Tribunals Ontario Fire Safety Commission

Tribunaux décisionnels Ontario Commission de la sécurité-incendie

Citation: Spezowka and Hickey v. Thunder Bay Fire Rescue, 2021 ONFSC 6

Date: 2021-07-19

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

Between:

Kelly-Ann Spezowka and Olivia Hickey

Appellants

and

Thunder Bay Fire Rescue

Respondent

REASONS FOR DECISION & ORDER

PANEL: Jennifer Friedland, Member Susan Clarke, Vice Chair James Minns, Member

APPEARANCES:

For the Appellants: Craig J. Allen, Counsel

For the Respondent: Michael Grimaldi, Counsel

Heard by video conference: May 18 and 19, 2021

A. Overview

1The appellants, Kelly-Ann Spezowka and Olivia Hickey, between them own seven properties in Thunder Bay, Ontario, which are rented to students through a business called "Student Padz."

2On October 31, 2019, the respondent, Thunder Bay Fire Rescue (TBFR), issued Inspection Orders against each of the appellants' properties pursuant to section 21(1)(f) of the Fire Protection and Prevention Act, 1997 (FPPA) ("the Orders"). This section allows an Inspector to order an owner or occupant:

(f) 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;

3The Orders required the properties to come into compliance with section 9.3, Division B of the Ontario Fire Code¹ (OFC). This provision describes the safety features and systems required for buildings that operate as "boarding, lodging and rooming houses." The Orders also required the parties to submit a fire safety plan as required by section 2.8 of the OFC, which relates to emergency planning.

4The appellants requested a review of the Orders by the Ontario Fire Marshal pursuant to section 25 of the FPPA on the basis that their properties are dwelling houses, not rooming or boarding houses, and therefore the Orders are not necessary for fire safety.

5The Fire Marshal has referred the matter to the Fire Safety Commission for a hearing.

B. Issue

6The parties agree that the appeal rises or falls on the classification of the properties and whether they are occupied as rooming houses or as dwelling units. If they are classified as rooming houses, it is agreed that the Orders would be necessary for fire safety and should be carried out.

7The Commission, on its own initiative, identified a further issue: whether additional safety measures may be necessary for fire safety in this particular case even if the Commission concludes that the properties are occupied as dwelling units.

C. Result

8For the reasons given below, the Commission finds that the subject properties are occupied as dwelling units. The properties do not fall under section 9.3 Division B of the OFC. The Commission therefore rescinds the Orders.

9However, the Commission is ordering additional fire safety measures as described below. The Commission finds it is appropriate under section 26(6) of the FPPA to make this Order as there are additional safety concerns raised by the student living arrangements in this particular case. The items ordered were discussed at the hearing and agreed to by the parties. The Commission has included a provision to allow the parties to consent to a different timeline than ordered in this decision.

D. The Law

10Section 9.3 Division B of the OFC applies to "boarding houses, lodging houses, rooming houses, and private rest homes" in certain contexts where:

(a) the building height does not exceed 3 storeys and the building area does not exceed 600m²,

(b) lodging is provided for more than four persons in return for remuneration or the provision of services or both, and

(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.²

11There is no dispute that the properties in question – if they can be characterized as "rooming houses" – would meet the above criteria and section 9.3 Division B of the OFC would apply. This would require the owners to provide increased protections in case of fire, such as fire separations, additional exits and other measures not required in a dwelling unit.

12A dwelling unit is defined in both the OFC and the Ontario Building Code as a "suite operated as a housekeeping unit, used or intended to be used by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities." The OFC definition also states that a dwelling unit includes a residential unit."³

13A residential unit is defined in the OFC as a "suite operated as a housekeeping unit, used or intended to be used by one or more persons that contains cooking, eating, living, sleeping and sanitary facilities."⁴

14A "suite" is defined in both the OFC and the OBC as a "single room or series of rooms of complementary use, operated under a single tenancy, and includes dwelling units, individual guest rooms in motels, hotels, boarding houses, rooming houses, and dormitories."⁵

15A "housekeeping unit" has been interpreted by courts as referring to people living together as a family or a unit.⁶ An important interpretative criterion in determining whether premises may be classified as a housekeeping unit is whether its occupants engage in "collective decision-making sufficient to create a single unit for housekeeping purposes."⁷

16The lack of familiarity among the occupants of a rooming house is a primary reason why such occupancies require stricter fire safety measures than a dwelling unit. The rationale is that people unrelated to each other by some sort of bond, such as "consanguinity or domestic intimacy" are less likely to look out for each other in the event of a fire.⁸ Such occupants are also less likely to know what sort of fire risk the other tenants might pose.

