FIRE SAFETY COMMISSION

Tribunals Ontario

COMMISSION DE LA SÉCURITÉ-INCENDIE

Tribunaux décisionnels Ontario

Citation: Brian Topping v London Fire Department, 2023 ONFSC 25

Date: 2023-09-18

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

Between:

Brian Topping, c/o Rosedale Transport Ltd. Appellant

and

London Fire Department Respondent

DECISION AND ORDER

PANEL: Susan Clarke, Vice-Chair Anxhela (Angela) Peco, Member

APPEARANCES:

For the Appellant: Brian Topping, Director, Safety, Rosedale Transport Ltd.

For the Respondent: Brennan Hamilton, Fire Prevention Inspector, London Fire Department

Held by videoconference: July 31, 2023

OVERVIEW

1Rosedale Transport Ltd. (the appellant) is a transportation and warehousing company that operates in Canada and the United States. It occupies part of a building located at 3960 Commerce Road in London, Ontario (building).¹ It appeals an Inspection Order that was confirmed by the Fire Marshal in a Review Decision and Order (Review Decision) on the basis that the company is federally regulated and is not subject to the Ontario Fire Code (OFC)².

2Brennan Hamilton of the London Fire Department (respondent) inspected the building and served the Inspection Order on May 26, 2022, pursuant to clause 21(1)(g) of the Fire Protection and Prevention Act, 1997 (FPPA)³, which provides for remedying a contravention of the OFC. An order made under s. 21(1) must be necessary to ensure the fire safety of the building.

3The Inspection Order cited a contravention of OFC Sentence 3.4.2.1.(4) and required installation of a portable fire extinguisher on each of the four fuel-fired industrial trucks (forklifts) located in the warehouse the appellant operates. The Inspection Order provided a compliance date of June 24, 2022.

4The appellant appealed the Inspection Order to the Fire Marshal, who issued a Review Decision (FM-22162) that confirmed the Inspection Order on May 9, 2023. The compliance date was amended to June 13, 2023.

5On May 10, 2023, the appellant appealed the Review Decision to the Fire Safety Commission (Commission) pursuant to s. 26(1) of the FPPA and seeks to have the Review Decision rescinded.

6The respondent asks the Commission to confirm the Review Decision and to require compliance within 30 days of our decision date.

ISSUE

7Should the Commission confirm, amend, or rescind the Review Decision, or make such other order as the Commission deems appropriate?

RESULT

8Pursuant to s. 26(6) of the FPPA, the Commission confirms the Review Decision and orders the appellant to install a fire extinguisher on each of the four forklifts operating at its warehouse in London, Ontario. The compliance date is within three months of the release date of this decision.

EVIDENCE AND ANAYSIS

Appellant’s Evidence and Submissions

9Brian Topping testified for the appellant in his capacity as Director, Safety at Rosedale Transport Ltd. He described the work the company performs, including the operations of the warehouse where the forklifts are located. He stated that the four forklifts do not leave the 897-square-foot warehouse. Five extinguishers are installed on the warehouse walls, which Mr. Topping said were “mere steps” from anyone who is operating a forklift and could be easily accessed in the event of a fire.

10Mr. Topping submitted that as a federally regulated company, Rosedale Transport Ltd. is subject to the Canada Labour Code⁴ and its Canada Occupational Health and Safety Regulations (Regulations)⁵. The appellant relied on the Regulations to outline the fire extinguisher requirements for material handling equipment used in federally regulated workplaces.

11Specifically, the appellant cited s. 14.12(1) of the Regulations, which states, in part, that an employer shall equip motorized materials handling equipment with a fire extinguisher. Section 14.12(2) lists the requirements for these fire extinguishers, including that they need to meet the standards set out in the National Fire Code and be readily accessible to the operator of the motorized equipment while they are in the operating position.

12However, s. 14.12(3) of the Regulations carves out an exception. It states that the above-noted requirements do not apply if the motorized equipment is used exclusively within a building that has fire extinguishers required by a different section of the Regulations.

13The appellant relied on this exception for two reasons:

1. To show that the workplace is already regulated in terms of fire safety by the Canada Labour Code⁶, and that applying the OFC requirements would result in “double regulation”; and

2. To prove that the fire extinguishers installed on the warehouse walls meet the requirements in the Regulations, and that the extinguishers are not required on the forklifts since the forklifts never leave the warehouse.

14In the alternative, the appellant asked for more time to comply with the Inspection Order and requested until the end of 2023 to procure fire extinguishers, which may not be readily available for purchase.

Respondent’s Evidence and Submissions

15Inspectors Brennan Hamilton and Janet Wiper testified for the respondent. Inspector Wiper was present during the inspection and testified that she was not aware of anything that would prevent application of the OFC to this situation.

16Inspector Hamilton described the general layout of the building, what he observed during the inspection, and the rationale for his Inspection Order. He issued the Inspection Order under OFC Sentence 3.4.2.1.(4), which reads:

“Each fuel-fired industrial truck shall be equipped with at least one portable extinguisher having a minimum rating of 2A:30B:C”.

