Tribunals ontario Fire Safety Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission de la sécurité-incendie
Motion by Rade Batinic for an Order to extend the time to file, pursuant to subsection 26(3) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, an appeal to the Fire Safety Commission from a Decision and Order of the Office of the Fire Marshal
Between:
Rade Batinic Appellant
and
Waterloo Fire Rescue Service Respondent
DECISION AND ORDER ON MOTION
Adjudicator: James Minns, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Philip Teskey, Inspector Pascal Laperriere, Counsel
Held by Teleconference: July 20, 2021
OVERVIEW
1Rade Batinic (the “Appellant”) has brought a motion pursuant to section 26(3) of the Fire Protection and Prevention Act, 1997 (the “FPPA”) asking the Fire Safety Commission (the “Commission”) for an extension of time to appeal a decision and order of the Office of the Fire Marshal (the “OFM”) made under section 25(4) of the FPPA. This decision and order (the “Decision”) confirmed an Inspection Order (the “Order”) issued by Philip Teskey (the “Inspector”) of the Waterloo Fire Rescue Service (the “Respondent”).
ISSUES
2The issue before me is whether the Appellant should be granted an extension of time to file a Notice of Appeal from the Decision of the OFM.
DECISION
3For the reasons below, I find that the grounds for the extension have not been established, and the Appellant’s motion to extend the deadline to request an appeal of the Decision of the OFM is denied.
THE LAW
4Subsection 26(1) of the FPPA permits any person who considers themselves to be aggrieved by an order made by the Fire Marshal under subsection 21(1) or (2) or section 25 to appeal the order to the Commission.
5Subsection 26(2) states that a notice of appeal from an order made by the Fire Marshal shall be filed with the Commission within 15 days after the order is served.
6Pursuant to subsection 26(3), the Commission may, upon application, extend the time for appeal under subsection 26(1) if the Commission is satisfied that there are apparent grounds for granting the appeal and reasonable grounds for applying for the extension. In addition, the Commission may give directions it considers proper consequent upon the extension.
7Subsection 26(4) provides that an application for extension may be made before or after expiration of the time fixed in subsection (2) but shall be made within 30 days after a copy of the order from which the appeal is made is served.
8According to subsection 26(3), when considering an application for an extension of time, the Commission must apply a two-part test:
- Whether there are apparent grounds for granting the appeal; and
- Whether there are reasonable grounds for granting an extension.
9The onus of satisfying the two-part test rests with Appellant as the applicant on the motion.
EVIDENCE
10The Order concerned premises located at 595 Silverbirch Rd., Waterloo, Ontario N2L 4R4 (the “premises”).
11The Order describes the premises as a six-unit residential building built in 1971 with combustible construction materials. It is two storeys in building height plus a basement storey. The building is approximately 198 m² in the building area. Relevant to this proceeding, the Order describes the premises as containing six separate residential dwelling units. Two dwelling units are located on the second storey, two dwelling units are located on the first storey, and two dwelling units are located on the basement storey. Two separate exit stairways serve the residential dwelling units. One exit stairway is located on the west side of the building, and the one exit stairway is located on the east side of the building. Both exit stairways lead directly to the grade.
12The Inspector on behalf of the Respondent inspected the premises on January 5, 2021. The inspection resulted in an Order dated January 14, 2021, which was served on the appellant by email the same day. The Order included a required compliance date of February 25, 2021.
13The Order contained three items requiring action. Only Item 1 was the subject of the Appellant’s requested review by the OFM. Item 1 is also the subject of the Notice of Appeal to the Commission. The Inspector has confirmed that Items 2 and 3 have been complied with.
14At the time of the inspection, under Item 1, the Inspector concluded that the existing closures (doors) located on the second storey, first storey and basement storey between the corridors and the shared exit stairways do not have fire-protection ratings and are not 45 mm solid core wood doors. In addition, the existing doors contain wire-glass inserts. Therefore, the existing doors were described as not complying with the Ontario Fire Code, O. Reg. 213/07 (as amended) Division B, Sentence 9.5.2.8.(1).
