FIRE SAFETY COMMISSION

Safety, Licensing Appeals and Standards Division

Citation: Kitchener Fire Department v. Bingemans Inc., 2019 ONFSC 6 Date: 2019-06-04

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

Between:

Kitchener Fire Department Appellant

and

Bingemans Inc. Respondent

DECISION

Panel: Jennifer Friedland, Member Susan Clarke, Vice-Chair Priscilla Reeve, Member

Appearances: For the Appellant: Corinn (Cory) Shantz, counsel For the Respondent: Thomas Brock, counsel

Place and date of Hearing: Kitchener, Ontario, May 8 and 9, 2019

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1This is an appeal brought by the Kitchener Fire Department (Kitchener Fire) from a decision of the Ontario Fire Marshal made January 21, 2019, rescinding an Order made by an Inspector from Kitchener Fire on June 8, 2018.

2The original Order was issued to the respondent, Bingemans Inc., a hospitality and events company that was commercially hosting a 3-day musical festival set to begin the same day the Order was issued.

3The Order was issued to prevent the use of a conveyor style pizza oven that was set up as part of a Pizza Pizza concession stand run by Bingemans during the festival. The concern of Kitchener Fire was that the oven was under a tent, would produce grease-laden vapours, and was not equipped with a ventilation or fire protection system.

4Bingemans appealed the Order to the Fire Marshal and was successful in having it rescinded. The appellant, Kitchener Fire, now appeals from the decision of the Fire Marshal.

5The Fire Safety Commission (the Commission) heard evidence over two days, including from three experts. We also received substantial documentary evidence including photographs, as well as written closing submissions, all of which was reviewed in detail by the Commission.

6For the reasons stated below, we confirm the order of the Fire Marshal and make an additional Order which specifies the measures necessary to ensure fire safety that Bingemans must comply with if it wishes to operate the same set-up in future years on its property.

B. BACKGROUND

7Bingemans is a family-run hospitality and events company in Kitchener, Ontario. The Bingemans site in Kitchener is 170 acres and includes a multi-use park, campground, conference and event centre. Various events are commercially hosted by Bingemans throughout the year.

8In 2018, Bingemans hosted a musical festival called Ever After. This was a 3-day festival offering live bands and various "experiential" opportunities. Attendance was expected to be approximately 20,000 people per day, primarily aged 16-25.

9At the event, Bingemans operated various food concessions. Of concern in this appeal was the operation of a conveyor style pizza oven underneath a 6m x 6m (20' x 20') tent or canopy. The oven was provided by Pizza Pizza, as was the tent and the rest of the temporary set-up.

The set-up

10Paulo Carvahlo testified on behalf of the respondent. He is the sponsorship manager for Pizza Pizza. He described that the set-up of the tent at Bingemans was the same as all other sites where Pizza Pizza has set up temporary locations. Some examples of where the same Pizza Pizza set-up has been used are: World Youth Day, when Pope John Paul II came to Toronto; at the SARS festival held at Downsview Park in Toronto where Pizza Pizza ran six such operations; at the CNE; and at the Pan Am games in Toronto.

11Pizza Pizza has also used the same set-up in indoor non-traditional locations, such as inside the Enercare Centre in Toronto and at the Metro Convention Centre.

12The temporary set-up under a tent was also used in 2015 at the Ever After festival on the Bingemans site (although at the time, the food concessions were not run by Bingemans but by the event organizer who had rented the space from Bingemans).

13Mr. Carvalho testified that in most cases, its temporary Pizza Pizza operation is run by Pizza Pizza staff trained specifically for the operation of this set-up (i.e. not staff from its fixed locations). In this case, because Bingemans is a licensed operator of Pizza Pizza and also runs a permanent Pizza Pizza location on its property, Bingemans was authorized to use its own staff for the outdoor operation.

