Tribunals Ontario Fire Safety Commission 15 Grosvenor Street, Ground Floor Toronto, ON M7A 2G6 Tel: 1-888-777-3616 Website: www.tribunalsontario.ca
Tribunaux décisionnels Ontario Commission de la sécurité-incendie 15, rue Grosvenor, rez-de-chaussée Toronto (Ontario) M7A 2G6 Tel: 1-888-777-3616 Site Web : www.tribunalsontario.ca
Citation: LeBlanc v. Bradford West Gwillimbury Fire and Emergency Services, 2024 ONFSC 30
Date: 2024-06-12
Appeal under subsection 26(1) and 25 (4) (a) of the Fire Protection and Prevention Act, S.O. 1997, c. 4, on direct referral by the Fire Marshal to the Fire Safety Commission
Between:
Arthur LeBlanc
and
Bradford West Gwillimbury Fire and Emergency Services
Appellant
Respondent
DECISION AND ORDER
PANEL:
Ziba Heydarian, Vice-Chair
Rocco Iamello, Member
APPEARANCES:
For the Appellant:
Arthur LeBlanc, Self-Represented
For the Respondent:
Aimee Jordan, Fire Prevention Inspector, Bradford West Gwillimbury Fire and Emergency Services
Paul Barritt, Fire Prevention Inspector, Bradford West Gwillimbury Fire and Emergency Services
Heard by videoconference:
April 23, 2024
OVERVIEW
This appeal is about whether supervisory staff as identified in Subsection 2.8.2, Fire Safety Plan of the Ontario Fire Code (OFC) requires this individual to be “reactive” or “alert and awake” at night as described in item 3 of the Inspection Order (Order).
Arthur LeBlanc, the Appellant, resides in an apartment located at 40 Toronto Street, Bradford West Gwillimbury (Building). This Building was built in 1989 with two additions in 1997 and is a 3-storey combustible retirement home with accommodation for a maximum of 26 residents. The Appellant acts as supervisory staff for the retirement residence during the night periods.
The Retirement Homes Regulatory Authority licenses this Building as a retirement home.
Following an inspection on November 22, 2023, Inspector Michelle Davies of the Bradford West Gwillimbury Fire and Emergency Services (Respondent) concluded that under subsection 2.8.2 of the OFC, the Fire Safety Plan (FSP) for a care occupancy and retirement home requires supervisory staff at night to be “reactive”, meaning awake and alert.
On December 6, 2023, the Respondent issued an Order to the Appellant to take compliance action for 11 items.
At the hearing, the parties informed the Fire Safety Commission (Commission) that the items in the Order had been resolved other than item 3.
Item 3 of the Order states that the FSP “can not be approved due to the lack of reactive supervisory staff at night”, and the reasons state that “the ability to react in the event of an emergency will be delayed as the owner sleeps during the night.”
The Order required the Appellant to take action for item 3 by submitting a FSP for approval and implementation by January 31, 2024.
The Appellant applied to the Fire Marshal for review of items 3,5,7,8,10, in the Order on December 20, 2023. On March 1, 2024, the Fire Marshal did not issue a review decision but referred the matter directly to the Commission, as permitted under s. 25(4)(a) of the Fire Protection and Prevention Act, S.O. 1997 (FPPA)
ISSUE
- Should the Commission confirm, amend or rescind item 3 of the Order and specifically the requirement that supervisory staff must be reactive, in terms of being awake or alert, at night?
RESULT
- The Commission finds that the action ordered by the Respondent in item 3 for the Appellant to submit a new fire safety plan as the “current FSP can not be approved due to the lack of reactive supervisory staff at night” is not necessary to ensure fire safety in this Building and therefore the Order should be amended as stipulated below.
ANALYSIS
Are the actions set out in the Order for item 3 necessary to ensure fire safety in the Building?
Parties’ Positions
- The Appellant submitted the actions mandated in item 3 of the Order are not necessary because:
i. He resides at the building and acts as supervisory staff for the purposes of the FSP; and
ii. He is always responsive to fire alarms in the building; and
iii. The retirement home has passed a fire alarm drill supervised by the Respondent and is well within the timeframes for reactiveness.
- The Respondent’s position is that supervisory staff as identified under subsection 2.8.2 FSP must be “reactive”, “alert” and “awake”, and the Appellant would be unable to respond to an emergency during the night while he is asleep. The Respondent further submitted that sleep does not constitute a form of reactiveness.
Law
Pursuant to s. 18 of the FPPA, fire safety includes “safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it.”
