FIRE SAFETY COMMISSION

Tribunals Ontario

COMMISSION DE LA SÉCURITÉ-INCENDIE

Tribunaux décisionnels Ontario

Citation: Hamilton Fire Department v Callan, 2021 ONFSC 12

Date: 2021-11-24

Appeals under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, from a Decision and Order of the Office of the Fire Marshal

Between:

Hamilton Fire Department Appellant

And

Sharon Callan Respondent

DECISION AND ORDER - AMENDED

PANEL: Marisa Victor, Vice-Chair James Minns, Member Paul Stopciati, Member

APPEARANCES:

For the Appellant: Kaush Parameswaran, Counsel

For the Respondent: No one appeared

Held by teleconference and in writing: September 7 and 14, 2021

OVERVIEW

1There are two appeals. The issue is the first appeal is whether it is moot and whether the exit doors to the fire escape provide adequate protection as required by the Ontario Fire Code (“OFC”). The issue in the second appeal is whether the windows next to the fire escape need to be brought into compliance with the OFC. Both appeals are of a decision made by the Ontario Fire Marshal (“OFM”) issued on March 4, 2021 (the “Review Order”).

2The building is a three-storey apartment building located at 193 Herkimer Street in Hamilton (the “Building”). The Building was previously owned by Sharon Callan (“Callan”). Callan was the owner at the time of the Inspection Order issued on August 28, 2020 (the “Inspection Order”) by the Hamilton Fire Department (“HFD”) and at the time that the Review Order was issued. Prior to the hearing of the appeals, Callan contacted the Commission and stated that she sold the Building as of July 2021 and would not be appearing at the hearing. Callan did not attend the hearing.

3In file number 13227 (“Appeal #1”), HFD appeals item 1 of the Review Order that states that the exit doors opening out onto the fire escape (“Item 1”) are in compliance with the OFC. The Inspection Order determined that the doors near the fire escape did not meet the required 20-minute fire rating requirement set out in the OFC. The Review Order overturned the HFD’s Inspection Order.

4The HFD asked that the appeal continue in absence of the respondent and that the Commission decide the merits of Appeal #1. The Commission asked that the appellant’s closing submissions be made in writing and address whether or not the appeal is moot.

5In file number 13226 (“Appeal #2”), Callan appeals item 2 of the Review Order that ordered that the windows next to the fire escape (“Item 2”) be brought into compliance with the OFC.

6Callan did not appear at the hearing and Appeal #2 was dismissed at the hearing as abandoned.

ISSUES

7The issues to be determined are:

1. Is Appeal #1 moot because the respondent, Callan, is no longer an owner of the Building that is the subject of the Review Order?

2. If Appeal #1 is not moot, should Item 1 of the Review Order be confirmed, amended, or rescinded?

RESULT

8The Commission finds that Appeal #1 is not moot, that the doors are not in compliance with the OFC, and that Item 1 of the Review Order is rescinded.

(1) IS APPEAL #1 MOOT?

Appellant’s Evidence And Submissions

9The appellant submits that Appeal #1 is not moot. The appellant states that the appropriate test for mootness is the two-part test set out in Borowski v. Canada (Attorney General).¹

10The appellant states that a change in ownership of the Building does not mean that the appeal is moot because the appellant is appealing the factual findings of the OFM. That finding states that the doors by the fire escape meet the 20-minute fire rating requirement in the OFC.

11The appellant submits that if the Commission finds that the appeal is moot, it should nevertheless use its discretion to decide the issue in dispute because the issue is one of public importance.

Analysis

12In Borowski, the Supreme Court of Canada set out the two-part test for mootness. The first stage of the test asks if a live controversy still exists. A live controversy affects the rights of the parties and is not merely academic in nature. If there is no longer a live controversy, then second part of the test must be considered. That test examines whether a court or tribunal should exercise its discretion to issue a decision in any event.

13The above case is binding on the Commission and has been relied upon in previous Commission decisions.²

14It is clear that a live controversy remains. The appellant alleges that the physical composition of the apartment doors opening up onto the fire escape mean that they do not meet the fire-rating requirements set out in the OFC. There is no indication that there has been any work done or doors replaced. The only change in this matter is the ownership of the Building which does not affect the factual dispute regarding the physical nature of the doors. The dispute may also affect the rights of the appellant, specifically the ability of the HFD to enforce a future order relating to the exit doors of the Building. However, without issuing a new Inspection Order on the new owner, the change in ownership may affect the enforcement of any order of the Commission in this appeal, but that is not a factor set out in the Borowski mootness test.

15Given that a factual dispute remains, we do not need to proceed to the second test which concerns whether or not the Commission should use its discretion to issue a decision.

