Draven v. Toronto Fire Services, 2022 ONFSC 10
RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Date of Order: 11/02/2022
Tribunal File Number: 13466 FSC
Case Name: Camla Draven v. Toronto Fire Services
Written Submissions by:
For the Appellant: Camla Draven, Self-represented
For the Respondent: Emma Luca, Counsel
OVERVIEW
1This is the appellant’s request for reconsideration of a Motion Decision and Order of the Fire Safety Commission (the “Commission”) released June 23, 2022 (the “Decision”) in respect of the appellant’s appeal under s. 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (the “FPPA”).
2The appellant appealed to the Commission the Order of the Fire Marshal made on June 9, 2021 (the “Review Order”) under s. 25 of the FPPA. The Review Order confirmed an Inspection Order made by Inspector Pace of the Toronto Fire Services (the “respondent”) issued March 24, 2020 (the “Inspection Order”).
3The Decision dismissed the appellant’s appeal on the basis that the Commission does not have the jurisdiction to proceed with this appeal.
4The Decision was made following the written hearing of the Commission’s motion on its own behalf to determine whether the Commission has jurisdiction to proceed with this appeal. The Commission invited both parties to make submissions on the Commission’s motion. The appellant made initial and reply submissions and the respondent made submissions.
5On reconsideration, the appellant asks that she be allowed to “withdraw” her appeal, or seeks the Decision to be amended to provide that her appeal is withdrawn or the Decision be “reversed” and her appeal be allowed to continue.
RESULT
6For the reasons given below, the appellant's request for reconsideration is dismissed.
CRITERIA FOR RECONSIDERATION
7The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended February 7, 2019 (the “Rules”).
8The appellant makes this request under Rule 18.2 (a) which is that the Commission acted outside its jurisdiction or violated the rules of procedural fairness, and also under Rule 18.2 (b), which is that the Commission made an error of law or fact such that the Commission would likely have reached a different result had the error not been made.
9The respondent’s reconsideration submissions were due by October 6 but were received by the Commission on October 11, 2022. The appellant’s reply reconsiderations submissions were due October 13, 2022 but were received October 17, 2022.
10In the interests of fairness to both parties, I have considered both the respondent’s submissions and the appellant’s reply submissions prior to making this Reconsideration decision.
POSITIONS OF THE PARTIES
Appellant’s Submissions
11The appellant’s request for reconsideration raises two grounds:
Rule 18.2 (a): Commission acted outside its jurisdiction or violated the rules of procedural fairness
12In summary, the appellant submits that the Commission violated the rules of procedural fairness in March, 2022 by not granting accommodation she requested due to her health conditions, not allowing the appellant to appropriately participate in the pre-motion hearing procedure, and by sending her a non-specific letter dated March 8, 2022 about the next steps before the Commission which “interfered with making an informed decision and caused her to miss withdrawing the appeal in time for settlement”.
Rule 18.2 (b): Commission made an error of law or fact such that the Commission would likely have reached a different result had the error not been made
13In summary, the appellant submits that the Commission made an error of mixed fact and law in paragraph 24 of the Decision by finding “…there is no issue in dispute between the parties arising from the decision contained in the Review Order because the appellant conceded in her Notice of Appeal that the respondent is no longer pursuing compliance because the Fire Code violation at issue has been remedied” because the appellant claims she has not complied with the Inspection Order and it was the landlord who resolved the matter to the respondent’s satisfaction. Further, the appellant is advancing a complaint as the steps which actually resolved the matter were not to her satisfaction including the acceptance by the respondent of the fire door which the appellant submits is not an acceptable solution, the appellant submits that she should have had equal opportunity to make submissions on whether the fire door was a solution acceptable to respondent. The appellant submits that in accordance with Rule 18, reconsideration of any interlocutory decision must occur at the end of an appeal, if its preliminary finding is integral to the Decision. The appellant further submits that she believes that if the Inspection Order is not withdrawn she will face hardship in attempting to rent future accommodation because she has something similar to a tenant “criminal record” and fears the landlord will use this against her at a Landlord Tenant Board hearing for eviction.
14In reply, in summary, the appellant repeated many of her initial submissions, suggested that the Decision is based on what happened at the case conference and a “record” of the case conference should be given to her, the Decision was made without the Commission considering the appellant’s submissions in her appeal, and is unclear.
Respondents Submissions
15The respondent submitted that the applicant has not established that the criteria for reconsideration she relies on have been met and asks that the reconsideration request be denied.
ANALYSIS
Rule 18.2 (a): Commission acted outside its jurisdiction or violated the rules of procedural fairness
16The appellant made no specific submissions as to how the Commission acted outside its jurisdiction. This ground of reconsideration is not established.
17The Commission did not violate the rules of procedural fairness. This ground of reconsideration is not established.
