FIRE SAFETY COMMISSION

Tribunals Ontario

COMMISSION DE LA SÉCURITÉ-INCENDIE

Tribunaux décisionnels Ontario

Citation: Martin v Toronto Fire Services, 2023 ONFSC 24

Date: 2023-08-02

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

Between:

Daniel Martin Appellant

and

Toronto Fire Services Respondent

DECISION AND ORDER

PANEL: Anxhela (Angela) Peco, Member Paul Stopciati, Member Claudine Wilson, Member

APPEARANCES: For the Appellant: Self-represented For the Respondent: Michael Gauthey, Counsel; Jacqueline Mathurin, Counsel

Held by videoconference: April 19, 2023

OVERVIEW

1Daniel Martin (the "appellant") is the owner of a building located at 1186 Gerrard Street East (the "building"). The building is a two-storey house with a basement.

2The main floor consists of a bedroom occupied by a tenant; the appellant's bedroom and washroom; and a kitchen used only by the appellant and a basement tenant. The second floor consists of a kitchen, a washroom, and two bedrooms, only one of which is occupied by a tenant. The basement consists of a living area, a bedroom occupied by the basement tenant, a washroom, and a furnace room.

3The house has two exits on the main floor, one through the front door and one through the rear door in the kitchen:

1. The main floor tenant can only exit through the front door.
2. The second-floor tenant can only exit by going down the stairs and through the front door.
3. The basement tenant can only exit by going up the stairs to the main floor and through the kitchen, using the rear door.

4Toronto Fire Services (the "respondent") attended the property to assess fire safety after the appellant applied for a rooming house licence with the City of Toronto. Following multiple site visits, on April 14, 2022 Inspector Philip Menna served the appellant with an Inspection Order pursuant to clause 21(1)(g) of the Fire Protection and Prevention Act, 1997 ("FPPA")¹. The Inspection Order cited several Ontario Fire Code (OFC)² contraventions and required the appellant to:

1. Remove all storage from a public corridor, as it was restricting the means of egress on the main floor of the property (Article 2.4.1.1.);
2. Install three 20-minute rated doors equipped with self-closing devices and positive latching mechanisms on the main floor bedroom and two second floor bedrooms, which exit into a public corridor. These were required to protect the public corridor from adjacent rooms (Article 9.5.2.8.); and
3. Provide a fire separated exit from the basement as the existing means of egress involves travel through a shared kitchen. This was to be done either by constructing an exit that is separated by a fire separation protected with rated closures or by creating an exit that leads from the basement directly to the outside (Article 9.5.3.3.).

5The appellant was to complete the above actions by May 31, 2022.

6The appellant requested a review of the Inspection Order from the Fire Marshal. On February 17, 2023, the Fire Marshal issued Review Decision FM-22018 (the "Review Decision"), confirming all items in the Inspection Order and providing a new compliance date of August 17, 2023. The appellant then appealed the Review Decision to the Fire Safety Commission (the "Commission").

ISSUES

7The Commission must decide whether the Review Decision should be confirmed, amended or rescinded, or whether the Commission should make any other order that it deems appropriate, pursuant to its powers in ss. 26(6) of the FPPA. To make that determination, the Commission must decide the following issues:

1. Do the items stored in the main floor public corridor contravene OFC Article 2.4.1.1, which prohibits an accumulation of combustible materials, such that removal of those items is required?
2. Is the building occupancy correctly classified as two dwelling units in combination with boarding, lodging or rooming accommodation for two, three or four persons, and therefore subject to Section 9.5 of the OFC?
3. If the building is subject to Section 9.5 of the OFC, do the existing doors in the main floor bedroom and two second floor bedrooms contravene OFC Article 9.5.2.8, which requires openings in a fire separation that is required to have a 30-minute fire-resistance rating to be protected with closures (doors) that have a 20-minute fire-protection rating and are equipped with self-closing devices and positive latching mechanisms?
4. If the building is subject to Section 9.5 of the OFC, does the single basement exit contravene OFC Article 9.5.3.3, which requires the exit stairway to be separated from the remainder of the building?

RESULT

8The Commission finds that:

1. The storage of personal items in the main floor public corridor is not in compliance with Article 2.4.1.1 and the items must be removed.
2. The building occupancy is correctly classified under clause 9.5.1.1.(d) and is therefore subject to Section 9.5 of the OFC.
3. The existing doors in the main floor bedroom and two second floor bedrooms are not in compliance with Article 9.5.2.8. The appellant must install three doors that have a 20-minute fire-protection rating and are equipped with self-closing devices and positive latching mechanisms.
4. The exit stairway leading from the basement to the main floor shared kitchen and to the outside does not comply with OFC Article 9.5.3.3 because it is not separated from the remainder of the building. The exit path through the kitchen is also not protected. The appellant must protect the stairway and the means of egress, or alternatively, build a separate exit from the basement directly to the outside on that level.

