Toronto Fire Services v. 570624 Ontario Incorporated, 2020 ONFSC 2

Toronto Fire Services v. 570624 Ontario Incorporated

Citation: Toronto Fire Services v. 570624 Ontario Incorporated, 2020 ONFSC 2

Date: 2020-03-13

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

Between:

Toronto Fire Services Appellant

and

570624 Ontario Incorporated Respondent

DECISION AND ORDER

Panel: John Kromkamp, Jennifer Friedland and Susan Clarke

Appearances:

For the Appellant: Emma Luca, Counsel

For the respondent: Michael Wong, Philip Wong and Shirley Wong, Directors of 570624 Ontario Incorporated

Place and date of Hearing:

Toronto, Ontario February 7, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW:

1This decision relates to an appeal brought by Toronto Fire Services (TFS) from a decision (the Review Decision) dated September 11, 2019, made by Gord Yoshida, the delegated official acting for the Fire Marshal. The Review Decision concerns an Inspection Order (the Order) made by Inspector Michael Hassan from Toronto Fire Services on November 28, 2018.

2The Order was issued to the respondent, 570624 Ontario Incorporated, owner of the subject property, a three-storey detached multi-unit residential building with basement. The work ordered was to replace identified windows in the three units in 144A Highbourne Rd. and in the three units in 144 Highbourne Rd. on the north and south sides of the building. The TFS required the work on the basis that those windows were located in an area that would expose both the third-floor external areas of refuge and emergency responders to fire.

3The owner appealed the Order to the Fire Marshal on the basis that the two areas of refuge were protected with a system recommended and approved by Toronto Fire Services in 2002.

4The Fire Marshal rescinded the Order. The Fire Marshal reasoned that the balconies were part of an “approved alternative” in lieu of a second exit from the respective third storey units in each triplex unit. The Fire Marshal also reasoned that the balcony protection was approved by the fire department as an “acceptable alternative” in 2003, and the Inspector had not demonstrated a fire safety risk not already considered when the “approved alternative” was originally accepted.

5The issue before the Commission in considering the TFS’ appeal of the Review Decision is whether the measures in the Order are necessary to ensure fire safety. Based on the evidence and submissions, we find that some of those measures are necessary to ensure fire safety, specifically with respect to the third-floor openings. The Commission amends the Fire Marshal’s Review Decision as set out in the Order below.

BACKGROUND:

December 20, 2017 - Fire Inspection

6The Commission heard from TFS Inspector Hassan, who conducted an initial inspection of the premises on December 20, 2017. His description of the premises is as follows, and is not in dispute:

• The building is a registered three-storey plus basement “6-plex”.
• The building layout is two semi-detached triplexes with 144 Highbourne Rd to the south and 144A Highbourne Rd to the north.
• 144 and 144A each has:
  • a residential unit on each of floor 1, 2, and 3;
  • an exit stairwell that serves only the 1st and 2nd floor units, that exits to the front of the building;
  • an interior exit stairwell on the side of the building, leading from grade and serving all three floors; and
  • A balcony on the 3rd floor accessed through a casement window.

7The Inspector noted that Section 9.5, Division B of the Ontario Fire Code (OFC), O. Reg. 213/07 as amended would apply to the building.

8Following the inspection, a Notice of Violation was issued to the owner identifying various corrective actions required for fire safety. The Inspector acknowledged that the owner effectively corrected every such item other than the issue in dispute on this appeal which relates to the balconies and the windows surrounding them.

The Balconies

9In 1984, Toronto Building Department (TBD) issued a building permit to convert the existing double duplex into a double triplex. This conversion required the addition of a second exit to serve each of the third-floor dwelling units.

10The balconies on the third floor of either side of this six-plex were approved by the TBD as a compliance alternative¹ under Part 11 Renovations of the Ontario Building Code (OBC) to a list of acceptable exit types described in subsection 9.9.2. These types of balconies are sometimes referred to as “screaming balconies” so-named, presumably, because they are an area of refuge from which an occupant could scream for help in case of fire and wait for rescue. The TBD’s approval of the compliance alternative specifically notes areas of refuge are acceptable where fire rescue is possible.

