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: K.R. v. Toronto Fire Services, 2018 ONFSC 8

Date: 2018-09-28

Appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4

Between:

K.R.

Appellant

and

Toronto Fire Services

Respondent

DECISION

Panel: Luisa Ritacca, Maureen Helt, Santina Moccio Fire Safety Commission

Appearances:

For the Appellant: K.R., Self-Represented

For the Respondent: Emma Luca, Counsel

Place and date(s) of hearing: Toronto, Ontario September 20, 2018

REASONS FOR DECISION

OVERVIEW

1This is an appeal of a review decision, dated April 30th, 2018 made by Michael Ng, the delegated official acting for the Fire Marshal (the “Review Decision”). The Review Decision largely upheld the Inspection Order made by Inspector Philip Menna of the Toronto Fire Services on November 3, 2017 (the “Inspection Order”). The only amendment to the Inspection Order related to a residential apartment unit in Toronto, Ontario, located within a three-storey walk-up apartment complex. The appellant is the sole tenant of the unit at issue. The Inspection Order was issued by Inspector Menna following an inspection of the unit which took place on October 31, 2017. Inspector Menna first attended the apartment complex on October 5, 2017 to conduct a routine inspection of the building. It was on that date he became aware of the concerns related to the appellant’s unit.

2The appellant disputed the Inspection Order on the basis that Inspector Menna had used a blatant assertion of power with respect to gaining entry to his unit. He also disputed the Inspection Order on the basis that a number of the findings in the Order were based on the fact that the Inspector could not gain access to the appellant’s kitchen, which the appellant purposely closed off because he himself said the kitchen was a “disaster zone”. Finally, the appellant took issue with the Inspection Order because it did not take into account that he was using his unit as a “live/work” studio.

3Section 26 of the Fire Protection and Prevention Act (the FPPA)¹ allows a person to appeal an order of the Fire Marshal to the Fire Safety Commission (the “Commission”). The Commission may confirm, amend or rescind the order of the Fire Marshal or make any other order the Commission deems appropriate.

BACKGROUND

October 5, 2017 – First Attendance

4The appellant resides in the unit described above and has lived there for more than ten years. The unit is part of a three-storey walk-up apartment complex, which has approximately fifty or sixty units. The units are all residential.

5On October 5, 2017, Inspector Menna attended at the apartment complex for the purpose of conducting an inspection of the property, including shared spaces and a select number of units. Inspector Menna testified that the apartment complex was on a list of buildings given to Toronto Fire Service as a “priority” building. The Inspector’s immediate supervisor, Captain Janet Smith, also testified and confirmed that the apartment complex was included in the Toronto Fire Services “Priority Building Inspection Program”.

6At his attendance on October 5th, Inspector Menna met with the building owner and superintendent. He was shown around the apartment complex and he inspected a number of units. While it was not entirely clear from the evidence, it appears that Inspector Menna was directed by the owner and/or superintendent to inspect the appellant’s unit. On cross-examination, Inspector Menna acknowledged that he had been told that there may be “safety concerns” in the unit.

7Inspector Menna knocked on the appellant’s door to gain entry into the unit. He advised the appellant that he was present to check the operability of smoke and CO2 alarms. The appellant did not let the Inspector into his unit at that time; however, the Inspector testified that he was able to see from the doorway that there appeared to be a significant accumulation of combustibles inside.

8Following the inspection of the apartment complex, Inspector Menna issued a Notice of Violation to the building owner. The Notice sets out a number of corrective actions for the owner to take to ensure fire prevention and fire safety. Of the action items listed in the Notice, Inspector Menna included reference to the appellant’s unit, noting that, “[t]here appears to be a hoarding concern in unit (*); storage of combustibles piled ceiling high”.

9Inspector Menna scheduled a re-inspection of the property for October 31, 2017 so that he could review whether the owner had taken the corrective actions as set out in the Notice of Violation. The appellant was given written notice on October 27, 2017, that the inspection would take place by his superintendent

October 31, 2017 - Second Attendance

10Inspector Menna attended at the apartment complex on October 31, 2017 and met with the building superintendent. The Inspector was able to confirm that the owner and superintendent had addressed all of the corrective actions contained in the Notice of Violation, save for the issues identified in the appellant’s unit.

11The superintendent and Inspector Menna gained entry into the appellant’s unit. The appellant was home but in bed and not able to respond to a knock at the door. Upon entry to the unit, Inspector Menna noted that there was storage piled ceiling-high throughout the living space. Inspector Menna described the unit as a bachelor, containing a living, kitchen and bathroom area. He explained that the appellant’s bed was in the middle of the living area, to the west side of the kitchen.