17With reference to OFC’s functional statements, Inspector Hamilton stated that the purpose of requiring a fire extinguisher on each forklift, which is fueled by a combustible gas (propane), is to “limit the severity and effects of a fire or explosion” and to “facilitate an emergency response.”⁷

18In response to the appellant’s argument that the OFC does not apply because Rosedale Transport Ltd. is a federally regulated company, the respondent did not contest that Rosedale Transport Ltd. is subject to the Canada Labour Code but submitted that the OFC still applied.

19The respondent argued that the land at 3960 Commerce Road was privately-owned by an Ontario company – it was therefore not federally or provincially owned, and the OFC applies. He also submitted that to the extent that there was a conflict between the OFC and the Canada Labour Code requirements, the appellant had not pointed to any authority to support his argument that the less stringent Canada Labour Code requirements should prevail.

Analysis

20It is not disputed that Rosedale Transport Ltd. has fuel-fired forklifts in its warehouse and none are equipped with a portable extinguisher.

21It is also not disputed that Rosedale Transport Ltd. engages in federally-regulated business activity and is subject to the Canada Labour Code and its Regulations. The issue on this appeal is whether the appellant’s status as a federally-regulated business and workplace exempts it from needing to comply with Ontario fire safety regulations. We find that it does not.

22The burden of proof on this appeal is on the appellant, who seeks to have the Review Decision rescinded. The appellant has not identified any authority to support his position that the OFC does not apply.

23The OFC is a provincial regulation made under the FPPA and contains fire safety requirements that apply to existing buildings in Ontario.

24Certain buildings are exempt from complying with the OFC, including federally owned government buildings.

25We considered the respondent’s evidence that 3960 Commerce Road is privately-owned land⁸ and not federally-owned, and thus not exempt from the OFC. The building was also constructed to meet the requirements of the Ontario Building Code (as evidenced through a building permit). Both of these factors weigh in favour of finding that the OFC applies to the building.

26Having found that the OFC applies to the building, we then considered if there was any other basis, including in the language of the OFC, that would exempt the appellant from complying with this particular fire extinguisher requirement.

27The respondent argued, and we agree, that OFC Division A, Article 1.2.3.1. speaks to situations where there might be regulatory overlap or duplication.

28First, the article states that compliance with the OFC does not relieve an owner from compliance with other acts and regulations. It goes on to state that where a requirement in another act or regulation conflicts with an OFC requirement, the more stringent requirement prevails, unless the more stringent requirement is in the OFC and the OFC says that the other act or regulation prevails.

29Practically speaking, this means four things:

1. Compliance with the OFC does not relieve the appellant from compliance with federal labour legislation, which there is no dispute the company needs to comply with.

2. At the same time, compliance with the more stringent OFC fire extinguisher requirement would not render the appellant non-compliant with federal labour legislation. The Regulations may not require the appellant to install fire extinguishers on the forklifts, but they also do not state that the appellant must not install fire extinguishers on the forklifts. Therefore, this is not a case where the OFC requires action that would be illegal or impermissible under another act, or that would otherwise interfere with the appellant’s ability to comply with that other act.

3. To the extent that there is a conflict between the OFC and the Regulations, and it stems from the different standards they each have, the OFC provides guidance on how to resolve this very issue. OFC Division A, Article 1.2.3.1. states where a conflict exists, the more stringent requirement in the OFC prevails. While the Regulations may not require fire extinguishers on each forklift if certain conditions are met, the OFC does, and that requirement prevails.

4. The one exception to this rule is when the OFC itself states that the other, less stringent, act or regulation prevails when there is a conflict. The appellant has not identified, and we are not aware of, any provision in the OFC that states that the Regulations’ less stringent requirement prevails. We therefore confirm the Review Decision.

30As the Inspection Order was issued under s. 21(1)(g) of the FPPA, citing a contravention of the OFC, and we find that there has been a contravention of the OFC by not having fire extinguishers on the forklifts, the appellant is ordered to install them.

ORDER

31The Commission confirms the Review Decision and orders the appellant to equip each forklift with at least one portable extinguisher having a minimum rating of 2A:30B:C.

32The Commission amends the compliance date in the Review Decision. Taking note of the appellant’s submission that it may be difficult to source this type of fire extinguisher, we provide three months from the date of this decision for compliance.

33The appellant shall order the fire extinguishers within 14 days of the release of this decision. He shall provide evidence of the order to the respondent on the same date, indicating when the order is expected to arrive.

34If the appellant receives notification that the order is delayed, he should immediately advise the respondent, providing a new date when the order is expected.

35The appellant shall install the fire extinguishers on each forklift within 2 business days of receiving them.

Footnotes

1. 1The building is an industrial occupancy, two storeys in height, and contains multiple units. It is owned by Invader Title Inc.
2. 2O. Reg. 213/07. Unless otherwise noted, all references are to Division B of the OFC.
3. 3S.O. 1997, Ch. 4.
4. 4RSC 1985, c L-2.
5. 5SOR/86/304.
6. 6Following the hearing, the appellant filed additional evidence in the form of a Jurisdiction Determination Letter from Employment and Social Development Canada, confirming that Rosedale Transport Ltd. falls under “federal jurisdiction for the purposes of labour legislation” because it engages in “interprovincial road transportation.” The respondent was given an opportunity to make submissions regarding this letter and did not contest the jurisdiction determination for labour purposes.
7. 7OFC Division A, Article 3.2.1.1.
8. 8Property ownership details in Exhibit 9 showed the parcel is owned by Invader Title Inc.