Hossain v. Toronto Fire Services, 2024 ONFSC 37

Hossain v. Toronto Fire Services

Citation: Hossain v. Toronto Fire Services, 2024 ONFSC 37 Date: 2024-09-10

Appeal under s. 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4

Between: Zaid Hossain Appellant

and

Toronto Fire Services Respondent

DECISION AND ORDER

Panel: Mark Sraga, Member (Panel Chair) Susan Clarke, Managing Vice-Chair (A) Alisa Chaplick, Member

Appearances: For the Appellant: Zaid Hossain, Self-represented For the Respondent: Michael Gauthey, Counsel

Heard by videoconference (with Appellant by telephone): August 6, 2024

OVERVIEW & BACKGROUND

1Zaid Hossain (the “Appellant”) owns a building located at 93 Heale Avenue in Toronto, Ontario (the “Building”). The Building is a single-storey structure plus basement detached residential occupancy.

2On February 28, 2023 and March 9, 2023, Inspector Matthew Da Silva of Toronto Fire Services (“TFS”) (the “Respondent”) inspected the Building. On April 20, 2023 Inspector Da Silva served an Inspection Order to the Appellant under the authority of 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”).

3The parties agree that the Building is a rooming house and is therefore subject to the requirements in Section 9.3 of the OFC¹ applicable to boarding, lodging and rooming houses.

4The Appellant’s evidence at the hearing was that lodging in the Building is provided for 6-7 individuals, not residing as a single housekeeping unit. This included sleeping accommodations for 4 tenants who reside on the main floor and for 2 tenants who reside in the basement, fluctuating to 3 tenants who reside in the basement.

5The Building has 1 shared washroom on the main floor and 1 shared washroom in the basement. There is 1 shared laundry facility for the whole Building in the basement. In addition, there is 1 shared kitchen on the main floor for the whole Building.

6The Inspection Order included 8 contraventions of the OFC to be corrected. The compliance date in the Inspection Order was July 20, 2023.

7The Appellant requested a Fire Marshal review of the Inspection Order pursuant to s. 25(1) of the FPPA on May 11, 2023. The Fire Marshal issued a Review Decision and Order FM-23209 on April 30, 2024 (“Review Decision”), which confirmed items 1, 2, and 5 through 8 of the Inspection Order and rescinded items 3 and 4 of the Inspection Order. The Review Decision amended the time for compliance with items 1, 2 and 5 through 8 to July 30, 2024.

8The Appellant appealed the Review Decision to the Fire Safety Commission (the “Commission”) pursuant to s. 26(1) of the FPPA. The Appellant seeks to have more time to address items 1, 2, and 5 through 8 of the Review Decision, stating that the Building is going to be demolished.

9TFS also appealed the Review Decision, taking the position that the Fire Marshal Delegate erred in rescinding items 3 and 4 of the Inspection Order. TFS’ appeal was heard the day after Mr. Hossain’s appeal and is not the subject of this Decision and Order (“Decision”).

ISSUE

10Should the Commission confirm, amend, or rescind items 1, 2, and 5 through 8 of the Review Decision, or make such other order as the Commission deems appropriate?

RESULT

11The Commission confirms items 1, 2, and 5 through 8 of the Review Decision.

12Alternatively, either of the following options may be deemed to comply with items 1, 2, and 5 – 8, provided the option is exercised before the compliance dates described in paragraph [13]:

1. Reduce the number of occupants in the Building to 4 or less, so that the Building no longer meets the Application Statement in OFC Article 9.3.1.1; or
2. Demolish the Building.

13The Commission amends the compliance date in the Review Decision as follows:

1. Items 1 and 2 must be satisfied within 3 weeks of the date of this Decision;
2. Items 5, 7 and 8 must be satisfied within 2 weeks of the date of this Decision; and
3. Item 6 must be satisfied within 2 months of the date of this Decision.

PRELIMINARY MATTERS

14The Panel dealt with a number of preliminary matters as follows:

Appellant’s Participation by Telephone

15At the start of the hearing, the Panel was advised that the Appellant did not have access to Zoom. He did not provide advance notice to the Commission of this issue. The Appellant was provided with a Notice of Electronic Hearing dated July 16, 2024, which stated that the hearing would be taking place using the Zoom Videoconference Platform, and he was sent emails advising him of same, with the Zoom link for the hearing. The Appellant acknowledged that he saw the Notice of Electronic Hearing stating that the hearing would take place by Zoom Videoconference, prior to the hearing date.

