Helen Pavlides v. City of Pickering Fire Services, 2020 ONFSC 4

Helen Pavlides v. City of Pickering Fire Services, 2020 ONFSC 4

Citation: Helen Pavlides v. City of Pickering Fire Services, 2020 ONFSC 4

Date: 2020-06-01

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

Between:

Helen Pavlides Appellant

and

City of Pickering Fire Services Respondent

DECISION AND ORDER

Panel: Stephanie Kepman, Poeme Manigat, and Priscilla Reeve

Appearances:

For the Appellant: Ralton Myers, Representative For the Respondent: Julie Ineson, City of Pickering Fire Inspector Steve Amaral, City of Pickering Building Inspector Stuart Caulfield, City of Pickering Building Inspector

Place and Date of Hearing:

Toronto, Ontario March 10, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1This is a decision on an appeal brought by Helen Pavlides ("the Appellant"). The Appellant owns a residential property at 596 Amaretto Avenue in Pickering, Ontario (the "Residence"). She rents her two-story home to Ralton Myers, whom she has authorized to appear on her behalf in this proceeding as her representative.

2Inspector Julie Ineson (the "Inspector") inspected the Residence on February 8, 2019, which resulted in the Residence being deemed to be in contravention of the Fire Code¹ and which produced an inspection order on February 22, 2019 (the "Order"). The Order noted that the Residence was built to be used as a single-family dwelling. But, as of the date of the inspection, the Appellant was renting out the basement as a separate unit. The Order directed the Appellant to either revert the Residence back to a single-family dwelling or obtain a building permit and carry out alterations required by the permit to change the building to a two-unit dwelling.

3The Appellant submitted a written request to the Fire Marshal for a review of the Inspection Order. The Fire Marshal's decision, dated October 29, 2019, confirmed the Order of Inspector Ineson and ordered the Appellant to either revert the residence back to a single-family dwelling or obtain a building permit to change the building to a two-unit dwelling.

4The Appellant now appeals the Fire Marshal's review decision. She submits to the Fire Safety Commission ("the Commission") that she has made changes to the Residence that ensure the Residence does not have "an increased risk to safety². Therefore, she argues that the review decision confirming the Inspector's Order should be set aside.

ISSUE

5The issue before the Commission is whether the Fire Marshal's review decision confirming the Order should be set aside on the basis that the modifications the Appellant made to the Residence are in compliance with section 2.1.2.2 of the Fire Code and do not pose a hazard or fire safety risk."

RESULT

6Based on the in-person evidence and submissions, the Commission finds that the modifications made to the Residence by the Appellant do not satisfy the requirements of section 2.1.2.2 of the Fire Code. Therefore, the Residence remains a hazard, as articulated in both the Fire Marshal's review decision and the Inspector's Order. Since the requirements of the Order have not been met, the Fire Code remains contravened. The Commission confirms the decision of the Fire Marshal upon review of the Inspector's Order.

7The Inspector's Order requires the Appellant to either revert the Residence back to a single-family dwelling or obtain a building permit to change the building to a two-unit dwelling and carry out the alterations required by the building permit.

BACKGROUND

8By way of background, Mr. Myers was residing in the Residence and Mr. Myers was renting out the basement to a tenant. The City of Pickering's Fire Services internal log records indicate that the basement tenant contacted Pickering by-law staff on approximately December 3, 2018 for on-street parking consideration.

9A by-law officer discovered that the basement apartment of the Residence was not registered with the City of Pickering as a separate dwelling. The by-law officer believed that because the basement apartment was unregistered, it was possibly in contravention of the Fire Protection and Prevention Act³ (the "Act"). Therefore, the by-law office referred the matter to Pickering Fire Services.

10On February 4, 2019, Pickering Fire Services informed Mr. Myers of its intention to conduct a fire inspection of the Residence.

February 8, 2019 – First Fire Inspection

11The Commission heard oral submissions from the Inspector Julie Ineson. She indicated that she conducted an inspection of the Residence on February 8, 2019 pursuant to section 19(2) of the Act and served the Appellant with the Order on February 22, 2019. Inspector Ineson's Order was issued under the authority of section 21(1)(g) of the Act to remedy a contravention of the Fire Code.

12In the Order, Inspector Ineson's description of the Residence reads as follows:

• The Residence is a detached home designed as a single-family dwelling unit;
• There were two separate access points to each separate unit;
• The basement unit contained cooking, eating, living, sleeping and sanitary facilities;
• The Residence's original design was for a single-dwelling unit, while the Residence is currently being used as a two-dwelling unit;
• The Residence was built after July 14, 1994; and
• The Residence contained two existing residential units at the time of inspection on February 8, 2019.

13The Inspector noted that Section 2.1.2.2 of the Fire Code applied to the Residence. This section states:

Activities that create a hazard and that are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard.

14Inspector Ineson's Order dated February 22, 2019 noted that the current use of the Residence is not allowed for in the original design and that the Appellant has not made approved provisions to control the fire hazard in accordance with the Fire Code. The Order did not specify the necessary approved provisions. Rather, the Order directed the Appellant to either: (a) revert the Residence back to a single-family dwelling; or (b) obtain a building permit to change the Residence to a two-unit dwelling and carry out alterations as required by the building permit.

