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: J.S. v. Toronto Fire Services, 2019 ONFSC 2

Date: 2019-03-05

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

Between:

J.S.

Appellant

and

Toronto Fire Services

Respondent

DECISION

Panel: Luisa Ritacca, Susan Clarke, Joanne Foot Fire Safety Commission

Appearances:

For the Appellant: J.S., Self-Represented (participating by telephone)

For the Respondent: Emma Luca, Counsel

Place and date(s) of hearing: Toronto, Ontario February 26, 2019

REASONS FOR DECISION

OVERVIEW

1This is an appeal of the review decision dated December 19th, 2017 made by Michael Ng, the delegated official acting for the Fire Marshal (the “Review Decision”). The Review Decision upheld in part the Inspection Order made by Inspector Micaiah Mercurius of the Toronto Fire Services on June 30, 2017 (the “Inspection Order”).

2The appellant, together with his spouse, is the owner and occupant of the premises at issue, which is a two-storey detached residential home, with a basement. The Inspection Order was issued by Inspector Mercurius following an inspection of the home which took place on June 27, 2017. Inspector Mercurius was alerted by the Operations Division of the Toronto Fire Service about potential fire safety issues in the home following a small house fire in May 2017. In telephone communications with the appellant, the Inspector made arrangements to attend the home on June 27, 2017.

3The appellant does not dispute the concerns raised in the Inspection Order, but appeals on the basis that he requires more time to comply with the items set out therein. In particular, the appellant argues that he has required significant time to remove the various combustibles identified in the Inspection Order, which remain in certain areas of the home up to the present day.

4Section 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

June 27, 2017 Attendance and June 30, 2017 Inspection Order

5The appellant and his wife reside in the home at issue on a full-time basis. The appellant’s grown children also reside there from time to time. The home is a two-storey, detached property, with a basement.

6On June 27, 2017, Inspector Mercurius attended the home for the purpose of conducting an inspection of the property. The Toronto Fire Services’ Operations Division had referred the home to the Fire Prevention and Education Department following their attendance at the home to address a small kitchen fire in May 2017. Inspector Mercurius testified that he received the referral as a result of concerns from the Operations Division of ongoing fire safety issues.

7At his attendance on June 27th, Inspector Mercurius met with the appellant, his wife and daughter. Inspector Mercurius was given access to the home by the appellant. He took a series of photographs to record his observations. The Inspector noted an excessive accumulation of combustibles in several rooms in the home; combustibles placed directly adjacent to or near appliances and limited paths of egress from various rooms, due to the amount of stored materials. He also noted that in some areas of the home, there were combustibles piled within less than one metre from the ceiling.

8As a result of his observations, Inspector Mercurius issued the Inspection Order on June 30, 2017. He served the Order on the appellant at his home and arranged for an additional copy to be mailed. The Inspection Order was made under section 21(1)(f) of the FPPA, and order the appellant to:

1. You shall reduce combustibles from the house located at [address] to:

a) Maintain a minimum 1 metre clearance from the electrical fuse panel and appliances to ensure that there is no accidental ignition. Examples of appliances include, but are not limited to, stoves, space heaters, and refrigerators.

b) Provide access to exit from each room of the dwelling unit, with a 1 metre clear access to exit throughout. The access route must be clear of any obstructions from floor through to ceiling, with the intent to provide a safe means of egress for the occupant(s) and emergency responders.

c) Maintain a minimum distance of 1 meter from the ceiling to ensure adequate clearance for smoke alarm operation.

2. Remove the temporary electrical wiring that is currently being used for the stove in the kitchen.

3. You shall inspect any temporary electrical wiring used in the house, and remove it is it presents a fire hazard.

4. You shall provide a smoke alarm in each room of the house where there are sufficient combustibles that warrant compliance with item #1 of this Order, to ensure adequate early warning of fire emergency. The owner is to maintain operability of the smoke alarms by following manufacturer’s instructions.

9Following a review of the Inspection Order by the Fire Marshal’s Delegate, items #1 and 2 from the Inspection Order were upheld. The Fire Marshal’s Delegate determined that items #3 and 4 should be rescinded.

The 2018 and 2019 Re-inspections

10Inspector Mercurius testified that he made arrangements to re-inspect the home following the release of the Review Decision in December 2017. He re-attended the home on January 23, 2018. He explained that he observed little to no improvement with respect to the removal of combustibles throughout the home. He did, however, note that the appellant had made efforts to remove combustibles around some appliances and other sources of ignition. In particular, he acknowledged that the appellant had cleared the area around his kitchen stove and around his basement water heater.

11The Inspector re-attended the home four more times throughout 2018. Each time, he noted that the appellant appeared to be making efforts to remove combustibles, but that there was still little overall change. The Inspector testified that his original concerns about fire safety remained throughout 2018. He also noted that at his inspection on August 29, 2018, he attended with two city social workers in an effort to help explain to the appellant that there are resources available to assist him with his clean-up. At the time, the appellant did not pursue any assistance.

12Finally, the Inspector re-attended the home on January 19, 2019, with a Toronto Public Health nurse. Inspector Mercurius noted that the appellant and his wife appeared to be receptive to the assistance that was offered by the Public Health nurse. He also noted that there was still little change to the fire safety issues he first observed in 2017. He did acknowledge, however that there were now at least some areas (including the stairs leading to the second floor and the second floor hallway) which had been cleared of combustibles.

