Leonard Group Financial Inc. et al v Brockville Fire Department, 2022 CanLII 110447

Citation: Leonard Group Financial Inc. et al v Brockville Fire Department, 2022 ONFSC 12

Date: 2022-11-23

Appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, from a direct referral from the Fire Marshal

Between:

Leonard Group Financial Inc. and Arthur Pullan Appellants

And

Brockville Fire Department Respondent

DECISION AND ORDER

PANEL: Marisa Victor, Vice-Chair Anxhela (Angela) Peco, Member Peter Simmons, Member

APPEARANCES:

For the Appellants: Peter Leonard, agent for Leonard Group Financial Inc. Arthur Pullan, self-represented

For the Respondent: Matthew Tyo, agent

Held by videoconference: September 13, 2022

OVERVIEW

1There are two files under appeal concerning a condominium building in Brockville, Ontario. The building (“Building”) is a multi-story mixed-use building built around 1989. It is one structure with two premises. File 14018 refers to 9 Broad Street and relates to the commercial spaces in the Building that occupy part of the ground level and floors 2 and 3. File 14021 refers to 11 Broad Street. It is the residential portion of the Building that occupies floors 4 through 9, accessed via elevators from a ground floor lobby. The lobbies of both the addresses are adjacent but not connected. In advance of the hearing, the parties agreed that the two files should be heard together. Both 9 and 11 Broad Street are referred to in this decision as the “Building.”

2On March 29, 2022, the Brockville Fire Department (“respondent”) issued two inspection orders (“Inspection Orders”) for both addresses. The Inspection Orders included violations concerning fire separation doors wedged open and combustible furniture in a lobby and corridors. The Inspection Orders were issued under s. 21(1)(g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”). Orders issued under this section of the FPPA indicate a violation of the Ontario Fire Code¹ (“OFC”).

3The appellant, Leonard Financial Group Inc (“Leonard Inc.”), is a commercial tenant in the Building. Leonard Inc.’s principal, Peter Leonard (“Leonard”), also lives in the residential portion of the Building. The appellant Arthur Pullan (“Pullan”) is a resident of the Building.

4The appellants appealed the Inspection Orders to the Fire Marshal (“FM”) on April 16, 2022. The FM referred the appeals directly to the Fire Safety Commission (“Commission”) pursuant to s. 25(4) of the FPPA.

ISSUES

5The issues to be determined are:

a) Are the door stops and other materials used to hold open fire separation doors throughout the Building in violation of Article 2.2.3.3 of the OFC?

b) Is the combustible material in the lobby and common areas of the residential floors of the Building in violation of Article 2.4.1.1 (2) of the OFC?

RESULT

6The panel finds that:

a) The door stops and other materials used to hold open fire separation doors in the Building are in violation of Article 2.2.3.3 of the OFC.

b) The combustible material in the Building is not in violation of Article 2.4.1.1 (2) of the OFC.

ISSUE 1 – ARE THE DOOR STOPS AND OTHER MATERIALS USED TO HOLD OPEN FIRE SEPARATION DOORS IN VIOLATION OF THE OFC?

Appellants’ Evidence and Submissions

7Pullan, a retired fire prevention officer for the City of Brockville, lives in the Building and testified on his own behalf and on behalf of the residents of the condominium, many of whom are elderly and are strongly in favour of keeping the door stops on their unit entrance doors as it assists them with entering and exiting.² He advised that a door stop had been requested by a resident of the Building whose door did not have a door stop. The condominium management company declined to install the door stop after consulting with the respondent and learning that the respondent did not support the installation. Pullan testified that not all fire separation doors in the Building had door stops, but most residential unit entry doors had door stops installed and they believe they have been there since the Building was occupied in 1989.

8Pullan testified that several residents experience challenges when bringing personal items, such as parcels and groceries, through their unit entry doors, and that a door stop makes the process easier and safer as it prevents falls. To illustrate, he provided a video showing a resident using the door with and without a door stop.

