FIRE SAFETY COMMISSION

Tribunals Ontario

COMMISSION DE LA SÉCURITÉ-INCENDIE

Tribunaux décisionnels Ontario

Citation: Edward Allen v Hamilton Fire Department, 2022 ONFSC 08

Date: 2022-08-30

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

Between:

Edward Allen Appellant

and

Hamilton Fire Department Respondent

and

2645151 Ontario Inc. Added Party

DECISION AND ORDER

PANEL: Marisa Victor, Vice-Chair Mindy Caterina, Member James Minns, Member

APPEARANCES:

For the Appellant: Self-represented For the Respondent: Stephen Chisholm, counsel

Held by videoconference: July 14, 2022

OVERVIEW

1The issue in this appeal is whether a chairlift and rail (collectively the “chairlift”) attached to a shared exit stairway is an obstruction under the Ontario Fire Code¹ (“OFC”) and therefore must be removed.

2Edward Allen (“appellant”) is a residential tenant at 210 Parkdale Avenue North in Hamilton (“Building”). The Building is a two-storey plus basement mixed use building built in the 1950s. The main floor and basement of the Building contains commercial space but the second floor contains two two-bedroom residential units. The two residential units share an interior exit stairway as well as a rear fire escape. The appellant has a mobility disability and installed a chairlift on the interior exit stairway to assist him with going up and down the stairs.

3On July 28, 2021, the Hamilton Fire Department (“respondent”) served an inspection order (“Inspection Order”) on the owner (“added party”), as well as the appellant who is a tenant of the Building. The 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 OFC. In this case, Sentence 2.7.1.7 (1) of the OFC was referenced. That sentence requires that all means of egress, or exits, shall be free of obstructions. The respondent considers the chairlift an obstruction.

4The appellant appealed the Inspection Order to the Fire Marshal on the grounds that the chairlift was not an obstruction and that it was needed because of his disability. The Fire Marshal referred the appeal directly to the Fire Safety Commission (“Commission”) pursuant to s. 25(4) of the FPPA.

5The owner was added as an added party at the case conference stage but chose not to participate in the hearing of the appeal.

ISSUES

6The issue to be determined is:

1. Is the chairlift an obstruction of the exit stairway such that there is a violation of Sentence 2.7.1.7.(1) of the OFC?

RESULT

7The Commission finds that the chair lift and rail is an obstruction of the exit stairway and must be removed.

EVIDENCE AND ANALYSIS

8The appellant bears the onus of proof in this appeal, meaning that the appellant is required to establish on a balance of probabilities that the chairlift is not a violation of the OFC. At the hearing, the respondent was asked by the Commission to present its evidence first. This does not alter the onus of proof on the appellant.

Appellant’s Evidence and Submissions

Appellant - Testimony regarding his Disability and that Chairlift is not an Obstruction

9The appellant’s position is that the chairlift is not an obstruction of the stairway and that it is necessary for his ability to enter and exit his unit. The appellant testified on his own behalf.

10The appellant testified that there are 17 steps in the stairway. The chairlift runs on a rail that is five inches off the floor and five to six inches off the wall. He agreed that the chair in the upright position juts out about 10” from the wall. He stated that he always keeps the chair seat in the upright position except when in use. In the down position, he agreed that it extends into the stairway approximately 20” from the wall.

11The appellant testified that he required the chairlift because he has a mobility disability and it is the only way for him to get up the stairs to his apartment. He testified to his mobility issues and produced a doctor’s note to support his evidence.

12The appellant stated that the chairlift does not make going up and down the stairs difficult. He felt strongly that the handrail, installed in the past couple years, on the other side of the stairway, has caused more issues than his chairlift because the handrail is at waist height.² He stated that he has seen other tenants carry groceries up the stairs, a couch, and bikes without issue, though they sometimes have to lift it over the handrail.

13Finally, the appellant testified that he recently required paramedics to assist him in getting him to a hospital and they used his chairlift to get him downstairs.

14When Inspector Jennifer Fredenburgh (“Fredenburgh”) testified, the appellant asked her in cross examination if the chairlift impeded her from walking up the stairs. She said it did not except at the top where she had to turn a bit to get by the chair in the upright position.

Appellant Submissions

15The appellant submitted that he believed that the chair lift should be allowed in light of his accessibility rights and because he was being discriminated against because he has a disability.

Respondent’s Evidence and Submissions

Fredenburgh – Testimony regarding the Inspection and the OFC

16Fredenburgh testified for the respondent. She described the building and in particular the measurements of the stairway. She stated that the stairway was 35 inches wide. The measurement from the handrail to the opposite wall was 32 inches and that the measurements from chair in the upright position to the handrail reduced this width to 22 inches.

17Fredenburgh testified that she considered the chairlift to reduce the stairway from its original designed width and therefore the chairlift was in violation of Sentence 2.7.1.7(1) of the OFC which requires that means of egress, or exit ways, be free from obstruction.

18Fredenburgh testified that she was not aware of any building permit issued for the installation of the chairlift and that it would be a building inspector who would be responsible for making sure the required exits widths described in the Ontario Building Code³ (“OBC”) were met.

