Hasselsjo v. Hamilton Fire Department, 2024 ONFSC 15968

Hasselsjo v. Hamilton Fire Department, 2024 ONFSC 15968

Citation: Hasselsjo v. Hamilton Fire Department, 2024 ONFSC 15968 33 Date: 08/13/2024

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

Between:

Songja Hasselsjo Appellant

and

Hamilton Fire Department Respondent

MOTION DECISION AND ORDER

ADJUDICATOR: Susan Clarke, Managing Vice Chair (A)

For the Appellant: Songja Hasselsjo, self-represented For the Respondent: Stephen Chisholm, Counsel

Held in writing: July 25, 2024

OVERVIEW

1Songja Hasselsjo, the appellant, is the tenant of Unit 911 in a multi-unit residential building located at 123 Charlton Avenue East, in the City of Hamilton (the building).

2On May 15, 2024, Inspector Eric Schafranek of Hamilton Fire Department, the respondent, inspected Unit 911 at the building. On May 22, 2024 Inspector Schafranek issued an Inspection Order (#16315) by mail on Dernetro Holdings Ltd., the owner of the building. The Inspection Order included three Items to be complied with by June 24, 2024, all related to removing combustible content from the appellant’s apartment:

a. Create a 914 mm wide aisle, clear of combustibles, from every room in the apartment to its entry door;

b. Create a 914 mm area, clear of combustibles, from the stove, electric baseboard heaters, electrical wall outlets and any other sources of heat; and

c. Reduce the height of stored combustible material to a height not to exceed 914 mm, and storage piles to be arranged and stabilized so they can’t collapse and imped the required means of egress.

3A copy of the Inspection Order was served on the building tenants, including the appellant, by posting it in a conspicuous place pursuant to s. 24(2) of the Fire Protection and Prevention Act, 1997, S.O. 1997, ch. 4 (FPPA).

4The appellant requested a Fire Marshal Review of the Inspection Order on May 22, 2024. The Fire Marshal exercised its powers pursuant to s. 25(4) of the FPPA and referred the matter to the Fire Safety Commission (the Commission) for a hearing under s. 26.

5At the case conference held on June 27, 2024 the respondent requested via a motion that the Commission dismiss the appellant’s appeal without a hearing and a written motion hearing was scheduled.

ISSUE

6In its motion, the respondent seeks a dismissal of the appeal without a hearing under Rule 3.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules).

RESULT

7The respondent’s motion is granted. The Commission dismisses the appeal without a hearing on the grounds that it is frivolous, vexatious, and commenced in bad faith, satisfying Rule 3.4(a) of the Rules.

ANALYSIS AND REASONS

a) The 2022 Inspection Orders

8The respondent’s evidence is that:

a. The respondent issued an inspection order on April 26, 2022 on Dernetro Holdings Ltd., the building owner at that time, and posted the same order in the front lobby of the building;

b. The respondent issued an identical inspection order on April 26, 2022 on Songja Hasselsjo, the tenant of Unit 911 in the building;

c. The appellant appealed the April 26, 2022 inspection order to the Commission, which confirmed it by way of a decision dated December 16, 2022;

d. The appellant then commenced but did not perfect an appeal of the Commission’s decision to Divisional Court. She did not file a factum or other required documents necessary to carry the appeal forward;

e. The appellant also brought a motion in Divisional Court seeking a stay of enforcement, but was unsuccessful in a decision dated January 30, 2023¹.

f. The Commission also heard an appeal of the April 26, 2022 inspection order issued to Dernetro Holdings Ltd. The Commission confirmed the inspection order in its decision dated March 7, 2024; and

g. Dernetro Holdings Ltd. appealed the Commission’s decision to Divisional Court but withdrew the appeal² in light of the sale of the building.

b) The 2024 Inspection Order

9The respondent’s evidence is that:

a. Dernetro Holdings Ltd. sold the building to Oakland Square GP Inc.;

b. The respondent conducted a follow-up inspection of Unit 911 on May 15, 2024 and determined that the prior inspection orders, confirmed by the Commission had not been complied with;

c. The respondent issued an inspection order on Oakland Square GP Inc. on May 22, 2024, and posted the same order in the front lobby of the building. The content of the inspection order is identical to the 2022 inspection orders issued previously to Dernetro Holdings Ltd. and the appellant; and

d. Oakland Square GP Inc. did not appeal the inspection order, and the time to appeal has now expired. It was the appellant that requested a Fire Marshal Review of the inspection order, and the Fire Marshal referred the matter to the Commission.

Notice of Intent to Dismiss

10The parties participated in a case conference before me on June 27, 2024 during which the respondent requested that I dismiss the appeal under Rule 3.4 of the Rules. The parties consented to file written submissions on the issue, including due dates and page limits. I issued a Notice of Intent to Dismiss as part of the case conference report and order, which was released on July 2, 2024.

