Metro Toronto Condominium Corporation 1298 v. Toronto Fire Services, 2023 CanLII 42240

Commissions ontario

Fire Safety Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission de la sécurité-incendie

RECONSIDERATION DECISION

Citation Metro Toronto Condominium Corporation 1298 v Toronto Fire Services 2021 ONFSC 21

Before:

Marisa Victor, Vice-Chair

Date of Order:

May 18, 2023

13541/FSC

Case Name:

Metro Toronto Condominium Corporation 1298 v Toronto Fire Services

Written Submissions by:

For the Appellant:

Carol A. Dirks, counsel

For the Respondent:

Emma Luca, counsel

OVERVIEW

1This request for reconsideration was filed by the appellant in this matter.

2It arises out of a decision in which the Commission found that numerous storage lockers in the parking garage in the appellant’s building were not in compliance with the Ontario Fire Code (OFC). The Commission’s Amended Decision and Order was issued February 9, 2023 (Decision).

3The appellant is the owner of a large residential condominium building located at 600 Queen’s Quay West in Toronto (Building). There are fifty-two wired caged storage lockers (Storage Lockers) located within a three level storage garage¹ (Parking Garage) in the Building.

4These Storage Lockers were the subject of an Inspection Order issued by the respondent. That Inspection Order was appealed to the Fire Marshal. The Fire Marshal issued a Review Decision on August 3, 2021 (Review Decision). Both the Inspection Order and the Review Order found that the Storage Lockers were not in compliance with the OFC.

5The Commission had to determine whether the Review Decision should be confirmed, amended or rescinded. The Commission had to determine three sub-issues:

a. Should the individual owners of the Storage Lockers be made parties to the appeal;

b. Whether the storage of household items within the Storage Lockers in the Parking Garage were in compliance with Sentence 9.6.2.15(1) of the Ontario Fire Code (OFC); and

c. Whether the exemption under Sentence 9.1.2.2(2) applied to the Storage Lockers.

6The Commission found that the individual owners did not need to be made parties to the appeal. The Commission further found that the Storage Lockers were not in compliance with the OFC and that no exemption applied. The Commission ordered that all items but bicycles must be removed from the Storage Lockers no later than March 31, 2023.

7The Appellant submits that:

a. The Commission violated the rules of procedural fairness by not ensuring that the individual owners be made party to the appeal; and

b. Made an error law or fact such that the Commission would likely have reached a different result had the error not been made. This was by finding that the words “remainder of the building” in Sentence 9.6.2.15(1) of the OFC could include an area within the Parking Garage itself, and the finding that the Storage Lockers were not in compliance with the Ontario Building Code (OBC).

8The appellant is seeking an order rescinding the Decision.

9The respondent seeks an order dismissing the reconsideration request, or, in the alternative, an order confirming the Decision.

RESULT

10The Commission confirms the Decision.

EVIDENCE & ANALYSIS

11The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Commission’s Common Rules.² A request for reconsideration will not be granted unless one or more of the criteria are met. In this case, the criteria the appellant argues apply to this case are as follows:³

a) The Commission acted outside its jurisdiction or violated the rules of procedural fairness; and

b) 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.

12Reconsideration is only warranted in cases where the panel has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

Issue 1: Procedural Fairness

The appellant’s position

13The appellant says that the Commission violated the rules of procedural fairness by not ensuring that the individual owners be made party to the appeal and adjourning the hearing date to allow for that.

14The appellant says that Section 5 of the Statutory Powers Procedure Act⁴ (SPPA) states that:

The parties to a proceeding shall be the persons specified as parties by or under the statute under which the proceeding arises or, if not so specified, persons entitled by law to be parties to the proceeding.

15The appellant says that this section of the SPPA means that the common law definition applies to a party before the Commission because a party to the proceeding is not specified by statute. The appellant states that the common law definition of a party is someone significantly affected by a decision. The appellant says the individual owners of the Storage Lockers are significantly affected due to the value of each storage locker and therefore should have been made parties to the appeal.

