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: Kitchener Fire Department v. Subramanian Ramamani and Mala Krishna, 2020 ONFSC 5
Date: 2020-06-10
Appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Kitchener Fire Department Appellant
and
Subramanian Ramamani and Mala Krishna Respondents
REASONS FOR DECISION AND ORDER
Panel: Patricia McQuaid, Harriet Lewis and Priscilla Reeve, Fire Safety Commission
Appearances:
For the Appellant: Lori Grant, Fire Prevention Officer
For the Respondents: Self-represented
Heard by way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Kitchener Fire Department (“KFD”) appealed the Review Order of the Fire Marshal dated December 13, 2019. In his decision, the Fire Marshal rescinded KFD’s Inspection Order made against Subramanian Ramamani and Mala Krishna, the respondents, who own the premises, a two storey single detached dwelling, located at 126 Doon Valley Drive in Kitchener.
2The Inspection Order resulted from an inspection by Fire Prevention Officer Lori Grant at the respondent’s premises on November 7, 2018. The Inspection Order was served on February 4, 2019. On the Inspection Order, Ms Grant noted that the property was originally built in 1985 as a two storey four bedroom house. It currently contains eight bedrooms: four on the second floor (as originally designed), two on the main floor and two in the basement. Ms Grant concluded that the house is being used a student lodging house and that methods of construction, means of egress, detection and Electrical Safety Code requirements may not be adequate for the current use, putting the students at risk. Citing s. 21(1)(f) of the Fire Protection and Prevention Act (the “Act”), she ordered that all bedrooms on the main floor and in the basement be removed and the original use of the space be resumed.
3The respondents requested a review of the Inspection Order, and as noted above, the result was that the Fire Marshal rescinded the Inspection Order. In reaching his decision, the Fire Marshal stated that the Inspection Order was deficient in that it lacked the requisite specificity and did not explain how compliance could be achieved through the work required by the Inspection Order. Further, the Fire Marshal, in his decision, stated that the house could be converted to a single dwelling unit with eight bedrooms and therefore it was unclear how the removal of bedrooms addresses a specific fire safety hazard. He noted that there is no requirement limiting the number of bedrooms in a unit. The Fire Marshal did not accept KFD’s submission that s. 9.3.1.1 of Division B of the Fire Code, which relates to use of the premises as a boarding, lodging and rooming house, is applicable.
4At a case conference on February 27, 2020, the parties agreed to have this appeal proceed as a written hearing. The parties’ written submissions were finalized on April 27, 2020. The respondents, by email dated April 27th, stated that they had no material to submit other than a submission regarding implementation of any orders should the Inspection Order be upheld.
RESULT
5The Commission rescinds the Review Order and amends the Inspection Order to require that the two basement bedrooms be removed. The reasons are as follows.
EVIDENCE AND ANALYSIS
Should the property be classified as a boarding, lodging and rooming house and therefore be subject to section 9.3 of the Fire Code, Division B?
6The issue central to this appeal is whether the house is being used as a lodging/boarding/rooming house and therefore is subject to s. 9.3.1.1 of the Fire Code.
7That this is now an eight bedroom dwelling is not in dispute. The respondents purchased the home in 2014 and state that at that time there were four bedrooms on the second floor and that one of the rooms on the main floor had been converted to a bedroom. After their purchase they applied, in 2014, for a building permit for construction of two bedrooms in the basement. The City of Kitchener approved the permit. In 2018, the respondents applied for another building permit for an existing bedroom on the main floor. Again it was approved. On both occasions, the respondents submitted their plans and described the premises as a ‘single detached dwelling’. We do not make a determination as to any attempt to mislead to the respondents’ description of the dwelling on the permit application, as the appellant suggested there may have been. From a structural perspective that is what it is. What is of concern to the Tribunal, is the use of the premises from a fire safety perspective.
8The respondents acknowledge that the house is rented to eight students who have been attending Conestoga College. In submissions to the Fire Marshal, they stated that “the students share the kitchen, dining room, lobby, backyard and all other amenities equally and live like a family.’ The usual term of rental is at least a year.
9Ms Grant’s inspection notes include information received from the respondents: there is one lease, but each student pays rent to the respondents individually. The amount paid depends on the size and location of the bedroom. There are locks on all the bedroom doors. The respondents pay utilities and take care of the cleaning and maintenance.
