Whitby Fire and Emergency Services v. Holtfoster, 2023 ONFSC 19

FIRE SAFETY COMMISSION

Tribunals Ontario

COMMISSION DE LA SÉCURITÉ-INCENDIE

Tribunaux décisionnels Ontario

Citation: Whitby Fire and Emergency Services v Holtfoster, 2023 ONFSC 19

Date: 2023-04-21

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

Between:

Whitby Fire and Emergency Services

Appellant

and

Richard Holtfoster

Respondent

DECISION AND ORDER

PANEL: Susan Clarke, Vice-Chair Anxhela (Angela) Peco, Member

Peter Simmons, Member

APPEARANCES:

For the Appellant: Inspector Justin Walnicki

For the Respondent: Richard Holtfoster

Held by videoconference: February 14, 2023

OVERVIEW

1Inspector Justin Walnicki on behalf of Whitby Fire and Emergency Services (“appellant”) appeals the Fire Marshal’s Review Decision FM-22018 (“Review Decision”) dated November 25, 2022, which rescinded the Inspection Order served on Richard Holtfoster (“respondent”) on January 12, 2022.

2Inspector Walnicki inspected a building owned by the respondent and located at 218 Meadow Road in Whitby (“Building”) on November 18, 2021. The Building comprises two dwelling units, with the ground floor containing one residential unit occupied by the respondent, and the basement containing a separate residential unit constructed under a building permit in 2015.

3The Inspection Order was issued pursuant to clause 21(1)(f) of the Fire Protection and Prevention Act, 1997¹ (“FPPA”) and required the respondent to:

1. Install 20-minute fire-rated doors with self-closing devices between:

a) the shared main floor hallway and the shared laundry room;

b) the shared basement hallway and the basement bedroom.

2. Install 45-minute fire-rated doors with self-closing devices between:

a) the shared basement hallway and the storage closet underneath the staircase;

b) the shared basement hallway and the storage area near the bottom of the staircase;

c) the shared basement hallway and the storage room near the basement accessory apartment.

3. Install a hardwired interconnected smoke/strobe alarm in the bedroom located in the basement and accessed from the shared basement hallway.

4. Provide a 45-minute fire separation in the basement storage room near the bottom of the staircase by finishing the exposed ceiling using drywall, taping, and mudding.

5. Replace the hardwired combination smoke/carbon monoxide alarm in the shared basement hallway with a hardwired interconnected smoke/strobe/carbon monoxide alarm.

4Two-unit residential occupancies constructed after July 14, 1994 are not subject to the requirements of Section 9.8 of the Ontario Fire Code² (“OFC”). Nevertheless, the fire department can rely on the requirements of Section 9.8 for guidance when writing inspection orders on similar buildings pursuant to clause 21(1)(f) of the FPPA. Clause 21(1)(f) of the FPPA is often used when writing inspection orders for fire safety issues not specifically addressed in the OFC.

5As stated in the Inspection Order, the Inspector’s rationale for requiring fire separations (items 1, 2 and 4) was to reduce the risk of smoke and fire spreading beyond its point of origin. His rationale for requiring strobe alarms (items 3 and 5) was to reduce the risk of persons not being notified in a timely manner of the need to act during an emergency.

6In its review of items 1, 2 and 4, the Fire Marshal found that the Inspector had not demonstrated why fire separations were required in the main floor hallway, or between the basement hallway and the three storage areas. The Review Decision also stated there was insufficient evidence to establish that one of the basement areas was a bedroom, rather than a storage room, and that it required separation from the basement hallway.

7In its review of items 3 and 5, the Fire Marshal concluded that both strobe alarm requirements exceeded what was required in the OFC and the Ontario Building Code (“OBC”)³.

8The appellant asks the Fire Safety Commission (“Commission”) to rescind the Review Decision, effectively reinstating all items in the Inspection Order.

9The respondent asks the Commission to confirm the Review Decision, which rescinded all items in the Inspection Order.

10The respondent submitted floor plans of the Building, which indicate the following areas in the basement:

1. A storage closet beneath the basement stairs;

2. A storage area opposite the base of the basement stairs;

3. A storage room adjacent to the basement accessory apartment; and

4. A bedroom separate from the basement accessory apartment, but adjacent to it.

THE ISSUES

11Should the Commission confirm, amend or rescind the Review Decision or make such other order as the Commission deems appropriate?

