FIRE SAFETY COMMISSION
Tribunals Ontario
COMMISSION DE LA SÉCURITÉ-INCENDIE
Tribunaux décisionnels Ontario
Appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, from a direct referral from the Office of the Fire Marshal and Emergency Management
Between:
Mariya Berenbaum
Appellant
and
Oshawa Fire Services
Respondent
DECISION AND ORDER
PANEL: James Minns, Member Anxhela (Angela) Peco, Member
Ronny Katz, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Carson Ryan, Inspector
Held by videoconference: October 31, 2022
OVERVIEW
1Mariya Berenbaum (“appellant”) owns the subject premises, a 2-storey, plus basement, residential building containing five dwelling units (the “Building”). The Building is located at 550 Lansdowne Dr., Oshawa, Ontario.
2Inspector Carson Ryan (“Inspector Ryan”) of Oshawa Fire Services (“respondent”) inspected the Building on March 31, 2022, and served an Inspection Order on April 6, 2022, requiring the appellant to address the issue of two exit stairs being within a single fire compartment (the “Inspection Order”).
3The basement of the Building contains one two-bedroom dwelling unit, and service and storage rooms. The first floor and second floors each contain two two-bedroom dwelling units. The interior of the Building contains two stairwells, one to the north and one to the south. The stairwells are not separated from one another or from the remainder of the Building. From the basement to the second floor, all landings and stairs are within one single fire compartment.
4The Inspection Order was 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 Code (“OFC”). In this case, the Inspection Order referenced Sentence 9.5.2.8(2), Sentence 9.5.3.2, and Sentence 9.5.3.3 of the OFC.
5In summary, the Inspection Order required the following:
Item
Fire Code Reference Nos.
Details of Inspection
Div 8-9.5.2.8
(2)
Openings in a fire separation that is required to have a 30 min fire-resistance rating shall be protected with closures having a 20 min fire-protection rating.
Item Description
Protection of openings in fire separations
Corrections
In the fire separations constructed in accordance with 9.5.3.3, a closure (door) shall be installed that has a minimum 20-minute fire protection rating.
(Clarification note: The door swing, in or out, is irrelevant however, if the door swings out in the direction of exit travel, there shall be a landing available so that the door does not swing over the stairs.)
Div 8-9.5.3.2
(1) Each floor area shall be served by a minimum of two exits.
(2) A single exit from a basement, first or second floor is deemed to be in compliance with Sentence (1) where the exit does not serve more than four dwelling units, the exit does not serve more than 1O
Persons and the building is not more than 3 storeys in building height and is not greater than 600 m2 in building area.
(3) Where a building is not more than 3-storeys in building height and not greater than 600 m2 in building area, alternative measures to Sentence (1) may be used if they are approved, and in the opinion of the Chief Fire Official, will provide protection for life safety similar to the protection provided by compliance with Sentence (1).
Item Description
Number of exits
Corrections
Each floor area within the building shall be served by a minimum of 2 exits.
Div 8-9.5.3.3
(1) Each exit stairway shall be separated from the remainder of the building by a fire separation having a fire-resistance rating not less than 45 min.
(2) If the building is 3 storeys or less in building height, a fire separation having a fire-resistance rating not less than 30 min is deemed to comply with Sentence (1).
(3) Closures in stairway fire separations referred to in Sentences (1) and (2) shall be equipped with self-closing devices.
Item Description
Stairway separations
Corrections
Located within the building are 2 sets of stairs, one on the south side of the building and one on the north. These 2 sets of stairs are not separated from the remainder of the building nor are the stairs separated from one another.
To comply with this section, a fire separation shall be constructed on each floor area and the exit stairs.
The closure (door) installed in accordance with 9.5.2.8(2) shall be equipped with a self-closing device.
(Clarification note: Two fire separations are required on each level, between the suite doors and the exit stairs, there would be a total of 6 walls constructed)
6Compliance with the Inspection Order was required by July 6, 2022.
7The appellant appealed the Inspection Order to the Fire Marshal under subsection 25(1) of the FPPA. The Fire Marshal referred the appellant’s request for a review of the Inspection Order to the Fire Safety Commission (“Commission”) pursuant to subsection 25(4) of the FPPA.
