Tribunals Ontario

Fire Safety Commission

Tribunaux Décisionnels Ontario

Commission De La Sécurité-Incendie

Citation: Howard v. London Fire Services, 2021 ONFSC 3

Date: 2021-04-20

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

Between:

Betty Howard Appellant

And

London Fire Services Respondent

DECISION AND ORDER

Panel: Marisa Victor, Vice Chair Noeline Paul, Vice Chair Helen Karpouzos, Member

Appearances: For the Appellant: Self-represented For the Respondent: James Hind, Inspector, City of London Fire Services

Date of Hearing: February 17, 2021, by videoconference

DECISION AND ORDER

BACKGROUND

1The appellant, Betty Howard, appeals a Fire Marshal Review Decision F.M. 20178, dated November 5, 2020 (the “Review Order”) modifying an inspection order made by Inspector James Hind of the London Fire Services (“the Inspector”) in respect of a multi-unit residential building (“the Building”) at 110 Highview Avenue East, London.

2On September 9, 2020, the Inspector served an inspection order (the “Inspection Order”) upon the property manager for the Building citing s. 21(1)(g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 (the “FPPA”). The Inspection Order required that all means of egress in the Building be maintained in good repair and free of obstructions, particularly scooters and carts that had been stored in the hallways of the Building, with a compliance deadline of September 14, 2020. The appellant requested a Fire Marshal review of the Inspection Order on September 21, 2020 pursuant to s. 25(1) of the FPPA because she stored her scooter in the hallway.

3The Review Order modified the Inspection Order so as to identify a minimum clear width required for the corridor as follows:

“the clear width of the public corridor on the fourth floor shall be maintained so that there is a minimum width of 1100 mm throughout the corridor. The work in the Order shall be completed by November 20, 2020.”

4Therefore, the Inspection Order did not allow anything considered to be an obstruction to be stored in the hallway. The Review Order did allow items to be stored in the hallway, as long as they provided an 1100mm clearance. If the minimum 1100 mm were provided, then the appellant’s scooter would not be considered an obstruction and the appellant would be in compliance with the Review Order. It is unclear why the appellant appealed the Review Order to the Commission because she was in compliance with it, however, we have considered the evidence and submissions of the parties.

ISSUE

5Does the 1100 mm egress width set out in the Review Order allow the appellant to park her scooter in the hallway without obstructing the means of egress in the Building?

RESULT

6The Commission confirms the Review Order.

EVIDENCE AND ANALYSIS

Applicant’s Evidence and Submissions

7The appellant maintains that she needs to store her scooter in the hallway because it does not fit easily into her apartment and efforts to maneuver her scooter within her unit are nearly impossible due to her weakened physical state.

8The appellant resides in a corner unit, which offers more hallway space outside of her unit than other units. She parks her scooter in the corner of an L-shaped area just outside of her unit door. With her scooter parked in the hallway, the width is 1200mm. Therefore, as of the date of the hearing, the appellant was in compliance with the Review Order.

9The appellant testified that she stores her scooter in the hallway because it is nearly impossible to maneuver it within her apartment. She explained the layout of her apartment and the steps she has to take in order to turn her scooter around, which she says have caused her to suffer panic attacks. In an effort to reduce the amount of space her scooter utilizes in the hallway, the appellant removed the oxygen cylinder that used to be attached to it. She also measured the space around her scooter within the hallway, which is 1200mm, and provided photo evidence of same.

Respondent’s Evidence and Submissions

10The respondent submitted the following:

a. that the Fire Marshal had no authority to modify the Inspection Order and that 1100 mm is an arbitrary measurement;

b. that the corridor should be clear and not allow for storage of any items;

c. the fact that the appellant has more space outside of her unit to store her scooter should not give her an unfair advantage over other residents; and

d. the corridor is a shared space that is not rented by the appellant and as such, she should not be allowed to use it for storage.

11The Inspector testified that the property manager of the Building requested the fire department’s assistance to address an ongoing issue of residents storing their scooters in the hallway.

12The Inspector testified that at the inspection he observed several scooters stored in the hallway and maintained that they obstructed the means of egress throughout the building. The Inspection Order effectively required the residents to remove the scooters from the hallways because he submitted that they constituted a contravention of the Fire Code.

13The Inspector also testified that he believed that the Fire Marshal could have issued its own order but did not; instead, the Fire Marshal amended his order. He stated that the amendment was arbitrary and therefore invalid. He submitted that the 1100 mm clearance minimum is an arbitrary measurement because the FPPA does not identify it as an acceptable measurement to ensure fire safety. The Inspector submitted that nothing should be stored in the corridor, regardless of the allotted space.

14Importantly, the respondent did not file an appeal of the Review Order; however, as respondent, it did provide submissions regarding amendments it wanted to the Review Order. The Commission considered the evidence and submissions of the parties and confirms the Review Order for the reasons that follow.

Analysis

15Section 26(6) of the FPPA authorizes the Commission to confirm, amend or rescind the Review Order or make such other order as the Commission deems appropriate.

16There is no dispute regarding the facts of this case relating to the Building. It is an older 4-storey residential building with narrow hallways and a single elevator. There are approximately 12 units per floor. The residents’ demographics vary between younger individuals, seniors, and individuals with disabilities.

17The respondent took the position that the Fire Marshal had no authority to amend the Inspection Order. However, section 25(4)(b) of the FPPA clearly states that the Fire Marshal may confirm, amend or rescind the order or make such other order as he or she deems appropriate. Therefore, the Commissions finds that the Fire Marshal had the authority to amend the Inspection Order as it did.

18While the FPPA does not specify a clearance minimum, the Building Code Act 1992, S.O. 1992, c. 23 (“the Building Code”) states that the minimum width of a public corridor shall be 1100mm.¹ A public corridor is defined as a “corridor that provides access to exit from more than one suite”.²

19The Commission heard no evidence that a width of 1100mm is insufficient to allow for clear passage through the hallways. Although the respondent submitted that the appellant’s scooter might impede residents and emergency services workers, the evidence was not sufficient to show that the scooter obstructed the hallway given that 1200mm of space remained.

20The respondent also argued that because the corridor belongs to the Building, the appellant is not entitled to store her personal items in that space and that she has an unfair advantage over other residents of the Building because the hallway space outside of her unit is larger than that of other residents. While this may be true, the Commission’s only consideration is the fire safety within the Building. Matters of fairness with respect to tenancy are outside the parameters of the issues of this appeal and will not be considered.

21This appeal was filed by the appellant who was in compliance with the Review Order. The respondent opposed the appeal and requested that the parameters of the initial Inspection Order be upheld; however, the appeal before the Commission was of the Review Order, which supersedes the Inspection Order. For this reason, the Commission is not in a position to uphold or revoke the Inspection Order. The Commission does have the jurisdiction to confirm, amend, or replace the Review Order and, in that context, took the submissions of the respondent regarding the Inspection Order into consideration.

22We find that the Review Order maintains fire safety of the Building. There is a lack of evidence to show that the minimum width of 1100mm throughout the corridor, as specified in the Review Order, is a contravention of the Fire Code, and is in fact specified by the Building Code as an acceptable measurement.

ORDER

23Pursuant to the powers of the Commission under s. 26(6) of the FPPA, the Commission confirms the Review Order dated November 5, 2020.

Footnotes

1. 1O. Reg. 332/12 Building Code s. 3.3.1.9.(2)
2. 2Ibid at s. 1.4.1.2.