Tribunals Ontario Fire Safety Commission
Tribunaux Décisionnels Ontario Commission De La Sécurité-Incendie
Citation: Spezowka and Hickey v. Thunder Bay Fire Rescue, 2021 ONFSC 14
Date: 2021-11-30
Between:
Kelly-Ann Spezowka and Olivia Hickey
Appellants
and
Thunder Bay Fire Rescue
Respondent
RECONSIDERATION DECISION
Panel: Jennifer Friedland, Member
Susan Clarke, Vice Chair
James Minns, Member
Date: November 30, 2021
Written Submissions by:
For the Applicant: Craig J. Allen, Counsel
For the Respondent: Dawne A. Latta, Counsel
A. OVERVIEW
This is a request for reconsideration of a decision of the Fire Safety Commission (the “Commission”), released July 19, 2021.
The appellants, Kelly-Ann Spezowka and Olivia Hickey, are the owners of seven residential properties in Thunder Bay, Ontario. The respondent, Thunder Bay Fire Rescue (TBFR), issued Inspection Orders against each of the appellant's properties under section 21(1)(f) of the Fire Protection and Prevention Act (FPPA). Pursuant to section 25 of the FPPA, the appellants requested a review of the Inspection Orders by the Ontario Fire Marshal (“the Fire Marshal”). The Fire Marshal, as permitted under section 25(4)(a) of the FPPA, referred the matter to the Commission for a hearing. On July 19, 2021, the Commission issued a final decision, which can be found at 2021 ONFSC 6 | Spezowka and Hickey v Thunder Bay Fire Rescue (the "Decision").
The appeal before the Commission concerned the classification of the properties and whether they are occupied as rooming houses or as dwelling units. If they were classified as rooming houses, it was agreed that the Inspection Orders would be necessary for fire safety and should be carried out. On its own initiative, the Commission identified a further issue: whether additional safety measures may be necessary for fire safety in this particular case, even if the Commission were to conclude that the properties are occupied as dwelling units.
The Commission concluded that the properties were dwelling units and on that basis, it rescinded the Inspection Orders. In addition, it imposed additional safety measures pursuant to its powers under s. 26(6) of the FPPA, having determined that such measures were necessary for fire safety in the particular circumstances of the properties at issue in this case. The additional measures were ordered with corresponding compliance dates.
The additional safety measures ordered pursuant to paragraph G(iii) of the Decision included the following (paraphrased):
(a) Install interconnected smoke alarms and CO detectors in each of the furnace rooms and laundry rooms. To be completed by August 31, 2021.
(b) Install 20-minute fire-rated closures on laundry rooms, furnace rooms and/or any closets containing furnaces. Solid core wood doors are acceptable. To be completed by September 30, 2021.
(c) Install 20-minute fire-rated closures on bedroom doors. Solid core wood doors are acceptable. To be completed by January 31, 2022.
(d) Prepare and implement a Fire Safety Plan for each building.
(e) At least one copy of the Fire Safety Plan shall be prominently posted and maintained on each floor area and in the common rooms (i.e. living room or kitchen) of the main floor level.
(f) A copy of the Fire Safety Plan, including the location of alternate exits (i.e., basement windows), shall be posted on the inside of the egress doors of each basement bedroom.
(g) Install fire extinguishers on each floor level and in each kitchen where shared cooking facilities exist. To be completed by August 31, 2021.
- The appellants’ request for reconsideration of the Decision relates to the additional fire safety measures imposed under paragraph G(iii) above.
B. RESULT
For the reasons given below, the appellants’ request for reconsideration is dismissed.
The Commission does, however, offer a clarification in its conclusion regarding the type of fire-rated doors that were ordered, and a reminder that the appellants were entitled to seek a variation of the timeline for compliance if the respondent did not consent to the requested variation.
C. CRITERIA FOR RECONSIDERATION
The Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure (effective October 2, 2017) (as amended) (the "Common Rules") apply to the conduct of this reconsideration application.
The Common Rules allow the Commission to remedy serious breaches of procedural fairness or serious errors that have affected a decision and would result in a different decision had the error(s) not been made.
For a reconsideration to be granted, the Commission must be satisfied that one or more of the following criteria set out in Rule 18.2 of the Rules are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
(c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
The criteria relied upon by appellants in the request for reconsideration fall under Rule 18.2(a) and (b) above.
Written submissions were received from both parties with respect to whether the reconsideration should be granted.
The request for reconsideration has been decided by the same panel hearing the original appeal as permitted under Rule 18.1.
