Usdenski v. Kitchener Fire Department, 2022 ONFSC 7

Tribunals Ontario

Fire Safety Commission

TRIBUNAUX DÉCISIONNELS ONTARIO Commission de la sécurité-incendie

Citation: Usdenski v. Kitchener Fire Department, 2022 ONFSC 07

Date: 2022-08-19

Motion by Kitchener Fire Department for a lifting of the stay in an appeal to the Fire Safety Commission pursuant to subsection 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4

Between:

Efrem and Alla Usdenski Appellants

and

Kitchener Fire Department Respondent

MOTION DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice Chair

Appearances: For the Appellant: no one appeared For the Respondent: Erin Mogck, Counsel Ryan Konrad, Fire Prevention Officer Tom Ruggle, Chief Fire Official

Held by teleconference: August 9, 2022

OVERVIEW

1Kitchener Fire Department (“respondent”), by correspondence dated July 27, 2022, asked that the Fire Safety Commission (“Commission”) hear its request under section 26(8) of the Fire Protection and Prevention Act, 1997 (“FPPA”) to lift the stay of the respondent’s Inspection Order 21-129237 issued October 8, 2021 (“Order”), the Order in issue in this appeal. The Commission treated the respondent’s July 27, 2022 correspondence as a notice of motion.

2At the hearing, the respondent clarified that it is seeking the stay of the Order to be partially lifted to the extent that, pending the hearing of this appeal currently scheduled for the third week of September, 2022, there shall be no new tenants allowed to reside in the property other than the appellants’ current tenants listed in Appendix A to the appellants’ lease agreement dated August 1, 2021.

3The Order is in respect of a single family dwelling unit located at 34 Orchard Mill Crescent, Kitchener, Ontario (“property”) owned by Efrem and Alla Usdenski (“appellants”). The property has nine bedrooms occupied by nine students pursuant to the appellants lease with the student tenants dated August 1, 2021.

4The hearing of this appeal is scheduled for the third week in September 2022.

PRELIMINARY MATTER – APPELLANTS REQUEST FOR ADJOURNMENT

5The appellants sent correspondence to the Commission indicating they oppose the respondent’s motion and seek an adjournment of the motion until the date of the hearing of the appeal the third week of September, 2022.

6The Commission sent Notice of Motion Hearing to both parties dated August 2, 2022 confirming that the motion would be heard by teleconference at 9:30 a.m. on August 9, 2022. This Notice provides “If you do not attend the motion, and do not send someone to attend on your behalf, the Commission may proceed without your participation…”

7The appellants did not attend the motion on August 9, 2022, and did not have anyone attend on their behalf. The Commission waited 15 minutes for the appellants to attend during which time the Commission staff spoke with the appellant Efrem Usdenski by telephone to ask him to attend the hearing. Mr. Usdenski advised Commission staff that he would not attend the hearing, spoke of procedural unfairness because he did not have representation for this motion hearing, and asked why this motion could not be heard at the hearing in the third week of September, 2022. Commission staff advised Mr. Usdenski that the motion would proceed in his absence if he did not join the teleconference hearing. Mr. Usdenski said he understood that.

Appellants Position on the Motion

8In correspondence to the Commission sent August 3, 2022 the appellants ask for an adjournment of this motion hearing to the September hearing. The appellants state that this “is an attempt by the Respondent to circumvent the ongoing hearing process without justification”, state they do not have enough time to submit their evidence to dispute, and to retain legal counsel. The appellant asks, “if the Respondent sincerely believed that this matter was of an urgent nature or necessary for public safety, why did the respondent accept the 3rd week of September 2022 as a hearing date?” The appellants also state that they were given from October 28, 2021, to February 1, 2022, almost five months after the inspection date to comply with the fire inspector’s report which is inconsistent with urgency.

9Instead of attending the motion hearing, the appellants sent correspondence to the Commission on August 8, 2022, indicating that the appellants do not have legal representation for the motion hearing and the appellants were not provided with sufficient time to submit supporting documents for the motion and stating that the appellants rights “are not being respected.” In the same email, the appellants acknowledge that they knew legal representation was needed for the hearing in the third week of September since the last case conference on June 27 and are still seeking representation. The appellants ask that this motion hearing be cancelled and dealt with at the hearing in September 2022 so they can have legal representation.

Respondent’s Position on the Motion

10The respondent requested that its motion be heard on August 9, 2022 as scheduled, given that it arises out of a concern for public safety. The property is currently occupied by students and the end of August 2022 is the time at which turnover in the occupancy of the property is expected and new students expected to take up residency in the property. Given the fire safety issues with the property, this motion needs to be heard now before new students take up residency. The respondent further submits that the appellants have had ample time to retain legal representation to represent them and that discussions about retaining legal representation date back to several months prior to the July 27, 2022 case conference.

Order on Appellants’ Adjournment Request

11The appellants request for an adjournment of this motion on August 9, 2022 is denied. The appellants were given ample notice of the hearing of the motion and chose not to appear. I proceeded to hear the motion in their absence. As the moving party, the onus is on the respondent to establish grounds for the motion regardless of whether the appellant attends the hearing.

