Brampton (City) v. 1385127 Ontario Inc., 2019 ONCJ 193

CITATION: Brampton (City) v. 1385127 Ontario Inc., 2019 ONCJ 193

DATE: April 3, 2019

IN THE MATTER OF

the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4

and

the Ontario Fire Code, O. Reg. 213/07.

Between

The Corporation of the City of Brampton

prosecutor

and

1385127 Ontario Inc. operating as 747 Flea Market

and

Rathcliffe Properties Limited

defendants

Ontario Court of Justice

Brampton, Ontario

Quon J. P.

Reasons for Judgment

Trial held: September 26, 2018,

and January 17, 2019

Judgment rendered: April 3, 2019

Charges: Rathcliffe Properties Limited, as the owner of the building at 73 Parkhurst Square, Brampton, on or about April 21, 2016, did commit the offence of “having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation”, contrary to s. 2.7.2.2 of Ontario Fire Code (Fire Protection And Prevention Act, 1997), O. Reg. 213/07 and thereby committed an offence under 28(1)(c) of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4 (8 counts).

1385127 Ontario Inc. operating as 747 Flea Market, as a tenant of the building at 95 Parkhurst Square, Brampton, between July 16, 2016 and July 23, 2016, did commit the offence of “failing to comply with an inspection order dated December 22, 2015”, contrary to s. 30 of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4 (1 count).

Counsel:

H. Bourgeois, prosecutor for the City of Brampton

J. Macdonald, counsel for the corporate defendants, Rathcliffe Properties Limited and

1385127 Ontario Inc. operating as 747 Flea Market

Cases Considered or Referred To:

Beaver v. The Queen (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193 (S.C.C.).

Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, [2013] O.J. No. 520 (Ont. C.A.), per MacPherson, Armstrong, and Blair JJ.A.

Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727 (S.C.C.).

Deemar v. College of Veterinarians of Ontario (2008), 2008 ONCA 600, 298 D.L.R. (4th) 305 (Ont. C.A.), per Lang, Juriansz and MacFarland JJ.A.

Delisle v. Canada (Deputy Attorney General), [1999] S.C.J. No. 43 (S.C.C.).

Graat v. R. (1982), 31 C.R. (3d) 289 (S.C.C.).

Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No 12 (S.C.C.).

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 (S.C.C.).

Ontario (Ministry of Labour) v. Hamilton (City), [2002] O.J. No. 283 (Ont. C.A.), per Weiler, Sharpe, and Simmons JJ.A.

Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (S.C.C.).

R. v. Rio Algom Ltd. (1988), 66 O.R. (2d) 674, 46 C.C.C. (3d) 242 (O.C.A.) per Howland C.J.O, Goodman and Grange JJ.A.

R. v. Blair, [1993] O.J. No. 1477 (Ont. Ct. (Prov. Div.)), per Harris J.

R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (Ont. S.C.), per Hill J.

R. v. Cancoil Thermal Corp. (1988), 1 C.O.H.S.C. 169 (Ont. Prov. Ct.), per Megginson J.

R. v. Courtaulds Fibres Canada (1992), 76 C.C.C. (3d) 68 (Ont. Prov. Div.), per Fitzpatrick J.

R. v. Mohan, [1994] S.C.J. No. 36 (S.C.C.).

R. v. Morgan et al., [1975] 2 W.L.R. 913 (H.L.).

R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5 (S.C.C.).

R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 (S.C.C.).

Statutes, Regulations, Bylaws, and Rules Cited:

Fire Protection And Prevention Act, 1997, S.O. 1997, C.4, ss. 21(1), 21(1)(b), 21(1)(g), 22, 22(1), 22(2), 28(1), 28(1)(c), 28(3), 28(4), 28(5), 28(6), and 30.

Ontario Fire Code (Fire Protection And Prevention Act, 1997), O. Reg. 388/97, ss. 1.1.1.1., 1.2.1.1., 1.2.2.1., 1.2.3.1., 1.3.1.1., 1.4.1.1.(1), 1.4.1.2., 2.1.1.1., 2.1.1.2., 2.2.1.1., 2.7.1.6.(6), 2.7., 2.7.2., 2.7.2.1.(1), 2.7.2.1.(2)(b), 2.7.2.1.(2)(e), 2.7.2.2., 2.7.2.2.(1), 2.7.2.2.(1)(a), 2.7.2.2.(2), 9.4.3.1.(3), 9.4.3.4.(1), 9.5.3.4., 9.5.3.5.(1), 9.5.4.1.(2)(b), 9.6.3.5., 9.6.3.6., and 9.9.3.8.

Ontario Building Code (Building Code Act, 1992, S.O. 1992, c. 23), O. Reg. 403/97, ss. 2.2.1.1., 3.2.6, 3.4.6.16.(1), 3.4.6.16.(3), 3.4.6.17., and 9.9.6.8.(1).

Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64.

Technical Changes to the Fire Code Regulation (Fire Protection And Prevention Act, 1997), O. Reg. 256/14, s. 31.

Authorities or Reference Material Referred to or Considered:

Archibald, T., Jull, K., and Roach, K. Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007).

Libman, R. Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., (student edition #1 (2014)).

Paciocco, D.M. and L. Stuesser, L. The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011).

Thompson, D., ed. The Concise Oxford Dictionary of Current English, ninth edition (New York: Oxford University Press, 1995), “open” at pp. 953-4; “release” at p. 1160; and “require” at p. 1169.

Swaigen, John. Regulatory Offences in Canada – Liability & Defences (Scarborough, Canada: Carswell – Thomson Professional Publishing, 1992).

Sullivan, R. Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997).

Exhibits entered:

Exhibit "1" - copies of 2 letters: one letter is dated December 2, 2015, from 1385127 Ontario Inc. (general partner of 747 Flea Market Limited Partnership) to Brampton Fire Services requesting a fire safety inspection of both 73 & 95 Parkhurst Square for obtaining a business licence from the City of Brampton renewing a tenant licence (2 pages). The first letter also states that a Fire Inspection is scheduled for December 3, 2015. The first letter is signed by Lorraine Miranda, the Administrative Assistant for the 747 Flea Market. For the second letter, it is a letter from Rathcliffe Properties/Emmet Developments Limited to Brampton Fire Services, and is dated November 26, 2015. Dan Belzowski, the property manager for Rathcliffe Properties and the letter states that they are the owners of both 73, signs the second letter and 95 Parkhurst Square, Brampton and that they grant authorization to conduct a fire inspection of the buildings as required renewing the tenant’s business licence. The letter also states that Brampton Fire Services should contact Dorothy Hawley at the 747 Flea market to make the inspection arrangements (2 pages).

Exhibit "2" - 3 photographs of 95 Parkhurst Square taken by Fire Prevention Officer Van Den Hoek on December 3, 2015 (p. 45 is a photograph of exit door #9; p. 46 is a photograph of exit door #8; and p. 47 is a photograph of exit door #7) and a copy of sketch (p. 53) made by Fire Prevention Officer Van Den Hoek on December 3, 2015, of the outline of the building located at 95 Parkhurst Square, Brampton, which shows the location of 9 exit doors (4 pages).

Exhibit "3" - copy of “Inspection Order” with file I.D. number of 650232 issued by Fire Prevention Officer Van Den Hoek as a result of an inspection that had been conducted on December 3 and 8, 2015, to 1385127 Ontario Inc. operating as 747 Flea Market, and dated December 8, 2015, and personally served on December 22, 2015 on Dorothy Hawley, issued by Fire Prevention Officer Van Den Hoek. The Inspection Order is addressed to 1385127 Ontario Inc. and Dorothy and Jim Hawley, to remedy defects in respect to 95 Parkhurst Square by removing all additional bolts and additional latches on doors used at the emergency exits. In addition, 1385127 Ontario Inc. was given 15 days or until January 26, 2016 to appeal the order or request additional time to comply or dispute. (3 pages).

Exhibit "4" - copy of letter from the Ontario Fire Marshall dated January 11, 2016, that informed Fire Prevention Officer Van Den Hoek and James Hawley of 1385127 Ontario Inc. that the inspection order (dated December 8, 2015 and served on the corporate defendants on December 22, 2015) in respect to 95 Parkhurst Square had been appealed by 1385127 Ontario Inc. In addition, the Ontario Fire Marshall’s office gave Brampton Fire Services until February 8, 2016 to reply to 1385127 Ontario Inc.’s appeal of the December 22, 2015 inspection order (2 pages).

Exhibit "5" - copy of Fire Prevention Officer Van Den Hoek’s letter dated January 19, 2016, provided to the Ontario Fire Marshall’s Office in response to the corporate defendant 1385127 Ontario Inc.’s appeal of Fire Prevention Officer Van Den Hoek’s December 22, 2015 inspection order in respect to 95 Parkhurst Square. (3 pages).

Exhibit "6" - copy of the Ontario Fire Marshall’s ruling dated June 15, 2016, on the appeal brought by 1385127 Ontario Inc. of Fire Prevention Officer Van Den Hoek’s December 22, 2015 inspection order in respect to 95 Parkhurst Square. The Ontario Fire Marshall had upheld Fire Prevention Officer Van Den Hoek’s order in respect to 95 Parkhurst Square and provided a compliance date of July 15, 2016 for 1385127 Ontario Inc. In addition 1385127 Ontario Inc. was informed of a legal right to appeal the Ontario Fire Marshall’s ruling to the Fire Safety Commission within 15 days (4 pages).

Exhibit "7" - copy of two photographs taken by Fire Prevention Officer Van Den Hoek on July 22, 2016 of exit doors labeled #1 (p. 48) and #2 (p. 49) of the building at 95 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch of the outline of the building at 95 Parkhurst Square entered as Exhibit #2 (2 pages).

Exhibit "8" - copy of sketch made by Fire Prevention Officer Van Den Hoek on December 3, 2015, of the building located at 73 Parkhurst Square, Brampton, showing the location of 10 exit doors. (1 page).

Exhibit "9" - copy of three photographs (numbered pages 23, 24, and 25) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #2 of the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (3 pages).

Exhibit "10" - copy of two photographs (numbered pages 26 and 27) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #3 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (2 pages).

Exhibit "11" - copy of photograph (numbered page 28) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #4 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (1 page).

Exhibit "12" - copy of photograph (numbered page 29) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #5 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (1 page).

Exhibit "13" - copy of two photographs (numbered pages 30 and 31) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #6 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (2 pages).

Exhibit "14" - copy of two photographs (numbered pages 32 and 33) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #7 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (2 pages).

Exhibit "15" - copy of three photographs (numbered pages 34, 35, and 36) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #9 pf the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (3 pages).

Exhibit "16" - copy of photograph (numbered page 37) taken by Fire Prevention Officer Van Den Hoek on April 21, 2016 of exit door labeled #10 [Fire Prevention Officer Van Den Hoek said the photograph had been mislabeled and should be labelled exit door #1] of the building at 73 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as indicated on her sketch entered as Exhibit #8 (1 page).

Exhibit "17" - copy of photograph (photograph 51 taken by Fire Prevention Officer Van Den Hoek on July 22, 2016 of exit door labeled #7 of the building at 95 Parkhurst Square by Fire Prevention Officer Van Den Hoek and as numbered and indicated on her sketch entered as Exhibit #2 (2 pages).

Exhibit "18" - a book of defence documents with Tab A containing sketches of the buildings located 73 and 95 Parkhurst Square in Brampton that were photocopies of the sketches drawn by Fire Prevention Officer Van Den Hoek that contain annotations made by James Hawley in black ink; with Tab B containing a letter dated January 5, 2016 by 1385127 Ontario Inc. to the Ontario Fire Marshal in respect to Inspection Order No. 650232 for 95 Parkhurst Square; with Tab C containing the Inspection orders issued to 1385127 Ontario Inc. for both 95 Parkhurst Square and 73 Parkhurst Square; with Tab D containing the summonses issued respectively on July 21, 2016 to the corporate defendant Rathcliffe Properties Limited in respect to 73 Parkhurst Square and issued on December 15, 2016 to 1385127 Ontario Inc. in respect to 95 Parkhurst Square and 95 Parkhurst Square and copy of the City of Brampton envelop sent by registered mail; with Tab E containing a copy of a photograph taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit door #7 at 95 Parkhurst Square and a copy of a photograph taken on July 22, 2016 by Fire Prevention Officer Van Den Hoek of exit door #7 at 95 Parkhurst Square; with Tab F containing copies of two photographs taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit door #8 at 95 Parkhurst Square; with Tab G containing copies of two photographs taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit door #9 at 95 Parkhurst Square; with Tab H containing copies of two photographs taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit doors #2A and #2B at 73 Parkhurst Square and copies of two photographs taken on April 21, 2016 by Fire Prevention Officer Van Den Hoek of exit door #2 at 73 Parkhurst Square; with Tab I containing copies of two photographs taken on December 3, 2015 by Fire Prevention Officer Van Den Hoek of exit door #4 at 73 Parkhurst Square; and with Tab J containing the response by Fire Prevention Officer Van Den Hoek dated January 19, 2016 that was sent to the Fire Marshall for an appeal of her Inspection Orders issued in respect to 73 Parkhurst Square and 95 Parkhurst Square (37 pages).

Exhibit "19" - resume and biography of David Hine, professional engineer (2 pages).

Exhibit "20" - David Hine Engineering Inc. report prepared for the corporate defendants’ counsel, James MacDonald, dated September 25, 2018 (7 pages).

1. INTRODUCTION

[1] This regulatory trial is about “doors” and concerns about fires – which are not related to the 1960s rock group which had the hit song “Light My Fire” that was named “The Doors” – but related to the kind of physical doors used at the perimeter of a building to facilitate the quick escape by people from that building in emergency situations, such as when there is a fire or gunfire in the building. The emergency exit doors that are at issue in this trial are for the two buildings that are used for the business known as the “747 Flea Market” located at 73 and 95 Parkhurst Square in the City of Brampton. After Fire Prevention Officer Van Den Hoek of the City of Brampton Fire and Emergency Services had conducted a fire safety inspection on December 3 and 8, 2015, of the two buildings, inspection orders had been issued by her and served on December 22, 2015, to the owner of the two buildings, Rathcliffe Properties Limited, and to the principal tenant of those buildings, 1385127 Ontario Inc. operating as 747 Flea Market (“the corporate defendants”), requiring that the Ontario Fire Code violations that had been observed in the fire safety inspection had to be remedied by them by July 15, 2016.

