ONTARIO COURT OF JUSTICE
CITATION: Oshawa (City) v. Ye, 2019 ONCJ 106
DATE: 2019 02 21
COURT FILE No.: Regional Municipality of Durham 17-0827
BETWEEN:
THE CORPORATION OF THE CITY OF OSHAWA
— AND —
CANYING YE
Before Justice of the Peace M. Coopersmith
Heard on January 25, 2018, June 21, 2018 and October 11, 2018
Reasons for Judgment released on February 21, 2019
Rhonda Vanderlinde.................................................................... agent for the prosecution
Jenny X. Chai............................................................ agent for the defendant Canying Ye
JUSTICE OF THE PEACE COOPERSMITH:
[1] Canying Ye is charged with 30 counts under various sections of O. Reg 213/07: Ontario Fire Code [“OFC”], made under the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 [“FPPA”] and, hence, contrary to s. 28(1)(c) of FPPA. All of the charges arise on January 26, 2017 and relate to a property located at 222 Athol Street East in Oshawa.
[2] The charges are as follows:
Count
Description of Offence
Location of Offence
OFC Section
1
Create hazard not allowed for in the original design of a building
Art. 2.1.2.2, Div. B, Part 2
2
Fail to maintain in operating condition 2 interconnected smoke alarms
Main floor, Unit #1, main hallway
Art. 6.3.2.6(2), Div. B, Part 6
3
Fail to maintain in operating condition an interconnected smoke alarm
Main floor, Unit #1 in the kitchen, outside the sleeping area
Art. 6.3.2.6(2), Div. B, Part 6
4
Fail to maintain in operating condition an interconnected smoke alarm
2nd floor, common hallway, outside dwelling units
Art. 6.3.2.6(2), Div. B, Part 6
5
Fail to maintain in operating condition an interconnected smoke alarm
2nd floor, Unit #2, bedroom #1, inside the sleeping area
Art. 6.3.2.6(2), Div. B, Part 6
6
Fail to maintain in operating condition an interconnected smoke alarm
2nd floor, Unit #2, bedroom #2, inside the sleeping area
Art. 6.3.2.6(2), Div. B, Part 6
7
Fail to maintain in operating condition an interconnected smoke alarm
2nd floor, Unit #2, main hallway
Art. 6.3.2.6(2), Div. B, Part 6
8
Fail to maintain a smoke alarm in operating condition
Main floor, Unit #1, bedroom #1
Art. 6.3.3.3(1), Div. B, Part 6
9
Fail to maintain a smoke alarm in operating condition
Basement of Unit #1
Art. 6.3.3.3(1), Div. B, Part 6
10
Fail to maintain a smoke alarm in operating condition
On the 3rd floor
Art. 6.3.3.3(1), Div. B, Part 6
11
Fail to maintain a smoke alarm in operating condition
Main floor, Unit #1, bedroom #3
Art. 6.3.3.3(1), Div. B, Part 6
12
Fail to install a carbon monoxide alarm
Main floor, Unit #1
Art.2.16.2.1 (1), Div. B, Part 2
13
Fail to install a carbon monoxide alarm
2nd floor, Unit #2
Art.2.16.2.1 (1), Div. B, Part 2
14
Fail to install a carbon monoxide alarm
3rd floor, Unit #3
Art.2.16.2.1 (1), Div. B, Part 2
15
Failed to replace an interconnected smoke alarm within the time frame indicated in the manufacturer’s instructions
Main floor, Unit #1, main hallway
Art.6.3.3.7(1), Div. B, Part 6
16
Failed to replace an interconnected smoke alarm within the time frame indicated in the manufacturer’s instructions
Main floor, Unit #1, bedroom #2
Art.6.3.3.7(1), Div. B, Part 6
17
Fail to maintain fire separations
Under siding of landing/stairs abutting the common hallway in the basement
Art. 2.2.2.1, Div. B, Part 2
18
Fail to maintain fire separations
Wall of main floor, Unit #1, bedroom #1
Art. 2.2.2.1, Div. B, Part 2
19
Fail to maintain fire separations
Main floor, Unit #1, bedroom #3
Art. 2.2.2.1, Div. B, Part 2
20
Fail to maintain fire separations
Main floor, Unit #1
Art. 2.2.2.1, Div. B, Part 2
21
Fail to maintain fire separations
Common hallway that abuts staircase of attic
Art. 2.2.2.1, Div. B, Part 2
22
Fail to maintain fire separations
Common hallway that abuts 2nd floor wall of Unit #3
Art. 2.2.2.1, Div. B, Part 2
23
Fail to maintain fire separations
Wall of 2nd floor bedroom, Unit #2 which abuts Unit #3 kitchen
Art. 2.2.2.1, Div. B, Part 2
24
Fail to maintain fire separations
