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:
Satinder Kaur
Appellant
and
Brampton Fire and Emergency Services
Respondent
DECISION
Panel: Dawn Kershaw, Member Santina Moccio, Member Susan Clarke, Vice-Chair
Appearances:
For the Appellant: Nanan Pathania, agent
For the Respondent: Colleen Grant, counsel
Place & Date of Hearing:
Toronto, Ontario July 23 and September 16, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1This is an appeal brought by Satinder Kaur from a decision, dated November 8, 2018, made by Michael Ng, the delegated official acting for the Fire Marshal (the “Review Decision”). The Review Decision concerns an Inspection Order (File ID: 798568) made by an Inspector from Brampton Fire and Emergency Services on May 5, 2018.
2The Inspection Order was issued to the appellant Satinder Kaur, owner of the subject property, a two-storey detached residential building with a finished basement. The building was believed by the Inspector to be regulated under Section 9.3 of the Ontario Fire Code (“OFC”) as a “rooming house”. The Inspection Order was issued to remedy several apparent OFC violations related to rooming houses.
3The owner appealed the Inspection Order to the Fire Marshal. Subsequent information provided included the owner’s argument that the building was “rented as a suite of rooms of complementary use on single joint tenancy to more than four tenants that function as a single dwelling unit rather than a rooming house”. The owner also submitted copies of separate leases for the upstairs and downstairs units indicating that these were rented as separate suites at the time of the original Inspection Order.
4While the Fire Marshal varied the Inspection Order to some extent in the Review Order, the decision that this was a rooming house did not change because the two leases the owner submitted to the Fire Marshal were outdated. The owner appealed the Fire Marshal’s decision to the Fire Safety Commission (the “Commission”) in November 2018, asserting that this was not a rooming house, but was rented as two separate housekeeping units.
5The subject building was originally constructed under building permit as a single dwelling unit. In October 2018, before this hearing took place, the owner applied for a building permit for two dwelling units, which was later granted on July 26, 2019. The units have not yet been registered as two separate dwelling units.
6The main issue on these appeals is whether the subject building should be characterized as a boarding, lodging and rooming house (“rooming house”), or as “two separate housekeeping units” as the owner suggests. The Commission considered several factors recognized by the courts as applicable in determining whether the residence was a rooming house or not.
7The Commission heard evidence over two days, including from witnesses for both parties.
RESULT
8Having considered the evidence and submissions filed, the Review Order is rescinded.
ISSUES
9The broad issue in this appeal is whether the subject building should be classified as a boarding, lodging and rooming house, or as two units of residential occupancy as suggested by the Appellant.
10A related issue is what deficiencies related to OFC Section 9.3 continue to exist, if the building is classified as a boarding, lodging and rooming house.
BACKGROUND
April 27, 2018 - Fire Inspection
11On April 27, 2018, Inspector Heather Van Den Hoek attended the building for the purpose of conducting an inspection following a complaint that the building was a rooming house. In her inspection she found that there were six tenants, four of these in second floor bedrooms and two of these in basement bedrooms. There was disagreement about whether the basement constituted a separate unit from the rest of the house. The Inspector also noted the following:
o The second floor included locks on bedroom doors and a washroom. The Inspector could not access the fourth bedroom on the second floor because it was locked.
o The sitting room (also referred to as the living room, or family room by the parties) on the main floor had a two-seat couch and refrigerator. It had no other furniture, no rugs, and no television set or photos.
o The kitchen on the main floor (in use) contained two refrigerators, a stove and a microwave. Neither the refrigerators or cupboards were lockable or labelled with tenant names.
o The dining room included an expandable table and a collection of chairs.
o A glass door separated the basement from the main floor; it was not fire-rated and it was not equipped with a locking mechanism. The basement had a side exit.
o The basement level included a kitchen, a washroom with laundry machines, and three bedrooms. The third bedroom was used as storage.
o She requested copies of the leases but was not provided them.
o She did not interview any of the tenants.
