Mamycheva v. Huntsville/Lake of Bays Fire Department, 2023 ONFSC 21

Mamycheva v. Huntsville/Lake of Bays Fire Department, 2023 ONFSC 21

Citation: Mamycheva v. Huntsville/Lake of Bays Fire Department, 2023 ONFSC 21

RECONSIDERATION DECISION

Before:

Avril A. Farlam, Vice Chair

Date of Order:

07/06/2023

Commission File Number:

14287 FSC

Case Name:

Elena Mamycheva v. Huntsville/Lake of Bays Fire Department

Written Submissions by:

For the Applicant:

Elena Mamycheva, Self-represented

For the Respondent:

Grant Muchison, Fire Prevention Officer

OVERVIEW

1This request for reconsideration was filed by Elena Mamycheva (the “appellant”).

2It arises out of the Commission’s March 15, 2023, decision (the “Decision”) in which the Commission confirmed the Review Decision of the Fire Marshal issued on August 23, 2022 (the “Review Decision”) which amended the February 3, 2022, Inspection Order (the “Inspection Order”) issued by Inspector Vadlja of the Huntsville/Lake of Bays Fire Department (the “respondent”) but amended the compliance date to 30 days from the release of the Decision.

3The Inspection Order was issued to the appellant’s landlord and contained six items that were in violation of O. Reg. 213/07 (the “Fire Code”).

4The appellant appealed only one item, specifically, Item 4(a) of the Inspection Order which provided that “the basement service room/space shall not be used for tenant storage. Remove all combustible storage from the basement service room/space” (the “work”) by September 30, 2022.

5The Decision confirmed the work to be done but amended the compliance date to 30 days from the release of the Decision.

RESULT

6The appellant’s request for reconsideration is denied.

7However, on consent of both parties, the Decision is varied to order that the item in the Fire Marshal’s Review Decision under appeal now reads:

“No person shall accumulate combustible materials in the basement’s fuel-fired equipment service room. Remove all combustible storage from the basement service room/space by 30 days from the date of release of this Reconsideration Decision.”

CRITERIA FOR RECONSIDERATION

8The grounds for a request for reconsideration to be allowed are contained in Rule 18 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 appellant makes this request under Rule 18.2 (a) which is that the Commission acted outside its jurisdiction or violated the rules of procedural fairness, and under Rule 18.2 (b) which is that the Commission made an error of law or fact such that the Commission would likely have reached a different result had the error not been made.

POSITIONS OF THE PARTIES

9The appellant asks for a variation of the Decision, specifically, an “amendment of the order that does not discriminate between landlord and tenant storage”. In her reply submissions, the appellant confirms that the respondent’s response is “consistent with what we wrote in our request for reconsideration”.

10The respondent in its reconsideration submissions dated May 1, 2023, confirmed that it interprets the Fire Code, Div B, 2.4.1.1.(2)) as requiring that no combustible material is to be accumulated in the basement fuel-fired equipment service room by any person, regardless if that person is a tenant or owner of the properly. The respondent further submits that it does not disagree with the appellant’s request to amend Item 4 of the Inspection Order 22-015a issued on February 1, 2022, to clearly state that no person shall accumulate combustible materials in the basement’s fuel-fired equipment service room.

ANALYSIS

Rule 18.2(a): Commission acted outside its jurisdiction or violated the rules of procedural fairness/ Rule 18.2(b): Commission made an error of law or fact such that the Commission would likely have reached a different result had the error not been made

11I find that the Commission did not act outside its jurisdiction, violate the rules of procedural fairness or make an error of law or fact such that the Commission would likely have reached a different result had the error not been made.

12The appellant appealed only Item 4(a) of the Inspection Order which required the landlord to 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.

13The Fire Marshall upheld Item 4(a) but ordered the work to be done by September 30, 2022.

14The Decision upheld Item 4(a) but ordered the work to be done by 30 days from release of the Decision. The Commission did so after reviewing s. 21(g) of the Act, and upholding the application of s. 2.4.1.1.(2) of Division B of the Fire Code. In doing so, I find that the Commission did not act outside its jurisdiction, violate the rules of procedural fairness, or make an error of law of fact such that the Commission would likely have reached a different result had the error not been made. As a result, the appellant’s request for reconsideration is denied.

15The work required by the Fire Marshal’s Review Decision, upheld by the Commission, is removal of “all combustible storage from the basement service room/space”.

16However, in the preamble to the description of the work, the Fire Marshal referenced “tenant” storage.

17For clarification, both the appellant and the respondent seek to vary the Decision by removal of any reference to “tenant”.

18I find this request to be reasonable and appropriate in the circumstances.

19Rule 3.1 of the Rules allows the Commission to liberally interpret and apply the Rules in order to ensure efficient, proportional and timely resolution of the merits of a proceeding. Section 21.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22 (the “SPPA”), provides that a tribunal may review all or part of its own decision and may vary the decision. Pursuant to s. 21.2(1) of the SPPA, Rule 3.1 of the Rules and the consent of both parties, I vary the Decision as set out below.

CONCLUSION AND ORDER

20The appellant’s request for reconsideration is denied.

21On consent of both parties, the Decision is varied to order that the item in the Fire Marshal’s Review Decision under appeal now reads:

“No person shall accumulate combustible materials in the basement’s fuel-fired equipment service room. Remove all combustible storage from the basement service room/space by 30 days from the date of release of this Reconsideration Decision.”