9Pullan also testified about the ground floor mail room door, which he believed was not a fire separation. Pullan testified that in May 2022, the condominium board removed the existing door stop and installed an automatic closing mechanism on the door.³ Pullan testified that this automatic closer was installed as a test for the Building but that it was very expensive. He also listed other items present in the mail room, such as a small lending library, newspapers, and games and added that these items are displayed rather than stored there. To support his testimony that the door is not a required fire separation, Pullan testified that he contacted the City of Brockville Chief Building Official (CBO), who indicated there is nothing in the Building Code that specifically addressed mail rooms.

10Regarding the commercial spaces in the Building, Leonard testified that some businesses will on occasion keep a door temporarily open by using items such as a decorative brick when they are waiting for customers and to show that the business is open.

11Leonard testified that a door stop was already installed on the door to his residential unit when he moved in. He also stated that many residents make regular use of the door stop on their unit door, especially those with accessibility challenges who require mobility devices and who may also be using carts for groceries or other items.

12The appellants submitted that the installation of door stops and the use of other items to hold open commercial doors is not a violation of the Article 2.2.3.3 of the OFC because the door stops and other items are only used when the door is “in use” and that the respondent misinterpreted this section of the OFC.

Respondent’s Evidence

13Matthew Tyo (“Tyo”) is a fire inspector with the respondent. He conducted the inspections and issued the Inspection Orders. Tyo testified that most residential unit entrance doors in the Building had door stops. He described the residential doors as solid wood, fire-rated doors that act as fire separations. Tyo also testified that several unit doors in the commercial spaces were propped open by decorative items, such as a brick, placed in the doorway. These doors are also fire separations.

14Tyo cited Article 2.2.3.3. of the OFC as the authority prohibiting the installation of door stops, which he considered to be alterations to the doors. He stated that the door stops impede the intended operation of the fire-rated doors, which are to be self-closing. He referenced the National Fire Protection Association (NFPA) 80 (2016) s. 5.1.2.3, which states that blocking or wedging of doors in the open position shall be prohibited. He also cited the International Fire Service Training Association (IFSTA), a commonly accepted training resource for fire safety professionals, which states that fire inspectors are to require the removal of door stops.

15The respondent submitted that all the door stops found throughout the Building are a violation of Article 2.2.3.3 of the OFC as they are an obstruction to the intended operation of the door. In addition, the door stops constitute an alteration to the door. Both are prohibited, and therefore the Inspection Order should be confirmed.

ANALYSIS

Applicable Law and Regulation

16Section 21(1) of the FPPA gives an inspector who has carried out an inspection of a premises under ss. 19 or 20 of the FPPA broad powers to order the owner or occupant to take any measure necessary to ensure fire safety at the premises.

17Pursuant to s. 21(1)(g) of the FPPA, the inspector may issue an inspection order that requires the recipient to remedy a contravention of the OFC.

18Article 2.2.3.3 (1) of the OFC states: “A door in a fire separation shall be kept closed when not in use.”

19Article 2.2.3.3. (2) of the OFC states: “Closures in fire separations shall not be obstructed, blocked, wedged open, or altered in any way that would prevent the intended operation of the closure.”

20The appellants have the burden of proving that it is more likely than not that the door stops and items used to prop open the fire separation doors were not a violation of the OFC and that the inspection order should be rescinded. At the hearing, the panel asked the respondent to present his evidence first. This does not reverse the burden of proof.

Analysis

21The panel finds that the door stops on fire separation doors, or the use of other items used to prevent closures from operating as intended, constitute a wedge and an alteration to the fire separation doors and prevent their intended operation. They are, therefore, not permitted under Article 2.2.3.3 of the OFC.

22The panel was not persuaded that the door stops installed on residential doors were approved by the Building Department as complying with the Building Code at the time of construction. No evidence was submitted showing any such approval. Although the residents may have had door stops from the day they moved in, this does not prove that the door stops are permitted. Certainly not all unit entrance doors had them installed, as this appeal began in response to a door stop installation request.

23The doors to the residential units are required fire separations meaning that they are intended to be closed when not in use, have a required fire-resistance, and will act to prevent a fire spreading should a fire occur in a unit. Door stops installed on fire separations could interfere with the intended operation of the door. Propping the doors open could lead to a fire spreading rapidly throughout the Building.

