Citation: Usdenski, et al. vs. Kitchener Fire Department, 2022 ONFSC 14
In an appeal under subsection 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Efrem Usdenski and Alla Usdenski
Appellants
and
Kitchener Fire Department
Respondent
DECISION AND ORDER
Panel: Marisa Victor, Vice Chair Peter Simmons, Member Rocco Iamello, Member
Appearances:
For the Appellants: Efrem Usdenski and Alla Usdenski, Self-represented (2 days), Lindsey Branje, Paralegal (1 day)
For the Respondent: Erin Mogck, Counsel
Heard by Video Conference: September 22 and 23, 2022 October 6, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW:
1Efrem Usdenski and Alla Usdenski (“appellants”) are the owners of 34 Orchard Mill Crescent in Kitchener (“Building”). The Building is a multi-level plus basement residential dwelling unit. There are currently nine bedrooms within the Building occupied by students.
2On October 8, 2021, the Kitchener Fire Department (“respondent”) served an order (“Inspection Order”) on the appellants. The Inspection Order was issued under s. 21(1)(g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”).
3Inspection orders issued under this section of the FPPA indicate a violation of the Ontario Fire Code (“OFC”). In this case, Sentence 2.1.2.2 of the OFC was referenced. That section states: “Activities that create a hazard and that are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard.”
4The Inspection Order directed the owners to return the Building to its original design by removing four bedrooms. The Inspection Order provided alternatives to compliance which included an option for the owners to obtain a City of Kitchener licence to operate a rooming house or obtain a City of Kitchener building permit to convert the Building to a duplex.
5The appellants appealed the Inspection Order to the Office of the Fire Marshal and Emergency Management (“OFMEM”) on the grounds that the property operates as a single dwelling unit. The Fire Marshal referred the appeal directly to the Fire Safety Commission (“Commission”) pursuant to s. 25(4)(a) of the FPPA.
ISSUES:
6The issue in this appeal is whether the Inspection Order properly identifies a fire hazard in the Building that is a violation of the OFC under section 2.1.2.2 requiring the owner to remedy the hazard identified.
RESULT:
7The Commission finds the Inspection Order does not identify current OFC violations or current hazards in the Building that breach the OFC section 2.1.2.2 and therefore the Inspection order is rescinded.
INSPECTION ORDER:
8The Inspection Order reads in its entirety as follows:
Activities that create a hazard and that are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard. Fire Code O. Reg 213/07 Div. B Article 2.1.2.2.
Reasons:
The house was originally designed as a single-family dwelling unit and in 2015 the owner obtained a permit on the basis that the house was being used as a single-family dwelling unit to create 2 additional bedrooms. The property upon inspection was observed to be a large occupant load lodging house with an additional 4 bedroom created without Building permits.
This increased occupant load of individuals that do not previously know each other, creates additional hazards and risk of fire. No “approved” provisions have been made with this property. Upon inspection, maintenance of smoke alarms was not taking place as the upper floors smoke alarm was not operable. Insufficient carbon monoxide alarms was an additional issue based on 4 levels of the home containing sleeping rooms.
Action Required:
The additional hazards due to increased occupant load of individuals not related to one another can be corrected with one of the following options:
Return the property to the original state and remove the 4 bedrooms that have been created without the provision of a building permit.
Obtain a city license for the creation of a lodging house and then proceed to obtain a Building permit to construct the single-family dwelling unit into a permitted lodging house.
Obtain a Building permit to duplex the single-family dwelling unit which would create 2 dwelling units in which each could contain 4 persons or 1 family.
EVIDENCE:
Respondent’s Evidence
9Ryan Konrad (“Konrad”), Fire Prevention Officer, with the Kitchener Fire Department, testified as a witness for the respondent. He stated that the respondent received a complaint from the City of Kitchener Bylaw Enforcement Division that the Building was being operated as a lodging house on September 21, 2021. On October 8, 2021, Konrad inspected the Building.