14Other relevant details about the set-up are as follows:

• The oven is electrically powered;
• No hood or built-in fire suppression system is used with the oven in any of Pizza Pizza's temporary locations, including indoors;
• Pizza Pizza has been using the same type of conveyor type ovens for more than 18 years throughout the province of Ontario, as well as in Quebec, Alberta and Manitoba without any issues raised by the local fire prevention department until now;
• No fires had started in any of the Pizza Pizza ovens used in this type of cooking operation;
• The operation is set up by the Pizza Pizza logistics team. The oven and other equipment necessary to run the operation is set up on a wooden floor;
• The canopy or tent above the cooking operation is 6m x 6m (20' x 20') and is made of fire-resistant treated material;
• The layout of the equipment establishes clearances from the tent sides;
• The sides can all be rolled up or removed and the roof is peaked;
• If the sides are down, there is a ventilation strip along the perimeter between the roof and the walls;
• If the sides are up, the distance between any point inside the tent to outside the tent is never more than 3 m;
• A fire extinguisher is provided with the set-up;
• The equipment comes clean;
• Mark Bingeman, representing the respondent, testified that his staff are trained, but not necessarily specifically with respect to the use of hand-held extinguishers, although his supervisors all have that training;
• The number of staff operating the tent is 8-9 people. Sometimes in a rush, a supervisor will also step in to assist;
• The public is not allowed under the tent;
• Only pizza is cooked in the oven, with limited options – pepperoni, vegetarian and cheese;
• The electrical setup is inspected by an on-site 3rd party electrician, who remains on site throughout the event. All electrical setups are further inspected by the Electrical Safety Authority.

Kitchener Fire's concerns over the set-up in 2018

15Bingemans had worked closely throughout the year with the City of Kitchener, including the Kitchener Fire Department in planning for this event.

16During a walk through on June 7, 2018 – the day before the event was to start – two fire safety Inspectors from the Kitchener Fire Department took issue with the Pizza Pizza set-up.

17Both Inspectors testified at this hearing. From their perspective, the Pizza Pizza set-up was a surprise to them. They testified that it was not on the site plan for the festival and when they came across this oven, under a tent, they believed that it posed a serious fire safety concern.

18In particular, the concern was that a conveyor style pizza oven would produce grease-laden vapours which posed a risk of fire. Kitchener Fire's position was (and remains) that this type of cooking operation has to comply with the National Fire Protection Association (NFPA) standard 96 and be installed with an exhaust system and fire suppression system.

19Adding to the Inspectors' concerns at the time of their inspection was their uncertainty as to whether the tent was fire retardant. They also lacked any information about whether the pizza machine would be cleaned during its operation.

Inspection Order issued to cease operation of this oven under tent

20As a result of Kitchener Fire's concerns, Inspector Ryan Konrad issued an order on June 8, 2018 pursuant to section 21 (1) (e) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (FPPA).

21Section 21 (1) gives broad discretion to an inspector who has carried out an inspection to order the owner "to take any measure necessary to ensure fire safety on the land and premises." Subsection (e) allows an inspector to order the owner or occupant to "discontinue the manufacturing, production or fabrication of any material, device or other thing that creates or poses an undue risk of fire or explosion."

22In this case, it was ordered that:

No open chain driven cooking appliance be used under any tent or canopy.

23The reasons given for the Order were the following:

The use of an open chain driven pizza oven under a canopy or tent for the purpose of cooking that would produce grease laden vapours would pose an undue risk of fire, which could cause injury and death to the operators and surrounding persons.

24The Order prescribed a compliance date of June 8, 2018.

25In an effort to meet the concerns of Kitchener Fire without having to halt the operation of its pizza tent, the respondent hired Jack Keays, a fire safety consultant, to provide an opinion as to whether the cooking would, in fact, produce grease-laden vapours and to propose measures to ensure fire safety, such as: venting, restrictions to the cooking of pizza only, and the provision of a fire extinguisher on site.

26Kitchener Fire rejected Mr. Keays' proposed solutions. Therefore to solve the issue last year – in 2018 – Bingemans obtained permission from Pizza Pizza to operate the oven outside of the tent.

27However, moving the tent outside was not a long-term solution from Bingemans' perspective for a number of reasons, including that the operation would have to be shut down if it rained. As well, the respondent hosted a number of events throughout the year and anticipated wishing to use the same set-up in the future – with the oven inside, not outside, the tent.

28The respondent therefore requested a review of the Inspection Order by the Fire Marshal pursuant to s. 25 of the Act. The Fire Marshal was asked to "review all work specified in the order."

Fire Marshal Rescinds the Order

29Following the respondent's request for a review, the Fire Marshal's delegate received additional information from both parties and by decision dated January 21, 2019 rescinded the inspection order. The Fire Marshal's reasons for rescinding the order were that:

... the Inspector did not provide sufficient evidence that there is a process that creates or poses an undue risk of fire or explosion.