16The Panel allowed the Appellant to call in to the hearing as it was the best, and also the only way, for the Appellant to participate in the hearing at such a late stage and TFS did not object to this. The Videoconference hearing continued, with the Appellant participating by telephone.

Appellant’s Non-Compliance with Case Management Directions

17On June 24, 2024, both parties participated in a Case Conference regarding this hearing. A Case Conference Report and Order (“CCRO”) was released to the parties on July 4, 2024, which reflected hearing case management details.

18The Commission set disclosure and filing deadlines in the CCRO. The CCRO ordered the parties to exchange and file with the Commission a copy of the documents they planned to use at the hearing on or before 12:00 p.m. on July 18, 2024. The CCRO also stated that no documents or things disclosed after 12 p.m. on July 18, 2024 could be used as evidence at the hearing unless otherwise ordered by the hearing adjudicator.

19Despite these deadlines, the Appellant sought to file materials that he wanted to rely on at the hearing, less than one week before the hearing date. The Panel did not allow the Appellant to enter these materials into evidence at the hearing, given the fact that the Respondent objected to the late filing and given the wording in the CCRO noted above.

20In addition, counsel for the Respondent advised the Panel that the Appellant advised him that he wished to call his partner as a witness, during the long weekend two calendar days before the commencement of the hearing. This was past the date for the exchange and filing of witness lists noted in the CCRO. The Respondent objected to the Appellant’s request to call his partner as a witness.

21The CCRO stated that if a party wished to call additional witnesses to those listed in the CCRO, it required the Commission’s permission. Given the late notice that the Appellant wished to call his partner as a witness, contrary to the CCRO, and the fact that the Appellant did not name his partner as a proposed witness in the CCRO, the Panel did not allow the Appellant’s partner to testify at the hearing. The Panel decided that the late notice to the Respondent regarding the Appellant’s witness could unfairly prejudice the Respondent if the Appellant’s witness was allowed to testify.

22The Respondent did not object to the Appellant testifying on his own behalf and the Appellant was listed as a proposed witness in the CCRO. For those reasons, the Panel allowed the Appellant to testify on his own behalf, even though he did not file a witness statement in time.

23During the hearing, the Appellant stated that he does not read English well. However, the CCRO stated that the parties confirmed that an interpreter was not required at the hearing and that neither party required an accommodation to participate in the hearing. Given these statements in the CCRO and the fact that the Appellant did not request additional assistance at the hearing, the Panel proceeded with the hearing.

EVIDENCE AND ANALYSIS

Applicable Sections of the OFC

24The Inspection Order and the Review Order relied on Section 9.3 of the OFC, which applies to Boarding, Lodging and Rooming Houses. Rooming houses, like the one at issue in this case, are required to comply with Section 9.3 where they meet the parameters in the Application Statement, which reads as follows:

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.

25Both parties agreed that the Building is a rooming house; the Appellant did not dispute the application of s. 9.3 of the OFC.

26The Inspection Order stated that the following were contraventions of the OFC, in items 1, 2, and 5 through 8 of the Inspection Order, which were confirmed by the Review Order:

• Item 1: Sentence 9.3.2.2. (1) Floor assemblies shall (a) be constructed as fire separations, and (b) have a fire-resistance rating not less than 30 min.

• Item 2: Sentence 9.3.2.4. (1) Each guest room or suite of rooms shall have interior walls having a fire-resistance rating not less than 30 min.

• Item 5: Sentence 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.

• Item 6 Sentence 2.8.2.1. (1) A fire safety plan shall be prepared, approved and implemented in buildings and premises to which this Section applies.

• Item 7 Sentence 9.3.3.10. (1) Exit signs shall be located along a means of egress so that direction 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.

• Item 8 Sentence 9.3.5.1. (1) Despite the provisions of Subsection 6.2.6., at least one 2A rated portable extinguisher shall be provided on each floor. (2) At least one 5B:C rated portable extinguisher shall be installed in each kitchen where shared cooking facilities exist.

Appellant’s Position

27The Appellant submitted that he is seeking more time so that he can get a permit and any other necessary documents from the City of Toronto in order to demolish the Building and begin building a new property on the land.