[2] There were several Fire Code violations listed in the inspection orders, but the one involving the emergency exit doors that had been at issue in the trial had required the defendants to “Remove additional locks/ latches that have been installed on all emergency exit doors” on both buildings, so as to comply with s. 2.7.2.2(1) of Division B of the Ontario Fire Code (Fire Protection And Prevention Act, 1997), O. Reg. 213/07. During her fire safety inspection conducted on the two buildings, Fire Prevention Officer Van Den Hoek had observed that there had been one or two additional slide bolts, locks, latches, or alarmed push bars that had been added to several of the emergency exit doors (which had exit signs visibly posted above the doors) in both buildings, which Van Den Hoek determined had contravened the legal requirement to have only one releasing operation or mechanism on an emergency exit door. The inspection orders requiring the corporate defendants to remove the additional locks or latches on all emergency exit doors on the two buildings had been for the purpose of public safety, so as to ensure that those emergency exit doors could then be “readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism”, as had been legally mandated under s. 2.7.2.2.(1). The mandated measures or legal requirements for the type, nature, and number of locking, latching and other fastening devices or door opening mechanism that may be placed on emergency exit doors is set out under s. 2.7.2.2.(1) of the Ontario Fire Code, which provide [emphasis is mine below]:

Requirements for locking, latching and fastening devices

2.7.2.2.(1) Subject to Sentences (2) and (3), locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on,

(a) every exit door required by this Code, and

[3] However, both corporate defendants had appealed their respective inspection orders that had been served on them by Fire Prevention Officer Van Den Hoek on December 22, 2015, with the Ontario Fire Marshal’s Office. As such, the inspection orders did not have to be complied with by the compliance date of January 26, 2016, that had been set out in those inspection orders until their appeals were decided. After both the corporate defendants and the Brampton Fire and Emergency Services were given an opportunity to make written submissions to the Ontario Fire Marshal’s Office in regards to the appeal of the December 22, 2015 inspection orders, the Ontario Fire Marshal’s Office upheld the inspection orders and issued their written ruling on June 15, 2016. Both corporate defendants were then given until July 15, 2016 to comply with those December 22, 2015 inspection orders in regards to the emergency exit doors in both buildings to “Remove additional locks/ latches that have been installed on all emergency exits”.

[4] The Ontario Fire Marshal’s Office had also provided their written ruling on the appeal of the inspection orders to both corporate defendants, but James Hawley, the director of 1385127 Ontario Inc., had testified that when he had received the Ontario Fire Marshal’s written ruling he had quickly scanned the ruling and then put it away in a file, since he had believed that the additional locks or latches on all the exit doors in both buildings had been removed by or about March 17, 2016. And, in respect to exit door #7 in the building at 95 Parkhurst Square, Hawley had believed that exit door #7 had not been in violation of s. 2.7.2.2.(1) after the top slide bolt latch of two slide bolt latches had been removed about March 17, 2016, and as such, Hawley had believed that the remaining slide bolt latch and the push bar mechanism on exit door #7 would only comprise one releasing operation or mechanism that would not be in violation of the one-only-releasing-mechanism prescription or requirement under. s. 2.7.2.2.(1) of the Ontario Fire Code. In short, Hawley believed that the December 22, 2015 inspection orders in respect to the emergency exit doors had been already in compliance with s. 2.7.2.2.(1) of the Ontario Fire Code by or about March 17, 2016, before the written ruling by the Ontario Fire Marshal’s Office had been issued on June 15, 2016. Furthermore, because of the information that Hawley said he had received from a conversation held sometime about March 17, 2016, between Hawley and Yosh Imahori, a Fire Marshall delegate of the Ontario Fire Marshal’s Office, Hawley said he had believed that exit door #7 at 95 Parkhurst Square had been in compliance with s. 2.7.2.2(1) because the push bar mechanism on exit door #7 did not require a hand or fingers to operate the mechanism like a slide bolt, a lock, or a thumb latch would require, so that the remaining slide bolt latch on exit door #7 which required the use of fingers or a hand to operate the releasing mechanism would then be the only door releasing mechanism on exit door #7.

[5] James Hawley had also testified that once he had heard that the City of Brampton was going to prosecute the two corporate defendants for Fire Code violations, Hawley said he had then decided that he was not going to touch or change anything further in respect to the emergency exit doors on the two buildings, for fear that the City of Brampton would use any subsequent changes that would be made to the emergency exit doors as evidence or proof that the two corporate defendants had contravened s. 2.7.2.2.(1) of the Ontario Fire Code.

[6] However, subsequent to that July 15, 2016 compliance date, Fire Prevention Officer Van Den Hoek of the Brampton Fire and Emergency Services had re-attended at both 73 and 95 Parkhurst Square on July 22, 2016, at which time she had noted that some of the additional “locks, latches or other fastening device” had been removed from the emergency exit doors for the two buildings, but that not all of the additional “locks, latches or other fastening device” had been removed from all of the emergency exit doors for the two buildings.

[7] As a consequence of observing that some of the emergency exit doors still had additional latches or locks after July 15, 2016, Fire Prevention Officer Van Den Hoek then charged Rathcliffe Properties Limited, as the owner of the building located at 73 Parkhurst Square, Brampton on July 21, 2016, with 8 counts of contravening s. 2.7.2.2 of the Ontario Fire Code in respect to 8 of the emergency exit doors for the building located at 73 Parkhurst Square, for having additional locks and latches on those exit doors, and as such, Rathcliffe Properties Limited would have committed an offence under s. 28(1)(c) of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4 (Information # 7681).

[8] In addition, Fire Prevention Officer Van Den Hoek charged 1385127 Ontario Inc. operating as 747 Flea Market (“1385127 Ontario Inc.”), as the principal tenant of the two buildings, on December 15, 2016, with 1 count of failing to comply with that December 22, 2015 inspection order by the compliance date of July 15, 2016, by failing to remove all of the additional “locks, latches or other fastening device” from all of the emergency exit doors in respect to the building located at 95 Parkhurst Square, and as such, the corporate defendant, 1385127 Ontario Inc., would have committed an offence under s. 30 of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4 (Information #7821).

[9] As well, Fire Prevention Officer Van Den Hoek had also charged Rathcliffe Properties Limited, the owner of the two buildings, on November 10, 2016, with 1 count of failing to comply with that December 22, 2015, inspection order by the compliance date of July 15, 2016, by failing to remove all of the additional “locks, latches or other fastening device” from the emergency exit doors in respect to the building located at 95 Parkhurst Square, and as such, Rathcliffe Properties Limited would have committed an offence under s. 30 of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4 (Information # 7822).

[10] The trial of the 10 charges in total on the 3 informations, then commenced on September 26, 2018. However, before arraignment of the corporate defendants for their respective charges, the prosecution withdrew the one charge of “failing to comply with an inspection order dated December 22, 2015” that was laid against Rathcliffe Properties Limited, which is contained in Information #7822. Consequently, the trial then began with only the 9 charges on the 2 remaining informations (the 8 counts contained in Information #7681 and the 1 count contained in Information #7821). However, the trial could not be completed on September 26th and the trial was then adjourned to January 17, 2019, for its continuation. On January 17, 2019, at the beginning of the second day of the trial, the prosecution invited the court to dismiss the 8 counts on Information #7681 against the corporate defendant, Rathcliffe Properties Limited, because of the omission of a reference to the application of the Ontario Building Code in the wording of each those 8 charges in Information #7681. As such, those 8 counts on Information #7681 against Rathcliffe Properties Limited were dismissed. Accordingly, the trial only continued on the second day of the trial with the sole charge on Information #7821 against 1385127 Ontario Inc., in respect to the building at 95 Parkhurst Square, which had been for the charge of “failing to comply with the inspection order dated December 22, 2015”.

[11] And, although at the time the trial had begun, the prosecution had contended that 1385127 Ontario Inc. had not complied with the inspection orders in respect to the emergency exit doors at 95 Parkhurst Square before July 15, 2016, as 3 of the exit doors still had additional “locks, latches or other fastening device” on them, Fire Prevention Officer Van Den Hoek during the trial had changed her view about the exit doors comprising of a double-set of exit doors in which one side or leaf of the set of double exit doors would be in a fixed or locked position. Her changed interpretation for 2 of the 3 exit doors that were in violation of the Fire Code was that the non-moving exit door of the double-set of exit doors could indeed have additional “locks, latches or other fastening device” on them, and as such, would not contravene s. 2.7.2.2.(1) of the Ontario Fire Code. As such, 2 of the 3 exit doors at 95 Parkhurst Square that were comprised of a double set of exit doors were now viewed by Fire Prevention Officer Van Den Hoek to not have contravened s. 2.7.2.2., as long as the moving door of the double set of doors had only one releasing operation or mechanism. Accordingly, only one emergency exit door, exit door #7, as designated by Fire Prevention Officer Van Den Hoek on her sketch for the layout of the building at 95 Parkhurst Square (see Exhibit #2) is contended by the prosecution to be not in compliance with s. 2.7.2.2.(1) on July 22, 2016, when Van Den Hoek had re-attended the building at 95 Parkhurst Square for a compliance check. And as such, the prosecution contends that 1385127 Ontario Inc. had failed to comply with the December 22, 2015 inspection order by failing to remove all additional “locks, latches or other fastening device” on all of the exit doors at 95 Parkhurst Square by July 15, 2016.

[12] For that remaining charge, and in its defence to the charge of “failing to comply with the inspection order dated December 22, 2015”, the corporate defendant, 1385127 Ontario Inc., contends that first, s. 2.7.2.2.(1) of the Ontario Fire Code does not apply to emergency exit doors because s. 2.7.2.2.(1)(a) specifically refers to “Every exit door required under the Code”, in which the corporate defendant argues that such exit doors are only “required” under the Ontario Building Code and not under the Ontario Fire Code, because the Fire Code does not specifically provide for the addition or removal of exit doors in a building once the building has been constructed, and that the Fire Code is only maintenance legislation which does not specifically allow for the number or quantity of exit doors in a building to be changed after the building is constructed. Hence, the corporate defendant submits that “exit doors” are not “required” to be installed or needed under the Ontario Fire Code, since that legal requirement is contained in the Ontario Building Code.

[13] Alternatively, the corporate defendant argues that if the court does indeed find that s. 2.7.2.2. of the Ontario Fire Code does apply to the emergency exits doors at 95 Parkhurst Square, then the corporate defendant submits that it did comply with s. 2.7.2.2.(1) since it had removed all additional “locks, latches or other fastening device” from the emergency exit doors in respect to both buildings by or about March 17, 2016, and as such were in compliance with the December 22, 2015 inspection orders before the compliance date of July 15, 2016.

[14] And in respect to exit door #7 at 95 Parkhurst Square, the corporate defendant contends that exit door #7, in particular, had not been in violation of s. 2.7.2.2.(1) because, even though there had been both a push bar mechanism and a slide bolt latch on exit door #7, the corporate defendant argues that the push bar mechanism on exit door #7 is not a separate releasing operation for the purposes of s. 2.7.2.2.(1), but an opening operation integral to that exit door, and that the slide bolt latch on exit door #7 is the only releasing mechanism on exit door #7 that has to be unlocked or unlatched in order to open that exit door to the outside in an emergency.

[15] Furthermore, in response to the corporate defendant’s arguments, the prosecution submits that the defence arguments are a collateral attack on the inspection orders and that the legal measure of only one releasing operation or mechanism or operation for an exit door under s. 2.7.2.2.(1) of the Ontario Fire Code does apply to the emergency exit doors at 95 Parkhurst Square, as s. 2.7.2.2.(1)(a) does expressly refer to “every exit door” that is so particularized, stipulated, or prescribed by the Fire Code. And because s. 2.7.2.2.(1) applies to every emergency exit door in the building at 95 Parkhurst Square, the prosecution submits that exit door #7 at 95 Parkhurst Square did contravene s. 2.7.2.2.(1) because it still had two releasing operations or mechanisms, which is not permitted on an exit door after the compliance date of July 15, 2016, as the slide bolt latch and the push bar mechanism on exit door #7 are two distinct and separate releasing operations or mechanisms that have to be both engaged to release that particular exit door from its door frame. Specifically, the prosecution submits that because every exit door has to be readily open from the inside through only one releasing operation or mechanism and because the push bar mechanism on exit door #7 is indeed a releasing or opening operation for that particular exit door, then exit door #7 will not open freely without applying sufficient pressure on the push bar mechanism in order to release that exit door from the door frame.

[16] In addition, in respect to James Hawley’s claim that the inspection orders were vague, the prosecution submits that the inspection orders were not vague as they had clearly stated or specified every exit door and not to just one or two exit doors. And in respect to Hawley’s reliance on a conversation with and information that he had been given to him by Yosh Imahori, a delegate from the Ontario Fire Marshal’s Office, in respect to the inspection orders and the emergency exit doors, the prosecution submits that the evidence would contravene the hearsay rule since Imahori is not present to testify and that Hawley had not made any notes about what Imahori had stated to him.

[17] Furthermore, in response to the defence argument that s. 2.7.2.2.(1) of the Ontario Fire Code does not apply to the exit doors in question because exit doors are not “required” under the Ontario Fire Code, since they are only legally “required” to be installed in a building under the Ontario Building Code, the prosecution submits that the Fire Code does apply to emergency exit doors, as the exit doors at 95 Parkhurst Square had exit signs above them, and that in an emergency situation the public would not be able to get out of the building quickly because of the additional locks or latches on the emergency exits doors. And, that if the Fire Code did not apply to the exit doors at 95 Parkhurst Square, then the prosecution argues that the safety of employees and patrons inside the building would be compromised.