12Inspector Menna noted that there was a high volume of materials stored in all visible areas of the unit, including clothing, children’s toys, books, paper boxes, plastic bins, furniture and textiles. There was clothing on a rocking horse. Inspector Menna took photographs of the living area, which were filed in evidence and which supported his stated observations.

13The kitchen area was not accessible because of the volume of materials stored in front of the kitchen entranceway. Inspector Menna testified that there was no real path of egress throughout the unit. He explained that while in the unit taking photos, he was standing sideways because he could not fit forward-facing in light of all of the materials stored throughout.

14Inspector Menna testified that he was concerned about fire safety. In particular, he was concerned that the piles of stored material were too close to the ceiling, much of the stored material was readily ignitable and/or could be toxic if burned, and that there was no real path to enter or exit the unit due to the volume of materials.

15The appellant did not take significant issue with the photographs² or the Inspector’s stated observations of the state of his unit. The appellant acknowledged that at the time of the inspection, there was no real entryway to his kitchen area, which he described as a “disaster zone”. He explained that he was sick at the time and had not been able to keep the kitchen area tidy and so he purposely blocked entry so that his friends and visitors could not see the state of his kitchen.

16With respect to the storage piled around the unit as noted by the Inspector, the appellant explained that he uses his unit as a live/work space and as such he purposely uses the space as storage and as art work. The appellant stated that he is an artist and as such he uses children’s toys and post-consumer industrial packaging in his work. He also collects vintage clothing, porcelain, ceramics, glass, and textiles, among other collectibles for the purpose of resale. The appellant acknowledged that his art and art materials, together with his various collections, do take up a significant amount of space in his unit. He described the space as “chaotic”.

The Inspection Order, November 3, 2017

17Based on his observations, Inspector Menna prepared and served the appellant with an Inspection Order, dated November 3, 2017. The Inspection Order was made under section 21(1) (c) & (d) of the FPPA, and ordered the appellant to:

1. Remove combustibles from the dwelling unit to:

a. maintain a minimum 1 m clearance from the kitchen appliances to reduce the risk of accidental ignition.

b. provide an egress pathway from each room and all floor areas with a minimum 1 m clearance. The access route must be clear of any obstructions from floor to ceiling to provide a safe means of egress for the occupant(s) and emergency responders.

c. maintain a minimum distance of 1 m from the ceiling to ensure adequate clearance for smoke alarm operation.

18In his Application for Fire Marshal Review and at the hearing, the appellant disputed the need for the action items to be completed as set out in paragraphs 1(b) and (c) of Appendix B of the Inspection Order, as set out above. The appellant did not take serious issue with the requirement as set out in 1(a).

19The appellant testified that in 2010, his unit was inspected by Toronto Fire Service and at the time he was given a “verbal order” to maintain a 1 m pathway for egress from the bed to the front door and to ensure that any storage piles do not exceed the height of 72 inches (the floor to ceiling height in the unit is approximately 96 inches resulting in a 24 inch required ceiling clearance). The appellant explained that he took all of the necessary steps to abide by the 2010 verbal order.

20In his testimony and submissions, the appellant objected to the need to take any remedial steps different than the steps he says he took in 2010. He noted that there was nothing in the FPPA that specifically required him to have 1m ceiling clearance or to have a 1m passageway for egress throughout the entirety of his unit.

ISSUE

21The issue before the Commission was whether the measures ordered by the Inspector, as set out in Appendix B of the Inspection Order, and confirmed in the Review Decision, are necessary to ensure fire safety.

POSITIONS OF THE PARTIES

22The appellant argues that the Review Decision was unreasonable in that it did not fairly take into account that he uses his unit as a live/work space, which requires him to store materials and other products related to his work as an artist and his business of selling vintage items. He also takes issue with the fact that he complied with the verbal order given to him in 2010 with respect to a 24 inch ceiling clearance and disputes the 1 m ceiling clearance requirement in the November 3, 2018 Inspection Order. In particular, he challenges the need for a 1 m clearance between his storage and the ceiling.

23The appellant argues that there is sufficient space between his storage and the ceiling to allow for smoke detectors to detect smoke. He also argues there is sufficient room to allow for access in the unit. The appellant did acknowledge that there was no egress to the kitchen when Inspector Menna attended his unit on October 31, 2017. He also stated that he understood the need for a 1 m clearance for access to the front door is necessary to allow for first responders to gain access to his unit.

24The appellant advised the Commission that he is currently in the process of setting up a racking system throughout his unit so that he can store his materials along the periphery of his space. This in turn will free up floor space in the middle of the unit and limit the need to store materials in high piles. He argues that his racking system will eliminate any fire safety concern.

25The respondent argues that the context of the appeal is whether the Order should be confirmed, amended or rescinded. The respondent submits that the inspection was conducted in accordance with section 19 of the FPPA and the Inspection Order was based on the evidence.

