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

Citation: Jamal Mumin o/a J-Pro Auto Service v. Toronto Fire Services, 2019 ONFSC 7

Date: 2019-06-21

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

DECISION

Panel: Luisa Ritacca, Vice-Chair Maureen Helt, Vice-Chair Priscilla Reeve, Member

Appearances: For the Appellant: Marshall Reinhart, Counsel For the Respondent: Emma Luca, Counsel For the Owner: Malka Assa & Nissan Assa

Place and dates of hearing: Toronto, Ontario April 10 and May 1, 2019

REASONS FOR DECISION

OVERVIEW

1This is an appeal of an Inspection Order, dated March 14, 2019 made by Fire Prevention Officer Jeremy Lewis (“FPO Lewis”) and an Order to Close, dated March 14, 2019 approved by Deputy Fire Chief Jim Jessop. The appellant is a tenant of the main floor of the premises. The Inspection Order and Order to Close were issued with respect to a two-storey mixed use building, which at the time of the orders was occupied by the appellant’s auto body repair shop on the main floor and by residential tenants on the second floor. The Inspection Order required the owner of the building to either revert the building back to its former use occupancy or to provide the Toronto Fire Services with an occupancy combination for review. The Order to Close required the owner to close either the second floor, thereby removing her residential tenants or the main floor, removing the auto body shop, until such time as she was in compliance with the Inspection Order.

2The owner complied with the Order to Close by closing the main floor, thereby preventing the appellant from continuing his business. No action has been taken to date to comply with the Inspection Order.

3The owner has not appealed from either the Inspection Order or Order to Close. The owner confirmed, in the course of the hearing, that she is prepared to abide by the orders under appeal.

4The appellant does not dispute that the combination of residential tenants on the second floor of the building and the auto body repair shop on the main floor is an occupancy combination that poses a fire safety risk. The appellant argued, however, that the use of the second floor as residential units is contrary to the applicable zoning by-laws and as such, in issuing its Order to Close, the Toronto Fire Services should not have provided the owner with the choice of closing either the main floor or second floor of the building. Further, the appellant argued that decision to close the main floor has resulted in significant loss of business for the appellant.

5The appellant sought a review of the Inspection Order and Order to Close by the Fire Marshal. Pursuant to section 25(4)(a) of the Fire Protection and Prevention Act (the FPPA)¹, the Fire Marshal referred the matter to the Fire Safety Commission for a hearing under section 26.

6Pursuant to section 26 of the FPPA, the Commission may confirm, amend or rescind the orders under appeal or make such other order as the Commission deems appropriate.

7In keeping with 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.

PRELIMINARY ISSUE - DELEGATION

8During the parties’ closing submissions, the Panel raised a question regarding Deputy Fire Chief’s authority to issue the Order to Close. The parties were granted additional time to file written submissions on the matter.

9Section 21(2) of the FPPA provides, in part, that an order to close premises and/or prevent persons from entering must be made with the approval of the Fire Marshal.

10Here, the Order to Close was issued by Deputy Fire Chief Jessop. The Toronto Fire Service submitted that the Order to Close was issued pursuant to a delegation granted by the Fire Marshal to the Deputy Fire Chief. The issue before us is whether that delegation is valid.

11Section 10(1) of the FPPA authorizes the Fire Marshal to delegate any power or duty granted or vested in Fire Marshal under the FPPA to any person or class of persons. The delegation may set out limitations, restrictions, conditions and requirements. Section 10(2) of the FPPA indicates that the delegation may include any statutory or discretionary powers as assigned to the Fire Marshal under the FPPA.

12The Toronto Fire Service provided the Panel with a Delegation of Authority from the Fire Marshal, dated November 3, 2017 and an Extension of Delegation of Authority, dated November 30, 2018. The initial delegation provides clearly that the Fire Marshal is:

Subject to the conditions set out below, I am hereby delegating my authority under section 21 (2)(a) of the Act to you in your capacity as the City's Fire Chief for its Fire Department … and, to all Deputy Fire Chiefs of Toronto Fire Services, appointed under City of Toronto Municipal Code Chapter 79, Fire Services(the "Delegates"). This Delegation of Authority authorizes each of the Delegates to individually approve and prescribe terms and conditions ordering that an owner or occupant of land or premises close the land or premises and prevent persons from entering thereon until such time as corrective actions ordered under subsection 21 (1) of the Act have been completed.

