However, several of the decisions submitted to the Commission are of interest.
A submission of particular note is Good v. Waterloo because criteria established in this case have been subsequently cited as being helpful in distinguishing between a single dwelling unit and a boarding, lodging or rooming house. In this case the Court considered whether a house rented to multiple tenants met the definition of “single housekeeping unit” under a municipal licensing by-law. The Court found that “Control, in a lodging house, is by the owner and the occupants on an individual basis, whereas in a residential unit it is by the group. Accordingly, for a residential unit there must be evidence of collective decision-making regarding the use of the premises”.
In upholding the lower court decision in Good v. Waterloo, the Court of Appeal agreed that collective decision-making is an important criterion in identifying a “single housekeeping unit”. The Court cited evidence of collective decision making that included the way in which rent is paid, the assignment of rooms, the housekeeping arrangements made by occupants, lack of exclusive possession of any parts of the unit and cohesiveness created by occupancy by most occupants in the group over lengthy periods of time.
In Ontario v. St. Catharines the issues considered by the Court included whether a house rented to multiple tenants was a “dwelling unit” or a “boarding, lodging or rooming house” under the Ontario Building Code. The Court found that the criteria examined in Good v. Waterloo were helpful in establishing whether a premise is a single unit for housekeeping purposes.
In Windfields v. Death, the issues considered by the Court included whether houses rented to multiple tenants were single housekeeping establishments under the municipal zoning by-law. In this case, the Court found that the tests defined in Good v. Waterloo were not relevant, and cited the fact that Good v. Waterloo was an interpretation of a licensing by-law with differently worded definitions and made for a different purpose than a zoning law passed under the Planning Act.
In Bentolila v. Ottawa and R. v. Singh, the issues considered by the two courts included whether houses rented to multiple tenants met the definition of “rooming house” or “dwelling unit” under the Ontario Fire Code. The evaluations made by the courts did include consideration of the criteria examined in Good v. Waterloo.
One of the two Fire Safety Commission decisions submitted by the Appellant did include consideration of case law; both are based on occupancy, fire safety circumstances and submissions that are not wholly comparable to this case. The Appellant, who submitted the cases, was correct in summarizing the Commission’s previously stated position that it is appropriate for properties to be considered individually.
The criteria for collective decision-making that have been cited in Good v. Waterloo and subsequent cases address the characteristics of a housekeeping unit, which is one of the pre-requisites cited by the Fire Code to identify a dwelling unit. These criteria have included occupants who lease premises as a group, arrange rent as a single amount, have responsibility for selecting replacement tenants in the event of the departure of an individual, determine their own room assignments, pay for utilities independent of the landlord, provide their own furnishings, take responsibility for housekeeping and cleaning, perform as a cohesive group through occupation over lengthy periods of time, store and consume food together and who enter into relationships that extend outside the sharing of accommodation and school activities. The criteria also include the absence of presence and control by the landlord or the landlord’s representative.
(b) Characterization of Occupancy at 50 Westwood Avenue, Hamilton
- As noted above, the definition of a “dwelling unit” provided by the Fire Code requires a minimum of three elements: it must consist of a single room or a series of rooms of complementary use, it must be operated under a single tenancy, and it must be operated as a housekeeping unit.
(i) Rooms of complementary use
- With respect to the first requirement, clearly the premises at the Appellant’s property consist of a series of rooms and it is accepted that their use is of a complementary nature. Neither party has addressed or disputed this.
(ii) Is there a Single Tenancy?
With respect to the second requirement, operation of the unit under a single tenancy, the Commission turns to examination of the lease. The Appellant provided a 2014/2015 lease for Bisma Tahir (the “Bisma Tahir lease”). Ms. Tahir, who was a tenant from May 2012 to May 2015, testified that the document resembles a lease that she had signed during this period. Mr. Kong testified that all of the tenants at that time had similarly worded leases. The lease is for “1 room and the common area of the house (room on the main floor at the back of the house)”, covering a period of one year, and lists Mr. Kong as the landlord and Ms. Tahir as the tenant.
