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
In an appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4
Between:
2539943 Ontario Inc. o/a Spirit of the North, Canadian Addiction Recovery Network Appellant
and
Burk’s Falls and District Fire Department Respondent
DECISION
Panel: Barbara Hicks, Asad Ali Moten, Patricia McQuaid
Appearances:
For the Appellant: Jonathan M. Friedman, Counsel
For the Respondent: Martyn Payge, Fire Prevention Officer, Burk’s Falls and District Fire Department
Place and date(s) of hearing: Bracebridge, Ontario November 27, 28, 29, 2017
REASONS FOR DECISION
OVERVIEW
1This is an appeal by 2539943 Ontario Inc. o/a Spirit of the North, Canadian Addiction Recovery Network of four inspection orders made by the Burk’s Falls and District Fire Department. The July 2017 inspection leading to the orders at issue was not the first inspection made of the appellant’s property; the relationship between the two parties goes back much further.
2Between October 2016 and July 2017, the respondent fire department carried out several inspections at the appellant’s property. Some of these inspections were in response to complaints by the community, and others were based on the respondent’s investigation as to how the property was being used by the appellant.
3Inspection orders were issued on a number of these occasions. The appellant made attempts to either comply with or refute these inspection orders, and the interactions between the two parties grew acrimonious.
4This spilled over into July 2017, when, after the respondent was refused access to the property, Ontario Provincial Police were requested to assist the respondent in exercising an entry warrant. The four inspection orders were issued, each outlining several measures that the respondent felt necessary to ensure fire safety and compliance with the fire code.
5The appellant requested a review of these orders to the Fire Marshal, who in turn referred the matters directly to the Fire Safety Commission. The appellant argues that the measures contained in the orders are excessive and not grounded in issues of fire safety. Further, the appellant argues that the respondent’s characterization of the appellant’s use of the property, and its occupancy designation, forms the basis of many of the measures ordered by the respondent, and this characterization is incorrect. Zoning issues at the property have been a matter of dispute since at least 2011, and have been the subject of several legal proceedings.
6The issue before the Commission is whether the measures in the inspection orders are necessary to ensure fire safety. Based on evidence and arguments presented at the hearing, the Commission finds that some of the measures contained in the inspection orders are necessary to ensure fire safety. The Commission confirms and amends the orders as set out in paragraphs 115-117.
BACKGROUND
7The appellant leases a large lakefront property in Burk’s Falls. Dylan Maggiacomo is the sole director of the appellant, which operates what is characterized as an addiction recovery centre, focusing on health, wellness, and counselling. Clients come to the facility for upwards of 30 days. Based on their condition when they arrive, clients reside either temporarily in the infirmary in the Main Lodge, or in one of several residence buildings on the property.
8The owner of the property is Mr. Maggiacomo’s mother. There are several buildings on the property, including a Main Lodge, a Conference Centre, King Suites, Queen Suites, chalets, a staff residence, and a private residence. Most of the functioning buildings on the property are leased to the appellant.
9Prior to the appellant leasing the property, the property served as the premises for a similar business operated by another member of Mr. Maggiacomo’s family. That business ceased operation in the early part of 2016, and by October 2016, the appellant had taken over the property.
10The Main Lodge has a basement, two storeys in use above grade, and a third level that the respondent argues is a third storey, but the appellant contends is an attic. This discrepancy as to how to characterize the third level has no bearing on the fire safety issues in question, and is not considered by the Commission.
11On the first floor of the Main Lodge are a kitchen, dining room, lounge, reception and security office, and lobby. There are sleeping accommodations on the first floor for clients, as well as a nurses’ station. This sleeping area is an infirmary wing where clients requiring more attention stay until they are no longer in acute withdrawal.
12The second floor has staff offices, and a two-bedroom apartment. The third level is used for storage but has a plywood floor, a window, and a working light. It is accessed by a stairway on the second floor, which opens up through the floor on the third level. The basement of the Main Lodge has laundry facilities, storage rooms, an indoor pool,sauna, and a games room.
13The Conference Centre has two storeys above grade, with a large assembly area and laundry facilities on the main floor. The lower level has a gym with bathrooms/change rooms, and a service room.
14Martyn Payge is a Fire Prevention Officer (FPO) with the respondent, Burk’s Falls and District Fire Department. He completed his training in 2014 and spent some time shadowing previous FPOs in Burk’s Falls. As a result, he has been acquainted with the property in question for some time. Since FPO Payge is the only FPO for Burk’s Falls, most, if not all of the interactions between the respondent and appellant have involved FPO Payge.
15Tawnya Roberts is an Officer with the Office of the Fire Marshal and Emergency Management – Inspection and Enforcement Unit and was present for some inspections of the property. Part of Officer Roberts’ role is to attend with and assist Fire Prevention Officers in carrying out their duties as inspectors. Prior to the July 25, 2017 inspection, FPO Payge had contacted Officer Roberts for assistance, in part because of her prior knowledge of the property. Officer Roberts testified at the hearing.
16Between October 2016 and July 2017, FPO Payge attended the property on at least ten occasions to either speak with staff about fire safety issues or inspect the buildings. He had also attended the predecessor business on several occasions for similar purposes. These attendances were sometimes in response to complaints from unnamed members of the community or as follow ups from previous inspections. FPO Payge also attended on a few other occasions, outside of his role as an FPO, in order to assist other officials in their duties, or as an emergency first responder.
17The tone and outcome of these interactions were not always positive. Over time, both parties grew to distrust each other. The appellant believed that the respondent was scrutinizing them unnecessarily and issuing inspection orders out of spite, making it difficult to operate their business. The respondent believed that the appellant was trying to skirt the rules that governed the property’s use, and was not forthcoming with authorities on the nature of their business. The conflict between the parties came to a head in the summer of 2017.
