Wittig v. Guelph Fire Department, 2021 ONFSC 4

Tribunals Ontario Fire Safety Commission

Tribunaux Décisionnels Ontario Commission De La Sécurité-Incendie

Citation: Wittig v. Guelph Fire Department, 2021 ONFSC 4

Date: 2021-04-20

Appeals under subsection 26(1) of the Fire Protection and Prevention Act, 1997, SO 1997, c 4.

Between:

Ruben Wittig Appellant

and

Guelph Fire Department Respondent

DECISION AND ORDER

Panel: Susan Clarke, Vice-Chair Noeline Paul, Vice-Chair Harriet Lewis, Member

Appearances: For the Appellant: Self-represented For the Respondent: Jeffrey Aitkens, Counsel

Heard by Teleconference: January 27 and 28, 2021 Written Closing Submissions: March 3, 2021

OVERVIEW

1This appellant appeals a Review Decision of the Fire Marshal dated July 21, 2020. The Fire Marshal modified the Inspection Order (the "Order") made by Inspector Barry Williams (the "Inspector") of the Guelph Fire Department ("GFD") after an inspection on July 31, 2019 of the premises located at Unit 206, 263 Speedvale Avenue East (the "apartment").

2The Inspector's Order was made pursuant to clause 21(1)(f) of the Fire Protection and Prevention Act, S.O. 1997, c.4 (the "FPPA"). In this case, the inspection took place following a complaint by Karin Gerreman, Housing Community Support Worker, County of Wellington Social Services Department – Housing Services, regarding a possible hoarding situation at the appellant's apartment. The Order required the appellant to:

1. Remove combustible content sufficient to create 60 cm (24") pathways from all rooms to both the front and balcony doors;
2. Remove combustible content from within 1 m of the ceiling; and
3. Remove all combustibles from the closet containing the electrical panel, within a 1-m radius of the electrical panel.

3The Fire Marshal amended the Order in his decision ("the Review Decision") as follows:

Remove or rearrange combustibles in the dwelling unit to:

1. Maintain a minimum 1 m clearance from ignition sources to reduce the risk of accidental ignition;
2. Provide an egress pathway from each room and all floor areas with a minimum 1 m clearance. The pathway must be clear of any obstructions from floor to ceiling to provide a safe means of egress for the occupant(s) and pathway for emergency responders;
3. Maintain a minimum distance of 1 m from the ceiling to ensure adequate clearance for smoke alarm(s) operation.

The Review Decision provided a new compliance date of 120 days from the revocation date of Ontario Regulation 73/20 (as amended) made under the Reopening Ontario (A Flexible Response to Covid-19) Act., 2020, S.O. 2020, c.17 (the Regulation pertains to compliance/limitation periods). (Note the Review Decision cited the Emergency Management and Civil Protection Act, R.S.O. 1990).

4The Review Decision found that there was evidence of a fire hazard due to excessive storage of combustible materials that would obstruct the means of egress and that, should a fire occur, could affect the functioning of the smoke alarm(s), hinder the safe evacuation of occupant(s), and delay the response of emergency responders. The amendment to the width of the egress pathway was intended to align the requirement with other recent decisions issued by the Fire Marshal. The Review Decision did not clarify if the more general statement in Item 1 (clearance from ignition sources) was intended to include clearance from the electrical panel.

5By way of background, the appellant has resided as a tenant in the apartment since 2001. The apartment is part of a two-storey, non-combustible residential apartment complex of two buildings connected by a breezeway, constructed approximately 60 years ago. The appellant's apartment is approximately 37 m² (400 square feet) in size, with a combined living room/bedroom/dining room area, a kitchen with adjacent storage closet measuring approximately 2 m² (22 square feet), a bathroom off the entry vestibule, and a balcony measuring 3.9 m² (42 square feet) in size. The complex is owned by the County of Wellington and administered by their Housing Services Division.