15Further evidence and submissions from the Fire Inspector indicate that in order for the Appellant to obtain a City of Pickering building permit, she would need to enlarge the driveway of the Residence. The Order required that the Appellant complete the required modifications, of obtaining a building permit or reverting the Residence to its original design by March 22, 2019.

16On April 17, 2019, the Appellant requested a that the Fire Marshal review Inspector Ineson's Order on the basis that the Appellant:

• Was requesting additional time to complete the work in the Order;
• That she would be applying for the Building Permit on July 1, 2019;
• That the Order was not personally served to the Appellant;
• That the Appellant was in the United States when the Order was sent and that she was not aware of it; and
• That she intended to fully comply with the Order in a timely manner.

17On October 29, 2019, the Fire Marshal upheld Inspector's Ineson's Order. The Fire Marshal reasoned that it was reasonable to apply section 2.1.2.2 of the Fire Code to this situation since there was an increased risk to life safety when a residence that was originally designed as a single-family dwelling is converted to a two-unit dwelling without the required building permit. The Fire Marshal extended the timeline for the Appellant to obtain the required building permit t and/or revert the Residence back to a single-family dwelling by December 29, 2019.

18The Appellant appealed to the Fire Safety Commission on November 26, 2019. A Case Conference was held on December 4, 2019 to try to resolve the issues in dispute or schedule a hearing. She appealed the Fire Marshal's decision on the grounds that since she had made modifications to the Residence, the Order should no longer stand.

January 7, 2020 – Second Fire Inspection

19Following the first Case Conference, the Appellant requested a subsequent inspection, which took place on January 7, 2020. This second inspection of the Residence was conducted by Inspector Ineson and another Inspector, Amanda Hill. Inspectors Ineson and Hill were also accompanied at the Residence by Stuart Caulfield, a City of Pickering Building Inspector.

20The Appellant requested this second inspection to demonstrate to the Inspectors that she had made changes to the Residence that would permit it to be safely used as two separate dwelling units. Though the Appellant did not specify the date or dates when these changes were made, they were done after the Fire Marshal's decision. These changes included:

• Creating separate entrances and closures;
• Meeting egress requirements;
• Installing alarms and carbon monoxide detectors;
• Meeting plumbing, heating and ventilation requirements;
• Offering to install sprinklers to the entire Residence;
• Installing a sprinkler system inside the furnace room;
• Installing fireproof drywall on all walls; and
• Removing the stove from the basement dwelling unit.

21The Appellant did not obtain any permits from the City of Pickering to make the above-noted changes to the Residence. The Respondent submitted to the Commission that even if these changes addressed some of the fire hazards in the home, these changes were not authorized by a building permit and may not have been done in compliance with the Fire Code. These changes also did not address the original intention of the Residence, and therefore, the Residence remained in contravention of the Fire Code by remaining a two-unit dwelling.

22The Commission notes that none of the changes made by the Appellant were specified in the Inspector's Order or in the Fire Marshal's review. Instead, both the Inspector and the Fire Marshal noted that the current use of the Residence is not allowed for in the original design and that approved provisions have not been made to control the hazard.

23The Commission takes notes that both the Inspector and the Fire Marshal stated that in order to control the hazard, the Appellant must either revert the residence back to its original intention of being a single-family dwelling or obtain a building permit and carry out the required alterations to change the building to a two-unit dwelling.

24According to the Respondent's log notes entered into evidence during the in-person hearing, the Appellant's representative, Mr. Myers, said that she is: "not able to get a building permit as she would need to make the driveway larger (per the building department)."⁴ The Representative told the Respondent during the inspection that this change would require six to eight months to complete as well as time to obtain the required funds. The Representative told the Inspector that she understood the process of obtaining a building permit, and hoped to begin doing so in the Spring of 2020, when she could do so.

25The size of the driveway was not specifically mentioned in the Inspector's Order or in the Fire Marshal's review decision. Rather, the Appellant's representative interpreted it as an impediment to the Appellant applying for the required building permit.

26Inspector Ineson asked the Appellant for written confirmation that she would maintain the Residence as a single-family dwelling and that the basement of the Residence would remain unoccupied until the Appellant received the proper permits and registration from the City of Pickering to allow Mr. Myers to rent it out to a tenant. Inspector Ineson noted that once the Appellant had sent said confirmation of obtaining the required building permit, as stated on her Order, the Inspection Order would be closed.

27The Appellant failed to provide any written confirmation regarding the Residence to the Inspector prior to the second Case Conference. The Parties attended a second Case Conference on February 5, 2020, where an in-person hearing was scheduled.