Ceiling of 2nd floor bedroom, Unit #2 which abuts Unit #3 attic
Art. 2.2.2.1, Div. B, Part 2
25
Fail to maintain operation of closure
2nd floor, common hallway
Art. 2.2.3.3, Div. B, Part 2
26
Fail to maintain the closure
2nd floor, common hallway
Art. 2.2.3.1, Div. B, Part 2
27
Fail to maintain the closure
2nd floor, Unit #2
Art. 2.2.3.1, Div. B, Part 2
28
Fail to maintain the closure
2nd floor, Unit #3
Art. 2.2.3.1, Div. B, Part 2
29
Fail to maintain the closure to ensure that it is operable
2nd floor, common hallway
Art. 2.2.3.2(1), Div. B, Part 2
30
Fail to maintain the closure to ensure that it is operable
2nd floor, Unit #3
Art. 2.2.3.2(1), Div. B, Part 2
[3] The trial took place on January 25, 2018, July 21, 2018 and October 11, 2018. For the prosecution, I heard evidence from Inspector Catherine Beaver from Oshawa Fire Services, who also entered numerous photographs as exhibits. The defendant, Canying Ye, testified.
[4] Having carefully reviewed all of the evidence, and for the reasons that follow, I find Canying Ye guilty of the charges found at counts 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28 and 29. I am dismissing the charges at counts 4, 12, 13, 14, 15, 16, 22 and 30.
I. EVIDENCE
[5] Inspector Catherine Beaver has been the Fire Prevention Inspector for the City of Oshawa for almost 10 years. She received a complaint inspection request from her Chief Fire Prevention Officer, Susan King, for a property at 222 Athol Street East in Oshawa. Inspector Beaver completed her inspection of that property on January 26, 2017.
[6] Certified true copies of the Parcel Register and Transfer Deed, entered as Exhibit 5, show that Canying Ye purchased the property at 222 Athol Street East in Oshawa on December 1, 2011 and remained owner at least until February 14, 2017, the date the Parcel Register was prepared. The permitted use of the property is as a two-unit dwelling.
[7] On January 26, 2017, the property consisted of three units, which were contained in two-storeys, plus attic or half storey, and a basement. There was a common hallway at the front entrance, shared by all three units. Unit #1 was located on the main floor and basement. It consisted of three bedrooms, each with its own bathroom, and a shared kitchen. Each bedroom/bathroom combination was rented individually. Unit #2 was on the second floor and contained two bedrooms, each with its own bathroom, and a shared kitchen. Again, each of the bedroom/bathroom combinations was rented individually. Unit #3 was on the 2nd floor and the 3rd floor attic or half-storey. It was rented to one individual and contained cooking facilities, a bedroom and sanitary facilities.
[8] Inspector Beaver entered exhibits consisting of numerous photographs that she took on January 26, 2017at 22 Athol Street East. I will reference the relevant photographs in my findings and analysis below.
[9] Ms. Ye testified that she visits the property once or twice each month and checks the smoke alarms yearly when clocks are changed in November, to see if they are working. She told the tenants to advise her if the alarms are not working and supplied one of the tenants with back-up batteries. Sometimes the tenants smoke in the house and disable the smoke alarms and she has reminded them to switch the alarms on. There is a fire alarm in each bedroom. As well, there are electrically-connected alarms. However, because the property is a bit old, sometimes there is water leakage that affects the electrical connection. That is why she installed battery alarms in the hallways as backup. Altogether, she had installed between eight and ten alarms. The last time she checked the alarms prior to the January 26, 2017 charges was in November 2016.
[10] I cannot give significant weight to Ms. Ye’s testimony, in light of the extend of missing, non-operational and/or expired alarm units in the building on January 26, 2017, just two months after she said that she had inspected the alarm units.