16The appellant says the Commission erred at paragraph 20 of the Decision which found that the appellant was the owner of the Building, was properly served with the Inspection Order and had exercised its right of appeal.

17The appellant says that the Commission erred when at paragraphs 21 and 23 it determined no procedural fairness had been breached because the individual owners were made aware of the proceeding and because the appellant exercises control over the common elements and over the individual owner’s use of the Storage Lockers. The appellant says that there was no evidence the individual owners were given notice of the hearing, only that the adjournment of the hearing allowed for a town hall so the appellant could report to the owners. The appellant also says that its control over individual use is limited to the powers granted by the Condominium Act, 1998, the Declaration, By-laws and Rules and that these do not allow the appellant to restrict the use of the Storage Lockers to bicycles only.

18In reply, the appellant acknowledges that it made best efforts to advise the individual locker owners of the proceeding but that owners could have been missed. It states that only the Commission could have provided guaranteed notice of the proceeding.

19In reply, the appellant also states that the respondent’s submissions on Rule 3.6 and 2.16 of the Common Rules and s. 26(1) of the Fire Protection and Prevention Act, 1997⁵ (FPPA) are assistive only in instances where the aggrieved person is not already party to the appeal. It states that party status is only automatic where the Inspection order names the aggrieved person as a party.

The respondent’s position

20The respondent submits that paragraph 20 of the Decision correctly identifies the appellant as the owner of the Building. It says the Inspection Order subject to the appeal was issued to the appellant as the owner of the Building. It says Subsection 1.4.1 Div. A of the OFC states that an “owner” is responsible for carrying out provisions of the OFC. It was not contested that the appellant exercises control over the common elements. Further, the respondent says Sentence 9.6.2.15(1) of the OFC requires a 1.5 hour fire separation of the Parking Garage and only the party with control over the common elements would be able to construct such a separation.

21The respondent states that s. 26(1) of the FPPA allows any party aggrieved by an order made by the Fire Marshal to appeal. The respondent states that a person who considers themselves aggrieved has the right to appeal and only becomes a party when they do appeal. It notes that no individual locker owner initiated an appeal.

22The respondent also states that Rule 3.6 of the Common Rules allows a party with a significant interest to be added a proceeding. However, Rule 2.16 of the Common Rules defines a party as having notified the Commission of their intention to participate. The respondent states that the individual owners failed to notify the Commission of their intention to participate in the proceeding.

23The respondent relies on paragraph 23 of the Decision to show that the Commission appropriately considered the issue of procedural fairness. The Commission granted a lengthy adjournment on consent for the express purpose of allowing the appellant the opportunity to provide notification to the individual locker owners with information about the status of the hearing and to allow them time to take steps to join the proceeding, should they choose to do so.

24The respondent states that the Commission cannot require the individual owners to be made a party but can only consider an application to be added as a party. It states no such application was brought by any individual locker owner.

25The respondent relies on s. 6(1) of the SPPA that says only parties need to be provided notice of a hearing. Since the individual owners did not take steps to become parties, they were not entitled to notice of the hearing.

The Commission’s analysis and findings

26The Commission finds that the appellant has not established that there was a breach of procedural fairness. This issue was fully argued before the Commission at the hearing. The Commission addressed the issue of the individual owners in paragraphs 19-23 of the Decision.

27The Commission finds that the relevant statute for specifying who is a party before the Commission in this case is found in s. 26(1) of the FPPA.⁶ That determination is that an appellant is someone who is aggrieved by an order of the Fire Marshal and appeals the decision to the Commission. Therefore, there is no need to rely on the common law in order to comply with s. 5 of the SPPA. Subsection 26(1) of the FPPA specifically allows anyone “who is aggrieved” to appeal. That appellant need not be an owner. The test is whether or not they are aggrieved by an order. “Anyone” can refer to an undefined list but has included owner(s), tenant(s), neighbour(s), fire service(s), as examples. There is no requirement for an owner of a building to be made party to an appeal even when the order at issue concerns the owner’s building.

