Tribunals ontario
Fire Safety Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission de la sécurité-incendie
Motion by Kemira Chemicals Canada Inc. for an Order to extend the time to file an appeal to the Fire Safety Commission pursuant to subsection 26(3) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Kemira Chemicals Canada Inc.
Appellant
and
St. Catharines Fire Services
Respondent
MOTION DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice Chair
Appearances:
For the Appellant: Robert England, Counsel
For the Respondent: Jessica Williams, Fire Inspector Len Papp, Chief Fire Prevention Officer
Held by teleconference: December 9, 2021
OVERVIEW
1Kemira Chemicals Canada Inc. (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”) to extend the time to appeal from a Decision and Order (the “Decision”) of the Office of the Fire Marshal (the “OFM”) made under section 25(4) of the FPPA.
2The appellant is the owner of a commercial enterprise providing chemistry expertise to various industries carried on at 321 Welland Avenue, St. Catharines, Ontario (the “property”). The property has three buildings, specifically, an industrial building used for the blending and storage of Class 2 and Class 2A flammable combustible liquids, a warehouse and a maintenance shop.
3After inspecting the property, St. Catharines Fire Services (“SCFC”) Inspector Hur issued and served on April 15, 2020 an Inspection Order under the FPPA which required two items to be addressed. Item one required that the owner provide proper sprinkler coverage throughout the facility to ensure adequate protection is provided for; equip all sprinkler heads in the office area with proper escutcheon plates; provide for proper sprinkler space as per NFPA 13 throughout the office facility including the office area; and provide for proper sprinkler protection in areas where rollup doors are present so when an obstruction is created with the doors in the open position, there is adequate sprinkler discharge coverage underneath the obstruction. Item two required that any sprinkler head older than 50 years be replaced or tested from sample areas as per NFPA 25.
4The appellant appealed the Inspection Order to the OFM the same day.
5The OFM reviewed the Inspection Order and issued and served its Decision on the appellant on April 28, 2021. As permitted under section 25 of the FPPA, the OFM Decision confirmed Item one but extended the compliance date to October 28, 2021. Item two was rescinded.
6The OFM Decision sets out the right to appeal to the Fire Safety Commission and the statutory requirement that the appeal must be filed within 15 days after the OFM Decision is served. The appellant did not appeal the OFM Decision to the Commission within 15 days after the OFM Decision was served on April 28, 2021, specifically by May 13, 2021
7The appellant did not make a request for extension of time to appeal within 30 days after a copy of the OFM Decision was served, as required under s. 26(4) of the FPPA, specifically by May 31, 2021.
8The appellant’s motion to extend the time to appeal was not brought until November 12, 2021, some five and one half months after the time for seeking an extension had expired by which time the date for compliance in the OFM Decision expired.
9SCFC opposes the appellant’s motion to extend the time to appeal because it is too late to appeal the OFM Decision and too late to seek an extension of time to appeal under s. 26 of the FPPA.
ISSUES
10There are two issues to be determined on this motion as follows:
a. Whether the FSC has the power to extend the time for filing an appeal if the request for an extension is not made within 30 days of service of the order being appealed as required under s. 26(4) of the FPPA; and
b. If so, whether the appellant has satisfied the two-part test under subsection 26(3) of the FPPA by demonstrating apparent grounds for granting the appeal and reasonable grounds for applying the extension of the time to request an appeal of the OFM Decision to the Commission (“the merits of the motion”).
RESULT
11The appellant’s motion to extend the time for the filing of the appeal is denied.
THE LAW
12Subsection 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.
13Subsection 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.
14Pursuant 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. If an extension is granted, the Commission may give directions it considers proper consequent upon the extension.
15Subsection 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.
16Under subsection 26(3), the Commission must apply a two-part test when considering an application for an extension of time:
a. Whether there are apparent grounds for granting the appeal; and
b. Whether there are reasonable grounds for granting an extension.