[11] At a few visits, Ms. Ye would see the fire door at the top of the stairs, on the second floor, held opened with an iron rod because the tenants might be moving things. She told her tenants that they had to keep the door closed.
[12] When Ms. Ye purchased the property, she was aware that it was a duplex and she stated that is how she used it. In November 2016, she pled guilty to using the property as a three-unit building. She testified that she was co-operative and did what she was asked to do and removed a sink and hanging cabinets on the upper floor, so that it would not be considered a third unit with a kitchen. In cross examination, Ms. Ye could not recall the charges brought in February 2016 that resulted in the November 17, 2016 Prohibition Order wherein the property had to be converted back to a two-unit dwelling. Furthermore, in Exhibits 6(l), 6(m) and 6(n), photographs taken by Inspector Beaver on January 26, 2017, two sinks and counters remained to form two separate cooking facilities in each of Unit #2 and Unit #3. Given the contradicting testimony, I cannot give much weight to Ms. Ye’s evidence.
[13] Ms. Ye testified that, on January 26, 2017, there were 2 women renting the lower level and one man in the upper unit. She did not know if the tenants’ friends or other people were living there. I cannot accept this testimony in light of Ms. Ye indicating that she was visiting the property once or twice a month. These regular visits reasonably would have revealed the six tenants Inspector Beaver found residing at the property on January 26, 2017.
[14] I have carefully reviewed all of the evidence and submissions and, in addition to the evidence above, I will reference that which is relevant to each of the charges in my analysis and findings below.
II. ANALYSIS AND FINDINGS
[15] Based on the Parcel Register and Transfer Deed, I am satisfied that Canying Ye was the registered owner of the property located at 222 Athol Street East in Oshawa on January 26, 2017.
[16] Article 1.2.1.1. in Division A, Part 1 of the OFC states:
Unless otherwise specified, the owner is responsible for carrying out the provisions of this Code.
[17] Therefore, I find that the defendant, Canying Ye, was responsible for compliance with the OFC as it applies to the property located at 222 Athol Street East in Oshawa on January 26, 2017.
(a) Count 1:
[18] Article 2.1.2.2 in Division B, Part 2 of the OFC reads:
Activities that create a hazard and that are not allowed for in the original design shall not be carried out in a building unless approved provisions are made to control the hazard.
[19] Article 1.4.1.2 in Division A, Part 1 of the OFC defines “dwelling unit”
Dwelling unit means a suite operated as a housekeeping unit, used or intended to be used by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities, and includes a residential unit.
[20] Based on all of the evidence, I am satisfied that, on January 26, 2017, Unit #1 on the main floor contained a kitchen (Exhibit 6(d)) and three bedrooms, each with their own bathroom. On the second floor, Unit #2 contained a kitchen (Exhibits 6(l) and 6(m)) that was shared between the two bedrooms, each of which had a bathroom. Unit #3 had a kitchen (Exhibit 6(n), two photographs) and a bedroom with a washroom. I find that each unit satisfies the definition of a dwelling unit. There is no dispute that the property was sold to the defendant to be used as a duplex. However, on January 26, 2017, it contained three, not two, dwelling units – an activity that was not allowed for in the design of the building and which I am satisfied would constitute a hazard. There is no evidence of any approved provisions made to control this hazard.
[21] Therefore I am satisfied that it has been proven beyond a reasonable doubt that the defendant, Canying Ye, as owner of the property at 222 Athol Street East in Oshawa, contravened Article 2.1.2.2. in Division B, Part 2 of the OFC, a regulation made under the FPPA. There is no evidence to the contrary.
[22] I am satisfied that, in November 2016, Ms. Ye was found guilty of this transformation of her property at 222 Athol Street East in Oshawa from a duplex to a triplex. In light of Ms. Ye’s visits to the property once or twice a month, she did not use due diligence to disallow such use of the building on January 26, 2017 and, hence, has not satisfied the defence of due diligence on a balance of probabilities.
(b) Counts 2 through 7:
[23] Article 6.3.2.6(2) in Division B, Part 6 of the OFC reads:
Interconnected smoke alarms shall be tested and maintained in operating condition in conformance with CAN/ULC-S552, “Standard for the Maintenance and Testing of Smoke Alarms”, and as required by this Article.
[24] Count 2: The wires of the interconnected smoke alarm of the main floor, Unit #1 hallway are clearly demonstrated in Exhibit 7(a). I accept the evidence of Inspector Beaver, that this interconnected smoke alarm was not operational.