[18] Accordingly, the prosecution submits that the actus reus of the offence has been proven beyond a reasonable doubt. Moreover, the prosecution submits that the corporate defendant has not made out the due diligence defence, since it did not take all reasonable steps in the circumstances to avoid committing the offence of “failing to comply with the December 22, 2015 inspection order”, considering that no one from the corporate defendant had contacted Fire Prevention Officer Van Den Hoek to discuss the inspection orders or to inquire what had needed to be done in order to rectify the violations of the Ontario Fire Code and to bring all the exit doors for the two buildings into compliance. Furthermore, to rebut James Hawley’s belief that the exits doors had been in compliance before the compliance date of July 15, 2016, the prosecution submits that after the Ontario Fire Marshal’s Office had upheld the inspection orders, Hawley, the director of 1385127 Ontario Inc., had testified that he had only quickly scanned the written ruling issued on June 15, 2016, upholding the inspection orders, and then put the written ruling away in a file.

[19] Now, in respect to deciding the first issue on whether the one releasing mechanism or operation requirement for exit doors under s. 2.7.2.2.(1) of the Ontario Fire Code applies to the exit doors at 95 Parkhurst Square, after using a broad and purposive interpretation of the phrase, “Every exit door required by this Code”, contained in s. 2.7.2.2.(1)(a), which is contained in a piece of public welfare legislation, s. 2.7.2.2.(1) does apply to the emergency exit doors at 95 Parkhurst Square. This is because exit doors are legally bound or legally required by expressed provisions set out in the Fire Code to be designed and installed so as to open outward in the direction of travel for the purposes of fire safety and public safety, and because the Ontario Fire Code itself has expressed concurrent jurisdiction with the Ontario Building Code in regards to the design and installation of exit doors on buildings, and that neither the Fire Code nor the Building Code expressly state that the Building Code has exclusive jurisdiction over the regulation of exit doors in buildings.

[20] And, on the second issue of whether the slide bolt latch and the push bar mechanism on exit door #7 at 95 Parkhurst Square comprise of one or two separate releasing operations or mechanisms, the slide bolt latch and the push bar mechanism are indeed two separate releasing operations or mechanisms, since exit door #7 will not open freely after the slide bolt is moved to the open position without sufficient pressure being applied to the push bar to release the exit door from its door frame. As such, since exit door #7 still contained both the slide bolt latch and the push bar mechanism after the compliance date of July 15, 2016, then between July 16, 2016 to July 23, 2016, exit door #7 had been in violation of s. 2.7.2.2.(1), which permits only one releasing operation or mechanism on an emergency exit door. Hence, the prosecution has proven beyond a reasonable doubt that the corporate defendant, 1385127 Ontario Inc., has committed the actus reus of the offence of failing to comply with the December 22, 2015 inspection order when it did not remove the additional lock or latch from exit door #7 in the building at 95 Parkhurst Square by July 15, 2016.

[21] And, in respect to the defence of due diligence for this strict liability offence of “failing to comply with the December 22, 2015 inspection order”, the corporate defendant, has not met its burden in establishing on a balance of probabilities that it had taken all reasonable steps in the circumstances to avoid committing the offence, in order to receive an acquittal. As such, the prosecution, on the totality of the evidence, has proven beyond a reasonable doubt that the corporate defendant, 1385127 Ontario Inc., is guilty of failing to comply with the December 22, 2015 inspection order in respect to 95 Parkhurst Square, between July 16, 2016 and July 23, 2016.

[22] Furthermore, three witnesses altogether had testified in the trial. One for the prosecution and two for the defence. For the prosecution, their witness was Fire Prevention Officer Van Den Hoek; while for the defence, their witnesses were James Hawley, the director of the corporate defendant, 1385127 Ontario Inc., and David Hine, an expert witness on the general application of the Ontario Fire Code and Ontario Building Code for the construction of new buildings and the retrofit of older buildings.

[23] In addition, the trial, which had initially started with 3 informations in respect to the two corporate defendants were held over 2 days: September 26, 2018, and January 17, 2019. After the evidence and closing arguments portion of the trial were completed, the matter was then adjourned until April 3, 2019, for judgment. These, therefore, are the written reasons for judgment:

2. ADDITIONAL BACKGROUND

[24] In this regulatory prosecution, the City of Brampton Fire and Emergency Services has charged two corporate entities, who are respectively, the owner and principal tenant of two buildings located at 73 Parkhurst Square and 95 Parkhurst Square in Brampton, with contraventions of the Ontario Fire Code (which are offences under the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4) in respect to the emergency exit doors at the perimeter of those two buildings by having additional locks and latches and for not removing the additional locks and latches by the compliance date of July 15, 2016. The charges resulted from inspection orders that had been issued on December 22, 2015, against both the owner and the principal tenant of both buildings after a fire safety inspection had been conducted by Fire Prevention Officer Van Den Hoek on December 3 and 8, 2015, that had been requested in writing by the master or principal tenant of both of the two buildings, 1385127 Ontario Inc., in order to renew a municipal business licence with the City of Brampton.

[25] The two buildings at 73 Parkhurst Square and 95 Parkhurst Square in the City of Brampton are buildings that contain a business known by the name of “747 Flea Market”. Moreover, the two buildings are only open to the public on weekends (Saturday and Sunday) when it operates as flea market where vendors sell prepared foods, goods and wares from 100s of individual booths. Moreover, the flea market is busy and full of people on weekends when it is open to the public. However, the two building are not open to the general public during weekdays from Monday to Friday, except for Friday when it is open to the vendors who operate those booths to bring in goods and supplies to their individual booths. However, even though the two buildings are not open to the general public from Monday to Friday, office staff or personnel of 1 to 4 persons for the 747 Flea Market are present in 95 Parkhurst Square during the day from Monday to Friday where the office for the 747 Flea Market and the principal tenant, 1385127 Ontario Inc. is situated. And when the flea market is operating on Saturday and Sunday, it is a very busy place where there may be hundreds of people inside the two buildings.

[26] For the two buildings, there are 9 exit doors that can be used to exit the building located at 95 Parkhurst Square in an emergency and 10 exit doors that can be used to exit the building located at 73 Parkhurst Square in an emergency.

[27] Furthermore, the corporate defendant, Rathcliffe Properties Limited, for the purposes of this proceeding, is the owner of both of the two buildings located at 73 Parkhurst Square and 95 Parkhurst Square. It is the owner and landlord of 95 Parkhurst Square; while it is one of the owners of 73 Parkhurst Square, as well as one of the landlords of 73 Parkhurst Square. Rathcliffe Properties Limited had been originally charged with committing 9 offences on two informations: 8 contraventions of the Ontario Fire Code in respect to 8 different emergency exit doors for the building located at 73 Parkhurst Square which were set out in information #7681 and 1 charge in information #7822 of “failing to comply with an inspection order dated December 22, 2015” in respect to 95 Parkhurst Square, that required the removal of all additional locks and latches on those particular exit doors by the compliance date of July 15, 2016. However, prior to arraignment, the prosecution had withdrawn the “failing to comply with an inspection order dated December 22, 2015” charge in respect to 95 Parkhurst Square against Rathcliffe Properties Limited (Information #7822). Then on the second day of the trial, the prosecution invited the court to dismiss the remaining 8 charges on Information #7681 against Rathcliffe Properties Limited in respect to 73 Parkhurst Square, due to the omission of a reference to the application of the Ontario Building Code in the wording of each of the 8 individual charges on that information. As such, Rathcliffe Properties Limited was acquitted of the 8 charges laid against them under Information #7681.

[28] In addition, the second corporate defendant, 1385127 Ontario Inc. operating as 747 Flea Market, is the master or principal tenant of both of the buildings at 73 Parkhurst Square and 95 Parkhurst Square. It had also been charged with “failing to comply with an inspection order dated December 22, 2015”, in respect to 3 different emergency exit doors for the building located at 95 Parkhurst Square. However, Fire Prevention Officer Van Den Hoek later testified that she had she had been incorrect in her interpretation of the Ontario Fire Code for 2 of those 3 exit doors. Specifically, Van Den Hoek had revised her view about the non-moving leaf of a double set of emergency exit doors that had additional locks or latches being in contravention of s. 2.7.2.2.(1). She said that the non-moving leaf of a set of double doors can have additional locks or latches, since the moving leaf of the double doors which can only have one releasing operation or mechanism would be used as the emergency exit while the non-moving leaf can always remain in a fixed or locked position. As a consequence, Van Den Hoek’s present view is that only 1 of those 3 exits doors at 95 Parkhurst Square had been in non-compliance with the Ontario Fire Code. Ergo, only exit door #7, as labelled by Fire Prevention Officer Van Den Hoek on her sketch of the building located at 95 Parkhurst Square (Exhibit #2), is the one remaining exit door that is considered by Fire Prevention Officer Van Den Hoek to still not be in compliance with s. 2.7.2.2.(1) of the Ontario Fire Code by the compliance date of July 15, 2016.

[29] Moreover, the trial had started with 3 informations, 15 charges and 2 corporate defendants, in respect to the 2 buildings located at 73 Parkhurst Square and 95 Parkhurst Square in Brampton. However, by the 2nd day of the trial, only one charge remained that still had to be decided, which is the charge contained in Information #7821 in respect to one emergency exit door at 95 Parkhurst Square (exit door #7), in which 1385127 Ontario Inc. has been charged with “failing to comply with an inspection order dated December 22, 2015”. As for the other 14 charges, they had either been withdrawn or dismissed by invitation of the prosecution.

(a) Inspection Orders in respect to 95 Parkhurst Square (file I.D. No. 60232)

[30] As a result of the fire safety inspection conducted by Fire Prevention Officer Van Den Hoek of the building located at 95 Parkhurst Square on December 3 and 8, 2015, Fire Prevention Officer Van Den Hoek had issued and served inspection orders under s. 21(1)(g) of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4, on Dorothy Hawley on December 22, 2015. Those inspection orders had ordered the corporate defendant, 1385127 Ontario Inc., Dorothy Hawley, and James Hawley to remedy the Fire Code violations that had been observed and listed by Officer Van Den Hoek in regards to 95 Parkhurst Square. The order that had related to the emergency exit doors at 95 Parkhurst Square had been contained in item #1 of the Fire Code violations set out in the inspection orders, which provided that:

Therefore, pursuant to Clause g of Subsection (1) of Section 21 of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4, it is ordered that

The fire code violations be remedied

Division B – 2.7.2.2

(1) Subject to Sentences (2) and (3), locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on, (a) every exit door required by this Code

Remove additional locks/ latches that have been installed on all emergency exits.

Work prescribed in this Order is deemed not to contravene the Building Code established under the Building Code Act, 1992. [see s. 22(2) of the Fire Protection And Prevention Act, 1997]

The work in the Order must be completed by

2016 01 28

Heather Van Den Hoek …

(b) The Building At 95 Parkhurst Square

[31] The charge related to 95 Parkhurst Square concerns an allegation that between July 16, 2016 and July 23, 2016, the corporate defendant, 1385127 Ontario Inc., who is the principal tenant at 95 Parkhurst Square, had committed the offence of failing to comply with an inspection order issued by Fire Prevention Officer Van Den Hoek on December 22, 2015. The building at 95 Parkhurst Square has 9 exit doors that lead directly to the outside of the building and which all have exit signs posted above each of those 9 exit doors. The building is also a large one-story building that is approximately 40,000 square feet in size. For the purposes of the Ontario Fire Code the building is classified as a mercantile occupancy.

[32] In addition, James Hawley testified that he is the sole director, officer, and shareholder of 1385127 Ontario Inc., and that Dorothy Hawley is not an owner of 1385127 Ontario Inc., as had been believed and stated by Fire Prevention Officer Van Den Hoek.

[33] Moreover, during the fire safety inspection conducted on December 3 and 8, 2015, at the behest of the corporate defendant, 1385127 Ontario Inc., Fire Prevention Officer Van Den Hoek testified that she had observed violations of the Ontario Fire Code in respect to 3 of the 9 exit doors in the building at 95 Parkhurst Square, and because of the concern for public safety, she had issued and served an inspection order on December 22, 2015 on James Hawley, Dorothy Hawley, and the corporate defendant, 1385127 Ontario Inc., to “Remove additional locks/ latches that have been installed on all emergency exits” at 95 Parkhurst Square, so that there would be only one releasing operation or mechanism for each exit door. On July 22, 2016, after the Ontario Fire Marshal’s Office had upheld Fire Prevention Officer Van Den Hoek’s inspection orders, and a date which is after the compliance date of July 15, 2016, Officer Van Den Hoek had re-attended 95 Parkhurst Square and had observed that her inspection order dated December 22, 2015, in respect to 3 of the exit doors had still not been complied with. Two of the exit doors were a set of double doors where additional locks or latches were still on the non-moving leaf of the double doors. And, for exit door #7, which had a push bar mechanism, Officer Van Den Hoek had observed that there was one of the two additional slide bolt latches that she had observed during the fire safety inspection on December 3, 2015, still on the exit door and that it had not been removed.

[34] However, Fire Prevention Officer Van Den Hoek during the trial had changed her view about whether the two sets of double exit doors had indeed contravened s. 2.7.2.2.(1). Officer Van Den Hoek had ultimately concluded that the non-moving side of the set of double exit doors could remain in the locked position at all times, since the other leaf of the double exit doors or the moving leaf of the double doors which only contained one releasing operation mechanism could still be used as the emergency exit, so that the additional slide bolts and latches could then remain on the non-moving side of the double exit doors.

[35] Moreover, Fire Prevention Officer Van Den Hoek had testified that her interpretation had indeed changed in respect to whether the non-moving leaf of a set of double exit doors at 95 Parkhurst Square in which she had found additional slide bolt latches on the non-moving leaf of the double exit doors were in fact contravening s. 2.7.2.2.(1) of the Ontario Fire Code. In particular, Van Den Hoek said that it was her view now that it was permissible to have additional locks and latches on the non-moving side of a set of double exit doors as long as the moving side of the double exit doors had only one releasing operation or mechanism. Moreover, Van Den Hoek said that 2 of the 3 exit doors which had been in violation of s. 2.7.2.2.(1) on July 22, 2016 were a set of double doors. As a consequence, only one of the exit doors in the building at 95 Parkhurst Square, namely exit door #7, as referred to by Fire Prevention Officer Van Den Hoek on her sketch of the outline of the building at 95 Parkhurst Square (Exhibit #2) is contended to not have been in compliance with s. 2.7.2.2.(1) after the compliance date of July 15, 2016.

