Hamilton Fire Department v. Hasselsjo, 2024 ONFSC 29
Application under subsection 33(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4
Between:
Hamilton Fire Department
Applicant
and
Songja Hasselsjo
Respondent
DECISION AND ORDER
PANEL:
Susan Clarke, Vice-Chair
Ashley Deathe, Member
APPEARANCES:
For the Appellant:
Songja Hasselsjo, Self-represented
For the Respondent:
Stephen Chisholm, Counsel
Heard by teleconference:
February 20, 2024
OVERVIEW
1The Hamilton Fire Department (the “applicant”) has applied to the Fire Safety Commission (the “Commission”) seeking authorization to do the work to comply with an outstanding order made by the Commission on December 16, 2022 in Hasselsjo v Hamilton Fire Department, 2022 ONFSC 16 (the “Appeal Decision”). The applicant seeks authorization under subsection 33(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 (“FPPA”).
Background: The Inspection Order and the Commission’s Earlier Decision to Confirm that Inspection Order
2Nearly two years ago, on April 19, 2022, Inspector Eric Schafranek of the Hamilton Fire Department first inspected the respondent’s apartment unit. The result of that inspection was an order issued to the tenant, Sonja Hasselsjo (the “respondent”) under clause (f) of subsection 21(1) of the FPPA directing her to do three things by June 6, 2022:
i. Create a pathway of at least 36 inches (914 mm) from every room to the apartment entry door for her apartment.
ii. Remove the combustible materials to provide and maintain a minimum clearance of 36 inches (914 mm) from the stove, electric baseboard heaters, electrical wall outlets (plugs) and any other sources of heat.
iii. Reduce the quantity of stored combustible material that has accumulated inside her apartment to a height not more than 36 inches (914 mm). Storage piles shall be arranged in an orderly fashion and be stabilized so that they will not fall into or impede the required means of egress.
3The respondent requested a Fire Marshal Review of the order pursuant to s. 25 of the FPPA. The Fire Marshal refused to consider the substance of the request and referred the matter directly to the Commission, pursuant to s. 25(4)(a) of the FPPA.
4The Commission heard the appeal on September 29, 2022, and confirmed the order. However, the Commission amended the compliance date to 30 days from the date of its decision, which was released on December 16, 2022.
5That original order was also served on the owner of the multi-unit apartment building who also appealed the order. This appeal is separate and is currently before the Commission.
ISSUES
6The issues to be decided are:
Should the Commission grant the inspector authorization to complete the work, under subsection 33 of the FPPA (“The Compliance Issue”)?
Can the Commission provide direction on how the work is to be completed (“The Direction Issue”)?
RESULT
7The Commission declines to exercise its discretion under section 33 of FPPA to authorize Inspector Schafranek to do the work ordered in the Appeal Decision.
Procedural History: The Application
8On December 22, 2023, Inspector Schafranek applied to the Commission for an order authorizing him to do the work ordered in the Appeal Decision, under subsection 33(1) of the FPPA (the “Authorization Application”).
9The Commission held a case conference in this Authorization Application on January 16, 2024.
10The Notice of Hearing issued by the Commission on February 12, 2024, made reference to the purpose of a case conference. This potentially confusing information was identified at the outset of the hearing, and the parties confirmed that they were expecting to proceed that day to a hearing and were ready to do so.
11The hearing was originally scheduled for a half-day. However, to ensure a complete hearing of the parties’ positions and to accommodate some additional time for technological issues arising out of the audio-only format, the hearing lasted for nearly a full day.
ANALYSIS
12To determine whether the Commission should exercise its discretion to authorize the inspector to carry out the work ordered in its Appeal Decision, the Commission must be satisfied there is sufficient evidence of the following:
One of the four grounds for the Authorization Application is met, namely, that the respondent has not complied with, is unlikely to comply with, is unable to competently comply with, or has requested the inspector’s assistance to comply with the order (clause 33(4)(a) of the FPPA); and
The Commission must accept that failure to do the work would seriously endanger the health or safety of any person or the quality of the natural environment (subsection 33(4)(b) of the FPPA).
13The powers of the Commission on an application for authorization to do work under section 33 of the FPPA includes the power to authorize the inspector to complete the work previously ordered; to rescind or amend the previous order, or make such other order, and order the inspector to do the thing in accordance with the amended order or other order; and if the order provides for the removal of any combustible or explosive material or anything that may constitute a fire hazard, the Commission may also authorize the inspector to dispose of the material or thing.