ISSUE

12The issue to be determined on this motion is whether under 26(8) of the FPPA, the stay of the Order should be partially lifted.

RESULT

13The motion to partially lift the stay of the Order is denied.

THE LAW

14Section 21(1) of the FPPA gives an inspector who has carried out an inspection of premises under ss. 19 or 20 broad powers to order the owner or occupant to take any measure necessary to ensure fire safety at the premises.

15Subsection 25(1) of the FPPA provides in part that any person who considers themselves aggrieved by an order made by an inspector, other than the Fire Marshal, under s. 21(1) or (2) may request a review by the Fire Marshal. Subsection 25(4)(a) allows the Fire Marshal to refer the matter to the Commission for a hearing under s. 26.

16Subsection 26(7) provides that an appeal under subsection (1) operates as a stay of the order pending the outcome of the appeal.

17Subsection 26(8) provides that the Commission may, upon the application by an inspector or the Fire Marshal, which may be made without notice, order that the stay of the order be lifted if, in its opinion, the action is necessary in the interest of public safety.

18The onus is on the respondent to show that the lifting of the stay is necessary in the interest of public safety.

EVIDENCE AND ANALYSIS

19At the motion, the author of the July 27, 2022 letter, Ryan Konrad, Fire Prevention Officer for the respondent, was present and gave sworn testimony identifying the letter and explained its contents, what gave rise to it and the current fire safety concerns of the respondent.

20In summary, Mr. Konrad testified that the appellants are renting nine bedrooms in the single family property to students on a single one-year lease tied to the school year. Mr. Konrad testified that the nine students are named in Appendix A to the appellants lease dated August 1, 2021, which has a one year term. The respondent is familiar with the names of the nine student tenants because it has been given a copy of the appellants’ lease.

21Four of the nine bedrooms in the property have been created without any of the required permits or approvals and pose a fire safety risk to the student tenants. The respondent has public safety concerns because the student tenants appear to be unrelated, some have possible language barriers and the sheer number of the students living in the property affects the safety of the student tenants in the home.

22The respondent expects two of the nine students to be leaving during or before August 2022 based on information received from the tenants.

23The respondent asks the Commission to partially lift the stay of the Order in order to prevent new tenants from residing in the property if some of the nine student tenants leave the property as expected.

24The respondent does not seek to remove the student tenants who occupy the property presently as tenants as listed in Appendix A to the appellants lease agreement dated August 1, 2021. The intention is not to make the nine student tenants homeless but to prevent new tenants from taking the place of any of the original nine student tenants leave the property before the hearing of this appeal.

25Although the appellants failed to attend this motion, I note that in an email dated August 3, 2022 sent by the appellants to the Commission, the appellant Mr. Usdenski confirmed to John T. Maitland that “2 tenants will leave” and states “I will leave these two rooms empty and will have a group of 7 for the next year at least till the Fire Safety Commission will make their decision.”

26The onus is on the respondent to show that the lifting of the stay is necessary in the interest of public safety, and I find that the respondent has not met its onus.

27I have considered the fact that Mr. Konrad testified that the property is occupied by student tenants in circumstances where four of the bedrooms have been created without any of the required permits or approvals according to the testimony of Mr. Konrad, and in circumstances where the Order requires safety measures under s. 2.1.2.2. of the Fire Code¹. However, I find that the respondent has failed to establish that a partial lifting of the stay is necessary in the interest of public safety within the meaning of s. 26(8) of the FPPA.

28As the Commission has said before, the lifting of the stay is an extraordinary measure that can only be exercised with evidence showing it is necessary in the interest of public safety. Presumably all fire safety orders are issued at first instance to ensure fire safety. Nevertheless, FPPA stays all such orders when they are appealed to the Commission.² The increased risk in delaying implementation of fire safety orders that are stayed because they are under appeal to the Commission is present in every appeal before the Commission.

29Here, there is insufficient evidence before me that a partial lifting of the stay is necessary in the interest of public safety at this time. This appeal is scheduled to be heard next month. It appears that the appellants were given from October 28, 2021 to February 1, 2022, almost five months after the inspection date, to comply with the fire inspector’s report which is inconsistent with a pressing issue of public safety. Further, other than the occupancy by student tenants in units constructed without the necessary permits, the respondent made no persuasive submissions specifically concerning public safety. As a result, the respondent has not satisfied its onus on this motion.

ORDER

30For the reasons above, pursuant to the powers of the Commission under 26(8) of the FPPA, I deny the motion to partially lift the stay of the Order pending the hearing of this appeal currently scheduled for the third week of September, 2022.

Released: August 19, 2022

Avril A. Farlam, Vice Chair

Footnotes

1. 1O. Reg. 213/07
2. 21233685 Ontario Inc. v. Lincoln Fire Rescue and Emergency Services, 2017 CanLII 149077 (ON FSC) at para 28.