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: Realgoal Technology Inc. v. Kingston Fire and Rescue, 2020 ONFSC 1

Date: 2020-02-24

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

Between:

Realgoal Technology Inc. Appellant

and

Kingston Fire and Rescue Respondent

AMENDED DECISION

Panel: Luisa Ritacca, Vice-Chair Poeme Manigat, Member Lyndra Griffith, Member

For the Appellant: Xinmaio Li, Agent For the Respondent: Sarah Gareau, Counsel

Place & Date of Hearing: Kingston, Ontario November 20, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1This is an appeal of five Inspection Orders made by Inspector Richard Vasko of Kingston Fire and Rescue on July 18, 2019, relating to five separate properties owned and operated by the Appellant, Realgoal Technology Inc. The appeal of the Inspection Orders was referred to the Commission by the Fire Marshal on August 8, 2019, pursuant to subsection 25(4)(a) of the Fire Protection and Prevention Act, 1997 (the "Act").

2The subject buildings consist of either single or two-storey residential homes. The housing is used for the Appellant's international employees who have been brought to Kingston from China to complete a construction project for a production plant. While the number of residents in each home fluctuates, there is no dispute that, as of October 22, 2019, each home had at least 4 residents. The residents are all employees of either the Appellant or UPACK, a sister company of the Appellant.

3The main issue on this appeal is whether the actions ordered by the Respondent are necessary to ensure fire safety, in light of the factual basis on which the actions were ordered. Central to this issue is whether the Appellant is operating the properties as boarding, lodging or rooming houses and, if so, whether the existing circumstances at each home provide an acceptable level of fire safety.

RESULT

4Having considered the evidence and submissions filed, the Commission confirms the actions ordered in the Inspection Orders with amendments as set out below.

BACKGROUND

Exhibits

5At the outset of the hearing, the parties consented to entering 10 exhibits into evidence. The Exhibits are as follows:

i. Exhibit 1 - Notice of Appeal ii. Exhibit 2 - Respondent's Appeal Book iii. Exhibit 3 - 1100 Crossfield Inspection Order iv. Exhibit 4 - 209 Crossfield Inspection Order v. Exhibit 5 - 1409 Crossfield Inspection Order vi. Exhibit 6 - 389 Cooke Crescent Inspection Order vii. Exhibit 7 - 367 Ellesmere Avenue Inspection Order viii. Exhibit 8 - Email from Ms. Li to Richard Vasko dated June 27, 2019 ix. Exhibit 9 - Email communication between the parties dated July 16-17, 2019. x. Exhibit 10 - Agreed Statement of Facts

Witnesses

7The Appellant did not call any witnesses and the Respondent called Inspector Vasko to testify.

Agreed Statement of Facts

8The parties advised that they had entered into an Agreed Statement of Facts, for the purposes of assisting the Commission to determine the issues on appeal.

9The Agreed Statement of Facts, provides in part as follows:

i. Realgoal Technology Inc. owns and operates five (5) residential buildings in the City of Kingston, namely, the buildings municipally known as: 367 Ellesmeer Avenue, Kingston, Ontario; 389 Cooke Crescent, Kingston, Ontario; 1209 Crossfield Avenue, Kingston, Ontario; 1100 Crossfield Avenue, Kingston, Ontario; and 1409 Crossfield Avenue, Kingston, Ontario (or collectively, "the Properties")

ii. Realgoal Technology Inc. ("Realgoal" or "the Appellant") is a corporation incorporated under the laws of the Province of British Columbia, having its registered or head office at 10451 Shellbridge Way, Suite 150, Richmond, British Columbia, V6X 2W8.

iii. On June 24th, 2019, Fire Inspectors Richard Vasko and Clinton Debroy, on behalf of the Respondent, Kingston Fire & Rescue ("KFR" or "the Respondent"), conducted an inspection of four (4) of these Properties: 367 Ellesmeer Avenue; 389 Cooke Crescent; 1209 Crossfield Avenue; and 1100 Crossfield Avenue.

