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:
M.L.
Appellant
and
Halton Hills Fire Department
Respondent
REASONS FOR DECISION AND ORDER
Panel: Patricia McQuaid, Susan Clarke, and Jennifer Friedland, Fire Safety Commission
Appearances:
For the Appellant: Self-Represented
For the Respondent: Harold Watson, Counsel
Place and date of hearing: Toronto, Ontario September 21, 2018
REASONS FOR DECISION
OVERVIEW
1This is an appeal of two Orders, dated March 19, 2018 made by Harry Olivieri, Fire Chief of the Halton Hills Fire Department. Inspection Orders were made following Fire Chief Olivieri’s attendance at the appellant’s premises located at 1 Rosetta Street, Unit 2, in Halton Hills on February 14, 2018. The appellant is a tenant in an industrial use building divided into 12 units. In his unit, the appellant grows medicinal marijuana for personal use, under permit, and has been doing so since March 2017.
2The first Inspection Order (FM-18056A) was issued under s. 21(1)(f) of the Fire Protection and Prevention Act, 1997 (the Act) which allows an inspector who has carried out an inspection to order an occupant of premises to take any measure required to ensure fire safety on the premises and may for that purpose require the 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….” This will be referred to as the “F Order”.
3The second Inspection Order (FM-18056B) was issued under s. 21(1)(g) which allows the inspector to order that the occupant take measures necessary to remedy any contravention of the Fire Code. This will be referred to as the “G Order”.
4The Inspection Orders set out various compliance dates between March 30 and May 18, 2018 based on Chief Olivieri’s assessment of the level of risk. The appellant requested a review of the two orders by the Fire Marshal, who in turn referred the matters directly to the Fire Safety Commission.
5Section 26 of the Act allows a person to appeal an order of the Fire Marshal to the Fire Safety Commission (the “Commission”). After a hearing, the Commission may then confirm, amend or rescind the order of the Fire Marshal or make any other order the Commission deems appropriate.
6The issue before the Commission is whether the measures in the Orders are necessary to ensure fire safety. Based on the evidence and submissions, we find that some of those measures are. The Commission confirms, amends and rescinds the Orders as set out in paragraphs 41- 43 below.
BACKGROUND
7Chief Olivieri testified that he attended the appellant’s unit at 1 Rosetta St. on February 14, 2018 in response to inquiries made to the Fire Department regarding safety concerns at the premises. Representatives from the Town’s building and planning departments, by-law enforcement, Union Gas, the Ministry of Labour and the Ontario Fire Marshal’s office were also in attendance.
8Chief Olivieri explained that the building was originally designed as a paper mill. It has been converted to 12 units with various uses. Three of the units, including the appellant’s, are used to grow medical marijuana. Other uses include a furniture repair business, a floor finishing business and a storage garage for antique vehicles.
9The building was described by Chief Olivieri as having a combustible roof. The walls are cinder block and concrete construction, as are the walls between units. There is no fire alarm system. The building is served by a sprinkler system however it had not been maintained as of the date of the initial inspection. Activation of the sprinkler system sounds a water gong. The building is situated within three meters of a road allowance and within 20 meters of a GO station. There are residential homes across the street, approximately 15 meters away. The proximity of the appellant’s premises to these various other uses informed Chief Olivieri’s fire safety assessment.
10Entry to the unit is gained directly from the exterior. One enters into a large vestibule area, which on February 14th, contained garbage bags. The area has a partial height wall, constructed of drywall. Black plastic sheeting was visible between the top of the wall and the ceiling. There is a doorway in the wall which leads to the area where the medicinal marijuana is being cultivated. Hanging hydroponic style lights and a ventilation system have been installed in this area. Additional wiring was installed for the lighting, ventilation and irrigation systems. To the right of the entrance into this room is a ramp to the second floor of the unit. The ramp, which was part of the original structure of the building, has a metal railing. The second floor overlooks the first floor, which is open to the ceiling.
