FIRE SAFETY COMMISSION

Tribunals Ontario

COMMISSION DE LA SÉCURITÉ-INCENDIE

Tribunaux décisionnels Ontario

Citation: 2416300 Ontario Inc. v. Cornwall Fire Services, 2023 ONFSC 23

Date: 2023-08-02

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

Between:

2416300 Ontario Inc. Appellant

And

Cornwall Fire Services Respondent

DECISION AND ORDER

PANEL: Susan Clarke, Presiding Chair Claudine Wilson, Member Rocco Iamello, Member

APPEARANCES:

For the Appellant: Daniel Orr, Director of 2416300 Ontario Inc. Suzanne Villeneuve, Assistant to Daniel Orr and Resident (Appeal 14750/FSC) Tyler Taillon, Building Manager and Resident (Appeal 14857/FSC)

For the Respondent: Emma Blanchard, Counsel

Held by videoconference: June 5, 21 and 28, 2023

Appellants: Daniel Orr (14749/FSC) Suzanne Villeneuve (14750/FSC) Shirley Heagle (14751/FSC) Raymond Pilon (14754/FSC) Colleen Primrose (14756/FSC) Danielle Lavoie (14759/FSC) Andre Theriault (14760/FSC) Rosalie Armstrong (14761/FSC) Claude Pacquette (14763/FSC) River Waters (14764/FSC) Lynda Thompson (14767/FSC) Bruce Jeeves (14769/FSC) Mark Brunet (14776/FSC) Rheal Rochon (14777/FSC) Bruce Jeeves (14781/FSC) Thomas Roter (14782/FSC) Albert Gallagher (14783/FSC) Flora Orr (14784/FSC) Kevin Hodgins (14785/FSC) Denise Leduc (14856/FSC) Tyler Taillon (14857/FSC)

OVERVIEW

1Daniel Orr, the primary appellant, represents 2416300 Ontario Inc. who owns the building complex located at 510/520 Second Street East, in Cornwall. The building complex was formerly operated as the Cornwall Hospital, and comprises the “Care Centre”, the Clinic, and the Pump House. The Care Centre (“Building”) is believed by Cornwall Fire Services, the respondent, to be a residential occupancy with sleeping accommodation for approximately 45 residents with partial assembly occupancy. The Building is of non-combustible construction and is equipped with a standpipe and hose system, a fire alarm system, and is partially sprinklered.

2On March 10, 2023, Inspector Frank McNeely of Cornwall Fire Services conducted an inspection of the Building. Inspector McNeely issued Inspection Order 2023-003 (“Order”) pursuant to clause 21(1)(f) of the Fire Protection and Prevention Act, 1997¹ (“FPPA”) on March 23, 2023, to 2416300 Ontario Inc., and its two Directors Daniel Orr and Matthew Cinnamon.

3The Order required the following:

1. Work be undertaken in accordance with CAN/ULC-S524, "Standard for the Installation of Fire Alarm Systems" such that the building is made to have an operational fire alarm system installed.
2. Persons involved with performing associated work on the fire alarm system in the building shall have successfully completed a course or program acceptable to the Fire Marshal or be supervised by a person who has successfully completed a course or program acceptable to the Fire Marshal.

4As stated in the Order, the Inspector’s rationale for issuing the Order was that the fire alarm system was not maintained in operating condition and that the fire alarm control panel located on the main floor:

1. Was not communicating with the third floor transponder;
2. Could not be repaired due to its age;
3. Is no longer supported by the manufacturer who provides replacement components for the model, thus requiring the panel to be replaced;
4. The lack of an operational fire alarm system increases the risk of injury to occupants who may not receive timely notification of the need to move to a safe location in the event of a fire emergency.

5On March 23, 2023, Inspector McNeely notified the appellant that he had been authorized by the Fire Marshal to close the Building pursuant to clause 21(2)(b) of the FPPA, for the reasons noted in the Order, stating that it was to remain closed until such time as the corrective actions specified in the Order were completed. The occupants of the Building were removed from the Building on March 24, 2023, by the respondent and temporary accommodation was arranged for them.

6The appellant requested a Fire Marshal Review of the Order and the closure of the Building pursuant to s. 25(1) of the FPPA. An additional twenty people, for the most part residents of the building, requested Fire Marshal Reviews of the same matters. The Fire Marshal referred these to the Fire Safety Commission (“Commission”) pursuant to clause 25(4)(a) of the FPPA.

7The Ontario Superior Court of Justice issued an order on March 31, 2023, granting a motion made by the respondent to enforce closure of the Building until the issue regarding the Order had been resolved by the Commission. Accordingly, the Commission has no jurisdiction to hear the appeal of the closure of the Building.