While it is understood that an open chain driven pizza oven may produce grease-laden vapours, there needs to be evidence that there is a build-up of grease in order to constitute the process as a hazard under clause (e). Furthermore, given that both the Appellant and the Inspector have indicated that this is a temporary condition (three day event), there should be temporary measure considerations which may include clearances to the tent and procedures to reduce grease-laden build-up.

Position of the Kitchener Fire Department

30The Kitchener Fire Department now appeals the decision of the Fire Marshal rescinding the June 8, 2018 Inspection Order. It asks the Commission to rescind the Fire Marshal's order and uphold the original Inspection Order on the basis that it is necessary to ensure fire safety.

31The position of Kitchener Fire is that a pizza conveyor oven produces grease-laden vapours and therefore, to be operated under a tent, must comply with NFPA 96, which requires cooking units that produce grease-laden vapours to have an exhaust system and a fire protection system.

32The fire department relies on s. 2.6.1.12 of the Fire Code, O Reg 213/07, the relevant portions of which state:

2.6.1.12. (1) A cooking operation producing smoke or grease-laden vapours shall be provided with an exhaust system and fire protection system in accordance with NFPA 96, "Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations".

(3) Sentence (1) does not apply to

(b) a cooking operation producing insignificant amounts of smoke or grease-laden vapours that are controlled by other approved measures.

33Kitchener Fire submits that if the Commission finds that the cooking operation in question produced only "insignificant" amount of grease-laden vapours, then it is the Chief Fire Official (CFO) who has the authority to approve measures to control any risk. The appellant points to article 1.4.1.2. of the Fire Code which defines "approved" as meaning approved by the applicable CFO. At the same time, the appellant accepts that the Commission has "broad discretion" to amend the Fire Marshal's order to include approved measures. It submits, however, that this authority should be limited specifically to the June 2018 festival.

34Kitchener Fire further submits that if the Commission decides to step into the shoes of the CFO and approve measures to ensure fire safety in this case, it asks that the Order, at a minimum:

a) Include the type of appliance used under the tent be an open conveyor electric pizza oven that is designed not to be under a NFPA 96 compliant hood, and

b) Be site specific to the 2018 festival.

Position of the Respondent, Bingemans

35The respondent, Bingemans, takes the position that if grease-laden vapours are produced by this type of pizza operation, they are insignificant and can be controlled by other measures to ensure fire safety.

36The respondent provided evidence of the published protocols in other jurisdictions in Canada which allow an exemption from NFPA 96 compliance for conveyor-style ovens used for cooking pizza.

37The respondent further submits that the Explanatory Notes in Annex A to NFPA 96 contemplate an exception in circumstances where the cooking operation is under temporary facilities, such as a tent. S. A.4.1.9 states:

NFPA section 96 - A.4.1.9:

The authority having jurisdiction can exempt temporary facilities, such as a tent, upon evaluation for compliance to the applicable portions of this standard.

Although it might not be practical to enforce all requirements of this standard in temporary facilities, the authority having jurisdiction should determine that all necessary provisions that affect the personal safety of the occupants are considered.

38The respondent asks the Commission to approve the specific measures proposed by its expert to address any fire safety issues relating to this type of operation.

39It is the respondent's hope that the Commission's decision can be relied on by Bingemans to run its Pizza Pizza tent at this year's Ever After festival in 2019 and at other festivals it might host in the future in similar circumstances on its property.

C. THE POWERS OF THE COMMISSION ON THIS APPEAL

40Pursuant to section 26 (6) of the FPPA, the Fire Safety Commission may confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.

D. ISSUES & ANALYSIS

41The broad issue in this appeal is whether the measures contained in the Order – prohibiting any chain driven cooking appliance from being used under a tent or canopy – are necessary to ensure fire safety.

42If not, what measures, if any, are necessary to ensure fire safety in relation to the operation of an open chain-driven pizza oven under a tent or canopy?

43A further issue is whether the Commission has the authority to approve measures for future instances of the same cooking operation.

