FIRE SAFETY COMMISSION

Tribunals Ontario

COMMISSION DE LA SÉCURITÉ-INCENDIE

Tribunaux décisionnels Ontario

Date: 2023-02-06

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

Between:

Metro Toronto Condominium Corporation No. 1298 Appellant

And

Toronto Fire Services Respondent

AMENDED DECISION AND ORDER

PANEL: Marisa Victor, Vice-Chair Rocco Iamello, Member Ronald Katz, Member

APPEARANCES: For the Appellant: Carol Dirks, counsel For the Respondent: Emma Luca, counsel

Held on: October 18, 19 (videoconference) and November 30, 2022 (written)

OVERVIEW

1The appellant, Metro Toronto Condominium Corporation No. 1298 (MTCC 1298) is the owner of a large residential condominium building located at 600 Queen’s Quay West, Toronto (Building). On March 9, 2021, the respondent, Toronto Fire Services, conducted an inspection and issued an inspection order in relation to storage in the parking garage (Inspection Order). The Inspection Order was issued under the authority of s. 21(1)(g) of the Fire Protection and Prevention Act, 1997, (FPPA),¹ indicating non-compliance with the Ontario Fire Code, a regulation under the FPPA (OFC).²

2The Inspection Order required the removal of all the items from fifty-two wired caged storage lockers located on levels P1, P2 and P3 of the underground parking garage of the Building (Parking Garage).³ There are several storage locker areas in the underground garage. The only storage lockers that the Inspection Order applied to were those not located in a storage room and not fire-separated from the Parking Garage by the minimum required fire-resistance rating (Storage Lockers). The storage lockers located within storage rooms fire separated from the Parking Garage are not at issue.

3The appellant asked the Fire Marshal for a review of the Inspection Order. The Fire Marshal issued its review decision on August 3, 2021 (Review Decision). The Review Decision confirmed the Inspection Order and provided a new compliance date of December 3, 2021.

4The Review Decision held that the storage of household items in the Storage Lockers was not in compliance with Sentence 9.6.2.15(1), Division B⁴ that addresses parking garages and requires them to be separated from the rest of the Building by a fire separation with a minimum 1.5-hour fire resistance rating. The Review Decision advised that if storage rooms are built, these must also be separated from the rest of the building in compliance with Article 9.6.2.7, which addresses storage rooms, and requires a fire separation with a minimum fire resistance rating of not less than 1 hour.

5The appellant then appealed the Review Decision to the Commission.

ISSUES

6The Commission must decide whether the Review Decision should be confirmed, amended or rescinded, or whether the Commission should make any other order that the Commission deems appropriate. In order to make that determination, the Commission must decide the following issues:

1. Should the individual owners of the Storage Lockers have been made parties to this appeal?
2. Is the storage of household items within the Storage Lockers in the Parking Garage in compliance with Sentence 9.6.2.15(1) of the OFC?
3. Does the exemption under Sentence 9.1.2.2(2) apply to the Storage Lockers?

RESULT

7The Commission finds that:

1. The individual owners did not need to be made parties to this appeal;
2. The storage of household items within the Storage Lockers is not in compliance with Sentence 9.6.2.15(1) which requires that Parking Garage to be separated from the rest of the building; and
3. No exemption applies.

8The Commission amends the Review Decision to expressly allow the storage of bicycles in the Storage Lockers and a new compliance date of March 31, 2023, is ordered.

ISSUE 1 – Should the Individual owners of the storage lockers have been made parties to the appeal?

Appellant’s Evidence and Submissions

9The appellant submits as a preliminary issue that the individual owners of the storage lockers should have been made parties to the appeal. The individual storage lockers are owned by individual unit holders of the appellant condominium corporation.

10The appellant submits that the Inspection Order was only served on MTCC 1298 but that the individual owners of each of the Storage Lockers were not named. The appellant submits that the FPPA does not define “parties” and therefore the common law definition applies. The appellant submits that a party is a person who is significantly affected or directly and necessarily affected by a decision and that person therefore has a right to participate in the appeal.

11The appellant submits that the contents of the Storage Lockers are not part of the common elements but owned by individual owners. The appellant states that it generally made efforts to notify owners of the proceeding. However, it could not confirm that each individual owners did in fact receive notification to the proceeding or understood the potential consequences of the appeal.

