Tribunals Ontario Fire Safety Commission
Tribunaux Décisionnels Ontario Commission De La Sécurité-Incendie
An Appeal from a Review Decision of the Fire Marshall under Section 10 of the Fire Protection and Prevention Act, 1997
Between:
Sonia Hutchinson o/a Infinite Seniors Care and Group Homes Inc. Appellant
and
Toronto Fire Services Respondent
MOTION DECISION AND ORDER
Adjudicator: Harriet Lewis, Member
Appearances:
For the Appellant: Sonia Hutchinson
For the Respondent: Emma Luca, Counsel
Held by teleconference: May 6, 2021
OVERVIEW
1Sonia Hutchinson is the owner and operator of Infinite Senior Care and Group Home Inc (“Infinite Care”), an adult care facility that is operated out of rented premises in Toronto, (the “Premises”).
2On May 27, 2020, Ms. Hutchinson was served by a Toronto Fire Services inspector with a Notice of Violation because of the failure to install an automatic sprinkler system, as well as an order (the “TFS Order”) requiring either that a sprinkler system be installed in the Premises or that “an approved alternative solution be implemented.” The TFS Order gave a compliance date of July 27, 2020.
3On July 8, 2020, Infinite Care requested a review by the Fire Marshal of the TFS Order. Infinite Care objected to the requirement for a sprinkler system and the compliance date and requested a time extension of “12-18 months.”
4The two grounds for review given in the July 2020 request for review were that the landlord of the Premises does not agree to put in a sprinkler system and that the cost to comply is prohibitive for Infinite Care/Ms. Hutchinson.
5Because of requests by Ms. Hutchinson for additional time to file materials, the Fire Marshal’s review was delayed, and the decision was not issued until December 22, 2020. On that day, the Fire Marshal’s Delegate made an order (the “Fire Marshal Order”), confirming the work required by the TFS Order but amended the compliance date to June 22, 2021. The Fire Marshal Order was served by email on Infinite Care/Ms. Hutchinson on that same day.
6The Fire Marshal Order sets out on its first page both the right to appeal to the Fire Safety Commission and the requirement that such an appeal must be filed within 15 days after the order is served. No appeal was filed within the required 15 days.
7On March 23, 2021, some three months later, a Notice of Appeal of the Fire Marshal’s Order and an Application for Extension of Time to file an appeal under section 26(3) of the Fire Protection and Prevention Act (the “FPPA”) was filed with the Fire Safety Commission.
8The Appellant bears the onus of showing that there are grounds on which a decision should be made to extend the time for filing an appeal. The reasons given in the Notice of Motion for requesting an extension of time read as follows:
a. “My basic reason for requesting an extension of time is, just that the Covid pandemic has been taking up so much more of my time that I am not able to process the paperwork on time. I would also like to have a follow up review by the Fire Marshal so that we can discuss some accepted alternative measures, other than the sprinkler system. I also need more time to investigate the difference between a Care occupancy home, and Old age home and a Long term care home, etc. I am sure that in the Fire Protection and Prevention Act, there is a minimum requirement for the number of residents that can be housed in each. And I am just simply requesting an extension of time to complete these tasks.”
9Toronto Fire Services opposes the application to extend the time to file an appeal in this matter. It takes the position that the appellant failed to file an appeal on time as required by each of sections 26 (2) and 26(4) of the FPPA.
ISSUES
10The issues to be determined in this motion are as follows:
a. Whether the FSC has the power to extend the time for filing an appeal and;
b. Whether the appellant has established reasonable grounds to extend the period for filing an appeal.
DECISION
11The appellant’s motion to extend the time for the filing of the appeal is denied. The appellant has not met the onus of showing there are grounds for an extension.
THE LAW
12Section 26(1) of the FPPA provides that any person who considers himself or herself aggrieved by an order made by the Fire Marshal under subsection 21(1) or (2) or section 25 may appeal the order to the Fire Safety Commission.
