Bernard v. Welland Fire and Emergency Services Department, 2022 ONFSC 3

Citation: Bernard v. Welland Fire and Emergency Services Department, 2022 ONFSC 3

Date: 2022-02-02

Appeals under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, from a Decision and Order of the Office of the Fire Marshal

Between:

Joy Bernard

Appellant

and

Welland Fire and Emergency Services Department

Respondent

DECISION AND ORDER

PANEL: Marisa Victor, Vice-Chair Susan Clarke, Vice-Chair Paul Stopciati, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Inspector Ron Vanhell, Agent

Held by Videoconference: December 8, 2021

OVERVIEW

1Joy Bernard (“appellant”) owns a six-bedroom building currently operated as a student rental property at 45 Woodland Drive, Welland, Ontario (“Building”). The Welland Fire and Emergency Services (“respondent”) issued an inspection order on May 11, 2021 (the “Inspection Order”) requiring seven fire safety items to be completed.

2The appellant appealed the Inspection Order to the Fire Marshal (“FM”). The FM issued its review decision on October 4, 2021 (“Review Order”) which rescinded Item 4 and confirmed the remaining six items. The Review Order amended the compliance date for the above items to April 1, 2022.

3The appellant has complied with item 1, which required a fire safety plan; however, she appealed the remainder of the items to the Fire Safety Commission (“Commission”).

4At the time of the initial inspection in May 2021, there were five tenants in the Building. The Inspection Order and the Review Order determined that s. 9.3 of the Ontario Fire Code (“OFC”) applied to the Building and therefore certain actions were ordered to bring the Building into compliance with that section of the OFC. The items appealed from the Review Order are as follows:

1. Item 2: fire separations are needed
2. Item 3: walls separating bedrooms are needed
3. Item 5: protection of openings of fire separations are needed
4. Item 6: exit signs are needed
5. Item 7: second means of egress for basement is needed

ISSUES

5The issues to be determined are:

1. Whether s. 9.3 of the OFC applies to the Building?
2. If so, does the Building need to comply with the Review Order?
3. If so, how much time should the appellant be granted to comply?

RESULT

6The Commission finds that, as there are now only four tenants in the Building. and no plans for more, section 9.3 of the OFC does not apply; therefore, the items under appeal are not required. The Review Order is rescinded.

ISSUE 1: Does s. 9.3 of the OFC apply to the Building

Background

7The Building is a two-storey semi-detached raised bungalow that does not exceed 600 m² in building area and is less than three storeys. There are three bedrooms on the main floor and three bedrooms in the basement.

8One of the bedrooms in the basement has an exit to the outside; however, if the room is occupied and locked, the other basement tenants do not have access to that exit.

Appellant’s Evidence and Submissions

9The appellant testified that she purchased the Building on April 15, 2021. She rented the Building to students as a rooming house. After the initial inspection, she installed smoke alarms and carbon monoxide alarms and completed item 1 of the Review Order which was the requirement to have a fire safety plan.

10The appellant testified that although there is accommodation for six, the Building was only occupied by five students at the time of the inspection. As of November 1, 2021, there have been only four tenants in the Building, as one of the students moved out.

11The appellant testified that one of the six rooms could not be rented as there were holes in the walls.

12The appellant has no plans to rent the vacant fifth room to a new student.

13She understands that the requirements of the Review Order are not necessary if she rents the house to one family. She asks the Commission for an extension of time so that the students can stay until the end of their lease on April 28, 2022. She testified that she then plans to rent the house to a single family.

14She testified that she cannot do the work required by the Review Order because she cannot afford it and because the students currently live in the house. Further, none of the work is required if she rents to one family. Her only other option is to sell the house.

15The appellant testified that she was under extreme stress as a result of these proceedings.

Respondent’s Evidence and Submissions

16Inspector Vanhell (“Vanhell”) testified for the respondent. He conducted the May 11 inspection of the Building. He testified that he considered the Building to be operating as a rooming house because there was sleeping accommodation for six people, they shared a kitchen and bathroom and the Building did not exceed 600 m² in building area and is less than three storeys. He found the Building was governed by section 9.3 of the OFC.