11Sometime in 2001, a TFS Inspector advised the Directors of 570624 Ontario Incorporated that they needed to provide protection of the exposing windows, that is, the windows beneath the balcony, but offered an “alternative compliance”² option of reinforcing the balconies with fire grade DuraSystem. The owner complied with this option, and TFS issued a letter in 2003 approving the implementation of the alternative compliance, and again in 2003 stating that the building was in compliance with Ontario Regulation 388/97 following a fire inspection (Ontario Fire Code - Retrofit).

12The view of the TFS, at the time of Inspector Hassan’s inspection in 2017, was that the “alternative compliance” previously approved in 2002 and 2003 was no longer sufficient. Ontario Fire Code Article 9.5.3.7. was amended in 2007 to reflect that window openings within the zone described around fire escapes should be protected, in addition to the doorways originally captured. The Inspector identified the balconies as a fire escape, which required the openings in the surrounding zone to be protected. The risks of failing to do so were now known according to the evidence of Inspector Hassan. He cited a fire in a Toronto building in which occupants were exposed to fire from window openings while escaping down a fire escape, and died.

13The Inspector, and TFS engineer Yosh Imahori both testified about a similar concern with respect to the balconies. In case of fire, an occupant who could not access the main stairwell, would have to escape to the balcony as an area of refuge while awaiting rescue. Yet while awaiting rescue, they would face jeopardy from smoke, fire, and explosion from window openings surrounding the balcony. The TFS found that the reinforced balcony was insufficient to protect against this risk. Further, with respect to the window leading out to the balcony, which was not fire protected, there was no protection at all. Inspector Hassan and Engineer Imahori both also identified risk to the fire rescue personnel who would be exposed by window openings outside the “zone” while conducting rescue by ladder from the ground.

14The owner declined to comply with the Notice of Violation related to the balconies. A further inspection was conducted on January 31, 2018 and an Inspection Order followed.

March 12, 2018 - Inspection Order

15As a result of the owner declining to correct the issue relating to openings around the balconies, the TFS issued an Inspection Order on March 12, 2018 pursuant to 21 (1)(f) of the Fire Protection and Prevention Act, 1997 (FPPA) for what the Inspector believed to be a violation of Article 9.5.3.7. of the Ontario Fire Code (OFC). The Order required the owner to protect window openings accessing the area of refuge “screaming balconies”, and those windows exposing the balconies … in accordance with Article 9.5.3.7., Division B of the OFC which relates to fire escapes. A compliance date of May 21, 2018 was ordered.

October 5, 2018 - Fire Marshal’s Decision

16The owner requested a review of the Inspection Order by the Fire Marshal pursuant to s. 25 of the FPPA.

17On October 5, 2018, the Fire Marshal’s Delegate (Delegate) rescinded the Order on the basis that the protected balcony was installed as an approved alternative³ in lieu of second exits from the respective third storey units in each triplex unit, as noted in “9.5 Audit #3575, dated September 2, 2003”. He stated that the Inspector did not demonstrate that the windows identified are within the protected openings zone, and that Article 9.5.3.7. does not apply to balconies as they are not fire escapes. He further noted that protecting rescue personnel using ladders in front of unprotected window openings was not a factor in the initial design review for the “approved alternative”, and that the DuraSystem paneling in the “approved alternative” provides a 20-minute fire-protection rating to the balcony in lieu of a 20-minute fire-protection rating to the window openings beneath the balconies. Additional comments noted that while unrated window openings may pose a concern, the balconies should only be used in the event that occupants cannot access the main exit.

November 28, 2018 - Inspection Order

18On November 28, 2018, Inspector Hassan attended the building and issued a new Order addressing the same concern. This is the order at issue on this appeal. The order was based on clause 21(1)(f) of FPPA. This provision allows an inspector who has carried out an inspection 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.

19Inspector Hassan testified that TFS chose to issue a new Order instead of appealing the Fire Marshal’s decision, because the initial order was not technically correct. The new Order used the same wording as found in Article 9.5.3.7. relating to fire escapes but without reference to it. The order required the owner to:

1. Replace the living room window of Unit 144A-3, kitchen window of Unit 144-3, and the east bedroom windows of Units 144A-1, 144A-2, 144-1 and 144-2 with:

a. closures having a fire-protection rating not less than 20 minutes and that are fixed shut or arranged to close automatically upon the operation of a fusible link,

b. wired glass screens set in fixed steel frames,

c. glass block, or

d. listed steel shutters arranged to close automatically upon the operation of a fusible link.

