Tribunals Ontario
Fire Safety Commission
Citation: Toronto Fire Services v. Hossain, 2024 ONFSC 40 Date of Order: November 12, 2024 Tribunal File Number: 15907/FSC Case Name: Toronto Fire Services v. Hossain
RECONSIDERATION DECISION
Panel: Alisa Chaplick, Member (Panel Chair) Susan Clarke, Managing Vice-Chair (A) Mark Sraga, Member
Written submissions by: For the Appellant: No submissions were requested For the Respondent: Zaid Hossain
OVERVIEW
1Mr. Zaid Hossain (the "Respondent") filed a Request for Reconsideration dated October 8, 2024, of the Fire Safety Commission's Decision in Toronto Fire Services v. Hossain, 2024 ONFSC 38, released on September 24, 2024 (the "Decision").
2The matter is related to a building owned by the Respondent located at 93 Heale Avenue, Toronto, Ontario (the "Building"). During the hearing, the parties agreed that the Building is a rooming house, and the Respondent's evidence supported this classification. Therefore, the Building is subject to the requirements in Section 9.3 of the Ontario Fire Code, O. Reg. 213/07 ("OFC")1, including the Application Statement in 9.3.1.1.(1)2 of the OFC.
3The Commission's Decision stated that the Respondent's evidence at the hearing was that lodging in the Building is provided for 6-7 individuals, who are not residing as a single housekeeping unit. This included sleeping accommodations for 4 tenants who reside on the main floor and 2 tenants who reside in the basement, fluctuating to 3 tenants.
4The Commission dismisses this reconsideration request for the reasons outlined below.
Inspection Order & Fire Marshal's Review Decision
5An Inspection Order regarding the Building was served on the Respondent in the current matter on April 20, 2023. The Inspection Order contained 8 items which were identified to be in contravention of the OFC.
6The Respondent requested a Fire Marshal Review of the Inspection Order. The Fire Marshal's Review Decision, issued on April 30, 2024 ("Review Decision") confirmed items 1, 2 and 5 through 8 of the Inspection Order and rescinded items 3 and 4 of the Inspection Order.
7The issues at the hearing of the matter, and in this Request for Reconsideration, are related to items 3 and 4 of the Inspection Order. Items 3 and 4 of the Inspection Order include the following salient text:
Item 3 Sentence 9.3.3.1.(1) Each floor area shall be served by at least two exits. (3) Where sleeping accommodation is not provided in the basement, one exit from the basement is deemed to be in compliance with Sentence (1). Reasons: Basement only has 1 exit Action Required: Provide the basement with a second exit.
Item 4 Sentence 9.3.3.5.(1) Each exit other than a doorway opening directly onto a fire escape or to the outdoors at ground level shall be separated from the remainder of the building or from another exit by a fire separation having a fire-resistance rating of not less than 30 minutes. Reasons: Walls located at the ground floor side exit stairway have areas consisting of panel board/exposed wood Action Required: Install a fire separation at the ground floor shared side exit/basement exit stairway having a fire-resistance rating not less than 30 min.
8Toronto Fire Services (the "Appellant") appealed the Review Decision to the Commission, taking the position that the Fire Marshal erred in rescinding items 3 and 4 of the Inspection Order.
Commission Decision
9The Request for Reconsideration arises from the Commission's Decision to amend items 3 and 4 of the Review Decision of the Fire Marshal. In particular, the Commission required the Respondent to comply with items 3 and 4 of the Inspection Order and alternatively offered deemed compliance options as follows:
[45] The Commission amends the Review Decision regarding Items 3 and 4 and orders as follows: a) Item 3 - two exits are required to serve the basement area. b) Item 4 - the staircase between the ground floor and basement shall be separated from the remainder of the Building by a 30-minute rated fire separation.
[46] The following options may be deemed to comply with Item 3, provided the option is exercised before the corresponding compliance date described in paragraph [48]: a) Reduce the number of occupants in the Building to four or fewer, so that the Building is no longer governed by the application statement in Article 9.3.1.1.; or b) Remove all sleeping accommodation in the basement; or c) Demolish the Building.
[47] The following options may be deemed to comply with Item 4, provided the option is exercised before the corresponding compliance date described in paragraph [48]: a) Reduce the number of occupants in the Building to four or fewer, so that the Building is no longer governed by the application statement in Article 9.3.1.1.; or b) Demolish the Building.
[48] The Commission amends the compliance date in the Review Decision as follows: a) Item 3, requiring the construction of a second exit, must be completed within 3 months of the date of this decision; and b) Item 4, requiring the fire separation of the existing exit stair, must be completed within 3 weeks of the date of this decision.
10The Respondent is seeking an order cancelling the Commission's decision.
RESULT
11The Respondent's Request for Reconsideration is denied.
ANALYSIS
Respondent Did Not Satisfy Criteria under Rule 18.2(d)
12Pursuant to Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission's Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended ("Rules"), the Commission may, on its own initiative or upon request of a party, if the request is made within 21 days of the date of the decision, reconsider any decision of the Commission that finally disposes of an appeal.