8On the remaining issue, the appellants ask the Commission to rescind the Order on the basis that the fire alarm system is functioning and does not need to be replaced. The respondent asks the Commission to confirm the Order, on the basis that the fire alarm system is not functioning as it is intended and that the fire alarm control panel cannot be repaired.

PRELIMINARY and OTHER ISSUES

Hearing Scheduling

9The hearing was rescheduled twice. The first time was due to the availability of the key parties (Orr and the respondent) changed in the period leading up to the hearing; new hearing dates were set for June 5 and 6, 2023. The hearing convened on June 5, 2023, but was adjourned because of disclosure issues.

10The first disclosure issue was that the respondent provided disclosure to the appellants (Orr and Villeneuve) in a format that could not be accessed by them. They were provided a printed copy on June 1, 2023, but said they had been unable to fully review the materials before the hearing.

11The second disclosure issue was that while the appellants (Orr and Villeneuve) provided Will Says and Affidavits to the Commission, they failed to provide them to the respondent. The appellants also submitted that because they were denied access to the Building due to its closure, they were unable to provide additional disclosure. This was disputed by the respondent.

12The hearing was rescheduled to June 21 and 28, 2023 to give the parties time to address the disclosure issues, and marked peremptory, meaning no further adjournments would be considered.

Appellant Participation and Communication

13Twenty-one appeals were received by the Commission, and a case conference was held on April 3, 2023, where eleven of the appellants attended. A second case conference was held on April 17, 2023, with only Mr. Orr and Ms. Villeneuve in attendance, in order to provide them notice that the Commission had no jurisdiction regarding the appeal of the Building closure following the Superior Court decision. Copies of the Case Conference Reports and Orders were sent to all twenty-one appellants. Included in this were requirements for disclosure.

14The only appellants who provided disclosure to the respondents were Mr. Orr and Ms. Villeneuve, in the form of Will Says and Affidavits, which included several of the appellants as their witnesses. Despite being provided additional time and access to the Building, Orr and Villeneuve did not avail themselves of the opportunity to provide additional disclosure. While they stated in the hearing that the Fire Chief denied them access, they did not advise the Commission of this denial until closing arguments on June 28, 2023.

15The respondent’s counsel advised the Commission that during the period following the June 5, 2023, hearing, the appellants failed to contact the respondent to make arrangements to access the Building as agreed to at the hearing on June 5, 2023. The respondent advised that attempts to reach the appellants by email were unsuccessful as the email addresses for Orr and Villeneuve had apparently been discontinued. The Commission was also unsuccessful in reaching the appellants (Orr and Villeneuve), in sending Notices of Hearing (NOH)², For this reason, the hearing proceeded on June 21, 2023, without Orr and Villeneuve, however Mr. Tyler Taillon (one of the appellants, and also the Building Manager) was present. Another appellant, Andre Theriault, who had confirmed his intent to attend, did not attend. Orr and Villeneuve attended together later in the morning stating that they never received the NOH.

16Throughout both case conferences, Ms. Villeneuve advised that she was representing many of the appellants. However, as no Declaration of Representative was ever filed, she was advised that the Commission could not accept her claim that she represented the other appellants. This was documented in the Case Conference Report and Order dated May 18, 2023, copies of which were provided to every appellant.

17Based on information provided by Mr. Orr and Ms. Villeneuve, many of the appellants used Ms. Villeneuve’s computer to access their emails before the building closure. It is possible that some may not have received Notices of either case conferences or the hearings. For this reason, their appeals were not dismissed pursuant to Rule 3.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (Rules) when they did not attend the case conferences. It was noted that their grounds of appeal were very similar to that of Mr. Orr and Ms. Villeneuve, and primarily focused on the Building closure. The appeals all stressed that the building fire alarm system was in working condition.

18Prior to the second scheduled hearing date, the Commission e-mailed all the appellants asking for confirmation of attendance. Only two of the appellants, Taillon and Theriault, responded. As none of the other appellants (other than Orr and Villeneuve who continued with their appeal) communicated with the Commission their desire to withdraw their appeals, the Commission accepts that the matters were consolidated and that evidence from individual appellants who wanted to present evidence would be considered.

Evidence

19Throughout the hearing, evidence was heard on a number of different topics, which the panel determined had no bearing on the issue before it³, including:

1. Occupancy type⁴;
2. Ontario Fire Code (OFC) contraventions⁵;
3. Exemption in the OFC for interconnected smoke alarm system⁶;
4. Other Inspection Orders issued;
5. Complaints regarding the conduct of Inspector McNeely and Fire Chief Stephenson, and City of Cornwall Council⁷;
6. Complaints regarding the appeals process; and
7. Complaints regarding the Closure Order, and how it is being handled by the fire department.