2. Replace the west bedroom window of Units 144A-1, 144A-2, 144-1 and 144-2 with:

a. closures having a fire-protection rating not less than 20 minutes and that are fixed shut or arranged to close automatically upon the operation of a fusible link,

b. wired glass screens set in fixed steel frames,

c. glass block, or

d. listed steel shutters arranged to close automatically upon the operation of a fusible link.

A compliance date of January 15, 2018 was ordered.

September 11, 2019 - Fire Marshal’s Decision

20The owner requested a review of this Inspection Order as well. Various documents were provided to the Fire Marshal in support of the parties’ positions, including:

• TFS Letter dated January 4, 2002 indicating the underside of the balconies and support brackets were protected in accordance with DuraSystems’ installation instructions would be acceptable to the department as the “alternative compliance” (see foot note 3) keeps the life safety measure within the intent of the Fire Code”; and
• TFS Letter dated September 2, 2003 indicating the subject property was found to be in compliance with Ontario Regulation 388/97 following a fire inspection.

21On September 11, 2019, the Delegate rescinded the Order on the basis that the two balconies were part of an approved alternative that was accepted by TFS on January 4, 2002, and that the Inspector had not demonstrated a fire safety risk not already considered in the acceptance of the approved alternative.

September 25, 2019 - Appeal by Toronto Fire Services to the Fire Safety Commission

22On September 25, 2019, TFS appealed the Fire Marshal’s Review Decision to the Commission on the basis that:

The letter dated September 2, 2003 and the alternative solution⁴ previously accepted was considering the requirements of Ontario Regulation 388/97. TFS is of the opinion that the building is no longer in compliance as the regulation has been updated, to Ontario Regulation 213/07. TFS is of the opinion that under the new requirements, in the event of a fire, if the occupant uses the existing area of refuge, there is an unacceptable risk of serious injury or death. There is also a risk to responding emergency personnel of serious injury.

The positions of the parties

23In her closing argument, TFS counsel acknowledged the earlier TFS approvals and that it is unknown what factors were considered in the review, but notes that Article 9.5.3.7 of the OFC, relating to fire escapes, was amended in the 2007 edition to reflect that window openings within the zone described should be protected in addition to the doorways originally captured. She noted that laws change as does fire safety knowledge, and that fire safety is not something that should be frozen in time, asking the Commission not to ignore the real fire safety risk.

24The owner asked the Commission to uphold the Fire Marshal’s Decision to rescind the Order, twice. The Directors noted that they had provided protection to the balconies in lieu of window protection below at the recommendation and approval of TFS in 2002 and 2003 respectively, and produced letters as evidence. They added that the options provided in Article 9.5.3.7. were not practical as two options would not allow the windows to open for escape (wired glass, glass block), one was not aesthetically pleasing (steel shutters), and closures (doors) did not readily come in the appropriate sizes.

25Engineer Yoshida noted that rated closures could be ordered in custom sizes, acknowledging that wired glass screens and glass block were not viable options as an access to exit.

ISSUES & ANALYSIS:

Should the balconies, as areas of refuge, be afforded the same degree of protection as a fire escape?

26The distinction between a “screaming balcony” and a fire escape, is that occupants of the balcony must wait to be rescued, whereas a fire escape affords occupants immediate exit to grade. Waiting on a balcony for rescue therefore puts the occupants at greater risk based on the additional time they must wait for rescue.

27Evidence submitted by TFS indicates that a building permit was issued in 1984 to convert the building from two duplexes to two triplexes, making the third floor into separate dwelling units. Records indicate that a “fire escape balcony” was accepted by the Toronto Building Department (as a “compliance alternative” [see footnote 1] to the second exit required from the third-floor dwelling units).

28A review of the Fire Code indicates that a building or part of a building should not be subject to retrofit where it satisfies the Building Code⁵. When questioned, it appears that TFS had not considered this exemption (Sentence 9.1.2.2.(2)), and considered only the retrofit requirements in Section 9.5. While the protection of the windows was ordered under FPPA clause 21(1)(f) for anything respecting fire safety, we feel it is important to take this exemption under consideration. Had the Delegate not made the distinction that Article 9.5.3.7. did not apply to balconies, the exemption in Sentence 9.1.2.2.(2) would be clear.

