Tribunals ontario Fire Safety Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission de la sécurité-incendie
Appeal under sections 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 , (“the Act”)
Between:
Kurt Robinson Appellant
And
Thessalon Fire Department Respondent
DECISION AND ORDER
Panel: Harriet Lewis, Member Santina Moccio, Member Priscilla Reeve, Member
Appearances: For the Appellant: Antoine-Rene Fabris, Counsel For the Respondent: Mark Lepore, Counsel
DECISION AND ORDER
BACKGROUND
1The Appellant, Kurt Robinson (“Mr. Robinson or the Appellant”) owns a property located at 330 Federation Street, Thessalon, Ontario (“the Building”). The Building, formerly a motel, is a one storey wooden structure containing 7 units, 5 of which are occupied as apartments. Of the occupied units, one has two bedrooms; the others have one. One of the unoccupied units, (unit 5), is currently a laundry room containing a washer, dryer and gas-heated hot water tank. The other unoccupied unit, (unit 7), has two bedrooms but is currently used by the owner for storage of landscaping and other equipment. The units are not interconnected: each has one exit door to the front of the unit, a large and a small window also facing the front, and a small window facing the back. The Building is on a block foundation with a crawl space underneath.
2In the spring or early summer of 2020, Mr. Robinson had entered into an Agreement of Purchase and Sale for the Building and required evidence of the building’s condition for insurance purposes as a condition of the sale. At his request, on July 15, 2020, the Town of Thessalon’s Fire Department’s chief, Scott Lawrence, (“Chief Lawrence”), attended at the Building with Mr. Robinson and his real estate agent.
3Following that attendance, Chief. Lawrence issued and served Mr. Robinson with two orders under s. 21(1)(f) of the Fire Protection and Prevention Act, 1997, (the “Act”): setting out the measures he deemed necessary to ensure fire safety in the premises. Order 00001 required smoke detectors in each dwelling unit. Order 00002 required the Appellant to build fire separations having a fire-resistance rating of not less than 30 minutes between the units. Order 0002 was withdrawn on July 23, 2020 and replaced by Order 0003 on July 24, 2020.
4Order 0003 (the “Order”), noted a fire safety concern: that “the building contains 7 dwelling units located adjacent to one another and not separated by fire separations having a fire-resistance rating. The lack of fire-rated separations will allow fire to spread unimpeded from adjacent rooms to a dwelling unit or sleeping room, causing harm to persons adjacent dwelling units” The Order required Mr. Robinson “to provide a fire separation having a fire resistance rating of not less than 30 minutes for each dwelling unit from adjacent rooms and areas.” In addition, the Order specified the requirement that any constructed separations were to comply with various sections of the 1990 Building Code. The appellant was given until September 30, 2020, to comply with the Order.
5By an Application to Appeal dated July 30, 2020, Mr. Robinson sought review by the Fire Marshall of the work specified in orders 0001 and 0003. The Fire Marshal referred the appeals to the Fire Safety Commission (“the Commission”) as provided for under subsection 25(4) of the Act. Prior to the hearing of this appeal, the parties resolved the issue of the smoke detectors, so that the hearing before this panel was solely in respect to the issue of the required fire separation between units. To date, no steps have been taken by Mr. Robinson to comply with that requirement in Order 0003.
6In his appeal documents, Mr. Robinson disputes that he asked Chief Lawrence to do a fire inspection of the Building. In his appeal, he states that Chief Lawrence issued the Order “on false pretense”. He acknowledged that he asked Chief Lawrence for his opinion on what would be required for fire insurance purposes, but he considered that in doing so he was asking “for an opinion from a professional that has been at the property a number of times and also done plumbing work at this location”. He claims that there is adequate separation between apartment units, and that to construct fire resistant separations between the units and replace the ceiling is unnecessary for fire safety and would be inordinately expensive
7Based on the evidence and submissions of the parties, the Commission finds that the work set out in the Order is necessary to ensure the fire safety of the Building and its occupants. The Commission therefore dismisses the appeal and confirms the Order but amends the compliance date to June 30, 2021.
ISSUES
8Is there currently a 30-minute fire separation between the units in the Building, and if not, is a separation of not less than 30-minutes between the Building’s units necessary in order to ensure fire safety such that the Order should be upheld?
9If compliance with the Order is required, how much time should the appellant be given in order to achieve compliance.?
THE LAW
10Subsection 21(1) of the Act states that an inspector who has carried out an inspection of land or premises under sections.19 or 20 may issue an order requiring an owner to “take any measure necessary to ensure fire safety on the land or premises”. Section 19(1) includes a fire chief as an inspector for the purposes of part V of the Act, dealing with inspections. Under 21(b) an order can be made to “make structural and other repairs or alterations, including material alterations, to the buildings or structures”. Under 21(f) an order can be made to “do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan.” Simply put, the orders that can be made under Section 21 must be determined by the inspector to be necessary to ensure the fire safety of the building.
11The appellant appealed to the Commission under s. 26(1) of the Act which in s. 26(6) authorizes the Commission to confirm, amend or rescind the Order or make such other order as the Commission deems appropriate.