24Pullan argued that the OFC does not state that a door stop cannot be installed. He also suggested that the respondent misinterpreted Article 2.2.3.4 (1) of the OFC. Pullan argued that Article 2.2.3.4 (1) of the OFC implies that when a door in a fire separation is in use, it cannot be closed, and therefore the OFC does not prohibit the wedging of doors when they are “in use.”

25The panel did not accept this interpretation of Article 2.2.3.4 (1) of the OFC. Instead, the panel found the respondent’s evidence and interpretation more persuasive, that the doorstops and other material used to wedge doors open, are prohibited by the OFC as they wedge open fire separations and are impermissible alterations to the doors. The respondent’s interpretation also supports the conclusion that other materials used to keep doors open are wedging open fire separations and are therefore prohibited by the OFC.

26The respondent supported his submissions with NFPA 80 and IFSTA. Both authorities are established and recognized guides for fire professionals for safety planning and program development and are relied upon by fire departments when conducting inspections. These documents show that door stops create a potential fire hazard and are barred from use on fire separations.

27Finally, on a plain language reading of the OFC, the panel finds that Article 2.2.3.3 of the OFC specifically prohibits wedging open fire separations and alterations of fire separations, which is the intent and use of the door stops. There is no exception for when the door is being used. Article 2.2.3.4 (1) of the OFC states only that the doors in fire separations shall be kept closed when not in use. This does not permit the doors to be wedged open when they are in use. Further, the alteration of the fire separations by installing the door stops is not dependant on whether the door is open or closed. The door has been impermissibly altered.

28The panel considered the appellants’ evidence regarding the effect that the removal of door stops will have on the elderly population living in the building, and on individuals with disabilities. The panel sympathizes with the appellants but wishes to stress that the OFC requirements are intended to provide minimum safety standards to protect occupants in the event of a fire. In the absence of any authority establishing that the panel can waive compliance with the OFC because of accessibility-related reasons, the panel could not depart from enforcing the minimum safety standards set out in the OFC. These minimum standards cannot be reduced for convenience, or ease of use.

29Alternatives to door stops were referenced by both the respondent and appellants. Subsection 1.2.2., Division A of the OFC provides two options for potential compliance with inspection orders. The first is to comply with the prescriptive requirement in this case Article 2.2.3.4 (3) of the OFC. The second is to use an Alternative Solution that meets the same objectives and functional statements. The process for applying for an Alternative Solution is set out in Section 1.3.2.1 of Division C.

30The door to the mail room was raised by both the appellants and the respondent. The panel did not have sufficient evidence to find that the mail room door is a fire separation. The evidence did not establish that a fire separation was needed at that location. As such, there is insufficient evidence to show that s. 2.2.3.3 of the OFC applies to this door. There was evidence that the mail room contains combustible material and opens into the main corridor, which serves as the means of egress for the lobby. The panel strongly encourages the appellants through the condominium Board to maintain the current automatic closing mechanism on the door as it clearly provides an OFC compliant fire safety measure in the Building. Had the panel considered it necessary, it could have ordered the removal of any door stop under s. 26(6) of the FPPA as a measure necessary for fire safety in the Building. However, in this instance, the panel declines to make an order regarding the mail room door given the lack of evidence that it is a fire separation and because the automatic door closing mechanism is already installed.

31The evidence before us was that the condominium board of the residential part of the Building has proactively removed the door stops from the residential unit doors. As such, compliance has already been achieved. The panel upholds the order.

ISSUE 2 – ARE THE COMBUSTIBLE MATERIALS IN THE LOBBY AND ALCOVES IN VIOLATION OF THE OFC?

Appellant’s Evidence and Submissions

32Pullan testified that there is furniture in the lobby and hallways. This is the combustible material referred to in the Inspection Order. Pullan testified that the furniture has a label indicating that it was manufactured in accordance the Upholstered Furniture Action Council (UFAC) standards. He cited NFPA 260 as the recognized standard method of tests and classification system for cigarette ignition resistance of components of upholstered furniture.