Whether the Pizza Pizza set-up in 2018 at Bingemans was a risk to fire safety

Grease-Laden Vapours

44The Commission heard from three experts in this case. Two on behalf of the appellant: Philip C. Mellor, the Assistant Chief Fire Prevention Officer for the Kitchener Fire Department; and Costas Pashartis, a mechanical engineer with experience in the field of HVAC, plumbing and fire protection for commercial, institutional, residential and industrial buildings; and one on behalf of the respondent: Jack Keays, a fire safety engineer and building code consultant. The expert evidence in this case establishes the following:

45Grease-laden vapours are produced by particles of grease that get released during cooking and attach themselves to water vapour suspended in the air. These droplets are then deposited on the surfaces in and around the cooking operation. The fire safety concern is that as the grease accumulates it poses a risk of fire. In this case, Assistant Chief Mellor voiced a concern that a source of fire could emanate from faulty wiring causing an electrical arc. As well, food products could catch on fire within the oven. A fire that begins in the presence of grease-laden vapours would be "very hot and very quick" as described by Assistant Chief Mellor. It would spread quickly.

46For this reason, the Fire Code requires cooking operations that produce grease-laden vapours to have an exhaust system and a fire suppression system. NFPA 96 compliant equipment allows grease-laden vapours to be trapped in the hood, which includes grease removal devices and mechanically exhausts vapours away from the facility; while the automatic fire suppression extinguishes any fires.

47If the amount of grease-laden vapours produced by a particular cooking operation is insignificant, clause 2.6.1.12 (3) (b), Division B of the Fire Code provides that the operation does not need to comply with NFPA 96 provided the grease-laden vapours are controlled by other "approved measures."

The amount of grease-laden vapours resulting from this operation

48Whether grease-laden vapours are produced depends on a number of factors including the type, quality and quantity of food being cooked; the method of cooking; and the temperature at which the food is cooked. Higher temperatures produce more grease-laden vapours.

49Certain types of cooking clearly produce grease-laden vapours. As set out in the explanatory notes in Annex A to NFPA 96 at 1.10.1.2., "examples of cooking equipment that produce grease-laden vapors include, but are not limited to, deep fat fryers, ranges, griddles, broilers, woks, tilting skillets, and braising pans."

50All parties agree that the only way to accurately measure the production of grease-laden vapours is in a laboratory. However, neither party provided such a measure. Therefore much of what the Commission heard with respect to the potential for grease-laden vapours in this case was by way of experience, analogy and conjecture.

51The position of Kitchener Fire was that the cooking of cheese and meats at high temperatures would produce large amounts of grease-laden vapours.

52Assistant Chief Mellor further provided a Pizza Pizza calorie chart indicating that on average a large pizza would contain over 90 grams of fat. Multiplied by the "1000s" of pizzas Kitchener Fire suspected would be made over the course of the festival, it was the appellant's position that a significant amount of grease-laden vapours would be produced.

53The appellant's other expert, Costas Pashartis, testified that lower quality ingredients tend to have more oil and fat than high quality ingredients. He pointed to the fact that corrugated pizza delivery boxes become soiled with oil and grease as proof of the high amount of oil and grease in a cooked pizza.

54It is not disputed that the pizza oven in this case was not in operation at the time of the inspection, nor had it been in operation prior. Therefore neither Inspector could opine on the actual production of grease-laden vapours produced by this cooking operation in particular. Instead, they based their conclusion by analogy to permanent facilities where, by touch and by sight, the Inspectors regularly encountered the accumulation of grease deposits in and around a conveyor-style pizza oven, even with an NFPA 96 compliant hood.

55Both Inspectors admitted that they had not come across a temporary, outdoor set-up such as this one in the past. They further did not return during the festival to assess, by sight or feel or any other method, the amount of grease-laden vapours produced by the operation once it had moved outside.

56The respondent's position is that if the operation produced grease-laden vapours, the amount was insignificant and could therefore be controlled by other measures.

57The respondent's expert, Jack Keays, did not dispute that pizza contained fat. The relevant question, in his view, was how much was coming out of the oven during the cooking operation. In this regard, Mr. Keays pointed to the fact that in this case, the operation was to occur under a tent that was well-vented to the outdoors. In such circumstances, he opined, the resulting grease-laden vapours would be reduced, as many of the vapours would dissipate upon contact with the open air through natural ventilation.