D. POSITIONS OF THE PARTIES
Appellants’ submissions
- The appellants’ request for reconsideration is three-fold:
a. Mistake of fact / breach of procedural fairness regarding consent to install fire-rated doors
The appellants state that “it was a factual error for the Panel to conclude that the installation of fire rated closures on bedroom doors was consented to by the applicants.” They complain (without evidence) that they have subsequently learned that replacing all such doors would cost the appellants approximately $40,000. They ask that this portion of the decision be “varied or cancelled, or alternatively, that there be an Order for a re-hearing on the part relating to these twenty-minute fire rated closures on all bedroom doors.”
The appellants also allude to not having consented to fire-rated closures on laundry rooms, furnace rooms and/or closets containing furnaces, as ordered under G(iii)(b) other than with respect to installing a fire-rated door at 131 Ravenwood. However, in their initial request for reconsideration they did not seek a remedy with respect to installing fire-rated doors on these other rooms. In their Reply submissions, however, they submit that “fairness dictates that there be a re-hearing on the limited issue of 20-minute fire rated closure on the doors of every bedroom and furnace room in every residence.”
The appellants did not make any submissions as to whether or how the Commission would likely have reached a different result had the alleged error not been made.
The appellants also do not claim that the alleged factual error resulted in a breach of procedural fairness, though this appears to be the implication of their submission.
b. Error of Law
- The appellants further submit that the Commission made an error of law by creating a third, middle category between dwelling units and rooming houses, thereby creating the discretion to make broad-based remedial orders which authority ought to be left to lawmakers. The appellants ask that the order be varied, removing any requirements regarding fire-rated closures with respect to all bedroom doors that were not consented to.
c. Error of Fact
The appellants submit that the Commission erred in finding as a fact that the appellants, through their representative had requested the inspections in 2019. The appellants state that their representative was explicitly advised by the respondent that removal of the circa 2002 orders was conditional on a new inspection. This is notwithstanding that the appellants had been informed in 2004 that the orders had been rescinded. The appellants submit that they did not request an inspection and that the respondent had no basis in law to conduct an inspection 16 years after the original orders had become unenforceable. The appellants ask that the rescinding of the original inspection orders be confirmed without the imposition of any additional terms pursuant to section 26(6) of the FPPA.
The appellants did not make any submissions as to whether or how the Commission would likely have reached a different result had this alleged error not been made.
Respondent’s Submissions
The Respondent submits that the Commission found that the subject residences, while not classified as rooming houses, were being used by students whose living arrangements created elevated risk in the event of a fire such that additional fire safety measures were appropriate. The respondent submits that ordering the Appellants to install fire-rated closures on bedroom doors was reasonable in the circumstances based on the evidence provided at the hearing regarding the occupancy and use of the residences. The respondent submits that consent of the parties is not required. The Commission under s. 26(6) is empowered to make such order that the Commission deems appropriate.
With respect to the purported mistake of fact regarding who requested an inspection, the respondent notes that Fire Inspectors have the statutory right to enter, inspect and issue orders for the purpose of fire safety regardless of prior outstanding orders.
E. Analysis
a. Mistake of fact / breach of procedural fairness regarding consent to install fire-rated doors
The appellants argue that they did not consent to the fire safety measures ordered in paragraph G(iii)(c) concerning fire-rated closures on the bedroom doors.
The appellants also raise a faint allegation that they object to the order requiring fire-rated closures for the laundry rooms, the furnace rooms, and the closets containing furnaces. The appellants do not go so far as to expressly state that they did not consent to the additional fire safety measures in paragraph G(iii)(b) – the laundry room and furnace room door-closure requirements.
The Commission confirms that the appellant was sympathetic to the proposal that the laundry room and furnace room doors be upgraded to solid wood fire-rated doors. It was clear that the appellants’ representative recognized the fire risk typically associated with laundry rooms and furnace rooms. In particular, he agreed to install a solid wood fire-rated door at 131 Ravenwood immediately, mainly because at that address, the furnace room door was nothing more than an accordion-style door. The Commission is satisfied that the appellants’ representative consented to the fire-rated doors for the laundry rooms and furnace rooms.
With respect to the bedroom doors, the Commission agrees that the appellants did not explicitly consent to the Commission ordering that they replace the doors of the bedrooms within a specific timeline. The appellants did, however, indicate that they would install fire-rated bedroom doors as each door was replaced.
Even if the Commission was wrong about whether the appellants consented to the additional measures and/or the timeline by which they would be carried out, the appellants have not made any submissions as to how or whether the Commission would likely have reached a different result had the alleged errors not been made.
