FIRE SAFETY COMMISSION

Tribunals Ontario

COMMISSION DE LA SÉCURITÉ-INCENDIE

Tribunaux décisionnels Ontario

Citation: Hospitalité Sonder Canada Inc. v Toronto Fire Services, 2024 ONFSC 34

Date: 2024-03-22

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

Between:

Hospitalité Sonder Canada Inc.

Appellant

and

Toronto Fire Services

Respondent

MOTION DECISION AND ORDER

ADJUDICATOR: Anxhela (Angela) Peco, Acting Vice-Chair

For the Appellant: Raivo Uukkivi, Counsel Meghan Rourke, Co-counsel

For the Respondent: Emma Luca, Counsel

Held in writing: January 19, 2024, stayed until January 22, 2024

OVERVIEW

1This is a preliminary motion to determine the scope of a hearing before the Fire Safety Commission (Commission) involving an appeal of a Fire Marshal’s order.

2Hospitalité Sonder Canada Inc. (Sonder) leases and operates 40 hotel units across four floors in a building located at 390 Dufferin Street in Toronto.

3As a hotel establishment, Sonder is required to prepare and implement a fire safety plan that, among other things, outlines the emergency procedures to be followed in case of a fire and sets out how supervisory staff will carry out fire safety duties. A set of prescriptive requirements related to fire safety plans are set out in the Ontario Fire Code (OFC)¹ and are known as the “acceptable solution.”

4As Sonder was developing its fire safety plan for the premises, a disagreement arose between Sonder and Toronto Fire Services (TFS) over the interpretation of the acceptable solution in the OFC and specifically the supervisory staff requirements in OFC Sentence 2.8.2.2.(2). TFS took the position that the requirement to have staff “on duty” means that they must be “on site,” whereas Sonder argues that it has the right to have staff located off site so long as they are on duty.

5As a result, TFS would not approve Sonder’s fire safety plan and Sonder submitted an alternative solution proposal to TFS. An “alternative solution” is available to a party who cannot comply with the prescriptive requirements of the OFC, if they can prove that the alternative solution meets the attributes² of the acceptable solution it is proposed to replace³.The alternative solution proposal in this case includes a fire safety plan that reflects Sonder’s preferred interpretation of OFC Sentence 2.8.2.2.(2).

6Sonder has an appeal pending before the Commission after its alternative solution proposal was rejected, first by TFS and then by the Fire Marshal. It brings this preliminary motion to seek a decision on the jurisdictional issue of whether the Commission can consider, at the hearing of the appeal, if Sonder’s “alternative solution” is not only equivalent to, but is in fact, an “acceptable solution” that meets the supervisory staffing requirements in OFC Sentence 2.8.2.2.(2).

7In practical terms, Sonder requests a ruling from the Commission that OFC Sentence 2.8.2.2.(2) permits Sonder to have a fire safety plan that allows its supervisory staff to be located off premises. Only in the alternative, if the Commission concludes that the OFC does not permit Sonder’s staff to be located off premises, should the Commission then consider if Sonder’s alternative solution proposal should be accepted.

8TFS opposes the motion and submits that, in the context of an appeal relating to the rejection of an alternative solution proposal, the Commission does not have jurisdiction to consider whether the “alternative solution” is an “acceptable solution” that satisfies OFC Sentence 2.8.2.2.(2). In the alternative, should the Commission find that it can consider whether the alternative solution proposal, though presented as an “alternative solution,” is an “acceptable solution,” TFS agrees with Sonder and submits that the Commission should only make that determination after hearing the parties’ evidence and submissions at the hearing of the appeal, and not as part of its decision on this preliminary motion.

RESULT

9For the reasons that follow, I find that the Commission does not have jurisdiction to consider whether the alternative solution proposal is an acceptable solution. To do so would effectively require the Commission to review TFS’ opinion on the sufficiency of Sonder’s initial fire safety plan, an opinion which is not under appeal and is not reviewable by the Commission. The order under appeal is the Fire Marshal’s rejection of the alternative solution proposal, and the Commission may only exercise its authority under s. 26(6) to determine the sufficiency of the alternative solution proposal as an alternative to the acceptable solution.

10Accordingly, I confirm the scope of the issues to be addressed in the pending appeal of the Fire Marshal’s order to be as follows:

1. Does the ASP demonstrate that it meets the minimum performance level intended by the applicable acceptable solution such that supervisory staff may be located off the hotel premises and on call?

2. Should the Fire Marshal’s order be confirmed, amended, or rescinded, or should the Commission make such other order as deemed appropriate?

ANALYSIS

The appeal route to the Commission

11To determine the scope of an appeal concerning the rejection of an alternative solution proposal, I first reviewed the available appeal route to the Commission.

12A party seeking to comply with OFC requirements through an alternative solution is required to submit an alternative solution proposal, with supporting documentation, to the Chief Fire Official for review and approval⁴. Sonder submitted the alternative solution proposal to TFS’s Chief Fire Official on March 3, 2022.

13The Chief Fire Official is required to review the proposed alternative solution and notify the party of their decision in writing, within 45 days of receiving the alternative solution proposal⁵. Where the alternative solution is not approved, the Chief Fire Official is required to provide reasons for the decision⁶. TFS, through its Chief Fire Official, issued the decision not to approve Sonder’s alternative solution on November 15, 2022.

14A party who feels aggrieved by a Chief Fire Official’s decision not to approve an alternative solution may appeal the decision “in the same manner as though it were an Order”⁷. This mechanism triggers the appeal route to the Commission, with “in the same manner as though it were an Order” referring to the procedure outlined in ss. 25 and 26 of the FPPA. That procedure permits a party to first request a Fire Marshal review of the Chief Fire Official’s decision, and then appeal the Fire Marshal’s order to the Commission. In the present case, Sonder first sought a Fire Marshal’s review of the Chief Fire Official’s decision pursuant to s. 25(1) of the FPPA, and then appealed the Fire Marshal’s order to the Commission pursuant to s. 26(1) of the FPPA.