Mr. Kong testified that he previously provided a copy of a group lease to Inspector Melissa Summers of the Hamilton Fire Department shortly after the October 2014 fire. The names of the tenants and landlord were redacted and the lease referred to premises with 7 bedrooms, not 9 bedrooms (as are found at 50 Westwood Avenue). Mr. Kong testified that this was not the correct lease, that it has never been used, that it is a group lease and that he doesn’t know why he gave it to Inspector Summers.
Mr. Kong testified that he has since moved to the use of a group lease for tenants at the house. On further questioning, Mr. Kong testified that the current lease is “a group lease in terms that it says that you're responsible only for your agreed upon rent" and is worded identically to the previously referenced Bisma Tahir lease, but lists the names of all tenants. Tenant names are added or crossed off if tenancy changes and the remaining tenants initial the changes. Mr. Kong did not provide a copy of the current lease and testified that he had not expected that it would be of interest.
In consideration of the fact that Mr. Kong previously provided the Hamilton Fire Department with a redacted lease which subsequently proved to be the incorrect lease, and that Mr. Kong was unable to provide the current lease, the Commission will not rely on Mr. Kong’s ability to provide a credible and accurate description of the current lease. The Commission views the Bisma Tahir lease that was actually submitted as evidence as the only credible lease for the premises. It is the lease that was in use at the time the original Inspection Orders were issued, it has been provided in writing and it is the only lease that multiple parties have agreed, consistently, has actually been in use at the house. It is an individual lease for an individual tenant.
The issue of the lease is significant since, in the opinion of the Commission, it is a necessary consideration in establishing a single tenancy.
For the purpose of reviewing the leasing circumstances, the Commission will briefly set aside the possibility that some of the previously described case law (addressing definitions made under the Ontario Building Code and various municipal by-laws) may not apply to this Ontario Fire Code matter.
In Good v. Waterloo a lease that was initially entered into and signed by all occupants was cited as a factor in identifying usage that contributes to the characterization of a single dwelling. In Ontario v. St. Catharines the payment of rent as a collective amount was cited as a factor in identifying usage that contributes to the characterization of a single dwelling. The decisions in Ottawa v. Bentolila, Balmoral v. Orillia and R. v. Singh cited individual leases or individual rent payments as factors in determining that the occupancy was not characteristic of a single dwelling.
The Bisma Tahir lease that has been in use at 50 Westwood is an individual lease for one of the several tenants in the house. Even if the current lease were as Mr. Kong describes, listing all tenants but using the wording of the Bisma Tahir lease, it would not be a lease to a group of tenants who are responsible for a single tenancy that encompasses the entire house, irrespective of individual rooms.
Ms. Tahir testified (and stated in a January 2015 affidavit) that when a tenant left during her occupancy, the existing occupants would “tell Mr. Kong when we know someone who is interested” and “have a say as to who moves in”. Mr. Kong testified that when students couldn’t submit the name of a prospective tenant, he would advertise and ensure that everyone was compatible. He testified that, for example, he would never put a tradesperson with a student. The Respondent submitted evidence of advertising that Mr. Kong does for his multiple houses, including 50 Westwood Avenue. These facts indicate a cooperative relationship between the tenants and Mr. Kong, in which the landlord may be presented with a prospective tenant or may pre-select a prospective tenant for mutual agreement. They do not indicate that the occupants have a single tenancy in which they take responsibility for their membership and consistently seek out and choose their members independent of the landlord.
Schedule “A”, Condition 1 of the Bisma Tahir lease provided in the Appellant’s Disclosure indicates that a tenant may sublet their own premises with consent of the landlord. The wording in this lease does not give the tenants a documented right or a documented obligation to find new tenants for any rooms other than their own. This is not indicative of a group of tenants who are responsible for a single tenancy that encompasses the entire house. Instead, it is a group of individuals who have entered into leases making each one responsible for their own room.