12An Inspection Order was prepared after determining that the building met the OFC parameters for a rooming house in Section 9.3 where more than four people receive accommodation in return for remuneration.
May 5, 2018 - Inspection Order issued
13Inspector Van Den Hoek issued the Inspection Order on Gurwant Singh (owner’s representative) on May 5, 2018, pursuant to section 21 (1) (g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”).
14Section 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.”
15The appellant was ordered to take a number of steps to remedy various contraventions of Section 9.3 Boarding, Lodging and Rooming House Occupancies in the OFC, including:
Submit fire safety plan for approval to the Chief Fire Prevention Officer. (Article 2.8.2.1., Div. B)
Basement floor area contains two bedrooms. Basement ceiling requires a fire-resistance rating of not less than 30 minutes. (Article 9.3.2.3.)
Sleeping accommodations provided in basement floor area. Install a secondary exit for the basement floor area. (Article 9.3.3.1.)
Sleeping accommodations does not exceed ten persons, contiguous corridors are permitted. Install fire-rated doors with a minimum 20-minute rating with self-closing and latching devices, including but not limited to the following locations; all bedroom doors and door to basement. (Article 9.3.3.8.)
Install exit signs along the means of egress within the building. (Article 9.3.3.10.)
Provide fire extinguishers for each floor area and kitchen area. (Article 9.3.5.1.)
16The Order prescribed a compliance date of August 6, 2018.
November 8, 2018 - Fire Marshal’s Decision
17The appellant requested a review of the Inspection Order by the Fire Marshal pursuant to s. 25 of the FPPA.
18The Fire Marshal’s delegate received additional information from both parties and on November 8, 2018 upheld Items 1, 2, 3, 5 and 6 because the requirements were applicable to rooming houses. Item 4 was modified to require upgrading of all doors on the first and second floors opening onto the contiguous corridor, an exit arrangement permitted by Sentence 9.3.3.2.(3) because sleeping accommodations did not exceed 10 persons.
The Fire Marshal stated that even though the appellant provided compelling arguments that the building was operated as two separate housekeeping units, the lease agreements were outdated and therefore the order that described it as a rooming house was confirmed.
19The Fire Marshal modified the compliance date to May 8, 2019 on all six Items.
November 22, 2018 - Appeal by Owner to the Fire Safety Commission
20On November 22, 2018 the owner appealed the Fire Marshal’s Decision to the Commission on the basis that the upstairs and basement portions of the subject property were operated as two separate housekeeping units, rather than as a rooming house. The appellant noted that the evidence to support this claim was provided to the Fire Marshal after the submission deadline and was not considered for the Review Order.
May 9, 2019 - Fire Inspection, follow-up
21The Inspector conducted a re-inspection of the building on May 9, 2019. The following fire-protection features were observed to have been added to the building;
o The basement is no longer occupied;
o A new door separating the basement level had been installed, equipped with self-closing device;
o Paper exit signs at exit doors;
o Smoke alarms and CO detectors; and
o Fire extinguisher located in both kitchens.
Other Updates to original Fire Inspection
22On October 18, 2018 a letter was sent to Y.E.J. Studio from the City of Brampton’s Building Division, confirming that an application for a two-unit dwelling registration had been submitted by the owner of the subject building. A building permit was issued for the conversion on July 26, 2019, but the dwelling unit has not yet been registered, apparently solely because the Building Department must take one final administrative step. This was not discussed at the Hearing.
23On November 29, 2018 the Inspector located a rental advertisement for the upper unit of the building, advertising rental of “4-bedroom, 3-bathroom, 1 kitchen, and a den/family room” for $2,400/month. In the building description it notes the basement has a separate, private entrance. The rental was listed by King Realty Inc.
24A lease for the upper unit (main floor and second floor level) was signed by five tenants, including Dharminder Singh and the owner’s agent, Nanan Pathania, on December 22, 2018 for the period of January 1 through December 31, 2019.
