Noble v. Brockville Fire Department, 2021 ONFSC 13

Tribunals Ontario - Fire Safety Commission

Citation: Noble v. Brockville Fire Department, 2021 ONFSC 13

Date: 2021-11-19

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

Between:

Henry Noble

Appellant

and

Brockville Fire Department

Respondent

DECISION AND ORDER

PANEL: Susan Clarke, Vice Chair Paul Stopciati, Member Rocco Iamello, Member

APPEARANCES: For the Appellants: Self-represented For the Respondent: Inspector Matt Tyo

Heard by video conference: September 29, 2021

A. OVERVIEW

1The appellant, Henry Noble, appeals item 13 of Fire Marshal’s Review FM-20084 dated January 14, 2021 (the “Review Decision”) requiring a fire alarm to be installed in the premises. The location of the premises is 20 Broad Street in Brockville (the “Building”). The building is a three-storey plus basement structure constructed in 1840 and consisting of seven hotel suites on the top three storeys and two apartments in the basement.

2The Building was inspected by Inspector Matt Tyo (the “Inspector”) of the Brockville Fire Department on March 2, 2020. The Inspector issued an inspection order (the “Order”) on March 10, 2021. The Order was made pursuant to clause 21(1)(g) of the Fire Protection and Prevention Act¹ (the “FPPA”), which specifically refers to a contravention of the Ontario Fire Code (the “OFC”).²

3The appellant appealed the Order to the Fire Marshal who issued the Review Decision on January 14, 2021. The appellant then appealed items 9 and 13 in the Review Decision to the Fire Safety Commission (“Commission”).

4Prior to the start of the hearing, the appellant withdrew his appeal of item 9 of the Review Order. Item 13 of the Review Order is the only remaining item on appeal. It requires that a fire alarm be installed in the Building pursuant to OFC Sentence 9.9.4.1.(1), Division B. The Fire Marshal confirmed item 13 and extended the compliance date to October 14, 2021.

5The appellant requests that the Commission accepts his building as a private home with seven hotel suites having exterior access, and rule that a fire alarm system is not required on this basis. Alternatively, he requests that the Commission accepts his proposal to provide access to the third-floor level of the fire escape for one suite through another suite, as meeting the only outstanding condition to exempt the building from the fire alarm system requirement.

B. ISSUE

6The issue to be decided by the Commission is whether it should confirm, amend, or rescind the Review Decision or make such other order as deemed appropriate.

C. RESULT

7The Commission confirms Item 13 of the Review Decision issued on January 14, 2021.

D. EVIDENCE

Appellant’s Evidence and Submissions

8The appellant’s position was that despite the requirement for a fire alarm in OFC Sentence 9.9.4.1.(1), it should not apply to his building for various reasons. He then proposed an “alternative solution” that he believed would allow him to take advantage of the exemption for a fire alarm system in OFC Sentence 9.9.4.1.(2).

Arguments against requiring a fire alarm

9Initially the appellant acknowledged that the requirement for a fire alarm to be installed in his building applied to his building and that the exemptions in OFC Sentences 9.9.4.1(2) and (3) did not apply. However, later in the hearing, he argued that the lawmakers did not anticipate his particular use of the building as a small “boutique hotel” and suggested the OFC should include a new category for bed and breakfast establishments, and private homes operating as small hotels.

10The appellant then argued that there is no conceptual difference between operating as an apartment building, (which the building was converted to under building permit in 1989), and a hotel (converted without building permit in approximately 2017), except the length of the stay. Currently he rents the suites for short term stays. He points to factors that should be taken into consideration, such as that both he and his manager live on site, and that there are only seven rental units.

11The appellant further argued that the fire alarm system required in Sentence 9.9.4.1.(1) will not increase the safety of the occupants over the interconnected smoke alarm system with battery backup, and the combination smoke alarm/carbon monoxide detectors already provided throughout the building. He gave examples of how well his system works and why a fire alarm system is unnecessary.

12His final arguments are based on architecture and cost, and how Covid has affected his income.

Appellant’s Proposal

13The appellant made a proposal at the hearing, to address the compliance option in OFC Sentence 9.9.4.1.(2), noting that of the four conditions for using the exemption, all but one was satisfied:

(2) A building is deemed to be in compliance with Sentence (1) where

(b) Each guest suite³ is served by an exterior exit facility leading to ground level.

