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:
1046077 Ontario Ltd., o/a Local Dairy
Appellant
and
Ingersoll Fire and Emergency Services
Respondent
DECISION AND ORDER
Panel: Jeanie Theoharis, Vice-Chair Harriet Lewis, Member Asad Moten, Member
Appearances: For the Appellant: Amarjit Singh, Representative For the Respondent: Kelly Nenniger, Counsel Shannon Vanderydt, Town Chief Building Officer
Hearing held in person: London, Ontario, June 26, 2018 London, Ontario, September 25, 2018 Toronto, Ontario, November 5, 2018
OVERVIEW
1The appellant, 1046077 Ontario Ltd., carrying on business as Local Dairy, is a cheese and milk by-product manufacturer located in Ingersoll, Ontario. Through its owner and representative, Amarjit Singh, the appellant appeals four review orders from March 2018 made by the Fire Marshal Delegate (Review Orders).
2The appellant purchased the property located at 139 Victoria Street in Ingersoll (premises) in December 1998. The property is used as the appellant's headquarters, production and manufacturing facility, and for dry storage of ingredients and materials related to that operation.
3On June 26, 2017, Deputy Chief Ryan Baker (Inspector Baker) of the Ingersoll Fire & Emergency Services, together with Town Chief Building Officer Shannon Vanderydt, and Building Inspector Kelsey Hamond, attended the premises to conduct an inspection. This was done following a complaint about the premises. Following the inspection, Inspector Baker issued four inspection orders (Inspection Orders) under section 21(1)(g) of the Fire Protection and Prevention Act, 1997 (FPPA).
4The four Inspection Orders identified contraventions under the Ontario Fire Code and ordered that the appellant take specific steps to remedy the contraventions. Specifically, the Inspection Orders required the appellant to bring a non-functional sprinkler system into working order and to ensure proper protection of spray-foam insulation installed in the shipping and receiving area.
5The appellant sought a review of the four Inspection Orders by the Fire Marshal. The Fire Marshal's delegate issued four Review Orders confirming each of the Inspection Orders and amending the compliance dates.
6The appellant then appealed the four Review Orders to the Fire Safety Commission under four separate appeals files. The four Review Order appeal files were heard together.
7The Commission finds that the measures required in the four Review Orders are necessary to ensure fire safety. Subject to an amendment of the compliance dates, the Commission confirms the Review Orders.
SUMMARY POSITION OF THE PARTIES
8During the hearing it became clear that the relationship between the appellant and the town officials was adversarial with ill feeling on both sides. From time to time this affected the testimony presented by the parties, however, the Commission provided the parties with ample time to present their cases in full and to focus their evidence on the issues pertinent to the appeal.
9The appellant was represented by Mr. Singh who was also its only witness. Mr. Singh broadly submits that the appellant has not contravened the Fire Code, and that the Inspection Orders are not necessary to ensure fire safety. According to Mr. Singh, the spray insulation in the shipping/receiving area of the premises is not necessary because the shipping/receiving area is a separate building and not subject to that requirement under the Ontario Building Code. In addition, and in the alternative, the appellant argues that the walls in question have a mono-coat fire proofing layer sprayed on top of the insulation, which satisfies the requirements of the Building Code.
10With respect to the sprinkler system, the appellant submits that because the sprinkler system was not operational when he purchased the building in December 1998 and the Fire Department was aware of this, he should not now have to operationalize and maintain it. Secondly, the appellant also argues that since the sprinkler system has never been operational, its components, including a sprinkler pipe hanger and the sprinkler heads, need not be maintained.
11The respondent submits that full compliance with the Inspection Orders and Review Orders is required to ensure fire safety.
ISSUES
12The issue to be decided by the Commission is whether the measures ordered by the Inspector and confirmed in the Review Orders by the Fire Marshal's Delegate are necessary to ensure fire safety.
13To decide that issue, the following questions must be addressed:
a. Does the spray-foam insulation that was applied to the walls of the shipping/receiving area of the premises require thermal protection in accordance with the Building Code?
b. Must the inoperable sprinkler system be made operational in accordance with Building Code requirements for the type of occupancy, design and the level of risk; or has it been decommissioned through an approved process?
c. If the Commission finds that the sprinkler system has not been decommissioned and must be made operational then was a sprinkler pipe hanger not properly maintained and sprinkler head corroded?
RESULT
14The Commission finds that the measures required in the Review Orders are necessary to ensure fire safety. Subject to an amendment of the compliance dates, the Commission confirms the Review Orders.
15The Commission finds that the spray-foam insulation in the shipping/receiving area requires thermal protection to ensure fire safety.
16The Commission finds that the sprinkler system has not been decommissioned. Therefore, the sprinkler system must be operationalized or decommissioned through an approved process.