EVIDENCE AND ANALYSIS
12The evidence on behalf of the Respondent Fire Department was given by Chief Lawrence, a long-time volunteer firefighter with the Fire Department and currently its chief and by Laura Elchyshyn, from the Office of the Ontario Fire Marshal. Mr. Robinson testified and called no other witnesses.
13Mr. Robinson and Chief Lawrence knew each other prior to the July 15, 2020 inspection because Chief Lawrence did plumbing work for Mr. Robinson in his personal capacity as a plumbing contractor. In late June 2020, Mr. Robinson contacted Chief Lawrence to determine whether the Building would satisfy the insurance requirements for its sale or if it needed a “retrofit”. Chief Lawrence advised Mr. Robinson at that time that the Building would need to have adequate fire alarms and thirty-minute fire separation between units which could be achieved by having the walls drywalled. There is a dispute is about what Mr. Robinson told Chief Lawrence at that time about the state of the fire alarms and the composition of the Building’s walls, but Chief Lawrence recalls that Mr. Robinson told him that the Building was in compliance with the required standards.
Issue 1: Is there a 30-minute fire separation between the building units and if not, is a 30-minute fire rating necessary in order to ensure fire safety ?
14The evidence provided by the parties does not show that there is a 30-minute fire separation between the building units.
15Chief Lawrence attended at the building on July 15, 2020 with Mr. Robinson and his real estate agent. Chief Lawrence testified that at that time he inspected “all available units” and noted that the ceiling was composed of 1’ x 1” tiles of an unknown material, that the walls separating the units appeared to be made of 1/4” thick wood panelling and other wallboard, and that there were no working smoke alarms. He recalls telling Mr. Robinson that in his opinion, the Building would not pass inspection as it stood and required the walls to have a 30 minute fire separation as well as working smoke alarms in each dwelling unit.
16Following that first visit to the Building, Chief Lawrence spoke with Ms. Elchychn to discuss the requirements for the Building. He understood that the Building would not come under the “retrofit “ sections of the Act, (as Mr. Robinson had proposed), and that the proper course for him to follow to ensure fire safety was to make an order under section 21(1)(f) of the FPPA.
17The relationship between Chief Lawrence and Mr. Robinson broke down after the orders were served and Chief Lawrence was not permitted to enter the Building to assess whether the smoke alarms had been installed as required under Order 00001.
18In mid September 2020, accompanied by an Ontario Provincial Police officer and a town official, Chief Lawrence gained access to the Building to inspect the units. At the time, not all the smoke alarms were working. Only toward the end of September 2020, and after the involvement of counsel for both parties, could Chief Lawrence confirm that proper smoke alarms were in place. This was done by receipt of an attestation to that effect signed by the Building’s tenants.
19In his testimony, Chief Lawrence referred to various photographs in support of his findings. Chief Lawrence’s evidence supporting his reasons for issuing the orders was as follows:
a. Smoke alarms are not enough to ensure fire safety. They warn of a fire, they do not supress it. The Building does not have sprinklers or another fire suppression system. If a fire starts in one unit in the Building, even if an alarm sounds, a fire is likely to quickly spread throughout the Building to other units. The more time residents can have to exit, the less likely it is that there would be the loss of life of residents or first responders. To the best of Chief Lawrence’s knowledge, both the Building’s attic and its foundation are open and contain no unit separations. Flames, smoke and gases will travel quickly between units when unimpeded by fire-rated barriers.
b. The Thessalon Fire Department’s pumper truck is likely to be able to reach the Building in 4-6 minutes after notification of a fire in one of the units. Because the truck has a large water tank, the crew need not make use of a nearby hydrant, saving precious time. However, the area in front of the Building is cluttered. Chief Lawrence observed equipment, barbeques, and parked vehicles which would likely impede a fire crew’s quick access to the unit doors to rescue occupants and fight the fire.
c. The ceiling of the units appears to be made of flammable ceiling tiles. The walls separating the units are of various materials, but mostly of thin wood panelling and composite board, some of which was wallpapered and some of which appeared cracked.
d. Chief Lawrence could not specifically identify from a picture of a hole in the wall, what material was contained in the layers inside the wall. However, in his opinion, the picture showed that the Building structure was wood panelling over paper-covered insulation and was likely combustible.
e. The units are small and crowded. In at least one unit, Chief Lawrence noticed evidence of cigarette smoking in the form of unemptied ashtrays and nicotine stained walls. He also noticed evidence of alcohol consumption by some tenants because of empty beer cans and an empty alcohol bottle. In Chief Lawrence’s opinion and experience, smoking can start fires. Many fatal fires start at night. Those who drink alcohol are more likely to sleep heavily, wake up disoriented and take longer to exit their dwellings in the event of a fire.
f. Some of the units had furniture arranged in a way that could impede access to and from the only exit door. Some had clutter on the counters, on the stove, and/or adjacent to the exit.
g. The only exit from any of the units is through the front door. There is a small window at the back of each unit and there are two front windows; one small and one larger. None are viable exits in the case of a fire.