12The appellant submits that each of the individual Storage Lockers were purchased and sold together with a residential unit. Individually, each Storage Lockers now has a value of approximately $15,000. The appellant submits that if the Review Decision is confirmed, it would limit the owner’s property rights and reduce the market value of each individual unit of the Storage Lockers as compared to those storage lockers that are within storage rooms and not under appeal.

13The appellant submits that the failure to include the individual owners of the Storage Lockers as parties to the appeal is a breach of procedural fairness.

Respondent’s Evidence and Submissions

14The respondent states that MTCC 1298 is the owner of the building and is therefore responsible for compliance with the OFC. The respondent submits that Subsection 1.4.1 of Division A of the OFC defines an owner as “any person, firm or corporation having control over any portion of the building or property under consideration and includes persons in the building or property.” The respondent submits that the owner of the building is required to ensure that the Parking Garage and Storage Lockers are in compliance with the OFC.

15The respondent submits that the appellant has conceded that it has control over the common elements of the building. In addition, it retains some control over the individual lockers through the Condominium Declaration that limits the owners use of the Storage Lockers through compliance with the Condominium Act, 1998,⁵ the Condominium Declaration, MTCC 1298’s By-laws and Rules. The appellant issued a Notice of New Change on July 2, 2021, prescribing what could and could not be stored in the Storage Lockers. The respondent states that while the Notice of New Change does not comply with the requirements of the OFC, it does demonstrate the appellant’s control over the Storage Lockers.

16The respondent submits that no individual owner has brought an appeal. Section 25 of the FPPA allows any person aggrieved by an inspection order to ask for a review by the Fire Marshal. Similarly, s. 26 of the FPPA allows any person aggrieved of a review decision to appeal to the Commission. However, no such appeals have been brought.

17The respondent submits that the appellant raises several issues that are not relevant to the appeal of the Review Decision. The respondent states that arguments relating to any potential change in monetary value as a result of compliance with the OFC, the Condominium Declaration and any other contractual agreements between locker owners and the developer are not relevant to compliance with the OFC.

18Finally, the respondent submits that the Commission adjourned the hearing of this appeal in March 2022 at the request of the appellant, and on consent of the respondent, for the specific purpose of allowing MTCC 1298 to inform the individual owners of the appeal and to allow them the opportunity to take steps to join the appeal. Ample opportunity was provided for the individual owners to exercise any rights, but they have declined to do so.

ANALYSIS

19The Commission finds that there has been no violation of procedural fairness.

20The Commission finds that as the owner of the Building, MTCC 1298 was properly served with the Inspection Order. The appellant has continued to exercise its right as an owner and a person aggrieved of the Review Decision by asking for an appeal before the Commission.

21Procedural fairness requires that the potential parties receive notice of and be permitted to take part in the proceeding. It does not require that the individual owners must take part in the proceeding. This is especially true when the appellant is the owner of the building, is responsible for the common elements which includes the Parking Garage and continues to exercise control over the individual owners’ use of the Storage Lockers.

22The Commission agrees with the respondent’s position that any potential change in monetary value as a result of compliance with the OFC, the Condominium Declaration and any other contractual agreements between locker owners and the developer are not relevant for the purpose of determining compliance with the OFC and therefore the appeal of the Review Decision.

23The Commission also notes that a lengthy adjournment of this appeal was granted. This was for the purpose of allowing MTCC 1298 to inform the individual owners of the proceeding and give them time to join the appeal should they wish to. The original hearing dates were in March 2022. The hearing was adjourned to October 2022. Given that an adjournment has already been granted and no individual owners have taken any steps in order to be added as a party to the appeal, the Commission finds that no violation of procedural fairness has taken place.

ISSUE 2 – Is the storage of household items within the Storage Lockers in the Parking Garage in compliance with Sentence 9.6.2.15(1) of the OFC?

Appellant’s Evidence and Submissions

24The appellant submits that the Parking Garage is fire-separated from the remainder of the building by a 1.5-hour fire separation. The appellant submits that the Storage Lockers are part of the Parking Garage. The appellant states that the OFC does not specifically exclude the storage of combustible materials in parking garages.