(c) Exit Door #7 At 95 Parkhurst Square

[36] On December 3, 2015, Fire Prevention Officer Van Den Hoek had observed during the fire safety inspection that exit door #7 at 95 Parkhurst Square, which was a solid door, had contained a push bar mechanism and two slide bolt latches attached to the interior side of the exit door. Officer Van Den Hoek also said the slide bolt latches when engaged would be slid into the door jamb surrounding the exit door. She also testified that she had taken photographs of exit door #7 with the two slide bolt latches on December 3, 2015 (see the photograph marked as Exhibit #1).

[37] Furthermore, Officer Van Den Hoek said that exit door #7 at 95 Parkhurst Square is located in the northeast corner of the building.

[38] After the written ruling of the Ontario Fire Marshal’s Office was issued on June 15, 2016, which had upheld the December 22, 2015 inspection orders, Fire Prevention Officer Van Den Hoek had re-attended the building at 95 Parkhurst Square on July 22, 2016 for a compliance check, and had observed that only one of the two slide bolt latches that she had observed on December 3, 2015, had been removed from exit door #7 and that exit door #7 had contained both a push bar mechanism and a slide bolt latch, which she said would still be in violation s. 2.7.2.2.(1) of the Ontario Fire Code that only permits one releasing operation or mechanism on an exit door. She also said that she had taken a photograph of exit door # 7 on July 22, 2016, which showed the push bar mechanism and the additional slide bolt latch (see Exhibit #17).

[39] Ergo, exit door #7 is the only exit door at 95 Parkhurst Square that the prosecution contends had still been in violation of s. 2.7.2.2.(1) of the Ontario Fire Code after the compliance date of July 15, 2016. And, as a consequence, the prosecution contends that the corporate defendant, 1385127 Ontario Inc., had failed to comply with the December 22, 2015 inspection order to remove all additional locks or latches from all exit doors at 95 Parkhurst Square by the compliance date of July 15, 2016.

[40] In addition, James Hawley, the director of 1385127 Ontario Inc., had testified that because of the half-an-hour conversation that Hawley had had with Yosh Imahori, a Fire Marshall delegate, of the Ontario Fire Marshal‘s Office, on or about March 17, 2016, about the December 22, 2015 inspection orders, Hawley had believed that exit door #7 had not been in violation of s. 2.7.2.2.(1) of the Ontario Fire Code. The reasoning for Hawley’s belief was that a releasing mechanism on an exit door required the use of fingers or a hand to operate the releasing mechanism to be considered a releasing mechanism and that since the push bar mechanism on exit door #7 did not require the use of finger or a hand to cause the opening function of the push bar mechanism to occur, then the push bar mechanism was not a releasing mechanism under s. 2.7.2.2.(1), as the opening function of the push bar mechanism could be accomplished by using any part of a person’s body to apply pressure on the push bar to open the exit door.

[41] Specifically, the corporate defendant, 1385127 Ontario Inc., contends that there is only one releasing operation or mechanism on exit door #7 and that this mechanism would be the slide bolt latch that still remains on the exit door, and that the push bar mechanism on exit door #7 is not a releasing mechanism, but an opening mechanism that is an integral part of the door that can be pushed with any part of a persons’ body that would then open the exit door, so that the push bar mechanism is not a separate and distinct releasing mechanism like the slide bolt latch would be.

[42] In addition, Hawley also testified that it was his opinion that all of the additional bolts and locks had been removed from all the exit doors at 95 Parkhurst Square and that all the exit doors had been in compliance with s. 2.7.2.2.(1) of the Ontario Fire Code by or about March 17, 2016, which was a date before the written ruling had been issued by the Ontario Fire Marshal’s Office on June 15, 2016, as well as before the compliance date of July 15, 2016, set by the Ontario Fire Marshal’s Office for complying with the December 22, 2015 inspection orders.

[43] On the other hand, Hawley’s belief that exit door #7 had not contravened s. 2.7.2.2.(1) because of his particular conversation with Yosh Imahori of the Ontario Fire Marshal‘s Office, which had occurred sometime about March 17, 2016, would have been held prior to the Ontario Fire Marshall’s Office having upheld the December 22, 2015 inspection orders on June 15, 2016. As such, the Ontario Fire Marshall’s Office ruling to uphold the inspection orders does not appear to support Hawley’s belief that exit door #7 did not contravene s. 2.7.2.2.(1) or that the push bar mechanism and the slide bolt mechanism are only one releasing operation for the purposes of s. 2.7.2.2.(1) of the Ontario Fire Code.

[44] Furthermore, Hawley testified that once he had found out that the two corporations were being charged with Fire Code violations, he had decided that no further changes or alterations would be made to any of the exit doors in the two buildings, as he had believed that such changes or alterations to any of the exit doors could be used by the prosecution as proof or evidence that the corporate defendants had committed violations of the Fire Code.

(d) The Appeal Of The Inspection Orders To The Ontario Fire Marshal’s Office

[45] Both corporate defendants had appealed the inspection orders issued and served on them by Fire Prevention Officer Van Den Hoek on December 22, 2015, to the Ontario Fire Marshal’s Office in writing on January 5, 2016. After both Fire Prevention Officer Van Den Hoek and the corporate defendants made their written submissions to the Ontario Fire Marshal’s Office, the Ontario Fire Marshal’s Office issued a written ruling on June 15, 2016, which had upheld the inspections orders of December 22, 2015 and set a compliance date to comply with those inspections orders by July 15, 2016.

[46] The Ontario Fire Marshal’s Office’s written ruling had been sent to both Fire Prevention Officer Van Den Hoek and to the corporate defendants. James Hawley, the director of 1385127 Ontario Inc., testified that when he had received the written ruling from the Ontario Fire Marshal’s Office, he had only quickly scanned the written ruling and then put it away in a file because Hawley had believed that the exit doors for both buildings were all in compliance by or about March 17, 2016. Hawley had also testified that within 24 hours after his conversation with Yosh Imahori, his employees had removed all the additional locks and latches from all the exit doors in both buildings that had needed to be removed.

(e) James Hawley’s Conversation With Yosh Imahori Of The Ontario Fire Marshal’s Office

[47] James Hawley testimony about what Yosh Imahori of the Ontario Fire Marshal’s Office had told him out of court about releasing mechanisms for emergency exit doors and the use of fingers or hand to engage or operate the releasing mechanisms would violate the rule against hearsay, if Yosh Imahori’s out-of-court statements to Hawley are being used for the truth of their contents. In addition, Hawley did not provide a verbatim account of what Imahori had actually informed or stated to Hawley, nor the context in which Imahori’s statement had been given. Nor did Hawley indicate that he had written down or recorded what Yosh Imahori’s out-of-court statements on or about March 17, 2016, to Hawley had entailed.

3. THE CHARGES

[48] As stated in Information #7681 that was sworn on November 10, 2016, the corporate defendant, Rathcliffe Properties Limited, had been charged with 8 Part III regulatory offences of “having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation” in respect to 73 Parkhurst Square, Brampton, contrary to s. 2.7.2.2 of Ontario Fire Code (Fire Protection And Prevention Act, 1997), O. Reg. 213/07 and thereby committed an offence under 28(1)(c) of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4:

Count #1

Rathcliffe Properties Limited of 1020 Lawrence Avenue West, Suite 300, Toronto, Ontario, M6A 1C8

on or about the 21st day of April, 2016 at 73 Parkhurst Square, described as Part Block 4, Plan 43M891, designated as Parts 2, 3, 4 & 5, Plan 43R23114, S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel,

did commit the offence of contravening Division B, Article 2.7.2.2 of the Ontario Regulation 213/07, as amended, made under the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, namely having locks, latches or other fastening device such that a door cannot be readily opened from the inside with no more than one releasing operation,

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 28(1)(c);

Count #2

AND FURTHER THAT

Rathcliffe Properties Limited

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 28(1)(c);

Count #3

AND FURTHER THAT

Rathcliffe Properties Limited

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 28(1)(c);

Count #4

AND FURTHER THAT

Rathcliffe Properties Limited

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 28(1)(c);

Count #5

AND FURTHER THAT

Rathcliffe Properties Limited

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 28(1)(c);

Count #6

AND FURTHER THAT

Rathcliffe Properties Limited

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 28(1)(c);

Count #7

AND FURTHER THAT

Rathcliffe Properties Limited

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 28(1)(c);

Count #8

AND FURTHER THAT

Rathcliffe Properties Limited

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 28(1)(c);

[49] However, on the second day of the trial, the prosecution invited the court to dismiss these 8 charges against the corporate defendant, Rathcliffe Properties Limited, since the wording in each individual charge had only expressed reference to the application of the Ontario Fire Code to those exit doors, but had failed to also expressly mention that the exit doors were also subject to the application of the Ontario Building Code. As such, all 8 counts on Information #7681 were dismissed against Rathcliffe Properties Limited.

[50] And, as stated in the Information #7821 that was sworn on November 10, 2016, the second corporate defendant, 1385127 Ontario Inc. operating as 747 Flea Market, had been charged with one Part III regulatory offence of “failing to comply with an inspection order dated December 22, 2015” in respect to 95 Parkhurst Square, Brampton, between July 16, 2016 and July 23, 2016, contrary to s. 30 of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4:

1385127 Ontario Inc. of 95 Parkhurst Square, Brampton Ontario L6T 5H5

between the 16th day of July, 2016 and the 23rd day of July, 2016 at 95 Parkhurst Square, described as PT BLK 4 PL 43M891 DES AS PTS 2, 3, 4 & 5, PL 43R23114 S/E PTS 1 & 2 PL 43R31426; in the City of Brampton, Regional Municipality of Peel,

did commit the offence of

Failing to comply with an inspection order dated December 22, 2015

contrary to the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4, section 30.

4. APPLICABLE LAW

[51] The failing to comply with the December 22, 2015 Inspection Order is an offence under s. 30 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, which provides that:

Offence, failure to comply with inspection order

Every person who fails to comply with an order made under section 21, 25 or 26 is guilty of an offence and on conviction is liable to a fine of not more than $20,000 for every day during which the default continues, and the imposition or payment of the fine does not relieve the person from complying with the order.

[52] Furthermore, the December 22, 2015 Inspection Order that was issued by Fire Prevention Officer Van Den Hoek had been done so pursuant to s. 21(1)(g) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, which states that an inspector, who has carried out an inspection of land or premises under either sections 19 or 20, may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises, and may for that purpose, order the owner or occupant to remedy any contravention of the Ontario Fire Code [emphasis is mine below]:

Inspection orders

21(1) An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant,

(a) to remove buildings or structures from the land or premises;

(b) to make structural and other repairs or alterations, including material alterations, to the buildings or structures;

(d) to install and use specified equipment or devices as may be necessary to contain hazardous material on the land or premises and, in the event of a fire, to remove or transport the material;

(e) to discontinue the manufacturing, production or fabrication of any material, device or other thing that creates or poses an undue risk of fire or explosion;

(f) to do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan;

(g) to remedy any contravention of the fire code.

[53] And, where an inspection order is not complied with by the compliance date, then the person or entity required to comply with that order would be guilty of committing an offence under s. 28(1)(c) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, and if the entity is a corporation, then it would be subject to a maximum fine of $100,000 under s. 28(4) [emphasis is mine below]:

Offences

28(1) Every person is guilty of an offence if he or she,

(a) hinders, obstructs or interferes with the Fire Marshal, an assistant to the Fire Marshal or a fire chief in the exercise of his or her powers and duties;

(b) prevents an inspector from entering land or premises under section 19 or 20, refuses to answer questions on matters relevant to the inspection or provides the inspector with information, on matters relevant to the inspection, that the person knows, or ought reasonably to know, to be false or misleading;

(d) refuses or neglects to obey or carry out the directives of the Fire Marshal, an assistant to the Fire Marshal or a fire chief given under the authority of this Act.

Same

(2) A person who contravenes a provision in Part IX of this Act is not guilty of an offence.

Penalty

(3) An individual convicted of an offence under subsection (1) is liable to,

(a) in the case of an offence other than one described in clause (b), a fine of not more than $20,000 or imprisonment for a term of not more than one year, or both; and

(b) in the case of an offence for contravention of the fire code, a fine of not more than $50,000 or imprisonment for a term of not more than one year, or both.

Same

(4) A corporation convicted of an offence under subsection (1) is liable to a fine of not more than $100,000.

Offence, director or officer of corporation

(5) A director or officer of a corporation who knows that the corporation is violating or has violated a provision of the fire code is guilty of an offence and on conviction is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both.

Liability of directors

(6) Despite subsections (1) and (3), every director or officer of a corporation who knowingly commits an offence under subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both.

[54] Furthermore, the s. 2.7.2.2.(1) provision of the Ontario Fire Code, which deals with the releasing door hardware mechanism for exit doors that is under scrutiny in this trial, is contained in Part 2 of that Code. Moreover, ss. 2.1.1.1. and 2.1.1.2. of the Fire Code states that Part 2 of the Ontario Fire Code “applies to buildings” and “provides measures for the fire safety of persons and buildings”, including “the maintenance of certain life safety systems in buildings” [emphasis is mine below]:

Scope

2.1.1.1. This Part provides measures for the fire safety of persons and buildings, including the elimination or control of fire hazards in and around buildings, the maintenance of certain life safety systems in buildings, the establishment of a fire safety plan in certain buildings and the installation of smoke alarms and carbon monoxide alarms.

Application

2.1.1.2. Subject to Article 2.1.1.3., this Part applies to buildings, premises, tents, air-supported structures and outdoor public amusement areas.

[55] Furthermore, the phrase “Every exit door required by this Code” that has been impugned by the corporate defendant is contained in s. 2.7.2.2.(1)(a) of the Ontario Fire Code which is contained in the Section 2.7 and under the Heading “Safety To Life”, which is then contained in Subsection 2.7.2 and under the Heading “Door Hardware”.