26The respondent further submits that the Review Order, which confirms and extends the time for compliance with the Inspection Order, is necessary to ensure fire safety. The respondent stated that the requirement for a 1 m clearance between the ceiling and the appellant’s materials is needed to ensure that in the case of fire, smoke traveling through the unit can be detected by the smoke alarm. In addition the sheer volume of materials poses additional challenges of containment of a possible fire and fire suppression.

27In addition, the respondent submits that the requirement for clear passageways is essential to ensure that in the case of fire or other emergency, the appellant is able to safely leave his unit or be rescued by emergency responders. It was clear in the evidence presented that a fire fighter would have difficulty passing through the various areas of the unit wearing his or her full gear.

ANALYSIS

Are the measures ordered by the Inspector, and confirmed in the Review Decision, necessary to ensure fire safety in this case.

28The primary issue before the Commission is whether or not there was a fire safety issue that necessitated the Inspection Order, confirmed by the Review Decision now under appeal. The appellant originally requested the review of the Inspection Order to determine if the measures set out in the Inspection Order are necessary to ensure fire safety. To determine whether the measures confirmed by the Review Order are necessary to ensure fire safety, the Commission needs to examine the circumstances that led to the Inspection Order.

29Under s.18 of the FPPA, for the purposes of the part of the Act dealing with “Inspections”, fire safety includes “safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it.”

30In light of the evidence presented, as summarized above, the Commission finds that there is a risk if a fire starts in the appellant’s unit, that it would seriously endanger the health and safety of the appellant, others in his apartment complex, and possibly emergency responders.

31The appellant does not contest the fact that he had in October 2017, and continues to have today, an excessive amount of materials stored throughout his unit, including piles which are stacked at or close to ceiling height. These materials include textiles, plastic bins, boxes, children’s toys and other materials, all of which Inspector Menna described as combustible.

32While the Commission understands that the appellant uses his unit as a live/work space and that he signed a lease to that effect, the unit is not currently designed for such use. Inspector Menna explained that in a true live/work unit, a sprinkler system and substantial fire walls between each space are required. There is no sprinkler system and no fire walls in the appellant’s unit.

33The risk to fire safety in this instance was not only that the combustible material could start a fire, but that if a fire began in the appellant’s unit, even if through no fault of the appellant, the volume of material would act as a fuel for the fire in a way that could exacerbate it significantly and give it a chance to spread to other units. Inspector Menna described that the excessive combustibles will make a fire stronger and hotter.

34In addition, the placement of the materials stacked throughout the unit places lives at risk as it limits the egress pathways in the apartment. In the event of an emergency, response personnel might not be able to reach the inner areas of the apartment efficiently to rescue occupants. If pathways are too narrow, equipment such as stretchers cannot get through. If material is piled too high, smoke gets trapped making it difficult to see and difficult for smoke detectors to quickly detect smoke. The Commission is satisfied that the 1- metre clearance ordered by the Inspector is necessary to ensure fire safety. The appellant’s argument that a 24-inch clearance is enough is problematic. It would be more likely for smoke to get trapped if the clearance between the stacks of materials and the ceiling is too small.

35Therefore, the Commission finds that there was/is a fire safety issue in the appellant’s unit that necessitated the Inspection Order.

36The Commission recognizes that the appellant had concerns about the inspection and the manner in which it was conducted. It should be noted, however, that section 19 of the FPPA gives fire inspectors the ability to enter any premises at any reasonable time. There is no requirement that notice be provided. In this case, notice of the October 31st inspection was provided by the appellant’s superintendent. The appellant may not have realized that Inspector Menna was taking photographs at the time, but there is nothing wrong with him having done so in order to properly record his observations.

37Further, the Commission commends the appellant for having taken certain steps to better organize his unit. As set out above, he advised the Commission that he is in the process of installing a racking system throughout the unit so that in part he can eliminate or limit the number of piles of materials. The Commission is hopeful that this racking system will help the appellant abide by the Inspection Order.

CONCLUSION

38The appeal is dismissed and the Order of the Fire Marshal’s Delegate, Michael Ng confirmed. We encourage the respondent to continue to act with sensitivity toward the appellant in light of his particular circumstances when scheduling follow up inspections.

ORDER

39The Fire Safety Commission confirms the requirements set out in the Review Decision, made on April 30, 2018

40The compliance date set out in the Review Decision is amended as follows:

• Item 1 shall be completed by December 15, 2018.

Footnotes

1. 1S.O. 1997, c.4.
2. 2The appellant did take issue with the manner in which the photographs of his unit were taken. He testified that he was not aware that Inspector Menna was taking photos on October 31, 2017 and only learned of the photos during the Fire Marshal review process.