58Mr. Keays further pointed the Commission to a number of jurisdictions within Canada which have classified conveyor pizza ovens as not producing grease-laden vapours when used only for cooking pizza – even when used indoors. For example, in a guideline produced by the City of North Vancouver Fire Department, a pizza oven, if used only for pizza and bread, is an example of a "Class 2 Cooking Operation" which is defined as "producing significant steam or heat but does not produce grease-laden vapours."

59In terms of what was to be cooked in this oven, Mark Bingeman testified that only pizzas were to be cooked, and with only a limited number of ingredients. Specifically, the Pizza Pizza outdoor concession would offer only cheese, pepperoni, and vegetarian pizzas.

60With respect to the pepperoni, Mr. Bingeman testified that the meat was pre-cooked. It could be eaten without being heated. All experts agreed that pre-cooked meat produced fewer grease-laden vapours than uncooked meat.

61Mr. Bingeman estimated that during the festival in 2018 they cooked an average of 400 16" pizzas each day.

Conclusion on whether this cooking operation produces grease-laden vapours

62The appellant's own definition of "laden" mean "heavily-loaded."

63In this case, the evidence presented has not satisfied us, on a balance of probabilities, that the cooking of only pizza, with the limited ingredients used here, in a conveyor style oven, used under an outdoor canopy, produces grease-laden vapours, let alone in an amount that is more than insignificant.

64We therefore do not accept that the Pizza Pizza temporary set-up, if under a tent or canopy, must comply with NFPA 96 pursuant to 2.6.1.12 (a) of the Fire Code and be outfitted with an exhaust system and fire suppression system. We further note that the Inspection Order was not issued under s. 21 (1) (g) of the FPPA, which is used to remedy a contravention of the Fire Code. Rather, Kitchener Fire issued the Order under s. 21 (1) (e) to "discontinue the manufacturing, production or fabrication of any material, device or other thing that creates or poses an undue risk of fire or explosion."

65Ultimately we agree the conclusion of the Fire Marshal, that Kitchener Fire did not provide sufficient evidence that there is a process that creates or poses an undue risk of fire or explosion.

66While we agree with the Fire Marshal that the Pizza Pizza temporary set-up may produce grease-laden vapours (particularly given the number of pizzas expected to be cooked), we also agree that other measures should be considered in order to address any risk thereby posed. It does not follow that prohibiting the oven from operating under a tent is necessary to ensure fire safety. We turn now to whether the potential risk could be controlled by other measures.

Whether other measures can control the risk posed by grease-laden vapours

67In light of the Inspectors' concerns, Jack Keays, proposed the following measures to reduce the risk of fire due to grease-laden vapours. These were proposed the day before the festival was to start, and were as follows:

• The conveyor oven is only to be used for pizza
• The tent is to be provided with two open sides (opposite sides) to facilitate cross ventilation and free ventilate of the tent,
• Sign to be posted stating the following "cooking causing grease-laden vapours is not allowed, and
• A hand held fire extinguisher to be provided in close proximity to the oven.

68Kitchener Fire rejected the respondent's proposed measures. At the time, it was still unaware that the Pizza Pizza tent was fire-resistant. Moreover, Kitchener Fire was concerned about the lack of a plan to clean the oven during the course of the event to reduce the accumulation of grease deposits on the tent and inside the oven.

69At the hearing of this matter, Inspector Brooks and Assistant Chief Mellor agreed that regular cleaning of the oven could be part of measures that might be approved to control the risk from grease-laden vapours.

70In addition, they acknowledged that the presence of hand-held fire extinguishers with staff trained in the operation of such devices could also be part of approved measures.

71Ultimately, while Inspector Mellor testified that "no one thing" would be sufficient, he also opined that an oven specifically designed for use without a hood might be approved. He provided the specifics of one particular oven which was designed to capture grease-laden vapours before they were emitted into the air. This is the approved measure that the appellant asks us to impose if we approve any specific measures at all.