11Rule 3.4(a) permits the Commission to dismiss an appeal without a hearing if it is frivolous, vexatious, or commenced in bad faith. Before dismissing an appeal under Rule 3, however, Rule 3.5 requires the Commission to first:

a. Give the parties notice of its intention to dismiss;

b. Provide the reasons for its intention to dismiss;

c. Inform the parties of their right to make written submissions to the Tribunal within the time limits set out in the notice, which shall be at least 5 days; and

d. Consider any written submissions provided.

12The Commission received the party’s submissions on time and a written hearing was scheduled to consider them.

The parties’ positions and conclusions

13The respondent submitted that the issues raised on the appellant’s appeal offend the doctrine of res judicata, in that the factual and legal issues identified by the appellant are those already litigated and determined by the Commission in her appeal of the April 26, 2022 inspection order. The respondent submits that the issues in the appeal have already been finally decided, and that although the owner of the building has changed, there has been no other material change and it would be a legal and practical absurdity to re-litigate the same factual pattern for the third time. The respondent submits that the appeal is therefore outside the jurisdiction of the Commission, an abuse of process, and frivolous.

14The appellant’s position on the motion is as follows:

a. The respondent’s application to the Commission for Authorization to do the work set out in the 2022 inspection order (confirmed by the Commission on December 16, 2022), was dismissed by the Commission in its decision dated April 6, 2024³;

b. The entry into her dwelling unit by the respondent, and taking photographs is not permitted if not stated in the lease, citing Juhasz v. Hymas.⁴ The Fire Marshal (possibly meant the Commission given that she named the Member who heard the previous appeal) was influenced by photographs taken by the respondent;

c. As of May 15, 2024, the appellant is being fined $20,000 per day as a result of other parallel proceedings;

d. The appellant has filed a civil suit filed against the respondent; and

e. The appellant also appeared to seek costs of the motion although her submissions on this request were not clear.

15The appellant did not make any submissions regarding the motion seeking to dismiss this appeal, except in the final paragraph of her submissions where she states:

Chisholm …state appellant’s appeal offends the principle of res judicata but the matter of Schafranek’s 4.19.2022 illegal entry/taking photographs never decided at any court/tribunals/international criminal court how can it (appeal containing $20,000 per day pay cost) offend Res Judicata.

16In her application for Fire Marshal Review of the 2024 inspection order, the appellant made the same arguments that were made in her previous appeal of the 2022 inspection order served on her. While it is difficult to follow much of her argument because it is handwritten and somewhat illegible, the main points appear to be much the same. The appellant also asked for time to comply as she is waiting for an eviction hearing decision. She asks for nine months to comply.

17I find that the appellant’s appeal of the 2024 inspection order served on the owner, Oakland Square GP Inc., is an attempt to re-litigate her appeal of the 2022 inspection order served on her.

18As described above in the “History of the Proceedings” section, the appellant’s appeal of the original 2022 inspection order was decided by the Commission on December 16, 2022. Her appeal to Divisional Court was not perfected, and her stay of enforcement was unsuccessful. Her submissions do not relate to the Motion filed by the respondent, but describe again her grounds of appeal of the 2022 inspection order. As such, I find the appellant’s appeal is frivolous and vexatious.

19I also find the appellant’s appeal to have been commenced in bad faith. I have elected not to repeat her claims here as they contain racial slurs, personal attacks, and malicious claims. I have reviewed these and believe her appeal, at least in part, is motivated by ill will and hostility.

20I agree with the respondent that it would be a legal and practical absurdity to permit the appellant to re-litigate the same fact pattern again. I further agree that the present appeal engages Rule 3.4(a) which enables the Commission to dismiss appeals without a hearing if the appeal is found to be frivolous, vexatious, or commenced in bad faith.

21I am not persuaded that the doctrine of res judicata has been met regarding ownership, because the parties are not the same in the 2022 and 2024 inspection orders served on the original and current owners, respectively. While I am alive to the respondent’s submissions on the doctrine of res judicata, it is unnecessary for me to determine whether all four requirements of the common law doctrine have been met, as the Common Rules provide an adequate framework to address the issues raised in this motion.

22In conclusion, I dismiss the appeal of the current order on the basis that it is frivolous, vexatious, and commenced in bad faith, satisfying the conditions of Rule 3.4(a) of the Rules.

ORDER

23The respondent’s motion is granted. The Commission dismisses the appeal without a hearing on the grounds that it is frivolous, vexatious and commenced in bad faith, satisfying Rule 3.4(a) of the Rules.

Footnotes

1. 1Endorsement by Justic Sheard, SCJ File No: DC-23-00176, Jan. 30, 2023
2. 2Notice of Abandonment, Divisional Court File No: DC-24-00000278-0000, May 7, 2024
3. 3Hamilton Fire Department v. Songja Hasselsjo, 2024 ONFSC 29
4. 4Juhasz v. Hymas, 2016 ONSC 1650 File No. 328/15 TSL-59801-15