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. Cowal Chalmers Inc. 2020 ONFSC 8

Date: 2020-11-10

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

Between:

Kitchener Fire Department Appellant

And

Cowal Chalmers Inc. Respondent

DECISION AND ORDER

Panel: Jennifer Friedland, Member Susan Clarke, Vice-Chair Harriet Lewis, Member

For the Appellant: Ryan Konrad, Kitchener Fire Department Cory Shantz, Counsel

For the Respondent: Stuart Murray, Agent

Heard by videoconference: September 21, 2020

OVERVIEW

1This appeal was brought by the Kitchener Fire Department (the “appellant”) from a Review Decision of the Fire Marshal dated April 15, 2020. The Fire Marshal had rescinded an Inspection Order, dated June 11, 2019 (the “Order”) made by Inspector Ryan Konrad (the “Inspector”) of the Kitchener Fire Department after an inspection on May 28, 2019 of the premises located at 103 Queen Street South, Kitchener, Ontario (the “Building”).

2The Building is a former mansion, built in the 1880s. It is a fully detached building, located in a heritage conservation district. The Building contains a basement and an original open central staircase leading from the front hallway to the third floor. The building underwent renovations and a change of use to office/residential in or around 2005. It is currently occupied only by office tenants with no residential use. The building is owned by the respondent, Cowal Chalmers Inc. Its director is Stuart Murray, who appeared as agent for the respondent.

3The Inspector’s Order was made pursuant to clause 21(1)(f) of the Fire Protection and Prevention Act, 1997 (FPPA). This section authorizes fire inspectors who have inspected premises to issue various orders to the occupant or owner of the premises to ensure fire safety. In this case, the Inspection took place following a complaint about smoke detectors, fire extinguishers and electrical cords. The Order subsequently made required Mr. Murray to conduct a Life Safety Study on the Building, submit it to the Inspector for approval and, once approved, to implement it within the building. The Life Safety Study was to review a number of issues, including: (a) containment features, (b) detection systems, (c) suppression features, and (d) egress facilities. The rationale given for the Order was that “the lack of any protected exits within the building could mean that in the event of fire, occupants could become trapped or unable to safely exit the building.” A compliance date of September 30, 2019 was ordered.

4The owner appealed the Order to the Fire Marshal, requesting a review of all work specified in the Order.

5The Fire Marshal rescinded the Order, reasoning that:

“implementation of a Life Safety Study is only applicable within the context of compliance with Part 9, Division B of the Ontario Fire Code (OFC). The intent of implementing a Life Safety Study, which is addressed under clause 9.1.1.2.(1)(b), Division B of the OFC, is to provide an alternative option for satisfying a requirement in Part 9, Division B of the OFC.

Since this Order was made pursuant to clause (f), Subsection 21(1) of the FPPA, which addresses fire safety beyond remedying OFC contraventions, the Inspector did not identify any OFC deficiencies. If there are no OFC Part 9 deficiencies, the implementation of a Life Safety Study cannot be applicable. Consequently, it is the Delegate’s opinion that ordering the implementation of a Life Safety Study within an Order made pursuant to clause (f), Subsection 21(1) of the FPPA is not appropriate.”

ISSUES

6The issues before the Commission are:

(a) Whether the Fire Marshal was correct to rescind the Inspection Order on the basis that it was inappropriate to order a Life Safety Study under section 21(1)(f) of the FPPA;

(b) If the Fire Marshal was correct, whether there are fire safety issues in the building and if so, whether the Commission should make an order in respect of these.

RESULT

7Having considered the evidence and submissions of the parties following a hearing, the Commission confirms the Review Decision. It is not appropriate to order a Life Safety Study with respect to these premises.

8With respect to the second issue, the Commission finds that potential fire safety issues do exist in the building. However, we lack a sufficient evidentiary basis to make an order regarding these issues.

LAW

Fire Protection and Prevention Act, 1997, S.O. 1997, Chapter 4 (The “FFPA”)

9Where an Inspector finds a fire safety issue on land or in premises, Subsection 21(1) of the FFPA provides that s/he may order the owner or occupant to take any measure necessary to ensure fire safety. The subsections that follow describe the types of orders that may be made for that purpose. The two types relevant to this case are described in clauses (f) and (g). The latter is to remedy contraventions of the Fire Code whereas orders under 21 (f) are used to remedy fire safety deficiencies that are not addressed in the Fire Code. An order under s. 21(f) may require an 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”

10Subsection 19(4) of the FFPA provides an inspector the right to bring a subject matter expert to assist in the inspection where the inspector lacks the necessary skills.

