Fire Safety Commission
Appeal under s. 26(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4
Between:
Barry Campbell Appellant
and
Kingston Fire & Rescue Respondent
DECISION AND ORDER
Panel: Susan Clarke, Managing Vice Chair (A) Peter Simmons, Member Mark Sraga, Member
Appearances: For the Appellant: Barry Campbell, Self-represented For the Respondent: Chris Yamada, Inspector, Kingston Fire & Rescue Andrew Reeson, Counsel
Heard by videoconference: May 21, 2024
OVERVIEW
1Barry Campbell (the “Appellant”) owns a building located at 120 Colbourne Street in Kingston, Ontario (the “Building”). The Building is a two-storey plus basement multi-unit residential building containing eight individual dwelling units, seven above grade and one unit in the basement.
2On March 28, 2023, Inspector Vicki Veldman of Kingston Fire & Rescue (“KFR”) (the “Respondent”) inspected the Building. She subsequently issued two Inspection Orders to the Appellant, on April 25, 2023. Both Orders were issued under 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 first Order (“Order 1”) required the owner to upgrade the fire alarm audibility in the individual rental dwelling units, providing a compliance date of October 11, 2023.This order is not under appeal.
4The second Order (“Order 2”), which is the subject of this hearing, identified twenty-six contraventions of the OFC. Items #19 and #20 of Order 2 are the only items under appeal and cite contraventions of Articles 9.5.3.1 and 9.5.3.2., Division B of the OFC, and requires apartments identified as #1 and #5 of the Building to be served by at least two exits. Order 2 provided a compliance date of July 25, 2024.
5On February 6, 2024, the Appellant requested a Fire Marshal review of Order 2 pursuant to s. 25(1) of the FPPA. The Fire Marshal issued Decision FM-24034 dated February 8, 2024 (“Decision”), in which the Appellant’s request for a Fire Marshal review was denied as the time to apply for a Fire Marshal review had expired.
6On February 22, 2024, the Appellant appealed the Decision to the Fire Safety Commission (the “Commission”) pursuant to s. 26(1) of the FPPA. The Appellant seeks to have items #19 and #20 of Order 2 rescinded as they believe that both apartments have windows that can be considered exits.
7The Respondent asks the Commission to confirm items #19 and #20 of Order 2.
8Both parties agree to the facts related to this matter, except for what constitutes an exit as prescribed in the OFC, and the need for additional exits to be installed to serve apartments #1 and #5.
ISSUE
9Should the Commission confirm, amend, or rescind items #19 and #20 of Order 2, requiring apartments #1 and #5 of the Building to have access to exits and to be served by more than one exit?
RESULT
10Pursuant to s. 26(6) of the FPPA, the Commission amends items #19 and #20 of Order 2, as follows:
Item 19: Provide Apartments #1 and #5 with access to exits complying with OFC Article 9.5.3.1. Alternatively, compliance may be achieved where the Chief Fire Official is satisfied that alternative measures will provide a level of protection for life safety similar to the protection provided by the requirement in OFC Article 9.5.3.1.
Item 20: Provide a second exit for Apartments #1 and #5, complying with OFC Article 9.5.3.2. Alternatively, compliance may be achieved where the Chief Fire Official is satisfied that alternative measures will provide a level of protection for life safety similar to the protection provided by the requirement in OFC Article 9.5.3.2.
11The compliance date is amended to six months from the release date of this decision.
EVIDENCE AND ANALYSIS
The Law
12OFC Section 9.1 states that Part 9 provides for the upgrading of existing buildings either through implementing the requirements as prescribed in the applicable Section or implementing an approved Life Safety Study. It further states that a Chief Fire Official can approve a compliance alternative if they are of the opinion that it will provide similar protection for life safety as required in this Part.
13OFC Section 9.5 applies to multi-unit residential buildings up to and including six storeys in building height, containing more than two dwelling units, and where dwelling units share common exit facilities and have interior access to one another, or one dwelling unit is located above another and either share interior access to each other or common exit facilities. There is no dispute that the Building is subject to the requirements of Section 9.5.
