Tribunals Ontario
Fire Safety Commission
Citation: Kitchener Fire Department v. HJG Holdings Ltd., 2022 ONFSC 2
Date: 2022-02-01
In the matter of an Appeal under subsection 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Kitchener Fire Department (Appellant)
and
HJG Holdings Ltd. (Respondent)
Amended Decision and Order
Order made by: James Minns, Member
Introduction
1The Fire Safety Commission (the "Commission") issues this Decision and Order dismissing the appeal without a hearing.
2On July 28, 2021, the Fire Safety Commission (the "Commission") ordered in its Case Conference Order and Report ("CCRO") that the parties file written submissions on the preliminary issue as to whether the appeal was moot, together with supporting case law and documents. Both parties failed to file the ordered materials.
3On September 24, 2021, the Commission issued a Notice of Intent to Dismiss ("NOID") the appeal without a hearing and ordered that the parties file written submissions on the issue as to whether the appeal should be permitted to continue, or whether should it be dismissed on the grounds that the appellant and the respondent have abandoned the proceeding. Both parties have failed to file the ordered materials.
Background
4The appeal concerns a single-family residential property (the "Premises") described as 59 Durham Street, Kitchener, Ontario.
5Ryan Konrad (the "Inspector") with the Kitchener Fire Department ("KFD") conducted an inspection of the premises on August 27, 2020, and on September 15, 2020, the Inspector served an Inspection Order (the "Inspection Order") upon HJG Holdings Ltd. (the "Respondent").
6On September 15, 2020, the respondent requested a Fire Marshal Review of the Inspection Order.
7By letter dated June 7, 2021, the Office of the Fire Marshal, issued an order (the "Review Decision") rescinding the Inspection Order.
8The appellant filed a Notice of Appeal dated June 11, 2021, appealing the Review Decision to the Commission.
9Respondent's agent sent an email on June 15, 2021, to the appellant and to the Commission indicating that the property had been sold. No further details of the sale were provided.
10A case conference proceeded on July 6, 2021.
11The respondent's agent did not participate in the case conference. No one participated in the case conference on behalf of the property's new owner(s). The case conference proceeded with the appellant's representative and witnesses in attendance.
Discussion during the Case Conference
12During a discussion at the case conference, the appellant was given the option of continuing with the present appeal proceeding or withdrawing the Notice of Appeal and starting fresh with a new inspection of the property and issue a new Inspection Order to the new owners.
13The appellant elected to continue with the present appeal proceeding.
Preliminary Issue
14The recent change in ownership of the subject property raises a preliminary issue as to whether the appellant's appeal is moot and therefore whether the Commission should continue to hear this appeal proceeding. The preliminary issue must be determined before the appeal can proceed further.
15The preliminary issue to be decided is:
a. Can this appeal proceed as instituted given that the Inspection Order at issue was imposed on persons who no longer have an interest in or control of the property or is the appeal now moot?
The CCRO ordered the following:
16By July 30, 2021, the appellant shall provide the respondent, and new property owners and the Commission with a copy of their submissions on the preliminary issue, together with supporting case law and documents.
17By August 13, 2021, the respondent and the new property owners shall provide the appellant and the Commission with a copy of their response to the appellant's submissions.
18By August 20, 2021, the appellant may provide reply submissions to the respondent and the new property owners and the Commission.
19The parties' initial and response submissions are limited to no more than ten pages. Reply submissions are limited to a maximum of five pages. All submissions page limits are exclusive of any supporting documentation and/or case law.
20The Commission will consider the parties' submissions and issue its decision on whether the appeal may proceed. If necessary, a further case conference may be scheduled.
21The Commission has not received further correspondence or submissions since the CCRO was released on July 28, 2021. The CCRO was also forwarded to the email address of the "new owner" as provided by the Fire Department.
Notice of Intention to Dismiss ("NOID"):
22The Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure Version I (October 2, 2017) as amended (the "Common Rules") apply to the conduct of the hearing. A copy of the Common Rules can be found online at: https://tribunalsontario.ca/fsc/legislation-and-rules/.
23The appellant, the respondent and the new owners of the property have failed to file written submissions to the Commission concerning the preliminary issue as required by the CCRO dated July 28, 2021. The submission deadlines are now past.
24As set out in Rule 3.5 of the Common Rules the Commission on September 24, 2021, gave notice of its intention to dismiss the appeal pursuant to Rule 3.4(d) because the appellant has abandoned the proceeding.
25Under Rule 3.5(c) of the Common Rules, each party has the right to make written submissions to the Commission on whether the proceeding should be dismissed without a hearing.
26The appellant was given until October 15, 2021, to file with the Commission written submissions as to whether the appeal should be permitted to continue. The respondent and the new owner were permitted to also file materials no later than October 25, 2021. The appellant was permitted to file reply materials by November 1, 2021.
27Following the deadline for filing submissions the Commission would decide whether to dismiss the appeal without a hearing in accordance with Rule 3.4 of the Common Rules. The Commission would advise the parties, in writing of its decision.
28If the Commission issued an order dismissing the appeal without a hearing, the matter will be at an end.
29If the Commission decided to continue the appeal, the Commission will advise the parties, in writing of a new schedule for the delivery of written submissions to address the preliminary issue.
30The appellant, the respondent and the new owners of the property have not filed written submissions to the Commission concerning the NOID dated September 24, 2021. The submission deadlines are now past.1
The Commission Orders:
31The parties have not filed written submissions on the issue as to whether the appeal should be permitted to continue, or whether it should be dismissed on the grounds that the appellant has abandoned the proceeding.
32The Commission finds that the appellant has abandoned the appeal and hereby issues an order dismissing the appeal without a hearing.
33Nothing in this Order affects any other requirement under the Fire Protection and Prevention Act.
Released: December 31, 2021 Amended: February 1, 2022
James Minns, Member Fire Safety Commission