11Subsection 26(1) gives the Fire Safety Commission the authority to confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.

Fire Code, O. Reg. 213/07 as amended, made under the FPPA

12The Fire Code is a regulation addressing fire safety features, including but not limited to, retrofit of existing buildings. The Fire Code includes prescriptive requirements but makes provision for compliance options. Subsection 1.2.2., Division A describes one type of compliance option, Alternative Solutions, which apply to any prescriptive requirement in the Fire Code that has objectives and functional statement attributes. Subsection 9.1.4., Division B describes another type of compliance option, Life Safety Studies, which apply only to buildings and occupancies described in Part 9 Retrofit (Assembly occupancies, Residential Occupancies (multiple tenants), Health Care and Care Occupancies (see Part 9 for a more detailed description)). Part 9 Retrofit, Division B does not regulate Business and Personal Services occupancies (office buildings). Article 9.1.4.1. defines the concept of Life Safety Studies, while Article 9.1.4.2. describes the contents of a Life Safety Study. Subsequent provisions describe who is qualified to prepare a Life Safety Study, and the submissions, review and appeal process.

13Article 1.2.3.1., Division A of the Fire Code requires an owner to comply with other applicable Acts and Regulations.

14It is important to note that the Fire Code is not intended to supersede the Building Code, which addresses new construction, repairs and alterations, and change of use (conversion of a building or part of a building, with or without construction, from one use to another). Part 9 Retrofit, Subsection 9.1.2. states that Part 9 does not apply to a building or part of a building that satisfies the requirements of the Building Code. Further, Subsection 22(1) of the FPPA states that structural repairs or alterations cannot be ordered under clause 21(1)(b) for buildings that were constructed in compliance with the Building Code.

Building Code Act, 1992, S.O. 1992, c 23 (the “BCA”)

15Subsection 8(2) of the BCA states “The chief building official shall issue a permit referred to in subsection (1) unless, the proposed building, construction or demolition will contravene this Act, the building code or any other applicable law.”

EVIDENCE AND ANALYSIS

The Appellant’s Evidence

16The appellant provided the following evidence in support of its position:

(a) The Inspector received a complaint about smoke detectors, fire extinguishers and electrical cords at the subject property. He then met with Mr. Murray on May 28, 2019, who accompanied him on his inspection. The Inspector observed that the building was a business and personal services occupancy, that there were multiple tenants, and that there was a single interior stair serving the upper three storeys of the building, and an exterior wooden fire exit. He noted that the interior stair between the first and third floors was not fire separated from the remainder of the building, and that the only separation was a door at the top of the third storey.

(b) The Inspector noted that the office suites lacked rated closures and self-closing devices. Many of the doors were wood panel doors, and one at least had a large pane of glass. Some suite doors had glass transoms above the doors. He noted that windows facing the exterior wood stair were not “protected”. His concern was that occupants of the building have no protected means of egress from the building, giving as an example that a fire on the first floor would compromise the single central exit stair and after a short period, occupants within the office suites. Occupants seeking to evacuate by the exterior stairs would be exposed in a short period of time as the stairs are not protected from fire within the building. He noted that fire-protection rated windows and doors are required.

(c) The Inspector noted that the basement level had a single exit directly to the outside at the front of the building. A second exit was provided by an interior stair leading to the main floor level, separated by a closure. The basement level was not fire separated from the ground level. His concern was that the main floor hallway forming part of the exit path would be exposed to fire from the basement level.

(d) The Inspector explained that the floor plan he would expect to see in a building with multiple tenants would show that the suites are intended to be fire separated from the corridor, and the corridors leading to exits at opposite ends of the building are intended to be fire separated from the remainder of the building.

(e) The Inspector researched the municipal files and found building permit drawings for renovations of the Building. The drawings show the design was by Robert J. Dyck architect & engineer incorporated and stamped “Received July 9, 2004”, and “City of Kitchener Building Division, Drawings Reviewed …June 7/05”. The drawings also show design information to convert the building from a residential occupancy to permit multiple offices with a residential unit on the third floor, and review markings by the plan examiner. The Inspector commented on what he believes are discrepancies between the building permit set of drawings and his visual observations, and what the Ontario Building Code (“OBC”) would have required at the time of construction.