25The appellant submits that it relies on a section of the OFC that relates to portable fire extinguishers for its position. It submits that Article 6.2.5.2 of the OFC which states that combustible materials of moderate amounts may be expected in areas such as parking garages and that these can be classified as an ordinary hazard. The appellant states that by reference to this section, the OFC accepts that there will be combustible materials in a parking garage.

26The appellant submits that the respondent has not presented any actual evidence of increased fire risk by having household items stored in the Parking Garage. Therefore, the appellant submits that respondent’s interpretation of Sentence 9.6.2.15(1) is inconsistent with the overall objective of the OFC which is to limit the probability of exposure to unacceptable risk of injury due to fire.

27Nadir El Achhab (El Achhab), the property manager, testified for the appellant. He stated that the condo owners had been advised of a new rule, effective August 1, 2021, that only “non-hazardous” materials could be stored in the Storage Lockers. He also testified that the Storage Lockers are in an area equipped with a sprinkler system and that there is a fire monitoring system and a 24-hr concierge on site.

28Michele Farley (Farley), a Fire Code Consultant, also testified for the appellant. Farley concurred with El Achhab’s testimony. She also stated that, based on her observations, due to the close proximity of the Storage Lockers to large carbon monoxide (CO) exhaust fans, it would not be feasible to close off the Storage Lockers from the rest of the Parking Garage. Building a fire separated storage room where the Storage Lockers are currently located would block the ventilation system.

29The appellant submits that the respondent failed to lead evidence that the increased fuel load from the storage of household items in the Storage Lockers would overwhelm the existing sprinkler system.

30Finally, the appellant submits that the Review Decision states that no items can be stored in the Storage Lockers and that too is inconsistent with the objectives of the OFC.

Respondent Submissions

31The respondent submits that Section 9.6 of the OFC applies to the building because it is more than six stories high with more than two dwelling units.

32The respondent submits that a requirement in buildings subject to Section 9.6 is that its parking garage must be fire separated from the remainder of the building by a 1.5-hour fire separation (Sentence 9.6.2.15.(1)). The respondent submits that the Storage Lockers are part of the remainder of the building. This is because the term “building” is defined in the OFC as “any structure used or intended for supporting or sheltering any use or occupancy.” The respondent submits that “any use” or “occupancy” includes the Storage Lockers and therefore they are part of the remainder of the building.

33The respondent also relies on the OFC’s Functional Statements and Objectives⁶ for Sentence 9.6.2.15(1) which are the same as those for the parallel requirement in the Ontario Building Code.⁷ These functional statements and objectives state that the fire-separation is intended to prevent the effects of fire from impacting other areas of a building.

34The respondent rejects the argument that it bears the burden of proving a fire safety risk exists in order to enforce a provision in the OFC. The respondent states that the requirements of the OFC are prescriptive. The inclusion of a requirement in the OFC means on its face that it is intended to address fire safety. The respondent submits that Sentence 6.2.1.15(1) requires a 1.5 hour rated fire separation in order to prevent the spread of fire beyond the point or origin. The respondent states that it does not need to provide further evidence to support why that specific provision of the OFC exists.

35The respondent submits that the Parking Garage must be fire separated from the household items in the Storage Lockers. The OFC only permits storage of vehicles in a parking garage. The respondent submits that the OFC also requires storage rooms to be fire separated from other parts of a building pursuant to Article 9.6.2.7 of the OFC. It submits that it would not make sense that storage lockers in a storage room are required to be fire-separated from the rest of a building, but storage lockers storing the same household goods as those in storage rooms need not be fire separated when in an open area of the Parking Garage.

ANALYSIS

36We find that the appellant has failed to show that the household items stored in the Storage Lockers are in compliance with Sentence 9.6.2.15(1) of the OFC.

37The respondent is required to show some evidence that there is a violation of the OFC. We agree with the respondent that the OFC is prescriptive and therefore the respondent is not required provide evidence to support an increased fire risk associated with the regulation. The Commission does not have the power to refuse the enforce the OFC because it would be impractical to enclose the Storage Lockers due to their location, or because there is a 24-hr concierge on site. Alternatives to compliance are available, such as through the process of obtaining an “acceptable solution” as defined by the OFC. However, no acceptable solution is before the Commission in this appeal.