[25] Count 3: As shown in Exhibit 7(e), the wires of the interconnected smoke alarm device in the kitchen of Unit #1 are visible in the centre of the base. The smoke alarm device, itself, is absent. Hence, I accept the evidence of Inspector Beaver, that the interconnected smoke alarm device in the kitchen of Unit #1 was not operational.
[26] Count 4: I can find no evidence to satisfy me that there was an interconnected smoke alarm situated on the 2nd floor, in the common hallway, outside the dwelling units.
[27] Count 5: Exhibit 8(b) shows the interconnected smoke alarm device on the 2nd floor, in Unit #2, bedroom #1. Exhibit 8(c) reveals the wires of this device. I accept the evidence of Inspector Beaver, that this interconnected smoke alarm did not operate.
[28] Count 6: The wires in the base of the interconnected smoke alarm on the 2nd floor, Unit #2, bedroom #2 can be seen in Exhibits 8(d) and 8(e). The smoke alarm device itself is absent, rendering it inoperable.
[29] Count 7: Exhibit 8(a) clearly illustrates wires hanging from the base of an interconnected smoke alarm on the 2nd floor, Unit #1, main hallway. The smoke alarm device, itself, is missing, rendering it inoperable.
[30] I find that it has been proven beyond a reasonable doubt that, on January 26, 2017, the defendant, Canying Ye, as owner of the property located at 222 Athol Street East in Oshawa, contravened Article 6.3.2.6(2) in Division B, Part 6 of the OFC made under the FPPA as it relates to counts 2, 3, 5, 6 and 7. There is no evidence to the contrary.
[31] I am not satisfied that the defendant, Ms. Ye, exercised due diligence to ensure these interconnected smoke alarm devices were present and in operating condition. She testified that the tenants sometimes would switch off the devices so that they could smoke indoors. She would tell the tenants to switch them back on. However, I am not satisfied that it is simply a matter of switching off the interconnected smoke alarms. Instead, the devices were either non-operational or missing. Furthermore, Ms. Ye, as the owner and landlord of the property, had no records of weekly, monthly or yearly checks of the power supply to these interconnected smoke alarms, as required under Articles 6.3.2.6(7) and 6.3.2.6(8) of the OFC. I find that Ms. Ye’s defence of due diligence has not been proven on a balance of probabilities.
[32] With respect to count 4, based on my findings above, this charge has not been proven beyond a reasonable doubt.
(c) Counts 8 through 11:
[33] Article 6.3.3.3(1) of Division B, Part 6 of the OFC reads:
Smoke alarms shall be maintained in operating condition.
[34] Count 8: I accept Inspector Beaver’s evidence that the smoke alarm in Unit #1, bedroom #1, on the main floor, was not in operating condition. Exhibit 7(d) shows the non-operating smoke alarm and the smoke/carbon monoxide combination alarm Inspector Beaver installed.
[35] Count 9: I accept Inspector Beaver’s evidence that the smoke alarm in the basement of Unit #1 was missing. Exhibit 7(i) shows a smoke alarm base on the ceiling of the basement, with no smoke alarm unit present. Exhibit 7(j) illustrates the smoke alarm the Inspector installed in the basement.
[36] Count 10: I accept Inspector Beaver’s evidence that there was no smoke alarm in operating condition on the 3rd floor (attic). Exhibit 9(a) shows a bracket on the ceiling of the attic of Unit #3, but no smoke alarm attached.
[37] Count 11: I accept Inspector Beaver’s evidence that the smoke alarm device in Unit #1, bedroom 3 was not in proper operating condition. Furthermore, it was not on the proper base for the device and, hence, not securely fastened. Exhibit 7(f) shows that there is some sort of material covering parts of the smoke alarm unit, which could be covering the sensors and interfere with the unit’s proper operations.
[38] I am satisfied it has been proven beyond a reasonable doubt that, on January 26, 2017, the defendant, Canying Ye, as owner of the property at 222 Athol Street East in Oshawa, was contravening Article 6.3.3.3(1) in Division B, Part 6 of the OFC made under FPPA, as that provision relates to counts 8, 9, 10 and 11. There is no evidence to the contrary. As noted in my findings for counts 2 through 7, I am not satisfied that the defendant, Canying Ye, exercised due diligence to ensure that these smoke alarms were maintained in operating condition.