iv. Subsequent to that inspection, Realgoal advised KFR that it had purchased another property (1409 Crossfield Avenue) on June 28, 2019.

v. On July 18, 2019, Fire Inspectors Richard Vasko and Clindon Debroy conducted an inspection of 1409 Crossfield Avenue.

vi. During these inspections, Inspectors photographed and documented the following:

a. 367 Ellesmere Avenue

• The building was originally constructed as a two-storey single residential dwelling unit operated as a single housekeeping unit with attached garage, containing 4 bedrooms;
• The occupancy was being used to provide accommodations for 23 persons with shared cooking operations and shared washrooms. The basement contained 10 beds and the second floor area contained 13 beds;
• The windows in the basement area(s) did not meet the minimum size for egress required by the Ontario Building Code;
• The second floor area contained sleeping accommodations for 13 persons and lacked a second means of egress;
• No emergency lighting units were installed in the corridors and exit stairways to facilitate the timely movement of persons to a safe place in an emergency;
• Exit signs were not located along a means of egress so that in a fire emergency direction of exit travel are apparent to the occupants;
• No fire alarm system had been installed in the building;
• The building did not have an approved fire safety plan;
• The kitchen contained cooking operations consisting of woks fueled by a single unsecure 100lbs. propane cylinder that was stored in the kitchen area. Two additional propane cylinders were stored (unsecured) in the garage, approximately 2m (6ft) from the designated smoking area for the residents and persons residing at the other Properties. The appliances were used to provide daily meals to approximately 42 persons residing at the Properties.
• Realgoal exercises a high degree of control over the building and its residents;
• Residents are employees of Realgoal;
• Realgoal provides these residents/employees with accommodations and food as part of the employment arrangement with the corporation;
• Realgoal provides/pays for all utilities associated with the operation of the building and provides associated furnishings;
• Realgoal determines who lives at each residence as part of the employment terms and, when an employee returns to China, Realgoal determines which other employee will then reside in the building;
• The length of residency by persons varies based on current employment arrangements with Realgoal;
• Persons residing at the building to not share any previous affinity or participate in collection decision-making regarding the use of the premises;

b. 389 Cooke Cres.

• The building was original constructed as a one-storey single residential dwelling unit operated as a single housekeeping unit with attached garage, containing 2 bedrooms;
• The occupancy was being used to provide accommodations for 16 persons, with a shared kitchen and shared washrooms. The basement contained 9 beds and the main floor area contained 7 beds;
• The windows in the basement floor area(s) did not meet the minimum size for egress required by the Ontario Building Code;
• The basement contained sleeping accommodations for 9 persons and lacked a second means of egress from the basement floor area;
• The single exit stairway leading from the basement floor area to the ground floor is not separated from the remainder of the building by fire separation having a minimum 30-minute fire resistance rating and lacks a door installed at the top of the stairs have a 20-minute fire protection rating and equipped with a self-closing device;
• No emergency lighting units were installed in the corridors and exit stairways to facilitate the timely movement of persons to a safe place in an emergency;
• No fire alarm system was installed in the building with an occupant load that is greater than 14 persons and the floor assemblies lacked a minimum 45-minute fire resistance rating;
• Exit signs were not located along a means of egress so that in a fire emergency direction of exit travel area apparent to the occupants;
• The building did not have an approved fire safety plan;
• Realgoal exercises a high degree of control over the building and its residents;
• Residents are employees of Realgoal;
• Realgoal provides these residents/employees with accommodations and food as part of the employment arrangement with the corporation;
• Realgoal provides/pays for all utilities associated with the operation of the building and provides associated furnishings;
• Realgoal determines who lives at each residence as part of the employment terms and, when an employee returns to China, Realgoal determines which other employee will then reside in the building;
• The length of residency by persons varies based on current employment arrangements with Realgoal;
• Persons residing at the building do not share any previous affinity or participate in collective decision-making regarding the use of the premises.