Expert Witness for the Respondent

20On June 21, 2023, the respondent called Paul Latreille (“Latreille”) as an expert witness. After hearing evidence related to his qualifications, and having no objection from the appellant, Latreille was qualified as an expert on fire alarm systems for the purposes of the hearing.

21In Ms. Villeneuve’s written Closing Submissions, she submitted that expert witness Latreille’s testimony should be excluded because it did not meet the threshold requirements for admissibility, citing White Burgess,⁸ Mohan,⁹ and Abbey.¹⁰

22Ms. Villeneuve submitted that Latreille was not impartial or independent in that he relied on hearsay and documents provided by the respondent. She further submitted that Latreille did not consult with the appellant or request documents from them.

23The panel agrees with the respondent, that Latreille was not challenged on his expertise or credentials by the appellant when being qualified by the Commission as an expert witness for the respondent

24The panel also agrees with the respondent that Latreille’s opinions were based on his review of documents including the annual fire alarm inspection reports undertaken by certified technicians commissioned by the Building owner, a review of strip printer readouts provided by the appellant’s witness Mr. Tyler Taillon, and a letter written by Underwriter Laboratories’ Canada regarding access permissions of the fire alarm control panel. Further, Latreille’s opinions were formed from his visual observations of the fire alarm system, his knowledge of fire alarm systems, and his research which included contacting the company who manufactures the Simplex series of fire alarm systems.

25While Latreille did not consult with Orr or any of the other appellants, nor request documents from him, the Commission does not agree with the appellant that that was his role. If the appellant believed that there was information that should come to the Commission’s attention, it was its responsibility to call its own expert witness.

26The respondent stated that in Burgess, the “acid test [for impartiality] is whether the expert’s opinion would not change regardless of which party retained him”. The Commission agrees that Latreille’s evidence regarding the fire alarm system would not have changed regardless of who retained him. The evidence presented by Latreille regarding the condition of the fire alarm system, and his research findings, are all factual. His opinion evidence, that the fire alarm system needs to be replaced, was based on the factual evidence. The appellant provided no evidence to persuade the Commission that Latreille was biased simply because he was retained by the respondent.

27Finally, the appellants had copies of Latreille’s Will Say well in advance of the hearing. At no point in the hearing did Orr or Villeneuve object that Latreille had introduced testimony that did not adhere to the Will Say. Further, Rule 10.4 of the Rules provides for a party to challenge an expert’s qualifications, report or witness statement in advance of the hearing. In this hearing, the appellant did not follow this procedure.

28On this basis the Commission does not exclude Latreille’s evidence regarding the fire alarm system, nor attribute less weight to it.

ISSUES IN DISPUTE

29The Commission must decide whether to confirm, amend or rescind the Order or make such other order that it deems appropriate. In order to make that determination, the Commission must also decide the following issues raised by the parties:

1. Is the fire alarm system functioning as it is intended to?
2. Can the fire alarm control panel be repaired?
3. What is the effect of having a non-certified technician work on the fire alarm control panel? Did it violate the access restrictions set by Underwriters’ Laboratories of Canada when Orr engaged a computer programmer to work on the panel instead of a certified technician?
4. Does the fire alarm system need to be replaced?

RESULT

30The Commission finds that:

1. The fire alarm system is not functioning as it is intended to;
2. The fire alarm control panel cannot be repaired;
3. The computer programmer is not a certified fire alarm technician and was not supervised by a certified fire alarm technician. The effect of having someone other than a certified technician work on the fire alarm control panel is that it is a contravention of the OFC. The Commission also finds that the access restrictions set by ULC were violated by this, voiding the ULC listing;
4. If the fire alarm system cannot be made operational, it will need to be replaced.

31The Commission amends the Order as follows:

Pursuant to clause 21(1)( g) of the FPPA:

1. The building owner must undertake work to ensure that the building has an operational fire alarm system, by complying with the following Fire Code¹¹ (OFC) requirements:

Sentence 1.1.1.2.(3) – Any appliance, device or component of a device that does not operate or appear to operate as intended when checked, inspected or tested as required by this Code shall be repaired or replaced if the failure or malfunctioning of the appliance, device or component would adversely affect fire or life safety.

Article 6.3.1.4.– Fire alarm and voice communication systems shall be maintained in operating condition.

