Tribunals Ontario Fire Safety Commission 15 Grosvenor Street, Ground Floor Toronto, ON M7A 2G6 Tel: 1-888-777-3616 Website: www.tribunalsontario.ca
Tribunaux décisionnels Ontario Commission de la sécurité-incendie 15, rue Grosvenor, rez-de-chaussée Toronto (Ontario) M7A 2G6 Tel: 1-888-777-3616 Site Web : www.tribunalsontario.ca
Citation: Hasselsjo v. Hamilton Fire Department 2022 ONFSC 16
Date: 2022-12-16
Appeal under subsection 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, on direct referral by the Fire Marshal to the Fire Safety Commission
Between:
Songja Hasselsjo
And
Hamilton Fire Department
Appellant
Respondent
DECISION AND ORDER
Panel:
Avril A. Farlam, Vice-Chair
Peter Simmons, Member
Ashley Deathe, Member
Appearances:
For the Appellant:
Sonja Hasslsjo, Self-Represented
For the Respondent:
Stephen Chisholm, Counsel
Heard by teleconference: September 29, 2022
OVERVIEW
The appeal is about whether the quantity and location of items within an apartment constitute a fire safety risk.
The appellant Songja Hasselsjo resides in Apartment 911 located in a high-rise building located at 123 Charlton Avenue East in the City of Hamilton. This building was built in 1974 and is a 22-storey non-combustible residential high-rise building with 240 residential units.
Following an inspection on April 19, 2022, Inspector Eric Schafranek (“Schafranek”) with the respondent Hamilton Fire Department concluded that there was excessive combustible material within Apartment 911 posing a risk to fire safety.
On April 26, 2022, the respondent issued the following Inspection Order (“Inspection Order”) to the appellant:
“Measures necessary to ensure fire safety at this property are ordered under section 21(1)(f) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 (“FPPA”).
- The Inspection Order required the appellant to do three things to ensure fire safety by June 6, 2022:
i. Create a pathway of at least 36 inches (914 mm) from every room to the apartment entry door for Apartment 911.
ii. Remove the combustible materials to provide and maintain a minimum clearance of 36 inches (914mm) from the stove, electric baseboard heaters, electrical wall outlets (plugs) and any other sources of heat.
iii. Reduce the quantity of stored combustible material that has accumulated inside Apartment 911 to a height not more than 36 inches (914mm). Storage piles shall be arranged in an orderly fashion and be stabilized so that they will not fall into and imped the required means of egress.
The appellant applied to the Fire Marshal for review of the Order, on May 27, 2022. The Fire Marshal did not issue a review decision but referred the matter directly to the Fire Safety Commission (“Commission”), as permitted under s. 25(4) of the FPPA.
At the appellant’s request, the Commission ordered that the hearing proceed by telephone conference and that the appellant be permitted to record the hearing.
ISSUE
- The issue in this appeal is whether the actions set out in the Order are necessary to ensure fire safety.
RESULT
- The Commission confirms the Inspection Order, finding that the actions ordered by the respondent are necessary to ensure fire safety in the appellant’s building but amends the compliance date to within thirty (30) days from the release this Decision. The Commission finds that the Inspection Order was issued for the purposes of fire safety.
ANALYSIS
Are the actions set out by the Inspection Order necessary to ensure fire safety at this property?
Parties’ Positions
- The appellant argued the actions mandated by the Inspection Order are not necessary because:
i. Materials in her apartment do not present a risk of fire;
ii. Most of the materials depicted in the photographs taken on April 19, 2022, were temporarily stored in her apartment; and,
iii. People do not have difficulty moving through or exiting her apartment
- The respondent’s position is that the type and amount of the materials as well as their location present a risk to fire safety, and that the actions outlined in the Order are necessary for the purposes of fire safety.
Law
Fire safety, pursuant to s. 18 of the FPPA, includes “safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it.”
The Inspection Order was issued pursuant to section 21(1)(f) of the FPPA, which allows for an order “to do anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan.”
The Inspector’s powers are broad when issuing an order pursuant to paragraph 21(1)(f) of the FPPA. The order must describe the fire safety issue linking it to section 18 of FPPA.
Evidence of risk to fire safety
The appellant testified that she does not smoke or light candles and that she has no history of fires.
The appellant suffered a stroke in 2003, resulting in partial right-sided paralysis. She insisted that she needs personal and household items to be close to her and that many of the items that the fire officials observed belong to a relative and are only temporarily stored in her home. While she can exit from her unit into the hallway, she acknowledged that she would require assistance to exit the building in the event of a fire because she cannot descend stairs.
She testified that others who have visited her apartment after the inspection, a home care worker and a plumber, have not complained to her about being able to move around the apartment.