18On July 20, 2017, FPO Payge and Officer Roberts went to the property to inspect the Main Lodge. They spoke to at least one client and two staff members. They were then asked to leave as the inspection was not pre-arranged. Their visit lasted only about 20 minutes. Officer Roberts advised staff that they would return with an entry warrant.
19They returned on July 25, 2017, with police escort, and executed an entry warrant. FPO Payge and Officer Roberts arrived accompanied by Fire Chief Dave McNay. They moved through the Main Lodge and Conference Centre to conduct their inspection. Staff from the facility escorted and video-recorded them throughout the process. The inspection lasted for nearly six hours.
20The July 25, 2017 inspection resulted in four inspection orders:
a. Order 020-17, issued on July 27, 2017;
b. Orders 024-17 and 025-17, issued on August 3, 2017. These orders are identical, but were served on the appellant and Mr. Maggiacomo respectively;
c. Order 028-17, issued on August 24, 2017.
Orders 020-17, 024-17, and 025-17 were issued pursuant to s.21(1)(f) of the Fire Protection and Prevention Act, 1997, S.O. 1997 c.4, (“the Act”) whereas 028-17 was issued pursuant to s.21(1)(g).
21At the outset of the hearing, the appellant advised that it had complied with or was intending to comply with items #4 (installation of a spare sprinkler head cabinet), #5 (removal of stool obstructing games room door), and #7 (repair broken latch on fire rated closure door) in Inspection Order 028-17. The respondent did not contest this assertion. As a result, these measures are no longer at issue before the Commission.
22These proceedings before the Commission are not the only proceedings involving these parties or their affiliates. There is ongoing litigation in Ontario Superior Court between the Township of Armour and the owners of the property. There was also, until recently, an appeal before the Ontario Municipal Board relating to the Township’s Official Plan. Most recently, in November 2017, the Court granted an interlocutory injunction to the Township restraining the operation of an addiction recovery centre on the property, and gave the appellant 15 days to wind down its operation. The Town and the appellant later reached an agreement to permit the appellant to continue operating the facility until March 15, 2018.
ISSUES
23The core issue before the Commission is whether the measures ordered in Inspection Orders 020-17, 024/025-17, and 028-17 are necessary to ensure fire safety. While each measure must be considered individually, the context of the inspection orders is relevant to this consideration.
24Specifically, the appellant raised the issue of whether the respondent’s characterization of the major occupancy of the facility as a ‘care’ or ‘care and treatment’ occupancy was appropriate. The appellant asserted that the respondent based some of the measures in the inspection orders on this characterization.
POSITIONS OF THE PARTIES
25The appellant asserts that when inspecting the facility, issuing orders, and seeking to enforce the orders, FPO Payge was acting outside his authority by trying to decide the major occupancy of the buildings. The appellant argues that issues regarding the permitted occupancies of the premises are to be decided by either the Ontario Municipal Board or the Ontario Superior Court.
26Notwithstanding that the issue of the facility’s occupancy designation will be decided elsewhere, the appellant argues that the way the facility is being used is appropriate for its current designation as a residential occupancy. Further, or in the alternative, the appellant argues that the measures contained within the inspection orders, besides those identified above, are not necessary to ensure fire safety.
27The respondent takes the position that Orders 020-17 and 024/025-17 were made pursuant to an inspector’s broad discretionary power under s.21(1)(f) of the Act to order any measures necessary to ensure fire safety. The measures in these orders are, in the respondent’s opinion, necessary to ensure fire safety because the nature of the appellant’s business (and thus the occupancy of the facility), combined with the deficiencies identified in the inspection orders, put the occupants and property at risk in the event of a fire.
28With respect to Order 028-17, the respondent’s position is that the measures in that order are made pursuant to an inspector’s power in s.21(1)(g) of the Act to order that an owner or occupant of land remedy any contravention of the Fire Code. It submits that all the issues noted in the order are contraventions of the Fire Code and require remediation.
29The respondent submits that full compliance with the Inspection Orders is required.
EVIDENCE AND ANALYSIS
The Main Lodge’s occupancy designation
30Both parties took strong positions and made arguments at length about the correct occupancy designation of the Main Lodge and Conference Centre. The respondent claimed that the Main Lodge is more accurately characterized as a ‘care’ or ‘care and treatment’ occupancy. The appellant argued that the buildings have always been and remain ‘residential’ occupancies, and that any statement by the appellant about the Main Lodge being a ‘care’ or ‘care and treatment’ occupancy was due to misleading information received from the respondent.
31For the purposes of clarification, and because so much time during the hearing was dedicated to this issue, s.1.4.1.2 of the Fire Code defines these occupancies as:
Care and treatment occupancy: an occupancy in which persons receive special care and treatment.
Care occupancy: an occupancy in which special care is provided by a facility, directly through its staff or indirectly through another provider, to residents of the facility
a) who require special care because of cognitive or physical limitations, and
b) who, as a result of those limitations, would be incapable of evacuating the occupancy, if necessary, without the assistance of another person
Residential occupancy: an occupancy in which sleeping accommodation is provided to residents who are not harboured for the purpose of receiving special care or treatment and are not involuntarily detained.
32These occupancies may have differing fire safety requirements under the Code. Therefore in the parties’ submissions, major occupancy designation formed a basis for arguing for or against the orders.