11On the second floor, to the left, is a small kitchen/office space, and to the right, a smaller cultivation room. Extensive black plastic tarps have been hung by the appellant next to the metal railing and on the upper floor to divide the space. The tarps or curtains are not permanently affixed to the ceiling, but are hung from a rod. In a photo taken from the ramp, the tarp was partially tied up providing an unobstructed view from the ramp to the main floor below.
12Following his inspection on February 14th, Chief Olivieri attended the appellant’s premises on April 9 and then again on September 17th. Between February 14th and September 17th, the appellant had complied with some of the items cited on the Orders; though in his testimony, Chief Olivieri noted that no building permit had been obtained for the particular remedial work done and therefore he deemed these items to still be outstanding.
13In his testimony, the appellant stated his intention to comply with the Orders, but expressed frustration about his inability to achieve compliance because of the requirement for a building permit to complete much of the work required. While it is true that he has not actually applied for a permit, it appears from the evidence that the Town of Halton Hills has taken the position that the local zoning bylaw does not permit cultivation of medical cannabis at this location. Therefore, as it is not a permitted use, a building permit for the premises will not be issued.
14The Commission cannot decide building permit or zoning issues; however, these issues provide important context when we consider the outstanding items in the Orders.
15The evidence regarding each of the items in the Orders will be reviewed and analyzed below.
THE F ORDER
16The reasons for this Order are as follows: “Unit 2 lacks properly constructed interior walls, with the proper fire resistance ratings and properly rated closures which will contribute to the spread of smoke and fire and hamper escape of its occupants, in addition to the ventilation system that has been installed without proper permits and inappropriately puts occupants at risk of exposure to toxic gases.”
17The first item in the Order states that fire separations have been breached or constructed inappropriately in several areas.
Item 1(a)
18Item 1a relates to the entry area where the wall is not continuous to the ceiling and is constructed with various materials including plastic and insufficient drywall. There was no change between February 14th and September 17th. Chief Olivieri noted that a building permit would have been required to correct the alleged issue.
19The evidence is that the entire unit was one large open area before this wall and the plastic tarps or curtains were put up. The appellant explained that the reason for the wall was privacy so that the grow operation would not be visible to members of the public or other tenants who might enter the unit. A door in the wall leads to the space where the actual grow operation is located. Characterizing this wall as a fire separation does suggest that there is a breach; as clearly the wall is not continuous and it is somewhat makeshift in appearance. However, the Fire Code defines a fire separation as a construction assembly that acts as a barrier against the spread of fire. There is no evidence that this wall was required to be constructed as a fire separation. A wall in and of itself – for example, walls within a tenant’s space which divide offices within that space – is not necessarily a fire separation as per the Fire Code. This wall divides the appellant’s unit. But for the appellant’s desire for privacy this could just as readily have been one large open space. Based on the evidence before us, we do not find that compliance with this item is required for fire safety.
Item 1(b)
20Item 1b states: “on ramp from 1st to 2nd floor damaged separation in block wall”. As noted above, the units are separated by cement block walls. Eight inch diameter holes were observed in the concrete block wall, the common wall shared with the adjacent unit. The appellant has attempted to repair some of these holes by covering them with plastic. We agree with the Fire Department: this is not an acceptable repair. This wall is a fire separation between two units and designed to be a barrier against the spread of fire. Repair with materials consistent with the wall construction is required in order to achieve the appropriate fire resistance rating.
21The Commission finds that compliance with this item is required for fire safety.
Items 1(c) and 1 (d)
22Items c and d deal with the plastic tarp or curtain, characterized as a wall in the Order. The first ‘wall’ is between the 1st and 2nd floor adjacent to the ramp and the other ‘wall’ is on the 2nd floor. As the photos entered as exhibits depict, these are large black plastic tarps hung from the ceiling. The appellant testified that the tarps are hung from a rod and can be pulled to the side. He installed them to help contain the heat for the plants and to reduce the spread of odours from the operation, thereby lessening the impact on other tenants. The tarps can be easily removed; the appellant estimated they could be removed in four hours. In one photograph, the tarp was rolled up to allow one to see from the ramp to the first floor.