33Pullan testified that, through its own initiative, the condominium management company had the furniture in the residential lobby of the Building treated with a fire-retardant as a precautionary measure following the issuing of the Inspection Orders. However, the appellants were concerned that a fire-retardant treatment to the furniture will be an ongoing issue and an expense to the condominium because fire-retardant treatment wears off over time and they therefore requested a decision of this Commission.

Respondent’s Evidence

34Tyo testified that there is combustible material in the Building lobby and common areas of each floor. The style and construction of the furniture is a combination of solid wood and upholstery/fabric.

35Tyo agreed that the pieces of furniture had been treated with a fire-retardant and were returned to their original places in the Building. Tyo added that the residential lobby area of the Building is not sprinklered.

36The respondent submitted that the furniture is of combustible material and stored in the means of egress, which is prohibited under s. 2.4.1.1 (2) of the OFC.

ANALYSIS

Applicable Law and Regulation

37Article 2.4.1.1 (2) of the OFC states that:

Combustible materials shall not be accumulated in any part of an elevator shaft, ventilation shaft, means of egress, service room or service space, unless the location, room or space is designed for those materials.

38Article 1.4.1.2 of the OFC defines “means of egress” as:

a continuous path of travel provided for the escape of persons from any point in a building or contained open space to a separate building, an open public thoroughfare or an exterior open space protected from fire exposure from the building and having access to an open public thoroughfare. Means of egress includes both exits and access to exits.

Analysis

39The panel finds that the furniture is in a space designed for such furniture and as such, there is no violation of the OFC.

40The panel relied on the photographs submitted by the appellants showing that the lobby and common areas of the residential floors were designed for the furniture. Pullan’s testimony was uncontested that the furniture had been placed where originally intended. It was clear from the photographs that the lobby furniture was placed in a designated seating area to one side of the large lobby and not in the exit path. Photographs of the residential floors showed a recessed section of the wall designed for furniture. Again, furniture did not encroach on the corridor. The furniture, even if combustible, is in the originally intended space and does not violate Article 2.4.1.1 (2) of the OFC which prohibits the accumulation if the location, room or space is not designed for those materials.

41Both the appellants and the respondent referenced past Commission decisions. In Spirit of the North v. Burk’s Falls and District Fire Department,⁴ the Commission found that accumulation of combustible material required a build-up of material and allowed a single statue and a decorative chair to remain in the lobby of a building. The other referenced cases did not deal with the same issue as in this case. In Howard v. London Fire Services (Howard v London Fire Services⁵ and in Markham-Stouffville Hospital v. Markham Fire and Emergency Services⁶, both cases dealt with objects impeding the means of egress. In Muskoka Standard Condominium Corporation v the Town of Gravenhurst,⁷ the case was concerned with residential suites having only one means of egress.

42It should be noted that decisions of the Commission are not binding on this panel. The only relevant decision brought to our attention was Spirit of the North which discussed the meaning of “accumulate.” We do not need to consider that issue here, as we have found that the furniture was in the space designed for it.

43The panel rescinds the section of the Inspection Order requiring the removal of the existing furniture in the common areas and lobby of the residential portion of the Building.

ORDER

44The appeals of item 1 in Inspection Orders INSP22-020 and item 1 of INSP22-022 requiring the removal of all door stops and other material used to wedge open fire separations are denied. The items are confirmed. The compliance deadlines are confirmed, as they have already been complied with.

45The appeal of item 2 in INSP22-020, requiring the removal of the combustible material from the lobby and corridors of the residential floors, is granted and the item is rescinded.

Released: November 23, 2022

_____________________________ Marisa Victor, Vice-Chair Fire Safety Commission

_____________________________ Anxhela (Angela) Peco, Member Fire Safety Commission

____________________________ Peter Simmons, Member Fire Safety Commission

Footnotes

1. 1O Reg 213/07, made under the FPPA.
2. 2Door stops, in this case, are ‘drop down/flip down’ hardware stops installed at the base of a door that when activated prevent the door from closing.
3. 3The automatic closing mechanism holds the door open briefly before closing and is an approved mechanism under the OFC Article 2.2.3.4 (3) (a).
4. 42018 CanLII 83058 (“Spirit of the North”)
5. 52021 ONFSC 3
6. 62017 CanLII 24342
7. 79035-FSC-207