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
Application for Authorization under section 33(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
London Fire Department
Applicant
and
Leo Strano
Respondent
DECISION
Panel: Dawn Kershaw, Santina Moccio, Priscilla Reeve Fire Safety Commission
Appearances:
For the Applicant: Andrew McMillan, Fire Prevention Inspector
For the Respondent: Leo Strano, Self-Represented
Place and date(s) of hearing: London, Ontario April 17, 2019
REASONS FOR DECISION
OVERVIEW
1The applicant, London Fire Department (“the fire department”), applies for an order under section 33(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“the Act”) to authorize its inspector to carry out work that it alleges the respondent, Leo Strano, (“Mr. Strano”), has failed to do.
2Mr. Strano owns a two-storey, multi-residential building in the City of London. The address of the subject property is 81 King Edward Avenue, London. The parties agree that the building contains four one-bedroom units in total on the first and second floors. There is disagreement between the parties about how many basement units are in the process of being renovated and how many people in total live in the building.
3The fire department asserts in an inspection order dated September 5, 2017, that Mr. Strano must install a visual and audible trouble signal device (“the trouble signal”) in the front entrance of the building. This trouble signal would allow people, including tenants and first responders, to know at a glance that the fire alarm system was operational. Mr. Strano disagrees that he must install a trouble signal and has not done so, despite the order.
4Because Mr. Strano has not installed the trouble signal, the fire department requests an order from the Fire Safety Commission (“FSC”) that it be permitted to do the work itself. The fire department is also requesting that Mr. Strano bear the costs of its work.
5A hearing was held before the FSC on April 17, 2019.
SECTION 33 OF THE ACT – ORDER REQUESTED
6Section 33 (1) of the Act permits the fire department to ask for an order to do work that a person has not done. It states:
If an order made under subsection 21 (1) or (2) or section 25 or 26 requires a thing to be done, an inspector may apply to the Fire Safety Commission for an order authorizing him or her to cause the thing to be done.
EVIDENCE AND ANALYSIS
7Under section 33(4) of the Act, the FSC can authorize the inspector to do the work if: (a) the person who is ordered to do the work has refused to do it, (b) is not likely to comply with the order promptly, and (c) in the FSC’s opinion the failure to do the work would seriously endanger the health or safety of any person or the quality of the natural environment for any use that can be made of it.
8Fire Prevention Inspector Andrew McMillan testified. He has been a member of the fire service since 2007 in other jurisdictions and began working with the London Fire Department in 2017. Inspector McMillan advised that he has completed courses regarding the Building Code and fire inspection through the Ministry of Municipal Affairs and Housing.
9He inspected the building on September 1, 2017 and, as a result issued an order on September 5, 2017 ordering Mr. Strano to do certain things to bring his building into compliance with the Fire Code. Of the items in that order, one remains outstanding, namely the installation of a trouble signal. A trouble signal is a small panel that has a light on it that shows whether the fire alarm system is working or not.
10Inspector McMillan testified that this building requires a trouble signal for the following reasons:
a. Mr. Strano has a fire alarm system, but if sleeping accommodations are provided in the building for more than 10 people, then section 9.5.4.1 of the Fire Code1 states that a fire alarm system shall be installed in a certain way according to certain sections of the Fire Code and Building Code. According to the Fire Code, it is section 3.2.4.8 of the 1990 Building Code that applies;
b. The certain way of installing a fire alarm system according to the Fire Code and 1990 Building Code includes requiring a trouble signal device in the main entrance of the building. According to section 3.2.4.8 of the 1990 Building Code, if there is no annunciator2 the trouble signal device in the main entrance shows residents and first responders the status of the alarm system. Without the trouble signal device in the main entrance, the fire panel is in a locked room that residents and first responders cannot easily access;
c. There is sleeping accommodation for more than 10 people in this building.
11Section 9.5.4.1 of the Fire Code states, in part, that a fire alarm system shall be installed in accordance with Articles that include 3.2.4.8 of the 1990 Building Code if sleeping accommodation is provided for more than 10 persons.
12The fire department asserts that Mr. Strano’s building requires the trouble signal - despite sections 9.5.4.1(2) and (3) of the Fire Code3 - because while each unit has a smoke alarm, they are not interconnected. In addition, all the dwellings share the same exit.