(d) Counts 12 through 14:
[39] Article 2.16.2.1(1) in Division B, Part 2 of the OFC reads:
If a fuel-burning appliance or a fireplace is installed in a suite of residential occupancy, a carbon monoxide alarm shall be installed adjacent to each sleeping area in the suite.
[40] I heard no evidence of a fuel-burning appliance or fireplace installed in the building at 222 Athol Street East in Oshawa. Hence, I am not satisfied that there has been a contravention of Article 2.16.2.1(1) in Division B, Part 2 of the OFC, as alleged in counts 12, 13 and 14.
(e) Counts 15 and 16:
[41] Article 6.3.3.7(1) in Division B, Part 2 of the OFC states:
A smoke alarm shall be replaced within the time frame indicated in the manufacturer’s instructions.
[42] Count 15: Exhibit 7(a) shows the presence of two smoke alarms on the ceiling of the hallway of Unit #1. Referring to Unit #1, Inspector Beaver stated, “There was (sic) two units out in the main common hallway that were expired and one of them did not work, did not operate but both were, I believe, expired.” I accept Inspector Beaver’s evidence that the smoke and carbon monoxide combination alarm device in the hallway of Unit #1 had expired in 2014, as is further evidenced by Exhibit 7(b). However, the photograph in Exhibit 7(c) illustrates that the interconnected smoke alarm in the hallway of Unit #1 expires in 2022. Consequently, I cannot accept Inspector Beaver’s viva voce evidence that this interconnected smoke alarm had expired. Instead, I find that the interconnected smoke alarm on the main floor common hallway of Unit #1 had not expired on January 26, 2017 and Article 6.3.3.7(1) in Division B, Part 6 of the OFC had not been contravened.
[43] Count 16: I can find no evidence that the interconnected smoke alarm in Unit #1, bedroom #2 had expired. In fact, in reference to Exhibit 7(h), Inspector Beaver stated, “This here is the main floor, unit one. This here is bedroom two and the smoke alarm was operational and the expiry date was good.”
[44] For the reasons I have provided, I am not satisfied that Article 6.3.3.7(1) in Division B, Part 6 of the OFC has been contravened, as alleged by counts 15 and 16.
(f) Counts 17 through 24:
[45] Article 2.2.2.1 in Division B, Part 2 of the OFC reads:
Where fire separations between rooms, corridors, shafts and other spaces are damaged so as to affect the integrity of their fire-resistance rating, the damaged fire separations shall be repaired so that the integrity of the fire separations is maintained.
[46] As explained by Inspector Beaver, a fire separation exists to keep the fire contained to an area and not expose other individuals to fire. There is a 30-minute fire separation requirement for the property at 222 Athol Street East in Oshawa. Any holes or damage to the walls that contain each unit would allow fire to spread and smoke to escape outside that particular unit into other areas of the building.
[47] Count 17: Exhibit 10(b), taken by Inspector Beaver on January 26, 2017, shows the underside of the common hallway, stairs and landing in the basement. Clearly, there is damage to the fire separation in this area.
[48] Count 18: Inspector Beaver stated, “This here is page or picture 29 of 107. And this here is the main floor, unit one, bedroom one and a hole in the wall, damaged separation.” In Exhibit 10(c), a hole in the wall of Unit #1, bedroom #1 is clearly visible and I am satisfied that this damage constitutes damage to the fire separation of Unit #1, bedroom #1.
[49] Count 19: Inspector Beaver testified, “This one here is picture 41 of 107. This here is the main floor, unit one, bedroom three and hole in the ceiling.” In Exhibit 10(d), a hole is clearly visible in the ceiling of Unit #1, bedroom #3. I am satisfied that this constitutes damage to the fire separation between Unit #1, bedroom #3 and the 2nd floor unit above it.
[50] Count 20: Inspector Beaver stated, “This photograph here is picture 46 of 107. And these are holes in the wall of the common hallway abutting the main floor unit, unit number one.” Exhibit 10(g) shows the holes in the wall of the first floor common hallway wall that abuts Unit #1. Again, this is damage to the fire separation.
