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: Jamal Mumin o/a J-Pro Auto Service v. Toronto Fire Services, 2019 ONFSC 3

Date: 2019-03-28

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

Between:

Jamal Mumin o/a J-Pro Auto Service

Appellant

And

Toronto Fire Services

Respondent

MOTION DECISION and ORDER

Order made by: Susan Clarke, Santina Moccio, Marisa Victor

Date of Order: March 28, 2019

Appearances:

For the Appellant: Marshall Reinhart, Counsel

For the Respondent: Jim Jessop, Deputy Fire Chief, Agent

Written submissions March 20 and 21, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, Jamal Mumin o/a J-Pro Auto Service, operates an auto repair shop on the ground floor of a two-storey building at 1193 Lawrence Avenue West in Toronto (the Building). On March 14, 2019, the respondent issued the owner of the Building an Inspection Order and an Order to Close. The appellant, who is a tenant of the building, requested a review of the Order to Close with the Fire Marshal, who referred the matter to the Fire Safety Commission for a hearing.

2A hearing of the appeals is tentatively scheduled for April 2019.

3The filing of the appeal before the Commission operates as a stay of the appealed order until the outcome of the above-mentioned hearing. On March 20, 2019, by way of written submissions, the respondent moved to lift the automatic stay of the Order to Close. The appellant opposed the motion.

4We find that the evidence establishes that lifting the stay is necessary in the interest of public safety. Therefore, the motion is granted.

ISSUE

5The 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

6Section 21(1) of the Fire Protection and Prevention Act, 1997 (the Act) 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.

7Subsection 21(2)(a) of the Act allows an inspector who carries out an inspection under s. 19 or 20 of the Act, 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 s. 21(1) have been completed.

8Subsection 25(1) of the Act 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. Clause 25(4)(a) allows the Fire Marshal to refer the matter to the Commission for a hearing under s. 26.

9Subsection 26(7) provides that an appeal under subsection (1) operates as a stay of the order pending the outcome of the appeal.

10Finally, s. 26(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.

11The 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

12The respondent states that the Building contains an auto repair shop on the first storey and three residential units on the second storey. The respondent submits that the co-location of an auto repair shop in a building with multiple residences creates a significant fire risk for the occupants of the Building and a danger to responding firefighters in a fire emergency. As such, the respondent states that it is necessary in the interest of public safety to either close the shop or close the second floor of the Building where the residential tenants are.

13The respondent states that the shop poses a significant risk due to the following factors:

a. The shop is classified as a medium hazard industrial occupancy (Group F2) under the Building Code. Due to the hazards inherent in an F2 business, the Building Code prohibits F2 and residential occupancy combinations like that in existence in this Building;

b. There is an elevated fire risk due to the presence of combustible materials of high fuel value, flammable liquids, and work performed that causes heat and sparks (ignition sources);

c. There is an elevated carbon monoxide (CO) risk to both those in the shop and the residents above; and

d. The risk is further elevated due to the lack of fire safety measures such as a fire alarm system and ventilation system.

14The respondent argues that should a fire occur, the intensity of the fire could be potentially explosive, could breach fire separations, and could reach the dwelling units and exit stairs. The response of the fire department to such a fire would be to take a defensive position. Further, the firefighters would be at risk attempting to search for residential occupants in the building.

15The respondent states that it is not its role or within its power to enforce the Building Code, but that it should be considered as relevant to the issue of whether the co-location of the repair shop and residential units poses a fire safety risk.

B. Appellant

16The appellant opposes the motion and instead wishes to have the hearing conducted as soon as possible.

17The appellant submits that he has operated the auto repair shop for two years without incident. Further, he will suffer significant business losses should the auto repair shop be forced to close during the appeal process.

18He states that he has made some attempts to address the risk issues identified including:

a. moving flammable and combustible liquids together in one corner so that they are "easy to keep an eye on";

b. eliminating the storage of vehicles in the garage overnight; and

c. not storing fuel in tanks on site.

19He also stated that there is only one set of tires at the shop, thus minimizing this risk.

20Finally, the appellant argues that the Building Code restriction of F2 occupancies in combination with residential occupancies does not provide sufficient grounds for the lifting of the stay because Toronto Fire Services has no authority to enforce the Building Code.

ANALYSIS

21While we do not have the full evidence before us, as will be presented at the hearing, we find that the respondent has presented sufficient evidence to meet its onus to show that the lifting of the stay is necessary in the interest of public safety.

22In particular, we are concerned that the auto repair shop, by the nature of its business, operates in an environment where flammable liquids are ever present together with combustible materials. Further, the work itself can create heat, sparks and CO emissions. This establishes that not only the risk of fire is elevated, but should a fire happen it could be larger and more intense as a result of the hazards present. This creates a significant risk when coupled with several residential units and the lack of a fire alarm system and ventilation. We find that these concerns support the lifting of the stay.

23We also considered the prohibition of occupancy combination in the Building Code, which we recognize is not within the jurisdiction of the respondent's enforcement powers. Nevertheless, it can be taken into consideration as it is relevant to the issue of fire safety. The Building Code recognizes that the co-tenancy of an F2 occupancy together with residential units should be barred due to the hazards created by the auto repair shop. This is further evidence that the lifting of the stay should be granted.

24The appellant's actions so far are not enough to relieve our concerns. The flammable and combustible materials are now concentrated in one location, however there is no evidence that that location has elevated fire safety measures such as a 24-hr watch, a ventilation system or a fire alarm system. The removal of vehicles at night does not address the combustible materials which remain on site at the repair shop through the night. This is particularly concerning when there is no fire alarm system that would alert sleeping residents in the event of a fire. The fact that there have been no fires in the last two years does not establish that none will occur in the future.

25Finally, while we understand the difficulty the lifting of the stay may pose for the appellant's business, the test for lifting a stay does not allow us to consider business losses. However, with a hearing date tentatively scheduled in the next few weeks, we anticipate that the Order to Close will only inconvenience the appellant for a short while until a full hearing of the evidence can be heard.

26The respondent has established that the automatic stay of the Order to Close the repair shop should be lifted as it is necessary in the interest of public safety.

ORDER

27Pursuant to the powers of the Commission under s. 26(8) of the Act, the stay of the Order to Close under s. 26(7) of the act is lifted.