Draven v. Toronto Fire Services, 2022 ONFSC 6

Tribunals Ontario Fire Safety Commission

TRIBUNAUX DÉCISIONNELS ONTARIO Commission de la sécurité-incendie

Citation: Draven v. Toronto Fire Services, 2022 ONFSC 6

Date: 2022-06-23

Appeal under subsection 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4

Between:

Camla Draven Appellant

and

Toronto Fire Services Respondent

MOTION DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Camla Draven

For the Respondent: Emma Luca, Counsel

Heard in writing: June 11, 2022

BACKGROUND

1On March 8, 2022, the Commission brought this motion on its own behalf to determine whether the Commission has jurisdiction to proceed with the appellant’s appeal. In it’s motion the Commission summarized the appellant’s grounds for appeal as:

a. Administrative error by the respondent in the Inspection Order

b. Procedural fairness issues with the respondent’s actions

c. A need for systemic review, and/or

d. To clear her name

2On November 30, 2021, Camla Draven (the “appellant”) appealed to the Fire Safety Commission (the “Commission”) following the Order of the Fire Marshal made on June 9, 2021 (the “Review Order”) under s. 25 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (the “FPPA”). The decision in the Review Order confirmed Inspector Pace’s Inspection Order issued on March 24, 2020, Inspection Order (the “Inspection Order”)of the Toronto Fire Service (the “respondent”)

3The Inspection Order relates to a three-storey multi-unit residential rental building containing 6 units above grade and 1 unit in the basement at 43 Dewson Street, Toronto, Ontario (the “Building”). The appellant is a tenant of unit 3 on the second floor. One of the two exit doors for unit 3 discharges into a corridor which discharges into an exit stair.

4Based on observations of the Building, Inspector Pace noted that there is an “accumulation of combustibles in the rear means of egress corridor from Unit #3 which is not in compliance with sentence 2.4.1.1. (1) of Division B of O.Reg 213/07 as amended” and ordered “Remove all combustible materials from south means of egress corridor” by May 8, 2020 in the Inspection Order. The Inspection Order was served on the appellant in her capacity as occupant.¹ The appellant does not dispute that she is an occupant of the building or that the combustible materials referred to in the Inspection Order belong to her.

5The appellant appealed the Inspection Order to the Fire Marshal who in the Review Order confirmed the Inspection Order and extended the date for completion of the work to September 9, 2021. In the reasons for the Review Order the Fire Marshal described the fire hazard observed by Inspector Pace as follows: “The Appellant, who is the tenant in Unit 3, is currently using the area that is considered part of the exit stairway enclosure for the storage of combustible materials. This exit stairway enclosure forms part of the means of egress for Unit 3. The Inspector has determined that this storage of combustible materials forms an accumulation and is a fire hazard. As such, the Inspector has issued the subject Order requiring that the combustible materials be removed.”

6In her Notice of Appeal to the Commission the appellant acknowledges that the respondent is no longer pursuing compliance because the Fire Code violation at issue has been remedied. However, the appellant indicates she wishes to proceed with the appeal based on complaints about processes and procedures by the respondent and possibly others. In her Notice of Appeal, the appellant wrote she wishes to raise “issues of administrative error and procedural fairness, for systemic review and to have the Inspection Order formally rescinded/withdrawn…in the hope that I will be able to clear my name of all alleged wrong-doing. I hope that the appeal of this order will stay any damage claims that may arise…”

7At the case conference held December 23, 2021, the respondent again confirmed that the issue had been corrected.

8The Commission invited both parties to make submissions on the Commission’s motion. The appellant made initial and reply submissions. The respondent also made submissions. All submissions have been considered on this motion.

9The Commission also made it clear that any further steps in the proceeding, including the appellant’s motion for production of documents, and the hearing of this appeal of these merits, will only take place after the decision in this motion and only if the Commission determines that there is jurisdiction to hear the appeal.

ISSUE

10The issue to be determined on this motion whether the Commission has jurisdiction to proceed with the appellant’s appeal.

RESULT

11The Commission does not have jurisdiction to proceed with the appellant’s appeal. The appeal is dismissed and the Commission’s file is now closed.

THE LAW

12The Commission is a statutory tribunal which derives its authority to hear appeals from the FPPA.

13Subsection 26(1) of the FPPA permits any person who considers themselves to be aggrieved by an order made by the Fire Marshal under subsection 21(1) or (2) or section 25 to appeal the order to the Commission.

14Under s. 26(6) of the FPPA the Commission may confirm, amend or rescind the order of the Fire Marshal or make such other order as the Commission deems appropriate after a hearing held under s.26(5) of the FPPA.

15The onus of satisfying the Commission that the appeal falls within the jurisdiction of the Commission under the FPPA rests on the appellant.

16Under Rule 3.4(b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended (the “Rules”), the Commission has the authority to dismiss an appeal without a hearing if the appeal relates to matters that are outside of the Commission’s jurisdiction.

17Under s. 4.6(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) a tribunal may dismiss a proceeding without a hearing is the proceedings relates to matters that are outside the jurisdiction of the tribunal.

ANALYSIS

Appellant’s Submissions

18In summary, the appellant submits that her appeal should continue because she wishes to proceed with the appeal based on complaints about processes and procedures by the respondent and possibly others. The appellant also disputes the respondent has raised any valid case law or arguments in support of its position.