33It appears that this is the same battle being fought before the Ontario Municipal Board and the Ontario Superior Court. While the Commission has the power to determine a building’s occupancy for the purpose of applying provisions of the Fire Code, in this instance the Commission found it unnecessary to determine whether the Main Lodge is a ‘residential’, ‘care’ or ‘care and treatment’ occupancy. Orders 020-17 and 024/025-17 were made pursuant to s.21(1)(f) of the Act, which confers upon an inspector a broad discretion to issue an order without regard to a building’s occupancy designation. Order 028-17 was made pursuant to the inspector’s power to remedy contraventions of the Fire Code, and all of the contraventions identified would, if valid, apply to both ‘residential’ and ‘care’ or ‘care and treatment’ occupancies. As such, the Commission considered the core issue, namely whether the orders are necessary to ensure fire safety.
Are the measures in Inspection Order 020-17 necessary to ensure fire safety?
34Order 020-17 was made pursuant to s.21(1)(f) of the Act, 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;
35The order requires the appellant to:
a. Install smoke alarms in each suite containing sleeping accommodations and install one adjacent to the linen closet in the hallway serving the suites;
b. Install one carbon monoxide alarm in the hallway serving the suites containing sleeping accommodations.
36The order applies to the Main Lodge and describes it as having “3 stories (sic) above grade”. It goes on to state that it was formerly a hotel establishment now operating as a ‘care and treatment’ or ‘care’ building, without the appropriate change of use permit.
37The reasons for the order indicate that the sleeping suites and associated hallway lack smoke alarms; fire alarm system records were not available for review by the inspector; doors serving the suites and hallway lack fire protection rating and/or closures with fire protection rating; a service room is being used to store combustibles; and despite there being a fuel burning appliance that shares a floor/ceiling assembly with the sleeping accommodations, there is no carbon monoxide detector.
38With respect to the measure requiring smoke alarms, the respondent argues that the building is not sprinklered throughout according to applicable regulations based on its current use, and contains only a single stage fire alarm. The respondent requested testing and maintenance records for the fire alarm system, but those were not provided. As such, the respondent could not conclude that the system was functioning properly.
39The appellant argues that the fire alarm system in place has been and is sufficient for the current residential occupancy. Further, fire system inspection certificates have been previously provided to FPO Payge. The appellant is reticent to provide anything further to FPO Payge unless ordered to do so in writing.
40The Main Lodge currently has heat detectors in each room and hallway. These heat detectors are connected to a central fire panel. From that fire panel, a single loud bell sounds when the alarm is triggered. These heat detectors differ from smoke alarms or smoke detectors in that they use different mechanisms to detect fire, and have different activation times. Officer Roberts testified that she observed one carbon monoxide detector in the second floor apartment, but none in the infirmary wing.
41Section 21(1)(f) allows an inspector broad discretion to order measures, however a measure that is ordered must be necessary to ensure fire safety. The respondent cites Ontario Fire Code, Div.B, 2.13.2.1(1) as its basis for the measure with respect to smoke detectors/alarms. The Sentence states:
2.13.2.1(1) A smoke alarm shall be installed
(c) if a sleeping room is not within a dwelling unit, in the sleeping room, and
(d) on each storey without a sleeping area in a dwelling unit.
42This Sentence applies explicitly to “suites of residential occupancy and sleeping rooms not within a dwelling unit.” Thus, this provision of the Fire Code applies to the Main Lodge according to the current major occupancy of the building as described by the appellant.
43The Commission accepts the evidence that the measure requiring the appellant to install smoke alarms in each guest suite, and one in the hallway serving the guest suites is necessary to ensure fire safety.
44The Commission disagrees with the appellant’s assertion that the system currently in place is sufficient. Even with the certificates of inspection that the appellant produced, smoke alarms are not the same as heat detectors connected to a central panel. A heat detector is defined as “a fire detector designed to operate at a predetermined temperature or rate of temperature rise.” A smoke alarm is a “combined smoke detector and audible alarm device that is designed to sound an alarm within the room or suite in which it is located when there is smoke within the room or suite.”
45While the exact difference in efficacy between smoke detectors and heat detectors is debated by the two parties, there was no dispute that smoke detectors do activate faster. The respondent states that heat detectors take up to 90 seconds to activate, while smoke detectors require only half that time. The difference in time may not seem significant, but when every second counts it does provide the opportunity for faster evacuation of the building in the event of a fire. As such, ordering the installation of smoke alarms as required by the Code, and where smoke alarms would be more effective than the current system, is necessary to ensure fire safety.
46The appellant, in closing submissions, questioned the need for this measure given that FPO Payge had attended on numerous prior occasions and had not ordered the installation of the smoke alarms. While this may be frustrating, it does not negate the requirement when it is reasonably necessary for fire safety, nor is the cost to implement the measure in any way disproportionate to the risk it addresses.
47With respect to the measure ordering that a carbon monoxide detector be installed, the respondent argues that a carbon monoxide detector is necessary because of the fossil fuel burning appliance in the basement. Such appliances are a key cause of carbon monoxide leaks. Further, in the respondent’s opinion, individuals in the acute stages of drug withdrawal exhibit symptoms similar to carbon monoxide poisoning, making it difficult to tell the two situations apart without the assistance of a carbon monoxide detector.
48In the reasons for the order, FPO Payge stated that:
“the hallway serving suites containing sleeping accommodations share a common floor/ceiling assembly with a service room that contains a fuel burning appliance and lacks a carbon monoxide detector.”
FPO Payge could not identify what the fuel-burning appliance was.