THE PARTIES' POSITIONS AT THE HEARING

28The Appellant's position is that she intends to make the Residence into a two-unit dwelling and has complied with the Inspector's Order by decreasing the fire risk, thereby making the Residence in compliance with the Fire Code. The Appellant's representative, Mr. Myers, would like to reside on the top floor of the Residence. Mr. Myers would rent out the basement unit to a tenant as a separate dwelling. The Appellant submits that there is not an increased risk to safety simply by renting out the basement unit without a building permit.

29The Appellant's representative advised the Commission at the hearing that the Appellant is not prepared to obtain a building permit to change the design of the Residence to a two-unit dwelling and carry out alterations required by a building permit. This is contrary to earlier statements made by the Appellant in her communications to the Inspector, as submitted in the Inspector's log notes.

30The Appellant did not provide the Commission with specific reasons for refusing to do so, however her representative did allude to the fact that the Appellant would have to expand the size of the current driveway of the Residence and was unwilling to do so.

31Instead, the Appellant believes that despite not obtaining a permit or registering the basement unit with the City of Pickering, the modifications that were made are sufficient to render the Residence compliant with the Fire Code.

32The Respondent's position is the same as that of the Order and the Fire Marshal's review decision. Namely, that for the Appellant's residence to comply with section 2.1.2.2 of the Fire Code, the Appellant must either (a) revert the Residence back to a single-family dwelling or (b) obtain a building permit to change the Residence to a two-unit dwelling and carry out alterations as required by the building permit.

33Though the Appellant has made some changes to the Residence in order to comply with the Fire Code, such as installing smoke detectors and creating means of egress, she did not obtain a City of Pickering building permit, which was the major issue Inspector Ineson had with the Residence being rented out as two separate units.

34Since the Residence was built after July 14, 1994, it is subject to the requirements of the Fire Code.⁵ The Respondent argues that the original intention and registration of the home was to be a single-dwelling residence. Therefore, any deviation from this intention, such as modifying the Residence's intention to be a multi-family unit dwelling, would be a contravention of the Fire Code and would require a building permit.

ANALYSIS

Is the Residence in contravention of the Fire Code?

35After considering the evidence and submissions presented by the parties, the Commission finds that the Appellant has not presented sufficient evidence or arguments that the Residence complies with the Fire Code, despite the above-mentioned modifications. The Commission acknowledges that the Appellant has made physical changes to ensure that the Residence is more physically safe in the event of a fire. However, both the Fire Inspector's Order and the Fire Marshal's review required the Appellant to either (a) revert the Residence back to a single-family dwelling or (b) obtain a building permit to change the Residence to a two-unit dwelling and carry out required alterations as required by the building permit. The Appellant has still not obtained a building permit, despite previously expressing an intention to do so.

36The Appellant submitted at the hearing that the Residence was in compliance with the "spirit" of the physical safety requirements of the Fire Code and therefore was not a fire hazard because of the above-mentioned modifications to the Residence. At the time of the hearing, the Appellant's representative confirmed that the Appellant had still has not obtained the required building permits to change the original design of the Residence from a single-family residence to a two-unit residence.

37The Commission finds that since the original design of the Residence is to be a single-family dwelling, and that the Appellant has not obtained the permits necessary to change the Residence into a two-unit dwelling, the Residence remains a fire hazard, as it is not in compliance with section 2.1.2.2 of the Fire Code, which states that activities that create a hazard and are not allowed for it's original design shall not be carried out unless approved provisions are made to control the hazard.

38Without obtaining a building permit or reverting the Residence to a single-family dwelling, as stated in Inspector Ineson's Order and the Fire Marshal's decision, the Fire Safety Commission has determined that the Applicant's Residence poses an increased risk to fire safety when used in a manner contrary to its original purpose. Furthermore, the Appellant has not provided sufficient reasons as to why she will not obtain the required building permit or revert the Residence to a single-family dwelling. Therefore, the Residence remains in contravention of section 2.1.2.2 of the Fire Code and the measures ordered under 21(1)(g) are necessary to ensure fire safety to remedy the contravention of the Fire Code.

CONCLUSION AND ORDER

39For the reasons set out above, the Commission confirms the Fire Marshal's decision, which upholds the Order made by Inspector Ineson.

40The Appellant must either: (a) revert the Residence back to a single-family dwelling; or (b) obtain a building permit to change the Residence to a two-unit dwelling and carry out required alterations as required by the building permit.

41The Commission is cognizant of the implications of the ongoingCOVID-19 pandemic. The Fire Marshal's review decision originally gave the Appellant two months to make the required changes. However, considering the current circumstances in Ontario, the Commission grants the Appellant until December 22, 2020, or six months, to either make the required changes or revert the home to its original intended use.

Released: June 1, 2020

___________________________ Stephanie Kepman

____________________________ Priscilla Reeve

____________________________ Poeme Manigat

Footnotes

1. 1O. Reg. 213/07: FIRE CODE
2. 2Notice of Appeal filed by Ralton Myers on behalf of the Appellant, dated November 15, 2019
3. 31997, S.O. 1997, c. 4
4. 4Exhibit 3, Page 4 of 7 of the City of Pickering's Fire Services Log Notes, dated January 7, 2020.
5. 5Section 9.8.1.2 of the Fire Code