c. 1209 Crossfield Avenue

• The building was originally constructed as a two-storey residential dwelling unit operated as a single housekeeping unit with attached garage, containing 3 bedrooms;
• The occupancy was being used to provide accommodations for 9 persons, with a shared kitchen and shared washrooms. The basement contained 1 bed, the main floor area contained 2 beds, and the second floor contained 6 beds with 1 additional mattress in an upstairs bedroom;
• The basement contained sleeping accommodations for 1 person and lacked a second means of egress from the basement floor area;
• The single exit stairway leading from the basement floor area to the ground floor was not separated from the remainder of the building by fire separation having a minimum 30-minute fire resistance rating and lacked a door installed at the top of the stairs having a 20-minute fire protection rating and equipped with a self-closing device;
• Exit signs were not located along a means of egress so that in a fire emergency directions of exit travel are apparent to the occupants;
• Realgoal exercises a high degree of control over the building and its residents;
• Residents are employees of Realgoal;
• Realgoal provides these residents/employees with accommodations and food as part of the employment arrangement with the corporation;
• Realgoal provides/pays for all utilities associated with the operation of the building and provides associated furnishings;
• Realgoal determines who lives at each residence as part of the employment terms and, when an employee returns to China, Realgoal determines which other employee will then reside in the building;
• The length of residency persons varies based on current employment arrangements with Realgoal;
• Persons resident at the building do not share any previous affinity or participate in collective decision-making regarding the use of the premises.

d. 1100 Crossfield Avenue

• The building was originally constructed as a one-storey residential dwelling unit operated as a single housekeeping unit with attached garage, containing 2 bedrooms;
• The occupancy contained accommodations for approximately 26 persons (13 bunk beds), or 26 single beds) with a shared kitchen and shared washrooms. The basement contained 18 beds (i.e. 9 bunk beds) and the main floor area contained 8 beds;
• The windows in the basement floor area(s) did not meet the minimum size for egress required by the Building Code;
• The basement contained sleeping accommodations for 18 persons and lacked a second means of egress from the basement floor area;
• The single exit stairway leading from the basement floor area to the ground floor was not separated from the remainder of the building by fire separation having a minimum 30-minute fire resistance rating and lacked a door installed at the top of the stairs having a 20-minute fire protection rating and equipped with a self-closing device;
• No emergency lighting units were installed in the corridors and exit stairways to facilitate the timely movement of persons to a safe place in an emergency;
• Realgoal exercise a high degree of control over the building and its residents,
• No fire alarm system was installed in the building with an occupant load that is greater than 14 persons and the floor assemblies lacked a minimum 45-minute fire resistance rating;
• Exit signs were not located along a means of egress so that in a fire emergency direction of exit travel are apparent to the occupants;
• The building did not have an approved fire safety plan;
• Residents are employees of UPACK, a sister company of Realgoal;
• Realgoal provides these residents/employees with accommodations and food as part of the employment arrangement with UPACK;
• Realgoal provides/pays for all utilities associated with the operation of the building and provides associated furnishings;
• Realgoal determines who lives at each residence as part of the employment terms and, when an employee returns to China, Realgoal determines which other employee will then reside in the building;
• The length of residency by persons varies based on current employment arrangements with Realgoal;
• Persons residing at the building do not share any previous affinity or participate in collective decision-making regarding the use of the premises.

e. 1409 Crossfield Ave.