[56] In addition, the stipulation provided for under s. 2.7.2.2.(1) of the Ontario Fire Code that “locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on”, applies to “Every exit door required by this Code”, according to s. 2.7.2.2.(1)(a) [emphasis is mine below]:

Requirements for locking, latching and fastening devices

(a) Every exit door required by this Code …

[57] Moreover, in respect to the direction that emergency exit doors must open toward is provided for under s. 2.7.2.1.(1) of the Ontario Fire Code, which stipulates that “Every exit door is required to be designed and installed so that, when the latch is released, the door will open in the direction of exit [emphasis is mine below]:

2.7.2.1.(1) Every exit door shall be designed and installed so that, when the latch is released, the door will open in the direction of exit travel under a force of not more than 90 N, applied at the knob or other latch releasing device.

[58] In addition, s. 1.2.1.1. of the Ontario Fire Code legally obligates the “owner” of the building or premises to carry out the provisions of the Ontario Fire Code [emphasis is mine below]:

Owner’s responsibility

1.2.1.1. Unless otherwise specified, the owner is responsible for carrying out the provisions of this Code.

Compliance with Parts 2 and 3

1.2.1.2. Compliance with Parts 2 and 3 is required only as it relates to the use of alternative solutions as set out in Subsection 1.2.2.

[59] The term “owner” for the purposes of the Ontario Fire Code is defined under s. 1.4.1.2., which includes any person, firm or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property, and as such the corporate defendant, 1385127 Ontario Inc., as the principal tenant of the two buildings at 73 Parkhurst Square and 95 Parkhurst Square, meets the definition of “owner” and obligates the corporate defendant to carry out the provisions of the Ontario Fire Code:

Defined terms

1.4.1.2. The words and terms used in this Code that are in bold face, and either in upper and lower case or in lower case, have the following meanings:

Owner means any person, firm or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property.

[60] Furthermore, particular words, terms, and phrases are defined in the Ontario Fire Code and are contained in s. 1.4.1.2. of the Code. The relevant defined words, terms, or phrases that apply to this proceeding are found below:

Non-defined terms

1.4.1.1.(1) Definitions of words and phrases used in this Code that are not included in the list of definitions in Article 1.4.1.2. have the meanings that are commonly assigned to them in the context in which they are used, taking into account the specialized use of terms with the various trades and professions to which the terminology applies.

(2) Despite Sentence (1), words and phrases may be assigned other meanings where specifically noted in another provision of this Code.

Defined terms

1.4.1.2. The words and terms used in this Code that are in bold face, and either in upper and lower case or in lower case, have the following meanings:

Means of egress means a continuous path of travel provided for the escape of persons from any point in a building or contained open space to a separate building, an open public thoroughfare or an exterior open space protected from fire exposure from the building and having access to an open public thoroughfare. Means of egress includes both exits and access to exits.

Order means an order made under subsection 21(1) of the Fire Protection and Prevention Act, 1997.

Owner means any person, firm or corporation having control over any portion of the building or property under consideration and includes the persons in the building or property.

Mercantile occupancy means the occupancy or use of a building or part thereof for the displaying or selling of retail goods, wares or merchandise.

[61] In addition, reference had been made to the Ontario Building Code during the trial. The Ontario Building Code also has provisions governing door release hardware on exit doors that are similar to the ones contained in the Ontario Fire Code. They are set out in ss. 3.4.6.16 and 9.9.6.8. of the Building Code [emphasis is mine below]:

3.4.6.16. Door Release Hardware

(1) Except for dwelling units, except for devices on doors serving a contained use area or an impeded egress zone designed to be released in conformance with Article 3.3.1.12., and except as permitted by Sentence (4), locking, latching and other fastening devices on every exit door shall permit the door to be readily opened from the inside with not more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism.

(2) If a door is equipped with a latching mechanism, a device that will release the latch and allow the door to swing wide open when a force of not more than 90 N is applied to the device in the direction of travel to the exit shall be installed on,

(a) every exit door from a floor area containing an assembly occupancy having an occupant load more than 100,

(b) every door leading to an exit lobby from an exit stair shaft, and every exterior door leading from an exit stair shaft in a building having an occupant load more than 100, and

(3) Except as required by Sentence 3.8.3.3.(7), every exit door shall be designed and installed so that, when the latch is released, the door will open under a force of not more than 90 N, applied at the knob or other latch releasing device.

(4) Except as permitted by Sentence 3.3.1.12.(6), electromagnetic locks that do not incorporate latches, pins or other similar devices to keep the door in the closed position are permitted to be installed on exit doors other than doors described in Sentence (5) provided,

(a) the building is equipped with a fire alarm system conforming to Subsection 3.2.4.,

(b) the locking device, and all similar devices in the access to exit leading to the exit door, are installed as ancillary devices to the fire alarm system and release immediately upon activation of,

(i) the alarm signal where a single stage fire alarm system is installed,

(ii) except as provided in Subclause (iii), the alert signal where a two stage fire alarm system is installed, or

(iii) the alarm signal of a two stage fire alarm system installed in a care, care and treatment or detention occupancy,

(c) the locking device releases immediately upon loss of power to the fire alarm control panel or loss of power controlling the electromagnetic locking mechanism and its associated auxiliary controls,

(d) the locking device releases immediately upon actuation of a manually operated switch readily accessible only to authorized personnel and located near the main entrance of the building or in the central alarm and control facility of Sentence 3.2.6.7.(1),

(e) the locking device releases immediately upon a fault being detected in the electrical circuit between the fire alarm control panel and the controller of the locking device,

(f) the locking device releases immediately upon the operation of a manual pull station for the fire alarm system located on the wall not more than 600 mm from the door,

(g) a legible sign having the words EMERGENCY EXIT UNLOCKED BY FIRE ALARM is permanently mounted on the door,

(h) the lettering on the sign required in Clause (g) is at least 25 mm high with a 5 mm stroke,

(i) upon release, the locking device must be reset manually by the actuation of the switch referred to in Clause (d),

(j) the operation of any by-pass switch, where provided for testing of the fire alarm system, causes an audible signal and a visual signal to be indicated at the fire alarm annunciator panel and at the monitoring station referred to in Clause 3.2.4.8.(4) (a), and

(k) emergency lighting is provided at the doors.

(5) Except as permitted by Sentences (6) and (7), electromagnetic locks are not permitted to be installed on exit doors,

(a) described in Clause (2)(a), (b) or (c),

(b) serving an elementary or secondary school, or

(6) Electromagnetic locks are permitted to be installed on an exterior door leading from an exit stairway in a building serving only a Group B, Division 2 major occupancy or a Group B, Division 3 major occupancy.

(7) Electromagnetic locks are permitted to be installed on an exit door that serves only a gaming premises if,

(a) the gaming premises is located within a sprinklered floor area,

(b) smoke detectors are installed in each room and each corridor accessible to the public,

(c) a force of not more than 90 N applied to the door opening hardware initiates an irreversible process that will release the locking device within 15 s and not relock until the door has been opened, and

(d) a legible sign conforming with Clause (4)(h) is permanently mounted on the exit door to indicate that the locking device will release within 15 s of applying pressure to the door release hardware.

(8) Door hardware for the operation of the doors referred to in this Section shall be installed at a height not more than 1 200 mm above the finished floor.

9.9.6.8. Effort Required to Open

(1) Except as required by Sentence 3.8.3.3.(7), every exit door, except doors serving a single dwelling unit, shall be designed and installed so that when the latch is released the door will open in the direction of exit travel under a force of not more than 90 N applied to the door release hardware.

[62] Furthermore, s. 22 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, provides for the situation in which the prevention officer or inspector may issue an order under s. 21(1) of that Act, that requires structural repairs or alterations be made to a building, structure or premises, which had been constructed in compliance with the Ontario Building Code, for the purposes of complying with the Ontario Fire Code, and if such structural repairs or alterations are be made to the building, structure or premises then those repairs and alterations are deemed under s. 22(2) of the Fire Protection and Prevention Act, 1997 to not be contraventions of the Ontario Building Code. However, s. 22(1) of the Fire Protection and Prevention Act, 1997 does expressly state under s. 21(1)(b) of the Act that no fire prevention officer or inspector is permitted to make an order, requiring structural repairs or alterations be made to a building, structure or premises that had been constructed in compliance with the Ontario Building Code and which still continues to comply with the Building Code as it existed at the time of the construction of the building, unless the order is necessary to ensure compliance with the provisions of the Ontario Fire Code relating to the retrofitting of existing buildings [emphasis is mine below]:

Limitation on orders relating to structural repairs

22.(1) No inspector shall make an order under clause 21 (1) (b) requiring structural repairs or alterations to a building, structure or premises that was constructed in compliance with the building code established under the Building Code Act, 1992 or under a predecessor to that Act and that continues to comply with that code as it existed at the time of construction, unless the order is necessary to ensure compliance with the provisions of the fire code relating to the retrofitting of existing buildings.

Repairs, etc., deemed not to contravene Building Code

(2) If repairs, alterations or installations are carried out in compliance with an order made under subsection 21 (1) or for the purposes of complying with the fire code, the repairs, alterations or installations shall be deemed not to contravene the building code established under the Building Code Act, 1992.

Copy of order

(3) An inspector who makes an order requiring repairs, alterations or installations to be made to a building, structure or premises shall furnish a copy of the order to the proper chief building official appointed under the Building Code Act, 1992.

5. ISSUES

[63] The following are the issues that have arisen in the trial that need to be resolved:

(a) Does s. 2.7.2.2.(1) of the Ontario Fire Code apply to the exit doors at 95 Parkhurst Square?

(b) Does the corporate defendant’s contention that the phrase contained in s. 2.7.2.2.(1)(a) of, “Every exit door required by this Code”, is so worded to mean that the Fire Code does not apply to exit doors because exit doors are only “required” or needed to be installed or constructed under the Ontario Building Code, but are not “required” to be installed or constructed under the Fire Code?

(c) If s. 2.7.2.2.(1) does apply to the exit doors at 95 Parkhurst Square, has the prosecution proven beyond a reasonable doubt that the corporate defendant, 1385127 Ontario Inc., has committed the actus reus of the offence of “failing to comply with an inspection order dated December 22, 2015”, in respect to 95 Parkhurst Square, Brampton, between July 16, 2016 and July 23, 2016, so as to commit an offence under s. 30 of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4.

(d) Does exit door #7 at 95 Parkhurst Square, which contains both a slide bolt latch and a push bar mechanism, an exit door with one or two releasing operations or mechanisms?

(e) Is a push bar mechanism on an exit door an opening operation or a releasing operation for the purposes of s. 2.7.2.2(1) of the Ontario Fire Code?

(f) If the prosecution has proven beyond a reasonable doubt that the corporate defendant, 1385127 Ontario Inc., has committed the actus reus of the offence of “failing to comply with an inspection order dated December 22, 2015” in respect to 95 Parkhurst Square, Brampton, between July 16, 2016 and July 23, 2016, contrary to s. 30 of the Fire Protection And Prevention Act, 1997, S.O. 1997, C.4, then has the corporate defendant proven on a balance of probabilities that it had taken all reasonable steps in the circumstances to avoid committing the offence or that it had reasonably believed in a mistaken fact, if true, would make its actions or omissions innocent, which would entitle the corporate defendant to an acquittal of the charge?

(g) Were the December 22, 2015 inspection orders issued by Fire Prevention Officer Van Den Hoek vague?

6. ANALYSIS AND DECISION

[64] In order to prove that the corporate defendant, 1385127 Ontario Inc., is guilty of committing the remaining charge set out in Information #7821 that still has to be determined in this trial, the prosecution has to prove beyond a reasonable doubt that the corporate defendant had failed to comply with an inspection order dated December 22, 2015 in respect to 95 Parkhurst Square, Brampton, between July 16, 2016 and July 23, 2016. To do so, the prosecution has to prove that the corporate defendant had failed to remove all additional locks, latches, or other devices on all exit doors at 95 Parkhurst Square so as to be in compliance with s. 2.7.2.2.(1) of the Ontario Fire Code by the compliance date of July 15, 2016.

(A) DOES s. 2.7.2.2.(1) OF THE ONTARIO FIRE CODE APPLY TO THE EMERGENCY EXIT DOORS IN THE BUILDING LOCATED AT 95 PARKHURST SQUARE?

[65] The corporate defendant, 1385127 Ontario Inc., contends that the Ontario Fire Code does not apply to the exit doors in question based on the argument that “exit doors” are only legally “required” or compulsory to be installed or constructed in a building under the Ontario Building Code, but that there is no specific or clearly expressed legal requirement to install or construct exit doors in a building under the Ontario Fire Code once the building is constructed. Furthermore, this contention is supported by David Hine, the professional engineer who had been qualified as an expert on the general application of the Ontario Fire Code and the Ontario Building Code to the construction of new buildings and to the retrofitting of older buildings. Specifically, the defendant’s argument is that because s. 2.7.2.2.(1)(a) expressly states that the legal requirement of “locking, latching and other fastening devices shall be such that a door can be readily opened from the inside with no more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism on” would only apply to “Every exit door required by this Code”, then the Ontario Fire Code would not apply to the exit doors in question, as a quantity or number of exit doors are not expressly “required” or needed to be installed or constructed into a building under the Ontario Fire Code, but are only legally “required” to be installed or constructed into a building under the Ontario Building Code.

[66] To begin, s. 1.4.1.1.(1) of the Ontario Fire Code specifically addresses the situation where a particular word, term, or phrase is not defined in the Fire Code or listed in s. 1.4.1.2. of the Fire Code, and provides that, “Definitions of words and phrases used in this Code that are not included in the list of definitions in s. 1.4.1.2. have the meanings that are commonly assigned to them in the context in which they are used, taking into account the specialized use of terms with the various trades and professions to which the terminology applies [emphasis is mine below]:

Non-defined terms

(2) Despite Sentence (1), words and phrases may be assigned other meanings where specifically noted in another provision of this Code.

(1) Statutory Interpretation

[67] In her textbook, Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997), at pp. 24 to 25, Professor Ruth Sullivan outlines 8 major rules of approach to use for interpreting a statutory provision. Furthermore Professor Sullivan noted that when a conflict arises between which approach to utilize, she emphasized that there is no rule that says which approach must prevail, but that the interpreter should adopt the approach that seems most appropriate in the circumstances [emphasis is mine below]:

Arguably, the most important rules of statutory interpretation are the ones that indicate what approach to take and what evidence to consider in resolving an interpretation issue. Although in principle the many possible approaches are not inconsistent with one another, in practice they often suggest or support competing interpretations of a text. When a conflict arises, there is no rule that says which approach must prevail. The interpreter must adopt the approach that seems most appropriate in the circumstances. Set out below are eight major rules of approach:

(a) The ordinary meaning rule tells interpreters to take into account the ordinary meaning of the language to be interpreted. In the absence of a reason to modify or reject it, the ordinary meaning should prevail.

