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
Appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Lakelee Orchards Limited Appellant
and
Lincoln Fire Rescue and Emergency Services Respondent
DECISION
Panel: Luisa Ritacca, Vice-Chair Helen Burgess, Member Susan Clarke, Vice-Chair
Hearing in Writing:
For the Appellant: Bradley Troup, counsel For the Respondent: Terry Hill, counsel
Place & Date of Hearing:
Toronto, Ontario (by written submissions) August 9, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1This is an appeal of five review decisions, dated February 1, 2019, made by Michael Ng, the delegated official acting for the Fire Marshal (the “Review Decisions”). The Review Decisions concern Inspection Orders made by the Lincoln Fire Rescue and Emergency Services regarding residential buildings owned and operated by the appellant Lakelee Orchards Limited.
2The subject buildings consist of either single or two-storey buildings. The housing is used by the appellant’s offshore workers who are present on a seasonal basis and who work on the appellant’s fruit farm, located in the Town of Lincoln.
3The main issue on these appeals is whether the respondent and in turn the Fire Marshal erred in characterizing the subject buildings as “boarding, lodging and rooming” rather than as “dwelling units” under the Fire Code.
4This matter proceeded as a written hearing. The Fire Safety Commission was provided with the Inspection Orders, the Review Decisions, photographs and an Agreed Statement of Facts. As well, the appellant and respondent each provided the Commission with written submissions and case law.
RESULT
5Having considered the evidence and submissions filed, the Commission confirms the requirements set out in the Review Decisions with an amendment to the compliance dates as set out below.
BACKGROUND
April 17, 2018 - Fire Inspection and Inspection Orders
6The appellant owns the subject buildings which are two single-storey (“migrant houses 3 and 5”), and three 2-storey (“migrant houses 1, 2 and 4”) residential buildings. The buildings each house between eight and ten seasonal workers who share, within each house, common living space, bathrooms, and kitchen space. The workers share sleeping rooms, ranging from two beds to six beds each. The workers are participants in the Canadian federal government F.A.R.M.S. Program providing employment for workers from other countries, in this case from Trinidad and Tobago.
7On April 17, 2018, Inspector Clark attended the buildings for the purpose of conducting inspections.
8As a result of her observations, Inspector Clark issued five Inspection Orders Lakelee Orchards Limited on April 30, 2018 pursuant to section 21 (1) (g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”).
9Section 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 (g) allows an inspector to order the owner or occupant to “remedy any contravention of the Fire Code.”
10The appellant was ordered to take a number of steps to remedy various contraventions of the Fire Code, including:
A 30-minute rated fire separation for the interior walls of each sleeping room, and rated closures with self-closing devices and latching devices. (Article 9.3.2.4., Div. B) (Migrant Worker Houses 1, 2, and 4)
All sleeping room closures to have a 20-minute fire-protection rating, and be equipped with self-closing devices and latching devices (Sentence 9.3.3.8.(1)) (all Migrant Worker Houses)
Place exit signage along the means of egress (Sentences 9.3.3.10.(1) and (2)) (all Migrant Worker Houses)
Submit a fire safety plan to the Chief Fire Official (Sentence 2.8.2.1.(1)) (all Migrant Worker Houses)
Create an exit from the second floor, and provide a 30-minute fire separation from the remainder of the building (Sentences 9.3.3.1.(2); 9.3.3.5.(1)) (Migrant Worker Houses 1, 2 and 4)
Fire separate the existing stair from the second floor to the first floor, from the remainder of the building, with a 30-minute rated fire separation (Sentence 9.3.3.5.(1)) (Migrant Worker Houses 1, 2 and 4)
11The reasons for the Order were as follows [using the format from the first Order (18-445201-001)]:
Item 1: To reduce the probability that fire will spread from the rooms to other parts of the building, causing harm to persons in the other parts of the building. To also reduce the probability that fire will spread from other parts of the building to the rooms, causing harm to persons in the rooms. At the time of the inspection, the interior walls of the bedrooms did not have a fire-resistance rating.
Item 2: To reduce the probability that fire will spread from a floor area into the exit, which could then spread to other parts of the building, which could lead to harm to persons. At the time of the inspection, bedroom doors did not have a 30-minute fire-resistance rating.
Item 3: To reduce the probability that egress routes will not be readily identified, which could lead to delays in evacuation or moving to a safe place, causing harm to persons. At the time of the inspection, there were no exit signs in the building.
Item 4: To reduce the probability that building occupants will not be trained in a timely fashion of evacuation procedures, which could delay their evacuation or movement to a safe place during a fire emergency, which could lead to harm to persons. At the time of the inspection, the property did not have a Fire Safety Plan.
Item 5: To reduce the probability that persons will be prevented or delayed in accessing one exit should the other become inaccessible in an emergency situation, which could lead to delays in egressing the building in a fire emergency, causing harm to persons. At the time of the inspection, there was not a separate exit from the second storey.
