Hillcrest Properties 1 and 2 Ltd. v. Hamilton Fire Department, 2024 ONFSC 27
Appeal under s. 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4.
Between:
Hillcrest Properties 1 and 2 Ltd. Appellant
and
Hamilton Fire Department Respondent
DECISION AND ORDER
Panel: Ziba Heydarian, Vice-Chair Rocco Iamello, Member
Appearances: For the Appellant: Michael Jaeger, Counsel Peter Dyakowski, Owner For the Respondent: Jessica Hamilton, Counsel Eric Shafranek, Inspector Tom McDermott, Inspector Peter DeBoer, Chief Fire Prevention Officer
Heard by Video Conference: November 8 and 9, 2023
OVERVIEW
1Hillcrest Properties 1 and 2 Ltd. (the “Appellant”) owns the buildings located at 33 and 35 Dundurn St. South, and 47 and 49 Dundurn St. South in Hamilton, Ontario (the “Buildings”). The Buildings are semi-detached residential dwellings, two-storeys in height, each containing their own cooking, dining, living, sleeping and sanitary facilities. Inspector Schafranek of the Hamilton Fire Services (the “Respondent”) described each Building to be operating as a lodging house.
2On October 27, 2021, Inspector Schafranek and Inspector Tom McDermott inspected the Buildings and issued various inspection orders (“Inspection Orders”) to the Appellant on January 27, 2022. The Inspection Orders were issued under s. 21(1)(g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”), which provides for remedying any violation of the Ontario Fire Code, O. Reg. 213/07 (“OFC”). An order made under s. 21(1) must be necessary to ensure the fire safety of the building. Among other things, the Inspection Orders cited a contravention of OFC Article 9.3.3.1 and required that each floor area in the Buildings be served by at least two exits.
3On February 16, 2022, the Appellant requested Fire Marshal Reviews of the Inspection Orders pursuant to s. 25 of the FPPA. On March 14, 2023, the Fire Marshal issued four Review Decisions and Orders: FM-22037A, FM-22038A, FM-22039A, and FM-22040A (the “Review Decisions”) amending, confirming, or rescinding portions of the Inspection Orders. On March 21, 2023, the Appellant appealed the Review Decisions to the Fire Safety Commission (the “Commission”) pursuant to s. 26(1) of the FPPA and seeks to have the Review Decisions rescinded.
4The Appellant argued that the required compliance work under s. 9.3 of the OFC did not apply as no alterations had been carried out to the Buildings since the original construction. The Appellant further argued that the Buildings do not operate as lodging houses, since the tenants were aware of each other’s day-to-day activities. According to the Appellant, the Buildings operated as a single cooperative household, thus making them exempt from the enhanced requirements under part 9 of the OFC. Lastly, the Appellant claimed that the Buildings’ floor plans complied with the Ontario Building Code. O. Reg. 332/12 and there were no changes made to the use or layout since the time of approval and construction.
5The Respondent requests that the Review Decisions be confirmed. The Respondent argues that while the Buildings were built as single-family dwellings, they in fact became occupied as lodging houses at some time after approval and construction since the evidence does not demonstrate a single housekeeping unit and the owner exercised a high level of control over the Buildings and individual tenancies.
6On April 4, 2023, the first case conference was held in this matter, and on May 17, 2023, a second case conference took place. As the parties were unable to resolve the matter, a hearing was scheduled for July 26 and 27, 2023. The hearing was subsequently adjourned to September 19 and 20, 2023, and a further adjournment request was granted to hear the matter on November 8 and 9, 2023.
PRELIMINARY MATTERS
Appellant’s Request for Adjournment
7At the outset of the hearing on November 8, 2023, Appellant’s counsel made another adjournment request on the basis that a key witness, Mr. Brian McHattie, was not able to attend the hearing on the two scheduled dates. Alternatively, Appellant’s counsel proposed that a signed will say statement be submitted in the absence of this witness’ testimony.
8While many of the previous adjournment requests were on consent, this adjournment request was made without notice to and without the consent of the Respondent.
9The Respondent stated that they wished to cross examine Brian McHattie as he was not an expert and had no technical expertise or knowledge of the Buildings. The Respondent claimed that submitting a will say statement would be prejudicial due to Mr. McHattie’s position of power as Former Hamilton Ward 1 Councillor.
10It is well-settled that the Commission is entitled to control its own procedure (s. 25.0.1(a), Statutory Powers Procedure Act, R.S.O. 1990, c. S.22) and is entitled to deference on matters requiring the exercise of discretion, such as scheduling and adjournment requests (Riddell v. Huynh, 2019 ONSC 2620 (Ont. Div. Ct.), at para. 33).