(b) Under the original meaning rule, interpreters must adopt the meaning the legislation had at the time it was first enacted.

(c) The contextual analysis rule tells interpreters to read the legislation in context, including the rest of the Act, the legal context generally, and the external context in which the Act must operate. An interpretation that is consistent with the context is preferred over one that is not.

(d) The purposive analysis rule tells interpreters to take into account the purpose of legislation, including both the purpose of the Act as a whole and of the particular provision to be interpreted. An interpretation that promotes the purpose is preferred over one that does not.

(e) The consequential analysis or absurdity rule tells interpreters to take into account the consequences of adopting an interpretation. Interpretations that lead to beneficial consequences are presumed to be intended, while those that lead to irrational, unjust, or unacceptable consequences are rejected as absurd.

(f) The exclusionary rule tells interpreters that, subject to certain exceptions, they should not look at so-called extrinsic materials to discover the meaning of texts. Recently, however, the exceptions to this rule have all but overtaken the rule. It is now common practice for interpreters to consider not only the historical evolution of a provision but also its pre-enactment history (at least parts of it), the opinions of interpreters who administer the legislation, and the opinions of legal scholars.

(g) Under the shared meaning rule, in reading bilingual legislation, interpreters must take both language versions into account and assign the same meaning to both.

(h) Under the plausible meaning rule, the ordinary meaning may be rejected in favour of an interpretation that better fits the context, or promotes the purpose, or avoids absurd consequences; it may be rejected in favour of an interpretation suggested by extrinsic evidence. However, the interpretation adopted must be a (more or less) plausible reading of the legislative text. This rule imposes what is essentially a linguistic constraint: the interpretation adopted must be one that the language of the text can plausibly bear having regard to grammatical and semantic conventions.

(a) Public welfare legislation is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme.

[68] Furthermore, s. 64 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, which is a statute that governs the interpretation of statutes and regulations enacted by the Ontario Legislature, does expressly state that Ontario statutes and regulations should be interpreted as being remedial and that they shall be given such fair, large, and liberal interpretation as best ensures the attainment of the objects of the statute or the regulation to the extent that the regulation is consistent with the statue under which it had been made:

Rule Of Liberal Interpretation

64(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

Same

(2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.

[69] But more importantly, interpreting a statutory provision for a precise meaning does not simply require looking at the plain or literal meaning of each individual word within the statutory provision in isolation. As the Supreme Court held in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at pp. 40-41, courts should use the “modern principled approach” instead of the “plain meaning approach”, when they are required to interpret or construe the meaning of a particular statutory provision, which requires that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislators who enacted the statutory provision [emphasis is mine below]:

Although much has been written about the interpretation of legislation (see, e.g. Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[70] Furthermore, in her textbook, Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997), at pp. 54 and 134, Professor Ruth Sullivan emphasized that interpreters of legislative text must identify and take into account the purpose of legislation, as well as analyzing the words to be interpreted in context, and that modern legislation is also written in a form that lends itself to purposive analysis [emphasis is mine below]:

The meaning of a legislative text is determined by analysing the words to be interpreted in context. Words are analysed in their immediate context by focusing on the specific provision in which the words appear and attempting to understand the reasons why the legislature has chosen this combination of words, this structure, this punctuation, and so on. Words are also analysed in larger contexts by comparing the wording of the provision to be interpreted with the wording of provisions elsewhere in the same or other Acts and by considering the role of the provision in the scheme to which it belongs.

To achieve a sound interpretation of a legislative text, interpreters must identify and take into account the purpose of legislation. This includes the purpose of the provision to be interpreted as well as larger units - parts, divisions, and the Act as a whole. Once identified, the purpose is relied on to help establish the meaning of the text. It is used as a standard against which proposed interpretations are tested: an interpretation that promotes the purpose is preferred over one that does not, while interpretations that would tend to defeat the purpose are avoided.

[71] In addition, the principles to follow for adopting the proper interpretation or construction of public welfare legislation have been outlined by Sharpe J.A. for the Court of Appeal in Ontario (Ministry of Labour) v. Hamilton (City), [2002] O.J. No. 283, at paras. 16 to 20, which include generously interpreting protective legislation designed to promote public health and safety in a manner that is in keeping with the purposes and objectives of the legislative scheme; that narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided; to interpret a legislative provision in its total context; to consider and take into account all relevant and admissible indicators of legislative meaning; that the interpretation of the statutory provision should comply with the legislative text, promote the legislative purpose, reflect the legislature's intent, and produce a reasonable and just meaning; and that penal legislation, even of the public welfare variety, must also be interpreted in a manner consistent with the procedural rights of the accused. Finally, Sharpe J.A. held that a balance must be struck to arrive at an interpretation that promotes the larger objects of the legislation and at the same time respects the procedural rights of the accused [emphasis is mine below]:

The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided.

This principle has been recognized and applied in several recent decisions of this court. In R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21 (C.A.) at 27, Osborne A.C.J.O. stated:

The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose.

Laskin J.A. adopted the same principles when interpreting the Highway Traffic Act, R.S.O. 1990, c. H.8, s. 84.1 dealing with the hazard of "flying truck wheels" in Ontario (Minister of Transport) v. Ryder Truck Rental Canada Ltd. (2000), 47 O.R. (3d) 171 at 174:

The modern approach to statutory interpretation calls on the court to interpret a legislative provision in its total context. The court should consider and take into account all relevant and admissible indicators of legislative meaning. The court's interpretation should comply with the legislative text, promote the legislative purpose, reflect the legislature's intent, and produce a reasonable and just meaning [Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at p. 131.] The Supreme Court has repeatedly affirmed this approach to statutory interpretation, most recently in R. v. Gladue, [1999] 1 S.C.R. 688 at p. 704, 171 D.L.R. (4th) 385, where Cory and Iacobucci JJ. wrote:

As this Court has frequently stated, the proper construction of a statutory provision flows from reading the words of the provision in their grammatical and ordinary sense and in their entire context, harmoniously with the scheme of the statute as a whole, the purpose of the statute, and the intention of Parliament. The purpose of the statute and the intention of Parliament, in particular, are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act's legislative history and the context of its enactment ...

In Ontario (Workplace Safety and Insurance Board) v. Hamilton Health Sciences Corp. (2000), 51 O.R. (3d) 83 at p. 87, Rosenberg J.A. adopted a similar approach when interpreting the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A:

The starting point for the interpretation of the statutory provisions involved in this appeal is s. 10 of the Interpretation Act, R.S.O. 1990, c. I.11.

Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

(Emphasis added)

By its terms, s. 10 applies to penal statutes. Iacobucci J. considered the application of s. 10 in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193. He held that s. 10 directs the court to not only consider the plain meaning of the specific provisions in question, but the scheme of the Act as a whole, its object and the intention of the legislature.

It remains true, of course, that penal legislation, even of the public welfare variety, must also be interpreted in a manner consistent with the procedural rights of the accused. The accused is entitled to have full and fair notice of the charges and to make full answer and defense to those charges. In the end, a balance must be struck to arrive at an interpretation that promotes the larger objects of the legislation and at the same time respects the procedural rights of the accused.

[72] On the other hand, in Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, [2013] O.J. No. 520, the Court of Appeal for Ontario, at paras. 24, 26, and 27, held that interpreting legislation broadly to accord with the purpose of the legislation does not on the other hand call for a limitless interpretation of their provisions, which could extend the reach of the legislation far beyond what was intended by the legislature [emphasis is mine below]:

Public welfare legislation is often drafted in very broad, general terms, precisely because it is remedial and designed to promote public safety and to prevent harm in a wide variety of circumstances. For that reason, such legislation is to be interpreted liberally in a manner that will give effect to its broad purpose and objective: R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21 (C.A.), at para. 22.

This generous approach to the interpretation of public welfare statutes does not call for a limitless interpretation of their provisions, however.

One of the problems with what is otherwise an understandable approach to the interpretation of public welfare legislation is that broad language, taken at face value, can sometimes lead to the adoption of overly broad definitions. This can extend the reach of the legislation far beyond what was intended by the legislature and afford the regulating ministry a greatly expanded mandate far beyond what is needed to give effect to the purposes of the legislation.

[73] Equally, the notion that legislation containing broad language may be given a restrictive interpretation in order to avoid absurdity in particular circumstances has been recognized by the Supreme Court of Canada as a principle of statutory interpretation: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at pp. 1081-82; and Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727, at para. 109, per Iacobucci J.

(b) The objectives and purposes of the Ontario Fire Code

[74] The Ontario Fire Code is a regulation made under the Fire Protection and Prevention Act, 1997, S.O. 1997, C.4, and consists of a set of minimum requirements respecting fire safety within and around existing buildings and facilities. By virtue of s. 1.2.1.1. of the Ontario Fire Code, the “owner”, as defined under the Fire Code, is responsible for complying with the Fire Code, except where otherwise specified. In addition, the fire department for each municipality enforces the Fire Code. In this case, it is the City of Brampton Fire and Emergency Services who has the responsibility of enforcing the Ontario Fire Code. Moreover, the corporate defendant, 1385127 Ontario Inc., as the principal tenant of the two buildings at 73 Parkhurst Square and 95 Parkhurst Square and who has control over the building, meets the definition of “owner” set out under s. 1.4.1.2. of the Fire Code and is therefore responsible for ensuring that the building at 95 Parkhurst Square complies with the Fire Code.

[75] The objectives or purposes of the Ontario Fire Code as they relate to fire safety are expressly set out in a table in s. 2.2.1.1. of the Fire Code. One of the objectives in respect to fire safety is set out as objective number “OS1(b)” in Table 2.2.1.1. and provides that “An objective of this Code is to limit the probability that, as a result of” … “the condition of specific elements of the building or facility,” … “a person in or adjacent to the building or facility will be exposed to an unacceptable risk of injury due to fire.” Furthermore, objective number “OS1.5” of Table 2.2.1.1. describes particular risks of injury due to fire that are mentioned in the Code which could be caused by certain events and include, “The risks of injury due to fire addressed in this Code are those caused by:” … “persons being delayed in or impeded from moving to a safe place during a fire emergency” [emphasis is mine below]:

SECTION 2.1 APPLICATION

Subsection 2.1.1. Scope and Application

Subsection 2.1.1. Application

2.1.1.1.(1) The objectives set out in Table 2.2.1.1. apply only to the extent that they relate to an alternative solution as provided in Article 1.2.2.1.

(2) The objectives described in this Part apply only as they relate to fire safety.

SECTION 2.2 OBJECTIVES

Subsection 2.2.1. Objectives

2.2.1.1. The objectives of this Code are those listed in Table 2.2.1.1.

TABLE 2.2.1.1.

Objectives Forming Part of Article 2.2.1.1.

Column 1

(2) In Promoting The Goals And Objectives Of The Fire Protection And Prevention Act, 1997 And The Ontario Fire Code And In Protecting The Procedural Rights Of An Accused, What Is The Proper Interpretation For The Meaning Of The Phrase Of “Every Exit Door Required By This Code” In s. 2.7.2.2.(1)(a)?

[76] To promote the purposes or objectives of the Fire Protection and Prevention Act, 1997 and the Ontario Fire Code in respect to fire safety and public safety, the phrase “Every exit door required by this Code” in s.2.7.2.2.(1) must be interpreted broadly and purposively, but at the same time that interpretation must be balanced with the procedural rights of the accused: Ontario (Ministry of Labour) v. Hamilton (City), [2002] O.J. No. 283 (O.C.A.). As such, owners or occupants of buildings should have full and fair notice of what they are required to do or not do under the Ontario Fire Code.

[77] In addition, because the Ontario Fire Code is a regulation enacted under a public welfare statute, s. 64 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, confirms the principle that provisions contained in public welfare legislation have to be given a broad interpretation to achieve the purpose of that legislation. Ergo, a broad and purposive interpretation of the phrase, “Every exit door required by this Code” must be given to achieve the purpose of fire safety.

(a) The meaning of “Every exit door required by this Code”

[78] The dictionary meaning of the word “require” contained in The Concise Oxford Dictionary of Current English, ninth edition (New York: Oxford University Press, 1995), is set out at p. 1169 and provides the following meanings:

require /rɪ’kwᴧɪǝ/ v.tr. 1 need; depend on for success or fulfilment (the work requires much patience). 2 lay down as an imperative (did all that was required by law). 3 command; instruct (a person etc.). 4 order; insist on (an action or measure). 5 (often foll. by of, from, or that + clause) demand of or from a person) as a right). 6 wish to have (is there anything else you require?). 0 requirer

n. requirement n. [middle English from Old French require, ultimately from Latin requirere (as RE-, quaerere ‘seek’)]

[79] Hence, a broad interpretation of the phrase “Every exit door required by this Code”, consistent with the objects of fire safety, public safety, and for reducing the risk of injury, refers to every exit door that has to comply with a legal requirement, stipulation, or measure commanded or so ordered under the Ontario Fire Code.

(b) Should any weight be placed on expert witness David Hine’s opinion on the meaning of the phrase, “Every exit door required by this Code”

[80] As part of their defence, the corporate defendant, 1385127 Ontario Inc., proffered David Hine, a professional engineer in the Province of Ontario, as an expert witness. Prior to David Hine’s testimony and his report being admitted into the trial, the defence had qualified David Hine as an expert witness, based on his experience and education. Hine had received his professional engineering designation in 1988, after receiving a Bachelor of Engineering degree. He also has 30 years of experience in providing Building Code and fire protection engineering services as a private consultant. Moreover, in 1998, David Hine had been appointed to the Ontario Provincial Fire Safety Commission and had participated in or presided over numerous hearings on fire related concerns. However, his appointment to the Commission had ended in 2009.

[81] As such, Hine had been qualified as an expert on general knowledge on the application of the Ontario Building Code and the Ontario Fire Code to the construction of new buildings and for the retrofitting of existing buildings and that his testimony and report (Exhibit #19) would only be allowed as evidence in the trial for weight.