12The Commission must decide the following sub-issues:

1. Are 20-minute fire rated doors with self-closing devices necessary for fire safety in the named locations?

2. Are 45-minute fire rated doors with self-closing devices necessary for fire safety in the named locations?

3. Is a hardwired interconnected smoke/strobe alarm necessary for fire safety in the basement bedroom? Is a hardwired combination smoke/strobe/carbon monoxide alarm necessary for fire safety in the shared basement hallway?

4. Is a 45-minute rated ceiling fire separation necessary for fire safety within the storage room near the bottom of the staircase?

RESULT

13The Commission finds as follows:

1. Twenty-minute fire rated doors with self-closing devices are necessary for fire safety between the main floor hallway (shared means of escape⁴) and the laundry room, and between the basement hallway (shared means of escape) and the basement area where bedroom furniture used to be stored.

2. Twenty-minute fire rated doors with self-closing devices are necessary for fire safety between the basement hallway (shared means of escape) and the three storage areas on that level. Compliance may also be achieved by using 45 mm solid core wood doors equipped with self-closing devices, installed in solid wood frames, or other options described in OFC Sentence 9.8.2.5.(2), Division B.

3. The area beneath the basement stairs must be enclosed with a 30-minute rated fire separation, to protect the stairs as a means of egress. Another option is to remove access to the space beneath the stairs, with 30-minute rated construction between the space and the basement hallway (shared means of escape).

4. Strobe alarms are not required either in the basement hallway (shared means of escape) or in the basement area where bedroom furniture used to be stored.

5. A 45-minute rated ceiling fire separation is required within the storage room near the bottom of the staircase.

EVIDENCE AND ANALYSIS

A. ISSUE 1 – Are 20-minute rated doors with self-closing devices necessary for fire safety:

a) Between the main floor hallway (shared means of escape) and the laundry room; and

b) Between the basement hallway (shared means of escape) and the basement area where bedroom furniture was stored?

13The Commission amends the Review Decision and finds that 20-minute rated doors equipped with self-closing devices are necessary for fire safety, for the reasons that follow.

Appellant’s Evidence and Submissions

14The appellant relied on OBC Sentence 9.10.9.14(4), Division B, which states that “dwelling units in a house shall be separated from each other and from common areas by a fire separation having a fire-resistance rating of not less than 45 minutes.”

15The appellant argued that a rated door in the laundry room would separate the laundry room from the main floor hallway (shared means of escape), which both the owner and the basement tenant use as their main exit. He stated there is an inherent risk with laundry rooms being a fire hazard and the rated door would protect the exit path.

16The appellant added that the rated door in the basement area where bedroom furniture was stored would separate that area from the shared basement hallway, which was the sole means of egress from the basement apartment. In cross-examination, the appellant acknowledged that there was an egress window in the basement apartment and therefore the shared basement hallway was not the sole exit. However, he still considered the basement hallway as the main intended exit and acknowledged that a fire separation would protect the escape path.

Respondent’s Evidence and Submissions

17The respondent argued that the only separation required in the Building was between the basement residential unit and his residential unit on the main floor. He also took issue with the basement area adjacent to the residential unit being characterized as a “bedroom” rather than a “storage room”. He testified that the bedroom furniture the Inspector observed in the area had been placed there for storage. He filed as evidence photographs showing additional storage in the area. According to the respondent, the area was not intended to be used as a bedroom and the furniture had since been removed (supported by photographs). He also stated that it was unlikely that objects stored in that area would pose a fire hazard.

Analysis

Fire Separation of the Means of Egress

18The Commission finds that both the laundry room on the main floor and the basement area where bedroom furniture used to be stored should be fire separated from the shared hallways to protect the means of escape and ensure it is not compromised by fire from any of the adjacent spaces.

19The appellant relied on OBC Sentence 9.10.9.14(4), Division B for this requirement. We do not accept that provision as the basis for this fire safety requirement because the provision only speaks to required fire separations between dwelling units and common areas, and does not reference “means of egress,” “means of escape,” or “public corridor”.

20Like the Fire Marshal, the Commission relies on Section 9.8 of the OFC, specifically article 9.8.3.3 for guidance for two-unit residential buildings. This article requires residential units to have direct access to at least one means of escape that may be shared if, among other things, “the means of escape is separated from the remainder of the building by a fire separation having a fire-resistance rating not less than 30 minutes.” The 30-minute rated fire separation is required in both locations. While the respondent testified that there was an egress window in the basement apartment, he provided no evidence to establish that the window met the requirements set out in sentence 9.8.3.4.(2) for windows that may serve as a second means of escape, nor evidence that it was maintained for ready escape.

