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

Citation: Norquay Campus Properties Ltd. v. Chatham-Kent Fire and Emergency Services, 2018 ONFSC 7

Date: 2018-08-22

In an 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

And

Office of the Fire Marshall and Emergency Management Intervenor

DECISION

Panel: Marisa Victor, Santina Moccio, Asad Ali Moten

Appearances: For the Appellant: Joseph J. Hoffer, Kristin A. Ley For the Respondent: John Norton, Emily Crawford For the Intervenor: Sylvia Davis

Place and date(s) of hearing: Chatham, Ontario May 23 and 24, 2018

REASONS FOR DECISION

I. OVERVIEW

1The appellant, Norquay Campus Properties Ltd. (“Norquay”) owns and operates 201 Campus Parkway, a three-storey walk up apartment building in Chatham, Ontario (the “Building”). The Building was inspected in November 2016, by Inspector Sproule from the respondent, the Chatham-Kent Fire and Emergency Services (the “Fire Department”). Inspector Sproule examined whether the fire alarms in the building were sufficiently audible. In doing so, the Inspector utilized an audibility guideline (the “Guideline”) that had been published by the intervenor, the Office of the Fire Marshal and Emergency Management (the “OFM”).

2Not satisfied with the audibility levels of the fire alarm system, the Inspector issued an Inspection Order on November 29, 2016 that required Norquay to remedy the audibility levels through several options. Norquay requested a review of the Inspection Order by the OFM, and the OFM confirmed the Inspection Order in its Review Decision and Order (the “Review Decision”). Norquay then appealed to the Fire Safety Commission.

3The question before the Fire Safety Commission (the “Commission”) is whether the Order is necessary to ensure fire safety in the Building. To answer that question, four issues must be addressed:

a. Is the creation and implementation of the Guideline outside the jurisdiction of the OFM?

b. Did the Fire Department treat the Guideline as a regulation and therefore fetter its discretion?

c. Did the Inspector treat the Guideline as a regulation and therefore fetter his discretion? and,

d. Are the measures contained in the Inspection Order, as confirmed by the Review Order, necessary to ensure fire safety in the Building?

4Based on evidence and arguments presented at the hearing, the Commission finds that:

a. The OFM had the jurisdiction to create the Guideline to address audibility of fire alarms in older buildings;

b. The Fire Department used the Guideline appropriately and not as a regulation; and,

c. The Inspection Order, as confirmed by the Review Order, was necessary to ensure fire safety in the Building.

II. BACKGROUND

The Building

5Norquay presented the following uncontroverted evidence regarding the make-up of the Building.

6The Building was constructed by Norquay in 1985. Norquay currently owns this property, along with twelve others in the southwestern Ontario area.

7The Building consists of one-, two-, and three-bedroom apartments, all exiting onto one long corridor. There are 11 units on each floor, and each floor has a main set of stairs, emergency stairs, and a laundry room. A licensed testing company attends the Building on an annual basis to test the fire alarm, fire cabinets, extinguishers, and other fire safety equipment.

8The OFM presented the following uncontroverted evidence regarding the history of the creation of the Guideline.

9Buildings constructed prior to 1998 are required to meet standards for fire alarm systems as set out in the Ontario Fire Code (the “Fire Code”), and where incorporated, the 1990 Ontario Building Code (the “Building Code”). Neither of these codes provide any requirements for the audibility levels of fire alarm systems in residential occupancies¹.

10The OFM published a Communique in 1996, which indicated that municipal fire departments were establishing their own criteria for audibility levels of fire alarms, because the Ontario Fire Code and Building Code were silent on the issue. The Communique was intended to provide a stop-gap guideline while the OFM developed more complete guidelines.

11The 1996 Communique and a 1997 draft report outlining options for fire alarm audibility spurred the creation of Technical Guideline TG-02-1998, which was amended in 2016. For the purposes of this proceeding, the 1998 and 2016 guidelines are essentially the same. A Communique that accompanied the 1998 Guideline indicated that it was developed after a broad technical review and meetings with stakeholders.

12The Guideline recommends that residential units have a fire alarm that has an audibility rating of at least 60 dBA. The section on Audibility Criteria outlines four different ways that a fire alarm system can provide an acceptable audibility. Where an alarm system does not meet acceptable audibility levels in any of the four ways described, the section on Corrective Actions prescribes corrective actions that bring audibility levels to within acceptable levels.