17The onus of satisfying these tests is on the party applying for extension of time.
EVIDENCE AND ANALYSIS
Appellant’s Evidence and Submissions
18The appellant indicates in its Notice of Appeal and submissions on the request for extension of time that it wishes to appeal the OFM Decision to extend the compliance date only.
19The reasons given in the motion materials and in submissions are that, although the appellant started working on compliance in April, 2020, the compliance date of October 28, 2021 cannot be complied with because of unforeseeable and unknown circumstances which, in summary, are:
a. the work of the appellant’s project manager and other employees was delayed between April 2020 and June 2020 by the impact of COVID-19 pandemic,
b. the appellant’s fire consulting firm required engineering and related documents in order to consider how best to comply with the Initial Order,
c. an alternative consultant had to be engaged because the appellant’s fire consulting firm did not believe it could do the work in light of the COVID-19 lockdown,
d. the appellant was working with limited staff in order to protect its staff from COVID-19,
e. the new fire consulting firm recommended professional engineering advice be obtained by the appellant,
f. the engineering consultant was delayed in delivering its report to the appellant due to the age of the appellants main building, COVID-19, vacations and access to the appellant’s buildings and documents,
g. it took time to have discussions regarding the report, scope of work, cost of work, contractor quotations and bids, obtaining drawings required for the work, obtaining permits from the municipality for work to be done,
h. the identification of additional hazard issues that required changes to the scope of work.
20On June 17, 2021 the appellant became concerned as to its ability to meet the OFM Decision compliance date of October 28, 2021 and entered into discussions with the SCFS about the compliance date.
21In the meantime, the appellant continued during the summer months of 2021 to finalize project information and obtain updated quotes. On September 8, 2021 the appellant received the required permits from the municipality, finalized its contract negotiations with its contractor, and onsite work commenced at the beginning of October 2021 with an anticipated completion date of February 2022.
22On October 29, 2021 the appellant received correspondence from Inspector Papp at SCFS in which the appellant agrees no comments were made by Inspector Papp with respect to the appellant’s explanation of its inability to comply with the OFM Decision’s compliance date and the need for an extension of the compliance date but instead referred the appellant to the April 28, 2021 letter of the OFM advising of appeal remedies.1
23The appellant submits that all of these circumstances which delayed its compliance with the OFM Decision were unknown to the appellant within the time limits for appealing the OFM Decision. The appellant did not appeal in April 2021 because it thought it could meet the compliance date but later found it could not for the reasons set out.
24The appellant also submits that the October 29, 2021 correspondence from the SCFS constitutes an Inspection Order which changes the time limits for appeal, or alternatively, if it is not an Inspection Order, then failure to make an Order under s. 21 is an Order which can be appealed.
25The appellant relies on various case law submitted including the Manuel2 case which the appellant submits sets out the factors to be considered in considering an extension of time to appeal from a statutory deadline.
26The appellant submits that the deadline to appeal should be extended and also submits that it meets the two-part test in s. 26(3) of the FPPA.
27Lastly, the appellant points to the approximately one year it took the OFM to issue its Decision as indicating a lack of urgency and risk regarding the fire safety issues on this property and a lack of prejudice to the SCFS and the public if the extension is granted. The appellant also suggested that it may not be able to continue in business if not granted an extension of the time to appeal.
Respondent’s Evidence and Submissions
28The SCFS opposes the application and submits that the FPPA sets out clear limitations on the time for an appeal to the Commission and the appellant was well aware of its appeal rights as evidenced by the fact that it appealed the Inspection Order within one day of service. The SCFS further submits that OFM Decision has already allowed a long time for compliance, that the safety of the occupants and the community is paramount and it would be prejudiced in the carrying out of its duties by further delay. Lastly, the SCFS submits that its October 29, 2021 correspondence does not constitute an Inspection Order under s. 21 of the FPPA and there is no right of appeal arising from it.