17The Commission finds that a sprinkler pipe hanger was not properly maintained, and a sprinkler head was corroded, and these must be repaired.
LAW
18The Inspection Orders were issued pursuant to s. 21(1)(g) of the FPPA. The section permits an inspector to order an owner or occupant to take any measure necessary to ensure fire safety on the premises, including remedying any contravention of the Fire Code.
19Section 18 of the FPPA indicates that fire safety includes the following:
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; and
Safety from the risk that the presence of unsafe levels of carbon monoxide on premises would seriously endanger the health and safety of any person.
20Section 26(6) of the FPPA authorizes the Commission to confirm, amend or rescind the Review Orders, or make such other order as the Commission deems appropriate.
ANALYSIS
21For each of the issues, the Commission must find that an issue identified by the inspector is a contravention of the Fire Code; and then it must determine that the order is necessary to ensure fire safety.
ISSUE 1: Does the spray-foam insulation that was applied to the walls of the shipping/receiving area of the premises require thermal protection in accordance with the Building Code?
22The Commission is satisfied that there is no evidence of thermal protection on the spray-foam insulation; that the absence of thermal protection to the spray-foam insulation is a contravention of the Fire Code; and that thermal protection of the spray-foam insulation is necessary to ensure fire safety.
23The Inspection Order cited Ontario Fire Code, Division B, Article 2.11.1.2, which states, "[u]nless otherwise approved, combustible insulation shall be protected as prescribed in the Building Code." The Inspection Order further stated that the intent is to "reduce the probability that the installation of insulation without appropriate protection will result in the spread of fire, causing harm to persons and/or damage to property."
24It is not contested that spray-foam insulation is located on three walls of the shipping/receiving area of the premises. The appellant argues that the shipping/receiving area is a separate, non-combustible structure, and as such, no thermal protection application is required; or alternatively that the spray-foam already has a mono-coat thermal protection that ought to comply with the Building Code.
25The appellant's submissions were not substantiated by the evidence.
Non-combustible structure
26The Commission appreciates the difficulty in understanding the interrelationship between the Building Code and the Fire Code. As explained at the hearing, a building's classification, fire rating, usage etc. is all determined by a building official who determines a building's classification based on the Building Code. If an owner disagrees with the manner in which their property has been classified pursuant to the Building Code, the owner's recourse is to challenge that decision to the adjudicative body that has jurisdiction to make those decisions. The Fire Safety Commission does not have jurisdiction to change decisions made under the Building Code such as building classifications.
27Under the Building Code, the premises' occupancy is classified as F3 and zoned "restricted industrial use". Shannon Vanderydt, the Town Chief Building Officer, testified that the premises is a combustible building and, despite its structure and the design of the shipping/receiving area, is considered as one large building that must comply with the requirements found in Part 3 of the Building Code.
28However, we find that whether the premises is a combustible or non-combustible building is not relevant. Both the Town Chief Building Officer and Inspector Baker indicated that a building's classification would not change the requirements of the Fire Code. They indicated that the Fire Code requires that uncovered spray-foam insulation have a thermal protection barrier applied to it. In other words, combustible or not, uncovered spray-foam insulation requires thermal protection.
The premises already has a thermal protection
29During the inspection, Inspector Baker observed that the spray-foam insulation was directly exposed to the interior of the premises. He testified that the Fire Code requires that it be protected but how it is to be protected is determined by the Building Code.
30The respondent through its witnesses explained that the Building Code classifies spray-foam as foamed plastic, and as required by the Building Code, it must be thermally protected because of its toxicity when it burns. The evidence was that spray-foam insulation is very combustible, and when it is unprotected and exposed to heat, it smokes and burns quite rapidly. However, when a thermal protection is applied, it slows down the creation of smoke and the burn rate of the insulation, and provides occupants of the burning premises additional time to safely leave in an emergency.
31Mr. Singh testified that a mono-coat was applied to the spray-foam when it was installed, which he understood would comply with the thermal protection requirements under the Building Code. However, this was not substantiated. There was no evidence to show that a thermal protection that complies with the Building Code was applied to the spray-foam insulation.
32We do not disregard the appellant's evidence that a mono-coat was applied to the exposed spray-foam insulation sometime in 2008/09. However, because the appellant did not have any records or invoices to show what product was applied and its thermal rating, there is no way of confirming that the insulation has satisfactory thermal protection.
33Inspector Baker was unable to determine, by visual inspection only, the thermal protection properties of any mono-coat that had been applied to the spray-foam insulation in the shipping/receiving area. Inspector Baker testified that during the inspection, he requested that the appellant provide details of the thermal protection applied to the spray-foam to assist him in determining if there was a protective coating on the spray-foam. If any confirming documentation was available, the appellant had an obligation, and the opportunity, to produce it. Pursuant to section 19(7) of the FPPA, if an inspector demands a document to be produced for inspection, the person who has custody of the document shall produce it. No documentation was produced nor was there any other evidence available to show that the spray-foam insulation was thermally protected or in compliance with the Ontario Building Code.