[82] In addition, David Hine had also been offered up by the defence as an expert in the interpretation of the Ontario Fire Code, but the court did not qualify him as an expert witness in that particular area, since s. 2.7.2.2.(1) of the Fire Code is not a technical provision requiring expert knowledge and assistance in deciphering the meaning of technical terms, and that interpreting the legal meaning of provisions of the Ontario Fire Code is within the purview of the judicial officer or trier of law in this proceeding. But more importantly, the present iteration of s. 2.7.2.2.(1) of the Ontario Fire Code that is applicable to the corporate defendants in respect to this proceeding had been amended and had come into force on January 1, 2015, which is at least 5 years after David Hine had last been a member of the Ontario Provincial Fire Safety Commission in 2009, and therefore, Hine would not have had to interpret the meaning of s. 2.7.2.2.(1) of the Ontario Fire Code that is applicable to the present proceedings when he had been participating or presiding over Ontario Provincial Fire Safety Commission hearings.

[83] Furthermore, in respect to the use of expert witness testimony, the trier of fact has discretion on how to utilize the evidence from an expert witness. In R. v. Mohan, [1994] S.C.J. No. 36, at para. 17, the Supreme Court of Canada held that the admission of expert evidence would depend on four criteria:

Admission of expert evidence depends on the application of the following criteria:

(a) relevance;

(b) necessity in assisting the trier of fact;

(d) a properly qualified expert.

[84] Moreover, at p. 190 of their textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), Paciocco and Stuesser commented that expert evidence would be necessary where ordinary people are unlikely to form a correct judgment about a subject-matter without the assistance of an expert. However, they noted that even if the four Mohan criteria for admissibility have been met, the trial judge must still decide whether the expert evidence is sufficiently beneficial to the trial process to warrant its admission, despite the potential harm to the trial process that may flow from the admission of that expert evidence [emphasis is mine below]:

Expert opinion evidence is presumptively inadmissible. It can be admitted only if the party calling it satisfies the following four preconditions to admissibility, on the balance of probabilities:

(a) the expert evidence must be "necessary" in the sense that the expert deals with a subject-matter that ordinary people are unlikely to form a correct judgment about without assistance;

(b) the expert evidence must be logically relevant to a material issue;

(c) the witness must be qualified to offer the opinion in the sense that the expert possesses special knowledge and experience going beyond that of the trier of fact in the matters testified to; and

(d) the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule ("the absence of an exclusionary rule")

Even if these four preconditions are met, the trial judge, as the "gatekeeper," must decide whether the expert evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.

[85] On the other hand, the "ultimate issue rule" no longer applies in regards to receiving expert opinion evidence: Graat v. R. (1982), 31 C.R. (3d) 289 (S.C.C.). Also, at pp. 185-186 in their textbook (6th ed.), Paciocco and Stuesser have emphasized that similar to lay opinion evidence, the "ultimate issue rule" no longer applies to expert opinion evidence as a rule of general application [emphasis is mine below]:

It was once said that "an opinion [whether lay or expert] can never be received when it touches the very issue before the [court]." The concern was that to allow a witness to express her "verdict" on the very issue that the trier of fact had to decide would be "usurping the functions of the jury." Put more simply, there was fear that the trier of fact might be influenced unduly by the opinion, accepting it uncritically regardless of the actual evidence in the case. There is no longer an "ultimate issue" rule that absolutely bars qualified witnesses from offering opinions on the ultimate issues in a case. The ultimate issue rule was put to rest for lay witnesses in Graat v. R. There the accused attempted to use the ultimate issue rule to oppose the admission of lay opinions about his impairment. He argued that impairment was the very issue before the court and that to let witnesses say that his ability to drive was impaired might cause the judge simply to accept their judgment, rather than deciding the case on the evidence. Dickson J. criticized the ultimate issue rule and said that so long as the opinions were not superfluous, they were properly heard. He remarked that witnesses cannot "usurp" the role of the trier of fact because the trier is free to accept all, or part, or none of their testimony. It is the trier of fact who renders the verdict, not the witnesses.

Even though the fear of undue influence is more compelling where the opinion witness is an "expert," it has since been resolved that the ultimate issue rule is also gone for expert witnesses; there is no rule of general application preventing expert witnesses from offering opinions on the ultimate issues in a case. As will be seen later in this chapter, however, the fact that an expert is about to testify on one of the ultimate issues in the case will sometimes be a factor to consider in determining whether the testimony will be admitted. Although the ultimate issue rule itself is gone, two of its cousins survive. The first of those rules provides that a witness cannot offer an opinion on a pure question of domestic law. The second has come to be known as the rule against oath-helping.

[86] However, the law still recognizes that neither a lay or an expert witness may provide an opinion on a pure question of law. But, as Paciocco and Stuesser indicated at p. 186 of their textbook (6th ed.), in the case where the witness's opinion is not on a pure question of law and requires nothing more than a conclusion of fact to resolve, then the witness is permitted to state their opinion on the ultimate issue to be decided [emphasis is mine below]:

No witness, expert or otherwise, can provide an opinion on a pure question of domestic law. The rule is easy to state and to understand -- evidence is to be about questions of fact, not law. The law is for lawyers to argue, not witnesses to offer. It was therefore an error for a trial judge to permit a taxpayer to call a family law lawyer to explain that a clause in a separation agreement was legally enforceable, it was an error for the trial judge to allow an expert witness to interpret the word "appreciates" in section 16 of the Criminal Code, pertaining to the mental disorder defence, and it was wrong for an expert to offer an opinion on whether the accused was "guilty." Occasionally, however, a legal standard does not have its own technical definition and requires nothing more than a conclusion of fact to resolve. For example, the concept of impairment in the offence of impaired driving refers to nothing more than the fact of impairment. Because it holds the same legal meaning as the term would have for laypersons, it is not a pure question of law and there is no problem in allowing witnesses to state opinions on that ultimate issue.

[87] Moreover, in Deemar v. College of Veterinarians of Ontario (2008), 2008 ONCA 600, 298 D.L.R. (4th) 305, at para. 21, the Court of Appeal for Ontario held that the party tendering the proposed expert witness must satisfy the trier that he or she possesses not only the necessary expertise, but the requisite independence as well:

It is up to the trier of fact to qualify a proposed expert witness. The party tendering the proposed expert witness must satisfy the trier that he or she possesses not only the necessary expertise, but the requisite independence as well. For example, the trier may refuse to qualify a person of unquestioned expertise who is closely related to the tendering party.

[88] Also, in their textbook (6th ed.), at p. 200, Paciocco and Stuesser noted that the more conventional view is simply to treat indications of partiality as matters of weight and not admissibility [emphasis is mine below]:

An expert who assumes an advocacy role is not performing the role of an expert witness. Still, the more conventional view is simply to treat indications of partiality as matters of weight, not admissibility. It is also becoming increasingly common internationally for courts to create protocols requiring experts to assert, before testifying, that they understand their role is to assist the court and to present their evidence impartially. It may be that measures such as these, rather than disqualification, will continue to be used to control partiality, but exclusion is a viable option and the qualification requirement is a fitting place to enforce impartiality and independence standards.

[89] In short, the most important factor that should not be overlooked when dealing with expert opinion evidence is that the court still has the final say on legal conclusions and the finding of facts, as well as making the determination on how much weight to place on that expert witness's testimony, including any opinions that they may give.

[90] Ergo, David Hine’s expert opinion would not be relevant to or carry any weight as to the legal interpretation and application of the relevant provisions of the Fire Code, which would encroach on the jurisdiction of the trier of law to decide on questions of law. In other words, David Hine is not qualified as an expert to provide an opinion on a pure question of domestic law.

(i) The corporate defendant relies on expert witness David Hine’s opinion that s. 2.7.2.2.(1) of the Ontario Fire Code does not apply to the exit doors at 95 Parkhurst Square

[91] In his testimony, David Hine had testified that he had been hired by James Hawley to review the permitted hardware on the exit doors for the two buildings at 73 Parkhurst Square and 95 Parkhurst Square. Hine also said he had reviewed Fire Prevention Officer Van Den Hoek’s inspection orders of December 22, 2015, and that he had also done his own review of the emergency exit doors in both of the two buildings. Hine then said he had prepared a report for counsel representing the corporate defendants, which had been admitted into the trial as Exhibit #20. In his opinion, Hine had reasoned that the provisions governing the number of releasing operations or mechanisms that can be on an exit door under s. 2.7.2.2.(1) of the Ontario Fire Code does not apply to the emergency exit doors in question because of the specific wording contained in s. 2.7.2.2.(1)(a), which expressly specifies that those measures apply to “Every exit door required by this Code” and because the Fire Code is maintenance legislation and does not specifically have an expressed provision requiring the installation or construction of a particular quantity or number of exit doors in a building, then no exit doors per se are actually “required” to be installed or constructed in a building under the Fire Code. And because the Fire Code does not contain a provision which dictates the quantity or number of exit doors that are “required” or needed to be installed in the construction of a building, then Hine’s view is that s. 2.7.2.2.(1) of the Fire Code does not apply to the exit doors at 95 Parkhurst Square, since exit doors are not “required” or needed under the Fire Code to be installed in a building after the building is constructed, but that such legal requirement for the quantity or number of exits doors to be installed or needed in the construction of a building falls under the Ontario Building Code.

[92] In particular, Hine reasoned that s. 2.7.2.2.(1)(a) had specifically referred to the one-releasing-mechanism requirement for exit doors only applying to every exit door “required” by the Ontario Fire Code, but as the Ontario Fire Code is a regulation for the maintenance of existing elements making up the building and only regulates door opening mechanisms on exit doors, and because the building exits on the two buildings had been designed to comply with the Ontario Building Code and not the Ontario Fire Code, and because the Ontario Fire Code does not contain supplementary requirements to increase the number of exits for the two existing buildings, then there would be no exit doors that are “required” by the Fire Code in the existing two buildings that are governed by the Ontario Fire Code. In other words, David Hine opines that the phrase, “Every exit door required by this Code” contained in s. 2.7.2.2.(1)(a) of the Fire Code is present in the Code only for the reason to regulate new exit doors that are “required” or needed to be constructed or to be installed in a building and that the phrase is not intended to apply to existing exit doors in a building.

[93] Moreover, Hine had reasoned that since the Fire Code does not permit the addition or deletion or a change to the number or quantity of exit doors after the building has been constructed, then exit doors are not “required” under the Fire Code, so that s.2.7.2.2.(1) of the Fire Code would not apply to the existing exit doors at both 73 Parkhurst Square and 95 Parkhurst Square.

[94] However, David Hine’s opinion is not persuasive and carries no weigh in determining the meaning of the phrase, “Every exit door required by this Code” contained in s. 2.7.2.2.(1)(a). Moreover, his opinion is not based on an industry standard or other industry accepted measures in respect to emergence exits doors in buildings. In addition, David Hine had testified that he did not specifically have any experience in respect to the specific issue concerning the exit doors in the corporate defendant’s buildings. Furthermore, David Hine’s opinion had not been on industry practices in regards to emergency exit doors or on how exit doors are constructed to comply with s. 2.7.2.2.(1) or whether there were alternative measures or methods that could be used to comply with s. 2.7.2.2.(1). But more importantly, David Hine’s opinion had been on his interpretation of the meaning of s. 2.7.2.2.(1), which would infringe upon the court’s role in interpreting statutory provisions, which in this case, does not require specialized or technical knowledge.

[95] Moreover, Hine’s interpretation of the meaning of the phrase, “Every exit door required by this Code” is incorrect and not the proper interpretation that should be given to that phrase. Hine’s interpretation had been narrow, had not considered or taken into context other parts of the Fire Code which does govern the design and installation of exit doors in buildings, and did not accord with or promote the purpose or objects of fire safety and public safety of the Ontario Fire Code, which is public welfare legislation. In addition, Hine did not consider s. 1.2.3.1. of the Fire Code which states that provisions in the Fire Code will apply equally with other provisions in other statutes except where that other provision is in conflict with the Fire Code provision, then the provision which is more stringent in respect to fire safety would prevail. Moreover, Hine relies on the application of the Ontario Building Code to the exit doors mentioned in s. 2.7.2.2.(1)(a), but s. 2.7.2.2.(1) does not expressly make any mention or reference to the Ontario Building Code restricting the application of s. 2.7.2.2.(1) of the Fire Code to exit doors, nor does either the Fire Code or the Ontario Building Code expressly state that the Building Code has exclusive jurisdiction over exit doors in buildings.

[96] In addition, David Hine’s view that the Fire Code does not permit the addition or deletion or a change to the number or quantity of exit doors after the building has been is not correct, as s. 22(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, permits a Fire Safety Inspector to issue an order under s. 21(1)(b) of that Act, which requires the owner of a building to make structural and other repairs or alterations, including material alterations, to the buildings or structures that was constructed in compliance with the Building Code and that continues to comply with that Building Code as it existed at the time of construction, unless the order is necessary to ensure compliance with the provisions of the Fire Code relating to the retrofitting of existing buildings. This means that a Fire Safety Inspector could issue an order in respect to the design, installation, and construction of exit doors after a building has been constructed if it is necessary ensure compliance with the provisions of the Fire Code relating to the retrofitting of existing buildings [emphasis is mine below]:

(b) to make structural and other repairs or alterations, including material alterations, to the buildings or structures;

[97] Ergo, despite David Hine being qualified as an expert witness, his opinion is not persuasive nor does it carry any weight that s. 2.7.2.2.(1) of the Ontario Fire Code does not apply to the exit doors at 95 Parkhurst Square.

(c) The Phrase, “Every exit door as required by this Code” In s. 2.7.2.2.(1)(a) That Applies To The Present Proceeding Had Been Added to the Fire Code On January 1, 2015

(i) The previous version of s. 2.7.2.2.(1)(a) as it was worded in the Ontario Fire Code (O. Reg. 213/07) for the period from November 21, 2007 (when it came into force) to December 31, 2014:

[98] The previous version of s. 2.7.2.2.(1)(a) as it was worded in the Ontario Fire Code (O. Reg. 213/07) for the period from November 21, 2007 (when it came into force) to December 31, 2014, had used the phrase. “every required exit door”:

2.7.2.2.(1) Except as permitted in Sentences (2) and (3), locking, latching and other fastening devices on

(a) every required exit door, and

(b) every door that opens into or is located within

(i) a public corridor,

(ii) a facility that provides access to exit from a suite, or

(iii) a facility that provides access to exit from a room serving patients or residents in a care or detention occupancy

shall be such that the door can be readily opened to permit egress without requiring keys, special devices or specialized knowledge of the door opening mechanism.