15The powers of the Commission on these appeals are to confirm, amend, or rescind the Fire Marshal’s order or make such other order as the Commission deems appropriate (s. 26(6) of the FPPA).

16There is no right of review or appeal of a fire official’s opinion on the sufficiency of a particular fire safety plan or their interpretation of what they will find satisfactory to approve a fire safety plan, per the acceptable solution requirements.

Do the Commission’s s. 26(6) powers permit the Commission to determine if Sonder’s proposal conforms to an acceptable solution?

17The parties agree on the fundamental principle that a tribunal has only those powers that are expressly or implicitly conferred on it by statute,⁸ and that a corollary to this principle is that the tribunal must determine if it has jurisdiction to consider a particular issue or make a particular decision.

18The parties diverge on the issue of whether the Commission, pursuant to its s. 26(6) powers, should stand in the shoes of the City of Toronto fire official on this appeal, which would mean that its first job is to interpret the acceptable solution in the OFC and determine if Sonder’s proposal conforms to the acceptable solution. If this question is resolved in Sonder’s favour, it would mean that an alternative solution is not required, and Sonder can satisfy the prescriptive requirements of the acceptable solution by having supervisory staff located off-site.

19I find that the Commission does not have the power to decide if Sonder’s fire safety plan, as set out in its alternative solution proposal, conforms to the acceptable solution.

20In the present scenario, the “originating decision” that triggered the appeal procedure was the Chief Fire Official’s decision not to approve the alternative solution proposal, and not TFS’ earlier opinion regarding the sufficiency of Sonder’s initial fire safety plan as an acceptable solution. Further, as noted earlier, there is no right of review or appeal from such an opinion in the FPPA. Therefore, the Commission may only exercise its authority under s. 26(6) with respect to the rejection of the alternative solution proposal.

21While I appreciate that Sonder takes the position that its fire safety plan was in compliance with the acceptable solution such that an alternative solution was not required, a review of TFS’ original position is not captured in the specific areas for which the legislature has provided a route of appeal to the Commission. To accept Sonder’s position would mean to confer on the Commission a power that the FPPA does not grant, either explicitly or implicitly. The farthest the Commission can look back in the context of this appeal is the Chief Fire Official’s decision not to approve the alternative solution proposal.

22I also cannot accept Sonder’s position that the Commission’s s. 26(6) power to “make any such order as the Commission deems appropriate” gives it broad discretion to fashion remedies it deems appropriate to ensure fire safety such that it can accommodate the type of ruling Sonder requests. The Commission’s powers to make orders that it deems appropriate cannot be used as a vehicle to create new jurisdiction. As noted earlier, the Commission’s powers on appeal can only be exercised within the scope of the subject matter of the appeal, which is limited to the rejection of the alternative solution proposal. To read those powers so broadly as to confer on the Commission a power to review a fire official’s opinion for which there is no appeal route in the FPPA would improperly expand the legislature’s intended appeal routes and the Commission’s scope of decision-making authority. In this regard, I agree with TFS’s submission that had the legislature intended that other routes of appeal to the Commission be available, the legislature would have said so.

23For the above-mentioned reasons, I find that the FPPA does not confer jurisdiction on the Commission to decide if Sonder's fire safety plan constitutes an acceptable solution under the OFC. Rather, the Commission’s role on the pending appeal is limited to assessing the sufficiency of the alternative solution proposal as an alternative solution and ultimately decide if the Fire Marshal’s order was appropriate.

Would the Commission’s refusal to interpret OFC Sentence 2.8.2.2.(2) lead to an absurd result?

24On a final note, I wish to address Sonder’s argument that if it is not permitted to seek the Commission’s interpretation of OFC Sentence 2.8.2.2.(2) in the context of its appeal of an alternative solution proposal that involves sufficiency of compliance with that same Sentence, it would lead to an absurd result because Sonder is left without a remedy.

25The Commission is not denying that it can, and may very well have to, interpret OFC Sentence 2.8.2.2.(2). I acknowledge that the Commission will first have to determine what the acceptable solution requires if it is to decide whether Sonder’s alternative solution proposal meets the minimum performance level intended by the acceptable solution. In that sense, Sonder is not left without a remedy because the Commission is not denying Sonder the opportunity to have its alternative solution proposal considered. However, the Commission cannot conduct this interpretive exercise in the manner and for the purpose proposed by Sonder.

26It is open to both parties to present evidence and legal argument on the proper interpretation of OFC Sentence 2.8.2.2.(2) in the context of a full hearing as long as it is relevant to the question of whether the alternative solution proposal meets the minimum performance level intended by the applicable acceptable solution, and whether the Fire Marshal’s decision should be confirmed, amended or rescinded, or another order made.

Footnotes

1. 1O. Reg. 213/07, under the Fire Protection and Prevention Act, 1997, S.O. 1997, Ch. 4. (FPPA). Unless otherwise stated, all OFC references are to Division B.
2. 2Fire Code Supplement FCS-1, Objectives (Part 2) and Functional Statements (Part 3), Division A of the OFC.
3. 3Clause 1.2.2.1.(1)(b), Division A and subsection 1.3.2., Division C of the OFC.
4. 4Articles 1.3.2.1. and 1.3.2.2. of Division C of the OFC.
5. 5Sentence 1.3.2.3.(1) of Division C of the OFC.
6. 6Sentence 1.3.2.3.(2) of Division C of the OFC.
7. 7Sentence 1.3.2.3.(5) of Division C of the OFC.
8. 8Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43.