13The Extension of Delegation, as with the Initial Delegation, was drafted as a letter from Fire Marshal Nichols to Fire Chief Pegg. In the second paragraph of the letter, the Fire Marshal states:

“I delegated my authority to you with respect to Orders to Close Land or Premises in your capacity as Fire Chief of Toronto Fire Services in accordance with the terms and conditions set out in the [Delegation of Authority]”. In the third paragraph, the Fire Marshal states, “I am extending the terms of the original Delegation of Authority indefinitely…” and “All other terms and conditions of the Original Delegation of Authority shall continue to be in full force and effect.”

14There is no reference to the delegation extending to the Deputy Fire Chiefs in the November 30, 2018 extension letter. The panel asked the parties to provide written submissions as to whether or not the Extension of Delegation of Authority gave the Deputy Fire Chief the authority to issue the Order to Close.

15The Toronto Fire Services argued that while the Extension does not explicitly refer to the Deputy Fire Chiefs, the intention was to extend the delegation of authority to them on the same terms and conditions as set out in the initial delegation. The Toronto Fire Services noted that the terms and conditions set out in the initial Delegation are specifically referred to in the Extension. The terms and conditions do include references to Deputy Fire Chief.

16The appellant argued that the Extension of Delegation was not valid. This argument is made on two grounds.

17The first ground that the appellant argued is that the Extension of Delegation was made only after the expiration of the initial delegation. The panel is not persuaded that the delay in extending the initial delegation is fatal. There is a clear intention to extend the delegation of authority beyond the time set out in the initial delegation. This deficiency alone does not satisfy the panel that the Extension of Delegation is invalid.

18The second ground raised by the appellant is more persuasive. The appellant argues that the Extension of Delegation was to the Fire Chief of the Toronto Fire Services alone and not to the Deputy Fire Chiefs. Unlike the initial delegation, the Extension makes no mention of the Deputy Fire Chiefs and while it refers to the terms and conditions set out in the initial delegation, it makes no mention of extending the delegation to the Deputy Fire Chiefs.

19The authority granted to the Fire Marshall to approve the closure of premises, among other things, and that is significant. While the panel accepts that the Fire Marshall can delegate this authority, the Fire Marshall must do so on clear and unambiguous terms. The Extension of Delegation before us clearly and unambiguously delegates the Fire Marshall’s authority to the Toronto Fire Services Fire Chief, but does not do the same with respect to the Deputy Fire Chiefs. The language of section 10(1) of the FPPA is clear as to the delegation power of the Fire Marshall to delegate to “any person or class of persons” subject to any conditions set out in the delegation. This is an express power to delegate.

20The Commission is aware that there can be an implied power to delegate in cases where the nature, scope, and purpose of the power is such that the legislature could not have intended for the power to be exercised personally. However, given the clear language of section 10(1), and the language of both the initial delegation and the Extension of Delegation, the Commission finds that this is not such a case.

21In reviewing the delegation issue, the Commission also identified a further problem with the Order to Close as drafted. The initial delegation provides that the any Order to Close made pursuant to the delegation:

…shall contain, at least the following conditions concerning access to the l ands or premises which are the subject of the Order to Close:

a. Residents of land or premises affected by an Order to Close shall be permitted entry to the land or premises, if supervised by Toronto Fire Services staff, to facilitate the removal of personal belongings, within a reasonable amount of time, upon receipt of a request for access by a resident; and,

b. Any owner or occupant served by an Order to Close shall be allowed access to the land or premises, along with any such other persons, or equipment reasonably required, to complete any work required by the Order to Close.

22The Order to Close does not include these provisions and as such appears to be inconsistent with a term of the initial delegation.

23The panel’s conclusion with respect to the delegation should not be taken to mean that an Order to Close issued with proper authority is not appropriate in the circumstances. In fact, as is set out in below, but for the deficient delegation of authority, the panel would have upheld both the Order to Close and the Inspection Order.

BACKGROUND & EVIDENCE

The Building

24As described above, the subject building is two storeys and less than 600 metres square in building area. The basement level contains the building’s HVAC system, furnace and hot water heaters. The building is a combination of combustible and non-combustible construction. The appellant’s auto body repair business is on the main floor of the building. The appellant became a tenant of the building in or about spring 2017.

25There are three separate residential units arranged in split levels on the second floor of the building. Each residential unit housed three or four tenants. There is outside access to two of the units and indoor access (via a staircase adjacent to the appellant’s business) to the third unit. At the time of the inspections and the issuance of the orders under appeal the residential units were fully occupied.