6The parties have had numerous interactions over the past ten years:

• Between 2011 and 2015, the appellant, the County of Wellington Housing Services Division, and Inspector Valeriote of the GFD worked towards resolving fire safety issues created by the appellant's hoarding.
• In February 2011, Inspector Valeriote issued the appellant with an Immediate Threat to Life Notice under s. 15 of the FPPA, advising that combustible materials must be stored at least 45.7 cm (18 inches) from all electrical baseboard heaters in the apartment.
• At around the same time, the County of Wellington applied for an order to terminate the tenancy and evict the appellant. The application resulted in a mediated agreement on April 18, 2011, whereby the landlord and Inspector were to conduct quarterly inspections of the appellant's apartment for a one-year period to ensure that the hoarding was maintained to an acceptable level.
• Under this mediated agreement, and subsequently at the request of the Housing Community Support Worker, Inspector Valeriote carried out numerous inspections on the apartment between 2011 and 2015. In 2015, inspections of the apartment were taken over by Inspector Johnston.
• On October 19, 2016, at the request of Ms. Gerreman, Community Support Worker for the County of Wellington Housing Services, Inspector Johnston inspected the appellant's apartment and served him with an Inspection Order requiring him to maintain a minimum aisleway width of 61 cm (2 ft) from all areas of the apartment to both the balcony and exit door, and to reduce the volume of combustible materials in the apartment by 30 percent. The appellant requested a Fire Marshal Review. The Fire Marshal issued a Review Decision on February 9, 2017 which upheld and modified the Inspection Order, allowing the egress width to be reduced at door openings, and requiring a 1 m clear height between from the ceiling.
• The appellant appealed that Review Decision to the Commission which, in a decision dated November 21, 2017, confirmed the Review Decision.
• On July 31, 2019, at the request of Ms. Gerreman, Inspector Williams inspected the appellant's apartment and served him with an Inspection Order. The current appeal is based on this Inspection Order, the details of which are provided in the Overview.

ISSUES

7The issues in this appeal are as follows:

1. Are the measures ordered in the Review Decision necessary to ensure fire safety?
2. Are the measures contained in the Review Decision reasonable and clear?
3. Has the appellant been unfairly targeted by the Order?
4. Should the Commission confirm, amend or rescind the Review Decision?

RESULT

8Having considered the evidence and submissions of the parties, the Commission has determined that the hoarding condition in the apartment is hazardous and creates a fire risk to the appellant and to those in the building. The measures ordered are necessary to ensure fire safety.

9The Commission has considered the evidence of the parties and has determined that the appellant has not been unfairly targeted by the Order.

10The Commission confirms the Review Decision and provides clarification regarding compliance. The compliance date is amended to June 30, 2021 as agreed-to by the parties.

LAW

11S. 18 of the FPPA explains that the phrase "fire safety" includes the following, for the purposes of Part VI Inspections:

1. Safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it.
2. Safety from the risk that the presence of unsafe levels of carbon monoxide on premises would seriously endanger the health and safety of any person.

12The Inspection Order was issued pursuant to s. 21(1)(f) of the FPPA, which provides that an inspector who has carried out an inspection of premises may order the owner to take any measure necessary to ensure fire safety. The subsections that follow describe the types of orders that may be made for that purpose. Orders issued under clause 21(1)(f) are used to remedy fire safety risks that are not otherwise addressed in the Fire Code (O. Reg. 213/07, as amended). An order under s. 21(f) may require an owner or occupant "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."

13It is important to note that inspection orders made pursuant to s. 21(1)(f) of the FPPA are intended to remedy fire safety issues not described in the Fire Code. This provides inspectors broad interpretation powers, essentially giving the power to issue a directive for unregulated scenarios. As in this case, the issue of hoarding is not regulated in the Fire Code. Orders issued under 21(1)(f) of the FPPA should nevertheless clearly identify the fire safety issue, ensuring that it is aligned with that described in s. 18 of the FPPA, and describe what could happen given that risk. Such orders must also describe remedies that will mitigate the fire safety issue identified, showing a clear link to the risk. The remedies must be specific and supported by clear rationale. Remedies may draw parallels to similar regulatory requirements, without citing them.

