Citation: Dunn v Toronto Fire Services, 2024 ONFSC 15734 31

Date: June 19, 2024

Appeal under s. 26 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4

Between

Gerry Dunn

Applicant

and

Toronto Fire Services

Respondent

ORDER

Order Made By: Susan Clarke, Managing Vice Chair (A) Ziba Heydarian, Vice Chair

For the Appellant: Gerry Dunn, the Appellant Evan Dunn, the Appellant’s representative

For the Respondent: Emma Luca, Counsel

Heard by Videoconference: June 6, 2024

OVERVIEW

1Gerry Dunn, the Appellant, is a tenant at 2383 Danforth Avenue (“Building”) in Toronto, Ontario. The Building is a residential occupancy that is three stories plus basement in building height and contains six units.

2Kevin Godward, Inspector with Toronto Fire Services, the Respondent, inspected the building on October 13, 2022. Inspector Godward issued an Inspection Order pursuant to clause 21(1)(g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”), which requires an owner to remedy a contravention of the Ontario Fire Code (O.Reg. 213/07, as amended) (“OFC”). The Order was issued to Canada Mortgage Housing, the owner of the premises, and a copy of the notice was posted at the Building.

3The Inspection Order required the following work to be completed by December 16, 2022:

1. Item 1: To remove all resident belongings from the fire escape, referencing OFC Sentence 2.4.1.1.(2), Division B as follows:

Combustible materials shall not be accumulated in any part of an elevator shaft, ventilation shaft, means of egress, service room or service space, unless the location, room or space is designed for those materials.

2. Item 2: To remove all resident belongings from the fire escape, referencing OFC 2.7.1.7. (1), as follows:

Means of egress shall be maintained in good repair and free of obstructions.

4The Appellant requested a Fire Marshal review of the Inspection Order pursuant to s. 25 of the FPPA.

5On February 29, 2024, the Fire Marshal issued Fire Marshal Decision and Review Order FM-22376 (“Review Order”), in which item 1 of the Order was confirmed and item two was rescinded. The compliance date was amended to March 29, 2024 due to the stay of the Inspection Order at the time the Review was requested.

6The Appellant appealed the Review Order to the Fire Safety Commission (“Commission”) on March 20, 2024 pursuant to s. 26(1) of the FPPA. The Appellant’s Notice of Appeal indicated that he was appealing item 1 on the following grounds:

1. The furniture on his balcony is all metal and cannot burn.
2. The fire shutter in the window adjacent to his balcony would prevent fire from reaching the balcony.

RESPONDENT’S PRE-HEARING MOTION

7The Respondent brought a pre-hearing motion requesting that the Commission amend Item 1 of the Review Order to read:

Remove all combustible materials from the fire escape.

8In support of its request, the Respondent noted that the original wording in the Inspection Order described the required action to “remove all resident belongings from fire escape” as overly restrictive, and that OFC Sentence 2.4.1.1.(2), Division B of the applies only to combustible materials.

9The Respondent submitted that in a recent inspection conducted by Inspector Godward of the Appellant’s fire escape/balcony area adjacent to the Appellant’s apartment, he was in compliance with Sentence 2.4.1.1.(2).

10The Appellant did not dispute the motion.

11The parties agreed that if the Commission amended the Review Order, the appeal would be disposed of since the parties agreed that the Appellant was in compliance with Sentence 2.4.1.1.(2), Division B of the OFC, which is reflected in the amended language.

RESULT

12On consent of the parties, the Commission amends Item 1 of the Review Order as follows:

1Remove all combustible materials from the fire escape.

13The appeal is disposed of.

LEGISLATION and ANALYSIS

The Commission’s Power to Issue a Consent Order without holding a Hearing

14Section 4.1 of the Statutory Powers and Procedures Act (R.S.O. 1990, ch. S22) (“SPPA”) states the following:

If the parties consent, a proceeding may be disposed of by a decision of the tribunal given without a hearing, unless another Act or a regulation that applies to the proceeding provides otherwise.

15Nothing in the FPPA limits the application of section 4.1 of the SPPA.

16On this basis, the Commission has the power to issue an order without a hearing on the parties’ consent.

The effect of Amending the Review Order

17OFC Sentence 2.4.1.1.(2) states that combustible materials shall not be accumulated in a means of egress, unless the location, room or space is designed for those materials.

18The parties both submitted that the Inspection Order, confirmed by the Fire Marshal Delegate, which required removal of all resident belongings from the fire escape (a means of egress), was overly restrictive and not consistent with the wording in the OFC.

19Both parties consented to the Respondent’s motion to amend the wording of Item 1 of the Review Order to reflect the actual wording in OFC Sentence 2.4.1.1.(2).

20The proposed amendment does not provide new obligations for the other tenants or owner, it merely narrows the parameters of the Review Order to “combustible materials” rather than “residents belongings”, which would have been broader in its application.

Amending the Compliance Date

21The Inspection Order ordered compliance of Items 1 and 2 by December 16, 2022.

22The Fire Marshal Delegate amended the compliance date for Item 1 to March 29, 2024 because the work required to comply with the Inspection Order was stayed pending the outcome of the Fire Marshal Review, as stated in s. 25(6) of the FPPA.

23When the appellant appealed the Review Order, s. 26(7) of the FPPA stayed the Review Order pending the outcome of this appeal.

24The Commission therefore amends the compliance date to July 5, 2024. The reason for this is that while neither the owner of the Building, nor the other tenants appealed the Inspection Order or the Review Order, the request for the Fire Marshal Review and the subsequent appeal to the FSC stayed the work ordered for the owner and all tenants.

25The Respondent did not make submissions regarding compliance with the Review Order for anyone other than the Appellant. For this reason, and because the Review Order was stayed, the Commission amends the compliance date to July 5, 2024 to provide two weeks from the time this Order is served on the owner and other tenants (occupants) to remove all combustible items from the fire escape.

ORDER

26On consent of the parties, the Commission amends Item 1 of the Review Order as follows:

1. Remove all combustible materials from the fire escape.

27The Commission further amends the compliance date for Item 1 to July 5, 2024.

28A copy of this Order shall be served by the Respondent on the owner and other tenants of the Building no later than June 21, 2024. The occupants of the building may be served by posting a copy in a conspicuous place in or outside the building.