The Inspections

26Fire Prevention Officer (FPO) Lewis attended the subject building on June 25, 2018 in response to a complaint regarding smoke alarms at the location. During his attendance, FPO Lewis made note of the fact of the appellant’s auto body repair shop and the residential units. With the assistance of the owner, he was able to gain entry into all of the residential units the next day and could then confirm that the units had the necessary smoke alarms and carbon monoxide detectors. FPO Lewis had no further dealings with the subject building until February 2019.

27In or about the Fall of 2018, FPO Vashkevich attended the subject building for the purpose of inspecting the status of the combined occupancy. Following his attendance, FPO Vashkevich issued an Inspection Order to the owner of the building, dated November 5, 2018 (the “November Order”). Among other things, the order required the owner to take the following steps:

a. provide for a fire separation having a fire-safety rating of not less than 1 hour to separate the repair portion of the repair garage from the dwelling units above; and

b. repair the existing lath and plaster ceiling above the transition area between the repair portion of the repair garage, as well as the ceiling above the front office in the areas that are damaged.

28Compliance with the November Order was required by February 3, 2019.

29The owner did not comply with the November Order. There was some evidence before the Commission that there was an ongoing dispute between the owner and the appellant as to who should be responsible to pay for the remedial work required.

30In early 2019, FPO Lewis re-attended the subject building for the purposes of confirming compliance with the November Order. As a result of his attendance and inspection, FPO Lewis confirmed that the owner had not complied with the November Order. Further, he confirmed that the occupancy of the building remained the same as it had been in June 2018. Residential tenants occupied the second floor and the appellant’s repair shop occupied the main floor.

31In consultation with his superiors within the Toronto Fire Service, FPO Lewis issued further inspection orders, which were served on both the owner and appellant on or about March 4th, 2019 (the “March 4th Orders”). The owner and appellant received an Inspection Order issued pursuant to clause F of section 21(1) of the FPPA on the basis that the current joint occupancy poses a fire safety risk and requiring the owner and appellant to do, among other things, the following:

a. install a fire alarm system that is designed and installed in conformance with CAN/ULC S524-06 throughout the building;

b. discontinue the sharing of the HVAC system between the dwelling units and the repair portion of the repair garage; and

c. install a general ventilation system designed to limit exposure of workers to (i) carbon monoxide to below the time weighted average concentration of 25 parts per million for a normal 8 hour workday or 40 hour work week, and (ii) nitrogen dioxide from diesel powered vehicles to below 0.72 parts per million for a normal 8 hour workday or 40 hour work week, with such system designed to operate continuously or controlled automatically by carbon monoxide monitoring devices OR install local mechanical exhaust systems that terminate outdoors, and having fume extraction hoses that connect to tail pipes of vehicles at all times while the vehicles are inside the repair garage.

32The owner and appellant received a second Inspection Order issued pursuant to clause G of section 21(1) of the FPPA on the basis that remedial work was necessary in order to remedy a contravention of the Ontario Fire Code. In particular, FPO Lewis found that there was a contravention of sentence 9.5.2.6(1), Division B, which requires that residential occupancies be separated from other major occupancies by a fire separation having a fire-resistance rating of not less than 1 hour. The order required the owner and appellant to do the following:

a. provide a fire separation having a fire-resistance rating of not less than 1 hour to separate the repair portion of the repair garage from the dwelling units above; and

b. repair the existing lath and plaster ceiling above the transition area between the repair portion of the repair garage, as well as the ceiling above the front office in the areas that are damaged.

33Compliance with the March 4th Orders was required by May 17, 2019.

34FPO Lewis explained that the March 4th Orders were issued largely because the owner had failed to comply with the November Inspection Orders and that there remained fire safety risks, given the combined occupancy of the building. FPO Lewis stated that the fire risk to the residential tenants in the event of a fire in the repair shop was serious, in particular because of the combustibles used by the appellant to run his business. The lack of fire separation increased the risk that a fire could spread more quickly throughout the building making it difficult for the residential tenants to escape and also making it more difficult for emergency response personnel to undertake rescue operations.

March 4th Orders Rescinded, New Orders Issued

35Shortly after the March 4th Orders were issued to the owner and appellant, the Toronto Fire Services received information from the Mayor’s office that the appellant had contacted them with concerns regarding the scope of the March 4th Orders and the fact that the orders had been made against both him and the owner.