13Article 3.2.4.8(2) and (3) of the 1990 Building Code states that if an annunciator is not required (which in this case it is not), then a visual and audible trouble signal device shall be provided inside the main entrance of the building to indicate the status of the system. Inspector McMillan testified that without the device in place, the health and safety of residents and first responders are at risk, thereby placing them in danger.
14Mr. Strano disagrees that he requires a trouble signal for four reasons, which are set out below. If Mr. Strano succeeds in any of these four arguments, then the FSC would not issue an order for the work to be done. Mr. Strano submits that he should not have to install the trouble signal, and by doing so requests that the inspection order should be rescinded.
A. Guilty Plea
15First, Mr. Strano submits that because he pled guilty to charges before Provincial Court that he failed to comply with the September 5, 2017 order, this brings that order to an end. Inspector McMillan testified that pleading guilty does not relieve Mr. Strano of the obligation to install the trouble signal as set out in the order.
16The fact that Mr. Strano pled guilty to failing to have carried out the work in the September 5, 2017 order does not relieve him from having to do the work. The charges in relation to which he paid the fine were for failing to do the work, but the fine was not the price for not having to ultimately do the work. The Fire Code requires the work to be done, which does not change just because Mr. Strano pled guilty to not doing it and paid a fine. Therefore, this argument fails.
B. Not More than 10 People Living in the Building
17Mr. Strano’s second argument came from the testimony of his witness, Corey Finn. Mr. Finn regularly helps Mr. Strano with minor maintenance and renovations in the building. He testified that there were no more than 9 people living in the building. Mr. Strano submits that because of that, section 9.5.4.1 of the Fire Code and in turn section 3.2.4.8 of the 1990 Building Code do not apply because there are not more than 10 people living in the building.
18Inspector McMillan testified that during his various inspections, he has observed between 9 and 12 people living in the 4 units on the first and second floors of the building. His evidence was that he knocked on doors and asked people who answered how many people lived in a particular unit, and for example, there were 3 or 4 people living in Unit 2. He did not provide any notes that detailed who lived in the building. The counting method of determining who lived in the building was not strong.
19Inspector McMillan also provided an internal City of London tax roll document that showed that this building has 8 bedrooms. Referring to the tax roll document, Inspector McMillan testified that a bedroom is deemed to have sleeping accommodation for two people and therefore there is sleeping accommodation for 16 people in this building.
20Mr. Finn testified that in addition to the four units on the first and second floor, there had been one squatter living in the basement, but she is no longer there, and has been gone for several months. He testified that they have called the police about squatters in the past but have not been able to keep them out.
21Other evidence with respect to squatters in the building came from the photos that were taken after a fire in the building which occurred on December 22, 2017. This fire was caused by lit candles in the basement.
22Inspector Rebecca Jarry was the lead investigator regarding the fire. Inspector Jarry has been a certified Building Code Official from 2006 to 2017. In 2017, she became a Fire Inspector for the City of London. Inspector Jarry testified that upon attending the building, she found evidence of at least one squatter living in the basement and using candles. She described finding the candles in what was supposed to be a vacant apartment that was under renovations. She also found towels, blankets, bedding, a ceramic heater and drug paraphernalia. Paired with the evidence of Mr. Finn that he turned off the power to the basement to dissuade squatters from living there, there is strong evidence that there was at least one person living in the basement.
23In addition to that evidence, it is undisputed that in any event there are between two and four units undergoing renovations in the basement. The tax roll information puts the number at 4, but even at 2, this means a total sleeping accommodation for 12 people – 2 units (that each sleep 2 people) on each of the three floors. As such, we find that given that, plus the evidence of squatters in the basement that Mr. Finn testified they cannot seem to keep out of the building, there is sleeping accommodation for more than 10 persons in total. As a result, section 9.5.4.1 of the Fire Code and in turn section 3.2.4.8 of the 1990 Building Code apply to this building, and a trouble signal is required. While the Fire Safety Commission has no jurisdiction to enforce the Building Code, the FSC has deemed it appropriate to consider the Building Code’s requirements regarding fire safety measures as they apply to the Fire Code.
C. New Inspection Orders Negate the September 5, 2017 Inspection Order
24Mr. Strano argues that the fire department issued new inspection orders after the September 5, 2017 order that do not mention the trouble signal, and therefore he submits he does not have to install one. The new inspection orders were issued after the fire that occurred in the building on December 22, 2017, as well as after inspections done since then.