49The appellant argues that no carbon monoxide alarm is needed as there are no fuel burning appliances anywhere close to the infirmary wing on the first floor. The infirmary wing is serviced by electric baseboard heaters and therefore there is no duct work. The natural gas furnace and hot water tank are located in the basement of another part of the Main Lodge and do not share duct work, a common wall, or floor/ceiling assembly with the infirmary wing.
50According to the appellant, the alleged fuel-burning appliance located under the infirmary is actually a heat recovery ventilation system, which circulates warm air from the pool room. There are no fuel burning appliances whatsoever in the pool area – an assertion supported by the photographs supplied by the respondent.
51The Commission finds no reason to disbelieve the appellant about the nature of the appliance in the service room. Given this, the Commission finds that FPO Payge’s reasons for ordering a carbon monoxide detector in the infirmary hallway, namely that the room where the appliance is located and the infirmary wing hall share a floor/ceiling assembly, is not applicable. Therefore, the measure ordering a carbon monoxide detector in the infirmary hallway is not necessary to ensure fire safety.
52However, the Commission notes that the evidence shows that there is still a carbon monoxide detector present on the second storey, presumably because the fuel burning appliances are on that side of the building. There is a fuel-burning appliance somewhere in the building, and the walls and ceilings have in some places been compromised so that air can pass from one section of the building to the other. As such, it would be prudent for the appellant to consider installing carbon monoxide detectors in the infirmary wing in any case.
53The Commission confirms the measure in the order with respect to installing smoke alarms, and rescinds the measure with respect to installation of a carbon monoxide detector.
Are the measures in Inspection Order 024/025-17 necessary to ensure fire safety?
54Orders 024-17 and 025-17 were also made pursuant to s.21(1)(f) of the Act, and apply to both the Main Lodge and Conference Centre. Broadly, the orders require the appellant to submit fire safety plans for both buildings and receive approval from the Chief Fire Official. More specifically, the orders list the elements that such safety plans should include. The detailed list is lengthy and unnecessary to replicate here.
55Additionally, the orders require supervisory staff at the facility to be trained on and provided with copies of the fire safety plan, and all training to be documented and retained for production upon request.
56Although FPO Payge could have issued the order pursuant to s.21(1)(g), he made the order pursuant to the general discretionary power in s.21(1)(f). The respondent testified that this was done to avoid stepping on the toes of the Chief Building Official, who had issued Orders against the appellant with respect to the use and occupancy of the Main Lodge.
57According to the reasons contained in the order, the lack of an approved fire safety plan increases the risk that supervisory staff would not know how to facilitate timely movement of people in the case of a fire emergency, and in particular for people requiring assistance. Further, not having consistent or universally understood emergency procedures could impede safe evacuation, and supervisory staff would not know how to control hazards or confine fires.
58The respondent states that the predecessor business had an approved safety plan, but that the appellant has not submitted anything for approval. At the time of the July 25, 2017 inspection, the respondent noted only old signs posted on some of the doorways relating to what to do in an emergency.
59The appellant argues that it has a fire safety plan. The appellant understood that it could simply adopt the predecessor’s plan and that would be sufficient. According to the appellant, this was communicated to them by FPO Payge in a conversation. Further, the appellant argues that if the appellant did not have an approved safety plan, and having one was so important, it would have formed part of one of the many orders issued by FPO Payge since the appellant began operating in 2016.
60In the alternative, the appellant argues that it does not need an approved fire safety plan, because the buildings in question are not of the type that are subject to Section 2.8.2 of the Fire Code. While the respondent issued the orders pursuant to s.21(1)(f), the appellant argues that they are not actually discretionary orders, but rather in substance and effect orders pursuant to the Fire Code. As such, because the buildings would not be subject to these provisions in the Code, they should not be subject to them as part of a discretionary order.
61The appellant points to photographs submitted as evidence that a fire safety plan exists. These photos show signs posted on some doors in the Main Lodge that indicate what to do in case of a fire. This includes where to meet once evacuated from the building, and how to use a fire extinguisher. There also appears to be a certificate of inspection, as well as some other information that could not be made out in the photos.
62In any case, this information is only part of what would be contained in an approved fire safety plan. The extent and detail of information in an approved fire safety plan, as described in Sentence 2.8.2.1(2) of the Code, is far greater than could be contained in these posted papers. Additionally, these emergency procedures presumably speak only to what to do in the Main Lodge, and do not reference emergency procedures specific to the Conference Centre. Even if the predecessor business had an approved fire safety plan, this does not appear to be it.
63Subsection 2.8.2 of the Code applies to all buildings to which Section 2.8 applies:
2.8.1.1(1) This Section applies to buildings containing:
(a) an assembly occupancy,
(e) a residential occupancy where the occupant load exceeds 10.
64The Conference Centre is an assembly occupancy. An assembly occupancy is the “occupancy or the use of a building, or part thereof, by a gathering of persons for civic, political, travel, religious, social, educational, recreational or like purposes or for the consumption of food and drink.” The Conference Centre serves as a place for clients to gather and participate in programming and it contains a gym facility. These are uses that fall within the above definition. Therefore, the Conference Centre requires an approved safety plan.
65The appellant argues that the Main Lodge is a ‘residential’ occupancy with sleeping accommodations for only 8 people, and not 11 as counted by FPO Payge. However, a letter from the appellant to FPO Payge dated October 26, 2016 indicates that the “main building will hold 12 beds total 10 in the infirmary wing and 2 in the apartment over the kitchen”.