34To provide evidence of compliance for this hearing, the appellant could have hired a professional to test the spray foam insulation and mono-coat product to determine its thermal rating and whether it complied with the Building Code requirements. However, the appellant did not provide any such evidence.
35The Commission concludes, that to ensure fire safety, the spray-foam insulation located at the Premises must have a thermal protection applied to it which complies with the Ontario Building Code.
ISSUE 2: Must the inoperable sprinkler system be made operational in accordance with Building Code requirements for the type of occupancy, design and the level of risk; or has it been decommissioned through an approved process?
36The Commission finds that an operational sprinkler system is required to ensure fire safety at the premises. Alternatively, the appellant has the option to take steps to have the sprinkler system decommissioned through an approved process.
37Mr. Singh testified that the sprinkler system and its components have not been operational since the appellant has owned the Premises. The respondent did not present any evidence to the contrary. The Commission has no information as to when the sprinkler system was installed or when it became inoperative.
38The Ontario Fire Code, Division B, Article 6.5.1.2 requires a sprinkler system to be maintained in operating condition. Moreover, section 6.9 of Division B of the Fire Code notes that "fire protection equipment and life safety systems shall not be decommissioned or permanently taken out of service without approval."
Requirement for Sprinkler System to be Maintained in Operating Condition
39Mr. Singh stated that the system was never operational, and he did not maintain its parts or equipment. He did make some efforts to have the system repaired, as detailed below, but the repairs were never completed. He states that because the sprinkler system has not been operational since the appellant acquired ownership, he should not now have to make it operational nor should he have to now maintain the sprinkler system parts and equipment. Alternatively, the appellant submits that the premises does not require a sprinkler system.
40The respondent does not agree with the appellant's submissions. The respondent submits that the Ontario Fire Code applies to the premises because there is a sprinkler system at the premises. The Fire Code applies whether or not the sprinkler system was ever operational during the appellant's ownership, and regardless of whether the system's parts and equipment have been maintained.
41The Commission finds that the appellant, as owner of the premises, must comply with the provisions of the Ontario Fire Code. Article 1.2.1.1 of the Ontario Fire Code indicates that the owner is responsible for carrying out the provisions of the Code. The Fire Code does not exempt owners from complying with the Fire Code merely through the passage of time. Therefore, the appellant cannot rely on the argument that the sprinkler system has always been inoperative in order to avoid obligations under the Fire Code.
42The Ontario Fire Code requires that a sprinkler system be maintained in operating condition. The Fire Code applies even if a premises has not complied with the Fire Code for a number of years; or items have been in non-compliance for a number of years. The test remains the same: whether an operational sprinkler system is necessary to ensure fire safety. If a property has a sprinkler system, the Fire Code applies.
43The Commission further finds that the appellant was aware that the sprinkler system was not operational, and believed or knew that he had to make the sprinkler system operational. Mr. Singh testified that he took some steps in 2008 to have the system repaired, but thereafter opted not to complete the necessary maintenance and repairs to make it operational.
44Inspector Baker testified that an inspection occurred on September 23, 2008 where it was observed that the sprinkler system was not operational. An Inspection Report from that inspection was issued October 15, 2008 (2008 Inspection Report) (Exhibit 30). The 2008 Inspection Report informed the appellant of violations of the Ontario Fire Code that needed to be rectified. In particular, as it relates to the current appeals, the 2008 Inspection Report noted that the sprinkler system shall be maintained in operating condition, and provided the appellant until December 31, 2008 to make the necessary repairs to the sprinkler system.
45The 2008 Inspection Report notes that Mr. Singh informed the inspector that "there was difficulty in finding parts for the sprinkler system and has not been in operation for several years." By letter dated January 30, 2009 (Exhibit 28), Mr. Singh wrote to the Ingersoll Fire & Emergency Services, informing them that he had contacted contractors to make the sprinkler system operational, and that a contractor suggested that the sprinkler system be worked on during the latter part of the spring to facilitate the work that was needed to make the sprinkler system operational.
46Mr. Singh testified that he hired Vipond Inc., a fire protection company, to make the necessary repairs to the sprinkler system. Mr. Singh testified that after some repairs a Vipond Inc. employee informed him that the Premises did not require an operational sprinkler system. He indicated he paid $9,000.00 to Vipond Inc. for the work already completed, and thereafter stopped any further work on the sprinkler system. The sprinkler system was never made operational.