Nuttall – Testimony regarding the OBC

19Bob Nuttall (“Nuttall”) also testified for the respondent. Nuttall is the Manager of Building Inspection Teams for the City of Hamilton.

20Nuttall was consulted regarding the inspections that took place of the Building. Nuttall did not visit the Building personally.

21With regard to a building permit, Nuttall agreed that normally a chairlift installation does not need a building permit when installed in a single family residence. In this case, the chairlift was installed in an exit stairway used by multiple units. If the Building was being built it would have required a permit for the chairlift installation but, in his opinion, no such permit would have been granted because the width of the stairway with the chairlift installed does not meet the minimums required in the OBC.

22Nuttall testified that Article 9.9.3.2, Div. B. of the OBC prescribes that exit widths must be at least 900 mm for stairs (approximately 35.4 inches). There is an allowance of a maximum of 100 mm (remaining width of stairs approximately 31.5 inches) for handrails and projections below handrails (including handrail supports and stair stringers) (Article 9.8.7.6(1) of the OBC) but no other obstructions into the stairwell are allowed. Article 9.9.5.5 of the OBC states that there shall be no obstructions to a means of egress.

23Nuttall agreed that no orders were issued under the OBC. He clarified that he did not want to issue an order that might interfere with the existing OFC Inspection Order process and this appeal.

24Nuttall was unaware if the OFC adopts the measurements found in the OBC.

Respondent’s Submissions

25The respondent submitted that the appellant had not submitted evidence to support that the Inspection Order should be amended or rescinded.

26The respondent submitted it was clear from the evidence that the chairlift was an obstruction under the OFC. Further, the respondent asserted that the OFC does not consider the gradient of an obstruction, there is either an obstruction or there is not and there is no ability to consider the significance or extent of the obstruction. Nevertheless, the respondent submitted that upright or down, the chair part of the chairlift was a significant obstruction. The respondent submitted that the test for determining an obstruction is not whether or not large objects, such as a couch, can be moved up and down the stairs during the regular course of business. In addition, there was the safety of other people in the Building to consider, not just the appellant. The means of egress, by means of this exit stairway, is for all of the tenants in the case of a fire or other emergency.

27With regard to the interaction between the OFC and the OBC, the respondent submitted that although the OFC does not specify the minimum width requirements of an exit stairway, those measurements are available in the OBC. The OFC permits fire inspectors to make assessments as to whether there is an obstruction based on a change to the original design of the Building. The fire inspectors assume that the Building was in compliance with the version of the OBC that was applicable at the time it was built. The respondent’s submit that any reduction of those minimum widths, other than the allowed handrail, is an obstruction under the OFC.

28In response to questioning from the panel, the respondent agreed that the Building was built in the 1950s and prior to the OBC, which was first passed in the late 1970s. The respondent agreed that it was not up to the Fire Department to ensure compliance with the OBC. The Fire Department could only determine if the means of egress were obstructed.

ANALYSIS – THE CHAIRLIFT IS AN OBSTRUCTION

29Based on the evidence submitted, the panel finds that appellant has not shown that the chairlift is not an obstruction under Article 2.7.1.7 of the OFC.

The Applicable Law and Regulations

30Article 2.7.1.7 (1) of the OFC states that “means of egress shall be maintained in good repair and free of obstructions.”

31The OFC is a regulation under the FPPA. An analysis of an OFC provision requires us to consider that part in the context of the purposes of the FPPA and with the objectives of the OFC in mind.

32Section 18 of the FPPA defines “fire safety” to include “safety from the risk that a fire, if started, would seriously endanger the health and safety of any person...” Fire safety in the event of a fire therefore includes not only the safety of the occupants of the Building but also the safety of firefighters who may be called upon to enter the Building, and those in nearby premises. The requirement that the means of egress must be free of obstruction must be considered in light of the definition of fire safety.

33Pursuant to section 19 of the FPPA, an inspector may enter the premises for the purposes of assessing fire safety, as was done here. Pursuant to section 21 of the FPPA, the inspector may, amongst other things, issue an inspection order that requires the recipient to make changes necessary for fire safety in the Building. Pursuant to s. 21(g) of the FPPA, the inspector may issue an inspection order that requires the recipient to remedy a contravention of the OFC. This includes ordering the removal of the chairlift if it is an obstruction of a means of egress.

34The OFC defines “means of egress” as “a continuous path of travel provided for the escape of persons from any point in a building…Means of egress includes both exits and access to exits.”

35Obstruction is not defined in the OFC, however, the Oxford English Dictionary defines an obstruction as “a thing that impedes or prevents passage; an obstacle or blockage.”’ Black’s Law Dictionary (sixth edition) defines an “obstruction” as “a hindrance, obstacle or barrier. Delay, impeding or hindering”.

36The OFC also contains objectives for each prescriptive requirement which must be considered in the interpretation of the regulation. In terms of safety, an objective of the OFC is to limit the probability that a person in or adjacent to the building or facility will be exposed to an unacceptable risk of injury. In relation to fire safety, an objective of the OFC is to limit the probability that persons may be delayed in or impeded from moving to a safe place during a fire. In relation to safety in use, an objective is to limit the probability of hazards including tripping, and of persons being delayed in or impeded from moving to a safe place during an emergency.