Whether the FSC has the power to extend the time for filing an appeal
29The threshold issue that I must determine prior to considering the merits of the motion is whether the legislative time limits in s. 26(4) of the FPPA have been met.
30Although the appellant relies on the Manuel case which the appellant submits sets out the factors to be considered in considering an extension of time to appeal from a statutory deadline, I do not find this submission persuasive. The Manuel case is specific to the Licence Appeal Tribunal and its specific legislative authority and I do not find it useful for the Commission or the FPPA given that s. 26(4) of the FPPA requires that an application for extension shall be made within 30 days after service of a copy of the order from which the appeal is made.
31I find that the time limits in s. 26(4) of the FPPA have not been met based on the evidence before me.
32The FPPA has strict time limits for the appeal of orders made by fire officials and for requests for extensions of the time to appeal them. Section 26(2) of the FPPA 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 this Commission within 30 days after a copy of the order from which the appeal is made is served. It is clear from the evidence that the OFM Decision was served on the appellant on April 28, 2021.
33It is equally clear from the evidence before me that the appellant did not appeal the OFM Decision to the Commission within 15 days after the OFM Decision was served on April 28, 2021 (May 13, 2021), nor was request made for extension of time to appeal made within 30 days (May 31, 2021).
34This motion was not brought until November 12, 2021, some five-and-one-half months late. The date for compliance in the OFM Decision has already expired.
35Unlike the appeal of the Inspection Order which the appellant filed the day after it was served, the appellant took no steps to appeal the OFM Decision until November 2021, some five and one-half months after the statutory deadline for doing so. The appellant considered an appeal not to be required and was initially confident that it could meet the compliance deadline in the OFM Decision. When it later realized that it could not meet the compliance deadline because of delays and challenges with its work force, consultants and contractors, the time to appeal and the 30-day time limit to apply for an extension of the time to appeal had expired.
36By choosing not to appeal the OFM Decision, the appellant assumed the risk of not being able to meet the compliance dates at a time when the right to appeal or to seek an extension of time to appeal would have expired. I find that the appellant was well aware of its appeal rights as demonstrated by its quick action in appealing the initial Inspection Order.
37Given the clear language of s. 26(4) of the FPPA, I find that the Commission has no power to grant an application for an extension of time to file an appeal if the application for the extension of time was not made within 30 days after the copy of the order from which the appeal is made is served, as was the case here.
38I find unpersuasive the appellant’s submission that the October 29, 2021 correspondence from the SCFS constitutes an Inspection Order which changes the time limits for appeal, or alternatively, if it is not an Inspection Order, then failure to make an Order under s. 21 is an Order which can be appealed. An Inspection Order under the FPPA must identify itself as such and comply with the requirements of s. 21 of the FPPA in form and content. The October 29, 2021 does not do that and does not purport to do that. The requirements of s. 21 of FPPA are clear and appellant’s counsel did not point to any precedent where failure to make an inspection Order under FPPA has been found itself to constitute an Order.
39None of the authorities cited by the appellant regarding statutory interpretation assist the appellant here. There is nothing unclear or unanticipated in the statutory provisions of the FPPA regarding time for appeal. Although the appellant’s position is that it was delayed by the COVID 19 pandemic, in fact the appellant started the work required in early 2020 and if it felt the pandemic had delayed it and it had grounds for appeal, the appellant could have appealed in 2021 but did not do so.
40The onus is on the appellant to establish it meets the legislative time limits for seeking an extension of the time to appeal. The appellant has not met its onus.
The Merits of the Motion
41Given that I have found, based on the evidence, that s. 26(4) of the FPPA precludes me from considering this motion on the merits, no further analysis is necessary.
42For the reasons above, the appellant’s motion for an extension of time for filing its appeal is dismissed.
Released: January 12, 2022
_________________ ___________
Avril A. Farlam, Vice Chair
Footnotes
- Appellant’s Application for Extension of Time under s. 26(3) of the FPPA, Schedule A, para 10(kkk).
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.)