14To support the appellant’s proposal, he explained that only suite 300 on the third floor lacked direct access to the outside. He proposed to direct occupants of suite 300 across the corridor and through suite 301 to the fire escape on the other side of the building, arguing that the word “served” in clause (b) should not be interpreted to mean that every suite must have direct exiting. To this end, he proposed the following features:

• Signage in the corridor, and in suite 300, explaining how to access the fire escape by walking through suite 301,
• Key to suite 301 in a lockbox in the corridor adjacent suite 301,
• Emergency lighting in the corridor aimed at the lockbox, and at the lock to suite 301,
• Signage in suite 301 advising guests that their suite is an access to the fire escape for other suites, and
• Ensure the door to suite 301 from the corridor does not have a safety chain.

15The appellant has already implemented his proposed solution and stated that it is working as guests have not complained about the procedures.

16Under cross-examination, the appellant acknowledged the following:

• One of the basement apartments was constructed without a building permit
• The wording of Sentence 2.7.2.2.(1):

“…locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on,

(a) Every door that is in an access to exit and that opens into or is located within

i. A public corridor,

ii. A facility that provides access to exit from a suite”

but his opinion is that what he has provided meets the intent of the OFC. He has created an access route that is readily available and doesn’t require special knowledge but does require a key.

17In response to questions from the Commission, the appellant stated:

• The occupant load of the building is potentially up to 30 people based on beds and sofa beds, but typically there are only 14 guests.
• In 1989 when he converted his home to an apartment building, the building department accepted the 3rd floor exit, and confirmed that there were 2 apartments on the 3rd floor at that time.
• He was not aware OFC Section 9.9 provided for relaxation of certain requirements for smaller buildings.
• He thought his building was a heritage building, but had never had it designated, but thought if it was designated, he might not have to comply with the OFC.

Respondent’s Evidence and Submissions

18The Inspector stated that the respondent’s position is that the building is a hotel, and the requirements in OFC Section 9.9 Hotels applies to it. He appreciates the appellant’s attempts to allow for a 3rd floor exit through another guest suite, but his solution is still a contravention of the OFC because it is not an acceptable exit for that guest suite. Therefore, the Inspector believes a fire alarm system is required in the building.

19The Inspector provided a history regarding the building, including that it was originally inspected as an apartment building. He noted that he first conducted an inspection in 2020 as a result of a hotel guest’s complaint. During his inspection he found some contraventions of the Fire Code. One of these contraventions was the lack of a fire alarm system.

20The Inspector advised that the appellant has addressed all items in the Order, with the exception of the fire alarm system.

21The appellant declined to cross-examine the Inspector.

22In response to the panel’s questions, the Inspector stated the following:

• Guest suite 301 has direct access to the fire escape; suite 300 does not.
• The hotel is advertised online through vehicles such as TripAdvisor, for short term rentals.
• The Inspector believes that the building meets the definition of a hotel in the OFC as it has four or more suites for the travelling public or for recreational purposes
• The Inspector believes that Section 9.9 Hotel retrofit applies to the building as it meets the conditions described in Article 9.9.1.1. for application of Section 9.9 to the building.
• The only other compliance option available to the appellant is by officially pursuing an Alternative Solution⁴ as set out in Subsection 1.2.2., Division A (see description in paragraph 38).

E. ANALYSIS

The Law

23Subsection 26(1) of the FPPA gives the Commission the authority to confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.

24Article 1.4.1.2., Division A of the Fire Code defines hotels, and hotel establishments as:

Hotel means floor areas, a floor area or part of a floor area containing four or more suites that provide sleeping accommodation for the travelling public or for recreational purposes.

Hotel establishment means a building containing a hotel and all subsidiary occupancies that are operated in connection with the hotel and includes all connected or adjacent buildings that are operated in connection with the hotel.

25Article 9.9.1.1., Division B states that with certain exceptions, Section 9.9 applies to every hotel establishment. The exceptions include hotel buildings not more than 1 storey in building height and 300 m2 in building area, buildings that comply with other retrofit Sections where the use hasn’t changed since December 31, 2006, and other major occupancies within the building under independent control.

26Sentence 9.9.3.2.(1) states that each guest suite shall have egress facilities leading directly to

(a) A public thoroughfare,

(b) An approved open space that has access to a public thoroughfare, or

(c) A corridor where it is possible to go in opposite directions to separate exits, except as otherwise permitted by this article or Article 9.9.3.3.

27Sentence 9.9.4.1.(1) states that a fire alarm system with listed components shall be installed in accordance with Articles 9.9.4.2. to 9.9.4.12. The Sentence lists several applicable factors, any one of which would require a fire alarm to be installed, including:

(a) The building area is more than 600 m2,

(b) The building is more than 1 storey in building height, or

(c) Each guest suite is not served by an exterior exit facility leading to ground level.

