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: Lincoln Fire Rescue and Emergency Service v. Marion Adams, 2020 ONFSC 3

Date: 2020-05-20

Application under section 33(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4

Between:

Lincoln Fire Rescue and Emergency Service Applicant

and

Marion Adams Respondent

REASONS FOR DECISION AND ORDER

Panel: Patricia McQuaid, Joanne Foot and Jennifer Friedland, Fire Safety Commission

Appearances:

For the Appellant: Terry Hill, Counsel For the Respondent: Colin Adams, Agent

Heard in writing: April 21, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, Lincoln Fire Rescue and Emergency Service (“Lincoln Fire”) has applied for an order under s. 33(1) of the Fire Protection and Prevention Act, 1997 (the “Act”) to authorize it to carry out work required by an Inspection Order issued to the respondent, Marion Adams, on July 3, 2019. Lincoln Fire is also requesting that the order direct that the work be carried out at Ms. Adams’ expense.

2The Inspection Order resulted from an inspection by Fire Prevention Officer Clark (“FPO Clark”) at Ms Adams’ home located at 4469 Timothy Lane in the Town of Lincoln. At the time of the inspection, FPO Clark observed a large amount of combustibles inside the home which created a fire safety risk to Ms Adams and any other occupant of the home as well as to neighbours in close proximity to the home. Further, the accumulation of combustible material would make access to and egress from the home difficult and/or delayed in the event of a fire or other emergency situation. The Inspection Order required that piled or loose combustible materials be kept to a maximum 2.5 feet in height in all areas; that aisles be kept to a minimum 2.5 feet in width to allow for egress in the event of a fire emergency; and that combustible materials be spaced a minimum of 18 inches from all ignition sources. The date for compliance was January 6, 2020.

3The Inspection Order was not appealed. FPO Clark attended at the home again on January 8, 2020 to follow up and met with Ms Adams but was not granted access to the home for a further inspection. At that time, Ms Adams stated that no work had been done to comply with the Inspection Order due to significant health issues that she was dealing with. As a result of that attendance, Lincoln Fire decided to pursue this application under s. 33 of the Act.

4At a case conference on April 14, 2020, the parties agreed to have this application proceed as a written hearing and have provided written submissions.

FACTS AND SUBMISSIONS

5The relevant facts are not in dispute. On March 3, 2020, Ms Adams informed the respondent that her son, Colin Adams, would be coming to her home on March 20 to clear the combustible material from her home. According to Mr. Adams, he did attend on or around that date and a substantial amount of material was removed and hallway access was improved. However, when FPO Clark subsequently attended to inspect on March 21, she was again denied entry by Ms Adams.

6In submissions, Lincoln Fire accepts that some material has been removed, but is unable to verify whether sufficient material has been removed to achieve compliance with the Inspection Order. It is therefore the applicant’s position that the fire safety risk continues. Mr. Adams acknowledges that more needs to be done. He has, in submissions, outlined a plan to bring his mother’s home into compliance quickly; specifically, he stated that he would rent a dumpster to get rid of some large items and would also rent a storage unit where other items can be moved for sorting at a later date. A storage unit would also allow his mother to access those items she may wish to keep. Mr. Adams also stated that his mother has agreed to this plan and is now getting community support which will assist with her various health issues and help ensure that there is no recurrence of this situation. He noted too that his mother’s health situation also means that she is less likely to have opportunity to accumulate more things in the future, mitigating future risk.

ANALYSIS

7Unfortunately, immediate implementation of the plan proposed by Mr. Adams is now delayed due to the Emergency Order issued on March 20, 2020 under the Emergency Management and Civil Protection Act. For example, this may impact his ability to enter his mother’s home or rent a storage unit. Mr. Adams has requested an extension of time; specifically, two weeks after the lifting of the Emergency Order, to bring his mother’s home into compliance.

8Section 33(4) of the Act states that the Commission may authorize the inspector to cause work to be done to comply with a valid inspection order if the person against whom the order has been issued has refused to comply, or is not complying or is not likely to comply with the Order promptly or competently and if we conclude that failure to do what is required would seriously endanger the health or safety of any person.

9Lincoln Fire did give six months for compliance in the Inspection Order. The seriousness of the fire safety risk is not in question, but the fact that a generous period of time was originally given does, at least, suggest, that it was not considered an immediate threat to health or safety. The fact that Lincoln Fire appeared to acknowledge Ms Adams’ life circumstances and was prepared to give her a long period of time to comply is to be commended. However, by making this application, they are clearly indicating that a state of noncompliance cannot continue.

10There is a credible explanation for the lack of action taken by Ms Adams in the fall of 2019 – her health issues. The submissions before us support a finding that there is now a bona fide intention to take action to comply with the Inspection Order, albeit delayed. Some efforts have already been made. Material has been removed and access and egress pathways have improved. The parties agree that more is required. In light of the facts before us, and with particular note, the plan proposed by Mr. Adams, we cannot at this point conclude that there is a refusal to comply or that Ms Adams is not likely to comply with the Inspection Order.

11Given the foregoing, we are prepared to extend to Ms Adams additional time to comply with the Inspection Order. Timing is contingent upon a lifting of the Emergency Order currently in place in Ontario and the stages by which restrictions are eased which would allow for Mr. Adams to enter his mother’s home and to access the storage facility close to her home. However, there is also a balance that must be struck in this situation, especially given how long this Inspection Order has been outstanding. The measures required in the Inspection Order are necessary for fire safety. Though we will grant additional time to comply, this is a finite time, after which Lincoln Fire will be authorized to complete the required work.

12As set out below, Ms Adams shall have 30 days after the lifting of restrictions contained in the government Emergency Order to comply with the Inspection Order. Though not forming part of our Order, it is incumbent upon Mr. Adams to contact Lincoln Fire by no later than the 30th day to advise them that the work has been completed on his mother’s behalf. We further recommend that he make himself available to attend at his mother’s home for the subsequent compliance inspection by representatives of Lincoln Fire in order to ensure that his mother allows them entry.

13The Fire Marshal, pursuant to s. 35 of the Act, may order Ms Adams to pay the costs of the work done in accordance with the authorization given in paragraph 14(b), below, though this does not form part of our Order.

ORDER

14Pursuant to s. 33(5) of the Act, the Commission has the authority to amend the Inspection Order. Therefore we order as follows:

(a) The Inspection Order issued on July 3, 2019 is amended to require compliance within 30 days of the lifting of restrictions contained in the Ontario Government Emergency Order which may prevent entry into Ms Adams home, or by July 2, 2020 whichever is earlier.

(b) If Ms Adams fails to comply with the timing set out in subparagraph (a) above, then Lincoln Fire shall be authorized to enter the home to do the work required by the Inspection Order, at Ms Adams’ expense.