During the April 19, 2022 inspection, Schafranek estimated that it took 3-4 minutes for the occupant (Mr. Hasselsjo) to clear items away from the door so that it could be opened to allow the fire officials inside.
Steven McArthur (McArthur) was acting Assistant Chief Fire Prevention Officer at the time and accompanied Schafranek throughout this inspection. McArthur had a total of 27 years of fire service, including 6 years as a firefighter. Since 2016, McArthur had been employed as a Fire Safety Officer and was supervising Schafranek during this inspection. McArthur was responsible for the fire inspection training at this time.
Once inside, Schafranek observed the apartment’s interior hallway width to be narrower than either of the two electric scooters parked inside the apartment. He believes that a standard stretcher is approximately the same width of one of the electric scooters he observed in the apartment. He expressed concern that a standard stretcher used during emergencies would be unable to navigate the apartment hallway. He also recalled that during the inspection he was unable to walk down the hallway without turning to his side and was prevented from entering the living room and dining room areas due to the material accumulated in the apartment. As he was not qualified to give opinion evidence on stretcher manoeuverability, we have not relied on his opinion that a stretcher would be unable to be navigated in the event of an emergency.
Schafranek took photographs of the interior spaces: the living room and dining room areas, the kitchen and the hallway leading to the sleeping area. He also tested the smoke alarm system and verified that it was working.
On cross-examination, the appellant agreed that the photographs taken accurately represented her apartment on April 19, 2022.
Both respondent witnesses Schafranek and McArthur, had prior experience with fire prevention and gave opinions as to the whether the type and quantity of material which had accumulated in the apartment was combustible. Schafranek had experience working as a part-time firefighter and had been employed with the City of Hamilton as a Fire Inspector for just over one year. McArthur had significantly more years of experience in fire prevention. Both testified that the quantity and type of material (cardboard, plastic, paper, fabric, particle board) that they had observed in this apartment would be considered “combustible material.” In particular, McArthur observed the location of the material, along hallways and within the rooms, risked impeding egress during a fire, and the amount of material accumulated would be a significant source of fuel for a fire so as to endanger the occupant, her neighbours, and any emergency personnel. McArthur testified: “I would not want to be a firefighter going in here, it would be horrendous and very dangerous.”
Schafranek returned on June 8, 2022, to determine if the appellant had complied or made progress with the compliance of the Order. During that second visit, he observed the interior spaces and again took photographs of the kitchen, the living and dining room areas. He testified that he saw no evidence that the appellant had complied or made progress with the compliance of the Inspection Order.
The appellant agreed on cross-examination that the June 8, 2022, photographs accurately showed what her home looked like on that day.
Analysis
The Commission acknowledges the appellant’s assertions that visitors have not complained about the ability to move around in the apartment. But that evidence does not resolve the risk to fire safety issue identified by the Inspection Order. The actions ordered are to ensure occupants (including emergency responders) can exit the building safely in the event of a fire and to reduce the presence of fire hazards.
We find that these photographs taken on April 19, 2022, show a significant amount of cardboard, plastic, paper, and fabric which are combustible materials that will burn in the event of a fire. They were located on the stove, an ignition source, and encroached on pathways to the apartment door and impeded movement throughout the apartment.
We find that the photographs taken on June 8, 2022, during the reinspection, do not show an appreciable difference in the quantity, type, or location of combustible material obstructing pathways and in proximity to ignition sources in the apartment on April 19, 2022.
Although the appellant testified that she has been making efforts to have some material removed from the apartment, there is no corroborating evidence before the panel that the appellant has complied with the Inspection Order.
Conclusion
On the evidence before us, we find that there is combustible material blocking pathways and accumulating around ignition sources. In the event of a fire, the quantity and type of material would seriously endanger the health and safety of an occupant, neighbours, and first responders, and the location of the materials presented a risk to impeding egress out of the apartment. The Inspection Order addressed risk of fire and linked this risk to the requirements to mitigate that risk.
We also find that the appellant has not complied with the Inspection Order.
Issues raised that are outside the Commission’s jurisdiction
There was significant time spent at the hearing on the reasons for the inspection, and whether the respondent had authority to enter Apartment 911 and take photographs of the interior of the unit.
The appellant made allegations that the respondent violated her human rights, subjected her to defamation, and personally harassed her.
The reasons for the inspection and allegations concerning the conduct of the respondent are outside the jurisdiction of the Commission.
ORDER
The Commissions confirms the Inspection Order issued on April 19, 2022, but amends the compliance date.
The compliance date is amended as follows: Items 1, 2, and 3 shall be completed within thirty (30) days of the release this Decision.
Released: December 16, 2022
Avril A. Farlam, Vice Chair
Ashley Deathe, Member
Peter Simmons, Member