13For this Building there is no explicit audibility requirement. For buildings built after 1998, audibility requirements are set by regulation which requires a sound pressure level of 75 dBA or higher in a sleeping room with the doors closed. Buildings built before 1998, like the one at issue here, are not subject to any regulatory requirements for audibility.

Procedural History of this Case:

14Norquay appealed the November 29, 2016 Inspection Order to the Office of the Fire Marshal for review of the Inspection Order on December 1, 2016. On June 7, 2017, the delegate of the Fire Marshal, Michael Ng, upheld the Inspection Order in his Review Order. Norquay then appealed the Review Decision to Commission on June 21, 2017.

15There is no real distinction between the Inspection Order and the Review Order.

16At a case conference before the Commission in August, 2017, Norquay raised the issue of whether the Guideline was outside the jurisdiction of the OFM. Norquay sought a stay of the Commission’s proceeding to permit the Divisional Court to determine this question of jurisdiction. The Commission adjourned the hearing until 2018.

17The Divisional Court issued its decision on April 12, 2018. The Court found that Norquay’s application was premature, as the Commission has the jurisdiction to determine this question of law.

III. ISSUES

18The question the Commission must answer is whether the Inspection Order is necessary to ensure fire safety in the building. To answer this question, the parties argued three main issues before the Commission. They are:

a. Is the creation of the Guideline within the jurisdiction of the OFM?

b. Did the Fire Department treat the Guideline as a regulation and therefore fetter its discretion?

c. Did the Inspector treat the Guideline as a regulation and therefore fetter his discretion?

The key question before the Commission is: were the measures contained in the Inspection Order, as confirmed by the Review Order, necessary to ensure fire safety?

IV. LAW, EVIDENCE AND ANALYSIS

A. Is the creation of the Guideline within the jurisdiction of the OFM?

19In order to determine whether the OFM has the jurisdiction to create the Guideline, the Commission must examine the scope of the OFM’s authority to create non-statutory instruments. The Commission must then also examine the nature of the Guideline to determine whether the Guideline falls within that scope, or if the OFM has exceeded their authority.

The OFM’s Authority

20The OFM, Norquay argues, is limited to the powers it has been given pursuant to s. 9(1) of the Fire Protection and Prevention Act (the “Act” or the “FPPA”). These powers include the ability to issue guidelines for municipalities but only with respect to fire protection services (section 9(1)(d)). Fire protection services are defined in the Act as including “fire suppression, fire prevention, fire safety education, communication, training of persons involved in the provision of fire protection services, rescue and emergency services and the delivery of all those services.” Norquay states that the Guideline does not pertain to fire protection services and therefore falls outside the OFM’s statutory authority.

21Further, Norquay argues that the OFM does not have the ability to regulate fire systems and equipment, and the power to do so lies exclusively with the Minister. Pursuant to s.12(1.1) of the Act, the Minister is responsible for ‘prescribing any method’ relating to fire protection, and any ‘standards’ for reducing the risk of, or consequences of, a fire. Norquay argues that these standards and methods have taken the form of the Fire Code, a regulation under the Act, which is exemplary of the Minister ‘occupying the field’ in exercising its statutory mandate.

22The OFM, the intervenor, was permitted to submit argument on this issue.

23The OFM argues that courts have taken a cautious approach in labeling a question as a jurisdictional issue, and that there are narrow grounds for reviewing the exercise of statutory discretion. In Hibernia Management and Development Co. v. Canada-Newfoundland Offshore Petroleum Board,² the Newfoundland Court of Appeal found that the question of whether the petroleum Board had the authority to issue a particular guideline was not a true question of vires because the enabling statute contained explicit authorization to issue guidelines.³

24Even where explicit statutory authority does not exist, regulators can issue guidelines and other non-binding instruments.⁴ This permits an entity, such as the OFM, to create an efficient and consistent landscape, and provide knowledge and expertise to its stakeholders.

25The OFM argues that the Act provides the OFM with the explicit authority to issue guidelines with respect to certain matters. These matters include fire alarm systems because:

a. section 9(1)(d) of the Act also explicitly includes the ability to issue guidelines on “related matters”, which could also logically include fire alarm systems; and,

b. reading ‘fire protection services’ to not include fire protection equipment such as fire alarms would be contrary to the fair large and liberal interpretation necessary for the statute to meet its objectives.

26The OFM also argues that even where matters are already covered by the Act or its regulations, such as the Fire Code, guidelines may elaborate on these legislative instruments by clarifying, complementing or enhancing the purpose of the legislation, and will not automatically conflict with or tread on a statutory power.