THE POWERS OF THE COMMISSION ON THIS APPEAL
25Pursuant to section 26 (6) of the FPPA, the Commission may confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.
EVIDENCE & ANALYSIS
Should the building be classified as a boarding, lodging and rooming house (subject to OFC Section 9.3, Division B)?
26It is important to note that the function of the subject building changed between the first inspection when the Inspection Order was issued, and the final inspection which occurred shortly before the Hearing. Initially, the Inspector considered the three floors of the building as a rooming house. She witnessed more than four persons and locks on bedroom doors. At the time of the Hearing, the owner had obtained a building permit to legally create two separate suites. While the basement is currently under construction and vacant, the upper unit is rented to five adults. The Inspector still considers the upper unit to be a rooming house because there are more than four tenants, a parameter of OFC Section 9.3. The basement unit, currently vacant, is no longer subject to the Inspection Order.
27OFC Section 9.3, Division B provides parameters of rooming houses, including building size and the number of occupants paying rent. The OFC does not define what a rooming house is, however it does define dwelling units and suites. We focus on the phrases “housekeeping unit” and “single tenancy” in these, as they indicate a shared tenancy, whether by a family or a cohesive domestic unit. Indicators are shared meals, housekeeping, social activities and general decision-making for the household.
28In considering whether the subject building is a rooming house, the Commission was also guided by the case law1 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 rooming house. The factors include:
o Individual leases;
o How the rent is paid;
o Who provides the furnishing in the home and the individual rooms;
o The payment of utilities;
o How housekeeping is done;
o The nature of the relationship of the tenants, as indicated by how they spend time together; and
o Control of the unit, and collective decision-making.
29The position of Brampton Fire and Emergency Services is that this case is about the number of people in residence and how they are related. There are more than four tenants currently and therefore they believe the property is governed by the requirements in OFC Section 9.3. Evidence of a rooming house was considered including locks on the bedroom doors, and limited furnishings in the common rooms.
30The appellant’s position is that the upper unit is occupied by tenants who live together as a single housekeeping unit, similar to a family. The most compelling argument was the description of how the occupants had known each other and lived together over a period of time, in both their home country and in Canada, together with a description of their home life. Dharminder Singh, testified on behalf of the tenants that they:
o Jointly signed a standard form lease;
o Are not paying separately for individual bedrooms. There is one person acting as the head of the household, and it is he who deals with the landlord. The tenants have the run of the house, and the rooms are normally left unlocked. In a rooming house there would be exclusive possession only of the room paid for;
o Are responsible for paying the utilities, and have their name on the bills. This would not be the case in a rooming house;
o Are responsible for housekeeping and have kept their unit clean. This wouldn’t be the case in a rooming house; and
o Spend time together, similar to a family (one person usually cooks for the group; they eat together and spend time together watching TV).
31The respondent took the position that Mr. Singh’s evidence contained many inconsistencies and was tailored to suit the needs of the appellant.
Examples include:
o The current lease and previous lease (2017) both bear the name of Dharminder Singh, but the other tenants on these leases are different;
o Mr. Singh said he arrived in Canada in April 2017, but on re-examination indicated he and the other tenants lived together in a hostel in India in grades 11 and 12. Given that he is 19 years old now, the dates do not match up;
o The method of rental payments was not consistent with the terms of the lease and the lease was not amended to reflect these changes as required in the lease. Mr. Singh provided no evidence of how he is reimbursed by the other tenants;
o Inconsistencies regarding payment of utilities suggest that the owner pays the utilities;
o Photos showed some of the same furniture in the common areas of the house at the time of the original inspection when the tenants were not apparently living in the building and again in the last year when they did live there;
o The furnishing of the common areas of the home is sparse, indicating that they are not used by the tenants as a group, and that all living is done individually in the bedrooms; and
o July 7, 2019 letter indicates how the tenants spend time together, but the witness testimony is that they are too busy to spend time together.