23The Commission finds that calling this tarp a wall does not make it such. Dale Moore, an assistant to the Fire Marshal, who also attended on February 14th, asserted in his testimony, that the plastic was erected to create additional rooms. However, that was not the evidence before us; rather the logical inference from the evidence is that the plastic curtains are not intended to be walls, let alone a fire separation, but rather a barrier to contain heat and impede smell.
24We find that changes to the ‘walls’, which the Fire Chief noted would require a building permit, are not required for fire safety. However, we do acknowledge the Fire Department’s concern that the plastic is a flammable material and may create a hazard to the occupants and firefighters, especially at a point of egress in the area of the ramp.
25We therefore order that the plastic tarps be removed.
Item 2
26Item 2 in this Order noted a failure to ensure the fire resistance rating of closures between rooms and corridors on both levels of the unit and in particular noted that there are no doors (closures) in the plastic walls. Dealing with the latter point, as noted above, on the evidence before us, the plastic tarp is not a wall, but a curtain; and as such, a door would not be expected nor required.
27There is a wall dividing the entry area from the area where the marijuana is being cultivated. However, we have determined that the wall is not a fire separation.
28A ‘closure’ as defined in the Fire Code means a device or assembly for closing an opening through a fire separation (emphasis added), such as a door. Where a wall is not required to be constructed as a fire separation, the opening is not required to have ‘closures’ with fire protection ratings.
29We therefore conclude that compliance with this item is not required for fire safety.
Item 3
30Item 3 in this Order required that all ventilation systems on both floors be installed and inspected by qualified personnel in accordance with the requirements of the Electrical Safety Act, the Technical Standards and Safety Association and the Ontario Building Code. Chief Olivieri testified that the Electrical Safety Authority has signed off on all electrical system requirements with respect to the ventilation system; however, no building permit has been applied for. The Order was issued to address fire safety concerns.
31The lack of a building permit may be a matter of concern for the Town of Halton Hills building department. However, the lack of the building permit here – where the fire safety issue (the electrical system requirements for the ventilation system) has been assessed and approved by the relevant authority – is not a compliance issue for the Commission. We note that s. 1.2.3.1 of the Fire Code does state that compliance with the Code does not relieve an owner from compliance with other applicable Acts and Regulations (such as the Building Code), but it is not the Commission’s role to determine whether there has been compliance with some other Act.
32On the evidence before us, we find that there has been compliance with this item.
THE G ORDER
33The stated reasons for this Order are that the premises are in contravention of the Fire Code.
Item 1
34The first item states: “Activities that create a hazard and are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard” (ss.2.1.2.2 of the Fire Code). The Order states that a medicinal cannabis grow operation in the unit contains high risk activities that the building was not designed for. The Order then cites examples such as unapproved electrical and ventilation systems and compromised sprinkler systems and the addition and construction of unapproved walls. In addition the order refers to this being an agricultural type use in an industrial designed building. Chief Olivieri has stated that the operation must cease as a building permit is not available for this use in light of the zoning by-law. We did hear evidence that the owner of the building has applied to the local Committee of Adjustment for approvals, but has been denied. The issue of zoning and building permit issues has loomed large in the Orders before us. But as noted previously, officials from the Town of Halton Hills planning, building and bylaw enforcement did attend with the Fire Department on February 14th. If orders were made by any of those departments against the appellant (requiring him to cease operations for example), that is not in evidence before us, nor do we have jurisdiction to decide whether there was compliance with any such orders.
35While it is true that this was not a building originally designed for the appellant’s use, it was not apparently designed for the operation of a furniture refinishing business either, which is one of the current uses in one of the units. A medicinal cannabis cultivation operation may or may not create a hazard greater than that permitted in an industrial occupancy. What we have heard is that there is a general concern that there is an increased risk because of the appellant’s use and his alterations to building services such as the electrical and ventilations systems and to the structure – the ‘walls’. There is a lack of specificity in identifying the hazard created by the cultivation activity and in the work identified to correct the hazard. We cannot find a violation of this provision of the Fire Code based on the evidence before us. The hazard created by the alterations is described more specifically in the F Order and elsewhere in the G Order as addressed below.
