FIRE SAFETY COMMISSION
Safety, Licensing Appeals and Standards Tribunals Ontario
COMMISSION DE LA SÉCURITÉ-INCENDIE
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Kadir Yilmaz Appellant
and
Greater Sudbury Fire Services Respondent
MOTION DECISION AND ORDER
Order made by: Luisa Ritacca, Vice-Chair Fire Safety Commission
Appearances:
For the Appellant: Kadir Yilmaz for Anatolian Homes Inc.
For the Respondent: Mike Lindroos, Fire Prevention Officer (Moving Party) Greater Sudbury Fire Services
Held by teleconference: August 7, 2018
Overview
1The Respondent, the Greater Sudbury Fire Services issued an Inspection Order upon the Appellant, Anatolian Homes Inc. on July 31, 2017, under the authority of section 21 of the Fire Protection and Prevention Act, 1997 (FPPA). The Order was made pursuant to clause (g) of subsection 21(1) of the FPPA.
2On August 3, 2017, the Appellant requested a review of the Inspection Order in a letter to the Fire Marshal. The Fire Marshal’s Delegate conducted a review and released a decision on March 21, 2018, upholding the majority of the items set out in the Inspection Order, modifying one item and rescinding another.
3The Appellant sought a further appeal from the decision of the Fire Marshal’s Delegate with respect to item #1 in the Inspection Order. Item #1 relates to the accumulation of combustibles found at the rear west side stairwell.
4The appeal remains outstanding. The parties have participated in three case conferences, including one on July 25, 2018. A further case conference is scheduled for August 15, 2018.
5The fire department brings a motion for an order lifting the automatic stay of the Inspection Order so that it can “proceed with prosecution” of the Appellant.
6For the reasons that follow, I deny the motion for an order lifting the automatic stay of the Inspection Order.
Facts
7The Appellant owns a building in Sudbury, which is approximately 388 m2 and is two storeys in height, built of combustible materials. The building contains within it six dwelling units with two on each floor. There are two open stairwells, each of which provide exit from the first and second floors, with the east side stairwell extending to the basement level. The two stairwells are connected and open to each other from first and second floor landings. The basement has a service room and the building has emergency lighting and exit signs above each exit doorway.
8The building has an interconnected smoke alarm system with pull stations in the shared stairwells.
9As set out above, the Respondent issued an Inspection Order on the Appellant’s property on July 31, 2017. The Inspection Order identified a number of fire safety issues, including the following:
a. the accumulated combustibles within the rear west side stairwell pose a fire hazard that if the combustibles ignited, the path of egress would be obstructed, and possibly trapping persons within their own dwelling units.
b. the exit sign in the rear west side exit door way requires to be illuminated so in a possible fire emergency, as it will facilitate the timely movement of persons to the outside of the building.
c. fire rated doors are required on the closets underneath the east stairwell and any door that is opening onto a stairwell or public corridor within the building to retard the effects of fire on areas beyond its point of origin.
10The Inspection Order identified work to be done by the Appellant in order to alleviate the fire safety issues set out above. The work ordered included the removal of the double sink and all storage out of the open stairwell on the lower level of the stairwell on the west side. The Appellant was also ordered to remove all combustible material from the service room in the basement.
11The Inspection Order was subject to review by the Fire Marshal’s Delegate, who upheld the order, save for one modification and one rescission.
12The Appellant sought to appeal the decision with respect to item #1, the removal of the sink and all combustibles in the west side stairwell.
13On July 25, 2018, the Appellant and Respondent participated in a case conference before Fire Safety Commission Vice-Chair Clarke. This was the third case conference in this matter.
14During this case conference the parties discussed the possibility of changing the use of the west side stairwell, so that the Appellant would not have to remove the sink, washer and dryer. The Respondent did not oppose the solution, so long as the renovation from stairwell to enclosed room was done with formal drawings and with approval from the Greater Sudbury Building Department.
15The Appellant agreed to submit a complete building permit application to the Greater Sudbury Building Department by no later than July 30, 2018. Vice-Chair Clarke issued an order on July 26, 2018 giving effect to the parties’ agreement.
16The Appellant failed to comply with Vice-Chair Clarke’s order. The Respondent confirmed that no building permit applications have been submitted for the building and that there is no signage on the property to suggest otherwise.