28The appellant’s submission on the definition of party would conflict with the FPPA. To follow the appellant’s submission would mean the Commission would have to investigate potential parties’ “significant interest” in an appeal before opening any appeal and then mandatorily adding them as parties.

29Further, the appellant’s submissions in reply are simply incorrect. There is no aggrieved party named in an Inspection Order and there are no automatic parties to an appeal before the Commission. This would conflict with s. 26(1) of the FPPA which requires first that an aggrieved person notifies the Commission of their intention to appeal. Owners are not mandatorily added as a party to an appeal even if the subject matter of the appeal is their building. They must first appeal the decision, or notify the Commission that they wish to take part in an appeal before the Commission just as any other party would be required to do.

30Although it is not necessary for an owner to appeal to the Commission, the original Inspection Order must be served on an owner of a premises. The OFC does define owner. The Commission noted in the Decision at paragraph 20, that the appellant, as the owner, was properly served with the Inspection Order which was appealed to the Fire Marshal.

31The Commission also sought to prevent any potential procedural fairness issues by granting a lengthy adjournment of the hearing from March 2022 to October 2022. This was to allow the appellant to advise all the individual unit owners of the Building of the status of the appeal and to give them time to join the appeal. The appellant submits that best efforts were made. No individual owner approached the Commission to be added as a party. It is not the role of the Commission to guarantee notice of the proceeding to non-parties who have not taken the step to appeal an order of the Fire Marshal pursuant to s. 26(1) of the FPPA.

32The appellant has not established a breach of procedural fairness.

Issue 2: Error of Fact or Law

33The appellant says that the Commission made errors of fact or law such that the Commission would likely have reached a different result had the error not been made. The alleged errors are:

a. The finding that the words “remainder of the building” in Sentence 9.6.2.15(1) of the OFC can include an area within the Parking Garage itself; and

b. The finding that the Storage Lockers were not in compliance with the OBC.

Sub-issue a)

The appellant’s position

34The appellant submits that the Commission made errors of statutory interpretation in paragraphs 45 and 46 of the Decision. It says it was an error for the Commission to find that “remainder of the building” means parts of the building other than the Parking Garage, not areas within the Parking Garage itself. The appellant argues that Article 9.6.2.7 of the OFC is specifically for storage rooms for the use of occupants “in other parts of the building (other than a storage garage).”

The respondent’s position

35The respondent disagrees. It submits that the Commission’s interpretation of Sentence 9.6.2.15(1) of the OFC was correct in law and consistent with the modern approach to statutory interpretation. It states that the Commission properly found that the Storage Lockers are categorized as the “remainder of the building” and must be separated from the Parking Garage. It states that the definitions of “storage garage”, “building” and “occupancy” in the OFC support the Commission’s findings. It says the use of the Storage Lockers for the storage of combustible household goods created an occupancy separate from the intended use of the Parking Garage for the storage of motor vehicles. This triggers the need for a fire separation between the Parking Garage and the remainder of the building which includes the Storage Lockers.

36The respondent says the appellant’s interpretation would conflict with Section 9.6 of the OFC which exists to prevent the spread of fire from one location of the building to another. It states that it would be absurd to find that storage lockers contained in a storage room are required to be fire separated from the Parking Garage, but the same storage lockers full of the same combustible household goods in an open area of the Parking Garage need no fire separation.

The Commission’s analysis and findings

37The Commission finds that the appellant has not met its onus to prove an error of fact or law that would likely have resulted in a different decision.

38The issue raised by the appellant was fully argued at the hearing. The Commission explained its reasoning in paragraphs 36 – 47 of the Decision. It is clear that the Commission turned its mind to the issue of statutory interpretation and that the Commission disagreed with the appellant’s interpretation of the FPPA. Further, I see no error in the Commission’s reasoning with respect to this issue. In particular, the appellant reads in an exclusion to Article 9.6.1.9 for storage lockers in a parking garage that does not exist in the FPPA.

39Disagreement with the Commission’s Decision is not a ground of reconsideration. Although the appellant may disagree with the Commission’s statutory interpretation, reconsideration is not an opportunity for the appellant to re-argue its position.