15In the Order, the action required under Item 1 included on the second storey, first storey and basement storey, closures located between the corridors and the shared exit stairways to be in accordance with Sentences 3.1.8.4.(2), 3.1.8.10.(1) and 3.1.8.11.(1) and Article 3.1.8.13 of the 1990 Building Code.
16The Appellant filed an Application to Appeal under section 25 of the FPPA to Request a Fire Marshal Review of an Order in which the Appellant asked for approval of the existing doors located on the second storey, first storey and basement storey with wire glass inserts on the grounds that the closures (doors) have been in place since Appellant bought the premises in 2002. In the alternative, the Appellant asked for an extension of the compliance date due to the circumstances of Covid-19 until after the Covid-19 restrictions are lifted.
17The Appellant submitted no other information or documentation on the request for a Fire Marshal Review of the Order.
18In his submission to the OFM, the Appellant argues that the doors are solid wood core with polished wire glass insert construction that complies with the 20-minute fire protection rating of the 1990 Ontario Building Code. The Appellant states that each exit stairwell door is also equipped with self-closing and positive latch devices and exit stairwell doors have not been modified or changed since installation.
19The Respondent filed a written Summary Submission with photographs in reply to the Appellant’s requested Fire Marshal Review of the Order. The written submission provided historical content outlining violations of the Ontario Fire Code concerning O. Reg. 627/92, Retrofit Section 9.5 (Buildings up to and including Six Storeys with Residential Occupancies). On October 24, 1994, the Respondent sent a letter to the owner of the premises (a different owner from the current owner). The letter included an item that pertains to the present situation indicating that under the Fire Code, Article 9.5.2.8.(4), the “doors in the hallways are to be 45 mm solid wood, and the glass that presently exists must be replaced with Georgian Glass or doors replaced with above.” The submission indicated that wired glass was installed in the existing closures between October 1994 and May 1995. However, the Respondent asserted that Section 9.5 of the Ontario Fire Code does not permit installing wired glass into existing solid wood doors to comply with the closure requirements of Article 9.5.2.8.
20The Fire Marshal’s Delegate adopted the Respondent’s evidence in concluding that the doors did not comply with the requirement of Sentence 9.5.2.8(1), Division B of the Ontario Fire Code (which requires that the doors comply with the 1990 Ontario Building Code) and upheld the Order.
21By letter dated June 4, 2021, enclosing the Decision of the OFM, the Appellant was advised that a review of the Order had been conducted under section 25 of the FPPA. As a result of the review, the Fire Marshal’s Delegate decided to refuse the Appellant’s appeal and upheld the Order as permitted under section 25(4) of the FPPA.
22In the letter dated June 4, 2021, the Fire Marshal’s Delegate extended the Order compliance date to September 4, 2021.
23The letter and Decision dated June 4, 2021 was served on the Appellant by email on June 4, 2021. In the letter, the Appellant was advised that, pursuant to section 26(1) of the FPPA, any person who considers themselves to be aggrieved by a decision and order made by the Fire Marshal under subsection 21(1) or (2) or section 25 may appeal the decision and order to the Commission and that the appeal is to be filed with the Commission within 15 days after the decision and order is served.
24On June 19, 2021, the Appellant sent an email to the Commission requesting an extension of time until July 3, 2021, to file an appeal of the Decision. The reason given for the requested extension was “due to personal circumstances.” No further information was offered.
25On June 21, 2021, the Commission sent an email to the Appellant stating that an appeal to the Commission must be filed within 15 days of receiving the decision and order of the OFM. The Appellant was told that the Commission could extend the time for appeal in certain circumstances, but an appellant must ask for an extension of the time by requesting an appeal within 30 days of receiving the decision and order of the OFM.