Item 6: To reduce the probability that fire will spread from a floor area into the exit, which could then spread to other parts of the building, which could lead to harm to persons. At the time of the inspection, the stairwell leading from the first to second floor did not have a fire separation.
12The Orders prescribed a compliance date of March 14, 2019.
Fire Marshal’s Decision
13After receiving the Inspection Orders, the appellant requested a review of the Orders by the Fire Marshal. The Fire Marshal’s delegate received additional information from both parties and on February 1, 2019 made the following decision and reasons:
Item 1 - Modified as follows:
“A fire separation having a fire-resistance rating of not less than 30 minutes shall be installed for the interior walls of each guest room in this building”
Reasons: “to provide direction that is consistent with the deficiency and the OFC requirement. In this case the guest room walls lack the 30-minute fire resistance rating that is required under Sentence 9.3.2.4.(1), Division B of the OFC. However, the provision requiring the installation of fire rated doors with self-closing and latching devices is removed as it is not a requirement under Article 9.3.2.4.”
Item 2 - Rescinded.
Reasons: “the requirements of Sentence 9.3.3.8.(1), Division B of the OFC relate to the fire protection rating of exit doors, whereas the Inspector is applying these requirements to bedroom/suite doors. In this building, the bedroom/suite doors are not exit doors and are not required to be rated.”
Item 3 - Modified as follows:
“Exit signage in conformance of Sentence 9.3.3.10.(2), Division B of the OFC shall be placed above each exit door, and above the stairs of the second storey of the building.”
Reasons: “The Inspector has applied the requirements of Article 9.3.3.10., Division B of the OFC correctly. However, the Inspector has not provided a sufficient degree of detail that will provide the owner with an understanding of what specific measures are required for compliance. As a result, Item 3 of the Order is Modified to provide clarity on the required number and location of exit signage.”
Item 4 - Upheld.
Reasons: “the correct deficiency and direction have been provided. Specifically, clause 2.8.1.1.(2)(e), Division B of the OFC requires a Fire Safety Plan in conformance with Sentence 2.8.2.1.(1) for all buildings to which Section 9.3 applies.”
Item 5 - Modified as follows:
“An exit shall be provided from the second floor area in conformance with the requirements of Sentence 9.3.3.1.(2) and Article 9.3.3.2. A minimum 30minute rated fire separation shall be provided for the exit per Article 9.3.3.5., Division B of the OFC. Openings in rated exit separations shall be provided with closure(s) equipped with a self-closing device and latching as per Article 9.3.3.8.”
Reasons: “Since the building does not provide sleeping accommodation for more than 10 persons, only one exit is required from each of the first and second floor areas as required by 9.3.3.1.(2), Division B of the OFC. Evacuation from the second floor sleeping area is currently served by an open stairway that discharges its occupants into an area unprotected from exposure to fire in the first floor area. This is not an acceptable exit under Article 9.3.3.2., Division B of the OFC.
Ordering the separation of the open stairway under Sentence 9.3.3.5.(1) provides only one option for providing an acceptable exit, whereas Article 9.3.3.2. provides other exit options (i.e. fire escape, contiguous stairway/corridor, etc.) from the second floor. Exit options that require a rated fire separation also require appropriately rated closure(s) equipped with self-closing device and latching as per Article 9.3.3.8. Item 5 has been Modified to provide the owner with all acceptable exit options.”
Item 6 - Rescinded
Reasons: “it is appropriate to combine this item with the Modified Item 5 to address the protection of exits from the second floor.”
14The Fire Marshal also provided general reasons for his decision, including in part:
“Since each individual worker is provided with living accommodations in return for their provision of farm services as part of their employment with Lakelee through the F.A.R.M.S. program, this indicates that the subject property is operated under multiple, rather than a single tenancy. Consequently, the OFC definition of a “suite” cannot be applied to the subject property. Since the term “suite” is inherent to the definition of “dwelling unit”, the subject property cannot be considered a dwelling unit.
Furthermore, the Inspector has provided sufficient evidence to support that the subject property is regulated under Section 9.3, Division B of the OFC on the basis that it meets all the criteria in the application statement of Boarding, Lodging and Rooming Houses, as provided by Sentence 9.3.1.1.(1), Division B of the OFC.”
15The Fire Marshal modified the compliance dates to August 1, 2019 on all five orders.
THE POWERS OF THE COMMISSION ON THIS APPEAL
16Pursuant 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.
ISSUES & ANALYSIS
17The main issue on these appeals is whether the subject buildings should be classified as “dwelling units”, or “boarding, lodging and rooming houses”.
18If the buildings are classified as “boarding, lodging and rooming houses”, a second issue is whether the measures ordered are necessary to ensure fire safety.
Should the buildings be classified as dwelling units, or boarding, lodging and rooming houses (subject to Section 9.3, Division B of the Fire Code)?