Article 6.3.1.8. – Repair, replacement, and alterations of fire alarm system components shall be in accordance with CAN/ULC-S524, “Standard for the Installation of Fire Alarm Systems.”

2. Any persons performing work on the fire alarm system are required to be appropriately qualified, by complying with the following Fire Code requirements:

Sentence 6.3.2.1.(1), The owner shall ensure that any person performing the annual tests or annual inspections required by this Subsection for fire alarm systems, or performing the repairs, replacements or alterations of fire alarm systems referred to in Article 6.3.1.8. is in compliance with the requirements of

(a) Clause 1.2.1.2.(1)(a) of Division C, or

(b) Sentence 1.2.1.2.(2) of Division C

Clause 1.2.1.2.(1)(a), Division C - A person who performs the work described in Article 1.2.1.1.¹² must have successfully completed a program or course acceptable to the Fire Marshal.

Sentence 1.2.1.2.(2), Division C – Despite Sentence (1), a person who has not successfully completed the required program or course may perform the work described in clause (1)(c) provided that

(a) The work is done under the supervision of a person who has successfully completed a program or course required by clause (1)(a),

(b) No more than two persons work under the supervision of the person referred to in clause (a) at the same time, and

(c) The supervision is provided at the work site.

32The Commission amends the compliance date to six months from the release of this decision.

ANALYSIS AND LAW

33The Commission considered the affidavits and oral testimony received from Daniel Orr (Orr), his assistant Suzanne Villeneuve (Villeneuve), his building manager Tyler Taillon (Taillon), and his computer programmer Dave Beaudette (Beaudette). The Commission also considered the oral testimony received from Inspector Frank McNeely (McNeely) and expert witness Paul Latreille (Latreille), and documentary evidence submitted by the respondent, including photos of the buildings, Inspection Order 2023-003, schematic diagram of a typical fire alarm system, Product End of Life notification for the Simplex 2120 fire alarm control panel from Johnson Controls (owners of the Simplex fire alarm control panel) dated November 22, 2022, Certification Bulletin No. 2003-05 (dated May 2003) from Underwriters’ Laboratories of Canada regarding three levels of access to field programmable fire alarm control units identified by CAN/ULC-S527-99, Annual Inspection Reports (2021, 2023), photos (May 1, 2023) of: printout from fire alarm control panel showing areas of concern, graphic annunciator, panel instructions, Simplex 2120 transponder on third floor, deficient fire detection devices, water damaged electromagnetic door lock power supply, and numerous (undated) strip printouts showing areas of concern with the operation of the fire alarm system. The appellants did not submit any documentary evidence.

ISSUE 1 – Is the fire alarm functioning as it is intended?

34The Commission finds that the fire alarm system is not functioning as it is intended to, for the reasons that follow.

35Item 1 of the Order requires work to be done to ensure the fire alarm system is operational in accordance with CAN/ULC¹³-S524, "Standard for the Installation of Fire Alarm Systems." This is consistent with the following requirements in the Fire Code (Division B):

Sentence 1.1.1.2.(3) – Any appliance, device or component of a device that does not operate or appear to operate as intended when checked, inspected, or tested as required by this Code shall be repaired or replaced if the failure or malfunctioning of the appliance, device or component would adversely affect fire or life safety.

Article 6.3.1.4., Division B – Fire alarm and voice communication systems shall be maintained in operating condition.

Article 6.3.1.8. – Repair, replacement, and alterations of fire alarm system components shall be in accordance with CAN/ULC-S524, “Standard for the Installation of Fire Alarm Systems.”

36In summary, the OFC requirements direct that an owner is responsible to ensure that inspection and testing of the fire alarm system is undertaken to ensure that it is working as intended. Where it is determined that any element does not operate as intended, it must be repaired or replaced in accordance with the CAN/ULC-S524 standard.

37The respondent’s expert witness, Latreille, provided a schematic diagram of a typical fire alarm system and its key components. The fire alarm system in the Building includes, but may not be limited to, the following components:

1. The Fire Alarm Control Panel, main floor;
2. Annunciator (graphics panel);
3. The Transponder, third floor;
4. Smoke detectors and heat detectors;
5. Manual pull stations; and
6. Signalling circuits (fire alarm bells).

38Latreille testified that the basic purpose of a fire alarm system is to detect a fire condition and warn occupants of a fire emergency by initiation of the audible/visual signalling devices (e.g., fire alarm bells) so that the occupants will then take appropriate action. A fire alarm system is also required to do other things such as integrate with building systems that have life-safety functions, including the control of elevators, shut down re-circulating fans, release electromagnetic door locks, close fire doors, monitor the generator status and control mechanical smoke control systems.