17Ontario Courts have considered a number of contextual factors in distinguishing between dwelling units and rooming houses, including:

(a) Whether there is one lease or several leases;

(b) Whether rent is paid for the unit as a whole or per bedroom, and how rent is paid;

(c) The allocation and use of bedrooms (i.e., whether each person occupies a separate bedroom and how the bedrooms are assigned);

(d) Whether each bedroom has a different lock;

(e) Whether common areas (only) are shared;

(f) Whether furniture is supplied by the occupants;

(g) Whether and in what manner housekeeping of the rooms and the premises is performed by the occupants;

(h) Whether the occupants exercise a degree of control over the unit (or whether the landlord or their agent is primarily responsible);

(i) Whether the occupants pay for the utilities, and

(j) The number of occupants and their relation to each other.⁹

18Examples on the extremes make it easy to see the difference between the two types of occupancies. A house occupied by one family would be a dwelling unit – notwithstanding that the teenager living there might try to lock her door now and again. A house with eight rooms rented individually to eight people who do not know each other; where each room has its own lock and key; and where, when one tenant leaves, it is the landlord who decides who will move in next – that would be a rooming house.

19One can see where student housing could fall into either category depending on the context.

E. Facts

20In this case, evidence about the properties and the context of how they are rented and occupied came from Inspector Marcus Kavalchuk of TBFR and from Edward Hickey, the husband of one of the appellants and the father of the other. Mr. Hickey manages all of the properties on behalf of the appellants and was their representative at this hearing

21The Commission also had before it a number of exhibits jointly entered by the parties; including, among other things, the inspection orders, a screenshot of the advertisement for one of the properties, tenancy agreements, a breakdown of turnover in the houses, and questionnaires prepared by Inspector Kavalchuk and his colleagues which were filled out by at least some of the tenants at each house.

The properties

22The parties agree that the properties are leased in the same manner to the same type of tenants – namely, students – and that the Commission's determination for any one particular property will apply to all.

23The properties are all semi-detached buildings with the following characteristics.

• 131 Ravenwood Ave. – 1-storey - 3 bedrooms on first floor, 3 in basement;
• 461 Darwin Cres. – 1-storey – 2 bedrooms on first floor, 3 in basement
• 463 Darwin Cres. – 1-storey - 2 bedrooms on first floor, 3 in basement;
• 465 Darwin Cres. – 1-storey – 2 bedrooms on first floor, 3 in basement;
• 485 Darwin Cres. – 1-storey - 2 bedrooms on first floor, 3 in basement;
• 489 Beverley St.. – 2-storey – 3 bedrooms on second floor, 2 in basement;
• 491 Beverley St. – 2-storey – 3 bedrooms on second floor, 2 in basement;

24Inspector Kavalchuk conducted an inspection of the properties on September 26, 2019. The inspection was at Mr. Hickey's request, after he learned that there were outstanding Inspection Orders against the properties issued by TBFR from in or around 2002 which he needed closed in order to obtain refinancing. Mr. Hickey had understood that the earlier Inspection Orders had been withdrawn but this was not the case, though no action had been taken on them since in or around 2002.

25The parties have agreed that the Commission's decision with respect to the Inspection Orders under appeal will apply to the previous Orders as well. They have also asked that another property owned by the appellants – 572 John Street, Thunder Bay – be included in the Commission's Order. This property was not inspected by Officer Kavalchuk but also has an outstanding order against it from 2002. On consent of the parties, the Order against 572 John Street will also be subsumed by our Order in this case.

TBFR's conclusion that the properties are rooming houses

26Following his inspection, Inspector Kavalchuk formed the opinion that the properties were operating as rooming houses. As such, on October 31, 2019, he issued Orders to the appellants requiring each property to comply with the requirements of section 9.3 Division B of the OFC .