EVIDENCE AND ANALYSIS

A. ISSUE 1 – Do the items stored in the main floor public corridor contravene OFC Article 2.4.1.1, which prohibits accumulation of combustible material, such that removal of those items is required?

9The appellant had the burden of proving that it was more likely than not that storage of the items in the public corridor did not contravene OFC Article 2.4.1.1. The appellant did not establish compliance with OFC Article 2.4.1.1. and we find that the items stored in the public corridor amount to an accumulation of combustible materials that must be removed. We confirm Review Decision but amend the compliance date from August 17, 2023 to 30 days from the release of this decision.

Analysis

10OFC Article 2.4.1.1 states that:

(1) Combustible materials shall not be accumulated in or around a building in such quantity or such locations as to create a fire hazard.

(2) Combustible materials shall not be accumulated in any part of … [a] means of egress … unless the location, room or space is designed for these materials.

12Inspector Menna testified that he observed a large amount of storage in the main floor public corridor. The storage included a bookshelf, books, a wooden bench, clothing, and shoes. The shelving was 20 inches by 7 feet tall and the items spanned the entire length of the corridor from the front door of the building to the stairs leading to the second floor. The items were there on each of the occasions that he visited the property over a four-week period in March and April 2022.

13The appellant acknowledged that there were various items stored in the public corridor and described his various efforts to clear the space. He estimated that the storage area was now 9 inches deep and 2 feet tall following the removal of a wooden bench. The appellant added that the items belonged to his tenants and that items would "come and go" as tenants and their visitors deposited personal belongings in that space. He testified that despite speaking and issuing letters to the tenant about removing the items, the tenant had not complied.

14We find that the storage along the wall of the public corridor amounts to an accumulation of combustible materials in contravention of OFC Article 2.4.1.1. Wooden items, books and clothing can ignite and create a fire hazard that compromises the exit through the corridor and out the front door. There was also no evidence to show that the public corridor was designed for such storage, as suggested by the addition of furnishings to contain the personal items.

15While the appellant had made efforts to remove some of the items, we do not agree that removing the wooden bench eliminates the fire hazard. The appellant also seemed resigned to the possibility that tenants would inevitably fill the space again, but as the owner and landlord, the appellant should assume responsibility for clearing the area.

16We therefore find that storage of items in the public corridor is a contravention of OFC Sentences 2.4.1.1(1) and (2), and we order that the items be removed within 30 days of the release of this decision.

B. ISSUE 2 – Is the building occupancy correctly classified and therefore subject to Section 9.5 of the OFC?

17Classification is relevant to the second and third items in the Inspection Order. The appellant disagreed with how the building was classified in the Inspection Order. If the building was correctly classified as containing one dwelling unit, three lodging rooms and an operator's residence, it becomes subject to Section 9.5 of the OFC and the appellant would be required to comply with OFC Article 9.5.2.8. (rated doors) and OFC Article 9.5.3.3. (protected basement exit).

18For the following reasons, we find that the building was properly classified and is subject to Section 9.5 of the OFC.

19OFC Sentence 9.5.1.1.(1) states that:

[Section 9.5] applies to buildings up to and including 6 storeys in building height with residential occupancies and containing

(a) more than two dwelling units where

(i) at least two dwelling units share common exit facilities and have interior access to one another,

(ii) there is at least one dwelling unit located above another with interior access to one another, or

(iii) there is at least one dwelling unit located above another and the dwelling units share common exit facilities,

(b) sleeping accommodation for more than 10 persons, in one or more dormitories,

(c) boarding, lodging or rooming accommodation for more than four persons where Sections 9.3 and 9.4. do not apply, or

(d) one or two dwelling units in combination with boarding, lodging or rooming accommodation for two, three or four persons, excluding the operator's residence.

20The respondent submitted that the building contained one dwelling unit, three lodging rooms and an operator's residence and was therefore subject to Section 9.5 because the conditions in clause 9.5.1.1.(d) were met.

21The appellant disagreed with the classification of the building but provided no evidence or submissions supporting a different classification for the building.