39Latreille testified that:

1. He reviewed the documents provided to him by the respondent and conducted a site visit on May 1, 2023. He did not test the fire alarm system. He obtained the strip printer from the fire alarm control panel, which included various messages pointing to performance issues¹⁴ with the fire alarm system. He contacted the manufacturer of the fire alarm control panel, and Underwriters Laboratories’ of Canada regarding access levels for the fire alarm control panel.
2. The building complex is comprised of three buildings, but as they are all physically connected, the fire alarm system must serve them all as required by Regulation.¹⁵ This means that all the fire alarm devices in all three buildings must be tested and maintained in operating condition. Currently devices in the Clinic building have not been inspected.

The Simplex 2120 fire alarm control panel

3. The fire alarm control panel is a “Simplex 2120” model, introduced around 1981, initially in hospitals. It is one of the first computer-driven fire alarm systems with programming residing through erasable memory.
4. The Simplex 2120 system and replacement parts were discontinued by the manufacturer in 1992. Local distributors would only have in-stock items. An “End of Life” document was issued in November 2022 for the fire alarm control panel, stating that hardware, firmware, and software updates will no longer be provided. It advised that repair parts will not be available, meaning that a facility could be “left without fire detection and that could disrupt the facilities’ operation.”

40While the appellants’ position is that the system is working, their evidence of this is that:

1. The fire alarm control panel showing errors indicates that it is working.
2. The Clinic building does not need to be inspected because it is unoccupied.
3. The deficient fire detectors are only about 2% of more than 1000 detectors that are working.
4. The ground fault was located and repaired, and the fire alarm control panel is now working.

41We accept that the ground fault in the fire alarm control panel may have been repaired, and the error messages cleared. Latreille’s photo of the panel on May 1, 2023 shows a green light, indicating “all clear.” We do not accept the appellant’s remaining arguments. Errors are an indication that the fire alarm is not working properly. Where the buildings are physically connected, the fire alarm system must serve them all, meaning that all fire devices are to be inspected and repaired or replaced if not working. OFC Article 6.9.1.1. specifically requires fire protection equipment and life safety systems be maintained unless approved by the Chief Fire Official; the intent is that this applies to vacant buildings.

42In making our finding, we prefer the evidence of the respondent’s two witnesses, namely that:

1. The fire alarm system is not fully functional because the system was “powered down”, erasing the memory (RAM). The computer program controlling the sequence for fire alarm operations is lost. The only way to regain this is to bring in a backup copy, or to have Simplex factory technicians reprogram the sequencing, which they are no longer permitted to do. This means that annual fire alarm inspections can not determine if the fire alarm system is operating as designed.
2. There is a communication error between the third floor transponder and the fire alarm control panel. The third floor is where most of the residential rooms are located.
3. There are a number of heat and smoke detectors with deficiencies: they are too old (40 years in many cases), some are water damaged, and some are installed incorrectly. This creates a potential for delayed response of fire detectors of a fire emergency.
4. The graphics panel is not working, meaning that LED indicators for fire alarm zones are not working. The impact is that responding firefighters may not be able to find the location of an alarm using the graphics panel and would need to look at the fire alarm control panel printout and scroll through line items to discover the alarm location, delaying response to a fire.
5. There are several ground faults in the fire alarm control panel, which are difficult to locate and therefore to repair. This can impact the operation of the fire alarm control panel.
6. The fire alarm system signals silence automatically after 2 or 3 minutes, which is contrary in a 2 stage fire alarm system, which may affect occupant evacuation.
7. Annual fire alarm testing in 2021 identified many issues, which have not been resolved in 2023, and the testing was not complete as devices in the Clinic building and elevators were not accessed.

ISSUE 2 – Can the fire alarm control panel be repaired?

43The Commission finds that the fire alarm control panel cannot be repaired for the reasons that follow.

44The appellant’s position is that the fire alarm control panel is working, as evidenced by the green all clear light on the panel. Orr argued that he has a copy of the Simplex 2120 manual and replacement parts for the system. Orr stated that Tyco, who is the manufacturer, says they weren’t supporting the panel because their technician was on leave. He further stated that there are American companies with Tyco certification who would be willing to work on the fire alarm control panel.

45The respondent’s position is that the fire alarm control panel cannot be repaired or made functional for two reasons. First, Latreille contacted the manufacturer, for the End of Life bulletin, and had conversations with senior fire alarm technicians at Simplex; parts are no longer available from the manufacturer, and technicians are not permitted to service the panel. Secondly, because the fire alarm control panel lost its programmed memory, the only way to recreate the sequence of operations is to attain a backup copy, or to have Simplex factory technicians reprogram the sequencing, which they are no longer permitted to do. Latreille also testified that the system cannot be maintained to the CAN/ULC-S524 standard as required by the OFC and needs to be replaced.