11The hearing in this matter has been previously adjourned twice. Continued adjournment requests frustrate the Commission’s ability to ensure timely resolutions of the merits of proceedings and stipulated in Rule 3.1(b) of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules). Given the numerous adjournment requests made by the Appellant, it is crucial to move the matter along unless there are exceptional and/or extraordinary circumstances that are especially compelling.
12A witness’ availability is not necessarily a valid basis for an adjournment. The Appellant could have canvassed their witness’ availability prior to agreeing to the rescheduled hearing dates. As such, a witness’ availability is an event that could have been reasonably anticipated and avoided. Moreover, the Appellant had the ability to summons Mr. McHattie under Rule 8 of the Rules to compel his attendance at the hearing but failed to do so.
13The Appellant’s adjournment request was denied. However, the Appellant was permitted to submit a will say statement by Mr. McHattie. The Respondent shall have an opportunity to respond in writing after the hearing, and the Appellant will have an opportunity to reply.
ISSUES
14Should the Commission confirm, amend, or rescind the four Review Decisions, or make such other orders as the Commission deems appropriate?
RESULT
15Pursuant to s. 26(6) of the FPPA, the Commission confirms the four Review Decisions and orders the Appellant to complete the outstanding two items in the Buildings, namely:
Construct a second egress from the basement as required under s. 9.3.3.1 of the OFC, since sleeping accommodations are provided in the basement; and
Create a contiguous corridor separating the kitchen and main floor egress hallway by constructing a fire separation of at least 30 minutes as required by s. 9.3.3.5(1) of the OFC, and ensuring closures with a fire protection rating of not less than 20 minutes, with self-closing and latching devices as required by s. 9.3.3.8 (1).
16We find that the Appellant has failed to prove on a balance of probabilities that the Buildings are not boarding, lodging, and rooming houses for the purposes of s. 9.3 of the OFC.
EVIDENCE
Appellant’s Evidence and Submissions
17Peter Dyakowski (“Dyakowski”) testified for the Appellant in his capacity as owner and director of the companies Hillcrest Properties 1 and 2 Ltd.
18Dyakowski submitted that the Buildings are rented to around 10 students each at any given time, and each semi-detached is a mirror image of the other: 4 bedrooms upstairs, 2 bedrooms on the main floor along with a shared kitchen and living area, 4 bedrooms in the basement along with a shared laundry area, and one shared bathroom on each level.
19Dyakowski testified that he purchased the Buildings in 2015 after speaking with the original builders and the city councillor at the time. Both parties assured him that the Buildings were built for the purpose of student housing, and contained additional safety features that are not generally present in a single dwelling unit such as solid slab doors and interconnected smoke and fire detectors in the hallways.
20Dyakowski testified that he conducted investigations at the time of purchase and that there were no outstanding permits or orders since construction.
21The Buildings’ certificate of zoning verification and property reports are all consistent with the proposed use, and they state that the Buildings are semi-detached dwellings allowing for tenancy of up to 10 persons with a maximum of 4 lodgers allowed. They also specifically state the existence of “separate tenancy agreements with each occupant does not, in and of itself, determine the status of the arrangements as a whole; therefore, provided all the tenants are living as a family, then the proposed use is permitted.”
22Dyakowski testified that the plans and sketches are consistent with student housing especially given the right of way in the back, which is significant to allow for shared parking in the rear between the buildings. However, it is unclear whether the original construction of the Buildings included four bedrooms in the basement or two bedrooms since the basement sketches only show two bedrooms and two open rooms labelled as a den and a family room.
23Dyakowski testified that the students shared the living space, kitchen, cabinets in the kitchen, and many of the other facilities in the Buildings and that they coordinated shared use of the laundry and cleaning responsibilities. He stated that the landlord provided cleaning services of the common areas once per week, but the students did the majority of the cleaning between weekly visits and also maintained their own rooms independently. Dyakowski stated that while each student had an individual lease for their bedroom, sometimes groups would apply to stay in the Buildings and often they stayed longer for several years. In terms of assigning rooms, he stated that the individual tenant would pick the room, or groups would divide several rooms among themselves, but it depended on what was available. In terms of security, it was stated that the front door had a digital keypad and shared code for entry, and each individual room had a deadbolt lock as well. Overall, he stated there were cohesive household dynamics.
24Overall, the Appellant contends that the Buildings operate as single dwelling units, not lodging houses, and therefore the stringent retrofit requirements of Section 9 of the OFC should not apply and the Orders should be rescinded.