13The Respondent asks the Commission to grant this Request for Reconsideration and relies on Rule 18.2(d)3 of the Rules, which states that there is evidence that was not before the Commission when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result. However, the Respondent's submissions focus on "incorrect findings" rather than new evidence.
14The Respondent has not met the criteria for granting a reconsideration pursuant to Rule 18.2(d). The Respondent made no arguments that any information he provided as part of the Request for Reconsideration could not have been obtained by him prior to the Commission's hearing and would have likely affected the result.
"Incorrect Findings" are not an Enumerated Ground for a Request for Reconsideration
15While the Respondent stated that he is challenging the Decision pursuant to Rule 18.2(d), the body of the Request for Reconsideration focused on what the Respondent is referring to as "incorrect findings".
16The Respondent identified four specific paragraphs in the Decision where the Commission allegedly made "incorrect findings". While "incorrect findings" are not a ground for reconsideration, there is a ground for reconsideration in Section 18.2(b) of the Rules which states that the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made.
17Despite the fact that the Respondent did not explicitly state that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made, the Commission has considered this ground out of an abundance of caution.
18The Commission has determined that pursuant to 18.2(b) of the Rules, the Commission did not make an error of law or fact such that the Commission would have likely reached a different result had the error not been made.
Paragraph 17 of Commission's Decision
19The Respondent argued that paragraph 17 of the Commission's Decision contained an "incorrect finding". Paragraph 17 states the following:
[17] The Commission set disclosure and filing deadlines in the [Case Conference Report and Order] 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.
20The Commission's Decision continued by stating that despite the deadline in the Case Conference Report and Order ("CCRO") of July 18, 2024, the Respondent sought to file materials less than one week before the hearing. Materials were received from the Respondent by the Commission on August 6, 2024, despite the fact that this hearing took place on August 7, 2024. The Appellant objected to the late filing given the wording in the CCRO. The Commission ruled that the Respondent's late filing would not be accepted because it would prejudice the Appellant.
21In the Request for Reconsideration, in reference to paragraph 17, the Respondent says he did not receive an email on July 18, 2024 from the Appellant's lawyer. He stated that he later discovered that it was in his spam mailbox and immediately sent all documents requested to the Appellant's lawyer.
22However, it is important to note that the Case Conference took place on June 24, 2024 and the Respondent was listed as present at the Case Conference in the CCRO. The CCRO states that it was released on July 4, 2024 so the Respondent would have received the CCRO from the Commission on or about July 4, 2024. Also, the deadlines for disclosure were agreed to at the Case Conference. This means that the Respondent should have received the disclosure deadlines at least 3 times – once, orally, at the Case Conference, once in the CCRO sent to the Respondent by the Commission and once by the Appellant's lawyer (which allegedly went into the Respondent's spam mailbox). In addition, the Respondent did not convey anything about the CCRO going into his spam mailbox at the Commission hearing. Furthermore, the Commission has reviewed the late evidence provided by the Respondent at the hearing, and the evidence that the Respondent provided as part of this Request for Reconsideration, as discussed below, and has found that it would not have impacted the Commission's conclusion in its Decision.
23The Commission finds that there is no error of fact or law in paragraph 17 (and no "incorrect finding"). There is no basis to grant the reconsideration on the basis of paragraph 17.
Paragraph 36 of Commission's Decision
24The Respondent also argued that paragraph 36 of the Commission's Decision was an "incorrect finding" as he had already served written notice to all tenants in the basement of the Building.
25Paragraph 36 of the Decision states the following:
[36] The Respondent testified that the tenants in the Building do not have lease agreements; rather they are month-to-month tenants. He said he had notified 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.
26As part of the Request for Reconsideration, the Respondent submitted a "Vacating notice" dated October 27, 2023 which he said that he provided to one of the tenants in the Building. The "Vacating notice" stated that, due to demolition of the residence, the tenant was required to vacate within 90 days.
27To be cautious, Commission has analyzed this paragraph pursuant to both Rule 18.2(b) and Rule 18.2(d).
28With respect to Rule 18.2(d), the "Vacating notice" is not new evidence as it was dated October 27, 2023, which was before the hearing took place. The Respondent did not provide the "Vacating notice" to the Commission by the disclosure deadline set out in the CCRO. In addition, the Respondent did not provide evidence that the "Vacating notice" could not have been obtained previously as per Rule 18.2(d).
29Furthermore, the "Vacating notice" would not change the Commission's decision, as the evidence at the hearing was that neither floor of the Building had been vacated and the Building had not been demolished.
30Further, with respect to Rule 18.2(b), the Commission has reviewed the Respondent's testimony on this issue and confirms that there is no error of law or fact (and no "incorrect finding"). As noted above, during the hearing, the Respondent stated that he verbally told the tenants that the building would be demolished and they would have to leave at some point in the future. In addition, the Respondent's testimony at the hearing was that last year he gave some of the tenants a letter regarding the Building being demolished in the future.
