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:
Norquay Campus Properties Ltd.
Appellant
and
Chatham-Kent Fire and Emergency Services
Respondent
MOTION DECISION AND ORDER
Facilitator: John Kromkamp, Vice-Chair
Fire Safety Commission
Appearances:
For the Appellant: Kristin Ley and Joe Hoffer, counsel for Norquay Campus Properties Ltd. (“Norquay”)
For the Respondent: John Norton and Emily Crawford, counsel for The Corporation of the Municipality of Chatham-Kent (“Chatham”)
For the Proposed Intervener: Sylvia Davis, counsel for the Office of the Fire Marshal
Held by teleconference: May 7, 2018
DECISION and ORDER
Overview
1This is a motion brought by counsel for the proposed intervener, the Office of the Fire Marshal, seeking to participate in this appeal. All parties agreed that the Fire Marshal should be permitted to participate in the appeal. The respondent’s only concern was that it did not wish the intervention to result in a delay in the appeal, scheduled to be heard in about two weeks. Both the appellant and the proposed intervener agreed that the matter must proceed as scheduled.
2The appellant suggested that the Fire Marshal be added as a party to the appeal, while the Fire Marshal suggested it should participate only as a “friend of the court.”
3The appellant owns a residential apartment building at 201 Campus Parkway, Chatham Ontario.
4An inspection order was made on November 29, 2016, directing certain remedial steps to be taken in respect of the perceived inadequacy of the fire alarm system at the apartment building. On June 7, 2017, a review order was made by the Fire Marshal confirming the original inspection order.
5The appellant appeals two aspects of the Review Order to the Fire Safety Commission asserting:
a. That the inspector lacked jurisdiction to make an order enforcing the terms of technical guidelines relating to the operation of the fire alarms.
b. Alternatively, the inspection order was unjustified and unreasonable because the fire alarm system was fully operational and could be adequately heard throughout the building.
6The guideline referred to was promulgated by the Office of the Fire Marshal and distributed to Fire Services throughout the province. At the risk of over simplification, the appellant’s position is that this was not merely a guideline but was intended or was taken to be a mandatory standard to be applied by inspectors. The appellant’s position is that the making of a mandatory standard by the Fire Marshal is not authorised by provisions of the Fire Protection and Prevention Act and conflicts with provisions of the Fire Code. As such the Office of the Fire Marshal Office overstepped its authority and has no jurisdiction to make such a “guideline”. In enforcing the guideline the inspector exceeded his authority, and therefore the inspection order was invalid.
Issues
7The Fire Marshal’s position was that it wished to argue only the issue of the right of that office to make and distribute technical guidelines to Fire Services throughout the province. Presumably that argument includes the effect of such guidelines. Counsel advised that the Fire Marshal had no interest in making argument on the merits of this particular case, especially in light of the fact that the appeal is technically from the Fire Marshal’s review decision. Therefore she suggested that intervention as a friend of the court was most appropriate. She expressed a concern that if added as a party, her client would be faced with a demand for disclosure, which could lead to further delays. Counsel for the appellant gave assurance that they did not have any current intention to seek further disclosure. Their position was that they wished to have the Fire Marshal added as a party so that the Fire Marshal would be bound by the decision of the Commission.
Reasons for Decision
8The Fire Marshal’s jurisdiction to make the guideline and the effect of such guidelines is potentially a key issue in this appeal. As a result that office has an interest in this appeal as its authority will be directly affected by the result. This interest is proximate enough to justify adding the Fire Marshal as a party. At the same time that office has no similar interest in the actual underlying appeal. Although being added as friend of the court has the advantage of being insulated from party obligations, it has the disadvantage of not providing appeal rights should the decision be adverse. Similarly it has the disadvantage to the appellant of not legally binding the Fire Marshal after full argument has been made on the issue. After some discussion between the parties and me, counsel suggested the possibility of making the Fire Marshal a “partial party” on the jurisdictional issue only. Although normally the granting of party status to an intervener carries the full rights of a party, in appropriate cases, the order granting such an intervention may include terms limiting the intervener’s rights and obligations as a condition for granting intervention. This is such a case.
9As a result I make the following order granting the Fire Marshal’s motion.
a. The Office of the Fire Marshal may intervene in this appeal as a party on the issue of the jurisdiction of that office to make the guideline in question on this appeal, and the effect of that guideline on fire inspections.
b. The intervener shall make no other argument on the merits of the appeal.
c. The intervener shall take the record as filed by the parties, including material filed at the earlier proceedings in Divisional Court, and shall not seek to augment the record with new evidence.
Released: May 10, 2018
____________________________ John Kromkamp, Vice Chair