66This letter is the source of some contention. The appellant alleges that it was misled into writing it by FPO Payge, who told the appellant it would protect him from liability by indicating in writing the maximum number of people he might have sleeping there and how many of them would be vulnerable. Instead the respondent relies on it as evidence of the appellant’s intent to operate as a ‘care’ or ‘care and treatment’ occupancy. The appellant withdrew this letter, and drafted a new letter clarifying the building’s use, but not addressing the number of beds in the Main Lodge. In addition, upon review of the floor plans and photos of the Main Lodge admitted into evidence the Commission finds that the building has at least nine observable beds in the infirmary wing and two in the staff apartment. This means an occupant load of 10 or more, and thus the Main Lodge is subject to emergency planning provisions in the Fire Code.
67Even if the appellant were to remove beds from the facility, occupant load is defined as “the number of persons for which a building or part thereof is designed.” The Main Lodge is designed for more than ten people if one includes clients, sleeping accommodations, security staff, housekeeping, and health professionals.
68The Commission concludes that an approved fire safety plan for the Main Lodge and Conference Centre is necessary to ensure fire safety. An order to that effect can be made pursuant to s.21(1)(f) or (g) of the Act. Therefore, the Commission confirms the measures in Order 024/025-17 requiring the preparation and submission of a fire safety plan for review and approval by the Chief Fire Official. The Commission also notes that the predecessor business did have an approved fire safety plan, and therefore compliance with this measure should not be onerous for either party.
69The order also requires the appellant to keep records of the training of supervisory staff on procedures in the fire safety plan. The Commission confirms this measure. As per the Code, making and retaining records of supervisory staff training is required only in cases where the building is a care, care and treatment, or retirement home occupancy. However, this order was made pursuant to s.21(1)(f), meaning that it is not necessary for the Code to strictly apply.
70Ordering the appellant to keep training records ensures that the appellant will remain compliant with the requirement to train supervisory staff. It also allows the respondent to monitor this compliance. The Commission has already identified that training supervisory staff, as part of the fire safety plan, is necessary to ensure fire safety. It follows then that a measure to ensure compliance with this is also necessary.
Are the measures in Inspection Order 028-17 necessary to ensure fire safety?
71Unlike the above orders, Order 028-17 was made pursuant to s.21(1)(g) of the Act, which permits an inspector to make an order requiring an owner or occupant to “remedy any contravention of the fire code.” The order identifies measures that, in the respondent’s opinion, are necessary to ensure compliance with the Fire Code. Under each of these measures, FPO Payge lists the Fire Code reference, contraventions identified, and actions required to remedy the contraventions. We will reference each item as set out in the order. As noted above, items 4, 5, and 7 are no longer an issue as the appellant has complied or was in the process of doing so.
72In order to confirm an order made pursuant to s.21(1)(g), the Commission must first find that an issue identified is a contravention of the Fire Code. It must then determine that the order is necessary to ensure fire safety, and is reasonably linked to the contravention. It bears repeating that for the purposes of this decision, the Commission did not find it necessary to determine whether the facility was a ‘care’ or ‘care and treatment’ occupancy as alleged by the respondent, or a ‘residential’ occupancy as argued by the appellant. The measures in Order 028-17 all apply to both types of occupancies.
Item 1: Fire alarm system test records; and Item 2: Emergency lighting test records
73Item 1 requires the appellant to provide fire alarm system test records for the Main Lodge and Conference Centre. According to the respondent, these records were requested at the end of the July 25, 2017 inspection, but were refused. The appellant states that the records were not refused, but that FPO Payge was advised that any request for records would have to be in writing, in the form of an order.
74Article 6.3.2.2 of the Fire Code requires fire alarm systems to be inspected and tested according to specific standards. It also provides that records of inspection and testing shall be kept in accordance with Article 1.1.2.1. Because the Main Lodge has a fire alarm system, it is subject to these provisions and the appellant is required to maintain records of inspection and testing. The requirement to make these records available to the respondent comes from Article 1.1.2.3. Without these records, the respondent has no way of confirming whether the fire alarm system has been inspected, and is in working order. The Commission finds this measure necessary to ensure fire safety.
75Similarly, Item 2 requires the appellant to provide testing records for the emergency lighting units in the Main Lodge and Conference Centre. Article 2.7.3.3 requires pilot lights and emergency lighting equipment to be checked, inspected, and tested on a regular basis. And, as in the first measure, records of same must be kept, and provided upon request, pursuant to Articles 1.1.2.1 and 1.1.2.3. The Commission finds this measure necessary to ensure fire safety.
Item 3: Maintenance of exhaust and fire protection systems
76This item addresses issues identified in the kitchen and cooking area of the Main Lodge. Article 2.6.1.13 of the Fire Code states that where there is cooking and ventilating equipment, exhaust and fire protections systems must be maintained in accordance with the NFPA 96 Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations. The measures ordered in this case include:
a) Install one 10B:C portable fire extinguisher in the kitchen;
b) Provide annual inspection and test records of the fixed suppression system and documentation to the Chief Fire Official;
c) Make necessary repairs to secure the grease collection drip tray as designed;
d) Affix a visible placard adjacent to the K type portable fire extinguisher in the kitchen that states the fixed fire suppression system shall be activated prior to using the K type portable extinguisher in a fire emergency;
e) Provide semi-annual inspection and cleaning of cooking ventilation system documents to the Chief Fire Official;
f) Repairs be made as necessary by certified technician to re-position the fixed suppression system nozzles above the cooking equipment in accordance with NFPA 96.
77In November 2016, FPO Payge inspected the kitchen and cooking area. At that time, he noticed defects and issued an inspection order on November 23, 2016. The items in that order related to the exhaust system for cooking equipment and the automatic fire extinguishing system for the cooking equipment, as well as proper record keeping of required inspection and testing of same. That order was appealed and modified by a Review Decision of the Fire Marshal to be more specific to the actions required to alleviate Fire Code noncompliance. In January and April 2017 FPO Payge attended the premises to ensure that the issues had been remedied in accordance with the order. By April 25, 2017, the appellant had remedied all the kitchen issues.