29We have no reason to doubt that the third storey dwelling units were constructed in compliance with the Building Code, and that the balconies were compliance alternatives to the required exits, as a building permit was clearly issued for the renovation in 1984.

30Although the Inspection Order was issued under FPPA s. 21(f), it is essentially requiring the owners to retrofit based on the contention that the balconies are in fact a fire escape. The owner is correct that it should not have to do this, as the balconies were previously approved by the building department in 1984, and the fire department approved the protection in 2002 and 2003.

31Nonetheless, FPPA s. 21(f) is broad enough to capture anything required for fire safety in the building. Therefore, turning directly to the issue of fire safety, regardless of the application of prior approvals or exemptions, we note the following:

a. The primary exit, that of the interior stair, is expected to be used in all cases of fire emergency except where it is compromised by fire or inaccessible. Should the areas of refuge – the balconies – be accessed, the following scenarios could arise:

• Fire within the third-floor dwelling unit - occupant safety on the balcony would be compromised should “flashover”⁶ occur from within the adjacent dwelling unit. Engineer Imahori testified this could occur in as little as three minutes.
• Fire within first or second floor dwelling units - occupant safety would be compromised either by fire and/or smoke from windows directly below the balcony. The Inspector testified that while the balcony affords some degree of protection, it does not halt the path of fire and smoke from navigating around the edges of the balcony. Because of this ability of fire and smoke to spread, the OFC requires windows within the “zone” to also be protected. Despite this, in the second Order, the Inspector did not list the windows in the side exit stair as they were considered not to pose a risk of fire.

32We accept TFS’ position regarding the exposure of occupants on the balconies from fire in the third-floor dwelling units.

33We accept the other fire scenarios, but note that where the fire is in a different dwelling unit, the primary exit is more likely to be used by occupants of the third-floor dwelling units. The exits are constructed and maintained in accordance with the OFC, and therefore provide a protected means of egress. Further, the building is equipped with a fire alarm system, providing early warning and the ability to evacuate before the exit could be compromised by fire.

34In considering the evidence, the law outlined above, and the potential scenarios, we conclude that the living room window of Unit 144A-3, and the kitchen window of Unit 144-3 should be protected as described in the Order.

35Mr. Wong, a Director of the corporate owner, described the difficulties posed in sourcing windows that would comply with the Order, and issues compliance would present with ventilation. However, we also heard from Engineer Imahori that TFS is willing to consider other options. TFS counsel advised that the process of submitting Alternative Solutions⁷ described in OFC Subsection 1.3.2., Division must be followed.

36Throughout this case the terminology used has been confusing, primarily because TBD accepted the balconies as a “compliance alternative” to OBC requirements for second exits. Later, TFS accepted the protection of the balconies as permitted under OFC Article 9.1.1.3., calling it “alternative compliance”. TFS counsel has stated that if the owner wishes to submit a design in lieu of meeting the strict wording in the Order, that an “Alternative Solution” (AS) must be used. This latter mechanism cannot be used, as AS relate to violation of the OFC.

37We conclude that the owner should be permitted the option of submitting alternative designs in the same manner as an “Alternative Solution”. This is both because TFS has indicated a willingness to consider this, and because the process of an Order related to an OFC violation would afford such a process. It does not seem fair to limit the owner opportunities to resolve a design issue provided it leads to a similar outcome of fire safety.

38We conclude that the other windows described in the Order are not required to be protected. The following factors support our finding:

• The fire exits are constructed and maintained in accordance with the OFC, meaning that they provide a safe evacuation route should a fire occur on any other floor;
• The building is equipped with a fire alarm system, and we are informed this exceeds the requirements of Section 9.5, meaning occupants of the third-floor dwelling units are afforded early warning and can evacuate quickly;
• The building has a fire safety plan, describing evacuation procedures;
• The balconies were approved by the building department in a permit issued for construction in the mid-1980’s. At that time, the balconies were accepted without protection in lieu of another option which included a fire escape with adjacent windows protected; and
• The TFS later required protection of the windows, but approved balcony protection as an alternative. While we agree that this may not completely protect occupants on the balcony, it does afford a degree of protection until emergency responders arrive.

Should the original approval issued by Toronto Fire Services on January 4, 2002 still apply?

39We accept that the fire department approval issued on January 4, 2002 was based on the 1997 OFC, and therefore did not consider protection of adjacent windows within the “zone” described in Article 9.5.3.7., which was later added in the 2007 edition.

