Legg v Ottawa Fire Services, 2021 ONFSC 10
Motion by Evan Legg for an Order to extend the time to file an appeal to the Fire Safety Commission, pursuant to subsection 26(3) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Evan Legg
Appellant
and
Ottawa Fire Services
Respondent
MOTION DECISION AND ORDER
Adjudicator: Patricia McQuaid, Vice-Chair
Appearances:
For the Appellant: Self-represented
For the Respondent: Stuart Huxley, Counsel
Held by teleconference: September 14, 2021
OVERVIEW
1Evan Legg (the “appellant”) has brought a motion pursuant to section 26(3) of the Fire Protection and Prevention Act, 1997 (the “FPPA”) asking the Fire Safety Commission (the “Commission”) to extend the time to appeal from a Decision and Order (the “Decision”) of the Office of the Fire Marshal (the “OFM”) made under section 25(4) of the FPPA which confirmed one item of the Inspection Order (the “Order”), though with an amendment.
2The issue before me is whether the appellant should be granted an extension of time to file a Notice of Appeal from the OFM Decision.
ISSUE
3Has the appellant satisfied the two-part test under subsection 26(3) of the FPPA by demonstrating apparent grounds for granting the appeal and reasonable grounds for applying for the extension of the time to request an appeal of the OFM Decision to the Commission?
RESULT
4For the reasons below, I find that the grounds for the extension have not been established, and the appellant’s motion to extend the deadline to request an appeal of the OFM Decision is denied.
THE LAW
5Subsection 26(1) of the FPPA permits any person who considers themselves to be aggrieved by an order made by the Fire Marshal under subsection 21(1) or (2) or section 25 to appeal the order to the Commission.
6Subsection 26(2) states that a notice of appeal from an order made by the Fire Marshal shall be filed with the Commission within 15 days after the order is served.
7Pursuant to subsection 26(3), the Commission may, upon application, extend the time for appeal under subsection 26(1) if the Commission is satisfied that there are apparent grounds for granting the appeal and reasonable grounds for applying for the extension. If an extension is granted, the Commission may give directions it considers proper consequent upon the extension.
8Subsection 26(4) provides that an application for extension may be made before or after expiration of the time fixed in subsection (2) but shall be made within 30 days after a copy of the order from which the appeal is made served.
9According to subsection 26(3), when considering an application for an extension of time, the Commission must apply a two-part test:
Whether there are apparent grounds for granting the appeal; and
Whether there are reasonable grounds for granting an extension.
10The onus of satisfying the two-part test rests with the appellant as the applicant on the motion.
11The appeal must have some merit, though what constitutes “apparent grounds” for granting the appeal is understood to require a lower degree of probative value than would the appeal itself at a full hearing.
EVIDENCE AND ANALYSIS
12The Order issued by Inspector Martin Gervais of Ottawa Fire Services (“OFS”) on December 23, 2020 concerned a property located at 68 Lavergne Street in Ottawa. The property is a two-storey building, described by Mr. Legg, the owner, as a rented triplex, though at the time of the inspection it was no longer being occupied as rental premises. The Order required two items to be addressed. The first item required that the owner remove all combustibles accumulated in exit stairways. The second item required that portable fire extinguishers be provided to protect the building.
13Mr. Legg requested a review of the Order by the OFM. In its Decision dated July 27, 2021, the OFM amended the first item and rescinded the second. Based on the evidence submitted to it, the OFM found that combustible accumulations were present in the exit stairway in such quantity that a fire hazard had been created and gave direction pursuant to s, 2.4.1.1(1) of the Fire Code that the combustible accumulations be removed, with a compliance date of August 31, 2021.
14Mr. Legg seeks to appeal the OFM Decision. While the appeal was filed outside of the prescribed time for an appeal to the Commission, OFS, in its submissions on this motion, concedes that Mr. Legg demonstrated his intention to appeal by way of an email to the Commission on August 11, 2021, and that this motion was brought within the time required by s. 26(4) of the FPPA. The key issue on this motion is therefore whether there are apparent grounds for granting the appeal.
15Mr. Legg’s submissions to the OFM, and on this motion, is that the property is vacant, that he secured the building and therefore it is s.2.4.7.1 of the Fire Code which is applicable: “Vacant buildings shall be secured against unauthorized entry”. He submits that because the building is secured and boarded up, the Order is not applicable. However, the evidence before the OFM, which was not disputed and was reiterated at the motion hearing, was that there is an individual who was living at the property at the time of the inspection, and may be continuing to live at the property, though illegally. This individual has been described by Mr. Legg as a criminal/trespasser/squatter. Any of those descriptions may be accurate, but the fact is that there has been a person present on the property; the building is occupied. The building is not vacant and though Mr. Legg has intended that the building be unoccupied and has taken some measures in that regard, it is not adequately secured against entry.
16I note that in submissions, Mr. Legg stated that he would not be contesting this item, if the building was occupied, but that he should only be responsible for clearing the combustibles if the building is occupied.
17As noted in the OFM Decision, a building intended to be unoccupied but which contains combustible materials poses a risk to those gaining entry, whether authorized to enter or not. An owner is responsible for complying with the Fire Code,whether or not the occupant is legally entitled to be there, and in this instance that requires removing combustible accumulations that are present within the building in such quantity to create a risk of fire.
18Based on the evidence and submissions presented on the motion, I conclude that there is no apparent grounds for granting the appeal. In coming to this conclusion, I recognize the frustrations expressed by Mr. Legg and I am sympathetic to the challenges he is experiencing. However, though he is looking for assistance from Ottawa Police Services to rid his property of these trespassers, he does not appear to have fully pursued options available to him in that regard. At the motion, Mr. Huxley acknowledged that Mr. Legg is in a difficult situation and Inspector Gervais indicated that he wants to work with Mr. Legg to achieve compliance, and may be able to facilitate liaison with the Ottawa Police Services. I urge Mr. Legg to pursue this avenue for resolution of his issues.
19This motion is not intended as a hearing on the merits of the appeal of the OFM Decision. However, to satisfy the onus on the appellant, it was incumbent on the appellant to provide some evidence of apparent grounds for the appeal. Unfortunately, he has not met this onus.
ORDER
20I dismiss the appellant’s motion for an extension of time to file the Notice of Appeal.
Released: October 1, 2021
Patricia McQuaid, Vice-Chair