78According to the appellant, if the kitchen issues identified in this order were legitimate and necessary to ensure fire safety, FPO Payge would have identified them on any of his three previous visits, and included them in an inspection order. The respondent argues that not all of the kitchen and cooking area was examined on those previous occasions, and as a result FPO Payge did not notice the defects identified in Order 028-17 until the July 25, 2017 inspection.
79The Commission agrees that some of the measures address contraventions which would have been readily apparent in November 2016. For instance, a fire extinguisher is often in an obvious location, and it is either there or it is not. Even if they were not noticed then, FPO Payge made at least two subsequent visits to the kitchen with the express purpose of ensuring compliance with a previous inspection order. While attending, he made note of other violations in other parts of the building. It is unlikely that he would have not observed further violations in the kitchen area.
80Although it is frustrating for the appellant that further violations keep being found and included in orders, this does not take away from the fact that these violations existed at the time of the inspection. Further, the nature of the violations are such that not remedying them presents a significant risk to fire safety. As such, the Commission confirms measures (a), (c) and (f).
81If the respondent felt that there had been a deterioration in the condition of the exhaust and protection equipment in the kitchen, even since the April 2017 inspection, a practical first step would be to order that inspection and maintenance records be provided. The Commission finds that the requirement to provide inspection and maintenance records is necessary for the respondent to ascertain the current condition of the exhaust and protection equipment, and accordingly find that it is necessary to ensure fire safety. Therefore, measures (b) and (e) are confirmed.
82Lastly, with respect to (d), Article 2.6.1.14 of the Code requires that instructions for manual operation of the fire protection equipment be conspicuously posted in the kitchen, and that these instructions also be included in the fire safety plan. As discussed above, a fire safety plan is required in this circumstance, and pursuant to this Article, instructions on activating the fire suppression system before using the fire extinguisher form part of that plan. Therefore, the Commission confirms measure (d).
Item 6: Damage to fire separations
83Article 2.2.2.1 of the Code states:
2.2.2.1 Where the fire separations between rooms, corridors, shafts and other spaces are damaged so as to affect the integrity of their fire-resistance rating, the damaged fire separations shall be repaired so that the integrity of the fire separations is maintained.
84FPO Payge identified 19 contraventions of the above Article in the Main Lodge. These contraventions take a variety of forms, from nicks and dents in the drywall to exposed inner wall studs. The respondent argues that damaged fire separations risk fire safety because they no longer serve as an effective barrier to the spread of fire, smoke, and gases.
85In the normal course, a fire separation wall would be a continuous wall of drywall, behind which would be a stud wall, and another drywall. Between floors, a fire separation would be ceiling drywall or fire tile, then floor joists, subfloor, and flooring. The important part of this, according to the respondent, is that a fire separation wall or ceiling needs to be continuous, otherwise its fire separation rating is compromised.
86Without adequate fire separation, a fire that starts in one room can penetrate into the walls or ceiling quickly and spread to other rooms via the wall cavity. Further, a sufficiently damaged fire separation means that oxygen from other parts of the building can feed a fire whose spread would otherwise be slowed by proper fire separations.
87The appellant argues that by the respondent’s logic, any damage to the walls, no matter how insignificant, would constitute damage to a fire separation. However, the appellant submits that many of the contraventions identified by the respondent do not rise to the level of affecting the integrity of a wall or ceiling’s fire-resistance rating.
88The Commission agrees with the appellant’s argument that in order to affect the integrity of a fire-resistance rating, damage to a fire separation must be more than superficial. The language in the Code lends to this conclusion. It states, essentially, that repairs must be made where separations “are damaged so as to affect the integrity of their fire-resistance rating” [emphasis added]. The wording of this provision implies that there are instances where there may be damage to a fire separation, but that damage is not significant enough to require repairs because it does not affect fire-resistance.
89After reviewing the photographs and hearing the testimony, the Commission concludes that the majority of contraventions identified by the respondent do, in fact, affect the fire-resistance rating of the fire separations. The respondent provided a registry of photographs documenting each of the alleged contraventions. In many of these, the interior wall studs, insulation, or piping is plainly visible. A fire on one side of these fire separations could easily spread by entering the wall cavity, thus rendering the fire separation useless as a “barrier against the spread of fire.” The Commission confirms the measure requiring the appellant to repair all damaged fire separations, subject to the paragraphs below.
90Of the contraventions identified, only one does not rise to the level of damage to a fire separation. The photograph of the second closet in the infirmary wing shows what appears to be a minor dent in the wall, where some of the top layer of the drywall is scraped off. The interior structure of the wall is not exposed. This contravention need not be remedied for the purpose of ensuring fire safety.
91Further, in some of the contraventions identified in the basement, a fire sprinkler system can be an acceptable alternative to a drywall-based fire separation. In this instance, FPO Payge requested fire sprinkler testing and maintenance records for sprinklers located in part of the basement. Not receiving these records, FPO Payge could not conclude that the sprinklers were an adequate replacement for a fire separation, and therefore cited the appellant for an improper fire separation.
92While it is true that FPO Payge could not determine if the sprinklers were an adequate replacement for fire separation, he was also unable to determine that they were not. He did not have the records to make that determination.