Access to Exits
14OFC Sentence 9.5.3.1.(1) addresses the need for dwelling units to be provided with doorways, leading either to:
a) The outside at or near grade;
b) An outside passageway where it is possible to go in opposite directions to separate exits; or
c) A public corridor where it is possible to go in opposite directions to separate exits.
15Where access is available to only one exit through a corridor, it is considered a “dead end corridor”. Article 9.5.3.1.(2) provides compliance alternatives to OFC Sentence 9.5.3.1.(1) and states that access to exits in these situations is deemed to be in compliance with OFC Sentence 9.5.3.1.(1) where:
a) the distance along the dead end does not exceed 6 m plus the width of the corridor, measured from any door along the corridor to a point where a choice of two directions of exit travel is available, and
b) self-closing devices are provided on suite entrance doors opening onto the dead-end portion of the corridor.
Number of Exits
16In addition to the requirement for access to exits, the OFC also sets out requirements for the number of exits. OFC Sentence 9.5.3.2 addresses the need for floor areas to be served by at least two exits. Compliance options are provided, describing circumstances where a single exit would be permitted.
Analysis
17The Commission amends Item #19 and Item #20 of Order 2 for the reasons that follow.
18In considering whether a window could be accepted as a second exit, the Commission was guided by OFC Sections 9.1 and 9.5., Division B.
19It is not disputed that the Building is a multi-unit residential building and that the only issue on this appeal is whether a window can be accepted as a required second exit from a dwelling unit in a building regulated by OFC Section 9.5.
20On consent, the parties relied on drawings prepared for the Appellant by an engineering firm. A review of the drawings establishes the following facts, which are not in dispute:
Apartment #1 is a 2-bedroom apartment unit, located in the basement.
Apartment #1’s suite doorway exits directly into the north interior exit stairwell, which exits to the outside at grade level.
A bedroom in Apartment #1 has a windowsill height approximately 1.2 – 1.5 m above floor level.
Apartment #5 is a 2-bedroom apartment unit, located on the main floor.
Apartment #5 has a doorway from the living area and a second doorway from one of the bedrooms, both of which open into a public corridor that leads to a doorway into the north exit stair.
A bedroom in Apartment #5 has a window where the sill height is less than 1 m above floor level.
Do windows that comply with the Ontario Building Code (OBC) satisfy the requirements for secondary exits as required by the OFC?
21The Appellant argued that Apartments #1 and #5 have windows that comply with requirements in the Ontario Building Code, which permit using a window as a secondary exit. As a result, the appellant relied on OFC Subsection 9.1.2 to argue that the Building is exempt from the retrofit requirements of OFC Part 9 because it satisfies the requirements of the OBC.
22The OBC and the OFC are companion regulations intended to ensure that newly constructed buildings and existing buildings are built, and then maintained, to safeguard the occupants against fire hazards.
23The OBC is a provincial regulation made under the Building Code Act,1992, SO 1992, c 23, and is focused on the design and construction of new buildings, additions, and alterations to existing buildings.
24The OFC is a provincial regulation made under the FPPA, governing fire safety within existing buildings.
25Subsection 9.1.2. of the OFC exempts buildings from the retrofit requirements of OFC Part 9 where the buildings satisfy the requirements of the OBC.
Compliance with the OBC
26The Appellant argued that Apartments #1 and #5 each have an openable window that complies with the prescriptive requirements of the OBC for using a window as a second exit and that therefore they did not need to comply with the OFC requirements.
27The Commission is not persuaded that the existing windows in the Building were approved as secondary exits for Apartments #1 and #5 and finds that the Building is not exempt from the requirements in OFC Part 9.
