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
In an appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4
Between:
Gregory Tyler Peacock Appellant
and
Toronto Fire Services Respondent
MOTION DECISION and ORDER
Order made by: Luisa Ritacca, Vice-Chair
Date of Order: November 5, 2019
Appearances:
For the Appellant: Gregory Tyler Peacock
For the Respondent: Emma Luca, Jacqueline Mathurin, counsel Ian Falkiewicz, Fire Prevention Inspector
Heard via Teleconference: November 4, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Gregory Tyler Peacock is the co-owner and occupant of the building located at 50 Howland Avenue in Toronto. The building is a three- storey plus basement, semi-detached residential property. The respondent, Toronto Fire Services, issued two inspection orders and an order to close with respect to the building on October 2, 2019. The orders were issued following an inspection conducted by Fire Prevention Inspector Ian Falkiewicz.
2On October 17, 2019, Mr. Peacock requested a review of the Order to Close and corresponding Inspection Order by the Fire Marshal, who in turn referred the matter to the Fire Safety Commission on October 23rd, 2019, pursuant to s. 25(4)(a) of the Fire Protection and Prevention Act, 1997 (the FPPA)
3The Order to Close is limited to the third floor of the building, where at the time the order was made there were four occupants, living in three individual units. The respondent concluded that the appellant has converted his home into a rooming house and that as such in order to ensure fire safety and compliance with the Ontario Fire Code, there must be two exits available on each floor. At present, there is only one exit from the third floor.
4The appellant takes issue with the respondent’s conclusion that the building is a rooming house and in any event argues that there is a second exit available to his occupants by way of a third floor window.
5One of the Inspection Orders under appeal is connected to the Order to Close and requires the appellant to make a second exit available on the third floor. The other Inspection Order identifies a number of additional fire safety deficiencies throughout the appellant’s building, including a lack of a fire alarm system and a lack of proper fire separation in certain areas.
6The filing of an appeal before the Commission operates as a stay of the Order to Close and Inspection Orders until the matter is heard and determined by the Commission. Given that this matter was only referred to the Commission on October 23, 2019, there has yet to be a substantive cases conference or any discussion between the parties with respect to scheduling a hearing.
7The respondent moves for an order lifting the automatic stay of the Order to Close pending appeal on the basis that it is necessary to do so in the interest of public safety.
8The appellant opposes the motion.
9On the evidence before me, I find that the respondent has failed to establish that lifting the stay is necessary in the interest of public safety. The motion is denied.
ISSUE
10The issue on this motion is whether it is necessary, in the interest of public safety, to lift the automatic stay of the Order to Close.
THE LAW
11Section 21(1) of the FPPA grants an inspector, who has carried out an inspection of premises under section 19 or 20, broad powers to order the owner or occupant to take any measure necessary to ensure fire safety at the premises.
12Subsection 21(2)(a) of the FPPA allows an inspector who carries out an inspection under section 19 or 20, with the approval of the Fire Marshal, to order that the owner or occupant of a premises close the premises and prevent persons from entering it until the corrective actions ordered under section 21(1) are completed.
13Subsection 25(1) provides in part that any person who considers themselves aggrieved by an order made by an inspector, other than the Fire Marshal, under s. 21(1) or (2) may request a review by the Fire Marshal.
14Subsection 25(4)(a) allows the Fire Marshal to refer the matter to the Commission for a hearing under section 26.
15Subsection 26(7) provides that an appeal under section 26(1) operates as a stay of the order pending the outcome of the appeal, and subsection (8) states that the stay may be lifted by the Commission where it is of the opinion that the lifting of the stay is necessary in the interest of public safety.
16The onus is on the respondent to show that the lifting of the stay is necessary in the interest of public safety.
SUBMISSIONS
A. Toronto Fire Services Submissions
17The respondent submits that lifting the stay of the Order to Close the third floor in the appellant’s building is necessary in the interest of public safety.
18There is no dispute between the parties that at the time of the Order to Close was issued, there were four tenants living in three separate dwelling rooms on the third floor of the building. The respondent argues that the only means of exit from the third floor is through the second floor, which contains two additional dwelling rooms and a shared kitchen.
19The respondent argues that the arrangement on the third floor as it existed at the time of the Order to Close is in violation of section 9.3.3.1(1) of the Ontario Fire Code which requires that boarding, lodging and rooming houses provide two exits per floor area.