19Each building meets the application statement of Sentence 9.3.1.1.(1), Division B of the Fire Code, namely that the building does not exceed 3 storeys; the building area does not exceed 600 m²; and lodging is provided for more than four persons in exchange for the provision of services. Further, the lodging rooms do not have both bathrooms and kitchen facilities for exclusive use of individual occupants.
20In considering whether the subject buildings were properly classified by the respondent, and subsequently by the Fire Marshal, the Commission was guided by the case law provided by the parties wherein the courts set out a number of factors to weigh when assessing whether a building is a single dwelling unit or a boarding, lodging or rooming house. The factors include:
- individual leases, or in this case, individual contracts which provide for accommodation;
- how the rent is paid;
- who provides the furnishing in the home and the individual rooms;
- the payment of utilities;
- how housekeeping is done;
- the level of control the occupants have over the activities and decision-making for the home; and
- the voluntariness of possession. 1
21There is no dispute that tenancy is contingent on employment with the appellant. The contract of employment (“Contract for Employment in Canada of Commonwealth Caribbean Seasonal Agricultural Workers - 2019”, Section II Lodging, Meals and Rest Periods) describes the employer’s responsibility to provide living accommodation to the worker at no cost, and that meets appropriate annual approval of government authorities. As such, tenancy is not “voluntary”.
22While some tenants know each other and may have common cultural ties (e.g. religion), some are also strangers. It is also clear from the Agreed Statement of Facts and documents filed that the appellant, as owner, has ultimate control over who is hired and where they will be housed, even though tenants may request to live together and are allowed to do so, where possible.
23If a tenant is unable to work, or loses his job, his accommodation is terminated. In addition, the owner provides furniture and utilities. The tenants are left to make decisions regarding shared housework and cooking, but they do not make any significant household decisions (e.g. financial decisions such as maintaining the building, or lifestyle choices such as vacations).
Are the measures ordered necessary to ensure fire safety?
24Under 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.”
25The appellant requested that the Commission rescind the Fire Marshall’s decision to uphold the original orders made by the Fire Department on the basis that section 9.3 of the Fire Code does not apply to the subject buildings, because each operates as a single housekeeping unit and not a boarding, lodging or rooming house. In the alternative, the appellant requested an extended compliance date.
26The only dispute between the parties was the classification of the living arrangement. The Commission does not accept the appellant’s argument that the buildings are dwelling units. For the reasons set out above, the living arrangements here lend themselves to a finding that the subject buildings are boarding, lodging and rooming houses. On this basis, the Commission cannot waive any of the requirements set out in the Ontario Fire Code. It is clear that the specific items ordered are necessary to ensure fire safety. Compliance with the Ontario Fire Code, in particular, will help minimize the risk to the migrant workers living in the houses.
27In reviewing the orders of the Fire Marshal’s Delegate, particular attention was given to his rationale for each Item, and how they related to each other. For example, (in the 1st, 2nd and 4th orders), while Items 2 and 6 were rescinded, Item 5 was modified to address the issue of providing a protected fire exit from the second floor including the protection of any closures in the exit enclosure. We accept this treatment of the items as it provides more clarity and explains the compliance options available to the appellant.
28While the orders address specific contraventions in Part 2 and Section 9.3, Division B of the Ontario Fire Code, we note that there are a number of other obligations on owners for boarding, lodging and rooming houses, however we were not asked to provide comment.
29Additional time is provided to comply with the orders, as many of them require construction. Construction is more complex as it requires securing a designer, developing construction drawings and submitting them for building permit. The steps that will be required, including securing building permits, contractors and construction, will likely take up to six months to complete Additional time is also provided to comply with the Item requiring development of a fire safety plan. This requires securing a professional to develop the fire safety plans, and submit them to the Chief Fire Official for review and approval, all of which can take up to six months. Due to the life safety impact of this requirement, an interim step has been introduced to develop and implement emergency procedures and controls for fire hazards in each building within a month of the release of this Decision.
CONCLUSION
30For these reasons, the appeal is dismissed and the orders of the Fire Marshal’s Delegate Michael Ng, made on February 1, 2019, are confirmed with amendments to the compliance dates as set out below.
ORDER
31The Fire Safety Commission confirms the requirements set out in the Review Decisions.
32The compliance dates set out in the Review Decisions are amended as follows:
- March 1, 2020 for all work ordered
- September 23, 2019 for a partial safety plan to include the measures described in clauses 2.8.2.1.(2)(a) and (f), and (3), Division B of the Fire Code - for every building.
Released: September 10, 2019
Luisa Ritacca
Helen Burgess
Susan Clarke
Footnotes
- Good v. Waterloo (City), 2004 CanLII 23037 (ONCA); 2161907 Ontario Inc. v. City of St. Catherines et al., 2010 ONSC 4548