FIRE SAFETY COMMISSION
Tribunals Ontario
COMMISSION DE LA SÉCURITÉ-INCENDIE
Tribunaux décisionnels Ontario
Appeal under section 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4.
Between
Dernetro Holdings Ltd. c/o The Effort Trust Company Applicant
and
Hamilton Fire Department Respondent
DECISION AND ORDER
PANEL: Rocco Iamello, Member Anxhela (Angela) Peco, Vice Chair (Acting)
APPEARANCES: For the Appellant: Stela Farcas, Agent Kristin A. Ley, Counsel For the Respondent: Peter DeBoer, Chief Fire Prevention Officer Stephen Chisholm, Counsel
Held by videoconference: January 8, 2024
OVERVIEW
1This case involves an outstanding fire inspection order (Order) issued to a landlord-owner. The Order requires action to address excessive combustible materials in a rental unit occupied by a long-term tenant. The unit in question is one of 240 apartments in a 22-storey residential high-rise building at 123 Charlton Avenue East in Hamilton.
2The landlord-owner, Dernetro Holdings Ltd. (the appellant), does not take issue with the action required in the Order but argues that it has been unable to comply due to an uncooperative tenant. As a result, it seeks an extension of time for compliance as it explores different avenues of facilitating or compelling compliance by the tenant.
3The appellant first sought a Fire Marshal review of the Inspection Order and now appeals to the Fire Safety Commission (Commission) from the Fire Marshal’s Review Decision of June 2023, which granted the appellant an extension of time for compliance to July 2023.
ISSUE
4Should the Commission confirm, amend or rescind the Review Decision or make such other order as the Commission deems appropriate?
RESULT
5The Commission confirms the Review Decision and denies the appellant’s request for an extension of time to comply.
ANALYSIS
6Inspector Eric Schafranek inspected the building in April 2022 and issued an Order under clause 21(1)(f) of the Fire Protection and Prevention Act, 19971 (FPPA), requiring the appellant to do three things to ensure fire safety in the unit:
- Create and maintain an unobstructed exit path from every room to the unit entry door;
- Move combustible materials in the unit away from ignition sources; and
- Reduce the quantity of the combustible materials in the unit.2
7While the appellant does not dispute the action required in the Order, it submits that without the tenant’s consent, it is not authorized to enter the unit and remove the tenant’s personal effects. It seeks an extension of time for compliance of up to seven months and requests that the Commission structure the order so that any extension we grant does not begin until the release of a pending Landlord and Tenant Board (LTB) decision in a related matter involving the appellant and the tenant.
8The building’s property manager, Stela Farcas, testified for the appellant and described the various steps the appellant had taken to try to comply with the Order, including that:
- In May 2022, property management met with the tenant to review the requirements of the Order and offered to assist tenant if needed with moving the materials into storage. While the tenant initially indicated to the property manager that she intended to comply, a subsequent inspection by the respondent in February 2023 confirmed that the combustible materials remained in the unit;
- In February 2023, due to continued non-compliance by the tenant, the appellant served the tenant with a Form N5, Notice to End Your Tenancy, citing behaviour that substantially interfered with other tenants’ reasonable enjoyment of the property and/or their lawful rights or interests. The tenant was given seven days to remedy the conditions in the unit;
- In March 2023, the appellant filed an application with the LTB to end the tenancy after the tenant remained non-compliant. As part of this application, the appellant also requested an expedited hearing, which commenced in December 2023 after having been adjourned at the tenant’s request, and was expected to continue in late January 2024; and
- In September 2023, the appellant sent a letter to the tenant offering to arrange for a refuse bin and to cover the costs of the bin rental fee and the disposal fee so as to reduce the combustible load inside the unit. In that letter, the appellant also offered to assist with transporting the tenant’s property to an offsite storage unit by paying the moving costs.
9The Commission takes note of the above-mentioned actions, which demonstrate that the appellant appreciates the seriousness of the situation and the fire safety risk it poses to both the tenant and other residents in the building. These actions demonstrate good faith efforts on the appellant’s part to assist the tenant and effect compliance.
10Notwithstanding these actions, the Commission is not prepared to grant the appellant’s request for an extension of up to seven months, nor are we prepared to structure our order such that any extension we grant does not begin until the release of the LTB decision, as the appellant requested.
11On the question of whether an extension should be granted at all, we note that the original compliance date was June 6, 2022. The appellant requested the Fire Marshal review on May 6, 2022, seeking an additional 90 days to comply. The Fire Marshal did not issue its Review Decision until June 19, 2023. In consideration of the significant time that had passed since the appellant’s request for a review, the Fire Marshal gave the appellant another month to comply, amending the compliance date to July 19, 2023. As a result of this timeline, the appellant effectively had over 400 days to comply, well in excess of the 90 days they had originally requested, and was unable to achieve compliance within that time. Following its appeal of the Review Decision to the Commission on July 4, 2023, the appellant has also had additional time as the matter progressed through the appeal and hearings process but remains non-compliant due to the tenant’s lack of action.
12While we appreciate that the appellant has limited powers to compel compliance by the tenant and will remain non-compliant for as long as the tenant fails to act, the primary consideration for the Commission is the fire and life safety of the building’s residents. A further extension in a case that has already had a lengthy procedural history would continue exposing the residents to a fire hazard. We therefore decline an extension of time for compliance on this basis.
13We also considered and wish to address the appellant’s submission that any extension of time, if granted, should start on the date of the LTB order. While we appreciate that the appellant faces barriers in complying with the Order and recently initiated proceedings to evict the tenant, the property manager herself acknowledged the limitations of waiting for an eviction order, stating that such an order was not guaranteed, and the tenant may challenge it.
14The property manager also conceded during her testimony that another possible outcome at the LTB could be an order requiring the tenant to comply with the N5 or the Order, which in our view would effectively put the appellant in the same position in which it finds itself now.
15All of these factors suggest that tying a compliance date to the decision date of the LTB would result in too much uncertainty as neither the date nor the content of that order is guaranteed, and neither is the tenant’s compliance with that order. We accept the respondent’s submission that to grant an extension on the terms requested by the appellant would effectively mean granting an extension of an indefinite period, which is problematic given the existing fire hazard posed by the combustible materials not only for the tenant but also for the residents of the other 239 apartments, as well as for first responders.
16Much time was spent by the appellant in its cross-examination of Inspector Schafranek exploring what actions the respondent had taken to enforce the identical order that was served on the tenant, after it became apparent that the tenant would not comply. While Inspector Schafranek did not provide a clear and comprehensive response, he testified that in recent months the respondent had been exploring two other avenues: bringing charges against the tenant and applying to the Commission for an order authorizing the Fire Department to carry out the necessary work, under s. 33(1) of the FPPA. While the Commission considered this line of questioning, we find no basis to grant an extension on the appellant’s terms based on a suggestion that the respondent may or may not have acted with the necessary level of urgency to enforce the identical order served on the tenant.
ORDER
17Pursuant to s. 26(6) of the FPPA, the Commission confirms the Review Decision.
Released: March 7, 2024
____________________________________________
Rocco Iamello, Member Fire Safety Commission
____________________________________________
Anxhela (Angela) Peco, Vice Chair (Acting) Fire Safety Commission
Footnotes
- S.O. 1997, Ch. 4
- An identical inspection order was also served on the tenant, who appealed the order to the Commission. The Commission confirmed the substance of the order and ordered the tenant to comply by January 16, 2023, in its decision in Hasselsjo v Hamilton Fire Department, 2022 ONFSC 16.