20The respondent submits that in the event of a fire, persons occupying the third floor may be impeded from moving to a safe place in a timely manner. In addition, the respondent notes that the proximity of the kitchen to the exit through the second floor heightens the risk of a fire compromising the viability of the single exit.
21The respondent also notes that in addition to the concern with respect to the lack of a second exit on the third floor, the Inspector identified a number of other violations of the Ontario Fire Code in the building.
22Many of these deficiencies identified by the Inspector in October 2019 were the subject of previous Inspector Orders made in 2018. Those previous orders were not appealed and remain outstanding. At present, the appellant is facing charges relating to his failure to abide by the 2018 orders and his failure to cooperate with the Toronto Fire Service in allowing it to carry out its inspection duties.
23The respondent argues that the fact that many of the same deficiencies first identified in 2018 persist in 2019 is evidence of the appellant’s disregard for the process and for the safety of his occupants. The respondent says that this increases the need for an order lifting the stay so that any risk posed to occupants living on the third floor is removed, pending the hearing of this matter.
24The respondent acknowledges that an order lifting the stay will have the effect of displacing occupants from the third floor of the building. The respondent also acknowledges that while many of the same deficiencies existed in 2018, the inspector at the time did not see fit to issue an Order to Close. The respondent argues, however, that the inspector did issue specific Inspection Orders, presumably under the belief that the appellant would comply and rectify the deficiencies. The fact that the same deficiencies persist supports the respondent’s request for an order lifting the stay.
B. Mr. Peacock’s Submissions
25The appellant opposes the motion on the basis that no emergency exists.
26First, the appellant takes issue with the premise of the Order to Close. He argues that he does not operate his home as a rooming house and that the Ontario Fire Code provisions applicable to rooming houses are not applicable to his building.
27Second, the appellant argues that there is a second exit available to his third floor occupants. He explained that the occupants have access to a window in one of the bed rooms, which leads to a flat roof and from which the occupants can jump to an outside deck.
28Third, the appellant submits that the deficiencies identified in 2019 are essentially the same deficiencies identified by the Toronto Fire Service in 2018. At the time, the respondent did not see fit to issue an Order to Close. The circumstances have not changed and so there is no urgency which would necessitate the lifting of a stay at this time.
29Fourth, the appellant argues that he has been cooperative with the Toronto Fire Service and therefore takes issue with the respondent’s position that he has obstructed inspections in a manner making the lifting of the stay necessary in the interest of public safety.
ANALYSIS
30I decline to order the stay lifted.
31The lifting of the stay is an extraordinary measure that can only be exercised with evidence showing it is necessary in the interest of public safety.
32I have no doubt that the Order to Close in this case, as with all fire safety orders was issued to ensure fire safety in the interest of the public. Nonetheless, the FPPA makes clear that all such orders are stayed pending review by the Fire Marshal and appeal to the Commission.
33In order to lift the stay, the respondent, must show an urgent need for the stay to be lifted in the interest of public safety.
34There is no doubt that the respondent believed it was acting in the public interest in ordering the third floor of the appellant’s building closed. The information before me is that the inspector concluded there was a need to remove the appellant’s tenants from the third floor, where they did not have ready access to two exit routes. The respondent also clearly has concerns about the public safety with regard to the building given the appellant’s history of disregarding inspection orders and of interfering with the respondent’s inspection powers.
35These are real concerns and I am sympathetic to the respondent’s position. That said, the apparent risks in the appellant’s building and living arrangement have been known to the respondent for well over a year. There was no evidence before me to address why the risks now are so great that a lifting of the stay of the Order to Close should be granted. I recognise that the appellant appears to have failed to comply with earlier orders, but that in and of itself, does not satisfy me that the usual process (i.e. a stay pending a hearing) should be displaced.
36I asked the parties about their readiness for hearing. Both the respondent and appellant indicated that subject to the Commission’s availability, they are prepared to schedule a hearing of this matter before the end of the calendar year. If indeed a hearing can be scheduled relatively soon, any risk in allowing the status quo to remain in place will be minimized.
37If I was inclined to grant the order lifting the stay, the appellant’s tenants would be forced to find alternative housing for an indefinite period of time, in a situation where there has been no final decision from the Commission with respect to the Order to Close. In my view, this is not a situation where tenants should be displaced pending the outcome of the hearing.
38I find that the respondent has failed to establish on a balance of probabilities that the lifting of the stay is necessary in the interest of public safety.
ORDER
39The motion to lift the stay is denied. The hearing of this appeal should be scheduled on an expedited basis.
Released: November 5, 2019
Luisa Ritacca, Vice-Chair