(f) The Inspector spoke with a supervisor in the Building Department, whom he said declined to respond to the issues because the building permit was closed, and because the Building Department had no authority to issue an Order. According to the Inspector, the supervisor also told him that errors had been made in the plan review.

(g) The Inspector expressed his opinion that there were deficiencies with respect to the Building Code, but that it would be practically impossible to correct these given the building’s dimensions. He gave as an example the open exit stair configuration which, if enclosed by a fire separation, would then limit the corridor width requirement. He believed that the best approach was to find an “alternative solution” to what the OBC would have required, but that he could not accept this as it was a tool only available in the Fire Code (OFC). He believed that a Life Safety Study would afford the owner the opportunity to have a qualified person develop a workable solution that would ensure the life safety of the occupants and at the same time identify other issues that required correction. The Inspector admitted that he was not an expert on the Building Code requirements.

(h) The Inspector acknowledged that Mr. Murray submitted three versions of a Life Safety Study authored by Walter Fedy Ltd. In response to the Inspector’s Order. These were dated August 6, October 10 and November 26, 2019; however, none was accepted by the Inspector. In his opinion, the Life Safety Studies did not meet his expectations and could not be approved.

(i) Mr. Murray then submitted a letter authored by the consulting engineering firm Morrison Hershfield Ltd. Dated January 13, 2020 which stated that Life Safety Studies do not apply to a building with business and personal services occupancy. The letter identified only two OFC deficiencies.

(j) The Inspector identified four different options that he thought would satisfy the fire safety issues raised. These were (paraphrased):

1. Comply with the Order,

2. Limit occupancy of the building to a single tenant, with some upgrades,

3. Comply with the 1997 OBC Parts 9 and 11 construction requirements (extensive list), or

4. Provide alternatives through the Inspection Order that would be subject to approval by the Chief Fire Official. These might include an enhanced smoke detection system, sprinklering of the public corridor with sidewall sprinkler heads into the office suites, and upgrading the suite closures.

17In concluding his testimony, the Inspector said that if the Commission were to uphold the Review Decision, he would immediately issue a new Inspection Order which would list all the items in Option 3.

18In her closing arguments, Ms. Shantz referred the Commission to the wording of FPPA 21(1)(f) and that the Inspector has broad discretionary powers to ensure fire safety. She added that if the Commission is looking for something specific to order, to look to Option 3 which lists the prescriptive list of deficiencies. She noted that the Inspector ordered the owner to submit a Life Safety Study to provide a more creative solution, utilizing a familiar term to allow the owner to rectify the issues using viable and cost-effective solutions. She added that if the Commission accepts the Review Decision, there is no safe way for the occupants to exit the building in the event of a fire.

The Respondent’s Evidence

19The respondent provided the following evidence in support of its position:

(a) Mr. Murray stated that he and the Inspector have taken a collaborative approach. He submitted three versions of a Life Safety Study by Walter Fedy Ltd., but none was accepted. He subsequently engaged Morrison Hershfield Ltd. To get a separate opinion on what was needed; their opinion was that a Life Safety Study was not appropriate. They made minor recommendations regarding removing storage on egress stairs from basement and ensuring that snow and ice did not accumulate on the stairs and exits. Mr. Murray stated that he implemented those recommendations.

(b) The Order has impacted his ability to rent the building, which currently is not fully occupied.

20Mr. Murray submitted that two professional engineering consulting firms told him the Life Safety Study was not required, and that the Review Decision rescinded the Order on the basis that ordering a Life Safety Study was not appropriate. The permit application addressing the change of occupancy and renovations was approved by the Building Department subject to comments noted on the permit drawings by the plan examiner. He has maintained the original building features, including the woodwork. He worked with the Inspector, trying to come to a mutual agreement, but the consultants hadn’t identified an issue with the exiting. He asked that the Review Decision be upheld, with no further requirements.

21Mr. Murray stated that he was prepared only to respond to the Fire Department’s appeal of the Fire Marshal’s order at this appeal. He was not prepared to comment on specific fire safety measures that may be required.