27Inspector Kavalchuk testified that he reached his conclusion that the premises should be classified as rooming houses based on the following three factors:

• The tenants had different last names, and some had different area codes for their telephone numbers – the inference being that they were not related, nor did they come from the same geographic area.
• The website advertising the premises showed a price per month per student. Specifically, in the example reviewed, the ad stipulated "$425/month/student + utilities."
• Two of the tenants (the only two interviewed during the inspection) said they did not know each other prior to leasing the properties.

28With respect to the last point above, Inspector Kavalchuk testified that Mr. Hickey was present when he asked the two tenants about their prior relationship and that when they said they met at the premises, Mr. Hickey became defensive and interjected, reminding them that they did know each other previously and had signed the lease together. Inspector Kavalchuk explained that due to Mr. Hickey's reaction, he shied away from asking any further questions of the tenants during the inspection.

The questionnaires

29After the appellants had sought a review of the Orders by the Ontario Fire Marshal, Inspector Kavalchuk did obtain some further information about the occupancies by way of a questionnaire which he and a colleague prepared. The questions posed were designed to elicit the facts relevant to the determination of whether a building is operating as a rooming house or a dwelling unit as set out in the caselaw reviewed above. Inspector Kavalchuk testified that he thought the answers might assist the Fire Marshal.

30The questionnaires were filled out on various dates in December 2019 and January 2020. Inspector Kavalchuk testified that some of the tenants were away, but he aimed to have as many of the tenants who were available fill out the forms. He testified that at each property, the tenants who were present gathered together in the living room and filled out the questionnaires in each other's presence and in his presence.

31Of the 36 tenants living in the seven properties, at least two from each property were available to fill out the questionnaire and 25 responses were obtained in total.¹⁰

32The following relevant information can be culled from the tenants' answers to Inspector Kavalchuk's questions:

(a) The tenants at each property jointly signed one lease, with rent paid directly to the landlord by each tenant.

(b) The leases were for one year, or longer.

(c) The tenants were responsible for the utilities.

(d) There were no areas of the buildings that were locked or not accessible to the tenants.

(e) The tenants all chose their own bedrooms, they were not assigned by the property owner.

(f) In five of the seven houses, the bedrooms could not be locked from the exterior. At 131 Ravenwood, the tenants identified that the bedrooms could be locked from the exterior. In answer to the follow-up question as to who provided the locks, they all circled "the tenant." At 485 Darwin, where only two of the five tenants were available to fill out the questionnaire, one tenant answered "yes" the bedrooms could be locked, with a lock provided by the property owner. The other tenant answered "yes", but added in writing, "1 out of 5". This tenant answered that the lock was provided by the tenant.

(g) The tenants at each property provided the furnishings for that house.

(h) The housekeeping was performed by the tenants.

(i) A mix of answers was provided to the question as to whether it was the property owner or the tenants who made decisions regarding property maintenance.

(j) With respect to the relationship between the tenants at each house; 21 out of the 25 tenants questioned answered "yes" to the question, "did you know any of the other tenants prior to living at this property." Of the four who answered "no" three of them lived at the same property.

33We note that this last question – about prior relationships among the tenants –was worded in such a way that a "yes" answer provided only limited information. There was no follow up question as to how many of the other tenants the person knew or how they knew them. Nor was any further information about this factor obtained by Inspector Kavalchuk or TBFR then or at any time leading up to this hearing.

34Inspector Kavalchuk suggested in his testimony that the tenants' answers to his questionnaires may have been influenced by Mr. Hickey. This conjecture was based on Inspector Kavalchuk's recollection of his conversation with the two tenants interviewed during the inspection who had said they did not know each other prior to moving in and Mr. Hickey's defensiveness when that question was asked. Inspector Kavalchuk thought he received contradictory answers from those tenants on the questionnaires.

35Given the wording of the question, the Commission does not find that it is inconsistent for those tenants to tell Inspector Kavalchuk that they did not know each other prior to living together but to then answer "yes" to the question of whether they knew "any of the other tenants." The Commission is not prepared to rely on conjecture when the Inspector had powers under the FPPA to obtain further information if he found it necessary. The Commission accepts the evidence obtained by TBFR's own questionnaires at face value.