28The Appellant submitted a letter dated May 2, 1990, from the City of Kingston’s Building Inspection Branch indicating that there were no known infractions of the OBC or of the City’s Property Standards By-law, and that there were no outstanding work orders on the property. The Appellant relied on the contents of this letter as proof of compliance with the OBC.
29The Commission does not accept the Appellant’s submission that the letter from the City of Kingston is proof that windows from Apartments #1 and #5 were accepted as exits. The letter does not state that the Building complies with the OBC. The Commission also notes that the letter states that the person requesting the letter should satisfy themselves “as to whether the premises and the existing or proposed use thereof is or would be in conformity with all applicable by-laws and regulations of the City.” As such, the Commission gives little weight to the document provided by the Appellant and does not find it relevant to deciding the question of “can windows be considered as secondary exits for the apartments”.
30Outside of this letter, which we did not accept as confirming compliance with the OBC, the Appellant provided no substantial evidence that the Building, and the windows in Apartments #1 and #5, complied with the OBC and are therefore exempt from complying with OFC Part 9.
31The Commission was also persuaded by the Respondent’s argument that Sentence 9.9.2.3.(1) of the OBC says that windows shall not be considered as part of required means of egress, and exits are considered part of a means of egress.
32The Commission finds there is no persuasive evidence that the windows in Apartments #1 and #5 comply with the OBC as secondary exits. For this reason, the OFC applies.
Compliance with the OFC
Access to Exits (Order 2 – Item 19)
33OFC Article 9.5.3.1. requires Apartment #1 to be provided with a second and separate exit. Item 19 of Order 2 notes that Apartment #1’s door exits into a contiguous exit stairway and there is no second exit from this apartment.
34The Commission notes that Apartment #5’s egress doorway leads to a dead-end corridor as it only accesses the north exit stair. As such, the compliance alternative provided by clause 9.5.3.1.(5)(c) of the OFC does not apply.
35Clause 9.5.3.1.(5)(a) of the OFC addresses dwelling units or suites having access directly into an exit stairway or in the case of 9.5.3.1.(5)(c) addresses dwelling units or suites opening onto dead end corridors, providing the following compliance alternatives:
Where a second and separate exit is provided; or
Compliance with Sentence 9.5.3.2.(2) or (3).
36Sentence 9.5.3.2.(2) of the OFC permits a single exit serving a basement, first or second floor where it serves not more than four dwelling units, not more than 10 persons and the building is not more than 3 storeys in building height and not greater than 600 m2 in building area. While the Building meets the height and building area restrictions, the north exit serves more than 4 dwelling units. This compliance option therefore is not applicable.
37Sentence 9.5.3.2.(3) of the OFC allows alternative measures to be used that will, in the opinion of the Chief Fire Official, provide similar protection for life safety to the protection provided by the regulatory requirements where the building meets the height and building area restrictions. This Building meets these restrictions, and therefore alternative measures may be permitted as a compliance alternative to the strict exiting requirements.
38The Appellant argued that Apartments #1 and #5 meet Sentence 9.5.3.1.(5)(a) and (c) of the OFC respectively, as each unit has a window that can be used as a second and separate exit. He submitted documentation from internet searches, related to a second means of egress/exiting from a dwelling unit and numerous links to other general websites to support his argument. He also submitted a publication from the City of Barrie Fire Service titled “Two Unit Houses,” and information that appeared to be from the Ontario Association of Fire Chiefs (OAFC), which was specific to home fire escape plans.
39The Appellant also provided as evidence a letter dated March 5, 1997, from the Fire Inspection Bureau for the City of Kingston that he argued confirms that the Building complies with all the requirements of the OFC.
40The Commission is persuaded by the Respondent’s arguments on the applicable Regulations as they related to exits. Inspector Chris Yamada testified that Section 9.5 of the OFC does not provide for a window to be considered as an exit. He referenced Sentence 9.9.2.3.(1) of the OBC, which states that a window shall not be considered part of a required means of egress. He also referenced specific areas in the OFC which make certain allowances for windows, including OFC Sentence 9.5.3.7.(1) that indicates where windows may be used to access fire escapes, and OFC Sentence 9.8.3.4.(1), which allows a second “means of escape” to be provided by a window for residential buildings containing only two dwelling units. He argued that the regulatory authorities contemplated the use of windows as a means of egress but chose not to allow them for Section 9.5 applications for multi-unit residential buildings, such as this Building.