Analysis

28The Commission finds that OFC Sentence 9.9.4.1.(1)., Division B applies to the building, and that a fire alarm system is required. The Commission does not accept the appellant’s proposal.

29The Commission has considered the appellant’s two positions, including first why he believes Sentence 9.9.4.1.(1) should not apply to his building, and second why he believes that he meets the exemption to the fire alarm requirement in 9.9.4.1.(2) by implementing his proposed solution.

Application of OFC Article 9.9.4.1.

30The Commission has considered the definitions of hotel and hotel establishment, and the wording in Article 9.9.1.1., and finds that the building is a hotel and that the requirements of Section 9.9 apply, including those for a fire alarm system in Article 9.9.4.1. The Commission has considered the numerous arguments presented by the appellant and find that they do not satisfy the requirements in the Fire Code, nor address the two options for compliance described in OFC Article 1.2.2.1., Division A.

31The Commission considered the factors in Sentence 9.9.4.1.(1) and finds that clause 9.9.4.1.(1)(b) states that where the building is more than 1 storey in building height, a fire alarm system is required. The building is 3 storeys in building height, and therefore a fire alarm system must be installed.

32The Commission has considered the exemptions to a fire alarm system described in Sentences 9.9.4.1.(2) and (3). In each of these exemptions all factors listed must be satisfied for the exemption to apply. The parties were in agreement that clause (b) in Sentence (2) is not satisfied. The exemption in clause (b) in Sentence (3) does not apply because the occupant load of the building exceeds the limit of 10 people. In summary, none of the exemptions apply.

33The OFC clearly states that a fire alarm is required for this type of residential occupancy. The appellant has made numerous arguments as to why a fire alarm system should not be required in his building, including that the lawmakers didn’t intend for Section 9.9 to apply to a hotel as small as his, or one that was owner occupied. Section 9.9 does however appear to consider smaller buildings as it provides exemptions for buildings of limited storeys, and also where there are limited numbers of occupants. For example, Article 9.9.4.5. requiring an annunciator panel for the fire alarm system (something the appellant voiced a concern about) is only required in buildings greater than 3 storeys. Sentence 9.9.3.3.(4) permits a single exit from the 3rd storey where it is used solely as the residence of the hotel owner or manager.

34The appellant also argued that there was no conceptual difference between an apartment building and a hotel other than the length of stay, implying that because he didn’t need a fire alarm when his building was previously an apartment building, one shouldn’t be needed now. While both apartment buildings and hotels are residential-type occupancies, there are different risk factors between them. Thus, OFC Part 9 Retrofit has different Sections to address these different sub-sets of residential occupancies, and the need for a fire alarm system is treated differently.

35The appellant further argued that his smoke alarm system was adequate, providing examples of how well it worked and how a fire alarm system wasn’t necessary. It is true the OFC permits an interconnected smoke alarm system in Section 9.5 for smaller apartment buildings as a compliance option to a fire alarm system. However, the OFC does not permit this in Section 9.9 for hotels.

36The appellant claimed that the installation will affect the appearance of his hotel; and he can’t afford to install a fire alarm system. The Commission has considered each of these concerns but finds that Sentence 9.9.4.1.(1) still applies.

37OFC Article 1.2.2.1. Division A provides an owner to address such concerns by giving him the opportunity to present an “Alternative Solution” to the Chief Fire Official for review and approval where it will achieve the same objectives and performance level of Sentence 9.9.4.1.(1), Division B, (paraphrased). The process for submissions, review, approval and implementation are described in Subsection 1.3.2., Division C. In short, the OFC allows either strict compliance with the regulatory requirement, or presenting a proposal that evaluates the level of safety provided by the requirement and proves that the same or better level of safety is provided by the option presented using the detailed process prescribed in the Subsection. In conclusion, the arguments presented by the appellant do not include the level of qualified analysis and documentation required in Subsection 1.3.2.

Appellants Proposal

38Article 9.9.4.1. requires the building to be equipped with a fire alarm system. Sentence (2) provides an exemption, however clause 9.9.4.1.(2)(b) is not satisfied. The appellant has made a proposal to satisfy this clause which states, “each guest suite is served by an exterior exit facility leading directly to ground level”.