36Moreover, the Commission accepts Mr. Hickey's testimony that he did not learn about the questionnaires until returning to Thunder Bay in January 2020. And while some of the questionnaires were filled out after that time, the Commission has no reason to doubt his testimony that he was not involved and did not speak to the tenants about their answers.

Further evidence about the occupancies

37Mr. Hickey provided further context concerning the nature of the occupancies, which can be summarized as follows:

(a) Mr. Hickey advertises the price per tenant in order to compete with other properties in Thunder Bay offering housing to students. However, both the website and his practice make clear that the premises are rented as a whole to students who choose for themselves who else they will live with.

(b) The students at each property sign one lease, usually at the same time as a group, though sometimes a person may sign later if they are unavailable. Mr. Hickey testified that his habit is to meet the students together on campus to sign the lease.

(c) Mr. Hickey allows the tenants to pay their portion of the rent separately to him provided all tenants agree to this process. The stipulation requiring consent of all the tenants, is set out in a supplementary agreement jointly signed by all tenants attached to the standard lease. Mr. Hickey testified that he offers this as a service to his tenants because he knows that it is otherwise difficult for them to have one person paying the rent and having to chase down the others for payment. As part of his agreement to take separate payments from the tenants, he makes each tenant provide a guarantor.

(d) There is relatively little turnover at the properties. Mr. Hickey explained that most of the tenants stay for 2-4 years, until they finish their degrees.

(e) Mr. Hickey explained that if a tenant moves out, it is up to that person to sublet or if the term is up and the others wish to stay, the others will find a replacement housemate. Mr. Hickey explained that on one occasion he was asked by the other tenants to advertise a room and he did so, but only once and he was not happy about it. He testified that in that instance, the other tenants found their new housemate in any case without his help.

(f) Mr. Hickey does not attend the premises other than if he is showing the property to prospective tenants, which usually happens in January; or to provide maintenance, which usually happens in the summer. He lives in Windsor, Ontario. He has a local agent available in Thunder Bay in case of emergencies.

(g) The tenants are responsible for furnishing the premises. This includes providing their own furniture for the bedrooms and providing TVs, couches, tables and other furniture for the living/dining rooms, kitchen, and other common areas.

(h) The tenants are responsible for all housekeeping, and some maintenance including shoveling snow in the winter. The only task that Mr. Hickey takes care of is the grass cutting in the summer for all the properties.

(i) The utilities are all in the tenants' names except for water which Mr. Hickey explained must stay in the owner's name. He explained that the tenants together choose one person to be responsible for payment of the water utility and then that tenant collects from the others.

(j) With respect to locks on the doors, Mr. Hickey testified that occasionally a tenant might put their own lock on a door but if so, he only finds out after the fact, and he will remove it when he attends for maintenance in the summer. Otherwise, the bedrooms only have privacy locks – like the kind on bathroom doors that can be locked only from the inside for privacy. This is consistent with Inspector Kavalchuk's testimony. The Inspector also testified that the doors to all the bedrooms were open when he inspected the properties – even of the rooms where the tenants were not home.

(k) The tenants decide together whether to allow smoking in the houses.

(l) There is a term in the lease regarding pets, namely that if a tenant gets a pet, that tenant is responsible for the pet. Mr. Hickey explained there was an incident once where a tenant had a pet and left the rest of the household to deal with the mess it left behind.

F. Analysis

38Based on the above evidence, the Commission is not persuaded that the properties in question are occupied as rooming or boarding houses. The Commission finds, rather, that they are occupied as dwelling units.

39The evidence before the Commission – including the information obtained by TBFR through its own questionnaires – largely undermines the respondent's position. Inspector Kavalchuk's questionnaires were specifically designed to explore the factors deemed by the Courts to be relevant to the determination of whether an occupancy is best classified as a rooming/boarding house or a dwelling unit. With few exceptions, the information obtained through these questionnaires supports the conclusion that these are single housekeeping dwelling units.

