FIRE SAFETY COMMISSION
Safety, Licensing Appeals and Standards Division
cOMMISSION DE la sÉCURITÉ-INCENDIE
Division de la sécurité, des appels en matière de permis et des normes
Appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
North Toronto Heritage
Appellant
and
Toronto Fire Services
Respondent
REASONS FOR DECISION and ORDER
Panel: Patricia McQuaid, Harriet Lewis and Santina Moccio,
Fire Safety Commission
Appearances:
For the Appellant: John Phillips and David Phillips, Agents
For the Respondent: Emma Luca, Counsel
Place and date of hearing: Toronto, Ontario
September 30, 2019
REASONS FOR DECISION
OVERVIEW
1This is an appeal of a review decision, dated November 23, 2018 made by Michael Ng, the delegated official acting for the Fire Marshal (the "Review Decision"). The Review Decision upheld the Inspection Order made by Inspector Calvin Ho of the Toronto Fire Services ("TFS") on May 16, 2018, with an amendment to the compliance date. The Inspection Order was made following Inspector Ho's attendance at the property owned by the appellant, North Toronto Heritage, located at 101 Lawton Boulevard on March 20, 2018. The property is a 37- unit apartment building that is five storeys above grade with one storey below grade. John Phillips is the principal of the appellant. He was assisted at this hearing by his son, David Phillips, who is also an employee of the appellant.
2The Inspection Order was issued pursuant to s.21(1)(g) of the Fire Protection and Prevention Act, 1997 (the Act). It addressed three issues. At the onset of the hearing, John Phillips (referred to as Mr. Phillips in this decision) stated that they were withdrawing the appeal of the second and third items on the Inspection Order. These related to providing unobstructed access to an open public or an exterior public space protected from fire exposure and protecting window openings in the area of the fire escapes. The parties confirmed that substantive work has been done to achieve compliance with the Ontario Fire Code (the "Code") in relation to these two items.
3The only issue remaining for the hearing concerns the application of s.9.5.3.1 (Division B) of the Code (Item 1 on the Review Decision); specifically, that the appellant provide a second and separate exit for the five bachelor apartment units located in the east side of the building. We note that the Inspection Order makes reference to four bachelor units which was in error; the parties agree that there are in fact, five units to which the Inspection Order applies.
4Section 26 of the Act 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.
RESULT
5The Commission confirms the Review Decision with an amendment to the compliance date as set out below.
EVIDENCE and ANALYSIS
6The property at 101 Lawton Boulevard is an older building, built in 1915. All of the apartments have doors that exit to a common hallway and an open interior staircase. In addition, all but the five bachelor apartments also have an exit from the apartments to exterior fire escapes. The tenants of those apartments can access the fire escape directly from their unit. In order for a tenant in the bachelor apartment to get to the fire escape, they must enter the hallway area and walk approximately 3.5 meters to reach it. It is this issue which is a concern for TFS.
7The Commission heard from three witnesses: Inspector Calvin Ho, Kevin Kelly, Fire Prevention Engineer with TFS, and Mr. Phillips. There is no dispute that the five bachelor apartments do not have access directly (that is, without entering the hallway) from the unit to the nearest fire escape. Much of the evidence focussed on the interpretation and applicability of s.9.5.3.1(1) and (5) of the Code which reads:
9.5.3.1. (1) Each dwelling unit or suite in a floor area shall have a doorway leading to
(a) the outside at or near grade,
(b) an outside passageway where it is possible to go in opposite directions to separate exits, or
(c) a public corridor where it is possible to go in opposite directions to separate exits.
- Despite Sentence (1), a doorway from a dwelling unit or suite may open onto
(a) an exit stairway,
(b) a fire escape,
(c) a public corridor served by a single exit, or
(d) an outside passageway served by a single exit stairway,
if the dwelling unit or suite has access to a second and separate exit or the building is in compliance with Sentence 9.5.3.2.(2) or (3).
The Code also states in s.9.5.3.2. (1) that each floor area shall be served by a minimum of two exits.