46The Commission does not accept Mr. Orr’s claims, as he provided no evidence to support them. What is most relevant to the panel is the Product End of Life bulletin for the Simplex 2120 fire alarm control panel released in November 2022, in which Johnson Controls states that hardware, firmware and software will not be provided. The last date for ordering these was in 1992, and the last date for service or support was October 1, 2021. The manufacturer stated that without repair parts, a facility could be left without fire alarm detection.

ISSUE 3 – What is the effect of having a non-certified technician work on the fire alarm control panel? Did it violate the access restrictions set by Underwriters’ Laboratories of Canada when Orr engaged a computer programmer to work on the panel instead of a certified technician?

47The Commission finds that the computer programmer is not a certified fire alarm technician and was not supervised by a certified fire alarm technician. The effect of having someone other than a certified technician work on the fire alarm control panel is that it is a contravention of the OFC. The Commission also finds that the access restrictions set by ULC were violated by this, voiding the ULC listing.

Certified Fire Alarm Technician required to repair a fire alarm control panel

48Item 2 of the Order requires that anyone working on the fire alarm system is qualified or supervised by a qualified person. This is consistent with the following OFC requirements:

Sentence 6.3.2.1.(1), Division B states that the owner shall ensure that any person performing annual tests or annual inspections for fire alarm systems or performing repairs, replacements or alterations of fire alarm systems referred to in Article 6.3.1.8. complies with the requirements of:

(a) Clause 1.2.1.2.(1)(a) of Division C, or

(b) Sentence 1.2.1.2.(2) of Division C

Article 1.2.1.2., Division C states that a person who performs annual tests or annual inspections of fire alarm systems, and a person who repairs, replaces, or alters components of a fire alarm system must meet the qualifications described in clause (1)(a), otherwise they must be supervised at the work site by a person who has the qualifications.

49Latreille testified that because Beaudette was a computer programmer and not a certified fire alarm technician and was not supervised by one who was qualified to work on the fire alarm control panel programming, and that when he worked on the fire alarm control panel (or repaired it, as Orr stated in his grounds of appeal), he contravened OFC Sentence 6.3.2.1., Div. B.

Non-authorized third level access of the fire alarm control panel voids the ULC listing

50Latreille referenced ULC Certification Bulletin No. 2003-05 (Bulletin) which states that in a ULC-listed programmable control unit, the functional operation is governed by the program that is proprietary to the equipment manufacturer or their authorized representative. It provides 3 levels of access; the building owner has rights to only the first two levels which appear to be manual controls from reading the Bulletin description. Latreille testified that the Simplex 2120 does not have the second level because the fire alarm detection devices aren’t addressable. He testified that the third level is the “full program mode” which, if used by anyone other than authorized individuals, constitutes a possible hazard and “voids the ULC label(listing?)”.

51The issue is whether Beaudette accessed the third level of the fire alarm control panel when he connected the laptop computer to it. The respondent says he did, while the appellant says he did not.

52Orr testified that:

1. He hired Beaudette to determine why the main panel couldn’t communicate to the ancillary devices and to help him get the operational commands. Operational commands were added to turn the missing transponders back on.
2. Beaudette rectified the RAM loss issue by typing in a command on the panel keyboard and not on the computer; there is no evidence that Beaudette touched the core programming.

53Beaudette testified that he did not access any core programming of the fire alarm control panel because this is stored on chips in the unit and specialized equipment is needed to access it. He testified that he typed in commands asking questions to figure out what caused the system abnormalities.

54Latreille testified that:

1. Beaudette worked on the operational commands, which is the only program in the fire alarm control panel, and that this falls under the third level of access noted in the Bulletin.
2. The level of access through software in Simplex 2120 required to clear RAM loss is level 3
3. By using a laptop computer and accessing the program, Beaudette voided the ULC listing. Latreille concluded that the fire alarm control panel will have to be replaced because the OFC requires the fire alarm control panel to be listed by ULC, adding that the equipment can not be relisted because it would not meet current listing requirements.
4. The programming of fire alarm panels is highly regulated by ULC, and that technicians working on them must be certified because the fire alarm system protects lives.

55The Commission found Latreille’s evidence more persuasive; the appellants did not provide persuasive or fulsome evidence on this issue.

ISSUE 4 – Does the fire alarm system need to be replaced?