22Relying on Inspector Menna's uncontroverted evidence regarding the layout of the building and the individuals who resided there, we find that the building is subject to Section 9.5 of the OFC as it meets the following conditions:

a. The building is a two-storey plus basement building, and therefore it is six or fewer stories high; b. It is a residential occupancy³ where sleeping accommodation is provided to residents, which include the appellant, the basement tenant, the main floor tenant, and the second-floor tenant; c. It contains one dwelling unit⁴ in the basement, consisting of a living area, a sleeping area, and a washroom; d. There are lodging rooms for at least three persons (one on the main floor and two on the second floor), excluding the operator's residence that has a bedroom and washroom for the appellant's exclusive use. Inspector Menna's unchallenged evidence was that each of the tenants he had spoken with during his inspections of the property confirmed that they paid rent to the appellant and had no connection to each other.

C. ISSUE 3 – If the building is subject to Section 9.5 of the OFC, are the existing doors in the main floor bedroom and two second floor bedrooms in compliance with OFC Article 9.5.2.8.?

23Having concluded that the building is subject to Section 9.5 of the OFC, the appellant had the burden of proving that the existing doors in the main floor bedroom and the two second-floor bedrooms had a 20-minute fire-protection rating, as required by OFC Sentence 9.5.2.8.(2).

24For the following reasons, we find that the appellant did not establish compliance with OFC Article 9.5.2.8 and is therefore required to install three doors that have a 20-minute fire-protection rating and are equipped with self-closing devices and positive latching mechanisms. We confirm the work set out in the Review Decision and require compliance within 60 days of the release of this decision.

Analysis

25OFC Sentence 9.5.2.7(2) states that public corridors⁵ shall be separated from adjacent rooms and areas by fire separations having a fire-resistance rating not less than 30 minutes. In plain terms, this means that a wall, for example, separating a room from a hallway that leads to an exit for multiple rooms, should have a 30-minute fire-resistance rating.

26OFC Sentence 9.5.2.8.(2) states that openings in a fire separation that is required to have the above-mentioned 30-minute fire-resistance rating shall be protected with closures having a 20-minute fire-protecting rating. In other words, if the wall has an opening, that opening must have a closure (a door) that can prevent the passage of fire and smoke between the two areas for 20 minutes.

27OFC Sentence 9.5.2.8.(4) states that an existing door can meet the requirement in OFC Sentence 9.5.2.8.(2) if it is a 45 mm solid core wood door installed in solid wood or hollow metal frames and equipped with self-closing devices.

28The respondent argued that the three doors in question did not meet either of these requirements. Inspector Menna testified that the main floor bedroom door was solid wood but was not 45 mm thick. The second-floor bedroom doors were "regular interior-type doors" with no fire-protection rating. He also observed no labels on the door spines indicating a rating value.

29The appellant admitted that the main floor bedroom door was 35 mm thick, which fell short of the requirement in Sentence 9.5.2.8.(4), but he argued that the door could nonetheless withstand over 20 minutes of fire. In cross-examination, the appellant added that he had himself tested the 35-mm door outside, using spare parts of a door and a torch, and stated that "the frame does not stay lit". As for the second-floor bedroom doors, he argued that not many people live on the second floor, which makes this requirement unnecessary, and that the hollow doors are "fire-proof".⁶

30In the absence of clear evidence from the appellant establishing the fire rating value of these doors, we accept Inspector Menna's evidence in its entirety and find that the doors are not compliant with the OFC. They are neither 45 mm thick nor do they have a 20-minute fire protection rating.

31We do not accept the appellant's argument that his testing of door parts in an uncontrolled outdoor environment establishes that the 35 mm door has a 20-minute resistance rating. There was no evidence qualifying the appellant as an expert in testing nor any evidence establishing that the manner in which he tested the door parts met testing requirements. We also had no authority to support the appellant's argument that the requirements do not apply to the second-floor bedroom doors because "not many people live on the second floor." The presence of a single tenant on the second floor is enough to require protecting the public corridor from his adjacent room.

32Compliance with OFC Article 9.5.2.8. is required because each of these bedroom doors opens to a public corridor that provides the only access to an exit for the main floor tenant and the second-floor tenant. It is therefore important that the doors be able to contain the spread of fire, and the 20-minute rating would give tenants the time to make a safe escape. We therefore find that the appellant is required to install 20-minute fire-rated doors in the three locations.

D. ISSUE 4 – If the building is subject to Section 9.5 of the OFC, does the single basement exit comply with OFC Article 9.5.3.3, which requires the exit stairway to be separated from the remainder of the building (and the exit path through the kitchen to be protected)?

33For the reasons that follow, we find that the appellant did not establish compliance with OFC Article 9.5.3.3. and we confirm the Review Decision, amending only the compliance date to 6 months from the release of this decision. The appellant is required to separate the basement's exit stairway from the rest of the building and protect the exit path through the kitchen. Alternatively, the appellant can install a new exit from the basement directly to the outside.

