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 and the Ontario Fire Code, O. Reg. 213/07
Between:
Maryann Akit
Appellant
and
Toronto Fire Services
Respondent
DECISION
Panel: Luisa Ritacca, Vice-Chair Susan Clarke, Vice-Chair Priscilla Reeve, Member
Appearances: For the Appellant: Maryann Akit, Appellant For the Respondent: Emma Luca, Counsel
Place and date of Hearing: Toronto, Ontario, April 9, 2019
REASONS FOR DECISION
OVERVIEW
1This is an appeal of a review decision, dated October 26, 2018, made by Michael Ng, the delegated official acting for the Fire Marshal (the “Review Decision”). The Review Decision upheld with modification the Inspection Order made by Inspector Gregory Moore of the Toronto Fire Services on May 4, 2018. The Inspection Order was made in respect of a two-storey plus basement residential apartment building. There are four residential suites on each of the upper and main floors of the building, and three suites in the basement. The appellant is the owner of the apartment building.
2The Inspection Order was issued by Inspector Moore following an inspection of the building which took place on April 25, 2018. The Inspection Order was issued to address a contravention of the Ontario Fire Code (Article 9.5.3.3., Division B), in which the two exit stairs in the building lack fire separation from the remainder of the building. The Inspector concluded, and the Fire Marshal’s Delegate agreed, that in order to ensure fire safety, fire separations between the exit stairs and the remainder of the building are required. The Fire Marshal’s Delegate also concluded that if fire separations could not be built given the design of the building then the appellant had the option of using an alternative solution as described in Clause 1.2.2.1.(1)(b), Division A, and using the documentation and submission procedures described in subsection 1.3.2, Division C of the Ontario Fire Code.
3The appellant does not dispute that the exit stairs are not adequately separated from the rest of the building to ensure fire safety. However, the appellant takes issue with the requirement that she is required to have an alternative solution prepared by a professional engineer or architect as per the process described in the Ontario Fire Code.
4Pursuant to section 26 of the Fire Protection and Prevention Act (the FPPA)1, a person who feels aggrieved by an order of the Fire Marshal may appeal the order to the Fire Safety Commission (the “Commission”). The Commission may confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.
5Pursuant to the legislation and the Commission’s rules of procedure, the appeal proceeded by way of oral evidence and relevant documentary evidence filed by the parties.
RESULT
6The Commission confirms the requirements set out in the Review Decision with an amendment to the compliance date as set out below.
BACKGROUND
April 25, 2018 – Fire Inspection and Inspection Order
7As described above, the appellant is the owner of the subject building, which is a two-storey plus basement residential apartment building. There are eleven units in the building, all of which are currently occupied by tenants. In addition to the residential units, the basement of the apartment building has a shared laundry and utilities room. There are two exit stairs from the building (north and south sides), to grade level between the basement and first storeys. Both exits lack fire separation to the rest of the building.
8On April 25, 2018, Inspector Moore attended the apartment building for the purpose of conducting an inspection of the property. The appellant was present for the inspection.
9As a result of his observations, Inspector Moore issued the Inspection Order on May 4, 2018. He served the Order on the appellant and arranged for a copy to be provided by mail. The Inspection Order was made under section 21(1)(g) of the FPPA, and ordered the appellant to:
A. Separate each exit stairway from the remainder of the building by a 30 min fire separation, as required by the Ontario Fire Code, Division B, Sentences 9.5.3.3. (1) & (2), which state that each exit stairway shall be separated from the remainder of the building by a fire separation having a fire-resistance rating of not less than 30 min where the building is not more than 3 storeys in height.
Closures in the stairway fire separations referred to in Item (1) shall have a minimum 20 min fire-protection rating and be equipped with ULC listed self-closing devices.
10The date for compliance with the Inspection Order was given as July 25, 2018.
11The Inspector explained that the lack of fire separation between the exits and the remainder of the building posed a fire safety risk because in the event of fire in one unit on one floor, there is presently no barrier preventing or delaying the spread of fire or smoke from floor to floor. There is also no barrier preventing or delaying the spread of fire or smoke to the only two exit stairs in the entire building.