ISSUE
8The issue to be determined is the means of compliance with the requirements of the OFC as stipulated in the Inspection Order despite the physical limitations in the building.
RESULT
9The Commission finds that the appellant must comply with the requirements of the OFC as stipulated in the Inspection Order.
SUBMISSIONS AND ANALYSIS
10The appellant has the burden of proof in this appeal, meaning that the appellant is required to establish on a balance of probabilities that the Inspection Order has been complied with or should otherwise be amended or rescinded.
11The appellant testified on her own behalf. Inspector Ryan testified on behalf of the respondent.
12Exhibits tendered by the respondent during the hearing consisted of floor plans for the basement, first and second floors; four photographs taken by Inspector Ryan depicting the stairway fire compartment; and one Google Street View image of the exterior of the building.
13During the hearing, the appellant submitted to the Commission Case Officer via email a set of architectural drawings for a Porch Addition prepared by Guitberg Group Inc. The drawings were submitted late and were not received by the panel during the hearing. The panel did not permit the appellant to rely on these drawings and did not consider the drawings in its decision.
14In the Application for Fire Marshal Review of an Order, during the Case Conference, and during the Commission hearing, the appellant gave the following reasons for the appeal of the IO:
a. building separation walls would create a safety hazard due to the small size of the landings, because if the doors in the exits swing in the direction of exit travel.
b. constructing smaller landings could create a contravention of the Building Code.
c. if the doors in the exits swing inward (toward the residential doors), the doors will block the unit doors when open, thus blocking a tenant’s exit from their unit.
d. delays due to COVID-19 response times at the municipality and with accessing experts.
e. while this is a retrofit requirement for the building (since October 1992), the fire department has no record of having issued an inspection order for the issue to previous owners despite documented inspections.
f. basement windows were large enough to serve as an exit from the basement unit.
g. the financial burden of compliance.
The Physical Limitations of the Building
15The first three reasons for appeal given by the appellant as noted relate to the physical limitations of the Building.
16The appellant testified that compliance with the Inspection Order as written required building separation walls, which would create a safety hazard due to the small size of the landings, because if the doors in the exit swing in the direction of exit travel, the landings would not be sufficient in depth for the door to swing completely over the landing. Alternatively, if the doors in the exits swing inwards, the doors will block the suite entrance doors.
17The appellant testified that she was concerned that building separation walls as required by the Inspection Order may result in a contravention of the Building Code.
18Beyond the appellant’s testimony describing her understanding of the building limitations, the appellant offered no evidence to support her submissions. The appellant did not provide independent evidence of the dimensions of the existing floor plans, landings, and the position of suite entrance doors. The appellant offered no evidence of the dimensions of any proposed fire safety separation walls, exits and landings.
19The appellant testified that she agrees that the current use and occupation of the Building, with five dwelling units and the two exit stairs being within a single fire compartment, is not in compliance with the OFC.
20The appellant testified that she has taken no remedial steps to bring the Building into compliance with the Inspection Order.
21The appellant submitted that she wants to see if the Commission will uphold the Inspection Order before considering alternative options for compliance.
22Inspector Ryan testified that the Inspection Order as written gives only one method of compliance. Inspector Ryan testified that the respondent is willing to consider other methods of compliance.
23Inspector Ryan testified that he received some advice from the Fire Marshal which affirmed that Sentence 9.5.3.2. was applicable to the circumstances of this Building as presently used and occupied.
24Based on the evidence presented, this panel finds that the present use and occupation of the building with five dwelling units and with the two exit stairs being within a single fire compartment is not in compliance with Sentence 9.5.3.2 and Sentence 9.5.3.3 of the OFC which requires:
Number of exits
9.5.3.2. (1) Each floor area shall be served by a minimum of two exits.
(2) A single exit from a basement, first or second floor is deemed to be in compliance with Sentence (1) where the exit does not serve more than four dwelling units, the exit does not serve more than 10 persons and the building is not more than 3 storeys in building height and is not greater than 600 m in building area.
(3) Where a building is not more than 3 storeys in building height and not greater than 600 m in building area, alternative measures to Sentence (1) may be used if they are approved, and in the opinion of the Chief Fire Official, will provide protection for life safety similar to the protection provided by compliance with Sentence (1).