8The defined terms of 'exit' and 'means of egress' are relevant to the interpretation of this section. They are defined in the Code as:
Exit means that part of a means of egress, including doorways, that leads from the floor area it serves to a separate building, an open public thoroughfare or an exterior open space protected from fire exposure from the building and having access to an open public thoroughfare.
Means of egress means a continuous path of travel provided for the escape of persons from any point in a building or contained open space to a separate building, an open public thoroughfare or an exterior open space protected from fire exposure from the building and having access to an open public thoroughfare. Means of egress includes both exits and access to exits.
9Parsing out each of these technical terms, in the context of the facts before the Commission, is not without its challenges. However, the overarching issue is fire and life safety. The concern articulated by the TFS witnesses is that in the event of fire a tenant leaving the bachelor apartment must enter the corridor outside their door. Because the stairs to the ground floor and to the outside are open, the TFS' evidence is that the hallway and stairs together form the exit. Together they are the means of egress. The tenant could use the fire escape, but only by walking through this exit space. As Mr. Kelly framed it, the tenant would have to go through one exit, (the hallway area), to get to the other exit, the fire escape. In his view this does not ensure fire safety for occupants. There is, in effect, only one path of travel. The TFS asserts that this does not satisfy the requirement that there be a second and separate exit.
10In upholding the Inspection Order, the Fire Marshal found that "the dwelling units do not have direct access to a second and separate exit". As Mr. Phillips pointed out in his evidence, the word 'direct' does not appear in the section of the Code in issue. He stated that if the word 'direct' was in the section, he would agree with the Inspection Order.
11Mr. Phillips contends that in fact there are two separate exits: the interior stairway and the exterior separated stairway exit (the fire escape). These give rise to three exit options in his view: (1) leaving the apartment, the tenant could go into the hall, to the right and down the stairs and out of the building; (2) to the left, the tenant could go up the same staircase (to the exterior fire escape on the upper floor); or (3) to the right, they could go through the hallway to the fire escape on the same floor.
12While we agree that the fire escape is a second means by which the tenant could leave the building, we also note that there is a fire safety issue in that no one from the bachelor units can exit without entering the open stairway area – the one exit - first. There is no second and separate exit for the bachelor apartment; the tenant cannot access a second exit directly.
13It is clear, based on the evidence from both parties, that the fire safety of the residents of this apartment building is a mutual concern. The appellant has shown its concern through its good faith efforts to address the Code requirements set out in items 2 and 3 of the Inspection Order.
14We conclude that the open hall and stairway area in this building together constitute an 'exit'. Therefore, based on the design of the building, there is no "second and separate exit" that complies with the Code. The residents of the bachelor apartments have no choice but to leave their units to enter this open area, even if they wished to leave the building by the fire escape. There is no separation between this space and access to the fire escape. In the event of a fire, the lack of separation increases the risk of smoke and fire spread through the open hallways and stairwells, making it more difficult for residents to safely leave the building. This is clearly a fire safety issue.
15Therefore, the Commission finds that there is a fire safety issue that necessitated item 1 in the Inspection Order. In this instance, it is not a test of reasonableness and compliance with the "spirit" of the law as Mr. Phillips submits. These are prescriptive requirements based on fire safety.
16We note that there was evidence before us regarding one acceptable solution to achieve compliance: that being, the bachelor units could be merged with the adjacent units which do have access to the fire escape without entering the hall/stairway exit. According to Mr. Kelly, this would satisfy the prescriptive requirements of the Code. In addition, recognizing that there may be limitations on what can be done to bring an older building such as this into compliance, the Code (in Division A) does set out a process by which the appellant can propose an alternative solution: s.1.2.2.1(1)(b). Either of these options, if agreed to, would require time for implementation.
ORDER
17For reasons set out above, the appeal is dismissed and the Commission confirms the order of the Fire Marshal's Delegate, Michael Ng.
18The compliance date set out in the Review Decision is amended as follows:
- Item 1 shall be completed by April 30, 2020.
Released: October 30, 2019
Patricia McQuaid
Santina Moccio
Harriet Lewis