14Subsection 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.

15Item 3 of the Inspection Order references the Electrical Safety Authority (the "ESA") regulations, specifically that the 1 m clearance of combustibles from the electrical panel is a requirement of the regulations.

EVIDENCE

The Appellant

16The appellant gave oral evidence but called no other witnesses. In his appeal, the appellant asked for the Review Decision to be amended, reinstating the required pathway widths to 61 cm (24 inches) as stipulated in the Order, and for an extension to June 30, 2021 to comply. He also asked for clarification of Item 1 of the Review Decision, concerned that GFD might interpret the term "ignition sources" to include the electrical panel and baseboard heaters.

17The appellant's grounds for appeal were as follows:

1. His apartment is very small, and it is impractical to achieve a 1 m clearance. He submits that it is particularly difficult to maintain clearances from the baseboard heaters, within the storage closet and pathways. He questioned the requirement of a 1 m clearance from the baseboard heaters, when previously (in the Immediate Threat to Life notice (FPPA s. 15) issued in 2011), he was allowed to have furniture closer, providing that combustibles were not closer than 91.4 cm (1 ft).
2. The requirements imposed by the GFD have changed with each of the three Inspectors involved over the last ten years, and on appeal, in different review decisions issued by the Fire Marshal, noting that the variations have made it confusing to know what the actual requirements are.
3. His rights under the Ontario Human Rights Code (the "OHRC") have been violated, noting that landlords are required to treat tenants equally. The appellant states that he has been unfairly targeted by the landlords and the Inspectors, because the requirements for clearances to baseboards and the electrical panel, and even keeping a clear path are not applied to all tenants within the building.

18The appellant accepts the importance of fire safety in his unit and noted that he is neither a smoker nor does he light candles. He would like the Order to be amended to exclude furniture, stacked or not, from the clearance limitation, but acknowledges the potential for stability issues. He also acknowledged that he has hoarding tendencies.

19The appellant asked for clarification on several matters:

1. Whether the clearance applied to the entire apartment, or only to the common open areas;
2. Whether the 1 m clearance to the ceiling should apply to rooms with doors, such as the bathroom and storage closet;
3. How the 1 m pathway clearance would be applied in the kitchen where the countertop has small appliances; and
4. Clarification regarding the location of the pathways.

20The appellant claimed that the Order and Review Decision violated the OHRC as follows:

1. The landlords are not held to the same standard as he is; for example, that kitchen cupboards are within 1 m of the ceiling, but that he is not permitted furniture within 1 m.
2. The GFD has not required other tenants to maintain a 1 m clearance of combustibles from electrical panels, despite the appellant repeatedly telling Inspectors that he observed this in other units.
3. If 1 m clearance from ceilings and 1 m clearance to baseboards are essential, then this should be applied to all other tenants. If 1 m pathways are essential for egress, then this should be required in all apartments.

21The appellant stated that he is willing to comply with all reasonable and practical orders but he is concerned that remedial work that will be done by the landlord to correct a roof leak evident in his storage closet could affect his ability to comply with the date set in the Order and Review Decision.

22On cross-examination, the appellant noted that he has a storage unit external to his apartment and he would have to get a larger storage unit in order to comply with the Review Decision.

23The appellant agreed that he has an ongoing obligation to maintain compliance with Inspection Orders.

The Respondent

24Inspector Barry Williams, Assistant Chief Fire Prevention Officer Matt Valeriote, both representing GFD and Kate Gerreman, representing the County of Wellington, gave evidence for the respondent. The GFD requested that the Commission exercise its power to confirm the Review Decision, asserting that the measures in the Review Decision are necessary to ensure fire safety because the orders were made to minimize the risk posed by the appellant's hoarding of combustible materials.