Analysis

27We find that Norquay’s position with regard to the OFM’s ability to issue guidelines is too narrow in scope when it argues that “fire protection services” does not include fire alarms.

28The FPPA is to be given a large and liberal interpretation. The Commission finds that the OFM can issue guidelines to advise municipalities in the interpretation of the Act as clearly stated in section 9(1)(d) which states that the OFM has the power “to issue guidelines to municipalities respecting fire protection services and related matters” (emphasis added).

29We find the ability to issue guidelines regarding fire alarms falls squarely within the plain meaning of s.9(1)(d) of the Act. Therefore, the OFM has the power to issue guidelines on fire alarm audibility.

The Nature of the Guideline

30Norquay argues that even if the OFM can create the Guideline, it may not do so if the Guideline unlawfully takes on the force of a regulation.

31Norquay relies heavily on the decision in Ainsley Financial Corp. v. Ontario (Securities Commission)⁵, both the trial and Ontario Court of Appeal decisions. That case held that a policy statement enacted by the Ontario Securities Commission (“OSC”) was not a guideline but a regulation.

32The Court of Appeal in Ainsley held that the analysis of the following criteria, developed by the trial judge, can be used to determine if a guideline has become mandatory:

a. The guideline’s language;

b. The practical effect of non-compliance; and,

c. The expectations of the agency and its staff regarding its implementation.

33Norquay argues that the Guideline runs afoul of all three criteria, and therefore has character of a mandatory instrument. In support of its argument, Norquay points to the following:

a. Analysis of the language of the Guideline, focusing on both the effect of the language and the language itself;

b. The Guideline’s creation of a minimum acceptable audibility level;

c. The Guideline’s prescription for corrective action should the audibility level fall below 60 dBA;

d. Compliance with the Guideline achieved through inspection orders under the FPPA;

e. Sanctions against the owner of a building should an order not be complied with; and,

f. The reports and recommendations published before the Guideline as indicative of the agency’s expectations with respect to implementation.

34The OFM argued that the Guideline is discretionary and not mandatory and that this is evident from the format and wording. It used the following examples to illustrate its point:

a. The audibility criteria sets out several options for determining if audibility is sufficient and is not limited to a specific minimum sound pressure;

b. When corrective action is needed, the Guideline states what action an owner should take, as opposed to must take. The OFM argues the use of the word “should” shows that the intent is to guide and not exclude the exercise of discretion;

c. The use of orders is suggested using the word “may” which is permissive and does not fetter the discretion of a fire department;

d. An inspector should consider the Guideline together with whether the fire alarm audibility poses a risk to the safety of the occupants and therefore the discretion of the inspector is not fettered; and

e. There is nothing prescriptive as to the choices an owner may make to address audibility concerns.

35Finally, the OFM distinguishes the facts in Ainsley from the facts in this case:

a. The OSC in Ainsley did not have expressed statutory power to issue guidelines in contrast to the OFM in this case;

b. The OSC guidelines set out a comprehensive mandatory code;

c. The OSC guidelines were unfairly targeted at one or two actors putting them at a competitive disadvantage; and

d. The OSC guidelines were concerned with disclosure and reporting; the OFM Guideline in contrast sets out technical methodologies for determining audibility and follow-up corrective action.

Analysis

36We find the following when applying the Ainsley test to the Guideline:

a. The language is permissive, not compulsory as exhibited by the use of words such as “should” and "may” even when looking at the full context of the Guideline;

b. The practical effect of non-compliance leads to many paths. There are various technical suggestions for measuring audibility, there are at least four options for corrective action described, and the fire department may use different tools for achieving compliance should it choose to act at all. All this leads to a conclusion that the Guideline is not mandatory;

c. The OFM is not in charge of implementation or compliance of the Guideline, this is left to the individual fire departments. The Guideline does indicate that it is up to the fire department to enforce if it chooses; and

d. The language of the Guideline indicates that inspectors are not to rely solely upon non-compliance with the guideline in issuing an inspection order. In order for an inspector to exercise their discretion and issue an inspection order, there must be no corrective action taken and the audibility must pose a risk to occupant safety. This latter part of the provision requires inspectors to arrive at the opinion that there is a valid risk to occupant safety.

37Finally, we find that the facts of Ainsley are significantly different from the facts in this case for all the reasons argued by the OFM. As such, the decision in Ainsley is not persuasive.

