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. St. Mary’s General Hospital, 2020 ONFSC 6

Date: 2020-08-27

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

Between:

Kitchener Fire Department Appellant

and

St. Mary’s General Hospital Respondent

DECISION

Panel: Susan Clarke, Vice-Chair Joanne E. Foot, Member Priscilla Reeve, Member

For the Appellant: James Hodge, Kitchener Fire Department For the Respondent: Gerald LeMoine, Director of Engineering

Heard by way of written submissions

OVERVIEW

1The Kitchener Fire Department (the “appellant”) appealed the Review Decision made by the Fire Marshal dated March 11, 2020. The Review Decision rescinded item 2 of the Inspection Order made by Inspector James E. Hodge (the “Inspector”) of the Kitchener Fire Department on February 6, 2019 (the “Inspection Order”). The Inspection Order was made in respect of a ten-storey hospital building known as St. Mary’s General Hospital (the “respondent”).

2The Inspector issued the Inspection Order on February 6, 2019, following an annual inspection of the subject building on February 5, 2019. The Inspection Order was issued to St. Joseph’s Health Care System, the owner and operator of the Hospital. Item 2 of the Inspection Order addressed an apparent contravention of Article 2.2.3.3., Division B of the Fire Code, being O. Reg. 213/07 made under the Fire Protection and Prevention Act, 1997 (the “Fire Code”), in which closures (doors) between the third‑floor elevator vestibule and the adjacent corridor serving patient bedrooms had been removed without a building permit. The Inspection Order was made under section 21(1)(g) of the Fire Protection and Prevention Act, 1997 (the “FPPA”). The reasons for the Inspection Order were “the building and/or premises are in contravention of the Fire Code, O. Reg. 213/07”. The Inspection Order prescribed a compliance date of February 26, 2019.

3Following his review of the Inspection Order, the Fire Marshal’s delegate rescinded Item 2 of the Inspection Order, giving the following reasons (excerpt):

The Inspector has not provided a description of how the missing doors are part of an opening in a required fire separation. The Inspector has stated that it is necessary to re-establish the building’s fire separations without explaining that the building’s fire separations are required to be re-established. This information is considered relevant because both parties acknowledge that the building has undertaken several changes over the years. As a result, what previously may have been a required fire separation, may presently no longer be considered a required fire separation due to the changes undertaken to the building.

4The Inspector appealed the Review Decision, asserting that the issue is that the closures were removed without a building permit. He provided evidence of a 2003 permit drawing showing a fire separation and closures between the elevator vestibule and adjacent patient bedrooms. He stated that he conducted a municipal file search and found no evidence of a permit for the removal of the closures, and further noted that in his 2019 fire inspection, the Hospital’s representative told him the doors had been removed since the previous annual fire inspection.

5Pursuant to section 26 of the Fire Protection and Prevention Act, 1997, S.O. 1997, Chapter 4 (the “FPPA”), a person who is aggrieved by an order of the Fire Marshal may appeal the order to the Fire Safety Commission (the “Commission”). The Commission may confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.

6The appeal proceeded as a written hearing based on documentary evidence and submissions filed by the parties.

ISSUE

7The issue before the Commission is whether the requirement to re-install the closures between the elevator vestibule and the adjacent corridor serving patient’s bedrooms is necessary to ensure fire safety.

RESULT

8Having considered the evidence and submissions filed, the Commission revokes the Review Decision as it pertains to item 2, and makes a new order as set out below.

LAW

9Under section 18 of the FPPA, for the purposes 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.”

10Section 21(1) of the FPPA gives broad discretion to an inspector who has carried out an inspection to order an owner or occupant “to take any measure necessary to ensure fire safety on the land and premises.” In particular, subsection (g) allows an inspector to order the owner or occupant to “remedy any contravention of the Fire Code.”

11Article 2.2.3.3., Division B of the Fire Code provides that closures in required fire separations shall not be altered in any way that would prevent the intended operation of the closure.

12Article 1.2.3.1., Division A of the Fire Code provides that the owner is responsible for compliance with other applicable Acts and regulations.

13Subsection 8(1) of the Building Code Act, 1992, S.O.1992, c.23 (the “BCA”), states that no person shall construct or demolish a building unless a permit has been issued by the chief building official. The definition of “construct” in subsection 1(1) includes “to do anything in the …. material alteration of a building…” and “demolish” includes “to do anything in the removal of …. a material part.”

14Clause 3.2.6.5.(3)(b), Division B of the Building Code, being O. Reg. 332/12 (the “Building Code”) made under the BCA, provides three options to protect firefighter’s elevators, one of which is to construct a vestibule separated from the remainder of the floor area by a ¾ hour rated fire separation and containing no occupancy.