38The appellants have the burden of proving that it is more likely than not that the storage of household items within the Storage Lockers in the Parking Garage is in compliance with the OFC. The appellant must show that the Storage Lockers and their contents are not part of “the remainder of the building” as stated in Sentence 9.6.2.15:

9.6.2.15. (1) A storage garage shall be separated from the remainder of the building by a fire separation having a fire-resistance rating not less than 1.5 h.

39There is no debate that the Parking Garage, but for the Storage Lockers at issue, is separated from the rest of the building by a 1.5 hour fire separation. There is also no debate that other storage rooms with similar storage lockers exist on floors P1, P2 and P3. However, these storage rooms are separated from the Parking Garage by a 1.5 hour fire separation, and as such are not at issue in this appeal.

40The appellant argues that the Storage Lockers are in compliance because another section of the OFC, Article 6.2.5.2, classifies numerous different occupancies as “ordinary hazards”. This argument is not persuasive.

41Part 6 of the OFC applies to “installation, checking, inspection, testing, maintenance and operation of fire protection equipment and life safety systems.”⁸ Article 6.2.5.2 states that:

6.2.5.2. Where the quantity of combustible material present is such that fires of moderate size may be expected, such as in mercantile occupancies, display rooms, auto showrooms, parking garages, light manufacturing, warehouses not classified as extra hazard and school shop areas, the occupancy shall be graded as ordinary hazard.

42This article helps classify hazards for the purpose of making sure fire protection equipment is adequate for the hazard present.

43There is no ordinary reading of the OFC that would support the appellant’s submission that because a parking garage may contain a moderate amount of combustible material, therefore storage lockers containing combustible material need not comply with Section 9.6. There is no such exception in the OFC. This implied reading of Article 6.2.5.2 would also contradict the explicit provisions of Section 9.6.2.15(1) and Sentence 9.6.2.7(1) that specifically require the fire separation of parking garages and of storage rooms from the rest of the building.

44Fire separation in Section 9.6 is required regardless of the type of hazard classifications. These fire separation requirements exist to prevent fire from spreading from one location in the building to another location in the building.

45The OFC requires that the Parking Garage must be separated from the rest of the building and storage rooms must be separated from the rest of the building. The only logical reading of Section 9.6 is that the Storage Lockers cannot store household items in the Parking Garage. This would satisfy the OFC requirement that the Parking Garage be separated from the rest of the building. Alternatively, the Storage Lockers could be enclosed within a fire separated storage room. This would satisfy the requirement in the OFC that storage rooms are separated from the rest of the building.

46The Commission finds that the logical reading of Sentence 9.6.2.15(1), is that the Parking Garage is to be separated from the rest of the building, including the household items within the Storage Lockers, by a 1.5 hour fire separation. While storage rooms only require a minimum 1 hour separation from the rest of the building (Sentence 9.6.2.7(1)) this is insufficient to meet the fire-separation requirements of the Parking Garage. Therefore, should storage rooms be built around the current location of the Storage Lockers, they would need a 1.5 hour fire separation.

47The appellant has failed to show that the household items stored within the Storage Lockers is in compliance with Sentence 9.6.2.15(1) of the OFC.

ISSUE 3 – Does the exemption under Sentence 9.1.2.2(2) apply to the Storage Lockers?

48Sentence 9.1.2.2(2) of the OFC states as follows:

9.1.2.1. The requirements for buildings that are covered by this Part shall be determined by their occupancies as regulated in the appropriate Sections in this Part.

Exemptions…

(2) Except for Article 9.4.5.5. and Sections 9.7 and 9.9, this Part does not apply to a building or part of a building that satisfies the requirements of the Building Code.

49Section 3.3.5.7 of the 1990 Ontario Building Code (OBC)⁹ states:

3.3.5.7. Storage Garage Separation

A storage garage shall be separated from other occupancies by a fire separation with a fire resistance rating not less than 1.5 h.

Appellant’s Evidence and Submissions

50The appellant submits that the Storage Lockers are in compliance with the OBC and therefore, pursuant to Sentence 9.1.2.2(2), are exempt from the provisions in part 9.6 of the OFC. The appellant submits that the construction of the building began in 1997 and therefore the applicable version is the 1990 Building Code.