Respondent’s Evidence and Submissions
25The Respondent emphasised that the original sketches and plans all showed 8 bedrooms, including 2 in the basement and a den and family room in the basement. The parking allocation was also consistent with 8 bedrooms since there was a half space allocation per resident, making it consistent with two parking spaces per Building, minus the lodgers, as opposed to the three parking spots that would be required for 10 residents.
26The Respondent asked Dyakowski about the provision for 4 lodgers maximum and he stated that up to 10 people were allowed per building, 4 people could come and go, but all the students living there were very close and aware of one another’s comings and goings such that it was a joint housekeeping unit for all the occupants at any given time.
27The Respondent also clarified with Dyakowski that the utilities were included with the rent, as well as furniture in all the common areas; a desk and fridge in each individual bedroom (as well as a bed upon request); and a cleaner was provided once a week by the landlord to clean the common areas. The landlord provided rules for the occupants to abide by, such as only one guest per room and no parties and, after additional questioning regarding the cleaning, it became apparent that the owner was not privy to the specific cleaning arrangements between the tenants and whether they did in fact work together as a group.
28Fire Inspector Shafranek, Inspector McDermott, and Chief Fire Prevention Officer DeBoer of the Hamilton Fire Department testified for the Respondent.
29McDermott testified that he initially inspected 33 and 35 Dundurn Street South due to a complaint, and he walked through the Buildings with the property manager at the time, Hillary Waterfield. At that time, Ms. Waterfield explained that the tenants each had their own leases ranging form 4-12 months long, some being month to month, and that the owner assigned the rooms and arranged for cleaning of the common areas on a weekly basis.
30McDermott also interviewed two students that lived in the Buildings who confirmed the information provided by Ms. Waterfield. One student stated that the owner controlled most things such as lease arrangements, room assignment, who should be evicted, and also paid for the appliances and furniture in the common areas, utilities, and ensured cleaning of the common areas. Based on his inspection, McDermott was of the opinion that the Buildings were lodging houses and issued several Orders, two items of which remain outstanding, for each Building.
31Shafranek testified that he inspected 47 and 49 Dundurn Street South, which were two identical semi-detached dwellings and were mirror-images of one another, each containing 10 bedrooms. After his inspection, he issued two Inspection Orders with retrofit requirements under the OFC, including the outstanding items of a secondary exit from the basement, exit signage, and separation between the kitchen and living space on the main floor. He interviewed the property manager, as well as one student at the 47 Dundurn Street South Building, but none for the 49 Dundurn Street South Building.
32In his testimony, DeBoer confirmed the information provided by the inspectors. He also provided some clarification on the interview process of tenants, stating that the fire department had asked for more details such as determining if tenants were aware of other residents’ comings and goings. However, since 2007, the OFC had changed and anything over 4 lodgers was treated as a lodging house under s. 9.3 of the OFC. The Respondent, therefore, developed a more robust process for assessing retrofit requirements, which included a new student housing checklist to ascertain who had the most “control” over the property, the students or the landlord/owner, as the latter would confirm it was a lodging house. Based on the lease, information gathered during an inspection, and the checklists, the inspectors would then make a final determination.
33DeBoer stated that he reviewed the checklists and findings of the inspectors, and opined that the Buildings were built to house students rather than a single families due to the layouts. DeBoer confirmed that he agreed with the Inspectors’ findings that the Buildings were lodging houses, and that the construction of the Buildings was more conducive to multiple students living there rather than single families. He stated that the building use had changed since its original construction, but was unable to specify when the change took place since there were no inspections prior to the complaints in 2021 other than some discussions in 2002 before the Buildings were occupied.
34DeBoer stated that he reviewed the Fire Marshal’s findings and agreed that the Buildings should fall within the scope of the OFC. Therefore, he was of the opinion that the Buildings required a second exit and separation of the corridor on the main floor in order to give occupants sufficient time to evacuate in the event of a fire emergency. Lastly, DeBoer testified that self-illuminating exit signs may be sufficient under the OFC, but it would depend on the amount of natural light in the space to ensure the signs were always visible.
RELEVANT LAW
35The following sections of the FPPA are relevant to this case:
21 (1) An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant,
(g) to remedy any contravention of the fire code.
36The following sections of the OFC are relevant to this case:
Application
9.3.1.1. (1) This Section applies to boarding houses, lodging houses, rooming houses and private rest homes in which residents do not require care or treatment because of age, mental or physical limitations, where
(a) the building height does not exceed 3 storeys and the building area does not exceed 600 m2,
(b) lodging is provided for more than four persons in return for remuneration or the provision of services or both, and
(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.