26In this email the Appellant was asked to advise the Commission by June 25, 2021, if he would like the Commission to proceed with opening an appeal and was asked to provide a copy of the Notice of Appeal, Application for Extension of Time, and the Decision. The Commission indicated that if it did not hear back from Appellant by June 25, 2021, the Commission would presume that the Appellant was not proceeding with the appeal.
27On June 23, 2021, the Appellant sent an email to the Commission indicating that he could not open the documents sent to him in pdf format, nor was he able to open any of the documents on the Commission website in pdf format. The Appellant did attach a Notice of Appeal in HTML format and printed in pdf format a copy of the Decision. The Appellant indicated he could not send an Application for Extension of Time as he could not open the pdf documents sent by the Commission, and the document is not available on the Commission’s website.
28On July 2, 2021, the Commission acknowledged the Appellant’s email of June 23, 2021, and acknowledged receipt of his intent to appeal the decision and order of the OFM dated June 4, 2021. In its reply, the Commission attached the Application for Extension of Time in a pdf format and provided a link for an HTML version of the form. The Appellant was told that if he could not fill out the form, he could answer the questions in the body of an email.
29On July 7, 2021, the Appellant emailed to the Commission a completed Application for Extension of Time.
30In the Notice of Appeal, the Appellant described the reasons for the appeal as: the exit stairwell doors are solid wood core with polished wire glass insert construction which complies with 1990 Building Code 20-minute requirement; each of the exit stairwell doors is equipped with a self-closing and positive latch device; and the exit stairwell doors have not been modified or changed since installation.
31In the Application for Extension of Time, the Appellant gave as the reasons for the application that “…due to personal circumstances and Covid-19 implications I would ask for an extension of the time for requesting an appeal…to July 17, 2021.”
32The Appellant submitted no other information or documentation supporting the Notice of Appeal or the Application for Extension of Time.
33The Respondent has filed a letter dated July 14, 2021, opposing the granting of the extension of time to file an appeal. The Respondent argues that the Appellant has failed to satisfy both branches of the test under section 26(3) of the FPPA.
ANALYSIS
34The first part of the two-part test under subsection 26(3) of the FPPA asks whether there are apparent grounds for granting the appeal.
35The Appellant has argued in both the Request for Review by the OFM, and in the Notice of Appeal to the Commission, that the grounds for the appeal are that the doors in question are compliant with the 1990 Ontario Building Code. The Appellant additionally argues that the doors have been in place since he purchased the premises in 2002.
36The Appellant has offered no other information or evidence supporting his position that the doors comply with the 1990 Ontario Building Code.
37The Respondent argues that the Fire Code sentence 9.1.1.1(1)(a) requires property owners to retrofit applicable buildings to comply with the requirements of a particular section. Sentence 9.5.2.8(1) applies to buildings up to and including 6-storeys with residential occupancies. The Appellant’s building is 3-storeys with residential occupancies, and as such, sentence 9.5.2.8(1) applies and requires that 20-minute fire protection-rated doors be installed in accordance with the 1990 Ontario Building Code.
38The Respondent provided evidence consisting of photographs showing the absence of fire protection ratings indicated on the doors and wire-glass inserts mounted on thin wooden framing.
39The Respondent offered evidence that the wire glass doors in question have been an issue since as early as October 1994. This is notwithstanding the Appellant’s contention to the contrary.
40This motion is not intended as a hearing on the merits of the Appellant’s appeal of the decision and order of the OFM. However, to satisfy the onus on the Appellant, it was incumbent on the Appellant to provide some evidence of apparent grounds for the appeal. Unfortunately, the Appellant has tendered little or no evidence on the point.
41I do adopt with approval the evidence of the Respondent and find that I am not satisfied that the Appellant has demonstrated “apparent grounds” for granting the appeal.
42The second part of the two-part test under subsection 26(3) of the FPPA asks whether there are reasonable grounds for granting an extension.
43The Respondent directed the Commission to the recent decision of Diamond Luxury Builders Inc. v Registrar, Home Construction Regulatory Authority1 which provides some guidance in determining whether there are “reasonable grounds” for granting an extension.