10Section 9.3 sets out parameters for a boarding, lodging and rooming house, including the size of the building (not exceeding three storeys), the number of occupants (more than four) and whether they pay rent. In considering whether the building is a boarding/lodging /rooming house, the appellant drew our attention to the decision of Payne v. Mak 2017 ONSC 243. This case sets out a number of factors to consider when assessing whether a building is a single dwelling unit or a rooming house. The factors include: (a) whether there are individual leases, (b) how the rent is paid, (c) who provides the furnishing, (d) the payment of utilities, (e) how housekeeping is done, (f) the nature of the relationship among occupants and (g) control of the unit.
11There is little evidence before us about how well the students know each other, other than the fact that they are all students at Conestoga College. The weight attached to the fact that there is one lease is significantly lessened by the fact that each student pays their rent to the respondents separately for individual bedrooms and the amount depends on which room they are in. Housekeeping and maintenance are done by the respondents and the utilities are paid by the respondents; there appears to be little control of or responsibility for the building that rests with the tenants themselves. Locks on each of the bedroom doors also weighs against a conclusion that they are living as a family.
12Based on these facts, we conclude that this is a boarding/lodging/rooming house and is subject to s. 9.3 of the Fire Code.
What Order follows from a finding that s. 9.3 of the Fire Code applies to these facts?
13An issue highlighted in the appellant’s submissions is the zoning restrictions on lodging houses in the City of Kitchener. Specifically, the local by-law does not allow for boarding/lodging/rooming houses to be located within 400 meters of each other. The appellant states that there is an existing lodging house on Doon Valley Drive, within 133 metres of the respondents’ property. The implication of zoning restrictions on the respondents and how they use their property as a rental unit are beyond the jurisdiction of the Commission. However, the implication of the property falling within section 9.3 of the Fire Code because of our finding is one we must consider.
14As noted, the Inspection order was issued pursuant to s. 21(1)(f) of the Act. It is incumbent upon a fire department when it makes an order pursuant to this section that it clearly state the fire safety issue. While we agree with the Fire Marshal that the Inspection Order as written lacks some specificity in this regard, one fire safety issue that was identified, and was also noted in submissions to the Fire Marshal, is that the tenants who rent the bedrooms in the basement are provided with only a single means of egress and exit. This is, on its face, a clear fire safety risk. Section 9.3.3.1 states that each floor area shall be served by at least two exits. If there are no sleeping accommodations in the basement, one exit from the basement is deemed to be compliant (s. 9.3.3.1(3)), but that is not the situation here.
15The respondents may be able to bring the house into compliance with s. 9.3 of the Fire Code (and again, we note that we cannot address zoning compliance) if they remove the two bedrooms in the basement. In submissions, the appellant stated that it would agree to “an arrangement which would see the basement bedrooms cease being used and that the owner would cause access to the basement to be restricted to the owners only…” We have no evidence before us regarding exits from the first and second floors (though we assume, based on standard house construction, that there is at least a front and rear door) or of fire containment measures. However, based on the appellant’s submission that removing the basement bedrooms from use would be consistent with the Inspection order and provide a safe environment for tenants, we reasonably infer that KFD does not assess an appreciable fire risk if the main floor bedrooms remain in use.
16The only submission made by the respondents on this issue is a request that given the ongoing Covid-19 pandemic, the students should not be asked to move out until the pandemic situation has been resolved.
CONCLUSION
17Based on the foregoing, we rescind the Order of the Fire Marshal and order that the bedrooms in the basement cease being used as such, for fire safety reasons. The net effect is that the two tenants renting the basement bedrooms will need to find other accommodation. We are sympathetic to the respondents’ concern about terminating their tenancy during the ongoing COVID-19 pandemic. However, it cannot wait until the pandemic situation is resolved as that lacks the requisite’. Therefore, in light of the current circumstances, we will extend the compliance date to September 1, 2020, as agreed by the appellant in submissions. This will allow sufficient time for the respondents to terminate the lease with these tenants and for the tenants to find new accommodation. This period of time, with the easing of restrictions contained in the Ontario Emergency Order responsive to the Covid-19 pandemic, should facilitate them in finding another place to live.
ORDER
18Pursuant to s. 26(6) of the Act, the Commission rescinds the Order of the Fire Marshal and exercises its authority to amend the Inspection Order. We order the following:
(a) The Inspection Order issued on February 4, 2019 is amended to require that the two bedrooms in the basement cease to be used as bedrooms.
(b) Compliance is required by September 1, 2020. In the event that the Ontario Government Emergency Order prevents compliance by that date, the respondents may contact the Kitchener Fire Department by no later than August 20th to seek an extension to the compliance date.
Released: June 10, 2020
___________________________ Patricia McQuaid
____________________________ Harriet Lewis
____________________________ Priscilla Reeve