Analysis

Was the Fire Marshal correct to rescind the Inspection Order on the basis that it was inappropriate to order a Life Safety Study under section 21(1)(f) of the FPPA?

22The appellant argued that ordering a Life Safety Study to be conducted to identify all building deficiencies related to the 2005 change of use of the premises from residential to business and personal services occupancy afforded the owner the opportunity to develop a proposal that would correct the deficiencies in an easier and more cost-effective way.

23The Commission acknowledges the objectives the Inspector was trying to achieve in his approach by ordering a Life Safety Study. However, in his order, he failed to identify specific deficiencies and associated remediations. As such the three versions of the first Life Safety Study, and the subsequent second Life Safety Study submitted by the owner were not accepted by the Inspector, as they did not meet the Inspector’s unstated expectations. The wording of the Order stated only that a Life Safety Study be conducted, submitted for approval and implemented. It provides only part of the language found in Subsection 9.1.4. Life Safety Study., Division B of the Fire Code, leaving out the wording in Article 9.1.4.1. which describes more fully what a Life Safety Study entails and the process of review and appeal provisions described in Article 9.1.4.7.

24Moreover, the Commission agrees with the Fire Marshal that the Life Safety Study approach exists only in respect to Part 9 Retrofit of the Fire Code and is intended as a compliance option to prescriptive requirements in that Part. There is no indication in the Fire Code that a Life Safety Study is an appropriate tool to achieve fire safety outside of that context.

25The Commission has reviewed the FPPA, and referring to s. 19(4), notes that it provides the Inspector with the authority to bring experts with him during an inspection. We find that it is the Inspector’s responsibility to identify specific deficiencies in the building that affect fire safety; it is not appropriate to order an owner to have a building audit conducted to identify any such deficiencies.

26We therefore uphold the Fire Marshal’s review decision rescinding the Order.

Despite the above, are there fire safety issues in the building and if so, should the Commission make an order in respect of these?

Whether there are fire safety issues in the building

27The building permit drawings submitted by the appellant show numerous fire safety features, such as rated suite closures and wired glass exterior windows. However, the evidence, including photographs, showed that these were not installed in the building at the time of the inspection. We agree with the Inspector that these are necessary for fire safety.

28Other issues identified by the Inspector, such as a lack of fire separation of the central staircase, are less clear. The building permit drawings indicate awareness of the open central stair. The plans examiner has marked the periphery of the corridor requiring it to be constructed as a 45-minute fire separation, but did not make comments on enclosing the exit stair.

29The appellant suggests that the plan examiner and building inspector made errors in approving a building permit. However, the Commission is unable to conclude on the evidence before it that this was the case. The Inspector’s opinion was based on his own review of the plans and a conversation he had with the Building Department. The person he spoke with was not called as a witness at this appeal, and the Inspector agreed that he is not himself an expert on the Building Code. He also did not have an OBC expert with him during his inspection, as permitted in Subsection 19(4) of the FPPA. Moreover, under s. 8(2) of the BCA, building permits are granted upon finding that the permit application is compliant with the BCA and the Building Code.

Should the Commission make an Order regarding Fire Safety

30The Commission accepts that the building lacks two protected exits, however we do not find it appropriate to use powers in FPPA s. 26(6) to make a new order to address this. The Building Code is a complex regulation providing many compliance options. Given that the Inspector is not an expert on the OBC, and did not utilize one, we find that there is insufficient evidence to confirm that the requirements have been fully expressed. Many regulatory requirements are expressed in the first sentence, and provide alternative compliance options in subsequent sentences within the same article. Further, to fully address an issue, there are often numerous other references that must be considered.

31As the Order did not capture specific fire safety requirements, the owner has not been afforded the opportunity to address those requirements – whether in his appeal before the Fire Marshal or before the Commission in response to the Fire Department’s appeal. If the Order had been more specific on the requirements, the owner could have engaged his consultants to review the OBC and provide solutions or support on this appeal.

32With respect to the fire safety issues that the Inspector articulated in his evidence; the Commission accepts the Inspector’s statement that he will issue a new Inspection Order requiring correction of specific fire safety deficiencies. He has also acknowledged a willingness to permit the owner to propose compliance options using a process similar to those described in the Fire Code for buildings that are regulated in Part 9.

ORDER

33For the reasons set out above, the Commission confirms the Review Decision.