16In addition to Borowski, appeal rights to the Commission are set out in section 26(1) of the Fire Protection and Prevention Act, 1997 S.O. 1997, c. 4 (the “Act”). That section of the Act states that any person who considered themselves aggrieved by an order of the OFM may appeal to the Commission. Here, the fact that the ownership of the Building may have changed and that the respondent is no longer taking part in the appeal does not alter the appellant’s right to appeal. The appellant remains aggrieved of a decision of the OFM regardless of the participation or non-participation of the respondent.

17Therefore, the appeal is not moot. It passes the test set out in Borowski and is a proper appeal under the Act.

(2) SHOULD ITEM 1 OF THE REVIEW ORDER BE CONFIRMED, AMENDED, OR RESCINDED?

Appellant’s Evidence And Submissions

18The appellant submits Item 1 of the Review Order should be revoked because the exit doors do not meet the requirements of sections 9.5.3.7(2) and 9.5.3.7(3) of the OFC. Section 9.5.3.7(2) of the OFC requires that if a fire escape serves any storey above a second floor, and here there are three floors, then all the exit doors shall be protected. Section 9.5.3.7(3) of the OFC requires that the doors have a fire-protection rating of not less than 20 minutes.

19HFD Fire Inspector, Maria Harrison (“Harrison”), testified for the appellant. An initial inspection by a different inspector took place on July 1, 2020. The file was transferred to Harrison on July 2, 2020. She conducted a re-inspection of the Building on August 27, 2020. On August 28, 2020, she issued the Inspection Order requiring Callan to protect the doors near the fire escape. In addition, she testified that she visited the property again two weeks before the hearing to confirm there had not been changes to the doors.

20Harrison testified that there are five units that exit onto the fire escape. She supported her testimony with extensive photographs of the doors as well as a floor plan. The photos show that the doors leading to the fire escape appear to be wood doors. Units 1 to 4 have panel type doors with glass inserts. Unit 5 has what appears to be a solid wood door, no panels, but does have a glass insert. Each of the exit doors has an aluminium storm door with a large glass opening. The upper part of each door, regardless of panels, has a glass insert approximately 23” high and 20.5” wide. The windows do not have a scoring on the glass to indicate that they have a 20-minute fire rating. Harrison testified that none of the doors, glass insert or storm doors had anything on them to indicate that they are fire rated.

21Chief Fire Prevention Officer, Peter DeBoer (“DeBoer”) also testified for the appellant. He testified that the exit doors are necessary exits within the definition in the OFC. He stated that the doors do not meet the requirements of the OFC. His evidence was also that exit doors as they are would compromise the safety of the residents of the Building and first responders if there was a fire. Therefore, the measures set out in the Inspection Order, overturned by the Review Order, are necessary for fire safety in the Building.

22DeBoer testified that without a label on the doors and glass inserts it is difficult to determine compliance with the OFC. The doors are approximately 20-25 years old. The doors may not be solid wood. The door thickness needs to be 1 ¾ inch solid core wood; however, wood panel doors are found on units 1 to 4, meaning that even if the outside of the door meets the thickness requirements, the panel sections are thinner. Unit 5 appears to be solid wood and has no panels, but it too has a glass window.

23DeBoer stated that the doors could be replaced or a door kit could be installed which would provide the required 20-minute fire rating needed. The glass inserts could also be replaced with wired glass.

24DeBoer testified that the HFD’s submissions to the OFM did not include photos of the doors to show that there were windows and panels.

Analysis

25Based on the evidence, we concluded that Item 1 of the Review Order should be rescinded. The appellant’s uncontested evidence is that the exit doors for units 1 to 5 do not meet the requirements of Sections 9.5.3.7(2) and (3) of the OFC.

26Harrison and DeBoer both provided testimony that supported the appellant’s position. Harrison made observations at the inspection and then again only weeks ago, supported by photographs and drawings, that showed that the exit doors had windows and panels. Her testimony also confirmed that none of the doors contained markings to show that they were fire rated. DeBoer’s testimony provided additional evidence about the requirements of the OFC and how best the doors could be replaced or converted to meet the required fire rating in the OFC.

27The appellant has shown that Item 1 of the Review Order should be rescinded. The exit doors must be constructed in such a way that they would meet the fire rating requirement of at least 20 minutes. Four of the doors contain panels which means that they are not thick enough to provide the required protection. All five doors include glass panels that are not fire rated. None of the doors therefore satisfy the requirements of the OFC. By rescinding Item 1 of the Review Order, the original Inspection Order, as it relates to the exit doors, must be complied with. This is required for fire safety in the Building.

ORDER

28Appeal #1, appeal file 13227, is granted. Item 1 of the Review Order is rescinded.

29Appeal #2, appeal file 13226, is dismissed as abandoned. Item 2 of the Review Order is confirmed.

Footnotes

1. 11989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (“Borowski”)
2. 2Algonquin and Lakeshore Catholic District School Board v. Kingston Fire and Rescue Services, 2016 CanLII 107887