36As a result of this communication, it appears that the Toronto Fire Services conducted an internal review of the March 4th Orders and the status of the subject building. Division Chief Derek Collins testified he, in consultation with Fire Prevention Captain Mike Heinemann, Division Chief Larry Cocco, District Fire Prevention Officer Gaston Maurice and Fire Prevention Engineer Yosh Imahori determined that the March 4th Orders were insufficient. The remedial actions ordered in the previous orders did not sufficiently address the risk to fire safety posed by the existence of an industrial occupancy in the same building as residential occupancies. Division Chief Collins explained that the remediation ordered did not properly take into account the dangers posed in the event that a fire broke out in the main floor of the building to both the second floor tenants and emergency responders. As a result, Division Chief Collins directed Fire Prevention Engineer Imahori to prepare a new Inspection Order and an Order to Close.

37The March 4th Orders were rescinded and the new Inspection Order (the one now under appeal) was issued to the owner on March 14, 2019. At Appendix A of the Inspection Order, the Toronto Fire Services identifies the appellant’s repair shop as “F2 occupancy” and the residential units as “C occupancy”. These classifications are found in the Ontario Building Code. A medium risk industrial use is classified as F2 occupancy and a residential occupancy is classified as a C occupancy. It appears that this is the first time that the Toronto Fire Services referenced the Ontario Building Code classification in any of its inspection orders issued on the subject building.

38As a result of this combination of occupancy, at Appendix B of the Inspection Order, the owner was ordered to do the following:

a. revert the building back to its former use as a Group C and Group E occupancy; OR

b. provide TFS with an occupancy combination for review in conjunction with applications to update building use with other City of Toronto approving agencies.

39Both Division Chief Collins and Mr. Imahori testified that the Toronto Fire Service had information to believe that at some point prior to the appellant’s tenancy, the main floor of the building had been used as a retail business, which would be classified as “E occupancy” under the Building Code. They testified that retail or mercantile occupancy in combination with the residential occupancy would not pose the same fire safety concerns as the F2 occupancy.

40The Order to Close was issued on March 14, 2019, the same day as the Inspection Order. The Order to Close was approved Deputy Fire Chief Jim Jessop, acting under an apparent delegation from the Ontario Fire Marshal. The Order to Close required the owner to close the second floor of the building and ensure that no person continues to occupy any of the three dwelling units or, to close the main floor of the building and ensure that the automobile repair activity does not take place. The Order to Close is to remain in effect until such time as the corrective actions ordered in the Inspection Order have been completed.

41As indicated above, the owner chose to close the main floor of the building. At the time of the hearing, the main floor remained closed and the appellant has been unable to operate his business since mid-March 2019.

42Division Chief Collins explained that he and his team determined that it was necessary to issue the Order to Close in light of the serious fire safety issues posed by the auto body repair shop’s occupancy, in combination with the residential occupancy. He conceded that if there was no residential occupancy in the building, the auto body repair shop would not in and of itself pose a fire safety risk.

ISSUE

43The parties did not dispute that there is a fire safety issue requiring action with respect to the combined industrial and residential occupancies in the subject building. The Toronto Fire Services and the owner agree that the fire safety issue has in large part been addressed by the owner’s decision to close the main floor, thereby preventing the appellant from operating his auto body repair business. The appellant does not agree. He argued that the use of the second floor as residential units is contrary to the applicable zoning by-laws and as such, in issuing its Order to Close, the Toronto Fire Services should not have provided the owner with the choice of closing either the main floor or second floor of the building.

44In the circumstances, the issue before the Commission was whether the Inspection Order and Order to Close, served March 14, 2019 ought to be rescinded or varied. As set out above, the Inspection Order required the owner of the building to either revert the building back to its former use occupancy or to provide the Toronto Fire Services with an occupancy combination for review. The Order to Close required the owner to close either the second floor, thereby removing her residential tenants or the main floor, removing the auto body shop, until such time as she was in compliance with the Inspection Order.

APPLICABLE LAW

45As set out above, the Inspection Order was issued pursuant to s. 21(1)(f) of the FPPA, which provides in part that an inspector who has carried out an inspection of premises may order the owner to do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan. Section 21 (2) makes it clear that the order to close the land or premises only applies until such time as the corrective actions set out in the Inspection Order have been complied with.

