Mamycheva v. Huntsville/Lake of Bays Fire Department, 2023 ONFSC 18

Tribunals Ontario Fire Safety Commission

Tribunaux décisionnels Ontario Commission de la sécurité-incendie

Citation: Mamycheva v. Huntsville/Lake of Bays Fire Department 2023 ONFSC 18

Date: 2023-03-15

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

Between:

Elena Mamycheva

Appellant

and

Huntsville/Lake of Bays Fire Department

Respondent

DECISION AND ORDER

Panel:

Avril A. Farlam, Vice-Chair

Peter Simmons, Member

Ronny Katz, Member

Appearances:

For the Appellant:

Elena Mamycheva, Self-Represented

For the Respondent:

Grant Murchison, Fire Prevention Officer

Paul Calleja, Deputy Fire Chief

Heard by teleconference: January 15, 2023

OVERVIEW

1On September 5, 2022, Elena Mamycheva, (the “appellant”), a tenant in a rental property at 124 Main St. West, Huntsville (the “Building”), appealed the Decision and Order FM-22025 of the Fire Marshal (the “Review Decision”) from August 23, 2023.

2The Review Decision ordered the removal of combustible materials from the basement of the Building and prohibited tenant storage in the basement service room of the Building. It amended an Inspection Order (the “Inspection Order”) issued by Inspector Eric Mike Vadlja (“Vadlja”) of the Huntsville/Lake of Bays Fire Department (the “respondent”) issued on February 3, 2022 pursuant to section 21(1)(g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 (“FPPA”).

3The Building is a 2-storey combustible construction building built in 1901. It contains 3 residential dwelling units, one of which is occupied by the appellant. The basement contains no units but is the location of the building’s gas-fired water heater and furnace, and wooden board, wall-mounted electrical panel.

4The Inspection Order contained six items that were in violation of O. Reg. 213/07 (the “Fire Code”) and was issued to the landlord’s representative (the “Landlord”). The appellant appealed only Item 4(a) of the Inspection Order. It required the landlord by March 4, 2023 to:

a. remove all combustible material/storage from the basement service area as required by sentence 2.4.1.1.(2) of Division B of the Fire Code.

ISSUES

5The issue in this appeal is whether sentence 2.4.1.1.(2) of Division B of the Fire Code applies.

RESULT

6For the reasons below the Commission confirms the Review Decision but amends the compliance date to 30 days from the date of release of this Order.

ANALYSIS AND LAW

Issue 1 – Can the basement of the Building be used for tenant storage?

7Inspections like the one carried out at the Building are done pursuant to the FPPA, which provides for an inspector who has carried out an inspection of a premises to order the owner, or occupant, to remedy any contravention of the Fire Code.¹

8The Fire Code says that combustible materials shall not be accumulated in part of an elevator shaft, ventilation shaft, means of egress, service room or service space unless the location, room or space is designed for those materials.²

Respondent Submissions

9Two sets of respondent photographs show an unfinished basement with exposed wooden structural members, and exposed steel posts. They also show the area to be sprinklered with no visible fire separations.

10The respondents’ photographic evidence also shows combustible materials scattered throughout the basement and, in some cases, within a few feet (less than one metre) of the fuel-fired furnace and water heater. Only the photos from

11February 1, 2022, were agreed by both parties as capturing accurately the space and the haphazard placement of items including miscellaneous combustible items close to the fuel-fired furnace and water heater.

12The respondent submitted that the basement is a service room because it is the location of the building’s services, specifically, the fuel-fired furnace, water heater, and electrical service panel. The respondent also submitted that the space was not designed for combustible material storage.

13The respondent’s witness, Fire Prevention Officer Murchison, testified that the accumulation of combustible materials introduces a risk to fire safety because they are situated close to fuel-fired appliances. He also submitted that the Fire Code is clear about combustible materials not being permitted in any part of a service room or service space unless the room or space is designed for those materials³.

Appellants Submissions

14The appellant submitted that there is ample space in the basement of the Building to allow for storage of items, and proposed that no combustible items be placed within 3 feet (approximately 1m) of the building services.

15The appellant submitted that that the terms ‘storage’ and ‘accumulate’ are different and used in various ways in the Fire Code. She suggested that because the Inspection Order mentions ‘storage’ and the Fire Code says ‘accumulate’ the respondent’s interpretation of sentence 2.4.1.1.(2) of Division B of the Fire Code is incorrect.

16The appellant argued that the Inspection Order does not distinguish between tenant and non-tenant, and because the basement may have been accessible to non-tenants she feels she is unfairly prevented from using the space to store items and objects.

ANALYSIS

Use of Basement for storage

17With the evidence and testimony provided, and having weighed the primary issues, the Commission finds that the basement of the Building is a service room as defined by the Fire Code as it is the location of the Building services including a fuel-fired furnace, water heater, and electrical panel.

18No evidence was provided to suggest the basement was ever intended for the storage of combustible materials and having established that the basement is a service room the Commission finds it is not a space to store or accumulate combustible materials.

Storage versus accumulate

19The Commission finds that despite being distinct words ‘storage’ and ‘accumulate’ are synonymous in this context. The issue in this matter is about combustible materials not being stored, accumulated, amassed, or otherwise kept, for any duration in a service room.

20Both parties acknowledged that the basement may have been accessible to persons who were not tenants. Tenant or not this kind of unrestricted access is a fire safety issue, and security concern since access is difficult to monitor or control. However, it is largely a tenancy matter and not relevant to this decision.

Issue Raised by Appellant that is Outside the Commission’s Jurisdiction

21In her submission the appellant suggested that the inspection may have been influenced by the Landlord who was present at the time of inspection, and that this constitutes a breach of a Landlord and Tenant Board Order issued February 2020. The appellant’s opinion and concerns about the conduct of the Landlord are outside the jurisdiction of the Commission, are not relevant, and are not considered in this decision.

CONCLUSION AND ORDER

22The Building basement is a service room, and was not designed or intended for the storage or accumulation of combustible materials.

23Pursuant to the powers of the Commission under s. 26(6) of the FPPA, the Commission confirms the Review Decision of the Fire Marshal issued on August 23, 2022 but amends the compliance date to 30 days from the date of release of this Order.

Footnotes

1. 1Fire Prevention and Protection Act, 1997, S.O., 1997, S.21 (g)
2. 2O.Reg. 213/07 (Fire Code) S. 2.4.1.1.(2) Combustible materials shall not be accumulated in any part of an elevator shaft, ventilation shaft, means of egress, service room or service space, unless the location, room or space is designed for those materials.
3. 3See footnote #2 above.