17On behalf of the Appellant, the owner, Mr. Yilmaz conceded that he did not file the building permit application and that he does not have the drawings available. Mr. Yilmaz explained that he does not live in Sudbury and as such has been relying on his contractor to take the steps required to obtain the proper approvals from the city.
18The parties have a further case conference scheduled for August 15, 2018. Given the Appellant’s failure to comply with Vice Chair Clarke’s order, the Respondent brings this motion to lift the stay.
Issue
19The issue on this motion is whether it is necessary in the interest of public safety that the automatic stay of the Fire Marshal’s Review Order be lifted.
The Law
20Section 26(1) of the Act, provides in part that any person who considers himself or herself aggrieved by an order made by the Fire Marshal under subsection 25 may appeal the order to the Fire Safety Commission.
21Subsection (7) provides that an appeal under subsection (1) operates as a stay of the order pending the outcome of the appeal.
22Finally, subsection (8) provides that the stay may be lifted by the Fire Safety Commission where it is of the opinion that the lifting of the stay is necessary in the interest of public safety.
Parties’ Positions
(i) The Fire Department
23The Respondent submits that the lifting of the stay is required so that it can proceed with further steps to ensure compliance by the Appellant. The Respondent is frustrated by the Appellant’s apparent unwillingness to take appropriate steps to address the fire department’s concerns. The Respondent does not believe that the Appellant will obtain the building permit required to complete the proposed renovation of the stairwell.
24The Respondent contends that the lifting of the stay is necessary so that the fire department can proceed with the laying of an information and summons under Part 3 of the FPPA.
25The Respondent did not point to any specific fire safety concern other than to submit that the Appellant’s refusal to comply is in and of itself a safety concern such that the lifting of the stay is in the interest of public safety.
26It should be noted that the Appellant has complied with all aspects of the Fire Marshal’s Review Order, save for item #1 which is the only item currently under appeal and which relates specifically to the west side stairwell.
(ii) The Appellant
27Mr. Yilmaz conceded that he has not completed or submitted a building permit application with the Greater Sudbury Building Department. While it was not entirely clear from the submissions, it appears that Mr. Yilmaz relies solely on his contractor to provide him with information with respect to the required drawings and the building permit application process.
28Mr. Yilmaz explained that while he wants to comply, he has not been able to attend in Sudbury to follow up with his contractor about the permit application. He advised that he paid his contractor for drawings to be completed, but that he has not seen them and that he cannot confirm whether they even exist.
29Mr. Yilmaz argued that while he has yet to fully comply, he does want to do so and is continuing to take the necessary steps to ensure compliance.
Analysis
30Having reviewed the limited materials and having heard the parties’ submissions, I am not satisfied that an order lifting the automatic stay is necessary in the present circumstances.
31There is clearly an ongoing history between the Respondent and the Appellant with respect to this building. The Respondent appears to have taken numerous steps to accommodate and assist the Appellant to comply with the Order. The remaining issue with respect to the combustibles in the west side stairwell appeared to have been on the way to being resolved following the last case conference. Unfortunately, the Appellant failed to comply with Vice-Chair Clarke’s order in that regard.
32As a result and to date, the Appellant remains in breach of the order and the issue with respect to the stairwell remains outstanding. I appreciate the Respondent’s ongoing concern and frustration that the issue remains outstanding, as does the appeal. There have been no efforts to schedule a hearing of this matter.
33The Appellant’s failure to comply with the consent order to obtain a building permit does not give rise to an issue impacting the interest of public safety. It is troubling that the Appellant has chosen not to comply. This is an issue which ought to be canvassed at the next case conference; however, it is not an issue that warrants the lifting of the stay.
34The Act specifically provides for a stay of the operation of a Fire Marshal’s Review Order pending the outcome of an appeal to the Commission. The stay should only be lifted where there is clear evidence that it is necessary in the interest of public safety to require an Appellant to comply with an Inspection Order, pending an appeal.
35The Respondent has not provided a clear basis for an order lifting the stay.
Order
The Fire Safety Commission (the “Commission”) orders that:
1The request for a lifting of the automatic stay pending appeal is refused.
Date of Issue: August 8, 2018
Luisa Ritacca, Vice-Chair