25The respondent acknowledged the appellant's claim that the high volume of items stored within the apartment is due to the small size of the apartment but stressed that the need for storage cannot be viewed as a higher priority than fire safety.

26The respondent explained that the requirement for 1 m pathways to the exit was an amendment in the Review Decision, not the original Order. The amendment was intended by the Fire Marshal to provide consistency with more recent Review Decisions to address similar hazards and would provide needed room for first responders to assist in an emergency.

27The Inspector explained that fire safety concerns, specifically regarding residential hoarding, are handled using a complaints-based process. He noted that he used the GFD "Guideline to Assist FPO Officers in dealing with Hoarding Complaints" (the "Guideline"), including conducting an inspection as a result of a complaint, and issuing an order to remediate fire safety concerns.

28The respondent asserted that the appellant's claim that he has been targeted is not supported by evidence. The GFD noted that it can only address conditions in other apartments when it receives a credible complaint about fire hazard concerns there, and that it would be impractical for the GFD to inspect all of the other apartments based on the appellant's complaint without any supporting evidence.

29The Inspector explained the rationale to maintain a minimum clearance of 1 m from an ignition source, such as an electrical panel, is necessary to reduce the risk of accidental ignition and to comply with the requirements of the ESA.

30The Inspector provided a brief history of inspections in the appellant's apartment, explaining that in the Fire Marshal's 2017 Review Decision, variances were provided to account for fixed structures such as kitchen cabinets and doorways. The GFD notes that similar variances would be acceptable in this matter.

ANALYSIS

Are the measures ordered in the Review Decision necessary to ensure fire safety?

31The primary issue before the Commission is whether the measures contained in the Review Decision are necessary to ensure fire safety.

32Fire safety, pursuant to s. 18 of the FPPA, includes "safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it." As described in paragraph [13], the Inspector's powers are broad when issuing an order pursuant to 21(1)(f) of the FFPA, but the order must describe the fire safety issue clearly linking it to s. 18.

33The appellant argued that the conditions of his apartment do not present a risk of fire because he is not a high-risk tenant as he does not smoke, light candles, or activate the apartment smoke detector. He also argued that he has complied with the previous Review Decision.

34The Commission acknowledges the appellant's assertions but points out that the items listed in the Order relate to maintaining a clear pathway both for occupant egress and emergency responders, to ensuring the operation of smoke detection, and to reducing the potential of fire by maintaining clearance to ignition sources.

35The respondent provided photographic evidence of a high degree of combustible content in the appellant's apartment that compromises pathways to the suite door (egress door to public corridor leading to exits), that is within the clearance space necessary for operation of smoke detection, and that is in close proximity to the stove and baseboard heaters.

36While this evidence indicates that the appellant has maintained the originally ordered passageway widths of 61 cm, the photographs also depict books and other combustible materials that are stacked on top of small kitchen appliances and furniture and these items are stacked to a level that creates a risk of toppling. Egress could easily be impaired should a person bump into stacked furniture or materials while trying to enter or exit through such a narrow passageway.

37As noted, the appellant expressed willingness to comply with the egress pathway width initially ordered, and consistent with the 2019 Review Decision (10741 FSC). We have considered the Fire Marshal's rationale for widening the required pathway to 1 m in the Review Decision now being appealed, which is that the amendments to the Order are necessary and desired to align with more recent decisions issued by the Fire Marshal to address similar hazards. We accept that imposing a provincial standard of 1 m wide pathways provides consistency in application, an enhanced level of fire safety, and removes a degree of subjectivity from fire inspectors. We therefore find that the measures ordered in the Review Decision are necessary to ensure fire safety.

Was the Order reasonable and clear?

38The appellant has raised several questions regarding the Review Decision, and his concern that the Inspector may interpret these more broadly than intended by the Fire Marshal in the Review Decision. These questions include the following:

1. Do ignition sources include the electrical baseboard heaters and the electrical panel?
2. Should the egress pathway lead to both the suite door leading to the public corridor and to the balcony door?
3. Is stacked solid wood furniture permitted within 1 m of the ceiling, as is cabinetry?