17Vanhell testified that the items in the Review Order are necessary to comply with the s. 9.3 of the OFC and therefore for fire safety in the Building:

1. Item 2 ordered rated fire separations between the basement and the main floor (including the laundry and furnace areas) and between the laundry room and remainder of the building. This means that the basement ceiling materials need to provide some fire protection and the open wood joists need to be protected with drywall or some other material that provides adequate fire protection.
2. Item 3 required rated fire separations between each basement bedroom and the remainder of the floor area. These rooms are currently separated only by wood panelling which does not provide the minimum 30 minutes of fire protection the bedrooms required.
3. Item 5 ordered that the closure (door) between the basement level and the shared exit at the front of the house be replaced with a closure having a 20-minute fire-protection rating, and be equipped with a self-closing device and latching mechanisms. This slows a fire from spreading in the Building.
4. Item 6 ordered exit signs be installed above the main floor exit and the door leading from the basement to the exit.
5. Item 7 required that the basement be provided with a second means of egress, or exit, because what could be a second exit, the basement walk-out, was within a bedroom not available to the other occupants.

18Vanhell also testified regarding the various options for compliance that were provided in the Inspection Order and Review Order. He testified that it was understood that some of the work would require time and that a time period of six months was usually granted in order for the proper building permits to be obtained.

19Matthew Richardson, Chief Fire Prevention Officer, (“Richardson”) also testified for the respondent. Richardson had not personally inspected the Building. He testified regarding how inspections are usually conducted in their municipality and his opinion regarding the application of the OFC to rooming houses.

20Richardson testified that sentence 9.3.1.1 of the OFC applies to rooming houses that do not exceed 3 storeys, have lodging for more than 4 persons and where bathrooms and kitchens are shared.

21On questioning from the panel, Richardson testified that even though there were now only 4 tenants, s. 9.3 of the OFC still applied. This was because vacant bedrooms tend to be reoccupied. He agreed that if the Building only had four bedrooms, s. 9.3 would not apply. Richardson submitted that if the owner of the Building removed two bedrooms through demolition then s. 9.3 would no longer apply and the other items in the order would not be necessary for compliance with the OFC.

Analysis

22Section 9.3 of the OFC states as follows:

SECTION 9.3 BOARDING, LODGING AND ROOMING HOUSES

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 (emphasis added)

(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.

23Based on the evidence, we are satisfied that the Building does not contain more than four tenants. The uncontested evidence is that there are currently only four persons occupying the Building as tenants. We find that s. 9.3 of the OFC no longer applies to the Building because clause 9.3.1.1(1)(b) limits the application of section 9.3 to occupancies where lodging is provided to more than 4 persons. Although there are more than four bedrooms, we are satisfied that the Landlord has no intention to provide accommodation for more than four tenants. Therefore, our interpretation is that lodging is not being provided for more than four tenants. As a result, the Building is not required to comply with section 9.3 of the OFC and the items under appeal from the Review Order are no longer necessary.

24The Commission recognizes that when the Review Order was issued, there were five tenants in the Building. Therefore, at that time, s. 9.3 did apply to the Building and the Review Order was necessary to bring the Building into compliance with the OFC. The application of s. 9.3 to the Building at that time, was not contested by the appellant.

25Further, the Commission notes that the respondents raised valid concerns that the empty bedrooms could be reoccupied. Should they be reoccupied as a rooming house, then it is clear that s. 9.3 of the OFC would apply and the respondent could issue a new order requiring that the Building be brought into compliance with the OFC.

26However, the appellant testified that she does not intend to rent out the spare bedrooms and that after April 2022, when the lease expires for the current students, she intends to rent the Building to a single family. She was distressed by the proceedings and convincing when she said she would not be renting out the fifth and sixth rooms to more tenants. We have no reason to doubt her testimony.

27Nevertheless, the option is open to the appellant to maintain the Building as a rooming house with four or fewer tenants past April 2022. In that case there are two actions that the Commission recommends for fire safety:

1. The appellant could permanently remove two bedrooms, either through demolition, permanently closing off the spaces through construction or placing two permanent locks on the doors, or alternatively, opening up the spaces so that the extra two bedrooms become common areas and not bedrooms that could be reoccupied; or
2. The appellant could turn the basement bedroom that has a walk-out exit into a common area providing a second exit for all basement tenants.

28Fire safety for student tenants is of significant concern to the Commission. The appellant has shown that the Building does not need to comply with s. 9.3 as there are only four tenants and she has no plans to increase the number of rooming house tenants. Therefore, the Review Order is not necessary for compliance with the OFC. Should the appellant continue to operate the Building as a student rooming house past April 2022 she should consider the suggestions made in the paragraph above for fire safety in the Building. Should the appellant decide to increase the number of rooming house tenants in the Building, at any time, then s. 9.3 must then be complied with and the items under appeal would become necessary for fire safety in the Building.

29As we answered no to Issue 1, s. 9.3 of the OFC does not apply to the Building, we do not need to answer issues 2 and 3.

ORDER

30Items 2, 3, 5, 6, and 7 of the Review Order are rescinded.