FIRE SAFETY COMMISSION
Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
cOMMISSION DE la sÉCURITÉ-INCENDIE
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
Between:
1046077 Ontario Ltd., o/a Local Dairy
Appellant
and
Ingersoll Fire and Emergency Services
Respondent
RECONSIDERATION DECISION
Before: Marisa Victor, Vice-Chair
Written Submissions By:
For the Applicant: Amarjit Singh, Agent
For the Respondent: Kelly Nenniger, Counsel
I. OVERVIEW
1On January 25, 2019, the Fire Safety Commission issued a final decision in 1046077 Ontario Ltd. v. Ingersoll Fire and Emergency Services (the Decision).
2The applicant, a cheese and milk by-product manufacturer located in Ingersoll, Ontario, carrying on business as Local Dairy, had appealed four Review Orders made by the Fire Marshal Delegate in March 2018. The Commission, in its Decision, confirmed the Review Orders and amended the work completion dates.
3On February 15, 2019, the applicant requested a reconsideration of the Decision. The respondent provided submissions in response on March 4, 2019.
4The applicant failed to satisfy the Commission that any of the four criteria for reconsideration are met. Therefore, the request for reconsideration is dismissed.
II. CRITERIA FOR RECONSIDERATION
5The Rules1 allow the Commission the ability to remedy serious breaches of procedural fairness or serious errors that have affected a decision.
6In order for a reconsideration to be granted, the Commission must be satisfied that one or more of the following criteria as set out in Rule 18.2 of the Rules are met:
a. Did the Commission act outside of its jurisdiction?
b. Did the Commission make an error of fact or law?
c. Did the Commission rely on false evidence?
d. Is there new evidence?
7A party seeking reconsideration has a high onus to meet. Minor issues or disagreement with the final decision are not enough. Reconsideration is therefore only warranted when one of the four considerations above are met.
8The applicant has not complied with Rule 18.1 which requires an applicant to specify the applicable criteria under 18.2. As such, I will address the applicant’s submissions as I believe they relate to all four criteria.
III. CRITERIA 1: DID THE COMMISSION ACT OUTSIDE OF ITS JURISDICTION?
9There was no evidence or argument that the Commission acted outside its jurisdiction or violated procedural fairness. Therefore, the applicant has failed to establish that this criteria is met. This ground for reconsideration is not available.
IV. CRITERIA 2: DID THE COMMISSION MAKE AN ERROR OF FACT OR LAW?
Submissions
10The applicant’s submissions address two sub-issues:
a. Whether spray-foam insulation in the shipping/receiving area is required or, in the alternative, that the spray-foam insulation in existence is already protected; and
b. Whether the inoperable sprinkler system should be made operational.
11The applicant states that the shipping/receiving area, subject to the Review Orders, is a separate building separated by a fire wall (the Addition). The applicant states that the parties agreed the Addition was a non-combustible building and spray-foam insulation is therefore not required under the Fire Code. The applicant also argues that, in the alternative, the spray-foam insulation already there is protected by a mono coat.
12With regard to the inoperable sprinkler system, the applicant states that the Fire Department has not proven that the sprinkler system was ever operational. The applicant argues then that there has never been an operational fire sprinkler system on the premises while the applicant has owned the premises. Therefore, the Fire Code does not apply such that it should now be made operational.
13The respondent states that the applicant restates arguments raised, considered and rejected by the Commission and that no error of law or fact has been shown.
14The respondent states that whether or not the Addition was a separate building was a live issue at the hearing. Further, the Fire Code requires that spray-foam insulation be protected as required by the Building Code. There was no error of law or fact by the Commission.
15The respondent states that the applicant’s alternative argument, that the spray-foam was already protected, was also a live issue at the hearing. The Commission found the applicant provided insufficient evidence to support this assertion.
Analysis
16The applicant has raised arguments that were already at issue at the hearing. The applicant has not shown there was an error of fact or law.
17Paragraph 24 of the Decision states “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. The appellant’s submissions were not substantiated by the evidence.”
18Paragraph 41 of the Decision states “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.”
19Both of the applicant’s arguments have been previously raised and it is clear that the Commission turned its mind to the issues. The applicant is unable to point to errors of law or fact that such that the Commission would likely have reached a different result had the error not been made. Further, I see no error in the Commission’s reasoning with respect to these issues. The hearing is meant to be a final determination of a matter, subject to the rights of review. A request for reconsideration is not an opportunity to have a different adjudicator rehear the evidence or to relitigate the matter, which is essentially what the applicant is asking me to do. The applicant has failed to establish this criteria for reconsideration.
V. CRITERIA 3: DID THE COMMISSION RELY ON FALSE EVIDENCE?
Submissions
20The applicant submits that certain statements made by the respondents were hearsay. He also alleges that Inspector Baker and Chief Building Inspector intentionally misrepresented notes on an inspection sheet. Finally, the applicant states that the Chief Building Official has not cooperated with the applicant.
21The respondent states that the respondent’s witnesses did not mislead the Commission nor is there evidence upon which to base these allegations. Further, the allegations, even if true, are not relevant nor did they form part of the evidence before the Commission.
Analysis
22The onus is on the applicant to satisfy the Commission that the witnesses provided false evidence and that that evidence was relied on by the Commission.
23The Statutory Powers and Procedures Act specifically authorizes the Commission to allow hearsay evidence as long as it is relevant. Further, the applicant has not provided any relevant evidence to show that witnesses before the Commission misrepresented or provided false evidence. It may be that the applicant disagrees with their evidence, however that is not the test.
24The applicant has failed to establish that false evidence was provided to and relied on by the Commission.
VI. ISSUE 4: IS THERE NEW EVIDENCE?
Submissions
25The applicant attached to its submissions a letter from its own lawyer to the Town of Ingersoll, dated November 9, 1998.
26The respondent states that the letter was in the applicant’s possession prior to the hearing and indeed was placed into evidence at the hearing.
Analysis
27The onus is on the applicant to prove that there is new evidence that could not have been reasonably obtained earlier and would have affected the result. The letter, which was already entered as an exhibit during the hearing, cannot be considered new evidence. The applicant has failed to meet this criteria.
VII. CONCLUSION
28The request for reconsideration is dismissed. I confirm the Decision.
Marisa Victor Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: April 10, 2019