POSITIONS OF THE PARTIES

46The appellant concedes that there is a fire safety risk in having his auto body repair business in the same building as residential tenants. He argued that he was not aware of the residential tenants at the time he entered into his rental agreement with the owner and that he was never told about the residential tenants. He testified that he only became aware of them by accident and several months into his tenancy. He stated that prior to taking on the tenancy, he confirmed with the owner and the municipality that the space was zoned industrial. By that point, he had already spent time and money renovating the space to accommodate for his business.

47The appellant argued that it was not reasonable for the Toronto Fire Service to give the owner the choice of closing either the second or main floor. He presented evidence to suggest that the residential units were not in compliance with the Building Code or applicable municipal by-laws. In particular, he filed an Order to Comply that was issued to the owner by the Toronto Building Division on April 4, 2019. The Order to Comply indicates that the residential units are not permitted in the building as the combination of a repair garage and residential units are specifically prohibited under the Building Code. The Order to Comply requires the owner to return the use of the second floor to business offices. The appellant argued that the option set out in the Order to Close is inconsistent with the Toronto Building Division’s Order to Comply and seemingly inconsistent with the Building Code.

48The owner, who was granted the opportunity to present evidence and make submissions, disputed the evidence of Building Code non-compliance. The owner testified that the building had been granted legal non-conforming use status at some point such that the residential units were not in violation of any municipal by-law. Further, the owner argued that she and her husband were working with the Toronto Building Division to address the Order to Comply. The owner was adamant that there have always been residential tenants in the building and that there had never been any issue until the appellant took the main floor space for his business. The owner is in full agreement with the Toronto Fire Services and takes the position that the Inspection Order and Order to Close ought to be affirmed by the Commission.

49The Toronto Fire Services argues that the Inspection Order and the Order to Close issued to the owner on March 14th, 2019 are necessary for fire safety and are appropriate measures to minimize fire risk. The respondent acknowledged that it had issued less intrusive Inspection Orders prior to the March 14th orders. However, Division Chief Collins explained that the remedial measures contained in those earlier orders were insufficient to fully address the risks associated with the auto body repair business and residential occupancies in the building. He testified that there was a real risk, which could not be fully discounted by the remedial action, that in the event of a fire on the main floor, it would be difficult for the residential tenants to escape and potentially difficult for the emergency response personnel to rescue those same tenants. Further, the Toronto Fire Services argued that it was not unusual for it to give an owner a choice as to which part of a building to close in the face of a fire safety issue. The respondent argued that whether the residential occupancy gives rise to a Building Code or by-law violation is not within its purview. The Toronto Fire Service issues orders to minimize fire safety risks. Its focus is on fire prevention and fire safety; not Building Code or by-law compliance.

ANALYSIS

50As is set out above, but for the improper delegation of authority, the panel would have upheld the Order to Close. The largely uncontested evidence made it clear that the Order to Close was necessary for fire safety associated with the auto body repair business and residential occupancies in the building. The Order to Close, taken together with the Inspection Order, was an appropriate measure to minimize fire risk at the premises.

51The parties agreed that the combination of the repair shop and residential tenancy in the building posed a fire risk that could not be adequately addressed by remedial efforts.

52The panel’s role is to ensure that the Orders were issued for the purpose of ensuring fire safety. The fact that the respondent gave the owner a choice in how she wished to comply with the Order to Close does not invalidate the order or somehow make it inappropriate for fire safety. There were legitimate concerns that the tenancy combination poses a substantial risk to the residential tenants in the event of a fire in the repair shop.

53The panel does not accept the appellant’s argument that the Order to Close is inconsistent with the Toronto Building Division’s Order to Comply and seemingly inconsistent with the Building Code.

54While there was some evidence before the panel that the residential tenancy may have been a non-conforming use of the building, it is clear that the responsibility of the Toronto Fire Service is to ensure fire safety and minimize fire risk. It is not the role of the respondent (or this panel) to ensure that the owner is in full compliance with the requirements of other agencies.

55The panel is satisfied that the Order to Close and the Inspection Order were necessary in order to ensure fire safety. But for the deficient delegation, the panel would have confirmed both orders. However, given the reasons set out above, the panel is not prepared to affirm the Order to Close.

56The panel’s decision with respect to the Order to Close is without prejudice to the Toronto Fire Services ability to re-issue the Order to Close pursuant to a valid delegation of authority.

ORDER

57The Fire Safety Commission confirms the requirements set out in the Inspection Order, with a modification to the date of compliance. The work in the Inspection Order must now be completed by October 31, 2019.

58The Order to Close is rescinded.

Footnotes

1. 1S.O. 1997, c.4.