Tribunals Ontario
Fire Safety Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission de la sécurité-incendie
Appeals under subsection 26(1) of the Fire Protection and Prevention Act, 1997, SO 1997, c 4.
Between:
Gregory Tyler Peacock Appellant
and
Toronto Fire Services Respondent
DECISION AND ORDER
Panel: John Kromkamp, Vice-Chair Susan Clarke, Vice-Chair Matthew M. Létourneau, Member
Appearances: For the Appellant: Self-represented For the Respondent: Emma Luca and Jacqueline Mathurin, Counsel
OVERVIEW
1The appellant, Gregory Peacock, co-owns the building at 50 Howland Avenue in Toronto (“50 Howland” or “the Property”) with his spouse. Toronto Fire Services (“TFS”) issued an Inspection Order and an Order to Close regarding the 3rd storey of the Property. The appellant contests both Orders in this appeal.
2The building is a semi-detached, 3-storey plus basement legal duplex, containing two dwelling units. The upper unit includes the 2nd and 3rd-floor storeys and is accessed at the front of the building by enclosed stairs leading from a foyer that serves both units. The lower unit includes the 1st-floor storey and basement. The 1st floor is accessed at the front from the same foyer. The basement level is accessed from a side entrance.
3Inspector Ian Falkiewicz inspected the property on October 2, 2019 on behalf of TFS and determined that it was occupied as a rooming house. He issued two Inspection Orders on that date. One of the Inspection Orders addressed the need to provide a second exit from the third floor of the building, and to close occupancy of that storey until compliance was achieved. This Inspection Order was accompanied by an Order to Close issued on October 2, 2019. The Orders were made pursuant to subsections 21(1) and 21(2), respectively, of the Fire Protection and Prevention Act, 1997 (the “FPPA”). The Order to Close was approved by Larry Cocco, Deputy Fire Chief.
4Subsection 21(2) of the FPPA states that Orders to Close are issued with the approval of the Fire Marshal. Section 10 of the FPPA gives the Fire Marshal the ability to delegate any of his powers or duties under the FPPA to another person. Correspondence was provided to the Commission to confirm the delegation of powers to Deputy Fire Chief Cocco.
5On October 17, 2019, the appellant requested a Fire Marshal review of the Inspection Order and Order to Close under subsection 25(1) of the FPPA. Pursuant to paragraph 25(4)(a) of the FPPA, the Fire Marshal refused to consider the substance of this request and referred the matter to the Commission for a hearing under section 26 of the FPPA.
6The appellant appeals to the Commission to exercise its powers pursuant to subsection 26(6) of the FPPA to rescind the Order to Close, and the accompanying Inspection Order. He clarified at the hearing that he does not intend for this appeal to address any other Order issued by TFS aside from that which deals with the closure of 3rd floor of 50 Howland. The Commission accepts that this appeal is limited to the Order to Close and attached Inspection Order addressing the 3rd floor exits.
ISSUES
7Is the building in whole, or the upper duplex unit, occupied as a rooming house, and therefore subject to Section 9.3 of the Fire Code (O.Reg. 213/07, as amended) (the “OFC”)?
8If the upper duplex unit, or the Property, is classified as a rooming house subject to Section 9.3, does the 3rd storey have an appropriate second exit?
9Should the Commission confirm, amend or rescind the Inspection Order?
10Should the Commission confirm, amend or rescind the Order to Close?
RESULT
11The upper duplex residential unit was occupied as a rooming house at the time of the inspection on October 2, 2019 and is subject to section 9.3 of the OFC.
12The 3rd storey does not have an appropriate second exit.
13The Commission amends the Inspection Order, upholding the original requirement for a second exit from the 3rd storey, but providing a second option to revert the occupancy of the upper unit (storeys two and three of the building) back to a dwelling unit.
14The Commission confirms the Order to Close dated October 2, 2019.
POSITIONS OF THE PARTIES
15The appellant appealed the Inspection Order and the Order to Close on the basis that the upper duplex unit of the Property is a dwelling unit and does not require a 2nd exit. He also asserts that the 3rd floor has a window which people could use as a second exit. He explained that he did not view any immediate threat to life, given the alternative window exit. He states that there did not appear to be any urgency in the actions taken by TFS. He suggests that TFS’s actions were intended to be punitive and possibly personal.