There is no indication that the tenants set or negotiate the rental rate for any room other than their own individual bedroom. In fact, Mr. Kong testified that he sets the rental rates for various rooms. Again, this is not suggestive of a single tenancy for the premises.
At issue is not simply the absence of a paper lease that assigns responsibility of the house to a group of tenants. The tenants at the house do not act like a single tenancy. Mr. Kong’s involvement at the house is not similar to renting a dwelling to a single family, after which his involvement effectively ends and the family members assign rooms, determine which members of the family will be responsible for the rent and for what amounts, negotiate the departure of some members and the return home of others, taking full responsibility for the group, all independent of the landlord.
Given the lack of these characteristics and the absence of an appropriate lease, the Commission finds that there is insufficient evidence to demonstrate that the house is operated as a single tenancy.
Mr. Kong testified that parents of students do not want their children to enter into a lease that would make the student responsible for other tenants who might fail to pay their rent. The Commission recognizes this difficulty for a landlord, but notes that Mr. Kong has the option of: (a) implementing Fire Code measures that are appropriate to large groups of tenants who are less likely to be responsible for each other; or (b) reducing the occupancy to four or less tenants, making the house exempt from the requirements of Part 9 of the Code.
(iii) Are the rooms operated as a housekeeping unit?
With respect to the third requirement in the definition of dwelling unit, both parties submitted extensive evidence to characterize the occupancy. The Appellant presented testimony from Bisma Tahir (who described the relationships among occupants during her tenancy), testimony from Mr. Kong and testimony by Paul Schuster, a retired Chief Fire Official who was retained by Mr. Kong to inspect the house. The Respondent presented testimony from Inspector Summers and from Peter De Boer, Assistant Chief Fire Prevention Officer with the Hamilton Fire Department, regarding a “Student-Occupied Housing Inspection Checklist” that was prepared for the property shortly after the October 2014 fire.
In terms of the case law reviewed above, the evidence includes characteristics that are typical of a housekeeping unit, and other characteristics that have been found to be typical of a boarding, lodging or rooming house. Given the Commission’s finding that the premises do not operate under a single tenancy, it is not necessary to go on to determine whether the rooms operated as a housekeeping unit.
(iv) Determination of Occupancy
In the absence of a single tenancy, the Commission finds that that the building does not operate as an individual dwelling unit as defined by the Fire Code.
A building that is not an individual dwelling unit but which contains residential occupancies may be subject to s. 9.5 of Division B of the Fire Code (Buildings up to and Including 6 Storeys in Building Height with Residential Occupancies), unless it is subject to Section 9.3 of the Code (Boarding, Lodging and Rooming Houses).
Since it has been previously established that the Appellant’s building meets the characteristics described in s. 9.3.1.1(1) of Division B of the Code, the Commission finds that the requirements for a boarding, lodging or rooming house, as provided by Part 9 of Division B of the Code, apply to 50 Westwood Avenue, Hamilton.
(c) Question of Adverse Inference
The Respondent argued that the Appellant did not provide relevant documents that only he could have provided, and that therefore an adverse inference should be drawn with respect to these items. The Respondent submitted case law and explanations of the law of adverse inference, concluding that the Appellant’s action “may amount to an implied admission that the evidence will be contrary to the party’s case...or at least would not support the party’s case”.
The Respondent’s final submissions include emails to the Counsel for the Appellant (sent prior to the hearing) asking for relevant insurance policies, current and historical tenant lists and current and historical tenant leases. With the exception of the Bisma Tahir lease previously discussed, this documentation was not provided to the Commission.
The Commission has found that the evidence provided by the Appellant, which did not include a current lease, fails to establish that the property constitutes an individual dwelling unit with a single tenancy. Therefore for the purposes of this hearing, it is not necessary to evaluate the question of adverse inference.