56The Commission finds that if the fire alarm system cannot be deemed in compliance with the OFC and it will need to be replaced.

57A compliant and operational fire alarm system includes ensuring that the fire alarm control panel performs the sequence of operations it was designed to conduct. It also includes repairing (or replacing) all other systems that are operated through the fire alarm control panel, including but not limited to, the graphics panel, all the transponders, and the fire detectors. The system would need to be inspected and tested by qualified¹⁶ individuals in conformance with CAN/ULC-S536, “Inspection and Testing of Fire Alarm Systems.”

58While the appellant testified that the fire alarm control panel is now working because the green light is showing the “all clear,” this only means that the ROM (read only memory) is functional, meaning that it can access permanently stored instructions. The respondent testified that the fire alarm sequence of operations, which is the RAM (random access memory) has been lost. In other words, the green light does not mean that the fire alarm is able to function as it was designed to.

59Orr testified that:

1. The fire alarm system is working properly, describing the success of the fire drills, which included Taillon finding the fake fire (in the fire drill) by reading the fire alarm control panel.
2. All devices function as they are supposed to, including the fans turning off, and electromagnetic door locks releasing.
3. Only 20¹⁷ or so fire detectors were not working, and they have been replaced.

60The Commission relies on Latreille’s testimony that the fire alarm control panel must be replaced:

1. The fire alarm control panel is no longer ULC-listed because it was accessed and “repaired” by Beaudette, and the sequence of operations (RAM) has been erased.
2. The fire alarm control panel can not be maintained to CAN/ULC-S524 standard as required by the OFC.

61The Commission relies on Latreille’s testimony that other fire alarm components need to be repaired or replaced:

1. Other fire alarm components are not functioning, including the annunciator (graphics panel), the third floor transponder is not communicating with the fire alarm control panel, the fire detectors are old or otherwise deficient, and the fire alarm system signals do not function as they are designed to.
2. If there are issues with compatibility with the new fire alarm control panel, then they will need to be replaced.

CONCLUSION

62The Commission amends the Order to reflect the requirements of the Fire Code that pertains to ensuring the fire alarm system is repaired, replaced, or altered to be made operational, and to ensuring that anyone performing annual tests or inspections of the fire alarm system, or performing repairs, replacements or alterations of the fire alarm system are appropriately qualified.

63Inspector McNeely testified that he wrote the Order pursuant to clause 21(1)(f) “to do anything respecting fire safety including anything related to fire alarms and detection”, because he felt clause (f) was more specific than clause (g) “to remedy any contravention of the Fire Code”. The Commission disagrees and amends the Order to reflect the OFC requirements quoted by McNeely and Latreille, and the OFC excerpts submitted as an Exhibit by the respondent. Doing so does not affect the objectives of the Order but clarifies that the work ordered is to remedy contraventions of the Fire Code.

ORDER

64The Commission amends the Order as follows:

Pursuant to clause 21(1)(g) of the FPPA:

1. The building owner must undertake work to ensure that the building has an operational fire alarm system, by complying with the following Fire Code¹⁸ requirements:

Sentence 1.1.1.2.(3) – Any appliance, device or component of a device that does not operate or appear to operate as intended when checked, inspected or tested as required by this Code shall be repaired or replaced if the failure or malfunctioning of the appliance, device or component would adversely affect fire or life safety.

Article 6.3.1.4., Division B – Fire alarm and voice communication systems shall be maintained in operating condition.

Article 6.3.1.8. – Repair, replacement, and alterations of fire alarm system components shall be in accordance with CAN/ULC-S524, “Standard for the Installation of Fire Alarm Systems”.

2. Any persons performing work on the fire alarm system are required to be appropriately qualified, by complying with the following Fire Code requirements:

Sentence 6.3.2.1.(1), The owner shall ensure that any person performing the annual tests or annual inspections required by this Subsection for fire alarm systems, or performing the repairs, replacements or alterations of fire alarm systems referred to in Article 6.3.1.8. is in compliance with the requirements of

(a) Clause 1.2.1.2.(1)(a) of Division C, or

(b) Sentence 1.2.1.2.(2) of Division C

Clause 1.2.1.2.(1)(a), Division C - A person who performs the work described in Article 1.2.1.1.¹⁹ must have successfully completed a program or course acceptable to the Fire Marshal.

Sentence 1.2.1.2.(2), Division C – Despite Sentence (1), a person who has not successfully completed the required program or course may perform the work described in clause (1)(c) provided that

(a) The work is done under the supervision of a person who has successfully completed a program or course required by clause (1)(a),

(b) No more than two persons work under the supervision of the person referred to in clause (a) at the same time, and

(c) The supervision is provided at the work site.