Number of exits
9.3.3.1. (1) Each floor area shall be served by at least two exits.
(2) Where sleeping accommodation is not provided for more than 10 persons, one exit from each of the first and second floor floor areas is deemed to be in compliance with Sentence (1).
Protection of exits
9.3.3.5. (1) Each exit other than a doorway opening directly onto a fire escape or to the outdoors at ground level shall be separated from the remainder of the building or from another exit by a fire separation having a fire-resistance rating not less than 30 min.
Protection of openings in fire separations
9.3.3.8. (1) Closures in fire separations required under Article 9.3.3.5. and in floor separations required under Article 9.3.3.6. shall
(a) be constructed in accordance with Article 9.10.3.1. of the 1986 Building Code,
(b) have a fire-protection rating not less than 20 min, and
(c) if the closure is openable, be equipped with self-closing and latching devices.
Exit signs
9.3.3.10. (1) Exit signs shall be located along a means of egress so that directions of exit travel are apparent to the occupants.
(2) Exit signs required by Sentence (1) shall have the word “EXIT” in block letters and such letters shall be
(a) internally or externally illuminated,
(b) coloured red on an opaque or contrasting field, and
(c) at least 115 mm high with a 19 mm stroke.
ANALYSIS:
37In Spezowka v. Thunder Bay Fire Rescue, 2021 ONFSC 6 (Spezowka), the court stated that if the properties in question could be characterized as “lodging” or “rooming” houses, then s. 9.3 of the OFC would apply and owners would then be required to provide increased protections in the case of fire, such as fire separations and additional exits.
38The basis for this and guiding criteria was explained in Spezowka at paragraphs 16 to 19 as follows:
16The lack of familiarity among the occupants of a rooming house is a primary reason why such occupancies require stricter fire safety measures than a dwelling unit. The rationale is that people unrelated to each other by some sort of bond, such as “consanguinity or domestic intimacy” are less likely to look out for each other in the event of a fire. Such occupants are also less likely to know what sort of fire risk the other tenants might pose.
17Ontario Courts have considered a number of contextual factors in distinguishing between dwelling units and rooming houses, including:
(a) Whether there is one lease or several leases;
(b) Whether rent is paid for the unit as a whole or per bedroom, and how rent is paid;
(c) The allocation and use of bedrooms (i.e., whether each person occupies a separate bedroom and how the bedrooms are assigned);
(d) Whether each bedroom has a different lock;
(e) Whether common areas (only) are shared;
(f) Whether furniture is supplied by the occupants;
(g) Whether and in what manner housekeeping of the rooms and the premises is performed by the occupants;
(h) Whether the occupants exercise a degree of control over the unit (or whether the landlord or their agent is primarily responsible);
(i) Whether the occupants pay for the utilities, and
(j) The number of occupants and their relation to each other.
18Examples on the extremes make it easy to see the difference between the two types of occupancies. A house occupied by one family would be a dwelling unit – notwithstanding that the teenager living there might try to lock her door now and again. A house with eight rooms rented individually to eight people who do not know each other; where each room has its own lock and key; and where, when one tenant leaves, it is the landlord who decides who will move in next – that would be a rooming house.
19One can see where student housing could fall into either category depending on the context.
39In the present case, we have applied the facts to the criteria outlined above and found:
(a) the Buildings are rented to individual students with separate leases. The Appellant provided evidence that, at times, groups would rent multiple units. However, even under these circumstances, each tenant still had a separate lease;
(b) Rent is always paid per bedroom, or per unit, as opposed to being paid for by one family or by the housekeeping unit as a whole;
(c) Each person occupies a separate bedroom and rooms are assigned by the owner based on availability despite tenants being able to request certain rooms where there are multiple vacancies or groups of tenants being able to divide rooms amongst themselves;
(d) Each bedroom door is numbered and has a separate lock, with both an internal and external locking mechanism;
(e) Common areas only were shared, including the kitchen, living room, bathrooms, laundry room, and hallways, and the students have exclusive use of their own private bedrooms;
(f) Dyakowski testified that he supplied furniture for the common areas, as well as some of the bedroom furniture including a fridge and desk per room. Tenants would bring their personal belongings and optional furniture for their own individual rooms;
(g) The housekeeping of the common areas is performed on a weekly basis by a cleaner as supplied by the owner, but individual tenants are responsible to clean their own private rooms. There was insufficient evidence before us that individual students shared responsibilities to clean the common areas;
(h) The majority of the control over the Buildings is exercised by the owner as shown by the checklists and the owner’s testimony. For instance, the Appellant is responsible for decisions regarding property maintenance;
(i) The owner pays for the utilities of all individual tenants, with each student paying a flat fee of $25 towards the utilities; and
(j) The number of tenants per Building is a maximum of 10, and the relationship between tenants varies. The tenants do not necessarily know one another prior to living at the Buildings other than some who might have applied as a group.