51Lezsek Muniak (Muniak), a professional engineer and a member of the Building Code Commission, testified as an expert witness on behalf of the appellant on the limited issue of compliance with the OBC. Supported by Muniak’s testimony, the appellant’s argument is that the OBC divides buildings by major occupancy. For example, a storage garage is one occupancy, and residential areas are another occupancy. The OBC allows for subsidiary occupancies within a major occupancy, such as a small kitchen within an office location. In this case, the appellant argues that the storage of household items within the Storage Lockers are subsidiary to the storage garage occupancy. Therefore, the Storage Lockers do not need to be separated by a fire separation since the storage garage, the major occupancy, is already separated from the remainder of the building by a 1.5 hour fire separation.

52Muniak stated that the OBC does not prohibit different occupancies within a portion of a building when those occupancies are subsidiary. He also stated that there is nothing in the OBC that specifically states that Storage Lockers must be separated from the remainder of a parking garage. He stated, though, that a storage room close to another major occupancy such as a residential occupancy, would be required to comply with a 1 hour fire separation.

53Muniak testified that other jurisdictions including Manitoba and British Columbia have imposed property standard by-laws to allow the storage of combustibles in wire cages in underground parking garages.

54The appellant relies on the interpretation of the following OBC sections: s. 3.3.5.7 (storage garage separation), functional statements associated with s. 3.3.5.7, s. 3.1.2.1.(1) (classification of major occupancies), s. 9.10.2.1 (classification of major occupancies), and the definition of occupancy.

55The appellant submits again that there has been no evidence presented of increased risk of fire or injury from the Storage Lockers to areas outside the Parking Garage.

56The appellant states that the respondent has placed into evidence stamped drawings as evidence that the Storage Lockers were never approved by the City of Toronto Building Department. The appellant submits that no weight should be given to the documents for various reasons including:

a. Only three of possibly one hundred drawings were submitted; b. Other drawings show the Storage Lockers; c. The architectural records of the architects showed the Storage Lockers; d. Toronto Building Department would have inspected the Building prior to allowing occupancy; e. Toronto Building Department has not taken any steps to enforce an OBC violation against the appellant or individual owners of the Storage Lockers; and f. There is no evidence from the Toronto Building Department that the Storage Lockers are in violation of the OBC.

57The appellant submits that there is no evidence that the Storage Lockers were not approved by the Toronto Building Department and therefore the onus is on the respondent to show non-compliance with the OBC.

Respondent’s Evidence

58The respondent submits that the onus is on the appellant to establish that the OBC permits the Storage Lockers to be located in the Parking Garage without having a fire separation.

59The respondent agrees that the 1990 OBC is the correct version applicable to the building. The respondent also agrees that Article 3.3.5.7 of the OBC is applicable to the building. The respondent’s interpretation of that section is that the Parking Garage is to be separated from the other occupancies with a fire resistance rating of not less than 1.5 hours.

60The respondent relied on the expert report and testimony of Thuy Nguyen (Nguyen), fire protection engineer with Toronto Fire Services, on the issue of OBC compliance. One of Nguyen’s primary duties is the interpretation of OBC requirements as they relate to OFC enforcement. Nguyen visited the building and made observations of the Parking Garage and the Storage Lockers. He confirmed that the storage lockers within storage rooms are not at issue in this appeal because they are separated from the storage garage by concrete block walls providing a two-hour rated fire separation and are accessed through a fire-rated door. The wire cages within the separated storage locker rooms are of the same design as the wire cages of the subject Storage Lockers.

61Nguyen requested approved building permit records from the City of Toronto archives. Through that request he obtained approved drawings of the Building’s Parking Garage, ground floor to eleventh floor, mechanical, electrical and structural drawings. In his report he only referred to three drawings: A2-1, A202 and A2-3 that show the levels P3, P2, and P1, respectively, of the Parking Garage (Approved Drawings).

62Nguyen testified that the Approved Drawings are signed by the architect and have stamps indicating approval by the Toronto Building Department. The date on the Approved Drawings is September 2, 1998. Nguyen testified that the Approved Drawings indicate that where the Storage Lockers are currently located, the area is labelled as “bicycle storage” and is surrounded by chain link fencing. The Approved Drawings show 29 bicycle storage spaces in each of the Parking Garage levels. Nguyen testified that the same Approved Drawings show “locker rooms” in fire separated areas where the storage rooms are now located. Nguyen also testified that on the P3 level there is a lone unseparated Storage Locker subject to this appeal. In the Approved Drawings, that area is labeled as a dead-end corridor.