EVIDENCE AND ANALYSIS

The Appellant’s Evidence

15The appellant provided the following information in support of its position that the closures had been removed:

i. During his inspection on February 5, 2019 in which the Inspector was accompanied by the respondent’s representative, Gerald LeMoine, the Inspector noted the absence of the closures. The Inspector indicated that Mr. LeMoine said that the closures had been removed following the last annual fire inspection.

ii. The Inspector researched the municipal files and found Building Permit #03-012490GM issued in 2003, indicating existing closures in fire separations on both sides of the elevator vestibule, including at the corridor serving patient bedrooms to the north. A copy of drawing 9911-A-083-July 7, 2003 for the Redevelopment project with the Parkin Architects Ltd. logo (the “2003 Building Permit Drawing”) was provided. The Inspector found no building permits for the removal of the subject closures.

iii. The appellant submitted a copy of drawing 4, dated May 18, 2017 with the title “Third floor fire separations”, provided by the respondent to the Inspector. The drawing indicates the subject area as having a “non-rated fire separation (pre-1997 OBC).” The drawings provided no indication that they were part of a building permit approval.

iv. The Inspector suggested that the separation fulfilled a requirement for fire separation of elevator lobbies from the floor area set out in clause 3.2.6.5.(3)(b) of the Building Code, and has been included in the Building Code since 1983. However, he was unsure if the doors existed when the building was originally constructed or were installed during renovations.

The Respondent’s Evidence

16The respondent provided the following evidence in support of the Hospital’s position:

i. The respondent takes the position that the closures were part of the original build in 1960 but were later removed and replaced with closures at the other end of the elevator vestibule. It argues that this change was approved on two distinct sets of building/fire permits, being the 2002 Emergency Department Expansion and the 2008 Building Addition. However, no drawings or permit numbers were provided to the Commission to support this position. A “real-time” occupancy zone drawing was provided showing the subject opening without closures, but this drawing was not stamped as a building permit drawing.

ii. The Code Consultant Report dated May 3, 2019, includes a drawing showing the door opening. The Commission notes that this drawing is not stamped as a building permit drawing. The consultant, a representative of LMDG Building Code Consultants, proposed that the closures were not necessary for a number of reasons. He also stated that the elevator vestibule is not required to be separated from the patient bedroom fire compartment, and contends that this is because it satisfies both the Building Code and the Fire Code retrofit requirements for compartmentation and areas of safe refuge.

Analysis

Was the measure ordered by the Inspector necessary to ensure fire safety?

17The only issue on this appeal is whether the respondent removed the closures at the north end of the elevator vestibule with or without a building permit. The appellant submits that permit drawings dated 2003 show the closures as existing at the time of that permit, and that a review of the municipal files did not disclose any subsequent building permit for the removal of the closures. The respondent’s consultant takes the position that the closures were removed at some point between 2003 and 2008 under building permit but provided no evidence in support of that position.

18The appellant submits that he observed the lack of closures during his 2019 inspection. He stated that the Director of Engineering, Mr. LeMoine, accompanying him during the inspection, acknowledged that the doors were removed after the previous annual inspection.

19The Commission acknowledges LMDG Building Code Consultant’s proposal as to why the closures are not necessary based on other compartmentation and protection measures, as described in his report dated May 3, 2019. However, we note the process for obtaining approval for removal of closures in a fire separation is clear and mandatory under subsection 8(1) of the BCA. Neither the respondent nor this Commission has the power or authority to waive any of the requirements set out in the BCA or the Fire Code. If the respondent wishes to obtain approval for its consultant’s proposal to remove the closures, it must comply with the building permit process, as contemplated by the BCA.

20We accept the appellant’s evidence and find that the closures were removed without a building permit. We further find that the closures formed part of a fire separation documented by the 2003 Building Permit Drawing. The respondent’s assertion that the closures were replaced with closures on the opposite side of the elevator vestibule is not supported by the 2003 Building Permit Drawing which shows existing closures on both sides, with no indication that they were to be removed. Further, the respondent provided no evidence to support its position.

21We note that a building permit is an administrative tool, however issuance of a building permit is evidence of a thorough municipal review of a proposal, to ensure that it doesn’t contravene the BCA, the Building Code, or any applicable law, and that the designer has the appropriate qualifications. The requirements in both the Building Code and the Fire Code exist to ensure life safety; the requirement to create and maintain a fire separation relates to the need to minimize the risk of fire impacting on areas beyond its point of origin, with the potential both for occupant injury and building damage. Based on the evidence before us, we find that the measure to maintain closures in the fire separation is necessary for fire safety.

22The 2003 Building Permit drawing indicates the elevator vestibule is enclosed by an existing fire separation. The photograph of the wired-glass assembly between the elevator vestibule and the adjacent corridor suggests a rating of between 0 hours and 1 hour based on a review of Article 3.1.8.14., Division B of the Building Code. After a review of the permit drawing, we accept the appellant’s suggestion that the elevator vestibule enclosure is based on the need to protect the firefighter’s elevator (Building Code clause 3.2.6.5.(3)(b)), in which case the closures are required to have a ¾-hour fire-protection rating.

CONCLUSIONS AND ORDER

23For the reasons set out above, the Commission revokes the Review Decision as it pertains to item 2 thereof.

24The Fire Safety Commission makes the following Order:

1. The closures shall be re-installed in the fire separation at the north end of the elevator vestibule on the third storey and all original hardware, including but not limited to the self‑closing devices and latches, shall be re-installed.

2. In the event that the original closures cannot be located, new closures with a ¾-hour fire-protection rating, and complete with self-closing devices and positive latching mechanisms designed to hold the door in the closed position after each use, shall be installed in the fire separation.

3. The work shall be completed by November 18, 2020.