25Mr. Strano’s argument that he does not have to do the work in the September 5, 2017 order because new inspection orders have been issued since fails. The new inspection orders addressed new work that he was to do. They did not replace the September 5, 2017 order. As such, that order remained in effect.
D. No Prior Enforcement
26Mr. Strano elicited evidence from Inspector McMillan and Inspector Jarry that they had a conversation at some point about the requirement to install the trouble signal and Mr. Strano’s position that despite owning this building for 25 years, he was never told he had to install this. He appears to argue that because no one has enforced the requirement in the past, he should not have to do it now.
27Inspector McMillan testified that there are exceptions if a fire alarm system has been approved in writing in the past. Inspector McMillan testified that after discussing this enforcement issue with Mr. Strano, he checked and found no written approval of his fire alarm system.
28We find that a lack of past enforcement does not mean that Mr. Strano does not have to comply with the order, particularly in light of the fact that there is no written approval for his current system. As such, this argument also fails.
ORDER SOUGHT
29The applicant sought an order that it be permitted to install the trouble signal because, despite the order of September 5, 2017, Mr. Strano still has not installed it.
30The FSC is satisfied that Mr. Strano has both refused to do the work and that he has shown he is not likely to comply, given that the order was made in September 2017 and the work is not yet done.
31While Inspector McMillan was providing his closing submissions, Mr. Strano interjected that if the cost of installation is $500, he would do the work himself immediately rather than have the fire department do it and bill the cost back to him. While Inspector McMillan testified that in his experience it could cost between $500 and $1500, at that point Mr. Strano indicated some willingness to install the trouble signal. However, later during Mr. Strano’s own closing submissions, he indicated that if the trouble signal was required he would NOT install it.
32The FSC is satisfied that the failure to do the work would seriously endanger the safety of a person. There has been one fire in this building already. There is also evidence provided indicating that at least one squatter was living in the basement, and that the squatter had no access to power and left lit candles unattended. Mr. Finn testified it has been months since there was a squatter at the building and that they have upgraded the windows and made access more difficult. However, the safety of the legal tenants and any attending first responders remains a concern. Tenants and first responders must be able to see that the fire safety alarm is functional.
33The FSC has the power to amend the order sought or make such other order as it deems should have been made. Under that authority, we order the following:
a. The inspection order dated September 5, 2017 is amended such that Mr. Strano shall within 14 days of the date of this Order install a visual and audible trouble signal device inside the main entrance of the building to the satisfaction of the London Fire Department; and
b. If Mr. Strano fails to comply with subparagraph a. above, then as soon as the 15th day after the date of this Order, the inspector shall be authorized to enter the building and install the visual and audible trouble signal device inside the main entrance of the building.
34The Fire Marshall, pursuant to section 35 of the Act, may order Mr. Strano to pay the costs of the work if he does not do it himself, though this does not form part of our order.
ORDER
35The Tribunal orders:
a. Mr. Strano shall within 14 days of the date of this Order install a visual and audible trouble signal device inside the main entrance of the building to the satisfaction of the London Fire Department; and
b. If Mr. Strano fails to comply with subparagraph a., above, then as soon as the 15th day after the date of this Order, the Inspector shall be permitted to enter the building and install the visual and audible trouble signal device inside the main entrance of the building.
Released: May 22, 2019
___________________________
Dawn Kershaw, Member
___________________________
Santina Moccio, Member
___________________________
Priscilla Reeve, Member
(a) smoke alarms in accordance with Article 9.5.4.4., installed and interconnected so that the actuation of any smoke alarm will sound a similar signal in each of the interconnected devices, and
(b) a manual pull station at each exterior exit door for the actuation of the smoke alarms in Clause (a).
(3) A building is deemed to be in compliance with Sentence (1) where
(a) each exit and public corridor is shared by not more than four dwelling units or not more than 10 persons in boarding, lodging, rooming or dormitory accommodation, or
(b) each dwelling unit and suite has direct access to outdoors by a door near ground level.
Footnotes
- Fire Code, O. Reg. 213/07 made under the Act
- An annunciator is a more elaborate version of the trouble signal and is required for larger buildings than this one
- 2) A building not greater than 3 storeys in building height that contains not more than 10 dwelling units and provides sleeping accommodation for not more than 24 persons is deemed to be in compliance with Sentence (1) where the building is equipped with