36There are seven particularized breaches of the Fire Code (items 2-8 on the Order), which are reviewed in the following paragraphs. Some of these, items 3, 4, and 6, have been corrected by the appellant to the satisfaction of the Fire Department.
Item 2
37Item 2 of the Order requires that the breach in the ceiling membrane above the Unit’s second floor kitchen be repaired (Division B Sentence 2.2.2.1.). The photos depict the gap was covered with plastic by the appellant. We find that this is not an appropriate material as it would not prevent the spread of smoke and fire. Repair is therefore necessary to ensure fire safety. The appellant is not in compliance with this item. We therefore order that the gap in the ceiling membrane be repaired with materials similar to the existing or gypsum wallboard.
Item 5
38Item 5 on the Order requires that the heating, ventilating and air conditioning systems be maintained so as not to create a hazardous condition (Division B sentence 2.6.1.7). Chief Olivieri identified repairs to be made. When he re-attended on September 17th, he noted that repairs appear to have been made, but that the repairs were done without a building permit and without the oversight of the Town of Halton Hills building department. As noted above, this may be an issue for the Town, but the objective of the Fire Code is to address matters that may increase the probability of the risk of injury due to fire. The appellant has corrected this item which is the primary concern. We find that there has been compliance with this item.
Item 7
39Item 7 requires that no obstructions be placed so as to interfere with water discharge from sprinklers (Division B sentence 6.5.1.5(1)). Chief Olivieri observed that the plastic ‘wall’ in the second floor growing room obstructs a sprinkler head and ordered that it be removed so as not to affect its proper functioning. He stated that there was no change when he attended on September 17th. The photo taken on that date appears to show that the plastic would obstruct water discharge from the sprinkler, thereby compromising its effectiveness. The appellant asserts that this is no longer the case. If so, that can be determined on another attendance by Chief Olivieri. We note that we have ordered the removal of this plastic tarp which ought to cure this issue (Item 1 c and d in the F Order). However, based on the evidence now before us, we find that there has not been compliance with this item.
Item 8
40Item 8 requires that sprinkler systems not be used to support anything that will interfere with its effective performance (Division B sentence 6.5.1.5(2)). The photos taken by Chief Olivieri showed electrical wiring and air ventilation/heating ducts being supported by sprinkler piping in the second floor cultivation area. When he attended on September 17th, Chief Olivieri noted that the electrical wiring had been corrected as part of the work done and approved by the Electrical Safety Authority. However, the ducts were still being supported by the sprinkler piping. The appellant stated that nothing is hanging from the sprinklers; there are chains suspended from the ceiling but these are not connected in any way to the sprinklers. As with item 7, if this has been corrected, this can be determined on a further inspection, but in the absence of supporting evidence, we cannot conclude that the appellant has complied with this item.
CONCLUSION AND ORDER
41For the reasons set out above, the Fire Safety Commission confirms, amends or rescinds measures contained in Order FM-18056A and Order FM-18056B as follows:
42Order FM-18056A (the F Order):
Items 1a, 2 and 3 are rescinded
Item1b is confirmed and the compliance date is amended: the appellant must comply by no later than December 12, 2018. We make no finding whether compliance does or does not require a building permit.
Items 1c and 1d are amended as follows: the appellant must remove the plastic tarp/curtains by no later than November 9, 2018.
43Order FM-18056B (the G Order):
Items 1 and 5 are rescinded.
Items 2, 7 and 8 are confirmed and the compliance date is amended: the appellant must comply by no later than December 12, 2018.
Items 3, 4 and 6 had been resolved by the appellant to the satisfaction of the Halton Hills Fire Department prior to this hearing.
Released: October 29, 2018
___________________________
Patricia McQuaid
___________________________
Susan Clarke
___________________________
Jennifer Friedland