16TFS requested that the Commission exercise its power to confirm the Order to Close and the accompanying Inspection Order. TFS submits that there was a need to order the appellant to remedy the contravention of the OFC. TFS asserts that 50 Howland is a rooming house, and the 3rd storey is required to have a 2nd exit, which it currently does not. This creates an immediate threat to safety that TFS requires to be remedied before the order to close can be lifted. TFS submitted that this closure is a lenient approach aimed specifically at the highest risk and most vulnerable occupants and that it could have imposed additional closures given issues arising in their inspections.
LAW
17The Inspection Order was issued pursuant to s. 21(1)(g) of the FPPA, which provides that an inspector who has carried out an inspection of premises may order the owner to take any measure necessary to ensure fire safety including remedying a contravention of the OFC.
18Section 21(2)(a) of the FPPA states that an order to close the premises applies until such time as the corrective actions set out in the Inspection Order have been completed.
19Sentence 1.4.1.2. of the OFC defines “exit” as “that part of a means of egress, including doorways, that leads from the floor area it serves to a separate building, an open public thoroughfare or an exterior open space protected from fire exposure from the building and having access to an open public thoroughfare”.
20Sentence 9.3.3.2.(1) of the OFC describes acceptable exits, referencing Articles 9.9.2.2. and 9.9.2.3. of the 1986 Ontario Building Code (the “OBC”), found in Appendix A of the Fire Code Compendium. These state that:
Exits may consist of doorways, passageways, ramps, stairways and horizontal exits, and in some cases, fire escapes;
Casement windows not less than 1060 mm high, 560 mm wide, with a sill height not more than 900 mm above the inside floor, may be considered part of a required means of egress to provide access to fire escapes.
21Article 9.3.3.4. of the OFC describes acceptable fire escapes as being:
- Constructed in compliance with OBC Article 3.4.7.13., excluding Sentences (4) and (5), and which must be:
o accessed from corridors; and
o Constructed as a stair, extending to the ground level.
EVIDENCE AND ANALYSIS
Is 50 Howland a Rooming House as per the OFC?
22The definition of the Property is central to this appeal. The appellant initially described the building as a “legal duplex” where the basement and 1st floor are rental units, and the upper unit is a “residential dwelling” for six adult professionals sharing the apartment when his family was not present. He further described that there were no locks on the bedroom doors, there was a communal cleaning schedule and the occupants communicated on a casual basis.
23The Commission rejects this assertion. The Commission considered the evidence in relation to the criteria set out at article 9.3.1.1. of the OFC regarding Rooming Houses. The Commission also considered the factors outlined in the case law that apply when making a determination regarding a Rooming House, including factors outlined in Balmoral1, the Good2 cases, and applied by the Commission in decisions such as Lakelee Orchards Limited3. In Balmoral, the Ontario Court of Appeal assessed whether a building is a boarding, lodging or rooming house and considered factors such as individual leases, occupants’ terms of rental, individual bedrooms having locked doors, furniture being provided by the landlord, evidence of collective decision making among occupants, evidence of utilities being paid, occupants being selected by the landlord and there being little personal connection between the occupants.
24The evidence heard through testimony from TFS’s witnesses, such as Inspector Falkiewicz, was that all occupants, except for the appellant, were paying rent or providing services in exchange for lodging. The Inspector’s testimony revealed that there was very little personal connection between the occupants in the 2nd and 3rd floors. The appellant did not commonly reside at the property and would usually sleep on a couch. There was no sign that the appellant’s family resided at the Property.
25The Inspector explained that when he attended the property, there were approximately 19 occupants. He obtained the names, either verbally or through photo identification. Mr. Bajwa, one of the tenants, testified at the hearing that he provided services (overseeing the operation of the property) and paid rent occasionally.
26The Commission accepts the evidence presented by TFS that the only communal living space was the kitchen. The Inspector observed that food in the refrigerator was labelled with individual’s names. Individual tenant rooms were advertised on Kijiji, and tenants were chosen either by appellant or his colleague, and leases were signed. In addition, the furniture was provided by the appellant.
27At the outset of the hearing, the appellant asserted that 50 Howland was not a rooming house. However, on cross-examination and in his closing submissions, the appellant accepted that the Property was a rooming house.
