Tribunals ontario Fire Safety Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission de la sécurité-incendie
Appeal under subsection 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Angelo Nasso Appellants
And
Brampton Fire and Emergency Services Respondent
DECISION AND ORDER
PANEL: Avril Farlam, Vice-Chair Anxhela (Angela) Peco, Member Paul Stopciati, Member
APPEARANCES: For the Appellant: Self-represented For the Respondent: Yousef Elsohemy, Counsel
Heard by Videoconference: October 19, 2022
OVERVIEW
This appeal was brought by Angelo Nasso (“appellant”) from a Review Decision of the Fire Marshal dated May 6, 2022 (“Review Decision”).
The appellant is the owner of a two-storey, single-family house at 36 Caliper Road in Brampton (“Building”). The Building operates as a two-unit dwelling. The first unit consists of the main floor and the second floor. The second unit is located in the basement of the Building. The units are occupied by different tenants. Each tenant has exclusive use of their respective areas, save for a common area, hallway, and laundry in the basement.
Inspector John Sefton of the Brampton Fire and Emergency Services (“respondent”) inspected the Building on November 12, 2021, and issued an Inspection Order on November 16, 2021, under s. 21(1)(f) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 (the “FPPA”).
The Inspection Order indicated that the Building had been altered from its approved use as a single dwelling unit and lacked fire safety features. The reasons for the Inspection Order were as follows:
a) The Building lacked a fire separation between dwelling units.
b) The Building lacked closures between dwelling units.
c) The Building lacked a safe means of egress from the lower (basement) dwelling unit.
d) The Building lacked detection in the dwelling units.
- The Inspection Order required the appellant to:
a) return the Building to its approved use as a single dwelling unit;
b) obtain all required permits from the City of Brampton.
The appellant requested a Fire Marshal review of the Inspection Order. He requested a three-month extension to convert and register the Building as a two-unit dwelling through a building permit, rather than return the Building to its original use.
On May 6, 2022, the Fire Marshal confirmed the Inspection Order but extended the compliance date by six months, from February 17, 2022, to August 6, 2022. The Fire Marshal accepted that converting the Building under a building permit and registering it with the City of Brampton would achieve compliance with the Inspection Order.
In his Notice of Appeal, the appellant requested that the Fire Safety Commission (the “Commission”) extend the date for compliance with the Inspection Order once again, on the grounds of needing more time to obtain a building permit and complete the necessary modifications to convert and register the Building as a two-unit dwelling.
At the time of the hearing, the appellant indicated that he had already obtained a building permit and requested the extension on the basis of needing more time to complete the construction.
The respondent opposed the appeal and submitted that the extension of time request should be denied.
ISSUE
- The issue to be determined on this appeal is whether the Commission should extend the compliance date.
DECISION
- For the reasons below, the Commission amends the Review Decision and extends the compliance date to December 28, 2022.
THE LAW
Subsection 26(1) of the FPPA permits any person who considers themselves to be aggrieved by an order made by the Fire Marshal under section 25 to appeal the order to the Commission.
Under subsection 26(6), the Commission may confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate.
The appellant has the burden of proof in this appeal.
APPELLANT’S EVIDENCE AND SUBMISSIONS
Appellant’s Testimony
The appellant acknowledged that the Building lacked several fire safety features and was currently not in compliance with the Inspection Order.
The appellant testified that he was in the process of converting the Building to a two-unit dwelling to bring it into compliance. He stated that due to pandemic-related delays, the City of Brampton experienced a high volume of building permit applications that resulted in a large backlog and long processing times.
The appellant received the building permit on June 29, 2022. He testified that since receiving the permit, he had made progress on the work required but ran into additional delays sourcing an egress window. He stated that this was a special-order item that required 12 weeks to be delivered.
With reference to the four fire safety features listed in the Inspection Order, the appellant testified that he had made progress on three of the four items. His evidence was that he:
a) added a means of egress from the basement by installing a window;
b) installed hardwired detection devices; and
c) purchased fire separation doors.
According to the appellant, the outstanding items were the installation of the fire separation doors and building a wall to separate the laundry room from the residential areas.
The appellant estimated that the remaining work would require until October 23, 2022 to be completed.
Appellant’s Submission
In support of his request for an extension, the appellant reiterated the delay in obtaining a building permit. He stated that his initial request for an extension to the Fire Marshal was based on the City of Brampton’s estimated processing time for two-unit dwelling permit applications, which in reality was longer than 10 weeks.
The appellant also submitted that complying with the Inspection Order by returning the Building to its original use would cause financial hardship for him and the basement unit tenant because he would have to evict that tenant. He therefore wished to complete the modifications necessary to convert and register the Building as a two-unit dwelling.
RESPONDENT’S EVIDENCE AND SUBMISSIONS
Evidence Regarding the Inspection
Inspector Sefton testified for the respondent. He described his findings during the inspection and explained why the measures listed in the Inspection Order were necessary to ensure fire safety. He testified that the lack of any one of the missing fire safety features would amount to non-compliance with the Inspection Order.