10Konrad testified that during his inspection he found that each of the 9 bedrooms contained locks on the doors, that bedroom doors were hollow core wood construction and that the bedroom doors did not have a self-closing device installed. He also noted that there was no emergency lighting system, no exit signage, exits from the basement to garage and side door were not fire separated.
11Konrad testified that during his inspection he found a smoke alarm on the top floor missing a battery. He also stated that there were missing carbon monoxide alarms that are required in a rooming house, including the top floor, the main floor and the basement. He testified that these were contraventions of the OFC. These were identified on the Inspection Order. Konrad testified that the issues with the smoke and carbon monoxide alarms had already been corrected by the appellants.
12Konrad testified that the original construction of the Building was as a three bedroom home based on City of Kitchener building services files. He testified that he presumed that the original construction was approved by the City’s Building Department in accordance with the Ontario Building Code (“OBC”). Konrad also testified that during his inspection he noted nine bedrooms and nine occupants living at the premises. He also gave evidence that two bedrooms in the basement were constructed and added under a building permit issued by the City of Kitchener in 2015.
13Konrad testified that he was directed by his supervisor, Thomas Ruggle, to issue the Inspection Order under article 2.1.2.2 of the OFC to address the way in which the Building operates.
14Thomas Ruggle, (“Ruggle”), Chief Fire Prevention Officer, an assistant to the Fire Marshal and the Chief Fire Official for the City of Kitchener, also testified for the respondent.
15Ruggle confirmed, when asked by the Commission, that he directed Konrad to issue the Inspection Order under article 2.1.2.2 of the OFC.
16Ruggle testified that the Building was assessed according to the rooming/boarding/lodging checklist as submitted. The rooming/boarding/lodging checklist was developed and approved by Ruggle for use by his staff to use during inspections of suspected student rooming houses. However, he did not believe they should apply Section 9.3 of OFC in the Inspection Order.
17Ruggle testified that he had suggested inspectors use article 2.1.2.2 of OFC, instead of s. 9.3, to capture probabilities and trends of hazards for rooming/lodging operations in the area. He stated that using this article was “a better approach rather than treating this property historically as a rooming house”.
18Ruggle testified that the use of this article was to ensure that other legislation such a City of Kitchener bylaws, the Planning Act, the Municipal Act and Ontario Building Code (“OBC”) provisions were not in conflict with the Inspection Order, and to consider “rental housing bylaw and the growth of lodging homes in the area”.
19When asked by the Commission regarding the definition of a “hazard,” Ruggle replied that there are increased probabilities of fire hazards in rooming, boarding and lodging homes, as compared to single unit dwellings.
20The respondent also called several other witnesses:
- Rick Potvin (“Potvin”), a By-law Officer for the City of Kitchener, who testified that he conducted a by-law enforcement inspection and found no by-law violations.
- Natalie Goss (“Goss”), Manager of Policy and Research in the Planning Division for the City of Kitchener, testified that the city zoning bylaw does not permit rooming/boarding/lodging houses in the area where the Building is located.
- Tim Benedict (“Benedict”), Manager of the City of Kitchener’s Residential Building Division, testified that the building permit for the Building indicates that it was originally constructed as a single detached dwelling, however in 2015 two additional bedrooms were added under separate building permit.
Appellants Evidence
21The appellant, Efrem Usdenski (“Usdenski”), testified and stated that the house is currently rented to seven students who have been attending a post secondary institution.
22Usdenski testified that he purchased the home in 2015 from the original owner. He then applied for and received a building permit from the City of Kitchener in 2015 to add two additional bedrooms.
23Usdenski testified that other existing rooms in the Building were also used as bedrooms. He testified that the Building currently has nine bedrooms and has always been rented to students since it was purchased.
24The appellants submitted that the students are a single swelling unit because they share the kitchen, dining room, lobby, backyard, and all other amenities equally and live like a family or housekeeping unit.