37With the law, the definitions, the OFC, and the OFC objectives in mind, the question is does the chairlift obstruct the means of egress? Put another way, in a fire, in a panic situation, with visibility potentially reduced by smoke, and where speed is of the essence, could the chairlift delay or impede occupants or firefighters from using the means of egress? The chairlift has a rail that extends five inches in at the base of the stairs; common sense dictates that this could easily be a tripping hazard. The chairlift has a chair that in the upright position reduces the width of the stairway to 22 inches from the chair to the handrail. The greatly reduced width of the stairway could prevent swift passage to the exit or impede fire fighters from attempting to access the second floor. The question posed must be answered in the affirmative – the chairlift is an obstruction of the means of egress.

38The OBC establishes that a newly built building would require an exit stairway to have a width of 900 mm (35.4 inches). While this Commission has no jurisdiction in regard to OBC violations, it is important to note that the OBC does provide minimum safety requirements for means of egress. Although the Building was built prior to the first OBC, the exit stairway here happens to comply and has a width of 35 inches. With a handrail, this width can be reduced, according to the OBC, to 31.4 inches. The installation of the chairlift reduced the stairway, at the point of the chair, to a width of 22 inches, 70% of the 31.4 inches minimum stairway with handrail. This is a very significant reduction. While the OBC is not binding on us, it is a persuasive authority regarding adequate stairway widths needed for safely exiting a building during a fire.

39It should be noted that the Commission did not consider evidence of the width of the stairway when the chair was in the down position as the Commission accepted the appellant’s evidence that the chair was only in the down position when in use. Secondly, the OFC provisions speak in the present tense and do not consider the future possibility of obstructions.

40We sympathize with the appellant and the potential effect this decision will have on his ability to continue to live in his apartment given his disability. However, the OFC requirements are intended to provide minimum safety standards in order to protect in the event of a fire. The ability to escape a fire is a significant safety issue. In this case, the means of egress, the stairway, is one of the two required exits serving two separate residential units housing several people. The means of egress must be unobstructed for the safety of all the occupants as well as any other persons including firefighters. Nevertheless, in order to provide some assistance to the appellant given his disability and the effect on his accommodation as a result of this decision, the compliance date of August 30, 2021, will be extended. This will provide the appellant some time to work out a possible alternative. Given that the appellant is a tenant, the compliance date of the Inspection Order is amended to provide the appellant additional time in the event he has to find new accommodations.

41In terms of an alternative, Subsection 1.2.2., Division A of the OFC provides two options for compliance. The first is to comply with the prescriptive requirement; in this case Article 2.7.1.7. The second is to use an alternative solution (“AS”) that meets the same objectives and functional statements. The appellant may review the requirements of pursuing an AS, as described in clause 1.2.2.1.(1)(b) and its references. The provision of this additional compliance option helps facilitate compliance with the OFC in other ways, including where there is an apparent conflict with operational needs such as accessibility, and the OFC.

42Unfortunately, the Commission was not presented with any jurisprudence which demonstrated that the provisions of the OFC could be interpreted differently because the appellant has a disability. Indeed, it is perhaps even more important that means of egress be free of obstruction as the appellant, who testified that he could not move up and down the stairs on his own, would need assistance to evacuate the Building. A minimum standard stairway width is crucial for that assistance and the safety of the other person, be it a family member or a fire fighter, who is called upon to assist him in an emergency. Further, there is no ability for this Commission to compromise the safety of other occupants who depend on that means of egress.

43The panel finds that the evidence of the appellant failed to show that the chairlift was not an obstruction during a fire. While the appellant testified that the chairlift did not obstruct residents from going up and down the stairs carrying objects and groceries, the appellant did not bring evidence to show that the reduced width of the hallway caused by the chairlift, would not impede the exit of the occupants during a fire.

44While the onus is on the appellant to establish that the Inspection Order should be revoked or amended, the evidence of the respondent could still be important and informative. Unfortunately, the evidence of the respondent fell short of the Commission’s expectations. The respondent relied heavily on the chairlift violating the minimum stairway widths found in the OBC. The respondent additionally relied on the argument that any deviation from the original building design would result in an obstruction regardless of the width of the egress. The panel did not accept the latter argument. With respect to the former argument, the panel notes that this Commission has jurisdiction over the FPPA, not violations of the OBC. The provisions of the OBC are relevant, and persuasive in the circumstances of this case. In the future, the Commission would benefit from evidence on how the chairlift impeded fire safety.

45Based on the evidence presented, this panel finds that the chairlift is an obstruction of the means of egress and therefore violations Sentence 2.7.1.7 (1) of the OFC and must be removed.

ORDER

46The appeal is denied.

47This Inspection Order is upheld except for the compliance date that is amended to December 1, 2022.

Footnotes

1. 1O. Reg. 213/07
2. 2The handrail is for general use. It is not part of the chairlift system nor is it a matter under appeal before the Commission.
3. 3O. Reg. 332/12