Inspector Sefton testified that he chose the original compliance date because it was 90 days from the date of the inspection, and he considered that to be sufficient time to return the Building to a single dwelling unit.
Inspector Sefton testified that during the inspection, he and the appellant also discussed registration of the second unit, which would address the fire safety concerns.
Respondent’s Submissions
The respondent opposed the request for an extension and argued that the appellant had already been granted an extension by the Fire Marshal in excess of what the appellant had requested. Based on his own estimates, the appellant should have already completed the work.
While the respondent acknowledged that some institutional delays had impacted the appellant’s ability to complete the work, the building permit was issued on June 29, 2022, and the appellant had one month and one week from the issuance of that permit to complete the work. Counsel added that because the Inspection Order is stayed pending an appeal to the Commission, the appellant has now had three months and 21 days to comply.
Notwithstanding these timelines, the respondent’s position was that the appellant was never asked to convert the Building into a two-unit dwelling but was asked instead to return the Building to a single dwelling unit. In the respondent’s view, it was not sufficient for the appellant to argue that he needed more time to comply with the alternative method because the primary method of compliance could be achieved at a moment’s notice.
The respondent urged the Commission to prioritize the safety of the tenants over the appellant’s desire not to disturb the tenancy.
ANALYSIS
The Commission accepts the appellant’s evidence that he has made good faith efforts to bring the Building into compliance and grants a short extension to enable the appellant to complete the remaining work.
The Commission had documentary evidence that the appellant applied for a building permit on January 5, 2022. The permit application was not accepted until May 19, 2022. The permit was not issued until June 29, 2022.
It is reasonable, and in fact legally required, for the appellant to wait to begin construction until the permit was issued. From June 29, 2022, the appellant effectively had five weeks to comply with the Fire Marshall’s August 6, 2022, deadline. This is a shorter timeframe than the three months the appellant had requested in his Fire Marshal review application.
We considered the respondent’s submission that from the issuance of the building permit until the date of this hearing, the appellant has had more than three months to comply with the Inspection Order and has still not complied. In granting the extension, however, we were persuaded by two things:
a) First, we heard unchallenged evidence that since the permit was issued, the appellant had addressed two of the four items set out in the Inspection Order (the detection devices and the egress window). We accepted his evidence of a delay in sourcing a special-order egress window, which was installed on October 7, 2022. We also accepted the appellant’s evidence that he purchased fire separation doors and intended to install those doors that same week. There was no evidence to dispute the installation of these fire safety features as there had not been an inspection of the Building since the original inspection of November 12, 2021.
b) Second, we considered the appellant’s evidence that he anticipated completing the work by October 23, 2022. The Commission is willing to give another extension for a short period of time to minimize risk to the tenants.
The Commission also considered that the Building will have to be inspected before it is registered with the City of Brampton. We are therefore adding extra time for inspections and registration of the Building, which we expect to be completed by December 28, 2022.
Finally, the Commission considered the respondent’s argument that construction was not necessary for the appellant to comply with the Inspection Order and that the Building could come into immediate compliance if he abandoned his plan to convert the Building and instead returned it to its original use as single-unit dwelling.
The Commission did not find this argument persuasive.
First, the respondent’s position was that the Inspection Order only provided for one means of compliance, which was to return the Building to its original use. We disagree. For the reasons below, we find that the Inspection Order allowed for more than one interpretation, including that the Building be converted to a two-unit dwelling.
a) Inspector Sefton’s evidence supported an interpretation of the Inspection Order that was consistent with the appellant’s understanding of it. Inspector Sefton testified that the Inspection Order could be read in two ways: i) that the appellant return the Building to its original use, which may require a building permit; or ii) that the applicant obtain a building permit to convert the Building into a two-unit dwelling and register it with the City of Brampton.
b) Inspector Sefton also testified that he and the appellant had discussed registering the Building as a two-unit dwelling during the inspection. It was therefore plausible that the appellant would interpret the Inspection Order to include this option and made efforts since January 2022 to pursue conversion as his chosen means of compliance.
c) The Fire Marshal, in its Review Decision, also confirmed conversion as an acceptable means of achieving compliance.
Second, the respondent’s own reading of the Inspection Order did not support the position that returning the Building to its original use could be done immediately. Even if we assume that the Inspection Order only set out a single means of compliance, the Inspection Order contemplates the appellant obtaining building permits to return the Building to its original use. At the hearing, Inspector Sefton testified that returning the Building to its original use may require permits. Obtaining building permits takes time. Based on the evidence before us, it was unlikely that returning the Building to its original use could be done immediately.
As a result, the evidence was not persuasive that returning the Building to its original use would take any less time than it would take the appellant to complete the modifications and convert the building to a two-unit dwelling.
DECISION AND ORDER
- The Commission amends the Review Decision and extends the compliance date to December 28, 2022, to enable the Appellant to complete inspections and register the Building as a two-unit dwelling.
Released: December 7, 2022
Avril Farlam, Vice-Chair ______________________
Anxhela (Angela) Peco, Member ______________________
Paul Stopciati, Member ______________________