44In Diamond Luxury, the statutory provision under consideration was s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. c. 12, Schedule G, is similar to the FPPA subsection 26(3).
45The Tribunal in Diamond Luxury considered the decisions of the Tribunal in 785372 Canada Inc. o/a Mapleview Homes, 2021 CanLII 20992 (On LAT) and re Allen, [2006] O.L.A.T.D. No. 443.
46In addition, the case of Manuel v Registrar, 2012 ONSC 1492 para. 14 identifies the same factors to consider as constituting reasonable grounds for assessing a request for an extension of time in which to file an appeal.
47I have considered and adopted the reasoning in this line of cases, where the common issue is whether the justice of the case demands an extension. These decisions indicate that the determination of whether there are “reasonable grounds” for an extension is to be guided by the following considerations: the length of the delay, whether there has been a “firm intention to appeal from the beginning,” whether the appeal is shown to have some merit and whether there is prejudice to the “other party.”
48These factors are not exhaustive—the Tribunal, or the Commission in the present case, may consider any other factor that it deems relevant. Moreover, no factor takes precedence over the others, and the weight each is accorded in an analysis may change from case to case.
49The Respondent in its written submissions and during a discussion on the motion conceded that the length of the delay is short, that it cannot be said to be prejudiced by the delay, and that the Appellant demonstrated an intention to appeal early in the process, as demonstrated by the Appellant’s email correspondence with the Commission.
50However, the Respondent argues that there are no reasonable grounds for granting the extension. The Appellant states in the Application for Extension of Time that the reason given for requesting the extension is because of personal circumstances and Covid-19 implications. The Respondent submits that the Appellant has failed to meet the second branch of the test.
51The decision and order of the OFM was served on the appellant by email on June 4, 2021. The time to file a Notice of Appeal within 15 days of service of the Decision expired on June 19, 2021. The Appellant filed a Notice of Appeal on June 23, 2021. The time to file an Application for Extension of Time within 30 days of service of the Decision expired on July 5, 2021. The Appellant filed the Application for Extension of Time on July 7, 2021.
52The Appellant was late in filing both the Notice of Appeal and the Application for Extension of Time to file the Notice of Appeal. In both cases, the only explanation offered was unspecified personal circumstances and the unspecified implications of Covid-19.
53In email communications with the Commission, the Appellant indicated he was having difficulty opening pdf documents supplied by the Commission or on the Commission’s website. At the motion hearing, the Appellant stated that he is a P. Eng. and through his employment as a Project Manager with the Toronto Transit Commission he is familiar working with information technology. From this information I draw the inference that the Appellant is experienced with technology and so it is not credible that he could not open or access the pdf documents.
54At no time during the interval between service of the OFM Decision on June 4, 2021, and the due date for filing of a Notice of Appeal on June 19, 2021, did the Appellant complain of an inability to access or open Commission forms or pdf documents.
55The Appellant was provided with an Application for Extension of the Time in an HTML format on July 2, 2021. The due date for filing the form was three days later, on July 5, 2021. However, the Appellant did not file the form until July 7, 2021. No reason was offered to explain the late filing.
56To be successful on the motion, the Appellant must also satisfy the Commission that there are reasonable grounds for applying for the extension of time. The Appellant has failed to demonstrate reasonable grounds to grant the extension. The only explanation offered for the missed deadlines was unspecified personal circumstances and unspecified implications of Covid-19.
57The Appellant has therefore failed to meet the statutory 15-day deadline under section 26(2), the statutory 30-day deadline under section 26(4) and has failed to meet the two-part test under section 26(3). The circumstances of this case do not demand the granting of the relief as requested.
DECISION AND ORDER
58I dismiss the Appellant’s motion for an extension of time to file the Notice of Appeal from the Decision of the OFM.
Released: August 16, 2021
James Minns, Member Fire Safety Commission