40Chief among these factors, is the evidence of collective decision-making among the tenants, including:

(a) deciding who will be living at the premises, including who will sublet if one person moves out;

(b) deciding whether they will together opt to pay rent separately to the landlord or as a lump sum;

(c) deciding who will get which bedroom;

(d) deciding how the whole of the house will be furnished;

(e) deciding who will do the housekeeping, including general cleaning, taking out the garbage, shoveling snow, etc. – everything but the grass cutting in the summer;

(f) deciding whether people can smoke in the house; and

(g) deciding who will take responsibility for the utilities and other expenses such as cable or internet.

41Additionally, there are factors that illustrate trust and cohesiveness among the group – for example, most of the houses only had privacy locks on the bedrooms which only lock from inside; and while some rooms could be locked with a proper lock according to the answers to Inspector Kavalchuk's questionnaire, his evidence was that none of the bedrooms were locked, and in fact all of the doors were wide open when he went through. He further acknowledged that the common spaces were furnished with communal items, for example, couches and TVs, which the Commission takes as a sign of cooperation and care for the premises on the part of the tenants.

42Against the above factors, there are some that weigh in favour of seeing these homes as boarding or rooming houses. For example:

(a) While utilities are paid for by the tenants, the lease agreement imposes an equal sharing of the core utilities among them, specifying that in a home with 5 tenants, for example, each tenant would be responsible for 1/5 of each of the electricity, heat, and water bills. There is no opting in or out of this provision as there is with the decision about how rent is paid. This takes the collective decision-making out of the hands of the tenants in terms of how they pay for utilities.

(b) The pet policy also undermines a culture of common decision-making in that Mr. Hickey imposes sole responsibility for damages and clean-up on the tenant who obtains the pet. In describing why he required this policy, Mr. Hickey provided an example where tenants were stuck with the decision of one of their housemates who chose not to clean up after his or her pet when the tenant left. Yet that is the nature of a collective-decision making household – in which the other tenants do have to assume the responsibility for their roommate's actions. In fact, that is one of the core reasons why safety precautions are more strictly regulated in rooming house contexts – because people do not necessarily want to take responsibility for the others in the house.

(c) Finally, there is the factor that some of the tenants did not know any of the other tenants prior to moving into the premises; as well as the fact that the premises are advertised showing the price per tenant.

43The first two factors – payment of utilities and the pet policy – while indicative of the landlord exercising some control over how the tenants govern themselves, seem to be more of a headache-saving practice as explained by Mr. Hickey than him assuming control over the premises. Mr. Hickey emphasized that Student Padz is ultimately a consumer service, where being able to help tenants avoid having to chase each other down – whether for rent (if they all agree to that process) or utilities or after a messy pet – is a service he is happy to provide. These factors do not satisfy the Commission that it is the owner – and not the tenants – who exercise control over the premises.

44With respect to the tenants who did not know each other prior to moving in, this is an important detail which the Commission has carefully considered. However, ultimately this factor is not sufficient to rebut the Commission's conclusion that these properties, based on the evidence in this case, should be characterized as dwelling units and not rooming or boarding houses.

45The evidence before the Commission indicates that in five out of the seven houses the tenants all knew someone prior to moving in. In one of the other houses, there was one person – out of six in that house – who did not know any of the others prior to moving in. In another house, there were three such people, which is more of a concern to the Commission; yet even so, the uncontradicted evidence of Mr. Hickey is that the tenants were responsible for finding their housemates, such that even if they did not know each other previously, they were still the ones deciding whether they wanted that person to live among them and vice versa. Furthermore, the tenants jointly signed the lease for their premises months in advance of moving in together and in most instances met together with Mr. Hickey to sign the lease. As well, there was little turnover over from year to year according to Mr. Hickey's records which were an exhibit at the hearing. This further suggests that the tenants were ultimately satisfied and compatible with their chosen housemates.

46The Commission found Mr. Hickey's evidence credible and forthcoming. He was upfront about the one time he agreed to list a room on his website at the request of the tenants after one of their roommates moved out. This did not result in him finding a tenant and he has not tried to help in this manner since. The Commission is satisfied on the evidence that it is the tenants who control who signs the initial lease and who moves in when a roommate moves out.