Stairway separations
9.5.3.3. (1) Each exit stairway shall be separated from the remainder of the building by a fire separation having a fire-resistance rating not less than 45 min.
(2) If the building is 3 storeys or less in building height, a fire separation having a fire-resistance rating not less than 30 min is deemed to comply with Sentence (1).
(3) Closures in stairway fire separations referred to in Sentences (1) and (2) shall be equipped with self-closing devices.
25The panel notes that the appellant has several options available to use alternative solutions that will achieve the level of performance required by the applicable acceptable solutions as contemplated under Article 1.2.2.1. of the OFC.
26The deemed compliance provisions under s. 9.5.3.2. (2) and (3) are an example of one option the appellant might consider in circumstances where:
“s. 9.5.3.2.(2) A single exit from a basement, first or second floor is deemed to be in compliance with Sentence (1) where the exit does not serve more than four dwelling units, the exit does not serve more than 10 persons and the building is not more than 3 storeys in building height and is not greater than 600 m in building area.
(3) Where a building is not more than 3 storeys in building height and not greater than 600 m in building area, alternative measures to Sentence (1) may be used if they are approved, and in the opinion of the Chief Fire Official, will provide protection for life safety similar to the protection provided by compliance with Sentence (1).”
27The panel notes that the Commission has no jurisdiction to approve alternative options for compliance with the OFC.
Contravention of the Building Code
28The appellant submitted that constructing a separation wall between the two exit stairs would result in small landings that could be in contravention of the Building Code.
29No evidence was tendered by either the appellant or the respondent on this point and the panel did not find the argument persuasive.
Historical Context
30The appellant testified that the Building was constructed about 60 years ago and that previous fire inspections had not resulted in inspection orders. As a result, the appellant argued that the Building should therefore be “grandfathered” based on the historical context of its past use and occupation.
31Inspector Ryan, on behalf of the respondent, testified that it was the intention of the retrofit provisions of Article 9 of the OFC to address the upgrade of existing buildings. Under Article 9, alterations of buildings may require some construction, renovations, or additions.
32No evidence was tendered by the appellant with respect to the assertion that the Building should be grandfathered. Specifically, no evidence was tendered to indicate the historical way the Building had been used or occupied with five dwelling units (more or less).
33This submission is not relevant to the determination of the appellant’s compliance with the presently outstanding Inspection Order.
Financial Burden
34The appellant testified that to adopt options for compliance with the Inspection Order would create a significant financial burden for her. The appellant testified that she has commissioned architectural drawing to consider options for compliance and estimated incurring $18,000-20,000 in building costs. The appellant testified that she would require additional time to consider and complete construction of an alternative option for compliance.
35This submission is not a relevant consideration in determining whether the appellant should comply with the Inspection Order. The Commission has no ability to disregard the Code based on financial arguments.
Basement Windows as Exits
36Section 9.5.3.2.(1) of the OFC requires each floor area shall be served by a minimum of two exits.
37The appellant stated that the windows in the basement were sufficiently large for egress as alternative exits from the basement dwelling unit. The appellant did not tender evidence as to the location, dimensions, and ground clearance of the window(s) in the basement dwelling.
38The respondent submitted that the basement window openings as a means of egress are not considered to be an “exit” where the OFC requires two exits.
39The panel did not have sufficient evidence to decide whether the basement window would satisfy the requirements of the Code so as to be considered a second exit and therefore rejected this argument.
Request for Extension
40The appellant submitted that if the panel confirms the Inspection Order, an extension be granted for compliance such that she would begin construction in the spring/summer of 2023.
41Having confirmed the Inspection Order and recognizing the difficulty the appellant will experience completing construction work over the December holiday season and during the winter months, the panel grants the appellant an extension of the compliance date to be set 120 days from the date of the release of this decision.
ORDER
42The appeal is denied. The appellant has not shown that the Inspection Order should be rescinded.
43The panel amends the Inspection Order by extending the compliance date to 120 days from the date of the release of the panel’s decision.
Released: December 30, 2022
James Minns, Member
Fire Safety Commission
Anxhela (Angela) Peco, Member
Fire Safety Commission
Ronny Katz, Member
Fire Safety Commission