72The respondent, meanwhile, has now prepared a "Fire Protection and Risk Management Protocol," which is a fairly exhaustive protocol many items longer than the measures initially provided by its expert. It would require the following to ensure fire safety:

1. Use of the conveyor-type pizza oven during the event will be for only three days.
2. Two portable fire extinguishers will be clearly visible and easily accessible to the oven operators, in close proximity to the oven, and oven operators will be trained in the use of fire-extinguishers.
3. A fire-resistant tent with four open sides (thereby becoming a canopy) will be in place during the operation of the pizza oven; said tent will be cleaned at the end of each day during the event or prior to its use the next day, and it will be NFPA 701 compliant and ULC S-109 compliant or of similar fire-resistant material.
4. Only pizzas will be warmed or cooked in the conveyor-type oven.
5. Only pre-cooked meat will be used on pizzas.
6. Only an electric conveyor-type pizza oven will be used for pizza during the event, and the electrical plug will be easily accessible by oven operators.
7. Only trained personnel will operate the oven; operators will sign off on educational programs to reduce or eliminate grease-laden vapour.
8. A sign will be posted stating "COOKING CAUSING GREASE-LADEN VAPOURS IS NOT ALLOWED".
9. The conveyor-type pizza oven will be equipped with, in accordance with its manufacture specifications, a blow fan to aid air circulation (the heat will not be able to come on without this fan working, as measured by the air pressure switch monitor), and a cooling fan to cool the equipment.
10. Staff will be trained on how to clean the conveyor-type pizza oven and the pizza oven will be cleaned at the end of each day or prior to its use the next day.
11. Daily maintenance will include: a. Cleaning of the outside of the oven with a soft cloth and mild detergent (hoses or other pressurized steam cleaning equipment will not be used); b. The cooling fan grill at the rear of the oven control compartment will be cleaned with a stiff nylon-type brush; c. The air intake to the cooling fan will be checked and if needed, cleaned with a soft cloth and mild detergent; d. A stiff nylon-type brush will be used to clean the control compartment vent grill (hot air from control compartment exits from this grill); e. Conveyor belts will be brushed to remove excess crumbs into the crumb pans, and the crumb pans will be removed and cleaned; f. The window will be cleaned daily.

73When Inspector Brooks of Kitchener Fire was shown the respondent's proposal to ensure fire safety, he acknowledged that "these are the type of measures we look for."

74The Commission accepts that the respondent's protocol with minor amendments as set out below, is sufficient to ensure fire safety during the operation of this Pizza Pizza temporary set-up on Bingemans' property. ¹

75In particular, the Commission finds that the cross venting proposed will, as testified by Mr. Keays, provide more exhaust of grease-laden vapours than an installed hood in a closed environment. The regular cleaning of the inside of the oven and of the (fire retardant) tent before each use will minimize any build- up of grease. And the proper training in the use of hand-held fire extinguishers together with the requirement that two such extinguishers be on site, will satisfy the requirement for fire suppression.

76We have concluded that the Inspection Order – prohibiting the use of the temporary Pizza Pizza set-up from operating under a tent or canopy – is not necessary to ensure fire safety. It is further not necessary for fire safety that the type of oven change to one that is designed to operate without an NFPA 96 hood.

77We are satisfied that the measures outlined above will suffice in ensuring fire safety while pizza is being cooked in the pizza oven beneath the Pizza Pizza tent or canopy.

The applicability of these measures in future circumstances

78The appellant submits that the Inspection Order "specifically relates to an appliance under a tent at a specific point in time" and that the appeal is statutorily confined to that Order. While the appellant acknowledges that the Commission has "broad discretion" under s. 26(6) of the FPPA to "make such other order as the Commission deems appropriate" it submits that the Commission's discretion should be limited to issuing approved measures for the 2018 festival as "blanket approval would not be appropriate given the non-static nature of outdoor events."

79We disagree that the Commission's authority to issue approved measures in this case is confined to a set of circumstances that had already passed even at the time the appellant commenced its appeal.

80As the appellant notes, the Commission has "broad discretion" under s. 26 (6) of the FPPA to fashion the remedy it deems appropriate in each case to ensure fire safety.

81Moreover, in this case, the Inspection Order does not, as the appellant submits, relate "to an appliance under a tent at a specific point in time." It relates to an appliance under a tent. The Order is not limited in any way to the use of that appliance at a certain time.

82The Fire Marshal's decision to rescind the original inspection order includes a recommendation for "temporary measure considerations which may include clearances to the tent and procedures to reduce grease-laden build-up." We have accepted that this cooking operation may produce grease-laden vapours and we are imposing additional measures to those contemplated by the Fire Marshal in order to ensure fire safety.