(d) Are Measures Necessary to Ensure Fire Safety?
- The issue of fire safety at the Appellant’s property was addressed by both parties. Mr. Kong testified that he has complied with some of the safety measures that were upheld by the Review Decision and is endeavouring to comply with the order to construct a second exit from the basement. Mr. Kong described the requirements to install fire separations and self-closing, fire rated doors at stairwell exits as impractical and unappealing to prospective student tenants who would want to live together as a group.
Mr. Kong also testified that, although he has no fire safety expertise, he is concerned that the stairwell exit doors would make it difficult for occupants to call out to each other in the event of a fire.
The Appellant’s fire safety consultant, Paul Schuster, testified that although he considered the house to be a single dwelling unit, the measures cited in the original Inspection Orders would be justified if the premises were used as a lodging house and that a second exit from the basement is required regardless of the occupancy classification.
It is the Respondent’s position that the house was originally constructed with two bedrooms, and that the three ground floor bedrooms and four basement bedrooms were added later. Testimony by John Lane (Manager of Building Inspections at the City of Hamilton Building Department) and by Mr. Kong confirmed that the four basement bedrooms, kitchen and bathroom were constructed, without a building permit, after Mr. Kong purchased the house in 2010. Mr. Lane testified that when an application is made to construct a second kitchen in a house, the owner is required to sign an agreement that the house will not be occupied by more than one family.
The Commission finds it significant that, because the basement construction was undertaken without a building permit, the City did not have an opportunity to evaluate fire safety before the construction. The City’s first evaluation was made by Inspector Summers when visiting the house following the October 2014 fire. The resulting Orders are evidence that the City would not have approved the basement addition as constructed by Mr. Kong.
Clearly the fire safety measures that were originally approved for the construction of this house were not designed for its current configuration.
The Respondent stated the position that the measures specified in the Orders are necessary to ensure fire safety for the current use of the building, regardless of the occupancy classification under the Fire Code.
Inspectors Summers and De Boer testified that many of the measures in the Orders are designed to contain the spread of a fire. Inspector De Boer testified that a fire in the basement or main floor kitchen could spread smoke rapidly throughout the building, and that doors at the stairwell exits (as required by the Orders) would slow the spread so that occupants, alerted by smoke alarms, would have an opportunity to get out.
Inspector De Boer described groups of unrelated occupants as being more vulnerable than in a traditional single family home situation, where there is a leader, such as a mother or father, who gives occupants direction and keeps them accountable to the rules of the house.
While recognizing that the submissions demonstrated cooperative living arrangements and friendships between at least some of the tenants, the Commission also notes the observation in Ottawa v. Bentolila, in which the Court stated:
....many of the fire safety measures [in the Ontario Fire Code] are more stringent in buildings accommodating those residents not related by some sort of bond, such as by consanguinity or domestic intimacy. The rationale for this would appear to be that, in the event of a fire, people associated with one another, such as those in a family group, are more likely to advert to the evacuation needs of their own members. This may not necessarily be true in the case of strangers.
The Commission recognizes Mr. Kong’s testimony that he is a father himself and has concerns for the safety of his tenants. He has demonstrated some level of concern by already undertaking some - although not all - of the measures required in the Orders. However, by his own admission he does not have expertise in fire safety or, surprisingly for someone who operates multiple rental houses, an awareness of his responsibility to obtain a building permit to undertake certain types of construction and renovation. The house at 50 Westwood Avenue has two kitchens and nine bedrooms, some of which were constructed by Mr. Kong without a building permit and without any evaluation of what fire safety measures may be necessary for this new configuration. Testimony demonstrated that in the 36 month period from May 2012 to May 2015, a period when not all nine bedrooms were occupied, there were at least 15 different tenants. This is not suggestive of a consistent, stable group of tenants acting as a single, cohesive unit throughout the tenancy. There has already been a fire that could have resulted in the death of some of the tenants, potentially trapped because Mr. Kong illegally constructed basement rooms with no secondary exit. Despite Mr. Kong’s stated intentions, he has not complied with relevant regulations and appropriate permitting processes that have been designed, by persons who do have fire safety expertise, to ensure the safety of tenants.