Analysis

34Inspector Menna's testimony and his floor plan sketch established that the basement tenant must travel up the stairs and through the shared kitchen on the main floor in order to exit the building through the rear door. The kitchen is shared by the appellant and the basement tenant, and this is the only exit for the basement tenant. The respondent submitted that this exit was not protected from fire exposure and would not allow the basement tenant safe passage to the outside. Since the basement tenant's only exit was through the kitchen, their exit path would be compromised if there was a fire in the shared kitchen.

35The appellant disagreed with the requirement. He submitted that the exit path is hardly used and is a "low traffic" area. He also noted that the presence of an electric stove in the shared kitchen reduced the risk of fire.

36We do not accept the appellant's submission that he is exempt from complying with the OFC requirements because the area is used mostly by one person at a time or because the appliance poses a lower risk of fire in the kitchen The significant detail here is that this exit is the only way in and out for the basement tenant and must be protected.

37The Review Decision cited OFC Sentence 9.5.3.3.(2) for the requirement that the basement exit stairway be separated from the remainder of the building by a 30-minute rated fire separation⁷. OFC Sentence 9.5.3.3.(3) requires any closures (doors) in stairway fire separations to be equipped with self-closing devices.

38The respondent's floor plan sketch showed there was nothing separating the stairway at the main floor level (top of stairway) from the rest of the building. As such, we find that the stairway must be separated from the remainder of the building by a fire separation at the top of the stairs. The fire separation must have a minimum 30-minute fire resistance rating, and any door installed at the top of the stairs must have a 20-minute fire protection rating and be equipped with a self-closing device (OFC Sentence 9.5.2.8.(2)).

39The portion of the exit path through the kitchen also needs to be separated from the remainder of the building by a 30-minute rated fire separation, and any door leading to the kitchen should have a 20-minute fire protection rating and be equipped with a self-closing device.

40As an alternative, the appellant can comply with these requirements by constructing an exit that leads from the basement directly to the outside on that level.

41The appellant is reminded that the Building Code Act⁸ requires a building permit application for any proposed construction.

ORDER

42The Commission confirms the Review Decision, amend the compliance dates as follows:

1. Item 1: The appellant must remove combustible materials in the main floor corridor within 30 days of the date of this decision.
2. Item 2: The appellant must install 20-minute rated fire doors equipped with self-closing devices and positive latching mechanisms in the main floor bedroom and the two second-floor bedrooms, within 60 days of the date of this decision.
3. Item 3: The appellant must separate the basement exit stairway from the remainder of the building with a fire separation having a minimum 30-minute fire resistance rating. Any doors installed at the top of the stairs must have a 20-minute fire protection rating and be equipped with a self-closing device. The kitchen must also be separated from the rest of the building by a 30-minute rated fire separation. Any openings in this fire separation should be protected with a door with a 20-minute fire protection rating and equipped with a self-closing device. This is to be completed within 6 months of this decision.

As an alternative, the appellant can install a new, separate exit from the basement, to be completed within 6 months of the date of this decision.

The Commission gives 6 months for compliance to allow the appellant time to obtain design drawings and submit them for a building permit, secure a contractor, and complete construction and final inspections by both building and fire inspectors.

Footnotes

1. 1S.O. 1997, Ch. 4
2. 2O. Reg. 213/07. Unless otherwise noted, all references are to Division B of the OFC.
3. 3As defined in s. 1 of the OFC.
4. 4A dwelling unit is defined in s. 1 of the OFC as a suite operated as a housekeeping unit, used or intended to be used by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities, and includes a residential unit. The respondent corrected an error in the Inspection Order that indicated that the basement dwelling unit contained a cooking area, when in fact the kitchen was located on the main floor and shared by the appellant and the basement tenant. Despite not having a cooking area, the basement still meets the definition of a "dwelling unit" as it contains living, sleeping and sanitary facilities.
5. 5A public corridor is defined as a corridor that provides access to an exit from more than one suite. A suite is defined to include a single room or series of rooms of complementary use operated under a single tenancy; OFC Article 1.4.1.2.
6. 6The appellant referred to "ULS" and "USL" door closures in his testimony, but it remained unclear which doors were equipped with these devices. These statements were inconsistent with Inspector Menna's evidence that he did not observe any self-closing devices on the three doors in question. As self-closing devices were not the only requirement for these doors, we do not find it necessary to resolve this inconsistency and the doors remain non-compliant with the OFC because they lack a 20-minute fire-protection rating
7. 7This is the requirement for buildings 3 storeys or less in building height, such as the building in question.
8. 8Building Code Act, 1992, S.O. 1992, Chapter 23.