3. The compliance date is amended to 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.

65The Commission reminds the parties, that the Order to Close, as confirmed by the Ontario Superior Court of Justice, remains in effect.

Released: August 2, 2023

___________________________

Susan Clarke, Vice-Chair Fire Safety Commission

________________________

Claudine Wilson, Member Fire Safety Commission

________________________

Rocco Iamello, Member Fire Safety Commission

Footnotes

1. 1S.O. 1997, Ch. 4
2. 2The Commission sent emails on June 7, 2023, to Daniel Orr and Suzanne Villeneuve using the email addresses provided in their NOAs. On June 8, 2023, the Commission received notice that the emails were undeliverable. On the same date, the Commission sent the email to Matthew Cinnamon, the other Director of 2416300 Ontario Inc. and copied Suzanne Villeneuve at an email address she had used earlier to respond to the Commission, and copied Daniel Orr on these emails. On June 9, 2023, the Commission received two undeliverable emails for both Orr and Villeneuve. Mr. Cinnamon did not respond. On June 15, 2023, the Commission sent a Notice of Hearing for June 21, 2023, and a request for the parties to confirm attendance by June 16, 2023. On June 15, 2023, Mr. Tyler Taillon (one of the appellants, and the Building Manager, responded saying he would not attend. Another appellant, Mr. Andre Theriault responded saying he would attend. On June 16, 2023, the Commission received notices of undeliverable emails to Orr, Villeneuve and rheal@thecarecentre.ca. On June 21, 2023, at 9:44 a.m. Daniel Orr emailed the Commission from a different email address stating that he had been on the videoconference but nobody else was there. This may have been the link provided for the hearing on June 5, 2023. He was provided the correct link for the June 21, 2023, hearing.
3. 3The issue before the Commission was whether the fire alarm system was operational, whether it could be repaired, or needed replacing.
4. 4While the respondent submitted that the fire alarm was a 2-stage system and could not be reconfigured as a 1-stage system for a residential occupancy, this was not part of the Inspection Order.
5. 5While the respondent gave evidence of numerous Fire Code contraventions, and other Inspection Orders, these had no bearing on the issue before the Commission.
6. 6The appellants submitted that OFC Sentence 9.7.4.1.(3) allows an exemption to allow an interconnected smoke alarm system in lieu of a full fire alarm system. Inspector McNeely pointed out that Section 9,7 (for Care Occupancies and Retirement Homes), did not apply to the subject building. The Commission notes that Section 9.7 requirements are in addition to Sections 9.5 and 9.6 (based on height of building) requirements, and that interconnected smoke alarm systems are only permitted in lieu of a fire alarm system where the sleeping accommodation does not exceed 24 people (9.5.4.1.(2)). Regardless of the occupancy type, be it residential, care, or retirement home, the sleeping room accommodation in the subject building far exceeded 24 sleeping rooms. The Inspection Order stated that the building was considered by Inspector McNeely to be a residential occupancy with sleeping accommodation for approximately 45 residents. Regardless of the submissions made by the appellants regarding the use of interconnected smoke alarms or a full fire alarm system, the existing system is a fire alarm system.
7. 7The Commission has no jurisdiction over complaints regarding conduct and no jurisdiction regarding the appeals process (which is set in law).
8. 8White Burgess Langille Inman v. Abbott and Haliburton Co. (2015) 2015 SCC 23
9. 9R. v Mohan (1994) 1994 CanLII 80 (SCC), 2 SCR 9
10. 10R. v Abbey. (1982) 1982 CanLII 25 (SCC), 2 SCR 24
11. 11O. Reg. 213/07, as amended. All references of the Fire Code are to Division B, unless otherwise stated.
12. 12performs annual tests or annual inspections of a fire alarm system, or repairs, replaces or alters components of a fire alarm system
13. 13CAN/ULC is a Canadian technical standard produced by Underwriters Laboratories Canada. Their standards are produced as a result of technical committees and referenced in the Fire Code.
14. 14Including a ground fault issue (Tab O of respondent’s submissions)
15. 15The Ontario Building Code, O. Reg. 332/12
16. 16OFC Subsection 1.2.1., Division C Qualifications and Responsibilities of Persons Performing Work on Fire Alarm Systems.
17. 1720 of the 1000 detectors is 2%
18. 18All references of the Fire Code are to Division B, unless otherwise stated.
19. 19performs annual tests or annual inspections of a fire alarm system, or repairs, replaces or alters components of a fire alarm system