28The Appellant submitted that he applied for a “demolition permit” approximately one month before the hearing of this matter, and that he believes he needs approximately six months from the hearing date to demolish the Building. In particular, the Appellant stated that he does not want to comply with the Review Decision, because he will be demolishing the Building.

29The Appellant submitted that he is a building contractor and could install drywall cladding on the basement ceiling within the hall, install exit signs and install a fire extinguisher in the basement, while he is awaiting the “demolition permit”.

30In response to the Commission’s questions, the Appellant stated that the tenants in the Building do not have Lease Agreements; rather they are “month-to-month tenants”. He also advised that he had told them of his plans to demolish the Building and that they would need to leave by then, but that he had not served them formal written notices.

Respondent’s Position

31Inspector Da Silva, who issued the Inspection Order, testified on behalf of the Respondent. During Inspector Da Silva’s testimony, many photographs of the Building that were taken during the inspection were presented and relied on to explain deficiencies noted by Inspector Da Silva.²

32The Respondent submitted that although the Inspection Order was issued to the Appellant on April 20, 2023, there have been little to no steps taken by the Appellant to comply. The Respondent also stated that there is no clear timeline regarding when the Building will be demolished. Furthermore, the Respondent argued that given the circumstances, the Appellant should not receive additional time to comply with the Review Decision.

Analysis & Compliance Timeframes

33As noted above, the Appellant is not challenging the work ordered in the Review Decision. However, he is seeking more time so that he can demolish the Building. This additional time is opposed by the Respondent. Accordingly, the only matter for the Panel to decide is whether to grant the Appellant’s request for more time and, if so, how much more time to grant.

34The Appellant did not meet the compliance dates in either the Inspection Order or the Review Order and has taken minimal or no steps to comply.

35As the Appellant does not dispute the work required, the Commission confirms items 1, 2 and 5 through 8 of the Review Decision. The Commission grants the Appellant additional time to comply with the Review Decision as described below. Alternatively, the Appellant may either:

1. Demolish the Building; or
2. Reduce the number of tenants to no more than 4 tenants.

36In making the decision to grant the Appellant additional time, the Panel balanced the Respondent’s fire safety concerns with fairness to the Appellant, in order to give him enough time to comply. While the Appellant conceded that he could partially comply in the interim period before the Building was demolished, by constructing the ceiling fire separation in the corridor (Item 1 partial), and adding exit signage (Item 7), and adding a portable extinguisher (Item 8), he offered no dates with respect to when these measures would be taken.

37The Commission confirms the Review Decision but amends the compliance dates as indicated in the Order below.

ORDER

38Pursuant to s. 26(6) of the FPPA, the Commission confirms items 1, 2, and 5 through 8 of the Review Decision.

39Alternatively, either of the following options may be deemed to comply with items 1, 2, and 5 – 8, provided the option is exercised before the compliance dates described in paragraph [40]:

1. Reduce the number of occupants in the Building to 4 or less, so that the Building no longer meets the Application Statement in OFC Article 9.3.1.1. for rooming houses; or
2. Demolish the Building.

40The Amended Compliance Dates are as follows:

1. Item 1 regarding constructing a 30-minute rated floor separation across the entire basement ceiling shall be completed within 3 weeks of the date of this Decision;
2. Item 2 regarding constructing 30-minute rated fire separations between guest rooms shall be completed within 3 weeks of the date of this Decision;
3. Item 5 regarding installing 20-minute rated closures shall be completed within 2 weeks of the date of this Decision;
4. Item 6 regarding submitting a fire safety plan shall be completed within 2 months of the date of this Decision;
5. Item 7 regarding installing exit signage in the means of egress shall be completed within 2 weeks of the date of this Decision;
6. Item 8 regarding installing a 2A rated portable extinguisher shall be completed within 2 weeks of the date of this Decision.

Footnotes

1. 1All references to the OFC, are to Division B of the OFC.
2. 2The photographs, as well as the rest of the Respondent’s evidence, was contained in a “Joint Book of Documents” dated July 18, 2024, which was entered as an Exhibit in this matter. Although this was called a “Joint Book of Documents” and the Appellant was asked by the Respondent if there were any documents that he wished to include, the Appellant did not do so. Accordingly, the “Joint Book of Documents” was prepared and entered into evidence by the Respondent, who solely controlled what was contained therein. Note that the Respondent included the Appellant’s Notice of Appeal in the “Joint Book of Documents”.