39We have considered these questions and determined it necessary to respond to them in order to provide clarity to facilitate compliance and enforcement, to the benefit of both parties.

40The broad powers available to an inspector under s. 21(1)(f) of the FFPA are intended to ensure that fire safety issues, such as those in the appellant's apartment, can be addressed. To support these, the GFD developed the Guideline in December 2015 to provide a consistent approach to dealing with fire safety issues arising from residential hoarding. The Order was written by the Inspector to address the fire safety issues identified. On appeal, the Review Decision amended the Order to be consistent with other decisions of the Fire Marshal in similar situations.

41Item 1 in the Review Decision requires a 1 m clearance from ignition sources to reduce the risk of accidental ignition. The wording is substantially different from that in Item 3 of the Inspection Order, which only addressed clearance from the electrical panel. The Review Decision is not clear in terms of which ignition sources might be included. The stove top could be viewed as being an ignition source since any combustible materials in close proximity, are at risk of accidentally toppling onto the stove, and ignite from live elements. However, it is not clear if the electrical panel is also an ignition source.

42Item 3 of the Inspection Order required a 1 m clearance of all combustibles from the electrical panel in the storage room. The rationale given in the Order for this requirement was that it was regulated under the ESA. However, we did not have before us sufficient evidence to support this requirement. In testimony at the hearing, Inspector Williams admitted that he did not have a regulation reference number relating to this requirement and that his understanding of this requirement was as a result of a telephone conversation with an electrical inspector. The respondent's brief did not contain an excerpt from the appropriate regulation. Neither the verbal nor written evidence provided an explanation of the risk of ignition from an electrical panel.

43Without evidence to support it, the Commission cannot specify a requirement for a 1 m clearance around the electrical panel in the storage room. We are not satisfied, based on the evidence provided, that storage in this space should be restricted as suggested by the respondent and in the Order. The cover of the electrical panel, which is depicted in a photograph that was provided in evidence, does not include a warning label. The appellant asserts that a guidance document has not been issued by the landlord to the building tenants to keep the space around the electrical panel clear. Furthermore, if a 1 m clearance were to be required around the electrical panel, it seems illogical for the electrical panel to be in what would normally be viewed as a kitchen pantry since this would prevent storage in that space. As the appellant has stated, maintaining a 1 m clearance limits any storage within a space that is intended for storage.

44The Order did not reference a specific clearance distance from baseboard heaters. The appellant is concerned that the Review Decision might be interpreted by the Inspector as applying to the baseboard heaters in the apartment. The appellant's concern is reasonable given the evidence provided by the respondent that Inspector Valeriote issued an Immediate Threat to Life Notice for 18-inch clearance of combustibles from the baseboard heaters in 2011 pursuant to s. 15 of the FPPA.

45The respondent gave no indication that it intends the Review Decision to apply to the baseboard heaters. The appellant has indicated that he is willing to comply with any requirements if they are reasonable and consistently applied to all apartments. In his testimony, he also expressed willingness to maintain clearances to the baseboard heating units as required by past Notices. While we are concerned that baseboard heaters may pose some risk of ignition if combustibles are in close proximity, we decline to impose a 1 m clearance requirement, as that appears overly restrictive in the absence of a regulatory requirement or technical guideline specifying clearances of both furnishings and combustibles that can be applied to all apartments in the complex.

46The Review Decision requires a 1 m wide egress pathway "from each room and all floor areas." The appellant questioned whether the Fire Marshal saw a floor plan of his apartment, as it is a bachelor apartment and doesn't have actual rooms. There is some concern as well that the respondent might interpret the egress pathway as being consistent with Item 1 of the Inspection Order, where the pathway was to lead to both the front and balcony doors.

47We have reviewed the definitions in article 1.4.1.1., Division A of the Fire Code. The definition of "access to exit" is described as meaning that part of a means of egress within a floor area that provides access to an exit serving the floor area. Logically, this means that the required egress pathway should lead to the suite door, which in turn accesses the public corridor which leads to exit stairs. The balcony door is not a required exit, nor an access to an exit.