47The Commission is further satisfied on the evidence, that Mr. Hickey advertises the properties with a per/tenant price because that provides a competitive edge, not because that is how they are leased. The evidence presented at this hearing does not support a finding that the rooms are leased per tenant. The Commission accepts Mr. Hickey's evidence which is supported by the tenancy agreements that the houses are rented in their entirety to a group of students who organize themselves into the "single cooperative household."

48While the Commission finds the language of Mr. Hickey's additions to the tenancy agreements to be somewhat self-serving (for example, they mention over and again that the premises are being leased to a "single cooperative household") this does not undermine the evidence that the households appear to, in fact, operate in that manner.

49The Commission further disagrees with the respondent's submission that the joint lease is "joint" in form only. While the Commission agrees that there is little evidence as to how well the students knew each other – other than Mr. Hickey's evidence that most would have come from being in 1^st year residence at Lakehead University – this case is distinguishable from Kitchener Fire Department v. Subramanian Ramamani and Mala Krishna ("KFD")¹¹ which the respondent urges the Commission to consider. In KFD there was evidence that the tenants were all students at a local college but there was otherwise little information about how well they knew each other or for how long. This lack of information about the tenants' relationship contributed to the Commission's finding that the premises were occupied as a rooming or boarding house. However, in KFD there were also numerous other factors that supported that finding. For example, the utilities were paid by the owners, there were locks on each of the bedroom doors, the rent paid by each tenant depended on which room the tenant occupied, and it was the owners who took care of the housekeeping. This combination of factors led the Commission in KFD to conclude that "there was little control of or responsibility for the building that rests with the tenants themselves." However, this is not the case with respect to the properties at issue on this appeal, as outlined above.

50The respondent also points to the Commission's decisions in Satinder Kaur v. Brampton Fire and Emergency Services¹² and in Kong v. Hamilton Fire Department¹³ to suggest that positive evidence is needed to show that premises are occupied as a dwelling unit. The respondent submits that without such positive evidence, there should be a rebuttable presumption that the premises are occupied as rooming houses.

51The respondent relies on Kaur as an example of where there was sufficient evidence to prove that the premises were occupied as a single dwelling unit. The evidence in that case included that the premises were advertised with a price for the whole of the unit, not per room. There was also evidence that the tenants had all known each other previously in their country of origin. As well, there was evidence that they ate meals together and that one of the tenants acted as head of the household.

52In contrast, in Kong, the Commission was unable to conclude that the premises operated as a single tenancy and was therefore left to conclude that the premises were occupied as a rooming house. The respondent invites us to apply Kong and conclude that there is likewise insufficient evidence in this case to prove that the properties are occupied as a single tenancy. For the reasons already given above, the Commission disagrees. Moreover, in Kong, one of the central reasons why the Commission could not conclude there was a single tenancy was because the only lease relied on by the Commission in that case showed an individual agreement between one tenant and the landlord. This is not the evidence before the Commission on this appeal where the leases are all joint leases. The Commission accepts the evidence of Mr. Hickey about how he leases the premises. Furthermore, the Commission finds that his evidence is supported by the tenancy agreements, as well as by the information obtained by TBFR's own questionnaires.

53The Commission is mindful of the comments of the Superior Court in Flood v Boutette¹⁴ that "a landlord should not be able to escape compliance with the Fire Code by strategically constructing a single lease for multiple occupants." The Commission does not have any basis to believe that this is what the appellants have done in this case. Based on the totality of the evidence, the Commission finds that the properties are occupied as dwelling units.

54For the reasons set out above, the Commission rescinds the Orders.

55The parties have agreed that the 2002 Inspection Orders outstanding against the properties in this appeal (and the one relating to 572 John Street in Thunder Bay) will follow the result in this case. Therefore, all such prior Orders are now also rescinded on consent.

Whether additional safety measures are nonetheless required for fire safety

56Notwithstanding the Commission's finding that the premises are dwelling units and need not comply with s. 9.3 Division B of the OFC, the Commission finds that the additional measures set out in the Order below should be taken to maximize fire safety.

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.

58The measures ordered below were discussed at the hearing. The parties agree that the Commission has the authority to order additional measures and that the measures discussed would be acceptable.