28Section 9.3 of the OFC refers to Boarding, Lodging and Rooming Houses. Sentence 9.3.1.1.(1) of the OFC provides parameters pursuant to which a rooming house must meet the requirements of Section 9.3:
The residents do not require care or treatment because of age, mental or physical limitations;
The building height does not exceed 3 storeys and the building area does not exceed 600 meters squared;
The lodging is provided for more than four persons in return to remuneration or the provision of services or both; and
The lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.
29Neither party argued the size of the building, which is a parameter of the application statement in article 9.3.1.1 of the OFC. The Commission accepts that there were more than four persons residing in the two residential units in the building.
30It was also clear from the testimony, photographs, diagrams and notes that sleeping rooms did not have bathrooms or kitchens for the exclusive use of the individual occupants.
31The Commission finds that 50 Howland, and specifically its upper unit, is a rooming house and is subject to section 9.3 of the OFC based on the evidence, a consideration of the factors set out in the case law and the parameters described in sentence 9.3.1.1.(1) of the OFC.
Does the third storey have an appropriate second exit?
32Sentence 9.3.3.1(1) of the OFC requires each floor of a rooming house to be served by at least two exits. The Commission concludes therefore that the 3rd storey of the Property requires two exits.
33In the Notice of Appeal included at Tab 18 of the respondent’s materials, the appellant described the 3rd floor exit as follows:
“The rear bedroom at this floor level has an opening window that gives access to a flat roof measuring 4m by 6m. That flat roof is located adjacent to and above a larger deck about 2.5m below the flat roof. This deck has direct access to fire escape leading to the ground. I have easily used this window on more than one occasion to access the home when I have forgotten to carry my key. After the Order was made, I discussed the issue of escape routes from the third floor with the other occupants of the apartment and we all agreed that in the unlikely event in an emergency that one of us was unable to escape from the third floor to the exterior by one of the two exits from the second floor via the interior stair from the third floor that we would be able to exit the floor area via the window that leads to the flat roof and the balcony. As I have stated above, we have no locks on any of the doors in the apartment so we would have no difficulty accessing this window from any room on the third-floor level. Accordingly, we see no immediate threat to life arising from the lack of a second exit from the third-floor level.
Furthermore, Sentence 9.3.3.3 of the Code allows for only one exit from a floor level where a second means of egress is provided by an alternate means that has been approved by the Fire Marshall.”
34TFS did not provide submissions regarding why the window was not an acceptable exit. However, the testimony provided by TFS at the hearing described the house in great detail, showing each and every room, pictures of fire safety issues, notes by inspectors and opinions leading up to the Order to Close.
35The Commission has reviewed the OFC and its requirements and determines in this case that the path described by the appellant is not an acceptable exit. Notably, a window may be part of an exit onto a fire escape, but access to a fire escape must be via a corridor pursuant to article 9.3.3.4 of the OFC. The Commission considered the window as an exit as described by appellant’s quoted description above and as corroborated through the detailed review of the house plan and the pictures of the interior described during both the appellant and TFS’s witness testimony at the hearing.
36The Commission finds that the proposed window exit on the 3rd floor is located within an occupied bedroom under an individual renter’s separate control. The window connects this occupied bedroom with an exterior rooftop landing. There are no stairs from this rooftop landing down to the patio and connecting fire escape. The OFC allows for exterior stairs to form part of the fire escape, but the expectation is that they be continuous from either a window or doorway to grade level and not include the need to jump a full storey from the rooftop landing to the patio as suggested by the appellant. As a practical matter, the urgency of a fire situation would mean that jumping would not be a safe and feasible exit strategy.
The Inspection Order
37The Inspection Order requires the third floor of the building be closed until provided with a second exit. The reasons given are that the building is a rooming house, and the third floor lacks a second exit as required by Sentence 9.3.3.1.(1) of the OFC.
38The Commission finds that the original duplex building has been converted to a rooming house, or two separate rooming houses. In either case, the Commission finds that section 9.3 of the OFC applies and that there is a requirement for two exits from the 3rd storey, as set out in article 9.3.3.1. of the OFC.