• The building was originally constructed as a two-storey residential dwelling unit operated as a single housekeeping unit with attached garage, containing 3 bedrooms;
• The occupancy was being used to provide accommodations for 14 persons with a shared kitchen and shared washrooms. Eight beds were located in the 3 bedrooms on the second floor; 6 beds were located on the ground floor; and 6 additional bed frames were located in the garage;
• The basement contained sleeping accommodations for 1 person and lacked a second means of egress from the basement floor area;
• The single exit stairway leading from the basement floor area to the ground floor was not separated from the remainder of the building by fire separation having a minimum 30-minute fire resistance rating and lacked a door installed at the top of the stairs having a 20-minute fire protection rating and equipped with a self-closing device;
• No emergency lighting units were installed in the corridors and exit stairways to facilitate the timely movement of persons to a safe place in an emergency;
• Exit signs were not located along a means of egress so that in a fire emergency directions of exit travel are apparent to the occupants;
• The building did not have an approved fire safety plan;
• Realgoal exercise a high degree of control over the building and its residents;
• Residents are employees of UPACK, a sister company of Realgoal;
• Realgoal provides these residents/employees with accommodations and food as part of the employment arrangement with UPACK;
• Realgoal determines who lives at each residence as part of the employment terms and, when an employee returns to China, Realgoal determines which other employee will then reside in the building;
• The length of residency by persons varies based on current employment arrangements with Realgoal.;
• Persons residing at the building do not share any previous affinity or participate in collective decision-making regarding the use of the premises.

vii. Realgoal immediately removed the propane fueled cooking appliances and cylinders from 367 Ellesmeer Avenue. These cylinders have not been observed at any of the Properties during any subsequent inspections.

viii. As a result of these observations, and after having issued notices pursuant to s. 15 of the Act to address the immediate threat to life posed by the cooking operations and the lack of a second means of egress where sleeping accommodations were provided in the basements, Inspector Vasko issued further orders pursuant to sections 21(1)(f) and 21(1)(g) of the Act with respect to each of the Properties, dated July 18, 2019.

ix. The orders were served personally on Cong Guan, a representative of Realgoal, on July 26, 2019.

10Pursuant to subsection 21(1) of the Act, an inspector who has carried out an inspection has broad powers to order the owner or occupant of property "to take any measure necessary to ensure fire safety on the land and premises." The inspection orders under appeal were made pursuant to paragraph subsection (f) which allows an inspector to order the owner or occupant "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."

11While there were also orders issued under paragraph (g), those are not before the Commission on this appeal.

12Pursuant to the inspection orders before us, the Appellant was ordered to take a number of steps to remedy various concerns identified by Inspector Vasko at each property, including to:

1. Provide a second exit from the basement floor area to the outdoors at grade level or alternatively discontinue the provision of sleeping accommodations in the basement floor area. Acceptable exits shall be in conformation with Article 9.9.2.2 and 9.9.2.3 of the 1986 Ontario Building Code.

2. Separate the exit stairway leading from the basement floor area with fire separations having a minimum 30-minute fire resistance rating and provide a door at the top of the exit stairs having a minimum 20-minute fire protection rating and equipped with a self-closing device or alternatively discontinue the provision of sleeping accommodations in the basement floor area.

3. Emergency lighting to be provided in corridors and stairways with minimum illumination levels of 10 lux for direction of 30 minutes.

4. Install a fire alarm system in accordance with Articles 9.10, 17.5 and 9.10.17.11 of the 1986 Ontario Building Code and install smoke alarms that are installed and interconnected so that the activation of any smoke alarm will sound a similar signal in each of the interconnected devices, or fire alarm system smoke detectors installed on the ceiling of each floor adjacent to each stairway, and on the ceiling in the basement adjacent to each stairway. Smoke alarms referred to above shall be installed on the ceiling in the corridor of each floor adjacent to each stairway and on the ceiling in the basement adjacent to each stairway and be on a separate circuit with no disconnect switch between the overcurrent device and the smoke alarms and employ devices and an interconnected installation that are listed.

5. Install exit signs along the means of egress so that the direction of exit travel is apparent to the occupants. Exit signage shall be illuminated internally or externally as appropriate for the sign's design.

13On examination in chief, Inspector Vasko explained that he ordered the various action items set out above to ensure fire safety. While he recognized that Section 9, Division B of the Fire Code and those sections dealing with boarding, lodging and rooming houses do not directly apply to the properties at issue on this appeal (because they are newer builds), he was nonetheless guided by the minimal requirements set out in the Fire Code in crafting the various action items.

