Tribunals ontario
Fire Safety Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission de la sécurité-incendie
Motion by Brampton Fire and Emergency Services 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:
Brampton Fire and Emergency Services Appellant
and
Credit Ridge Remedy’s Rx Pharmacy Respondent
DECISION AND ORDER ON MOTION
Adjudicator: James Minns, Member
Appearances:
For the Appellant: Chantelle Cosgrove, Assistant Division Chief Colleen Grant, Counsel Chris Kellam, Assistant Division Chief
For the Respondent: Tejal Chauhan
Held by teleconference: August 23, 2021
OVERVIEW
1This motion is brought to request an extension of time to file an appeal of a decision and order (the “Review Decision”) of the Office of the Fire Marshal (the “OFM”).
2Brampton Fire and Emergency Services (the “Appellant”) has brought the 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 the Review Decision of the OFM made under section 25(4) of the FPPA.
3The Review Decision confirmed in part and rescinded in part the Inspection Order (the “Inspection Order”) issued by Junewon Hur (the “Inspector”) concerning Credit Ridge Remedy’s Rx Pharmacy (the “Respondent”) which operates a retail pharmacy business located at 9525 Mississauga Road, Unit 7 (Remedy’s Rx), Brampton, Ontario (the “premises”).
ISSUES
4The issue before me is whether the Appellant should be granted an extension of time to file a Notice of Appeal from the Review Decision of the OFM.
RESULT
5For 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 file an Notice of Appeal of the Review Decision of the OFM is denied.
THE LAW
6The FPPA section 26(2) provides that a Notice of Appeal shall be filed with the Commission within 15 days after the Review Decision is served. Section 26(4) requires that the application for an extension of time may be made either before or after expiration of the time fixed in subsection (2) but shall be made within 30 days after a copy of the Review Decision from which the appeal is made is served.
7According to subsection 26(3) of the FPPA, 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.
8The onus of satisfying the two-part test rests with the Appellant as the applicant on the motion.
EVIDENCE
9The Review Decision describes the premises at 9525 Mississauga Road, Unit 7 (Remedy’s Rx), Brampton, Ontario as part of a commercial one-story building constructed of combustible and non-combustible construction.
10The Respondent operates a commercial retail pharmaceutical business from the premises.
11The Inspector, on behalf of the Appellant, inspected the premises on November 25, 2020. The inspection resulted in an Inspection Order dated December 10, 2020, which was served on the Respondent by email the same day.
12The Inspection Order contained the following four items requiring action:
Remove the combustible materials and obstructions from around the electrical panel in the back area.
Remove the metal gate from the front exit so that this exit may be used by the occupants of this unit.
Remove the lock from the metal gate at the front exit, so there is only one releasing operation to operate the exit door.
Fire extinguishers are to be maintained annually and include inspection tags to show when they were maintained.
13The Inspection Order included a compliance date of January 19, 2021.
14The Respondent filed an application under section 25 of the FPPA to Request a Fire Marshal Review of an Order. All four items were the subject of the Respondent’s requested review by the OFM.
15It was noted in the Appellant's submission to the OFM that items 1 and 4 from the Inspection Order had been complied with since the Inspection Order was served.
16By letter dated July 20, 2021, enclosing the Review Decision of the OFM, the Appellant and Respondent were 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, as permitted under section 25(4) of the FPPA, decided to confirm Items 1 and 4 and rescinded Items 2 and 3. The compliance date was extended to October 20, 2021.
17The letter and Review Decision dated July 20, 2021, were served on the Appellant and Respondent by email on July 20, 2021.
18On July 23, 2021, the Appellant sent an email to the Commission containing an Application for an Extension of Time under s. 26(3) of the FPPA. The reason given for the requested extension was “for Inspector Hur to complete appeal package on his return to work. Time to gather additional information to support the file and argument.”
Appellant’s Evidence and Submissions
19The Appellant has not filed a Notice of Appeal stating the grounds for the appeal. The Appellant’s Application for an Extension of Time does not disclose the grounds for the appeal.
20The Appellant has submitted no other written information or documentation supporting the Application for Extension of Time.
21During the hearing on the motion, the Appellant advised that Inspector Hur was on vacation from July 19, 2021, to July 25, 2021, inclusive and off on vacation once again from August 23, 2021, returning August 30, 2021.
22During the hearing on the motion, the Appellant advised that the review and approval of Division Chief Andrew vonHolt is required before the Notice of Appeal can be filed. Division Chief vonHolt is off on vacation beginning July 26, 2021, returning August 7, 2021.
23The vacation schedules of Inspector Hur and Division Chief vonHolt were offered as the reasonable grounds explaining the inability of the Appellant to file a Notice of Appeal within the time required under the FPPA s. 26(3).
24During the hearing of the motion, the Appellant requested an extension to file the Notice of Appeal to September 10, 2021.
Respondent’s Evidence and Submissions
25The Respondent has submitted no written information or documentation opposing the Application for Extension of Time.
26The Respondent opposed the requested extension of time.
27The Respondent objected to the Appellant’s submissions that the vacation schedules of the Appellant’s staff were sufficient grounds to justify the inability of the Appellant to file a Notice of Appeal within the required statutory time period.
28The Respondent argued that it was prejudiced by the Appellant’s delay in filing a Notice of Appeal and the Appellant’s failure to disclose the stated grounds for the appeal.
ANALYSIS
29The first part of the two-part test under subsection 26(3) of the FPPA asks whether there are apparent grounds for granting the appeal.
30The Appellant has not filed a Notice of Appeal. The Application for an Extension of Time does not disclose the grounds for the appeal.
31I find that the Appellant has not demonstrated “apparent grounds” for granting the appeal.
32The second part of the two-part test under subsection 26(3) of the FPPA asks whether there are reasonable grounds for granting an extension.
33The recent decision of Diamond Luxury Builders Inc. v Registrar, Home Construction Regulatory Authority1 and a line of cases considered therein provides some guidance in determining whether there are “reasonable grounds” for granting an extension.
34I 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.”
35These factors are not exhaustive. In the present case, the Commission 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.
36The Review Decision of the OFM was served on the Appellant and Respondent by email on July 20, 2021. The time to file a Notice of Appeal within 15 days of service of the Review Decision expired on August 4, 2021. The time to file an Application for Extension of Time within 30 days of service of the Review Decision expired on August 19, 2021.
37The Appellant filed the Application for Extension of Time on July 23, 2021.
38The vacation schedules of the Inspector or the Division Chief are not “reasonable grounds” upon which to base an application for an extension of time. The Respondent knew or ought to have known the vacation schedules of its staff and should have taken the steps necessary to fulfill its duties and obligations respecting the filing of a Notice of Appeal within the statutory time period.
39The Commission is bound to comply with the Act and the vacation concerns provided do not give the Commission the ability adjust statutory schedules.
40The circumstances of this case demand the denial of the relief as requested.
DECISION AND ORDER
41I deny the Appellant’s motion for an extension of time to file the Notice of Appeal from the Review Decision of the OFM.
Released September 20, 2021
James Minns, Member
Fire Safety Commission