12Following a review of the Inspection Order by the Fire Marshal’s Delegate, the action items were modified to provide that compliance with the Inspection Order may be achieved through an alternative solution as per the process described in Clause 1.2.2.1.(1)(b), Division A and subsection 1.3.2., Division C of the Ontario Fire Code. The date for compliance was extended to April 26, 2019.
The Appellant’s Evidence
13The appellant did not dispute that the current lack of fire separations between the floors in her apartment and between the exit stairs and the remainder of the building posed a threat to fire safety. She testified, however, that during an earlier inspection in approximately 2001, she was never advised of the fire safety risk and was never ordered to remedy the issue.
14The appellant explained that given the structure and design of the building she could not comply with the Inspection Order, requiring her to construct fire separations between the exits and the remainder of the building. The appellant testified that she was willing to undertake an alternative solution approach so to minimize a risk to fire safety. In that regard, the appellant testified that she believed that installing heat detectors in the kitchens of each unit could minimize the risk and satisfy the intent of the Inspection Order.
15The appellant further explained that she did not believe that she should have to follow the specific process set out in Divisions A and C of the Ontario Fire Code to apply for an alternative solution. She testified that in order to comply she would have to spend $5000.00 to $7000.00 on retaining an engineer to provide the documentation required under Article 1.3.2.2, Division C of the Ontario Fire Code.
16The appellant testified that she is a small landlord and as a result should not be required to adhere to the specific process set out in the Ontario Fire Code to apply for an alternative solution.
ISSUE
17The parties did not dispute that there is a fire safety issue requiring action in the appellant’s building as it relates to the lack of separation between the exit stairs and the remainder of the building. There was also no significant dispute that there are likely building design limitations which would make it difficult, if not impossible, for the appellant to construct the fire barriers required under the Inspection Order. As such, the primary issue before the Commission was whether the requirement to comply with the alternative solution process set out in Ontario Fire Code was necessary to ensure fire safety in this case.
APPLICABLE LAW
18As set out above, the Inspection Order was issued pursuant to s. 21(1)(g) of the FPPA, which provides in part that an inspector who has carried out an inspection of premises may order the owner to take any measures to ensure fire safety and may for that purpose order the owner to remedy any contravention of the fire code.
19Sentence 1.2.2.1.(1), Division A of the Ontario Fire Code provides that compliance with Division B shall be achieved either by complying with the acceptable solutions in Division B, or by using an alternative solution as described in clause (b). Subsection 1.3.2 of Division C sets out the process for approval of an alternative solution, which includes review and approval by the Chief Fire Official and further provides that documentation submitted in support of an alternative solution shall bear the signature and seal of a Professional Engineer or Architect or both.
20Sentences 9.5.3.3.(1) and (2) of Division B of the Ontario Fire Code provide that each exit stairway shall be separated from the remainder of the building by a fire separation having a fire-resistance rating not less than 30 minutes, where the building is three storeys or less in building height.
POSITIONS OF THE PARTIES
21The appellant argues that is unreasonable for the respondent to require her to complete the process set out in the Ontario Fire Code to apply for an alternative solution, given that she is a small landlord. She argues that the respondent should instead provide her with the alternative solution that would be acceptable to it so that she can simply conduct the remedial work, rather than go through the additional steps of retaining an engineer or architect to provide a report. It is the appellant’s position that the respondent already knows what alternative solutions will work in her type of building. Requiring her to take the steps involved in applying for an alternative solution is unnecessary and expensive.
22The respondent argues that the process set out at subsection 1.3.2 of Division C of the Ontario Fire Code is not discretionary. The respondent is simply not in a position to waive the specific requirements for documentation and approval. The purpose of requiring the engagement of an engineer or architect is to ensure that a professional, with access to the building and with full knowledge of the deficiencies can, while acting in the best interests of the owner, propose an alternative solution that meets the fire safety concerns raised by those deficiencies.
ANALYSIS
Were the measures ordered by the Inspector, and confirmed in the Review Decision necessary to ensure fire safety in this case?