The Powers of the Commission on Appeal

14Pursuant to subsection 26(6) of the Act, the Commission may confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.

ISSUES & ANALYSIS

15The main issue on this appeal is whether the action items ordered by the Respondent in the inspection orders before the Commission are necessary to ensure fire safety, in light of the factual basis on which the actions were ordered. Central to this issue is whether the Appellant is operating the properties as boarding, lodging or rooming houses and, if so, whether the existing circumstances at each home provide an acceptable level of fire safety.

16In considering whether it was appropriate for the Respondent to treat the Appellant's properties as boarding, lodging or rooming houses, the Commission was guided by its previous decisions and a number of court cases which set out a number of facts to consider when assessing whether a building is a single dwelling unit or a boarding, lodging or rooming house:¹

a. Individual Leases/Contracts: Each resident is an employee of the Appellant or its related corporation, UPACK. Each resident/employee is provided with living accommodations and meals as a term of their employment. The length of the specific occupancy, the start and end date of the occupancy is different for each resident. There is no specific relationship between the terms of occupancy for each resident. The properties are operated under multiple, rather than a single tenancy.

b. How rent is paid: Rent is not paid. The residents work for the Appellant and are provided with room and board in exchange.

c. Furnishings: The Appellant provides its residents with furnishings.

d. How utilities are paid: The Appellant arranges and pays for all utilities.

e. Control over activities and decision-making: The Appellant determines who resides at which address as well as the length of the occupancy (which is dependent on the resident's employment). The evidence presented also confirmed that, except for a few family members who work for the Appellant, the residents have no familial connection to each other. The numbers and identities of the residents fluctuates based on the Appellant's needs.

f. Voluntariness of Possession: Each resident's tenancy is contingent entirely on their employment with the Appellant or UPACK. As such, the tenancies are not voluntary.

17The Commission is satisfied that in the circumstances, the Appellant is operating the properties as boarding, lodging or rooming houses. The homes are not being used as single dwelling units, as intended. While the number of residents appears to have changed from the date of the inspections to the date of the hearing, the Commission finds that the properties continue to be used to house multiple residents, who, save for a few exceptions where family members are employees of the Appellant, have no connection to one another other than their employment with the Appellant or UPACK.

18Having found that the Appellant is using the properties as boarding, lodging or rooming houses, the Commission must still consider whether the action items orders are necessary to ensure fire safety.

Are the action items ordered necessary to ensure fire safety?

19Under section 18 of the Act, 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."

20The Commission is satisfied that based on the agreed upon facts and the photographic evidence of the various living arrangements at the Appellant's properties, Inspector Vasko was correct to conclude that there were serious fire safety concerns raised by the conditions. At 367 Ellesmere Avenue, for example, the Inspector explained that he observed cooking operations consisting of woks fueled by a single, unsecured 100lbs propane cylinder that was stored in the kitchen area. The Inspector also observed additional propane cylinders stored in the garage, which appeared to be a space used by the residents to smoke cigarettes. None of this evidence was contradicted by the Appellant.

21Inspector Vasko also noted that in many of the sleeping areas (which included the basement in each home), there were mattresses lined up on the floor with no space between them. The Inspector described that a mattress is a significant combustible, because a small burn (from a cigarette butt for example) can smolder for several hours before the mattress ultimately ignites. Again, none of this evidence was contradicted.

22The Inspector also noted that given the number of people sleeping in various locations throughout the house, there was a serious risk that in the event of a fire, it would be difficult for emergency responders to safely locate and remove all the residents. The living arrangements and the scarcity of exits pose a serious risk to those living in the homes, as well as to emergency responders who may be required to attempt a rescue in the event of fire. The Inspector also explained that given English was not the first language of the Appellant's employees, there was an even greater risk that rescue efforts could be complicated given the difficulty residents may have with communicating with the emergency responders.