20On cross examination, Chief Lawrence was asked whether he had concern that the building was one of the few available in the town for low-income tenants. He said that whether there was alternate accommodation available for the tenants during any construction played no part in his decision to issue the Order. Chief Lawrence’s only concern was for fire safety; a concern that he and others in his department had had about the Building for some time.
21Ms. Elchyshyn is a program specialist and protection advisor with the Office of the Ontario Fire Marshal. The role of her office is to provide advice and assistance to municipalities, and particularly those like Thessalon with volunteer departments. She was asked by another fire protection advisor to reach out to Chief Lawrence to discuss the appropriate action with respect to the conditions at the Building. Both she and Chief Lawrence concluded that an order under s. 21(f) was the appropriate way to proceed in this case.
22Ms. Elchyshyn noted that fire suppression ratings on materials address the need to contain a fire for long enough to ensure occupants have time to get out and then long enough to allow firefighters to limit the spread of the fire and reduce damage to other parts of the building. Different materials can be used to satisfy the rating requirement, including gyprock, plaster and lathe, and heavy timber. If a property owner can prove that the materials in place meet the rating, an order may be withdrawn. Based on pictures of the Building shown to her in cross examination, she observed only three wall panels looked like they may meet the 30 minute fire separation rating.
23Mr. Robertson is in the property rental business and owns ten rental properties, all of which contain multiple units. His testimony focussed on the following points:
i. That he didn’t specifically request Chief Lawrence to do a “fire inspection”.
ii. That the units “as is” do not pose a threat to fire safety;
iii. That both the inconvenience to the tenants and the cost to him that would result from his compliance with the order, are unreasonable.
24Although Mr. Robinson maintains that he did not ask Chief Lawrence to do a fire inspection, he admits that he contacted Chief Lawrence specifically in order to get his opinion and advice on the requirements to satisfy concerns raised by a proposed purchaser’s insurance company. Thereafter, he invited Chief Lawrence to look at the Building with his real estate agent to assess its condition. In our view, it was unreasonable to believe that once in the building, Chief Lawrence could ignore its condition, based on his expertise and in his role as Fire Chief and inspector. Upon seeing the condition of the Building, Chief Lawrence had both a right and an obligation to use his judgment and his powers to ensure fire safety.
25Mr. Robinson submitted a series of videos of the exterior and interior of the Building in evidence. These included recordings of a nearby fire hydrant, the hole he made in the exterior wall of the Building showing that wall’s interior contents, and videos of each of the tenants’ units, the laundry room, and the unit used for equipment storage. In every case, the videos supported Chief Lawrence’s description of the Building and its contents. Most of the walls appeared to be either wood panelling or composite board. Mr. Robinson himself could not identify some of the wall materials and provided no evidence that they were composed of material that provided the required 30 minute fire separation rating.
26Mr. Robinson described the tenants in the Building as being in difficult circumstances, having physical or mental disabilities and being unable to afford anything but low rent. He stressed the difficulty of relocating the tenants for the purposes of complying with the Order as it stands. We understand and are sympathetic to the tenants’ circumstances. However, we are persuaded that the disability of the tenants as described by Mr. Robinson, supports Chief Lawrence’s concerns for fire safety. The uncertainty that the walls meet the test of a 30 minute fire separation supports the chief’s concern that the tenants would be able to quickly exit the premises in the event of a fire, and that first responders’ would be able to evacuate the units in time to save lives should a fire occur.
27We heard evidence from Mr. Robinson about the anticipated cost of complying with the Order and his dissatisfaction about having to incur any such costs. He described the problem of finding trades to do the work that he expected would have to be done to comply with the Order, and the difficulty and expense of relocating his tenants while work was being done.
28We appreciate the inconvenience to the tenants if substantial work is to be done in their premises. However, we heard no specific evidence about the work that must be done to fulfill the Order, or how long it will take. Whatever the work and time involved turn out to be, the tenants’ safety is the priority. The cost of compliance for Mr. Robinson is dependant on many factors, none of which are part of our consideration of fire safety.
Issue 2: How much time should the appellant have to comply with the Order?
29In her evidence, Ms. Elchyshyn confirmed that there are many considerations for determining the time given to comply with an order. The length of time given is in the discretion of the inspector making the order. The Order specified a compliance date of September 30, 2020, some 9.5 weeks (or 2 months) after the Order’s date of issue. At the time of the hearing, over 4 months had passed since that date, for a total of 6 months since the original compliance date.
30Mr. Robertson is currently wintering in the United States and does not anticipate an immediate return to Ontario. In addition to any difficulty finding a contractor available to do work in the Building and suitable alternate accommodation for his tenants, pandemic restrictions may result in some delay. Notwithstanding, considering the circumstances, we find that compliance with the Order is a matter of some urgency. We conclude that a compliance date of June 30, 2021 is reasonable in the circumstances.
DECISION AND ORDER
31Pursuant to the powers of the Commission under s. 26(6) of the Act, the Commission confirms Order 00003 of the Fire Chief/inspector made July 24, 2020, subject only to modifying the date for compliance to June 30, 2021.
Released: April 1, 2021
Harriet Lewis, Member
Santina Moccio, Member
Priscilla Reeve, Member