[51] Count 21: Inspector Beaver testified, “This here is picture 51 of 107. This here is the second floor, common hallway, damaged fire separation at the underside of the stairs of unit three, that abuts unit three and – or the attic. You can’t really see it in this photograph.” She further explains, “So this here is, I’m walking up the stairs, I’m going up in the common hallway up to the second floor. If I look up, I see the underside of the stairs for the attic area. And right between that, there was just a hole, a damaged separation so I just got that fixed for her. Asked her to fix that up for me. ‘Cause that fire separation is required between the units and the common hallway.” In Exhibit 10(h), the damage is not clearly illustrated. However, the Inspector’s viva voce evidence is unchallenged and I am satisfied there is damage to the fire separation in this area.
[52] Count 22: I am unable to find evidence to support fire separation damage between the common hallway that abuts the 2nd floor wall of Unit #3. Exhibit 10(i) shows holes in one of the walls of the common hallway on the 2nd floor. Given that there are two separate units off of the common hallway on the 2nd floor, Inspector Beaver’s evidence is insufficient for me to determine which of the two units this common hallway wall abuts.
[53] Count 23: Inspector Beaver testified, “This picture here is picture 62 of 107. It is the second floor, unit two, bedroom one, bathroom. This is a damaged separation. This wall in unit two abuts the wall of unit three. So we’re required to have that separation there.” Exhibit 10(e) illustrates this fire separation damage to this bathroom wall.
[54] Count 24: Inspector Beaver stated, “This photograph here is picture 63 of 107. This one here is the second floor, unit two, bedroom one and this is the bathroom again but this is the hole in the ceiling that abuts the attic or third storey or half storey of unit 3.” Exhibit 10(f) shows the hole in the bathroom ceiling, which is a fire separation between these two units.
[55] I am satisfied that on January 26, 2017, with respect to counts 17, 18, 19, 20, 21, 23 and 24, Canying Ye, as owner of 222 Athol Street East in Oshawa, contravened Article 2.2.2.1 in Division B, Part 2 of the OFC, a regulation made under the FPPA. There is no evidence to the contrary. The defendant, Canying Ye, provided no due diligence defence to these charges. I am not satisfied that sufficient evidence exists to prove the charge in count 22 beyond a reasonable doubt.
(g) Count 25:
[56] Article 2.2.3.3 in Division B, Part 2 of the OFC reads:
Closures in fire separations shall not be obstructed, blocked, wedged open, or altered in any way that would prevent the intended operation of the closure.
[57] Inspector Beaver explained, “The hazard of a door being – a fire-rated door being wedged open, if people are unable to escape a fire, we need those fire-rated doors in place and those fire-rated doors have a 20 minute fire-protection rating in a 20 – 30 minute fire separation. So it allows us, the fire department, to be able to come and be able to rescue those people as opposed to having a fire death. When those doors are wedged open, they don’t – they wouldn’t stand a chance in a fire.”
[58] Inspector Beaver testified that the door at the top of the stairway on the second floor was a fire-rated door and was wedged open. This is illustrated in Exhibit 6(j), where door wedges are clearly visible under the door, holding it open.
[59] I am satisfied that the defendant, Canying Ye, contravened Article 2.2.3.3 in Division B, Part 2 of the OFC made under the FPPA. She testified that she had seen this door leading into the common hallway on the 2nd floor propped open with an iron rod a few times. However, this was maybe because the tenants were moving stuff. She told them that they had to keep the door closed and not leave it open. I was not provided with any evidence that any tenants were moving things on January 26, 2017. There were wedges under the door, propping it open, not an iron rod. Ms. Ye has not satisfied me that she exercised due diligence on a balance of probabilities, to ensure the fire door at the top of the stairs on the second floor was not wedged open.
(h) Counts 26 through 28:
[60] Article 2.2.3.1 in Division B, Part 2 of the Ontario Fire Code reads:
Where closures are damaged so as to affect the integrity of their fire-protection rating, the damaged closures shall be repaired so that the integrity of the closures is maintained.
[61] In Article 1.4.1.2, “closure” is defined as follows:
Closure means a device or assembly for closing an opening through a fire separation such as a door, a shutter, wired glass or glass block and includes all components, such as hardware, closing devices, frames and anchors.
[62] Inspector Beaver described the door that was purchased as a 20 minute fire-rated, metal door, located at the top of the stairs to the second floor. As well, each of the two doors leading into Unit #2 and Unit #3 was solid wood and classified as a fire-rated door.