63Nguyen testified that the Approved Drawings show that only bicycle storage was approved by the Toronto Building Department where the Storage Lockers are currently located. He testified that he would have expected to see a note or further approval letter attached to the Approved Drawings had they granted a variance to the permit to allow for the construction of the Storage Lockers in the open area of the Parking Garage.

64Nguyen disputed the relevance of the appellant’s record drawings dated May 16, 2000 (Record Drawings). Nguyen testified that record drawings are ordered by the owner of a property to show the property “as built.” He stated that the Record Drawings are not stamped by the Toronto Building Department, nor are they stamped by the architect. The Record Drawings show that the Storage Lockers are labelled “Bicycle Storage Lockers” as distinguished from the fire-separated storage rooms not at issue which are labelled “Lockers.” Further, the lone Storage Locker in P3 is not shown as a dead-end corridor but as a fire-separated storage room. Nguyen testified that based on his observations, the lone Storage Locker on P3 is not fire-separated.

65Nguyen testified that the Chief Building Official, in this case Toronto Building Department, is authorized to approve construction in compliance with the OBC. Here only bicycle storage was approved by the Chief Building Official, as shown by the stamped Approved Drawings. Therefore, only bicycle storage is deemed in compliance with the OBC.

66Nguyen testified that the industry standard interpretation of the separation of parking garages from other occupancies in the OBC means the separation of uses not central to the operation of a parking garage. He stated that removing the Storage Lockers that store household goods from the Parking Garage would not affect the primary function of the Parking Garage. Therefore, he concluded that the Storage Lockers are a separate use and therefore a separate occupancy and should be fire-separated.

67Nguyen testified that the OBC requires storage rooms to be fire separated from the remainder of the building by a minimum 1 hour fire separation.

68Nguyen opposed the appellant’s interpretation of “other occupancies” in OBC Article 3.3.5.7. He did not agree that since the Parking Garage is classified as a low hazard industrial occupancy, the same as for storage of general goods, there is no need for a fire separation between the two. Nguyen stated that this goes against industry standard interpretation and is inconsistent with the OBC requirements that storage rooms are to be separated from the remainder of a building. Nguyen also relied on three decisions issued by the Building Code Appeal Board of British Columbia which found that storage lockers located in parking garages required a 1.5 hour fire separation between the storage lockers and the parking garage.¹⁰ All three decisions determined that the storage lockers at issue in those cases were a different occupancy from the parking garage.

69The respondent also objects to any weight being placed on Muniak’s expert report. Muniak testified that he was not the author of the report, but that he agreed with its contents. The respondent does not challenge Muniak’s qualifications but states that Muniak had limited information about the building and did not visit it. In response to Muniak’s testimony regarding various municipal by-laws from outside Ontario, the respondent submits that even if such a by-law existed in the City of Toronto it would not serve as an interpretive aid to the OBC.

70The respondent submits that the Storage Lockers are not in compliance with the OBC and therefore the exemption in Sentence 9.1.2.2(2) of the OFC does not apply.

ANALYSIS

71The Commission finds that the appellant has not met its burden to show that the Storage Lockers and their contents are in compliance with the OBC and are therefore subject to the exemption in Sentence 9.1.2.2(2) of the OFC.

72The Commission permitted expert evidence on whether the building was in compliance with the OBC because the OBC is a piece of legislation outside of the jurisdiction of the Commission. While the OBC may contain similar, if not identical provisions, it is worth noting that there is a separate tribunal – the Building Code Commission - that has jurisdiction to resolve disputes on the technical requirements of the OBC. The Commission can only determine whether there is evidence to show that the Storage Lockers are in compliance with the OBC such that they fall within the exemption provided for in Sentence 9.1.2.2(2) of the OFC. The Commission cannot determine compliance with the OBC as that is not within our jurisdiction. We can only determine compliance with the OFC.