40The Commission notes that the checklists used by the Respondent did not have a specific question asking whether tenants knew any of the other tenants prior to living at the property, but given that the students are likely attending the same college/university, this factor was given minimal weight.
41The Inspectors both stated that they had minimal experience using the checklists at the time. However, the testimony of both the Appellant and Respondent’s witnesses confirms that the owner had a greater level of control over the Buildings than the tenants, who were all under individual leases subject to the owners approval and parameters.
42The evidence before the Commission also indicates a lack of cohesiveness among the tenants in the Building. For example, each individual bedroom is numbered and has a lock, 24-hour notice is required to enter any of the individual tenant’s bedrooms as noted on Inspector McDermott’s notes, and the owner pays for the utilities, weekly cleaning, and most of the large furnishings, which would remain in the Buildings irrespective of tenant turnover.
43The one sample lease submitted as part of the respondent’s evidence is for a 6- month term. It includes a set fee payment for the unit, it sets out some house rules such as no smoking indoors, and states that the landlord’s consent is required to assign or sublet the unit. No additional leases were submitted by the Appellant to evidence their assertion that many of the units were rented to groups and/or for longer durations of a few years.
44Conversely, there were some factors weighing in favor of seeing the Buildings as single dwelling units, and not boarding or rooming houses, such as shared use of the common areas and coordination among students to share the kitchen cabinets and laundry facilities. Furthermore, Mr. Dyakowski testified that tenants were aware of one another’s comings and goings as many of the students had a shared messaging group, but there was no evidence of said messages or group coordination filed in the Appellant’s materials. It is important to note that was no direct evidence or affidavit evidence submitted from any of the students residing in the Buildings regarding the relationship between tenants.
45Mr. Dyakowski also stated that cleaning duties were divided up between the students. During cross-examination, however, it became evident that this was only his assumption and Mr. Dyakowski had not actually seen the students dividing cleaning duties. The Commission finds that many statements made by the Appellant were merely speculative since he admitted to only visiting the various Buildings once every few weeks and had hired staff to manage the properties.
46Lastly, the Appellant relied upon evidence showing that the Buildings were built with the intention of using them for student housing, and that the City was aware of this plan from the outset. Mr. Dyakowski testified there was 5/8th inch thick drywall, 1 ¾ solid wood core doors with steel frames, as well as hardwired and inter-connected smoke alarms, CO2 alarms, and portable fire extinguishers throughout the premises. Be that as it may, additional enhancements for fire safety while supportive of the statement that the construction was always for student housing does not necessarily indicate use as a dwelling rather than a lodging house. In any event, it certainly does not dispose of the retrofit requirements under Part 9 of the OFC if the Commission finds that the Buildings are “boarding, lodging, or rooming houses.”
47In this case, the Commission is satisfied that the application criteria of s. 9.3 of the OFC has been proven by the respondent on a balance of probabilities since the building height does not exceed 3 stories, lodging is provided to more than 4 persons in return for renumeration, and the lodging rooms do not have their own bathrooms or kitchen facilities, rather these are shared among individual student occupants.
48The Commission acknowledges that there is a lack of evidence showing how well the students knew each other, unlike the case of Spezowka, but similar to the case of Kitchener Fire Department v. Subramanian Ramamani and Mala Krishna, 2020 ONFS 5, as the evidence of locks on each bedroom, utilities being paid by the owner, and the housekeeping being covered by the owner, all show that the owner had a majority of control over the Buildings, thus making them lodging houses and subject to the more stringent requirements of the OFC.
49For the reasons set out above, the Commission confirms the Orders and finds that the Appellant has not met its burden to show that the retrofit requirements under Part 9 of the OFC should not apply to the Buildings.
50While the parties did not make submissions with regard to an extension to the compliance date, the Commission felt that it was reasonable to provide some time after the release of this decision for the Appellant to comply.
ORDER
51Pursuant to s. 26(6) of the Act, the Commission confirms the Review Decisions: FM22037A, FM 22038A, FM-22039A, and FM-22040A.
52The compliance dates are amended to June 30, 2024.
Released: March 7, 2024
Ziba Heydarian Vice Chair
Rocco Iamello Member