40The appellant has not established an error of fact or law with regard to the statutory interpretation of the FPPA.

Sub-issue b)

The appellant’s position

41The appellant also argued that the Commission erred at paragraphs 71-77 of the Decision in not finding that the Storage Lockers were exempted from the OFC because they were in compliance with the OBC. The appellant stated that its expert, Mr. Muniak, was uncontroverted in his evidence when he testified that the Storage Lockers were in compliance with Article 3.3.5.7 of the 1990 OBC.

42The appellant says that the Commission also erred in finding that the Storage Lockers were not in compliance with the OBC because it relied on the 1997 architectural permit drawings that did not show the Storage Lockers over the evidence of the electrical drawings from 1999 which showed lockers.

The respondent’s position

43The respondent submits that at paragraph 72 the Commission correctly interpreted its limited role in the determination as to whether the evidence showed that the Storage Lockers were in compliance with the OFC. The respondent disagrees that the evidence of Mr. Muniak was uncontroverted. It relies on its expert, Mr. Thuy (Bill) Nguyen, who offered a competing interpretation. The respondent states that the Commission at paragraph 76 spoke to the inconsistencies in Mr. Muniak’s testimony, in particular his statement that he would have expected to see a specific exemption granted for the Storage Lockers in the Parking Garage and yet maintained that the Storage Lockers were in compliance with the OBC.

44Th respondent submits that at paragraph 76 of the Decision, the Commission looked at the totality of the evidence to conclude that the exemption in Sentence 9.1.2.2(2) of the OFC did not apply to the Storage Lockers. It notes that the Commission did not comment on the evidence of Ms. Michele Farley and her introduction of the electrical drawings but that no error was made such that the Commission would have reached a different result.

The Commission’s analysis and findings

45The Commission made no error of fact or law that would have resulted in a different decision. The onus was on the appellant at the hearing to establish that the Storage Lockers fell within the exemption. The Commission found that this was not established.

46This issue was also fully argued at the hearing through competing expert witnesses. The Commission described the evidence in paragraphs 50 – 70 of the Decision. The Commission’s analysis of the exemption in the OFC is found in paragraphs. 71 – 77. In particular, the Commission found that “[b]oth Muniak and Nguyen agreed that normally, storage rooms are within fire separated areas.”⁷ Further, the Commission noted that “Muniak agreed that he would have expected to see a specific exemption granted for the unseparated Storage Lockers in the Parking Garage.”⁸ The Commission found that there was a lack of evidence of compliance with the OBC and therefore the appellant could not rely on the exemption in Sentence 9.1.2.2(2) of the OFC.⁹

47I find no error in the Commission’s reasoning and again, disagreement with the Decision is not a ground of reconsideration.

48Further, the Commission is not required to comment on every piece of evidence put before it. That is not an error of law. Ms. Farley did not testify as an expert witness and therefore her evidence was given its appropriate weight.

49The appellant has not established an error of fact or law was made when the Commission found that the evidence did not establish that the Storage Lockers were in compliance with the OBC and therefore not exempt under Article 9.6.2.7 of the OFC.

CONCLUSION

50For the reasons noted above, I find that the appellant has not established any of the grounds raised in its request for reconsideration. As the Commission heard submissions from both parties, under Rule 18.4(b) of the Common Rules, I can only confirm, vary or cancel the decision or order, or order a new hearing.

51I confirm the Decision.

Marisa Victor

Vice Chair

Fire Safety Commission Ontario

Footnotes

1. 1The Ontario Fire Code refers to a “storage garage”, but this decision refers to this as a Parking Garage to use plain language terminology.
2. 2Common Rules of the Licence Appeal Commission, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) (Common Rules)
3. 3The appellant relies on Rule 18.2(a) and (b).
4. 4R.S.O. 1990, c. S.22
5. 5S.O. 1997, Chapter 4
6. 6There are other appeal rights under the FPPA, but they are not relevant to this case.
7. 7See para. 74 of the Decision.
8. 8See para. 75 of the Decision.
9. 9See para. 77 of the Decision.