47Inspector Baker testified that the next inspection of the premises occurred in 2017, wherein it was observed that the sprinkler system was in disrepair, not maintained and not operational. As a result, the Inspection Order, which is the subject of this appeal, was issued in 2017.
48The Commission finds that the sprinkler system at the Premises is not operational. The appellant knew it was required to have a properly maintained and operational sprinkler system, and opted not to comply with this Fire Code requirement.
Was the Sprinkler System Decommissioned?
49The Commission finds that the sprinkler system was not decommissioned. There was no evidence to suggest that the sprinkler system was decommissioned. Mr. Singh did not indicate he took steps to have the sprinkler system decommissioned, and neither the Fire Marshall's office nor the Building Department have any evidence to indicate that the sprinkler system was decommissioned.
50There was no evidence that the appellant received the required approval to have the sprinkler system decommissioned. Section 6.9 of Division B of the Ontario Fire Code mandates that "fire protection equipment and life safety systems shall not be decommissioned or permanently taken out of service without approval."
51The Commission finds that the premises requires that the sprinkler system be maintained in operating condition; and that the sprinkler system may not need to be maintained in operating condition only if the sprinkler system is decommissioned through an approved process. As of the date of the hearing, the sprinkler system has not been decommissioned through an approved process. The requirement to maintain the sprinkler system in operating condition, or decommission the sprinkler system through an approved process is necessary to ensure fire safety.
52We therefore find that the sprinkler system is not operational nor has approval been sought to have the sprinkler system decommissioned or permanently taken out of service.
ISSUE 3: Was a basement sprinkler pipe hanger not properly maintained; and a sprinkler head corroded?
53The Commission finds that there was a Fire Code violation because a sprinkler pipe hanger was not properly maintained and a sprinkler head was corroded. The Inspection Order requires the appellant to repair or replace sprinkler hangers, and to have sprinkler heads checked once per year for damage and/or corrosion is necessary to ensure fire safety.
54Ontario Fire Code, Division B, Article 6.5.3.1, requires that exposed sprinkler piping hangers be checked yearly to ensure that they are kept in good repair. The Inspection Order stated that the intent of this section is to ensure all parts of the sprinkler system are in good working order and will allow for the sprinkler system to be operational in a fire situation, such that a fire is suppressed or controlled, minimizing the risk of the fire spreading and/or causing harm to persons and/or property.
55Article 6.5.3.4. of the Ontario Fire Code, Division B requires that sprinkler heads be checked at least once per year to ensure that they are free from damage, corrosion, grease, dust, paint or whitewash. The Inspection Order stated the intent of this section is to ensure that a sprinkler head activates without delay in a fire. A delayed activation could lead to a fire not being suppressed or controlled. This could lead to the spread of fire and harm to persons or damage to property.
56The parties agreed at the case conference that the Fire Code determines the annual inspection and maintenance requirements for the sprinkler system, in particular as it relates to the sprinkler pipe hanger and sprinkler head.
57It is also not contested that the sprinkler pipe hanger was not maintained and that the sprinkler head was corroded. The appellant's evidence was that it did not take measures to maintain these parts, as in Mr. Singh's opinion, the premises never had a functional sprinkler system nor did it require one.
58Given (i) the Commission's finding that a sprinkler system is required to be maintained in operating condition, (ii) the necessity of maintaining sprinkler heads and hangers to ensure fire safety, and (iii) the agreement of the parties that both sprinkler heads and hangers have not been maintained, the Commission finds that the sprinkler system parts at the premises must be maintained and inspected by the appellant in accordance with the Fire Code to ensure fire safety.
CONCLUSION
59For the reasons set out above, the Fire Safety Commission confirms the Review Orders made by the Fire Marshal Delegate, but amends the work completion dates as follows:
a. Review Order FM-17089A dated March 7, 2018 will require compliance by April 19, 2019.
b. Review Order FM-17089C dated March 9, 2018 will require compliance by March 19, 2019.
c. Review Order FM-17089E dated March 9, 2018 will require compliance by March 19, 2019.
d. Review Order FM-17089G dated March 9, 2018 will require compliance by March 19, 2019.
ORDER
60The Commission orders that:
a. By April 19, 2019, the appellant shall apply thermal protection that complies with the Ontario Building Code to the spray-foam insulation located in the shipping/receiving area of the premises.
b. By March 19, 2019, the appellant shall make the sprinkler system in the premises operational or decommission the sprinkler system with approval.
c. If the appellant cannot or does not decommission the sprinkler system then, by March 19, 2019, the appellant shall:
i. Make the sprinkler pipe hanger operational; and
ii. Ensure that the sprinkler head is free of damage, corrosion, grease, dust, paint or whitewash.
Released: January 25, 2019
Jeanie Theoharis, Vice Chair
Harriet Lewis, Member
Asad Ali Moten, Member