41The Commission was not persuaded by the Appellant’s internet searches. The content was not from authoritative sources, and we give it little weight in the decision. In addition, the publications from the City of Barrie’s Fire Department and the OAFC are related to 2-unit and single dwelling unit buildings, and not to multi-unit residential buildings, as is the case with this Building.
42The Commission also gives little weight to the letter from the City of Kingston’s Fire Prevention Bureau because it does not state that the building complies with all requirements of the OFC, as argued by the Appellant. The letter only confirms that “all violations from report March 3, 1995, have been corrected.”
43The Appellant has not provided persuasive evidence that a window is an exit and that the bedroom windows in Apartments #1 and #5 meet the compliance option provided in Sentence 9.5.3.1.(5) of the OFC.
Number of Exits (Order 2 – Item 20)
44Item 20 of Order 2 notes that Apartments #1 and #5 are served by only one exit, and it ordered that these units be provided with a second exit, as required in OFC Article 9.5.3.2.
45The arguments about whether windows may be used as exits are addressed in paragraphs [38] through [40] and equally apply to Item 20. The windows may not be considered as complying with Sentence 9.5.3.2.(1) of the OFC and the Commission finds that bedroom windows in Apartments #1 and #5 are not exits.
46While the Commission finds that the windows do not comply with Sentence 9.5.3.2.(1), the parties may resolve the matter by implementing approved alternative measures.
Alternative Measures
47As described in paragraph [38], Sentence 9.5.3.2.(3) permits alternative measures to the requirements in Sentences 9.5.3.1.(5) and 9.5.3.2.(1)
48What does the Appellant argue and what does the Commission find?
49The Appellant submits that copies of email exchanges between himself and the Respondent between November 29, 2023, and January 24, 2024, are related to discussions regarding the acceptance of windows as a second exit for Apartments #1 and #5 as an alternative measure to both 9.5.3.1.(5) and 9.5.3.2.(1). He said the discussions ceased when he appealed Order 2.
50Inspector Yamada confirmed the email exchanges between KFR and the Appellant did relate to alternative measures and whether windows would be accepted as second exits, adding that the measures had not been finalized. He said that a formal agreement would need to be executed by the parties, confirming what would constitute compliance using the accepted compliance alternative. He also confirmed the discussions between the parties were suspended once the appeal was initiated.
51Given that a proposal for alternative measures has not been finalized and does not properly form part of the present appeal, the Commission declines to adjudicate the issue. The Commission notes a concern with the potential use of an existing window in Apartment #1. The evidence shows a casement type window that opens downward and in towards the apartment. If this window is left in its existing configuration, a person needing to use it as an exit would be required to climb up and over the glazed portion of the window to escape. The Commission is concerned that the configuration would interfere with the escape of a person from this dwelling unit.
ORDER
52The Commission amends items #19 and #20 of Order 2 as follows:
Provide Apartments #1 and #5 with access to exits complying with OFC Article 9.5.3.1. Alternatively, compliance may be achieved where the Chief Fire Official is satisfied that alternative measures will provide a level of protection for life safety similar to the protection provided by this requirement.
Provide a second exit for Apartments #1 and #5 complying with OFC Article 9.5.3.2. Alternatively, compliance may be achieved where the Chief Fire Official is satisfied that alternative measures will provide a level of protection for life safety similar to the protection provided by this requirement.
53The Commission amends the compliance date to six months from the release of this decision.
Released: July 12, 2024
Susan Clarke, Managing Vice-Chair (A)
Peter Simmons, Member
Mark Sraga, Member