The appellants have presented no argument to support a position that the appellants’ consent to the additional fire safety measures is a prerequisite to the Commission’s jurisdiction to impose additional fire safety measures.
Furthermore, the Commission finds that the appellants' consent is not required. The Commission has the authority under the FPPA section 26(6) '…to confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate." The appellants’ consent was not the determinative factor.
On a reconsideration, the onus is on the appellants to prove that the Commission made an error or errors of fact that would likely have led to a different result had the error(s) not been made. The Commission finds that it did not make such an error or errors.
The Commission further finds that it has not acted outside of its jurisdiction or violated the rules of natural justice or procedural fairness by imposing additional measures.
The Commission further notes that the appellants were invited to make submissions on the additional measures that were being considered and did so at the hearing.
b. Error of Law
The appellants argue the Commission made an error in law by creating a third middle category between dwelling units and rooming houses and has requested, selectively, that the order be varied, removing any requirements regarding fire-rated closures with respect to all bedroom doors that were not consented to. If the appellants argument were correct, then the additional fire safety measures included in the Decision under paragraph G(iii) should stand or fall as a whole.
The Commission finds that it did not commit an error of law.
Pursuant to s. 26(6), after a hearing, the Commission may “confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.” The order that the Commission found appropriate in this case was to rescind the Inspection Orders and require the additional measures set out in G(iii) of the decision.
The authority of the Commission to impose additional fire safety measures does not depend on how the building may be classified in the Fire Code. A finding that a property is a dwelling unit does not make the property sacrosanct and beyond the reach of Inspectors, the Fire Marshal or the Commission to regulate for fire safety.
The Commission specified at paragraph 57 of its Decision why the additional measures were being ordered. It explained:
57The Commission makes this Order pursuant to its powers under s. 26(6) of the FPPA as appropriate in the circumstances of these particular properties. While the Commission has found that the properties are occupied as dwelling units and not as rooming or boarding houses, they are nonetheless occupied by students who have fewer connections to one another than would, for example, the members of a single family occupying the premises. The tenants are also all students and there is no “head of the household,” as there would be in a single-family dwelling, who might naturally assume responsibility for ensuring evacuation in case of fire.
- The Commission finds that the imposition of additional fire safety measures in the circumstances of this case did not create a middle category between dwelling units and rooming houses and therefore there is no error of law.
c. Error of Fact – re who requested the Inspections
The appellants argue that the Commission made an error of fact in concluding that appellants had requested the inspections that led to the Inspection Orders under appeal. The appellants then set out the factual background as to how the 2019 inspections came about and further assert that the initial Inspection Orders from 2002 had been “unenforceable for 16 years.” Therefore, it asks that the 2019 orders be rescinded without any additional terms.
The Commission finds that nothing in the Decision rises or falls on whether the appellants consented to or requested the 2019 inspections. With respect to the previous Inspection Orders from 2002, the parties during the hearing expressly agreed that any previous Inspection Orders outstanding against the properties at issue in the appeal would also be rescinded and/or subsumed by the Order the Commission made with respect to the Inspection Orders before it.
The Commission does not agree it made an error of fact. Moreover, the error alleged by appellant is not a significant error such that the Commission would likely have reached a different decision had the error not been made. The Commission agrees with the respondent’s submission that Fire Inspectors have the statutory right to enter, inspect and issue orders for the purpose of fire safety regardless of prior outstanding orders.
F. Conclusion & Clarification
The appellants have failed to satisfy the Commission that any of the Rule 18.2 criteria for reconsideration have been met. The request for reconsideration is therefore dismissed.
In terms of the cost of the fire-rated closures ordered pursuant to G (iii)(b) and (c) of the Decision, the Commission wishes to clarify any confusion that the appellants may have regarding the doors ordered: they are not required to be equipped with self-closing devices nor is it required that they be ULC listed1. Solid core wood doors are acceptable.
The Board also reminds the parties pursuant to paragraph 59 of the Decision that the timelines for compliance with the Order may be adjusted upon the consent of the respondent which shall not be unreasonably withheld. As further set out in the Commission’s Order at G(v), if there is a disagreement over the compliance timelines, the parties may make brief written submissions by email to the Commission on the issue.
G. Order
- For the reasons set out above, the appellants’ request for reconsideration is dismissed.
Fire Safety Commission
Jennifer Friedland, Member
Susan Clarke, Vice Chair
James Minns, Member
Released: November 30, 2021