73The appellant has not provided approved drawings showing that the Chief Building Official, in this case the Toronto Building Department, approved the construction of the Storage Lockers in the open area of the Parking Garage. The Approved Drawings only show bicycle storage in the areas which are now occupied by the unseparated Storage Lockers. At the same time the Approved Drawings do show the fire-separated storage rooms in the Parking Garage. The appellant’s Record Drawings do not prove that the Storage Lockers were approved by the Chief Building Official since they do not have the Toronto Building Department stamp. Muniak agreed that it was unclear whether or not the Storage Lockers were present when the Toronto Building Department gave final approval to the building. He also agreed that the final Building inspection of the condominium would have been before occupancy, and therefore the caged areas, labeled bicycle storage on the drawings, would have been empty. Therefore, no assumption can be made that the Toronto Building Department approved the Storage Lockers for the storage of household materials.

74The Commission finds that the Storage Lockers in the open area of the Parking Garage needed an exemption from the OBC in order to be in compliance with the OBC. On this issue, there was little, if no, dispute among the experts Muniak and Nguyen.¹¹ Both Muniak and Nguyen agreed that normally, storage rooms are within fire separated areas. The storage lockers within fire separated storage rooms in the Parking Garage were approved by the Toronto Building Department. There is no evidence of approval for the Storage Lockers in the open area of the garage. The only approved used of the Storage Lockers was for bicycle storage.

75Muniak agreed that he would have expected to see a specific exemption granted for the unseparated Storage Lockers in the Parking Garage. Nguyen stated that he was unable to locate a specific approval letter or variance for the Storage Lockers. The appellant has not provided evidence of that specific exemption.

76It would be illogical to find that a specific exemption is required under the OBC for the Storage Lockers to exist in their current configuration and at the same time find that the Storage Lockers are in compliance with the OBC. The only possible conclusion is that the Storage Lockers are not in compliance with the OBC and there is no evidence that they have been approved by the Chief Building Official. There is therefore no evidence of compliance with the OBC.

77Given the lack of evidence of compliance with the OBC, the appellant cannot rely on the exemption under Sentence 9.1.2.2(2) of the OFC.

CONCLUSION

78The Storage Lockers on all three parking levels and the lone Storage Locker on level P3 are currently being used for the storage of combustible household material. As these wired storage cages are not fire-separated from the Parking Garage, they are not in compliance with the OFC.

79Both parties agree that bicycle storage is permitted in the Storage Lockers. As a result, the Review Decision is amended to expressly permit the storage of bicycles in the Storage Lockers as approved by the Chief Building Official in the stamped 1998 drawings.

80The Review Decision contained a compliance date of December 3, 2021. While the parties did not make submissions with regard to an extension to the compliance date, the panel felt it was reasonable to provide some time after the release of this decision for the appellant to comply.

81The Review Decision is confirmed with the above noted amendments.

ORDER

82The Review Decision is amended to permit the storage of bicycles in the areas designated for bicycle storage by the Chief Building Official in the Approved Drawings dated September 2, 1998.

83Therefore, the appellant is ordered as follows:

1. Remove all stored items, except for bicycles, in the Storage Lockers located on parking levels P-1, P-2, and P-3; or
2. Separate the Storage Lockers from the Parking Garage with fire separations having a fire resistance rating not less than 1.5 hours. Openings in these fire separations are permitted provided that they consist of closures having a fire protection rating of at least 45 minutes and are equipped with positive latching and self-closing devices.

84The compliance date is amended to March 31, 2023.

Footnotes

1. 1S.O. 1997, c. 4
2. 2O.Reg. 213/07
3. 3The OFC refers to a “storage garage”. In this decision we will refer to that as a “parking garage”.
4. 4All further OFC references will be to Division B, except where expressly stated.
5. 5S.O. 1998, c. 19
6. 6Attributes described in Table 9, Fire Code Supplement FCS-1, and further defined in Parts 2 and 3, Division A of the OFC.
7. 7Note that Functional Statements were introduced to the Ontario Building Code in 2006, which is after the construction of the building. As such little weight was placed on these.
8. 8Article 6.1.1.1.
9. 9O. Reg 413/90
10. 10Decision BCAB#1411, dated January 17, 1996, Decision BCAB #1588, dated August 20, 2003, Decision BCAB#1650, dated September 17, 2008.
11. 11Muniak testified that he did not write the appellant’s expert report and therefore no weight is placed on that report.