40We find that while TFS may have a mechanism to withdraw an approval based on changes to the Fire Code, OFC Sentence 9.1.2.2.(2), Division B makes it clear that the building department approval in the mid-1980’s still applies and overrides Retrofit and, by extension, an Order based on the application of Retrofit. The Notice of Violation issued on December 20, 2017 in fact identified the lack of protection citing Article 9.5.3.7. in the 1997 Fire Code edition.

41While the Order (November 28, 2018) was issued pursuant to FPPA s. 21(1)(f), to do anything respecting fire safety, the wording in the Order is identical to that in OFC Article 9.5.3.7. We are satisfied that the building department approval of the compliance alternative overrides the Retrofit requirement, as described in OFC Sentence 9.1.2.2.(2).

Should ladders erected by emergency responders, be protected from fire exposure?

42We are not convinced that rescue ladders are part of a fire escape. Further, no evidence was presented to indicate that protection of fire rescue ladders was a concern specific to this building.

43For these reasons, we conclude that the ladders need not be protected from fire exposure.

CONCLUSION AND ORDER:

1For the reasons set out above, the Fire Safety Commission amends the Review Decision, made on September 11, 2019 as follows:

Item 1: Replace the living room window of Unit 144A-3, and the kitchen window of Unit 144-3 with:

a. Closures having a fire-protection rating not less than 20 min. and that are arranged to close automatically upon the operation of a fusible link, or

b. Listed steel shutters arranged to close automatically upon the operation of a fusible link.

2The work in Item 1 shall be completed by August 31, 2020 unless otherwise agreed to by the parties in writing.

Compliance Option:

3Item 1 may be considered to have been complied with, if a compliance option is submitted in the same way as for:

• Alternative Solutions, as described in Subsection 1.2.2., Division A and Subsection 1.3.2., Division C

4If a compliance option is pursued:

• It shall be submitted to TFS for review within 45 days of this Decision; and

• Review and appeal provisions shall be as described in the references in paragraph [3].

• If it is approved, it shall be implemented by August 31, 2020 unless otherwise agreed to by the parties in writing.

Released: March 13, 2020

___________________________ John Kromkamp

____________________________ Jennifer Friedland

____________________________ Susan Clarke

Footnotes

1. 1A compliance alternative shown in Table 11.5.1.1.C is permitted by the Building Code (OBC) to be substituted for a requirement contained in Part 9 for low-rise residential buildings. A compliance alternative is defined in the OBC as “a substitute for a requirement in another Part of Division B that is listed in Part 10 or 11 of Division B, and C.A. has a corresponding meaning.
2. 2“Alternative compliance” was the terminology used by TFS Inspector in his January 4, 2002 letter. OFC Article 9.1.1.3., Division B permits a Retrofit requirement to be considered in compliance if “materials, equipment or systems are approved (by the Chief Fire Official) if it is his/her opinion that it will provide protection for life safety similar to the protection provided by compliance with the requirement.”
3. 3The TFS previously approved the protection of the balconies as an “approved alternative” under OFC Article 9.1.1.3. The balcony was installed earlier, under a building permit.
4. 4This term was used in the appeal to the Fire Safety Commission, however it should more correctly have read “approved alternative” as stated by the Fire Marshal in the September 11, 2019 Decision, and referenced in OFC Article 9.1.1.3.
5. 5The Building Code applies to new construction and to renovations. The Fire Code applies to existing buildings, and the purpose of Retrofit is to upgrade existing building through retrofit. Each Section within Part 9 Retrofit references an edition of the Building Code that building must be retrofitted to. Because of this, Sentence 9.1.2.2.(2) exempts buildings that already comply with the Building Code, from the need to retrofit. A building permit can not be issued unless the construction is considered to comply with the Building Code requirements.
6. 6National Fire Protection Association standard NFPA 921 defines flashover as “A transitional phase in the development of a compartment fire in which surfaces exposed to thermal radiation reach its ignition temperature more or less simultaneously and fire spreads rapidly throughout the space resulting in full room involvement or total involvement of the compartment”
7. 7Alternative Solution is defined in the Fire Code as “a substitute for an acceptable solution”. It is important to remember that the Order is not referencing an acceptable solution, which is defined as “a requirement set out in Division B”, such as Article 9.5.3.7., Division B.