38In sum, the Guideline is just a guideline, and does not take on the character of a mandatory, non-statutory instrument that has the effect of law.

B. Did the Fire Department treat the Guideline as regulation and therefore fetter its discretion?

Law

39In Thamotharem v. Canada (Minister of Citizenship and Immigration),⁶ the Chairperson of the Refugee Protection Division published guidelines determining the order of questioning during hearings. These guidelines were challenged as fettering the discretion of officers conducting the hearings. The Federal Court of Appeal found that discretion had not been fettered by the guideline. The court in Thamotharem summed up what it means to fetter a decision-maker’s discretion:

…a decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in light of the particular facts, may be set aside, on the ground that the decision-maker’s exercise of discretion was unlawfully fettered.⁷

Evidence and Submissions

40Norquay argues that the Fire Department fettered the discretion of its inspectors by having them apply the Guideline broadly and as though it were a mandatory instrument. In other words, the Fire Department made assessing audibility a black and white exercise – either a fire alarm system met the 60 dBA requirement in the Guideline, or it did not. In doing so, Norquay submits, the Fire Department implemented and enforced the OFM’s Guideline in a manner that made meeting the audibility criteria mandatory. As a result, Inspector Sproule did not exercise proper discretion when issuing an order under section 21(1)(f) of the Act. Therefore, according to Norquay, the inspection order is unlawful.

41Mr. Nunns, the property manager of the Building, testified that he was first made aware of audibility concerns during an October 2008 inspection of a different building by the Woodstock Fire Department. According to Mr. Nunns, residents of the Building at issue come from a variety of backgrounds. The tenants’ ages range from under 30 years old to over 60 years old. At least one resident has mobility issues, and one other cannot hear or speak. If a new resident moves in, the building manager collects information from the resident that would be relevant to the building’s fire safety plan, such as whether they require any special accommodations. Aside from tenants’ self-reporting, Norquay has no way of knowing what accommodations might be required.

42Mr. Nunns testified that his staff inspect daily the fire separations and the fire panel, and monthly the alarms, bells, exit lights, doors, hoses, extinguishers, and pull stations. However, neither the testing company nor Mr. Nunns or his staff conduct audibility testing, and never has audibility been raised as an issue by any of the occupants.

43Norquay argues that this Guideline was used without regard to any other indicia or criteria in concluding that a system is inadequate. Until 2008 there had been no audibility assessments. Then, upon an order from Assistant Chief Ray Stone, inspectors were required to, and did, conduct audibility assessments in 101 Chatham-Kent area buildings in 2008 and 2009. Norquay argues that all of the inspectors conducted the tests in the exact same way, and where a system did not meet the 60 dBA threshold, the owner was required to remedy the issue.

44The Fire Department argues that the Guideline provides a reasonable approach for determining compliance, and that its inspectors did not rely solely upon the Guideline when inspecting properties.

45The Fire Department makes a number of points in support of its position:

a. Compliance with the Guideline was not something the Fire Department followed until nearly 10 years after its release;

b. The Fire Department did not focus on audibility until after then, Assistant Chief Stone attended a conference in 2008 where the topic of discussion had been the issue of fire alarm audibility concerns;

c. According to the testimony of Chief Crawford, audibility testing would have been ordered through the chain of command, to be conducted using best practices. The Guideline would be taken into account as part of those best practices. Assistant Chief Stone, who did not testify, was responsible for directing staff to conduct audibility testing;

d. The Fire Department implemented various options to obtain compliance, including first issuing a notice of the violation and then following up later with a second inspection, prior to issuing any orders;

e. That the Fire Department focused its efforts on large multi-unit residences because that was where the most vulnerable populations were believed to reside. This was the conclusion after conducting a vulnerable populations risk assessment in 2015;

f. The Building was subject to an audibility test in 2009 and no corrective action was taken due to a request by Norquay that an inspection order not be issued pending judicial review of other audibility-related inspection orders in other buildings. The Building was not retested until 2016; and

g. That between 2010 and 2016, the tragic loss of life and subsequent resources concerns within the Fire Department prevented further focus on audibility and reduced efforts to obtain compliance.

Analysis

46We find that the evidence supports a finding that the Fire Department did not treat the Guideline as a regulation or order its inspectors to do so. This is based on the following:

a. The Fire Department did not apply the Guideline until 2008;

b. The Guideline was generally not enforced with an inspection order until after an owner had been given a violation notice and a subsequent inspection was done. With regard to this Building, the notice was first given in 2009. The Inspection Order was issued in 2016; and

c. There were a number of years when the Fire Department deprioritized audibility issues due to human resource concerns.