RELEVANT LAW:
25The following sections of the FPPA are relevant to this case:
- An order made under subsection 21 (1) or (2) shall set out,
(a) the reasons for the order;
(b) an explanation of the action required by the order;
(c) the time within which the owner or occupant must comply with the order; and
(d) the right to request a review of the order by the Fire Marshal under section 25 or, in the case of an order made by the Fire Marshal, the right of appeal to the Fire Safety Commission under section 26.
26Relevant sections of the OFC state as follows:
2.1.2.2. Activities that create a hazard and that are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard.
Subsection 9.3.1. Application and General
Application
9.3.1.1. (1) This Section applies to boarding houses, lodging houses, rooming houses and private rest homes in which residents do not require care or treatment because of age, mental or physical limitations, where
(a) the building height does not exceed 3 storeys and the building area does not exceed 600 m2,
(b) lodging is provided for more than four persons in return for remuneration or the provision of services or both, and
(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.
ANALYSIS:
27The respondent issued the Inspection Order under appeal and is required to show that it was issued in accordance with the FPPA and that there is evidence to support that there is a violation of the OFC as stated in the Inspection Order.
28The Commission finds that the Inspection Order does not provide reasons that would comply with s. 23(a) of the FPPA, therefore it is not a valid Inspection Order. The FPPA requires that that an Inspection Order set out the reasons for the order. These reasons must be relate to fire safety, the subject matter of the FPPA. The Commission only has jurisdiction over fire safety matters.
29The respondent’s witnesses and inspection checklist confirmed that respondent inspected the Building on the basis that it was a rooming, boarding and/or lodging house which is regulated under s. 9.3 of the OFC. However, in the Inspection Order, the respondent only alleged a high occupant load with no reference to any specific violations of the OFC. The Commission finds that the Inspection Order improperly relied on zoning and OBC issues that are not within the jurisdiction of the FPPA.
30The Inspection Order further lacks specifics that would establish the Building as a rooming, boarding or lodging house. Finally, the Inspection Order does not address any alleged deficiencies in the Building in accordance with s. 9.3 of the OFC. Beyond the already repaired smoke and fire alarms, it contained no mention of deficiencies in fire safety measures that are required in rooming, boarding and lodging houses. The Inspection Order lacks valid reasons required to bring the Inspection Order into compliance with s. 23 of the FPPA.
31During the hearing, the Respondent maintained that the Building was a rooming, lodging or boarding house but that applying s. 9.3 of the OFC to the Building would be in conflict with other laws. In particular, the respondent was concerned that zoning restrictions in the City of Kitchener prevent anything but a single dwelling unit in the Building’s neighborhood. The respondent’s concern was that if the respondent relied on the violations of section 9.3 of the OFC, it would be permitting the zoning of a rooming, boarding or lodging house which is outside the authority of the fire department.
32We do not accept that there is a conflict of laws. Subsection 1.2.3. of the OFC specifically states that compliance with the OFC does not relieve an owner from compliance with other applicable Acts. There was no law submitted that would prevent the Building from having the augmented fire safety measures required in a rooming, boarding or lodging house. That the appellants may face issues with zoning, by-law, or the Building Department, is a concern specifically contemplated by ss. 1.2.3 of the OFC. More importantly, if the appellants are in violation of zoning by-laws or the OBC, then that should be brought up before the administrative body tasked with determining those issues as within their jurisdiction and expertise. The Commission only has jurisdiction over fire safety matters as set out in the FPPA.
33For the reasons given above, we find that the Inspection Order does not comply with s. 23 of the FPPA. It improperly relies on issues outside the jurisdiction of the FPPA. It fails to provide reasons related to OFC violations. The Commission therefore rescinds the Inspection Order.
CONCLUSION:
34Pursuant to s. 26(6) of the Act, the Commission rescinds the Inspection Order of Kitchener Fire Department dated October 8, 2021.
Released: December 21, 2022.
____________________________
Marisa Victor, Chair
____________________________
Peter Simmons, Member
____________________________
Rocco Iamello, Member