23The Commission notes that the Appellant has taken steps to address many of the Inspector's most serious concerns, including removing combustibles in the kitchen areas and ensuring that there are no residents sleeping in the basement. However, the Appellant did concede that, at least with respect to the properties in which UPACK employees reside, there remained some ongoing concerns around the kitchen area at the time of the hearing.

24The Commission is satisfied that the action items ordered were necessary to ensure fire safety. Given the living arrangements, the lack of proper lighting, cooking spaces and emergency exits, it was appropriate for Inspector Vasko to make the orders presently before us.

25In the course of the hearing, the Appellant's representative noted that it had already complied with a number of the action items ordered and conceded that it was prepared to take steps to comply with several others. The Commission found such concession commendable and hopes that the Appellant will continue to work with the Respondent to ensure the safety of its residents.

CONCLUSION

26For these reasons, the appeal is dismissed and the orders made by Inspector Richard Vasko, on July 18, 2019, relating to five separate properties owned and operated by the Appellant, Realgoal Technology Inc., are confirmed with the following amendments:

i. Provide a second exit from the basement floor area to the outdoors at grade level or alternatively discontinue the provision of sleeping accommodations in the basement floor area. Acceptable exits shall be in conformation with Article 9.9.2.2 and 9.9.2.3 of the 1986 Building Code.

If the Appellant does not discontinue the provision of sleeping accommodations in the basement floor area, the action item must be completed within 4 months of the date of this decision.

ii. Separate the exit stairway leading from the basement floor area with fire separations having a minimum 30 minutes fire resistance rating and provide a door at the top of the exit stairs having a minimum 20 minute fire protection rating and equipped with a self-closing device or alternatively discontinue the provision of sleeping accommodations in the basement floor area.

If the Appellant does not discontinue the provision of sleeping accommodations in the basement floor area, the action item must be completed within 4 months of the date of this decision.

iii. Emergency lighting to be provided in corridors and stairways with minimum illumination levels of 10 lux for direction of 30 minutes.²

The action item must be completed within 45 days of the date of this decision.

iv. Where the original order requires the installation of a fire alarm system, the Appellant is required to install a fire alarm system in accordance with Articles 9.10, 17.5 and 9.10.17.11 of the 1986 Ontario Building Code and install smoke alarms that are installed and interconnected so that the activation of any smoke alarm will sound a similar signal in each of the interconnected devices, or fire alarm system smoke detectors installed on the ceiling of each floor adjacent to each stairway, and on the ceiling in the basement adjacent to each stairway. Smoke alarms referred to above shall be installed on the ceiling in the corridor of each floor adjacent to each stairway and on the ceiling in the basement adjacent to each stairway and be on a separate circuit with no disconnect switch between the overcurrent device and the smoke alarms and employ devices and an interconnected installation that are listed.

If the Appellant does not discontinue the provision of sleeping accommodations in the basement floor area, the action item must be completed within 4 months of the release date of this amended decision.

27The action item must be completed within 2 months of the date of this decision.

i. Install exit signs along the means of egress so that the direction of exit travel is apparent to the occupants. Exit signage shall be illuminated internally or externally as appropriate for the sign's design.³

The action item must be completed within 45 days of the date of this decision.

ORDER

28The Fire Safety Commission confirms the requirements set out in the Inspection Orders, with the amendments as set out above.

Original Release Date: December 23, 2019

Amended Release Date: February 24, 2020

Luisa Ritacca

Poeme Manigat

Lyndra Griffith

Footnotes

1. 1Good v. Waterloo (City), 2004 CanLII 23037 (ONCA); 2161907 Ontario Inc. v. City of St. Catherines et al., 2010 ONSC 4548; Lakelee Orchards Limited v. Lincoln Fire Rescue and Emergency Services, 2019 ONFSC 8
2. 2The Appellant indicated that it was prepared to take this step.
3. 3The Appellant indicated that it was prepared to take this step