93FPO Payge could have ordered the appellant to produce fire sprinkler records in order to make that determination, but did not do so in this instance. Therefore, regarding the contraventions cited in the basement areas, excluding the covered electrical panel, the Commission amends the order and states that compliance may also be achieved by production by the appellant of current sprinkler testing and maintenance records that satisfies the respondent that the sprinkler is in good working order.
Item 8: Damage to closures affecting the fire protection rating
94The respondent argues that the door separating the nurses’ station from the infirmary wing hallway is a damaged fire separation. The door is a standard wood door that has been cut horizontally nearly halfway down. The top half of the door swings independently of the bottom half. The respondent argues that because the door has been cut, it has been damaged, and therefore requires repair.
95Pursuant to Article 2.2.2.1 of the Code, a fire separation closure, such as a door, must not be so damaged so as to affect its fire-protection rating. There is little guidance in the Code as to how much damage is sufficient to affect a closure’s integrity. However, other provisions in the Code stipulate that a door must stay closed when not in use. This is presumably because if open, or partially open, it does not serve as a barrier to the spread of fire.
96Extrapolating from this, a door which either cannot stay closed, or even when closed, has openings large enough to create little or no barrier to the spread of fire is not functioning as a closure. A door like this must be repaired to maintain its fire-separation ability.
97From the photographs presented, the cut in the door appears to be quite narrow, perhaps even narrower than the clearance between the bottom of the door and the floor. It is unlikely that a cut in the door of this nature constitutes sufficient damage to affect its fire-protection rating. However, there also does not appear to be any mechanism to keep the top half of the door affixed to the bottom half, and closed when not in use. This could well create a failure of the closure to act as a barrier against the spread of fire. Therefore, the Commission confirms the measure requiring the appellant to repair damaged closure to the nurses’ station so that the integrity of the closure is maintained.
Item 9: Means of egress shall be maintained in good repair and free of obstructions and combustible materials shall not be accumulated in a means of egress
98In Item 9, the respondent identifies contraventions that, in their opinion, impede means of egress and represent an accumulation of combustibles in a corridor. Specifically, the respondent takes issue with a wooden bear statue and white wooden decorative chair in the front lobby of the Main Lodge, upholstered chairs in the hallway leading to the infirmary wing, a wooden table in the hallway on the second floor of the Main Lodge, and chairs and book cases at the bottom of the stairwell from the second to the first floor. The order requires the appellant to remove these items from their current location.
99The respondent cites the following provisions of the Fire Code in support of its position:
2.7.1.7(1) Means of egress shall be maintained in good repair and free of obstructions.
2.4.1.1(2) Combustible materials shall not be accumulated in any part of an elevator shaft, ventilation shaft, means of egress, service room or service space, unless the location, room or space is designed for those materials.
100The appellant testified in the hearing that the chairs and bookcases have been removed, and the respondent did not take issue with this assertion. Therefore, that particular contravention is no longer at issue.
101With respect to the upholstered chairs, after reviewing the evidence, the Commission finds that means of egress are not impeded by the presence of these chairs. There are at least two direct means of egress from the infirmary wing to the outside. Based on the floor plans drawn by the respondent and submitted for the hearing, there appears to be two additional indirect means of egress by travelling through either the stairs that also lead to the basement or the hallway that leads to the front lobby. An individual in the infirmary wing has sufficient access to exits in the case of emergency, and the removal of the upholstered chairs from the exit hallway is not necessary to ensure fire safety.
102Regarding the wooden table located in the hallway on the second floor, there exists only one means of egress – the emergency fire escape was removed when it was damaged by weather. In a situation where there is only one way to safely reach the outside, the hallway that leads to that egress must be kept clear of obstructions, as per the Code. Removal of the table is necessary to ensure fire safety.
103Lastly, the bear statue and white ‘tree’ chair are argued to be violations of the Code because they impede egress and are made of combustible material. During the hearing, Officer Roberts was asked if inspectors ever ignore what they perceive to be contraventions of the Fire Code. Officer Roberts responded that no, this was not the practice – inspectors note and issue orders for any and all contraventions they observe. However, in this case, FPO Payge attended the facility on at least a handful of occasions, and Officer Roberts has also attended in the past. Each time, the entrance they would most commonly come in and out of was the front entrance. In the lobby of the front entrance sit this bear statue and chair, as they have for years. Yet at no point previously were the bear statue and chair ever raised as a concern. This despite, according to Officer Roberts testimony, the fact that on July 25, 2017 she could not progress through the corridor without having to wait her turn or turn sideways to avoid bumping into the objects.
104The Commission notes that this testimony is contradicted by that of FPO Payge, who experienced no difficulty moving through the corridor. Surely, had these items been obstructing their path during previous visits, they would have raised this as a concern with the appellant. The Commission also note too, based on the photographs submitted at the hearing, there appears to be no obstruction of a means of egress.
105Further, the Code prohibits an accumulation of combustible material in a means of egress. When pressed as to what constitutes an accumulation, the respondent suggested that any material was an accumulation. The Commission disagrees. The language of the Code, unless a defined term, is to be taken in its ordinary meaning, and each word is presumed to have been specifically chosen. Had the Fire Code intended the provision to mean any material, the drafters of the Code could have omitted the word ‘accumulated.’ Taken in its ordinary meaning, an accumulation requires a build-up of material. It is contextual, and there is no specific bright line, but in this instance, a single statue and a decorative chair are not an accumulation of material. Removing these items is not necessary to ensure fire safety.
106To summarize, with respect to the measures ordered in Item 9, the order is amended to require the removal of the wood table in the hallway on the second floor only.