39The Commission has considered the appellant’s proposal to comply with clause 9.9.4.1.(2)(b) by providing a means for the occupants of suite 300 to access the fire escape available only to suite 301, through the use of a key to suite 301 and explanatory signage. We have considered the appellant’s argument that the wording in clause (b) does not state that suite 300 must have direct access (panel’s emphasis) to the fire escape on the other side of the building, and that suite 300 is “served” (panel’s emphasis) by that exit. The Commission does not accept the appellant’s proposal because it is our interpretation that the word “served” means that the guest suite must have its own dedicated exterior exit, and therefore the exemption in Sentence 9.9.4.1.(2) does not apply. The building is required to have a fire alarm system as described in Sentence 9.9.4.1.(1).

40The appellant has proposed what he believes to be a solution, but has not provided an actual Alternative Solution (the “AS”) as the only way the Fire Code permits alternate compliance to a requirement of the Acceptable Solutions in Division B such as Sentence 9.9.4.1.(1). He has not provided the documentation for an AS described in Article 1.3.2.2. Division C, which includes documentation that demonstrates that the AS meets the objectives and functional statements attributed to the fire alarm requirement, an analysis outlining the analytical methodology and rationale used to determine that the AS will achieve at least the minimum level of performance intended, and information about any “check, inspect, test, maintenance or operational requirements” to name just some of the documentation requirements. The Commission cannot accept the proposal on this basis. The Commission elects to consider the proposal simply on the merits of creating an access to exit, which we believe was the appellant’s intent.

41The Commission heard the Inspector’s issue that the proposal violated the requirement in OFC 2.7.2.2.(1), Div. B that every door in an access to exit route had to be openable without specialized knowledge or keys, and the appellant’s response that he felt he met the intent of the OFC even though a key was required. The appellant didn’t agree that special knowledge was required. We have considered the arguments and the photographic evidence submitted by the appellant and agree with the Inspector, that there cannot be any barrier to accessing an exit. We believe that requiring the occupants of both suites 300 and 301 to understand the exiting procedures, and requiring those of suite 300 to have to read the signage, find the key, unlock the door to suite 301 and then navigate its hallway to the patio door leading to the fire escape, requires both specialized knowledge and a key.

42The appellant argued that clause 9.9.4.1.(2)(b) didn’t require “direct” access to the exit, and that the term “served” meant only that the exit had to be “available” to suites on the floor. He argued that his proposal satisfied that requirement. The Commission looked elsewhere in Section 9.9 and found in Sentence 9.9.3.3.(3) that in a 3-storey building “the third storey shall be “served” by at least 2 exits”. Exits are described in the Building Code as being, “singly or in a combination, an exterior doorway, exterior passageway, exterior ramp, exterior stairway, fire escape, horizontal exit, interior passageway, interior ramp, or interior stairway”. Paraphrasing OFC Subsection 9.9.3, guest suites are expected to have a choice of two exits situated in opposite directions and distant from each other so that if one was unavailable, another would provide for evacuation from the building. However, in looking at the wording of clause 9.9.4.1.(2)(b) it doesn’t provide an exemption if the 3rd storey is served by two exits; it limits the exemption only where the guest suite is served by an “exterior exit facility”. When we look at this requirement and how it would apply to different floor levels, we note that an exterior exit facility can be a fire escape or exterior stairway or exterior passageway leading to exit stairs (as in a motel) but may also be an exterior doorway on the ground level.

43The Commission has reviewed the wording and apparent intent of these various references in the preceding paragraph and has interpreted clause 9.9.4.1.(2)(b) to mean that suite 300 must have its own dedicated exterior exit, even though there may also be two exits serving the floor area. We believe the rationale is that without a fire alarm system, a smoke alarm (clause (d)) will provide occupants of suite 300 at least some warning that there is a fire and occupants will be able to evacuate via a dedicated fire escape. The inference is that by the time occupants are aware of a fire emergency the corridor system may already be compromised by fire, removing access to the available required exits serving the floor level. It is likely for this reason that another condition (clause (c)) of this exemption is that the guest suite must be fire separated from surrounding areas, affording it protection for 45 minutes from a fire external to the suite.

ORDER

44For the reasons set out above, the Commission confirms Item 13 of the Review Decision issued on January 14, 2021.

45The compliance date set out in the Review Decision is amended as follows: Item 13 shall be completed by May 19, 2022.

Footnotes

1. 11997, S.O. 1997, c.4
2. 2O.Reg. 213/07, as amended
3. 3Terminology in bold-face type means defined in OFC Article 1.4.1.2., Division A
4. 4OFC emphasis, meaning term is defined in Article 1.4.1.2., Division A