13During this final re-inspection, Inspector Mercurius observed that there were once again combustibles being stored adjacent or very near to electrical appliances. In particular, he made note of the fact that it appeared that there were now combustibles adjacent to a refrigerator and stand-alone freezer located in the basement.

14Inspector Mercurius acknowledged that the appellant was now in compliance with item #2 in the Inspection Order and that as such the only outstanding issue was compliance with item #1.

The Appellant’s Evidence

15The appellant did not dispute that there were and continue to be fire safety issues within his home. He acknowledged that the amount of and storage of combustibles was problematic. In his testimony, he described the efforts he has made over the last 18 months to remove the combustibles and to comply with the Inspection Order.

16As he indicated in his Notice of Appeal, the appellant has had to address the issues listed in the Inspection Order, while at the same time assist his wife who has been receiving treatment for cancer. In the circumstances, the appellant explained that it has taken him longer to comply with the Inspection Order. He also testified that he had arranged for two removal trucks to attend his home in the days prior to the hearing, but as a result of weather they were not able to reach his home.

17The appellant made clear to the Commission that he does not dispute Inspector Mercurius’ description of his home or that there remain fire safety issues. He has asked the Commission to vary the Inspection Order to give him additional time to comply. He indicated that he believed he could comply by the end of March 2019.

ISSUE

18The issue before the Commission was whether the measures ordered by the Inspector, as set out in Appendix B of the Inspection Order, and as varied by the Review Decision, are necessary to ensure fire safety.

POSITIONS OF THE PARTIES

19As set out above, there is no dispute between the parties that there are fire safety issues within the appellant’s home that must be addressed. The appellant acknowledges that there are areas in his home with an excessive quantity of stored combustibles. He also acknowledges that he has had over 18 months to comply with the Inspection Order. It is the appellant’s position that he be given additional time to comply in light of his particular circumstances.

20The respondent submits that the Review Order, which varies and extends the time for compliance with the Inspection Order, is necessary to ensure fire safety. The respondent submits that the requirement for a one metre 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 combustible materials poses challenges of containment of a possible fire and fire suppression. Further, the respondent argues that the storage of combustibles adjacent or very near to electrical appliances poses a serious risk of accidental ignition.

21Finally, the respondent submits that the requirement for clear passageways is essential to ensure that in the case of fire or other emergency, the appellant and his wife are able to safely leave their home or be rescued by emergency responders. It was clear in the evidence presented that a fire fighter would have difficulty passing through some rooms in the home when wearing full gear.

ANALYSIS

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

22The primary issue before the Commission is whether or not there was a fire safety issue that necessitated the Inspection Order, varied by the Review Decision now under appeal. In particular, the Commission considered the necessity of item #1 of the Inspection Order, as the only operative item remaining. Here the appellant conceded that there were and remain issues with the storage of combustibles in his home that give rise to a fire safety issue.

23Under 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.”

24In light of the uncontested evidence presented, as summarized above, the Commission finds that there is a risk that if a fire starts in the appellant’s home, it would seriously endanger the health and safety of the appellant, his wife and any others in the home, and possibly emergency responders.

25The risk to fire safety in this instance includes the risk of accidental ignition of the combustibles found throughout the home, the potential difficulty with exiting certain areas of the home in the event of fire and the risk that first responders may not be able to easily access the appellant and others in the home in the event of fire. If pathways are too narrow, equipment such as stretchers cannot get through. If combustible materials are piled too high, smoke can get trapped making it difficult to see and difficult for smoke alarms to quickly detect smoke.

26The Commission is satisfied that the one-metre pathway and clearance ordered by the Inspector at items 1(b) and (c) are necessary to ensure fire safety.

27In reaching this conclusion, the Commission recognizes that there may be areas in the home where the one metre clearance is not feasible because of fixed parameters, like stairwells and hallways. In those instances, the Commission encourages the appellant to work with the respondent to ensure that combustibles are removed at least to the width of any such fixed parameters.

28The Commission commends the appellant for having taken certain steps to better organize his home. We also wish to note that the appellant has invited Inspector Mercurius to re-attend the home to assist him with better understanding what clean-up work should be given priority. Based on the information received, the Commission encourages the appellant to take all necessary steps to reduce the volume of combustibles in his home and as a priority encourages him to take all necessary steps to remove combustibles from areas around the appliances and within key access routes such as stairs, hallways and exit doors, in addition to clearing pathways from rooms he and his wife use regularly.

CONCLUSION

29The Commission finds that the measures set out in the Review Order are necessary to ensure fire safety. The Commission confirms the Order of the Fire Marshal’s Delegate, subject to an amendment to the compliance date. We encourage the respondent to continue to act with sensitivity toward the appellant in light of his particular circumstances and are hopeful that the Inspector can continue to provide information and assistance to the appellant as needed.

ORDER

30The Fire Safety Commission confirms the requirements set out in the Review Decision, made on December 19, 2017.

31The compliance date set out in the Review Decision is amended as follows:

• Item 1 shall be completed by April 8, 2019.

Footnotes

1. 1S.O. 1997, c.4.