47We also accept that residents of large multi-unit residences could include vulnerable populations. It was this demographic that the Fire Department used its discretion to protect using a fire safety and audibility of fire alarms perspective. This act of discretion shows the application of the Guideline was not done simply because the Guideline existed, or for any unlawful purpose.

48The fact that Norquay conducted annual fire testing is not particularly relevant because the fire testing done did not consider audibility. Nor did Norquay produce an expert report challenging the level of audibility of the fire alarms in the building and whether such levels were intelligibly audible.

49In conclusion, we find that the Fire Department did not treat the Guideline as a regulation, and it did not fetter its discretion.

C. Did Inspector Sproule fetter his own discretion?

50The parties made submissions as to whether or not Inspector Sproule fettered his own discretion in treating the 60 dBA requirement in the Guideline as mandatory. This hearing, however, is a hearing de novo and therefore even if Inspector Sproule fettered his discretion in issuing the inspection order, the Commission has discretion to set aside the order if, in the Commission’s view, the order is not necessary to ensure fire safety. Accordingly, this issue is not relevant to whether the inspection order is necessary to ensure fire safety.

D. Was the Inspection Order necessary to ensure fire safety?

Evidence

51The evidence is uncontroverted that on November 2, 2016, Inspector Sproule attended and inspected the Building. Also in attendance was Mr. Nunns, OFM Program Specialist Janny Pape, Inspector Scott Dorman from the Fire Department, the Building Superintendent, and a private inspector hired by Norquay that examined the fire alarm systems annually.

52Inspector Sproule testified that the 2016 testing was done in accordance with the technical instructions in the Guideline which was also the same process followed in 2009.

53Inspector Sproule and Mr. Nunns testified that during testing, ambient sound level readings were taken together with active alarm sound readings. The levels were recorded by each of the participants (Norquay through Mr. Nunns, the Fire Department through Inspector Dorman, and the private contractor). Only the Fire Department’s Shimana SHGLSL021 sound level meter’s calibration certificate was entered into evidence.

54All of the readings by each party were recorded on a table by OFM Specialist Pape. Each party received a copy of the table which was also entered into evidence at the hearing.

55According to that table, none of the devices used to measure sound levels ever recorded an active alarm sound level of greater than 47.3 dBA, and the unit in which this level was recorded was located next to the alarm bell. Most of the measurements during the active alarm were in the mid-30’s to low 40’s dBA, and the majority of ambient sound level recordings were between the high-20’s and mid-30’s dBA.

56Mr. Nunns testified that the alarms were audible in each of the units tested. Mr. Nunns further testified that of the 14 units tested, no interviews were conducted with any of the occupants, and there were no discussions about audibility, only testing.

57In cross-examination, however, it was made clear that Mr. Nunns had no training in audibility or acoustic testing, no formal training with regard to fire prevention, the Act or the Fire Code, had never been trained as a fire inspector or attended fire college, and had never worked for a fire department.

58Norquay was served with the Inspection Order on November 29, 2016. In the reasons for the order, Inspector Sproule wrote:

“Based on the audibility testing performed by [the Fire Department]…the building’s existing fire alarm signal may not be heard intelligibly throughout the floor area in which the audible devices are installed; therefore, the building lacks sufficient means to alarm the occupants of the building units tested by [the Fire Department] of a fire alarm condition. This raises a matter of fire safety for these units.”

59Inspector Sproule went on to state that the units that were not tested might also experience a similar deficiency. Norquay was ordered to:

a. Provide intelligible audibility levels in all the tested units “by implementing one of more of the appropriate options outlined in the Office of the Fire Marshal’s technical guideline TG-02-2016”;

b. Conduct audibility testing on the units that were not tested on November 2, 2016, and provide a report on the results to the Chief Fire Official; and

c. Submit a written proposal to provide adequate alarm audibility, and a schedule of compliance.

60During the hearing Inspector Sproule testified that he issued the inspection order based on a number of observations:

a. He took into account the results of audibility testing and criteria in the Guideline;

b. He also utilized his experience with these issues, having been a Fire Prevention Officer since 2007, and during the testing he determined, using his own ears, that the alarms, though audible, were not loud enough to wake someone in the middle of the night;

c. He confirmed during cross-examination that because the sound level being heard with the bedroom door closed was not loud enough to be woken from sleep, it was, in his opinion, not able to be intelligibly heard.