[63] Count 26: Inspector Beaver produced Exhibit 11(e), which shows damage to the frame of the metal fire-rated door that leads into the 2nd floor common hallway, at the top of the stairs.
[64] Count 27: In Exhibit 11(d), Inspector Beaver clearly illustrates the large gaps, especially on the hinged side, between the frame and the closed door that leads into Unit #2 on the 2nd floor.
[65] Count 28: Exhibits 6(o) and 11(b) show the large gap between the hinged side of the door and the frame leading into Unit #3 on the 2nd floor. The door is in the closed position.
[66] In addition to the metal fire-rated door at the top of the stairs, I am satisfied that these two wooden doors, each of which opens into a separate dwelling unit on the 2nd floor, also serve as fire separations. I am satisfied that the definition of “closure” encompasses the door frame and, further, that there is visible damage to these three fire-rated door frames, so as to affect their fire-protection rating. I find that, on January 26, 2017, Canying Ye, as owner of the property located at 222 Athol Street East in Oshawa, contravened Article 2.2.3.1 of the OFC, a regulation made under the FPPA, as this provision relates to counts 26, 27 and 28.
(i) Counts 29 and 30:
[67] Article 2.2.3.2(1) of Division B, Part 2 of the Ontario Fire Code reads:
Closures in fire separations shall be maintained to ensure that they are operable at all times by
(a) keeping fusible links and heat or smoke-actuated devices undamaged and free of paint and dirt,
(b) keeping guides, bearings and stay rolls clean and lubricated,
(c) making necessary adjustments and repairs to door hardware and accessories to ensure proper closing and latching, and
(d) repairing or replacing inoperative parts of hold-open devices and automatic releasing devices.
[68] Count 29: As described previously, the door at the top of the stairs leading into the common hallway on the second floor is a fire door and was wedged open. Exhibit 11(e) shows that the closure device at the top of the door was not operable, as this door was wedged open, thereby preventing proper closing and latching of the closure device.
[69] Therefore, I am satisfied that, on January 26, 2017, Canying Ye contravened Article 2.2.3.2(1) of the OFC made under the FPPA, as it relates to count 29. As stated above, she has not shown due diligence on a balance of probabilities
[70] Count 30: Exhibit 11(a) was entered by Inspector Beaver to illustrate the closure device on the fire door into Unit #3. It is located on the inside of the unit, at the top of the door. Inspector Beaver testified that this closure device “was operational”. Exhibit 11(c) shows the closure device on the fire door of Unit #2. It is located on the inside of the unit, at the top of the door. Inspector Beaver testified that this closure device “did not operate”.
[71] Count 30 states in part, “… fail to maintain the closure to ensure that it is operable at Unit #3, second floor …” [Emphasis added]. The evidence given by Inspector Beaver contradicts this element of the charge. Hence, I am dismissing count 30.
III. CONCLUSION
[72] s. 28(1)(c) of the Fire Protection and Prevention Act, 1997 provides:
Offences
28 (1) Every person is guilty of an offence if he or she,
(c) subject to subsection (2) contravenes any provisions of this Act or the regulations; or
[73] Subsection 28(2) of the FPPA references Part IX of the Act, which is not relevant in these proceedings.
[74] Based on my findings and analysis above, I am satisfied that the defendant, Canying Ye, was the owner of the property located at 222 Athol Street East in Oshawa on January 26, 2017. Having carefully reviewed all of the evidence, I am satisfied that Ms. Ye contravened various provisions of O. Reg 213/07: Ontario Fire Code, made under of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, thereby committing offences under s. 28(1)(c) of the FPPA. For the reasons I have provided, I find that all of the elements of the charges at counts 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28 and 29 have been proven beyond a reasonable doubt. Either there is no evidence to the contrary or Canying Ye has not satisfied the defence of due diligence on a balance of probabilities. Therefore, there will be findings of guilt to each of these charges and convictions will be registered for each of them.
[75] I am dismissing the charges at counts 4, 12, 13, 14, 15, 16, 22 and 30, as I am not satisfied that the evidence reveals contraventions to the OFC provisions as they relate to these charges and, hence, I do not find offences have been committed under s. 28(1)(c) of the FPPA.
[76] I will hear submissions with respect to penalties from the parties.
Released: February 21, 2019
Signed: Justice of the Peace M. Coopersmith