48The appellant has asked for clarification of the pathway locations. As the pathways are to provide him with access to an exit as well as provide an access to an exit for other occupants including emergency responders, this may be taken as a reasonable requirement for any place that is in use. Examining the floor plan provided by the respondent in its brief, the following 1 m wide egress pathway is considered to suffice:

1. From the living room window to the suite door (the "main pathway");
2. Along the length of the bed;
3. Extending from the main pathway into the kitchen and all the way to the doorway of the storage room; and
4. Into the bathroom.

49We agree with the variances provided in the 2019 Review Decision: the egress pathway may be reduced to the width of the washroom and storage closet door openings at those specific locations.

50The appellant has questioned if there may be any variances in Item 3 of the Review Decision, where 1 m clearance from the ceiling was ordered. The Commission has reviewed the wording of the Review Decision and has determined this to mean that anything that is not securely fastened to the wall or ceiling must be removed. We do not believe a variance is necessary.

51The Commission concludes that the Review Decision lacks specificity but is overall reasonable and clear. The Review Decision addresses risk of fire and shows a clear link between these and the requirements to mitigate that risk. We believe that the discussion above responds to the appellant's questions, without the need to vary the Review Decision.

Has the appellant been unfairly targeted by the Order?

52The respondent has provided evidence of a ten-year history of fire safety issues with the appellant.

53The appellant claims that he has been unfairly targeted by GFD, both in how they treat him compared to other tenants and how the Order is applied to him, but not to the building landlords.

54The appellant asserts that GFD does not apply the same requirements for clearances of combustibles from the electrical panels, and pathways widths, to other building tenants. He stated that he has made complaints on numerous occasions for GFD about other tenants. The respondent stated that the Guideline, developed in December 2015, was initiated to ensure consistent procedures and that inspections would be made based on an assessment of credible complaints.

55The appellant argued that he was treated unfairly compared to the landlord because the fixed wooden kitchen cabinets were exempt from the clearance requirements being imposed on him with respect to the distance of stacked combustibles from the ceiling. The distance specified for combustible contents from the ceiling ensures proper circulation for the effective operation of smoke alarms. While wall mounted cabinets could affect the circulation, they take up a minimal amount of horizontal space compared to that of the combustible content, including furniture, that was stacked throughout the apartment, as evidenced in the photographs provided in the documentary materials. As noted, stacked items, including furniture, present a toppling hazard and could impede entrance and egress in an emergency.

56The appellant also felt that he was being treated unfairly compared to the landlord when allowances were made for narrowing of pathways where structural limitations exist, such as doorways and cabinets. We find that making allowances for narrower pathways in these locations are a physical practicality, as these are fixed in place and a design standard.

57Based on the evidence before us, we do not find that the appellant was targeted or unfairly treated and there is no evidence of an OHRC violation. The GFD applied the FPPA impartially, clearly identifying fire safety issues and measures that would mitigate these. Any differences in application are a result of the physical structure or unit design and not specific to the appellant himself. On appeal to the Fire Marshal, the Review Decision was amended to be consistent with similar Decisions.

Should the Commission confirm, amend or rescind the Review Decision?

58The Commission confirms the Review Decision, finding it necessary for fire safety. The Commission interpreted the Review Decision, without amending it, to assist the parties with both compliance and enforcement. The Review Decision is overall reasonable because it links the measures ordered to mitigate the identified risks. While the appellant presented some valid concerns, they were not sufficient to warrant an amendment or recession.

59The Commission amends the compliance date to June 30, 2021 as agreed-to by the parties.

CONCLUSION AND ORDER

60For the reasons set out above, the Commission confirms the Review Decision, issued on July 21, 2020.

61The compliance dates set out in the Review Decision are amended as follows: Items 1, 2 and 3 shall be completed by June 30, 2021.