The Commission finds the Respondent’s evaluation of fire safety persuasive, particularly because the City was not previously provided an opportunity to evaluate the fire safety of the unpermitted construction, because the fire safety measures for this house were not designed for its current configuration and use, because the City’s evaluation demonstrates a potential fire safety risk to occupants, and because the Commission recognizes that the nature of the occupancy could be particularly vulnerable in a fire. The only other evaluation of fire safety made by a person with expertise was by Mr. Schuster, who agreed that the measures in the Inspection Orders would be appropriate if the building were not classified as an individual dwelling unit.
The Commission therefore finds that the measures contained in the Review Decision are necessary to ensure fire safety on the land and premises of 50 Westwood Avenue, Hamilton, in accordance with the provisions of s. 21(1) of the FPPA, the subsection under which the original Inspection Orders were issued.
CONCLUSION
- The Commission finds that there was no single tenancy and accordingly the Appellant’s building is not an individual dwelling as defined by the Fire Code. It is, therefore, not exempt from the parts of the Code that form the basis of the Review Decision. The fire safety inspection conducted by the Hamilton Fire Department, which constitutes the only fire safety evaluation performed by the City of unpermitted new construction in the basement, the potential fire safety risk to occupants and the vulnerable nature of the occupancy leads the Commission to conclude that the measures contained in the Review Decision are necessary to ensure fire safety at the Appellant’s land and premises. The Review Decision is therefore upheld, with modifications to dates of compliance.
ORDER
Pursuant to the powers of the Commission under section 26(6) of the FPPA, the Commission confirms the Review Decision of the Fire Marshal Delegate dated May 22, 2015, subject to amended dates of compliance.
The Commission amends the compliance dates for items in the Review Decision as follows:
Order 1
- Items 1 and 2 (repair openings, illuminate stairwell)
The work shall be completed byOctober 28, 2016.
- Item 3 (test extinguishers)
The work shall be completed by October 13, 2016.
- Item 4 (fire safety plan)
The work shall be completed by October 13, 2016.
Order 2
- Item 1 (provide 30 minute fire separations at stairwell exits)
The work shall be completed by November 28, 2016.
- Item 3 (provide a second exit from basement)
The work shall be completed by November 28, 2016.
- Items 4 and 5 (provide portable fire extinguishers)
The work shall be completed by October 13, 2016.
A re-inspection of the premises by the Hamilton Fire Department shall be conducted on October 31, 2016 and November 29, 2016 to confirm compliance with the Review Decision and Order.
The Commission reminds Mr. Kong of his responsibility to obtain a building permit for any work at the house that requires a building permit, and to comply with any other relevant regulations.
The Commission notes that Inspector De Boer testified that alternative measures could be acceptable to the Hamilton Fire Department if they are stamped by an engineer and meet the functional statements and objectives of the Fire Code. Mr. Kong may replace the measures required by the Review Decision with alternatives such as these, provided that they are approved by the Hamilton Fire Department in writing and prior to implementing the alternative measures.
If the occupancy at the house is reduced to four persons or less, the measures in the Review Decision pertaining to Part 9 of the Fire Code, specifically Item 1 of Order 2 of the Review Decision (fire separations at stairwell exits) are rescinded.
This decision is specific to the circumstances at 50 Westwood Avenue, Hamilton. The details of occupancy can differ significantly from one building to the next and should be considered individually.
Released: September 28, 2016
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Tammy O’Neill, Vice-Chair
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Douglas J. Ritcey, Member
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Raymond Ramdayal, Member