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 Chatham-Kent Fire and Emergency Services (“Chatham”)
For the Proposed Intervener: Sylvia Davis, Counsel for Office of the Fire Marshal
Held by teleconference: May 7, 2018
DECISION and ORDER
Overview
1This is a motion brought by counsel for the appellant, Norquay, seeking production of documents by the respondent. The documents sought include the following:
a. Any directions or inspection orders that were issued to the owners of 102 properties inspected by the respondent and referred to in the affidavit of Inspector Sproule sworn on January 19, 2017.
2The appellant owns a residential apartment building at 201 Campus Parkway, Chatham, Ontario.
3An 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.
4The 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, that the inspection order was unjustified and unreasonable because the fire alarm system was fully operational and could be adequately heard throughout the building.
Issues
5There was no issue as to whether I had the jurisdiction to grant an order requiring the production of documents to the appellant. Under the Statutory Powers Procedure Act, R.S.O. 1990, c S.22 (SPPA) a tribunal may receive evidence at a hearing that is relevant to the subject matter of the proceeding, and not unduly repetitious. The SPPA also permits a tribunal to make rules governing its practices and procedures.
6The respondent’s position was that as the appellant’s motion was a “fishing expedition” the request should be rejected or, alternatively, that the request was far too broad. Additionally respondent’s counsel argued that the details of the other inspections at other places under varying circumstances were irrelevant to the issue of what transpired at the subject property. Additionally, privacy issues would require redaction of some information. Further, given that the hearing is scheduled to proceed in less than two weeks, the motion is not timely and would pose an undue burden on the respondent.
7The Fire Marshal’s office had enacted a guideline regarding the acoustics of fire alarms. The moving party argued that the guideline operated as a mandatory standard to be enforced by inspectors without discretion and without regard to other factors relevant to the subject property. The Inspection Orders at the other properties could help establish that the respondent’s inspectors did treat the guideline as mandatory.The appellant’s counsel pointed out that they had been requesting the documents, informally, for many months, and that in any event the time for exchanging documents had not yet passed. He pointed out that these records were likely retained by the respondent in electronic form so that producing them was not necessarily onerous.
Reasons for Decision
8A motion seeking to compel production of documents is not a fishing expedition if the moving party can show an arguable case that there may be relevant documents in the respondent’s possession. At this stage it is not a requirement that the moving party know whether any such documents actually exist. The responding party typically has an opportunity to establish a valid reason why an arguably relevant document should not be disclosed – for instance on the basis of privilege or privacy interests of third parties.
9Inspector Sproule prepared an affidavit for use on the Fire Marshal’s review that included a reference that almost 100 % of apartment buildings in Chatham had been inspected. He provided a chart listing the properties by addresses, date of inspection and some information regarding the acoustic arrangement. The chart did not disclose which, if any, properties had passed or failed an assessment of the acoustics of any fire alarm system.
10If any of these properties were required to take remedial steps to upgrade the alarm system based solely on the application of the guideline, then the appellant’s position that the guideline was mandatory and usurped existing legislation and fire safety regulations could be arguable. Of course, ultimately the relevance or weight of any such evidence will be determined by the panel hearing the appeal.
11However, the appellant has shown no relevance to this argument in the case of properties that “passed” inspection and for which no orders were made, or “failed” inspection for reasons unrelated to the fire alarm system.
12Having found that some of the files may contain relevant information, I must consider whether disclosure can be made without placing an undue burden on the respondent, given the time constraints. In my view this can be achieved with an order requiring production only of inspection orders where the order specifically deals with the rectification of acoustic issues related to fire alarm systems. The privacy of third parties may be protected by redaction of identifying information.
13On this basis I am prepared to grant the motion and hereby make an order directing production of the documents as follows:
a. The respondents are to produce to the appellant the following documents:
i. All inspection orders made in relation to any of the 102 properties mentioned in the Inspector Sproule’s affidavit sworn on January 19, 2017 that required action to be taken regarding acoustic issues relating to the operation of the fire alarm system.
ii. The respondent may redact any information necessary to protect the privacy interests of third parties.
Released: May 10, 2018
____________________________ John Kromkamp, Vice Chair