31The Commission's finding was based on the evidence before it, including the Respondent's testimony regarding remaining tenants on both floors in the Building. There is no basis for granting the Request for Reconsideration under Rule 18.2(b) or Rule 18.2(d).
Paragraph 37 of Commission's Decision
32The Respondent further argued that paragraph 37 of the Commission's Decision was an "incorrect finding" as he always obeys the rules but unfortunately does not have enough money to undertake such a huge list of work.
33Paragraph 37 of the Decision states the following:
[37] The Respondent is not challenging the work required by TFS. However, he does not want to undertake this work as he believes: a) It is not possible to install a second exit based on the advice of his architect; and b) He intends to demolish the Building as soon as he obtains the necessary approvals from the City.
34The Commission concludes that there is no error of fact or law (and no "incorrect finding") in this paragraph. The Commission did not make a finding that the Respondent does not obey the rules, and indeed acknowledged that the Respondent is not challenging the work required by TFS. The remainder of the paragraph does not state that the Respondent does not obey the rules but states the alternative arguments that the Respondent made at the hearing, which the Commission considered in the Decision.
35There is no error of fact or law (and no "incorrect finding") in paragraph 37 and no basis to grant the reconsideration on that basis.
Paragraph 41 of Commission's Decision
36The Respondent also stated that paragraph 41 of the Commission's decision is an "incorrect finding". Paragraph 41 states the following:
[41] In setting the compliance timelines, we were mindful that the Appellant requested that the Order be complied with immediately, while the Respondent wanted to avoid compliance altogether because he would be demolishing the Building when he received the "demolition permit." The Respondent provided no corroborating documentary evidence that he had applied for the permit and stated only that he expected to be demolishing the Building within six months.
37The Respondent states that this is an "incorrect finding" because as of April 23, 2024, "we started the process for the drawings & permit myself and my Architectural designer [sic]..."
38Included in the Request for Reconsideration, the Respondent provided a paid Receipt from the City of Toronto dated February 5, 2021 in the amount of $3,783.42, regarding 93 Heale Avenue. The Project Description in the Receipt states, "Minor Variance; New Res dwellings <= 3 units; New R Building". The Respondent also provided evidence of an e-transfer in the amount of $1,300.00 to an "Architect Engineer" dated April 23, 2024 with the message "93 Heale Avenue first drawing payment". In addition, the Respondent provided the contact information of a "Land Surveyor", an "HVAC Engineer" and a "Structural Engineer".
39With respect to Rule 18.2(d), none of this information was provided before the disclosure deadline in the CCRO. The Commission also notes that the additional information that the Respondent provided as part of his Request for Reconsideration does not corroborate his claim that he has applied for a "demolition permit". In addition, the above information that the Respondent included in the Request for Reconsideration was not new evidence – the date of the Receipt from the City of Toronto was February 5, 2021 and the date of the e-transfer was April 23, 2024. The evidence that the Respondent provided as part of the Request for Reconsideration would not have changed the Commission's decision.
40With respect to Rule 18.2(b), it is not an error of fact or law (and not an "incorrect finding") that the Respondent wished to avoid compliance because he would be demolishing the Building when he received the "demolition permit". This was a clear part of the Respondent's position at the hearing.
41In addition, it is important to note that a reconsideration is not an opportunity to reargue an appeal. The grounds for reconsideration of a Commission decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds in Rule 18.2 must be proven and this has not occurred.
Additional Comments in Request of Reconsideration
42In the Request for Reconsideration, the Respondent also states that once he receives the "final Drawing" and the permit from the City of Toronto, he will be able to complete the demolition, leaving empty land to be sold "along with the drawing and permit".
43In addition, the Respondent states that he is experiencing financial issues and will not be able to build a new house at the premises. He states that he will comply with the "work order given from the Ontario Tribunal". He also states that it would be advantageous to do "all that is requested" by the Commission but his lack of finances restricts him regarding how much can be completed. He asks if there is a procedure to obtain financial assistance from the government to comply with what is ordered.
44The question regarding attempting to obtain financial assistance from the government to comply with what is ordered is outside of the Commission's jurisdiction. The Respondent can seek independent legal advice regarding the issue of possible financial assistance. In addition, the Respondent's financial position cannot impact the Commission's findings regarding the fire safety issues at the Building. Despite this, we note that the Decision provided various options to achieve compliance.
45For the above-noted reasons, the Request for Reconsideration is dismissed.
Released: November 13, 2024
Alisa Chaplick Member (Panel Chair)
Susan Clarke Managing Vice-Chair (A)
Mark Sraga Member
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.
The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following criteria are met: a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; c. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or d. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
Footnotes
- All references to the OFC, are to Division B of the OFC.
- The Application Statement reads as follows:
- 18.2 CRITERIA FOR GRANTING RECONSIDERATION