14The applicant’s position is that the respondent has not complied, and is unlikely to comply with the order and therefore, the first part of the test is met.
15Regarding whether the Commission should provide directions on how the work is to be completed, the applicant submitted that the Commission ought to include the following directions for how the inspector is to proceed:
Attend the respondent’s residence;
Remove the respondent’s personal property, limited to that which is necessary to comply with the order; and
Be reimbursed by the respondent for the costs of remedial work.
16Point 3 of the applicant’s submissions will be addressed as a preliminary issue in these reasons.
17The respondent, for her part, submits that the materials in her apartment were “not combustible” and she disputed that she had not complied with the order.
Preliminary issue: No jurisdiction to order costs for remedial work
18The applicant submitted that the Commission could include a costs order in its direction to the inspector if the Authorization Application was granted. The Commission finds that the issue of cost recovery for carrying out work is not in its jurisdiction at this time.
19Section 35 of the FPPA provides that the Fire Marshal, a fire chief, or an assistant to the Fire Marshal may issue an order to pay costs incurred in doing any thing in accordance with an authorization to do work under s. 33, to a person required by an order made under s. 26 (in this case) to do the thing. Such an order is required to include the following information:
Section 35(2):
(a) a description of the things done for which the costs were incurred and a statement of the authority for doing the things;
(b) A detailed account of the costs incurred by the Province of Ontario or the municipality, as the case may be; and
(c) A direction that the person to whom the order is issued pay the costs to the Minister of Finance or the municipality, as the case may be.
20Section 36 of the FPPA provides that a person to whom an order to pay costs is issued may appeal the order to pay costs to the Commission.
21The Commission determines that it does not have jurisdiction to consider the applicant’s request for an order for cost recovery on the basis that the applicant has not followed the process described in Part VIII of the FPPA for recovery of costs. To order remedial costs in the absence of costs being incurred and in the absence of a s.35 FPPA order is to eclipse the scope of this appeal.
Issue 1: Should the Commission grant the inspector authorization to complete the work, under subsection 33 of the FPPA (“The Compliance Issue”)
22The Commission must determine whether to grant the inspector authorization to complete the work under subsection 33(4) of the FPPA.
23For an application seeking authorization to complete work, the applicant has the burden to show that one of the four grounds enumerated under ss.33(4)(a) of the FFPA is met.
24We find that there was insufficient evidence that the respondent had not complied, is unlikely to comply, is unable to competently comply, or that the respondent requested assistance to comply with the order. Therefore, the applicant has not discharged its burden.
Insufficient evidence of non-compliance
25The applicant relied on Inspector Schafranek’s observations of the interior of the unit from over one year ago as evidence of the respondent’s non-compliance. We were not persuaded by this evidence and conclude the applicant has not discharged its burden.
26Inspector Schafranek conducted three inspections of the respondent’s apartment unit. First, he inspected the unit as part of a general inspection of the multi-unit apartment building on April 21, 2022. He issued an order to the respondent as a result. The second time he inspected the unit was June 8, 2022, and the purpose was to determine compliance with the order. The third and most recent time that Inspector Schafranek inspected the unit was February 14, 2023 to determine whether the respondent had complied with the order confirmed by the Commission in its Appeal Decision.
27Inspector Schafranek testified that during the inspection in 2023 the apartment unit looked the same to him as it did during his June 8, 2022, inspection. In particular, he observed that:
Some items had been moved around within the unit;
There was no reduction in the height of the piles of items;
There was no change in the placement of items around ignition sources, specifically the items on the stove;
The hallway was still narrower than the minimum width ordered because of the floor-to-ceiling melamine open cabinets (i.e., shelving) that were full of papers, plastic containers, and textiles; and
During cross-examination, Inspector Schafranek confirmed that he had measured the clear width of the hallway and it was less than the required 36 inches.
28Inspector Schafranek gave his opinion that the non-compliance with the order constitutes an ongoing significant fire risk. In particular, the accumulation of various personal items in the unit continues to represent a “high fire load,” meaning that in the event of a fire, the fire would quickly spread and/or smoke would overwhelm the respondent’s unit, cutting off access for rescue personnel.
29He testified that he is unaware of whether the respondent has friends or family who could assist her in complying with the order. He also stated that he intends to work with the respondent to provide storage solutions for any contents removed from her unit.
30In response to a question on why there had not been an inspection of the unit since February 2023, Inspector Schafranek stated that there were a number of related legal matters involving the respondent, including an eviction proceeding which had been commenced by the building’s owner. When asked why related litigation affected his ability to attend the unit, Inspector Schafranek said that he was directed by his superior not to follow-up and re-inspect the unit.