21Continuing to rely on Section 9.8 of the OFC for guidance, the Commission notes that Article 9.8.2.5. requires openings in fire separations to be protected with closures, in this case doors, and equipped with self-closing devices. The Commission has considered this and the requirement in Article 9.10.13. of the 1990 Ontario Building Code, which requires a 20-minute fire protection for closures within 30-minute rated fire separations. The Commission will accept either 20-minute rated doors or 45 mm solid-core wood doors, provided they are also equipped with self-closing devices.

22The respondent’s position that the laundry room is not a shared space was not persuasive to the Commission as a rationale for not requiring fire separation because the requirement in OFC article 9.8.3.3 speaks to the separation of any space from the means of escape.

23The Commission amends the Review Decision. We confirm the need for 20-minute rated closures (doors) between the laundry room and the main floor hallway, and between the basement hallway and the basement area where bedroom furniture used to be stored but accept 45 mm solid core wood doors in lieu of rated doors, either one of which must also be equipped with self-closing devices.

24While we are satisfied that the room in the basement area is not currently being used as a bedroom, its current or future use does not affect the decision because the fire separation is required to protect the basement hallway as the shared means of escape.

B. ISSUE 2 – Are 45-minute rated fire doors with self-closing devices necessary for fire safety between:

a) the shared basement hallway and the storage closet underneath the staircase;

b) the shared basement hallway and the storage area near the bottom of the staircase;

c) the shared basement hallway and the storage room near the basement accessory apartment?

25The Commission amends the Review Decision for item 2 and requires 20-minute rated doors equipped with self-closing devices for the reasons that follow. We also order a new item, requiring that the underside of the stairs be fire-separated by 30-minute rated construction if the space beneath is used for storage.

Appellant’s Evidence and Submissions

26The appellant relied on OBC Sentence 9.10.9.14.(4), which requires at a minimum a 45-minute rated fire separation between dwelling units in a house to separate them from each other and from common areas.

27The appellant testified that neither the building permit, nor the drawings on which the permit was based, indicated that these basement areas would be storage rooms. He argued that fire separations between the storage rooms and the hallway would protect the means of egress.

Respondent’s Evidence and Submissions

28The respondent acknowledged that in addition to the approved permit drawings, he also constructed the following storage areas within the shared corridor without a building permit: the storage cupboard beneath the exit stairs; the storage room opposite the exit stairs, and the one storage room near the accessory residential unit.

29He denied that these storage areas were new, noting they were already in place by the time the building department conducted its final inspection and closed the permit. He acknowledged that he did not submit to the building department amended design drawings reflecting the changes.

Analysis

30The Commission finds that 30-minute rated fire separations are required between the basement hallway and the three storage areas to protect the basement hallway, which is the means of escape for the basement tenants. We rely on OFC Section 9.8 for guidance on this requirement, as it states that a shared means of escape be “separated from the remainder of the building by a fire separation having a fire-resistance rating not less than 30 minutes.”

31We also note that the Inspection Order did not order a fire separation of the storage closet beneath the stairs. The egress path includes the path from the basement residential unit to the main floor exit door, including the upper and lower means of escape. This means the stairs themselves must be protected from a fire that may originate beneath them should the area have storage. Relying on OFC Section 9.8 for guidance, the Commission orders the respondent to do the following:

1. Protect the area beneath the stairs with construction providing a 30-minute rated fire separation, or

2. Remove the door into the storage area and enclose the area such that storage beneath the stairs is not possible.

C. ISSUE 3 – Is a hard-wired interconnected smoke/strobe alarm necessary for fire safety in the basement area where bedroom furniture used to be stored? Is a hard-wired combination smoke/strobe/carbon monoxide alarm necessary for fire safety in the shared basement hallway?

32For the reasons that follow, the Commission confirms the Review Decision for items 3 and 5.

Appellant’s Evidence and Submissions

33The appellant relied on the approved building permit drawings for the requirement of a smoke alarm with a visual aid in the basement area he considered a “bedroom.” The drawings referenced OBC 9.10.19 and stated that the alarms should have a visual signaling component as per NFPA 72 (National Fire Protection Association published standard)⁵. The appellant also noted that other smoke alarms in the Building had a visual strobe signal, and he wanted all devices to be consistent. He also testified that strobe signals assist those who are hearing impaired, and that the area should be brought up to the same standard as the rest of the Building if it is intended to be used for sleeping.

Respondent’s Evidence and Submissions

34The respondent reiterated that the area the appellant describes as a bedroom is a storage room, and that it was unlikely that a fire safety issue would arise there.