32In his closing arguments, the appellant responded to the respondent’s arguments, stating that:
o Mr. Singh did not sign the 2017 lease presented by the respondent; he did not know the people on the 2017 lease. He provided a description of the relationship of the current tenants to each other (distantly related). He also testified that they have known each other for many years and lived together in the past, in Canada, before the current lease, and before that, in India;
o With respect to apparent inconsistencies regarding residency in Canada, kindergarten in India can start at age 3, meaning that a student graduates from high school much younger than in Canada;
o The lease is a standard form lease with standard terms, and the owner did not feel it was necessary to amend the lease simply because the rent was to be paid by e-transfer. Mr. Singh pays the rent and the other tenants reimburse him for their share of the rent;
o Mr. Singh testified that the utility bills initially were in the landlord’s name but later were transferred into his name because he has taken on the role of head of the household;
o Mr. Singh testified that the living room sofa was not in the house when they moved in, and that he did not provide it. He added that he did not provide the furniture and had no knowledge of when the other tenants may have obtained it. It was suggested that it may have been discarded by previous tenants and placed outside at the curb, and recovered by the tenants;
o Mr. Singh acknowledged that the furnishings in the common rooms are sparse. He described the use of the master bedroom as the main social center of the unit because of its size and inclusion of washroom, and he stated that it is furnished with the only television set. Watching TV together was described as a frequent common activity. The tenants eat together and one tenant, does the cooking. Mr. Singh generally does the housework as he is in the house the most. They all do the yard work and snow maintenance of the driveway;
o The tenants share frequent social activities together when they have time (description provided); and
o Inconsistencies in the testimony were due to cultural nuances and that Mr. Singh’s first language is not English.
33The position of the appellant was that the evidence and law prove that the upper unit is not occupied as a rooming house for the following reasons:
o The Ottawa v. Bentolila2 case sets out reasons why fire safety requirements are more stringent for rooming houses. The main reason is that it is assumed that if people do not know each other, they will not help them escape a fire. Generally, it is thought that people who live in rooming houses do not know each other well because they do not always live there on a long-term basis. The appellant’s tenants have known each other intimately and have lived together before in India and in Canada. If they need to evacuate in a fire, they know who is in each room. The facts of the Bentolila case can be distinguished here because the landlord does not live on the premises, there are fewer tenants, the tenants jointly signed the lease and no construction occurred to increase the size of the building for additional tenants.
34We accept Mr. Singh’s explanations regarding the apparent inconsistencies raised by the respondent. The explanations were logical (e.g. the standard form lease, and method of payment) and sufficiently detailed (e.g. the utility bills) to be acceptable. While the similarity of furnishings in the common areas over two lease periods, and the sparseness of more personal articles was of some concern, Mr. Singh had viable explanations.
35In considering the evidence and the case law, as well as the OFC definition of a “dwelling unit”, we conclude that the upper unit is a dwelling unit, not a rooming house. We find that the following factors support our finding:
o There is a single lease governing the occupancy;
o There is a single monthly rental payment for the property;
o The furnishings are provided by the tenants rather than the landlord;
o Utilities and housekeeping are the responsibility of the tenants; and
o The tenants spend time together, both socially and domestically (meals and housekeeping).
What deficiencies related to OFC Section 9.3 continue to exist?
36As we have determined that the tenancy is a dwelling unit and not a rooming house, OFC Section 9.3 does not apply. We do not need to address this issue.
ORDER
37The Fire Safety Commission rescinds the Review Order.
Released: October 10, 2019
Dawn Kershaw
Santina Moccio
Susan Clarke
Footnotes
- Ottawa (City) v. Bentolila, 2006 Carswell Ont. 8833, 2006 ONCJ 541 (“Bentolila”); Good v. Waterloo (City), 2003 CanLii 14229 (ONSC) (“Good”)
- Bentolila, above at footnote 1.