Item 10: Replacement or repair of a flue pipe
107In the kitchen of the Main Lodge is a flue pipe that is no longer in use. Sentence 2.6.1.4(2) of the Code requires unused flue pipe openings to be sealed in a manner that prevents the passage of fire or smoke. Similar to damaged fire separations, an open flue pipe could permit fire to spread more rapidly, and compromises the fire-resistance of a fire separation. Therefore, this is necessary for fire safety and the Commission confirms this measure.
Item 11: Operation and maintenance of the dryer
108The respondent observed laundry facilities in the basement of the Conference Centre. The dryer was equipped with plastic ventilation piping, similar to what is in most homes. This measure requires the appellant to replace the plastic dryer vent piping with metal piping. Article 2.6.1.7 requires appliances to be operated and maintained so as not to create a hazardous condition. The respondent argued that the dryers are used at a commercial scale to do all of the facility’s laundry. Therefore, lint and heat would accumulate in the plastic piping much faster than in non-commercial settings. This lint accumulation could get hot and ignite, causing the plastic vent pipe to melt and fire to spread easily.
109The appellant argued that the dryers are not used on a commercial scale. They are for clients of the facility, who are permitted to use them for a short time each evening. In reality they are used two or three times a week. FPO Payge stated that he had never seen the dryers in use. This lends credibility to the appellant’s assertion. FPO Payge’s conclusion that the metal piping is required because of potential high usage is not supported by the evidence, especially when one considers the number of clients at the facility (approximately 4-5 clients at any given time, according to Mr. Maggiacomo). The Commission accepts the evidence that the dryer is used as it would be in a residential setting on a sporadic basis, for small loads. The Commission finds that the dryers are not operated in a manner that creates a hazardous condition, and this measure is not necessary to ensure fire safety, and is therefore rescinded.
Item 12: Accumulation of combustible materials
110The appellant uses a room in the basement of the Conference Centre to store what appears to be metal furniture and cardboard boxes. This room also contains electrical panels, duct work, and a hot water tank. These building services are located close together along one wall in the room. The respondent argues that the storage of combustible materials in this space is a contravention of Sentence 2.4.1.1(2) which prohibits the accumulation of combustibles in a service room, unless it is designed for those materials, and that these materials should be removed.
111From the photographs provided in evidence it does not appear that the storage of these combustibles leaves much room to navigate to the wall where the building services are located. In the event of an emergency, the storage and arrangement of these materials would make it difficult to shut off power, for example. There are no shelves or other obvious places of safe storage in this room. Therefore, the removal of combustibles from the service room is necessary to ensure fire safety. The Commission confirms this measure.
Item 13: Use of ceiling space for storage of combustible materials
112In the infirmary wing a hatch in a closet ceiling opens to a ceiling space. In this ceiling space, the appellant has stored what appears to be boxes and documents. The Commission agrees with the respondent that this constitutes a violation of Sentence 2.4.1.1(3) of the Fire Code, which prohibits the storage of combustible materials in a horizontal concealed space, such as ceiling spaces. A fire that starts in the closet can ignite the combustible material above it, and then travel laterally to another part of the infirmary wing. Therefore, the Commission confirms this measure as necessary to ensure fire safety.
Item 14 (listed as #15 in Order): No smoking signage
113This measure requires the appellant to place no smoking signage that is in accordance with Article 2.4.3.2 of the Code in all areas where smoking is prohibited. According to the respondent, there are no approved smoking areas in or around the Main Lodge or Conference Centre. Therefore, appropriate signage is required around those buildings. The appellant submitted photographs of no smoking signs posted at several locations, though it was not apparent whether these locations were just in the Main Lodge or included the Conference Centre. It was also not apparent to the Commission that these signs were in accordance with the requirements specified in the Code. Both buildings are made of combustible material, and therefore it is important that smoking occur at a safe distance from the buildings. To communicate to individuals that smoking is not permitted is necessary to ensure fire safety, and therefore the Commission confirms this measure.
CONCLUSION
114For the reasons and in the manner set out above, the Commission confirms, amends or rescinds measures contained in Order 020-17, Order 024-17/025-17, and Order 028-17, as below:
115Order 020-17:
- The measure with respect to the installation of smoke alarms is confirmed.
- The measure with respect to the installation of a carbon monoxide detector is rescinded.
The appellant must comply with this order within 3 days of receiving this decision.
116Order 024/025-17 is confirmed in its entirety. The appellant must comply with this order within 6 weeks of receiving this decision.
117Order 028-17:
- Items 1, 2, 3, 8, 10, 12, 13, 14 are confirmed.
- Item 11 is rescinded.
- Item 6 is amended to read: Repair the damaged fire separation(s) with materials similar to the existing so that the integrity of the fire separations is maintained and the required fire resistance rating is achieved. This applies to all damaged fire separations except for dent in infirmary wing hallway closet, and sprinklered basement area where compliance may also be achieved by production by the appellant of current sprinkler testing and maintenance records that satisfies the respondent that the sprinkler is in good working order.
- Item 9 is amended to require the removal of the wood table in the hallway on the second floor only.
The appellant must comply with this order within 6 weeks of receiving this decision.
ORDER
The Fire Safety Commission confirms, amends or rescinds measures contained in Burk’s Falls and District Fire Department’s Order 020-17, Order 024-17/025-17, and Order 028-17 as described in paragraphs 115-117 of these reasons.
The compliance dates set out in the orders are amended as follows:
a. Order 020-17 shall be completed within 3 days of receiving the decision.
b. Order 024/025-17 shall be completed within 6 weeks of receiving the decision.
c. Order 028-17 shall be completed within 6 weeks of receiving the decision.
Released: February 14, 2018
Asad Ali Moten
Patricia McQuaid
Barbara Hicks