Analysis

35The Appellant has not provided sufficient justification that a visual signaling component is necessary for fire safety in the basement area where bedroom furniture used to be stored. As stated earlier, the Commission is satisfied that the room is not currently being used as a bedroom.

36The Commission is not persuaded by the appellant’s submission that a combination smoke/strobe/carbon monoxide alarm is necessary for fire safety. His rationale was not based on an assessment of fire safety, but rather on the need to ensure consistency with the design within the residential units. Seeking guidance from the wording of OFC Section 9.8, we find that visual signaling is not required.

37The Commission also relied on the appellant’s evidence that the lack of visual signaling would not prevent any of the devices from working as required. In other words, the lack of visual signaling on some devices did not make the devices incompatible with each other or render others inoperable. There was therefore no technical requirement for the devices to be identical throughout the Building.

38The Commission confirms items 3 and 5 of the Review Decision, which rescinded items 3 and 5 of the Inspection Order, because it was not established that these were necessary for fire safety.

D. ISSUE 4 – Is a 45-minute rated ceiling fire separation required within the storage room near the bottom of the stairs?

39For the reasons that follow, the Commission amends the Review Decision for item 4 and finds that a fire separation is necessary for fire safety.

40Building photos in evidence showed that the basement storage area at the base of the stairs had an unfinished ceiling, and therefore no rated fire separation. Building drawings (annotated by the appellant) also showed that this storage area was located directly below the main floor laundry room.

Appellant’s Submissions

41The appellant relied on OBC Sentence 9.10.9.14.(4) as the basis for this requirement. That provision requires, at a minimum, a 45-minute rated fire separation between dwelling units in a house to separate them from each other and from common areas.

Respondent’s Evidence and Submissions

42The respondent testified that the basement area across from the staircase was a service room with an exposed ceiling. While he recognized the risk of fire in this service room given the presence of a hot water heater that was a gas-fired appliance, he took issue with the requirement to drywall the space. He expressed concern that the pipes in the ceiling space would make it difficult to drywall and suggested installing sprinkler heads as an alternative.

Analysis

43The Commission amends the Review Decision, requiring a 30-minute rated ceiling fire separation between the main floor and the basement, again relying on Section 9.8 of the OFC for guidance. Article 9.8.2.2. requires residential units to be fire separated from other rooms and areas by a 30-minute rated fire separation. Article 9.8.2.3. permits alternative compliance for a room containing a fuel-fired appliance, accepting the room to be sprinklered with a minimum average density of 6.5 L/min/m² over the room area.

ORDER

44The Commission orders as follows:

1. The respondent is required to install 20-minute rated fire doors equipped with self-closing devices between:

a) The main floor hallway and the laundry room; and

b) The basement hallway and the room where bedroom furniture used to be stored.

An acceptable compliance option to a 20-minute rated door may be one of the options described in OFC Article 9.8.2.5, Division B.

2. The respondent is required to install 20-minute rated fire doors equipped with self-closing devices between:

a) the basement hallway and the storage closet underneath the staircase;

b) the shared basement hallway and the storage area near the bottom of the staircase;

c) the shared basement hallway and the storage room near the basement residential unit.

An acceptable compliance option to a 20-minute rated door may be one of the options described in OFC Article 9.8.2.5., Division B.

3. The respondent is required to protect the area beneath the stairs with a 30-minute rated fire separation; or remove the door into the storage area and separate the space beneath the stairs from the adjacent hallway with a 30-minute rated fire separation.

4. The respondent is required to construct a 30-minute rated fire separation above the service room (called a storage room in the Inspection Order). An acceptable compliance option to the rated fire separation is to sprinkler the room, providing a minimum average density of 6.5 L/min/m² over the room area.

45The respondent must comply with the above items within six months from the date of release of this decision. The time for compliance is based on the need to provide sufficient time for obtaining design drawings and submitting them for a building permit, securing a contractor, completing construction and final inspections by both building and fire inspectors.

Footnotes

1. 1S.O. 1997, Ch. 4
2. 2O Reg 213/07.
3. 3O Reg 332/12.
4. 4The Commission considered the main floor hallway and the basement hallway to be “shared means of escape,” as that term is used in Section 9.8 of the OFC. These areas are considered “shared means of escape” as these are the paths through which the owner and the basement tenant would exit in the event of a fire.
5. 5The NFPA is an organization that publishes codes and standards for fire safety, some of which are incorporated by reference/adopted in the OFC.```