31The applicant did not call the unnamed superior to testify.
32The respondent testified about the contents of her unit and status of her compliance with the order.
33At multiple times throughout the hearing, the respondent made statements concerning the type of personal property she had in her home, repeatedly asserting that the materials are “not combustible.” The Commission had to caution the respondent more than once that the hearing was not the opportunity to relitigate the previous appeal of the inspection order.
34In response to clarifying questions from the Commission, we understand the respondent disputes the applicant’s position that she has not complied with the order.
35The respondent also gave a general description of her unit:
Her homecare worker says her home is very clean;
She has a pathway to come in and out of her unit as she attends doctors’ appointments and runs errands, such as getting groceries;
She has a cabinet in her hallway;
Her son has removed some of her belongings; and
She has received additional furniture, one more sofa, into her unit, and
She has a storage unit in London, Ontario
36In support of her position, the respondent produced a number of black and white photographs of poor quality, which she said depicted her unit and were taken on the day of the February 2023 inspection. The quality of those photos is so poor that no inferences could be drawn by the Commission as to the state of the unit.
37The FPPA grants the applicant broad powers to complete the work required in an order where the work has not been completed or is unlikely to be completed by the person who was ordered to do the work. It is unfortunate that the applicant who made the Application for Authorization to do the work did so without having completed a more recent inspection. While the circumstances of each case will differ, evidence that is more than one year old at the time of the hearing on a matter of non-compliance is not sufficient to discharge the burden of proof. For this reason, the Commission is not satisfied that the respondent has not complied with the order.
38The respondent has testified that her son removed his belongings from her living room, permitting her to add another sofa, and that she has ongoing access to a storage unit in London, Ontario. This information was not contradicted by the applicant’s evidence.
39Consequently, we cannot accept the applicant’s position that the apartment remains the same as observed during the February 14, 2023 inspection. In sum, we are not persuaded that there is sufficient evidence to discharge the applicant’s burden of proof that the respondent is in non-compliance with the order.
Insufficient evidence the respondent is unlikely to comply
40We are not persuaded by the applicant’s submissions that related litigation involving the parties is further evidence that the respondent is willfully disregarding her obligation to comply with the order and therefore unlikely to comply.
41As was briefly touched on in the hearing, one of the processes that the respondent is involved in is an eviction matter before the Landlord and Tenant Board. The respondent is addressing at least one serious legal matter, which is the right to stay in her home. No other originating process such as a statement of claim or application was filed, and we have no knowledge of the specific legal rights the respondent is seeking to assert or the forums in which she has commenced litigation. As a general principle, using the legal process to assert one’s rights is not synonymous with an intention to escape one’s existing legal obligations. The applicant has not demonstrated by engaging in legal processes to assert her rights, the respondent is displaying an intention to escape her legal obligations. The applicant's submissions as to the respondent's involvement in other litigation is of limited relevance to the Authorization Application.
Other grounds of the Compliance Issue not proven
42The evidence before us does not otherwise establish that the respondent is unable to competently comply, and the applicant did not submit that the respondent asked the inspector for assistance to comply.
Conclusion on the Compliance Issue
43In sum, we are not satisfied there is sufficient evidence to support any one of the four branches of the Compliance Issue, particularly, the applicant has not discharged its onus that the respondent has not complied or is unlikely to comply with the inspection order.
44Given our finding that the applicant has not discharged its burden to show non-compliance under ss. 33(4)(a) of the FPPA, we find it unnecessary to consider the second branch of the test: whether the Commission is of the opinion that the “failure to do the thing would seriously endanger the health or safety of any person.”
Issue 2: Can the Commission provide direction on how the work is to be completed?
45As the Commission declined to authorize the inspector to do the work prescribed in the Appeal Decision, we need not decide whether the Commission has the power to direct the work.
Conclusion
46The applicant waited eleven months from the compliance dated ordered in the Appeal Decision, and ten months from its last inspection in February 2023, to file an application for authorization to do the work.
47The applicant has not discharged its burden to show on a balance of probabilities that any of the grounds of ss. 33(4)(a) of the FPPA have been met.
48For these reasons, the Commission declines to exercise its discretion under section 33 of the FPPA to authorize Inspector Schafranek to do the work in the Appeal Decision.
49The application is dismissed.
50This decision does not affect the Appeal Decision. The respondent remains responsible for complying with the Commission’s order.
Released: April 5, 2024
Susan Clarke
Vice-Chair
Ashley Deathe
Member