83We find that to simply uphold the Fire Marshal's decision to rescind the Order without specifying the necessary measures for future use of the operation by Bingemans, would allow the same issue to arise between the parties at future events where Bingemans intends to operate a temporary Pizza Pizza oven outdoors under a tent.

84While we accept the appellant's submission that "blanket approval" would not be appropriate, we are satisfied that the measures set out below will ensure that the set-up and surrounding circumstances of any future uses of this operation by Bingemans will be similar to the set-up initially proposed for the 2018 event and which we heard evidence about at this hearing. Absent a relevant change in circumstances, the Commission is satisfied that the measures set out in our Order below will ensure fire safety:

E. COSTS

85The respondent has asked for costs. Pursuant to Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (October 2, 2017; amended February 7, 2019), a request for costs can only be made where a party believes that another party in a proceeding "has acted unreasonably, frivolously, vexatiously, or in bad faith."

86The respondent has not alleged any of the above behaviours on the part of the appellant nor do we find that Kitchener Fire acted other than reasonably in the face of its concerns at the relevant times, including during this hearing. We therefore make no order as to costs.

F. ORDER

1The Fire Safety Commission confirms the Fire Marshal's Decision dated January 21, 2019 and further orders as follows:

Bingemans Inc. must implement the following measures in order to operate an open chain-driven pizza oven under a canopy or tent (measuring approximately 20 ft by 20 ft) for the purpose of cooking pizza on its property at 425 Bingemans Centre Drive, Kitchener, Waterloo:

1. Use of the conveyor-type pizza oven during the event will be for no longer than four days.
2. Two portable fire extinguishers will be clearly visible and easily accessible to the oven operators, in close proximity to the oven. Oven operators will be trained in the use of fire-extinguishers and all staff who enter the tent will be familiar with their use.
3. A fire-resistant tent with four open sides (thereby becoming a canopy) will be in place during the operation of the pizza oven; said tent will be cleaned at the end of each day during the event or prior to its use the next day, and it will be NFPA 701 compliant and ULC S-109 compliant or of similar fire-resistant material.
4. Only pizzas will be warmed or cooked in the conveyor-type oven.
5. Only pre-cooked meat will be used on pizzas (pepperoni).
6. Only an electric conveyor-type pizza oven will be used for pizza during the event, and the electrical plug will be easily accessible by oven operators.
7. Only trained personnel will operate the oven; operators will sign off on educational programs to reduce or eliminate grease-laden vapour.
8. A sign will be posted stating "COOKING CAUSING GREASE-LADEN VAPOURS IS NOT ALLOWED".
9. The conveyor-type pizza oven will be equipped with, in accordance with its manufacture specifications, a blow fan to aid air circulation (the heat will not be able to come on without this fan working, as measured by the air pressure switch monitor), and a cooling fan to cool the equipment.
10. Staff will be trained on how to clean the conveyor-type pizza oven and the pizza oven will be cleaned at the end of each day or prior to its use the next day.
11. Daily maintenance will include: i. Cleaning of the outside of the oven with a soft cloth and mild detergent (hoses or other pressurized steam cleaning equipment will not be used); ii. The cooling fan grill at the rear of the oven control compartment will be cleaned with a stiff nylon-type brush; iii. The air intake to the cooling fan will be checked and if needed, cleaned with a soft cloth and mild detergent; iv. A stiff nylon-type brush will be used to clean the control compartment vent grill (hot air from control compartment exits from this grill); v. Conveyor belts will be brushed to remove excess crumbs into the crumb pans, and the crumb pans will be removed and cleaned; vi. The window of the pizza oven will be cleaned daily.
12. Only Bingemans or Pizza Pizza staff, trained as noted above, will be permitted under the tent. No members of the public will be permitted under the tent.
13. The electrical installation will be inspected by a certified electrician prior to the start of any event.

Footnotes

1. 1We are amending the protocol as follows: At item 1, we allow the operation of this set-up for up to 4 days. At item 2, we require that, in addition to the oven operators being trained in the use of hand-held fire extinguishers, all staff who enter the tent must be familiar with their use. At item 5, we are ensuring that "pre-cooked meats" refers only to Pizza Pizza pepperoni. We have further added a requirement that no public be allowed under the tent; and another that the electrical installation be inspected by a certified electrician prior to the start of any event.