39The Commission considered the wording in the Inspection Order and finds that while the intent of preventing an immediate threat to life is supportable, it does not provide a compliance option. The wording “close the third floor of the building until the third floor is provided with a second exit” goes beyond the scope of an order made pursuant to s. 21(1)(g) of the FPPA which only requires an owner “to remedy any contravention of the fire code”. The contravention of the OFC in this case relates to providing a second exit, as required by sentence 9.3.3.1.(1) of the OFC. The Commission finds that amending the Inspection Order is required to be more in line with the FPPA, especially in adding a requirement that the exit shall comply with either Article 9.3.3.2. or 9.3.3.4. of the OFC and meet all other applicable requirements in subsection 9.3.3 of the OFC. Also, the Commission finds that the Order must include a time within which the owner or occupant must comply, as per section 23 of the FPPA, and that this should be a dated timeline.
40The Commission finds that the Inspection Order, as amended to provide a compliance option, is necessary for fire safety. The amendment removes reference to closing the 3rd floor as that is not specifically supported by any clause under section 21(1) of the FPPA. These amendments are found to be required and justifiable in this matter by the Commission.
The Order to Close
41TFS submitted that the lack of a 3rd floor second exit was sufficient to support its Order to Close. The Commission was presented with ample evidence of fire safety concerns, such as those found in the major building deficiencies listed in the Request to Close Property Report of Inspector Falkiewicz and Yosh Imahori of October 3, 2019. This report noted concerns relating to containment, means of egress, alarm and detection and suppression of fire. The Commission heard evidence from TFS’s witnesses, including Inspector Falkiewicz, about a multitude of issues, including combustible load, fire rating of doors, issues with smoke detectors, fire alarms, obstructions in the hallways, fire extinguishers and otherwise.
42At the hearing, TFS submitted that the lack of the second 3rd floor exit posed the highest risk to the occupants. TFS submitted that it considered a complete closure of the Property. However, the Request to Close Property Report only recommends the minimum work of closing the 3rd floor as corrective measure. This recommendation was adopted by TFS in the Order to Close of October 2, 2019 and TFS submits it chose to limit the closure in this way in order to protect the most vulnerable occupants at the highest risk above all other concerns.
43The Commission reviewed the evidence of TFS regarding the fire safety concerns identified in order to determine whether the closure is justifiable. The Commission finds that the interior path of travel leads occupants of the 3rd floor through the occupied 2nd floor without benefit of protection within the building, and that this path was obstructed by an accumulation of combustible materials. Also, the level of tenant turnover indicated in interview and photographic evidence of the interior of the Property confirms a level of constant changes regarding obstructing objects, tenants bringing in additional boarders into their own rented rooms and tenants being generally unknown to each other. This situation, in addition to the fire safety concerns addressed above, supports a finding of high risk to occupants of the 3rd floor.
44The Commission finds that the intent to close the 3rd floor from occupancy until such time as a 2nd exit is provided is warranted based on the evidence. The Order to Close is confirmed, noting that it will apply to the amended Inspection Order as stated above.
45The Commission is satisfied that the Order to Close is necessary in order to ensure fire safety.
CONCLUSION AND ORDER
46For the reasons set out above, the Fire Safety Commission amends the Inspection Order, made on October 2, 2019 as follows:
Item 1: Provide the third floor of the building with a second exit, as required by Sentence 9.3.3.1.(1), Division B of the OFC. The exit shall comply with either Article 9.3.3.2. or 9.3.3.4. of the OFC and meet all other applicable requirements in subsection 9.3.3 of the OFC.
Compliance Option:
Item 1 may be considered to have been complied with if the upper residential unit consisting of the 2nd and 3rd storey is reverted back to the original approved design as a single dwelling unit.
47The work in Item 1, or the compliance option, must be completed by September 7, 2021.
48For the reasons set out above, the Commission confirms the Order to Close, made on October 2, 2019.
Released: February 10, 2021
John Kromkamp, Vice-Chair
Susan Clarke, Vice-Chair
Matthew M. Létourneau, Member
Footnotes
- Balmoral Developments Hilda Inc. v. Orillia (City), 2013 ONCA 212 [Balmoral].
- Good v. Waterloo (City), 2003 CanLII 14229 (ON SC), [2003] O.J. No. 4027 (SCJ) & Good v. Waterloo (City), 2004 CanLII 23037 (ON CA), [2004] O.J. No. 3725 (Ont CA).
- Lakelee Orchards Limited v. Lincoln Fire Services, 2019 ONFSC 8.