59The Order includes a timeline that may be adjusted on consent or by further Order of the Commission.

G. Order

i. Pursuant to s. 26(6) of the FPPA, all Orders at issue in this appeal are rescinded.

ii. On consent, any previous Inspection Orders outstanding against the properties at issue in this appeal and against 572 John Street in Thunder Bay are also rescinded,

iii. Additionally, the Commission orders the appellants to take the following steps in relation to each of the seven properties at issue in this appeal (and on consent, in relation to 572 John Street) on the timeline set out below:

(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 to:

1. Provide for the emergency procedures to be followed in case of fire, including:

i. Notifying the fire department;

ii. Instructing occupants on procedures to be followed when the interconnected smoke alarm, and/or carbon monoxide alarms sound; and

iii. Confining, controlling, and extinguishing the fire. This includes closing bedroom doors, and doors to the furnace room and laundry room, where applicable.

2. Include a diagram showing the location and type of emergency exits, including alternate exits.¹⁵

3. Include a diagram showing the location of fire extinguishers.

4. Provide for the control of fire hazards in the building, including:

i. Limit smoking, and/or disposal of smoking articles;

ii. Regular clearing of lint from dryer lint traps;

(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 as follows:

i. At least one 2A rated portable extinguisher on each floor level; and

ii. at least one 5B:C rated portable extinguisher in each kitchen where shared cooking facilities exist.

iii. To be completed by August 31, 2021.

iv. Every current tenant shall be provided a copy of the Fire Safety Plan and shall be instructed on the emergency procedures, and the use of portable fire extinguishers by September 30, 2021; subsequently, attach a copy of the Fire Safety Plan to the lease provided to each tenant and provide instruction on the procedures within one week of the beginning of each lease term or earlier.

v. The above timelines may be adjusted upon consent of the respondent TBFR which shall not be unreasonably withheld. If there is disagreement over the timelines, the parties may make brief written submissions by email to the Commission on the issue.

Fire Safety Commission

Released: July 19, 2021

______________________________

Jennifer Friedland, Member

______________________________

Susan Clarke, Vice Chair

______________________________

James Minns, Member

Footnotes

1. 1O. Reg. 213/07 [OFC]
2. 2OFC, 9.3.1.1.(1), Division B
3. 3OFC, supra note 1, Division A at s. 1.4.1.2.; Ontario Building Code, O.Reg 332/12 Division A at s. 1.4.1.2.(1)(c).
4. 4OFC, supra note 1, Division A at s. 1.4.1.2
5. 5OFC, supra note 1, Division A at s. 1.4.1.2.; OBC, supra note 2, Division A at s. 1.4.1.2.(1)(c).
6. 6R. v. Singh and Singh, [2014] OJ No 3717 (QL), 2014 ONSC 4564 [Singh] at para 57.
7. 7Good v Waterloo (City) (2003), 67 O.R. (3rd) 89 (Ont. S.C.J.), 2003 CanLII 14229 (ON SC), affirmed (2004), 2004 CanLII 23037 (ON CA), 72 O.R. (3d) 719 (Ont. CA) [Good] at para 3.
8. 8City of Ottawa v. Bentolila, 2006 ONCJ 541 [Bentolila] at para 17
9. 9Bentolila, supra. See also 2161907 Ontario Inc v City of St Catharines et al, 2010 ONSC 4548 [St Catharines] at para 26; Balmoral Developments Hilda Inc. v. Orillia (City), 2013 ONCA 212 [Balmoral] at para 6.
10. 10The questionnaires do not state which property they pertain to; however, they are categorized by property under separate tabs in the joint book of documents.
11. 112020 ONFSC 5 at para 11 (KFD)
12. 122019 CanLII 94499 (ON FSC) at para 26 onward (Kaur)
13. 132016 CanLII 102466 (ON FSC) at paras 21-22,27,36 (Kong)
14. 142019 ONSC 5633 at para 111 (Flood)
15. 15Where windows are large enough to be used as alternate exits they should be included in the Fire Safety Plan as alternate exits (see OFC sections 9.8.3.4 (2) and (3) for guidance as to dimensions adequate to be used as an alternate exit).