Respondent’s Submissions

19The respondent submits that the appellant’s stated grounds of appeal fall outside the jurisdiction of the Commission based on the jurisdiction granted to the Commission by the FPPA to review the Review Order with respect to fire safety issues and whether the Review Order is necessary for the fire safety of the building. The respondent also submits that the broader power of the Commission to make “such other order as the Commission deems appropriate” should be interpreted in the context of protecting the fire safety in the building pertaining to the subject matter of the Review Order.

20The respondent further submits that the appeal is moot as the fire safety risk has been mitigated as the result of a fire separation constructed by the property owner landlord between the area where the combustible materials owned by the appellant are located and the exit stairway.

21The respondent relies on several cases in support of its position.²

The Commission Does Not Have Jurisdiction to Proceed with This Appeal

22I find that the Commission does not have jurisdiction to proceed with the appellant’s appeal for the following reasons.

23Firstly, the Commission’s mandate under s. 26(6) of the FPPA is to confirm, amend or rescind the order of the Fire Marshal or to make such other order as the Commission deems appropriate after a hearing held under s.26(5) of the FPPA. It is clear from a plain reading of the FPPA that there must be an issue in dispute between the appellant and the respondent. That issue must arise from the decision contained in the Review Order such that the Commission is required to confirm, amend or rescind the Review Order, or in appropriate circumstances, by such other order as the Commission deems appropriate.

24Here, there is no issue in dispute between the parties arising from the decision contained in the Review Order. The appellant conceded in her Notice of Appeal that the appellant acknowledges that the respondent is no longer pursuing compliance because the Fire Code violation at issue has been remedied.

25I find that the fire safety issue referred to in the decision contained in the Review Order is now moot. As explained by the Supreme Court of Canada, when a legal issue becomes moot, a Court may decline to decide a case. The “doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question.”³ While not a Court, the Commission has the right to control its own processes under the Statutory Powers Procedure Act.

26Following the analysis suggested by the Supreme Court of Canada in the Borowski case, I find that the fire safety dispute has disappeared and become academic, there is no scope for general adversarial proceeding between the parties given the limited statutory mandate of the Commission, and it would be imprudent to expend the limited resources of the Commission on an appeal the outcome of which would not resolve a live fire safety issue. Further, it is important that the Commission demonstrate an awareness for its proper adjudicative function, specifically fire safety issues in dispute. Considering all these factors, I find there is no basis on which the Commission can confirm, amend, rescind or make any other order about the decision contained in the Review Order and hearing the appeal would serve no quasi-judicial or practical fire safety purpose. Although the appellant submits in her reply to this motion that the Algonquin case⁴ should be followed here and the appeal be allowed to proceed to a hearing, I disagree. The Algonquin case is not binding on me. More importantly, it is specific to its facts. In that case, unlike here, there were a number of other school properties with the same issue and the outcome was thought to possibly have a practical effect on other fire services and school boards across the province. Here, the situation is very different. The essential facts in this appeal are not in dispute, the fire safety issue has been resolved and there is no ongoing relationship between the parties. As a result, the outcome of this appeal is unlikely to have any practical effect on other matters.

27Secondly, given the limited statutory mandate granted to the Commission by the FPPA, the Commission is not the appropriate forum for the appellant to proceed with complaints about processes and procedures by the respondent and possibly others. The Commission has made it clear before that it has no general jurisdiction to remedy harm an appellant may have suffered and is only empowered to consider fire safety issues.⁵

28Thirdly, the remedies sought by the appellant in her Notice of Appeal are not remedies that the Commission is empowered to grant by the FPPA. The appellant seeks to have the Inspection Order “formally rescinded/withdrawn…in the hope that I will be able to clear my name of all alleged wrong-doing. I hope that the appeal of this order will stay any damage claims that may arise…”, reviewing alleged administrative and procedural errors, and a systemic review.

29The appeal before the Commission is from the Review Order, not the Inspection Order. The Inspection Order itself has already been reviewed by the Fire Marshal. The Commission cannot “clear” the appellant’s name or “stay any damage claims” or sanction any alleged inappropriate conduct or conduct any systemic review of the respondent or others as sought in this appeal. To attempt to do any of these would be for the Commission to act outside its jurisdiction. The Commission is not a court and does not have any inherent jurisdiction outside that granted to it by the FPPA.

30I am not persuaded by the appellant’s submissions on the case law cited by the respondent and the appellant’s case law cited in reply. None of the authorities cited by the appellant assist here. There is nothing unclear in the statutory provisions of the FPPA regarding the mandate of the Commission on appeals.

31The onus is on the appellant to satisfy the Commission that the appeal falls within the jurisdiction of the Commission under FPPA. The appellant has not met her onus in the particular circumstances of this case.

ORDER

32For the reasons above, the Commission does not have jurisdiction to proceed with the appellant’s appeal. The appeal is dismissed and the Commission’s file is now closed.

Footnotes

1. 1The Fire Code, O.Reg. 213/07, Division A, s. 1.2.1.1, provides that unless otherwise specified, the “owner” is responsible for compliance with the Fire Code. “Owner” is defined to include any person, firm or corporation having control over any portion of the building or property and includes the person in the building or property.
2. 2Stela Balint v. St. Catharines Fire Services, 2020 ONFSC 7 (FSC); Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC); Algonquin and Lakeshore Catholic District School Board and Kingston Fire Services, 2016 CanLII 107887 (FSC).
3. 3Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC).
4. 4Algonquin and Lakeshore Catholic District School Board and Kingston Fire Services, 2016 CanLII 107887 (FSC).
5. 5Stela Balint v. St. Catharines Fire Services, 2020 ONFSC 7 (FSC) at para 17.