13Section 26(2) requires that a notice of appeal from an order referred to in section. 26(1) “shall be filed with the Fire Safety Commission within 15 days after the order is served.”
14If an application for an extension of the filing time is made, section 26(3) allows the Fire Safety Commission to extend the period of time for appealing an order “if it is satisfied that there are apparent grounds for granting the appeal and that there are reasonable grounds for applying for the extension.” If an extension is granted, the Commission may “give directions that it considers proper consequent upon the extension.”
15Section 26(4) provides that an application for an extension can be made either before or after the expiration of the 15 days provided for in ss.(2), “but shall be made within 30 days after a copy of the order from which the appeal is made is served.”
EVIDENCE AND ANALYSIS
16Ms. Hutchinson testified on behalf of Infinite Care. She spoke about her passion for the work she does. She acknowledged that the requirement for a sprinkler system in the Premises has been in place since the first TFS inspection, sometime in either 2018 or 2019. Although other fire protection measures have been implemented, no sprinkler system has been put in place because of the prohibitive cost, which she estimated to be over forty thousand dollars. The owner of the Premises has declined to install a sprinkler system and neither she nor Infinite Care can afford to do so. She has been trying to save the money to either put in the system, or find other premises for Infinite Care, but has not been able to do either.
17I cannot consider the merits of extending the time for filing an appeal of the Fire Marshal Order until I determine whether the requirements of s. 26 for the timely filing of a request for an extension have been met. I have concluded, based on the evidence, that the wording of s. 26(4) of the FPPA precludes me from considering the case for an extension on the merits of the grounds in the Notice of Appeal.
18Ms. Hutchinson did not address the timing of the service of the Fire Marshal Order until cross-examined by the TFS counsel. Her answer as to when she was served was that her computer had been “out”, and she got the document “in February”. However, she has not claimed that she did not receive the document until after the statutory appeal period had expired.
19Mr. Devon Campbell, Infinite Care’s bookkeeper, acted on behalf of Infinite Care in contacting the Fire Commission in respect to the appeal and in filing the Notice of Appeal and the Notice of Motion. The material filed in support of the motion by Mr. Campbell, showed that the Fire Marshal Order was sent on December 22, 2020,by email, both to the Infinite Care email address used by Ms. Hutchinson in her Notice of Appeal and to Mr. Campbell at his address.
20Ms. Hutchinson is a businesswoman responsible for the care of the five individuals living in the Premises. It is a reasonable conclusion that such activity, particularly in the time of an isolating pandemic, would have required her to have frequent access to a computer and to the Infinite Care account. Even if Ms. Hutchinson’s usual computer was not working, she could have, and I believe it likely that she would have checked her email from another device. I am therefore not convinced that she did not see her email between December 22 when the Fire Marshal Order was served and late March when this motion and the Notice of Appeal was filed. I am likewise not convinced that Mr. Campbell would not have advised her of the receipt of such an important document. Based on the evidence before me, I find that Infinite Care and Ms. Hutchinson were served with the Fire Marshal Order by email on December 22, 2020.
21The FPPA is strict about the time limit set to file appeals of orders made by fire officials and for requests for extensions of the time to appeal them. As noted, section 26(2) of the Act requires an appeal to be filed with this Commission within 15 days “after the order is served.” Section 26(3) allows an application for an extension of time to be made to the Fire Safety Commission, but that application must be made within 30 days “after a copy of the order from which the appeal is made is served.” In this case, no appeal was filed by January 6 (15 days after service), nor was a request for extension of time made by January 21, (30 days after service). This motion was not made until two full months after the statutory deadline.
22Prior to the conclusion of the motion hearing, Ms. Hutchinson was referred to the Fire Marshal Order which both extended the deadline for compliance to July 27, 2021 and reiterated Infinite Care/Ms. Hutchinson’s opportunity to propose acceptable alternative measures for meeting the order’s requirements.
23The appellant’s motion is dismissed.
Released: June 3, 2021
Harriet Lewis, Member