18Although the appellant submits that there was a lack of accommodation provided to her prior to the motion hearing, this is incorrect. The motion was done in written format at the appellant’s request. The appellant was provided with an opportunity to make submissions by April 8, 2022, an extension of time was provided to the appellant to April 19, 2022. After the respondent filed its submissions on April 22, 2022, the appellant was granted a further extension to May 13, 2022 to provide her reply submissions. The appellant made both initial and reply submissions.
19Contrary to the appellant’s suggestion that she was not allowed to participate in the motion process, all submissions made by both parties were considered by me prior to making the Decision as stated in paragraph 8 of the Decision.
20There was no settlement of this appeal prior to the hearing of the motion. Had the appellant wished to withdraw or settle her appeal, she had ample opportunity to do so before the Commission’s March 8, 2022, Order or at any time up until the Decision was released in June, 2022. The appellant chose not to do so.
21Regret by an appellant that the appeal was not settled or withdrawn prior to the issuance of the Decision is not a ground for reconsideration, whether it arises out out of concern that the Decision may cause hardship in the future or result in something similar to a tenant “criminal record”, that the landlord will use the Decision at a Landlord and Tenant Board hearing for eviction, or otherwise. Parties seeking a decision from the Commission always run the risk that any decision resulting from the appeal may be less favourable to them than a settlement or withdrawal. Here, as in all appeals, the Commission provided the parties with an opportunity to discuss resolution without a hearing at the case conference. Further, the opportunity to resolve without a hearing by settlement or withdrawal of an appeal is available until the date the Commission issues a decision.
22Although the appellant submits that the Decision is based on what happened at the case conference and a “record” of the case conference should be given to her, there is no basis for this submission and this request. The Decision is based on the Notice of Appeal, the evidence and submissions made by the parties on the motion.
23Rule 14 of the Rules provide that the Commission hearing adjudicator who presided at the case conference may not participate in the hearing. I was not the adjudicator at the case conference. Rule 14.4 provides that settlement discussions at the case conference are confidential and the case conference is not public. The “record” of the case conference is the Case Conference Report and Order which was issued by the Commission and provided to both parties following the case conference. There has been no violation of the rules of procedural fairness.
24Although the appellant submits that the Commission’s letter to the parties concerning the motion hearing was “non-specific”, it was not unclear. The appellant understood that she was entitled to make both initial and reply submissions on the motion and did so.
25Further, the Decision is clear and supported by appropriate reasons.
Rule 18.2 (b): Commission made an error of law or fact such that the Commission would likely have reached a different result had the error not been made
26The Commission did not make an error of law or fact, let alone an error of law or fact such that the Commission would likely have reached a different result. This ground of reconsideration is not established.
27The Commission, after considering the submissions and other motion materials put forward by both parties on this motion, dismissed this appeal for the reasons set out in the Decision. This is within the legal mandate of the Commission and consistent with the Supreme Court of Canada’s guidance1 in cases where the dispute between the parties has disappeared and become academic as set out in paragraph 25 of the Decision.
28The Decision is correct based on the facts of this appeal. The appellant in her Notice of Appeal conceded that the Fire Code violation at issue had been remedied. The fire safety issue between the parties was moot at the time of the Decision and there was no fire safety issue between the parties to be decided by the Commission. As a result, I found that the Commission was without jurisdiction to proceed with the appellant’s appeal.
29The appellant failed to withdraw her appeal or obtain a settlement of her appeal.
30Although the appellant chose to proceed with her appeal in order to raise complaints about whether the Inspection Order was necessary, should have been withdrawn, and about other processes and procedures by the respondent and possibly others, I found that the Commission does not have jurisdiction to hear these general complaints.
31The appellant’s submissions about the Commission’s case conference and other processes are not properly the subject matter of a reconsideration request. Rule 18.1 of the Rules provides for a reconsideration only of any decision that finally disposes of an appeal.
32Further, the remedies sought by the appellant in her Notice of Appeal are not remedies that the Commission is empowered to grant under the limited jurisdiction given to it under the FPPA.
33On the motion material before me, it was open to me to make the Decision that the appeal before the Commission should be dismissed. I did so for the reasons set out in paragraphs 23 through 31.
34Dissatisfaction with the Decision is not a ground of reconsideration. The Commission not accepting the appellant’s submissions, evidence or legal authorities on the motion is not an error of law.
35Although the appellant may disagree with the Order, reconsideration is not an opportunity for the appellant to re-argue its position.
36The appellant has not established its grounds for reconsideration. The grounds for reconsideration of a Commission decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the appellant has requested reconsideration, the onus is on the appellant to establish her grounds and she has not done so.
CONCLUSION AND ORDER
37The appellant has failed to satisfy the Commission that any of its Rule 18.2 criteria for reconsideration have been established.
38For the reasons noted above, the appellant’s request for reconsideration is dismissed
Released: November 2, 2022
__________________
Avril A. Farlam Vice Chair Fire Safety Commission
Footnotes
- Borowski v. Canada(Attorney General), 1989 CanLII 123 (SCC).