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.”
24The parties agreed that the open exit stairs in the appellant’s building did pose a fire safety risk. In particular, the appellant conceded that she understood that in the event of a fire starting in one unit, the lack of separation between the exits and the rest of the building increased the risk of smoke and fire spreading more quickly onto different floors and toward the exits. This increased risk of fire and smoke spreading more quickly could result in making it more difficult for occupants to safely exit the building and more difficult for emergency response personnel to safely enter the building.
25The parties also largely agreed that it would be extremely difficult for the appellant to install the fire separations as required by the Ontario Fire Code, given the design of her building. While there was no specific evidence presented to the Commission, there appeared to be an understanding between the parties that the only practical way for the appellant to comply with the Inspection Order would be to propose an alternative solution.
26The only real dispute between the parties was whether the appellant should have to comply with the alternative solution process set out in the Ontario Fire Code. In particular, the appellant argues that she should not be required to retain an engineer for the purpose of submitting the required documentation as per the process.
27The process for obtaining approval of an alternative solution is clear and mandatory. Neither the respondent nor this Commission can waive any of the requirements set out in the Ontario Fire Code. If the appellant wishes to obtain approval for an alternative solution to remedy the deficiencies in her building, she must comply with the process.
28The Commission does not accept the appellant’s argument that the process is unnecessary or overly burdensome for her because she is a “small landlord”. In fact, it is clear that the alternative solution process is available so that owners who find it difficult to comply with the Code requirements have potential alternatives available. The process ensures that alternative solutions proposed are done so by professionals, who have had the opportunity to inspect the building deficiencies and who understand the need to minimize fire safety risks by proposing alternative solutions that are assessed to achieve an equivalent level of performance to that of the Ontario Fire Code requirements.
29It remains open to the appellant to simply comply with the requirement to install appropriate fire separations at her exit stairs. If that is not feasible, then she must propose an alternative solution that can be properly considered by the respondent.
CONCLUSION
30For the foregoing reasons, the appeal is dismissed and the order of the Fire Marshal’s Delegate Michael Ng, made on October 26, 2018, is confirmed with an amendment to the compliance date as set out below.
ORDER
31The Fire Safety Commission confirms the requirements set out in the Review Decision.
32The compliance date set out in the Review Decision is amended as follows based on the appellant’s choice of either Option A or B below:
A. Compliance with Article 9.5.3.3., Division B - Construction of exit stair separations, and installation of rated closures:
Full compliance required by or before November 2, 2019.
Steps to include, but are not limited to the following:
a) Submit a letter of commitment to Inspector Moore that direct compliance with Article 9.5.3.3., Division B (acceptable solution, in accordance with clause 1.2.2.1.(1)(a)) will be followed. This is to be completed on or before May 16, 2019.
b) Retain designer for construction drawings, and submit building permit application to building department. Note that a copy of the Inspection Order must accompany the application.
c) Retain contractor to complete the work, arrange for inspections by the building department and arrange for necessary building department approvals prior to completing the work
d) Communicate to Inspector Moore for final inspection.
B. Compliance using an Alternative Solution to Article 9.5.3.3., Division B:
Full compliance required within February 3, 2020.
Steps to include, but are not limited to the following:
Submit a letter of commitment to Inspector Moore that an alternative solution to Article 9.5.3.3., Division B will be submitted (clause 1.2.2.1.(1)(b), Division A) – This is to be completed by or before May 16, 2019.
Retain a professional Engineer or Architect, or both, and file documentation per Articles 1.3.2.1. and 1.3.2.2., Division C by June 17, 2019. Documentation must include a Schedule of Compliance for review by the Chief Fire Official.
Following approval by the Chief Fire Official, implement the approved alternative solution following the steps (b), (c) and (d) in the process outlined in Option A above (construction) on or before 6 months from date of approval by the Chief Fire Official.
Released: May 2, 2019
Luisa Ritacca, Vice-Chair
Susan Clarke, Vice-Chair
Priscilla Reeve, Member