61The Scope section of the Guideline states that the Guideline is to be used where there is concern that an alarm “may not be heard intelligibly throughout the floor area in which the audible devices are installed.” According to the testimony of Inspector Sproule, he used his knowledge and experience to interpret the requirement for an alarm system to be intelligibly heard in the floor area as meaning that it should be heard by people when they are awake, and be able to wake people when they are asleep. There is no definition of ‘heard intelligibly’ in the Guideline.

62Inspector Sproule described the Guideline as a tool to be used when examining existing buildings and what to do when there are sound pressure levels of less than 60 dBA. He also testified that regardless of the audibility measurement, if he could not adequately hear the alarm he would issue an inspection order. In other words, even if the sound pressure level was greater than 60 dBA, but Inspector Sproule was not satisfied that the system was sufficiently audible, he would issue an inspection order.

63However, during cross-examination, Inspector Sproule was asked about the 2009 inspection of the Building. He was asked if the audibility measurements had been above 60 dBA would that have been sufficient, and Inspector Sproule answered it would.

Analysis

64Having found that the Guideline was within the OFM’s power to issue, and that the Fire Department did not treat the Guideline as a regulation, the main question the Commission must determine can now be decided.

65The November 2016 Inspection Order was made pursuant to s.21(1)(f) of the Act, which allows for an order to require measures to be taken to “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”.

66It is well-settled that the FPPA is a public welfare statute and is to be given a broad and liberal interpretation. Subsection 21(1)(f) of the Act creates a general discretionary power to order remedial work that is necessary to ensure fire safety, which includes fire alarms. Subsection 21(1)(f) exists separately and independently from orders issued under s. 21(1)(g) which address Fire Code deficiencies, which it is accepted would not apply to this Building regarding audibility concerns.

67Under s. 21(1)(f) of the Act, inspectors retain the jurisdiction to issue general discretionary orders to do anything necessary to ensure fire safety. The only consideration required under s. 21(1)(f) of the Act is whether the measures ordered are necessary to ensure fire safety of a particular building or property.

68The Commission finds that the inspection order was related to the audibility of fire alarms. As such, the inspection order fell squarely within the powers granted by the Act.

69The Commission notes the following findings of fact that support that the inspection order was necessary in the circumstances of this Building:

a. The Building hosts residents from a variety of backgrounds;

b. The evidence of the Fire Department supports that vulnerable populations tend to live in residences such as the Building;

c. Standardized audibility testing of the Building took place in 2009 and 2016 using the Guideline which is specifically aimed at audibility in older residential occupancy buildings;

d. The audibility readings were significantly below the audibility standard suggested in the Guideline;

e. The inspector used his own sense of hearing together with the methodology and criteria for audibility testing as described in the Guideline and found that the alarms might not be heard intelligibly throughout the building. Therefore, in his opinion, the alarm levels were not loud enough; and

f. Audibility of fire alarms is important both for alerting people in the Building to a fire and the need to act accordingly, as well as to alerting authorities for the suppression of the fire. Therefore, fire alarm audibility is necessary for the fire safety of the individuals in the Building.

70Under the circumstances, we find that the inspection order issued under s.21(1)(f) of the Act and the Review Decision upholding it were reasonable and necessary to ensure fire safety in the Building.

CONCLUSION

71The Commission finds that:

a. The OFM had the jurisdiction to issue the Guideline;

b. The Fire Department used the Guideline appropriately and not as a regulation; and,

c. The measures contained in the Inspection Order, as confirmed by the Review Order, were necessary to ensure fire safety in the Building.

ORDER

1Pursuant to the powers of the Commission under s. 26(6) of the FPPA, the Commission confirms the Review Order dated June 7, 2017, except as follows:

a. The compliance dates set out in the orders are amended to 90 days from the release of this decision.

Footnotes

1. 1The Ontario Fire Code defines ‘residential occupancy’ as any 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.
2. 2[2008] NJ No 310, (NLCA).
3. 3Ibid, para 57.
4. 4Ainsley Financial Corp. v. Ontario (Securities Commission), 1994 CanLII 2621 (ON CA), [1994] O.J. No. 2966, at para 11.
5. 51994 CanLII 2621 (ON CA), 1994 CarswellOnt 1021 (C.A.).
6. 62007 FCA 198.
7. 72007 FCA 198, at para 62.