The Order was issued pursuant to section 21(1)(g) of the FPPA, which allows for an order to remedy any contravention of the fire code.
Pursuant to the OFC, measures in an FSP require:
2.8.2.1. (1) A fire safety plan shall be prepared, approved, and implemented in buildings and premises to which this Section applies.
(2) A fire safety plan shall
(a) provide for the emergency procedures to be followed in case of fire, including:
(i) sounding the fire alarm,
(ii) notifying the fire department,
(iii) instructing occupants on procedures to be followed when the fire alarm sounds,
(iv) evacuating occupants, including special provisions for persons requiring assistance,
(v) procedures for use of elevators, and
(vi) confining, controlling and extinguishing the fire
- The OFC further provides that:
2.8.2.2 (1) There shall be sufficient supervisory staff available in care occupancies, care and treatment occupancies, detention occupancies and retirement homes to carry out the duties required in the fire safety plan.
2.8.3.2 (6) In addition to the requirements of Sentence (2), in a care occupancy, a care and treatment occupancy or a retirement home, a fire drill for supervisory staff shall be carried out at least once during each 12-month period for an approved scenario representing the lowest staffing level complement in the occupancy in order to confirm that the requirements of Sentence 2.8.2.2.(1) have been met.
Evidence of risk to fire safety
The Appellant testified that he resides in the building, does not take any medication, and is always fully responsible and aware of his supervisory role for fire safety.
The Appellant testified that the retirement residence passed a supervised fire drill by the Respondent thereby indicating compliance with OFC 2.8.2.2(1) Supervisory Staff requirements and 2.8.3.2(6) Frequency for Fire Drills
The Respondent offers the Commission definitions found in Oxford dictionary for the term “reactive” and interprets this a “awake and alert”.
The OFC does not define the reactiveness of supervisory staff as “awake or alert”.
The Respondent relied on the Technical Guideline 03-2016 from the Office of the Fire Marshal and Emergency Management – Staffing Levels in Care Occupancies, Care and Treatment Occupancies and Retirement Homes in support of its position.
Inspector Jordan testified that the Respondent removed approval of the FSP by way of a letter dated January 18, 2023, as they could not “in good faith” approve an FSP where supervisory staff would at times be sleeping or not in the building; thereby leaving the residence without supervisory staff available 24 hours a day.
The Fire Chief describes this building as operating as a “care occupancy”. Inspector Barritt also referenced this Building as a “care occupancy” when questioned by the Commission.
Analysis
The Commission is not persuaded by the Respondent’s submission of definitions in the Oxford dictionary as an interpretive tool for the application for the OFC in this appeal.
The term “supervisory staff” is defined in the OFC subsection 1.4.1.2. This definition does not include a requirement that supervisory staff be “awake and alert”.
The Guideline 03-2016 as described in paragraph 22 above describes staffing levels for this occupancy based on the results of the required supervised drill scenario approved by the Respondent. This supervised drill scenario determines the occupancy’s staffing level for an approved FSP.
The FSP for this occupancy was previously approved by the Respondent based on the results of the supervised fire drill that was well within the timeframes for reactiveness and staffing.
In the letter by Fire Chief Brent Thomas dated January 18, 2023, he referenced the classification of this occupancy as a “care occupancy”. The Respondent did not submit evidence to corroborate the classification. As this home is licensed by the Retirement Homes Regulatory Authority as a retirement residence, we acknowledge that it may also be classified as a care occupancy which may require additional compliance measures.
This retirement residence conducted a fire drill supervised by the Respondent as per the OFC requirements and was issued a passing grade, which also confirmed compliance with the requirements of article 2.8.2.2.(1) in terms of the sufficiency of supervisory staff to carry out the duties required in the FSP.
Based on the passing grade issued, the submitted FSP was approved by the Respondent at that time.
Conclusion
- Based on the evidence before us, we find that the action required by the Respondent for supervisory staff to be awake 24 hours a day are unwarranted in this Building. As long as the supervisory staff in the Building are responsive to fire emergencies, as the Appellant in this case demonstrated that they are, the FSP meets the requirements of the OFC.
ORDER
The Commission amends the Inspection Order issued on December 6, 2023, in relation to item 3 to direct the Appellant to Submit a fire safety plan for approval and implementation. The Inspection Order should remove any requirement for supervisory staff to be awake and alert, or reactive, during the night hours.
The compliance date is amended as follows: Item 3 shall be completed within thirty (30) days of the release this Decision.
Released: June 12, 2024
________________
Ziba Heydarian, Vice Chair
Rocco Iamello, Member