(2) Except for a door in an elementary or secondary school or a door leading directly from a high hazard industrial occupancy, a door in an access to exit or an exit door may be equipped with an electromagnetic locking device that is approved or complies with the Building Code.

(3) An egress door that serves a contained use area or impeded egress zone may be equipped with a locking device that can be released either locally or remotely provided

(a) local locking devices are operable by a key from both sides of the door,

(b) controls for the remote release of the door locking devices are located in an area readily available to security personnel, and

(c) electrical release devices are designed to operate on emergency power and are also manually operated by security personnel.

(4) Sentence (1) does not apply in rapid transit stations that comply with the Building Code.

(ii) Section 2.7.2.2.(1)(a) As It Was Worded In The Ontario Fire Code (O. Reg. 213/07) For The Period From January 1, 2015 To March 18, 2018:

[99] The phrase, “every required exit door” under s. 2.7.2.2.(1)(a) of the Ontario Fire Code for the period from November 2, 2007 to December 14, 2014 was amended and replaced by the current phrase, “Every exit door required by this Code”, that is applicable to the corporate defendants at the relevant time. The present phrase, “Every exit door required by this Code”, began its use in the Fire Code after it was part of amendments to the Fire Code introduced by s. 31 of the Technical Changes to the Fire Code Regulation (Fire Protection And Prevention Act, 1997), O. Reg. 256/14, and had come into force on January 1, 2015 [emphasis is mine below]:

ONTARIO REGULATION 256/14

made under the

FIRE PROTECTION AND PREVENTION ACT, 1997

Made: December 9, 2014 Filed: December 10, 2014 Published on e-Laws: December 10, 2014 Printed in The Ontario Gazette: December 27, 2014

AMENDING O. REG. 213/07

(FIRE CODE)

Article 2.7.2.2. of Division B of the Regulation is revoked and the following substituted:

Requirements for locking, latching and fastening devices

(a) every exit door required by this Code, and

(b) every door that is in an access to exit and that opens into or is located within

(i) a public corridor,

(ii) a facility that provides access to exit from a suite, or

(iii) a facility that provides access to exit from a room serving patients or residents in a care occupancy or care and treatment occupancy.

(2) A door in an access to exit or an exit door may be equipped with an electromagnetic locking device that is approved or complies with the Building Code, unless the door is located in an elementary or secondary school or is an egress or exit door that serves a high hazard industrial occupancy.

(3) An egress door that serves a contained use area or impeded egress zone may be equipped with a locking device that can be released either locally or remotely in accordance with Sentences (4) to (6).

(4) A locking device with a local release permitted by Sentence (3) shall be capable of being unlocked with a key from both sides of the door.

(5) The controls for the remote release of a locking device permitted by Sentence (3) shall be in an area that is readily accessible to supervisory staff.

(6) A locking device permitted by Sentence (3) that is electrically operated shall be

(a) designed to operate on emergency power, and

(b) capable of being manually unlocked by supervisory staff.

(7) Sentence (1) does not apply in rapid transit stations that comply with the Building Code.

Commencement

This Regulation comes into force on January 1, 2015.

[100] Another reason for not being persuaded by the corporate defendant’s argument that s. 2.7.2.2.(1) does not apply to the exit doors in question because an exit door is not “required” under the Ontario Fire Code, is that the Ontario Fire Code does specifically and expressly mention the term “exit door” or specific measures related to exit doors 15 times in the Fire Code. These specific provisions in respect to exit doors are found in ss. 2.7.1.6.(6); 2.7.2.1.(1); 2.7.2.1.(2)(b); 2.7.2.1.(2)(e); 2.7.2.2.(1)(a); 2.7.2.2.(2); 9.2.3.14.; 9.4.2.7.(3)(b); 9.4.3.1.(3); 9.4.3.4.(1); 9.5.3.4.; 9.5.3.5.(1); 9.5.4.1.(2)(b); 9.6.3.5.; and 9.9.3.8. of the Fire Code [emphasis is mine below]:

2.7.1.6.(6) The distance of travel to an exit door by an aisle shall not be greater than 30 m, except in a sprinklered floor area where the distance of travel shall not be greater than 45 m.

2.7.2.1.(2)(b) every exit door from a floor area containing an assembly occupancy having an occupant load of more than 100 persons,

2.7.2.1.(2)(e) every exit door from a floor area containing a high hazard industrial occupancy.

2.7.2.2.(1)(a) every exit door required by this Code, and

2.7.2.2.(2) A door in an access to exit or an exit door may be equipped with an electromagnetic locking device that is approved or complies with the Building Code, unless the door is located in an elementary or secondary school or is an egress or exit door that serves a high hazard industrial occupancy.

9.2.3.14. In buildings over 2 storeys in building height, any part of an exit ramp or stair that continues past the exit door at ground level to a basement shall be clearly marked by a sign indicating that it does not lead to an exit.

9.4.2.7.(3)(b) the floor area is served by exterior exit doors leading directly to the outside.

9.4.3.1.(3) Where a bedroom or a compartment containing related rooms is served by an exit door leading directly to the outside or to an exterior passageway, a doorway leading to an interior corridor served by one exit is deemed to be in compliance with Sentences (1) and (2).

9.4.3.4.(1) Each exit door shall open in the direction of exit travel and swing on its vertical axis.

9.5.3.4. Where the occupant load in a building exceeds 24 persons or there are more than 10 dwelling units, each exit door, except those serving a single dwelling unit, shall open in the direction of exit travel and swing on its vertical axis.

9.5.3.5.(1) Each exit door, except for the main entrance to a building, dwelling unit or suite, shall have an exit sign when the exit serves

9.5.4.1.(2)(b) a manual pull station at each exterior exit door for the actuation of the smoke alarms in Clause (a).

9.6.3.5. Each exit door, except those serving a single dwelling unit, shall open in the direction of exit travel and swing on its vertical axis.

9.9.3.8. Each exit door and door providing an access to exit shall be in conformance with Subsection 2.7.2.

(e) Subsection 2.7.2.2.(1) is contained in s. 2.7.2. of the Ontario Fire Code, which specifies how exit doors are to be designed and installed for the purposes of fire safety

[101] In addition, the phrase, “Every exit door required by the Code” is contained in s. 2.7.2., in respect to measures governing locks, latches, or other devices that are used as door releasing hardware, which contains expressed measures about what is legally required for the design and the installation of exit doors in buildings. Specifically, s. 2.7.2.1.(1) provides for how exit doors are to be designed and installed so that when the latch to an exit door is released then the exit door would open in the direction of exit travel from the building under a force of not more than 90 Newtons of force applied at the knob or other latch releasing device [emphasis is mine below]:

[102] Ergo, according to s. 2.7.2.1.(1) of the Ontario Fire Code, every exit door in a building is legally “required” or mandated to be designed and installed so that they will open in the direction of exit travel when the knob or other latch releasing device is used to release the exit door. Moreover, because the Fire Code expressly mentions that “every exit door” has to be designed and installed in a particular way, then every exit door is “required” or has to legally comply with the legal stipulations, measures, or requirements for such exit doors under the Ontario Fire Code, and as such, the measures governing or limiting the number or the use of locks, latches, and other devices on exit doors under s. 2.7.2.2.(1) do indeed apply to every exit door that is legally mandated under s. 2.7.2.1.(1) of the Ontario Fire Code to be “designed and installed” in a building so that they will open in the direction of exit travel when the knob or other latch releasing device is used to release the exit door.

[103] Ergo, it had been clearly the intention of the Ontario Legislature that the Ontario Fire Code by the express use or mention of the term “exit door” or by virtue of expressed measures stipulated or required for exit doors in the Fire Code for the purposes of fire safety and public safety, that the Fire Code indeed would be applicable to all exit doors in the corporate defendant’s buildings.

(f) The Ontario Fire Code specifically refers to the Ontario Building Code as applying to specific measures

[104] In addition, the Ontario Fire Code does specifically refer to the Ontario Building Code when the Building Code provisions are to specifically apply to a measure described by a provision in the Fire Code, such as contained in s. 9.6.3.6. [emphasis is mine below]:

Exit signs

9.6.3.6.(1) Exit signs shall be installed in accordance with Subsection 3.4.5. of the 1990 Building Code.

(2) Each door opening into an exit stairway from a public corridor shall be identified on the stairway side with the number assigned to that floor in accordance with Article 3.4.6.17. of the 1990 Building Code.

[105] Hence, if the Ontario Legislature had wanted the Ontario Building Code to have exclusive jurisdiction over emergency exit doors in a building then it would have specifically expressed this, as it had done so in ss. 9.6.3.6. and for other measures in the Fire Code. Accordingly, as the Ontario Fire Code does not specifically refer to the application of the Ontario Building Code to the “design and installation” of exit doors in a building, then the Ontario Building Code does not have exclusive jurisdiction in respect to the regulation of exit doors in a building.

(g) The Ontario Fire Code has concurrent jurisdiction with the Ontario Building Code over the design and installation of emergency exit doors in buildings

[106] Furthermore, the corporate defendant’s contention that the one-releasing-operation measure for exits doors contained in s. 2.7.2.2.(1) of the Ontario Fire Code does not apply to the exit doors at 95 Parkhurst Square because the requirement to install or construct exits doors in a building is governed by the Ontario Building Code is not correct or persuasive, since the measures related to door releasing hardware on exit doors contained in the Building Code and the measures related to door releasing hardware on exit doors contained in the Ontario Fire Code have concurrent jurisdiction. This concurrent jurisdiction is illustrated by the use of nearly the exact or identical statutory provisions related to the “design and installation” of exit doors for buildings under the Building Code and for the “design and installation” of exit doors for buildings under the Fire Code.

[107] Specifically, the statutory provisions in respect to the “design and installation” of exit doors set out in ss. 3.4.6.16.(3) and 9.9.6.8(1) of the Building Code contain virtually the same identical provisions in respect to the “design and installation” of exit doors that are set out in 2.7.2.1.(1) of the Ontario Fire Code [emphasis is mine below]:

Building Code:

3.4.6.16(3) Except as required by Sentence 3.8.3.3.(7), every exit door shall be designed and installed so that, when the latch is released, the door will open under a force of not more than 90 N, applied at the knob or other latch releasing device.

9.9.6.8(1) Except as required by Sentence 3.8.3.3.(7), every exit door, except doors serving a single dwelling unit, shall be designed and installed so that when the latch is released the door will open in the direction of exit travel under a force of not more than 90 N applied to the door release hardware.

Fire Code:

[108] Furthermore, the statutory provisions in respect to door release hardware set out in s. 3.4.6.16.(1) of the Building Code contain nearly the same identical provisions in respect to door release hardware for exit doors that are set out in s. 2.7.2.2(1) of the Ontario Fire Code.

Building Code:

3.4.6.16(1) Except for dwelling units, except for devices on doors serving a contained use area or an impeded egress zone designed to be released in conformance with Article 3.3.1.12., and except as permitted by Sentence (4), locking, latching and other fastening devices on every exit door shall permit the door to be readily opened from the inside with not more than one releasing operation and without requiring keys, special devices or specialized knowledge of the door opening mechanism.

Fire Code:

(a) Every exit door required by this Code …

[109] Moreover, the objectives related to fire safety set out in Table 2.2.1.1. provided for under s. 2.2.1.1. of the Building Code are also identical to the objectives for fire safety set out under Table 2.2.1.1. provided for under s. 2.2.1.1. of the Fire Code

[110] Ergo, neither the Building Code nor the Fire Code expressly claim exclusive jurisdiction over the design and installation of exit doors in buildings.

(h) The Ontario Fire Code is legislation that maintains the fire safety and public safety purposes of exits doors that were originally installed in a building so that owners cannot be change the fire safety requirements or purposes of exit doors

[111] In addition, the Ontario Fire Code, is public welfare legislation that maintains the fire safety requirements or purposes of the “design and installation” of exit doors under the Ontario Building Code, so that owners of the building cannot subsequently change the elements of an exit door after passing Building Code inspections so as to no longer comply with the legal requirements for exits doors to meet its fire safety and public protection objectives. Moreover, because the Ontario Fire Code clearly expresses legal requirements for the maintenance of the design and installation of exits doors for fire protection and public safety purposes, then the inclusion of the legal requirements to maintain the life safety systems in buildings for fire safety purposes of exit doors in buildings within the Ontario Fire Code further demonstrates that s. 2.7.2.2.(1) of the Fire Code is applicable to the exit doors at 95 Parkhurst Square.

(i) Fire prevention officers or inspectors are legally permitted to issue orders under s. 21(1) of the Fire Protection and Prevention Act, 1997, requiring structural repairs or alterations to a building, structure or premises that was constructed in compliance with the Ontario Building Code, if the order is necessary to ensure compliance with the provisions of the Ontario Fire Code

[112] In addition, s. 22(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, provides for the situation where a fire prevention officer or inspector may issue an order under s. 21(1)(b) of that Act that requires structural repairs or alterations to a building, structure or premises that was constructed in compliance with the Ontario Building Code that is necessary to ensure compliance with the provisions of the Ontario Fire Code relating to the retrofitting of existing buildings. But more important, s. 22(2) of the Fire Protection and Prevention Act, 1997 permits a fire prevention officer or inspector to issue an order under s. 21(1) of that Act requiring “repairs, alterations, or installations” for the purposes of complying with the Ontario Fire Code, and that any “repairs, alterations or installations” that are carried out in compliance with that order is deemed under s. 22(2) of the Fire Protection and Prevention Act, 1997 to not be a contravention of the Ontario Building Code [emphasis is mine below]:

Limitation on orders relating to structural repairs

Repairs, etc., deemed not to contravene Building Code

[113] Ergo, s. 22(2) of the Fire Protection and Prevention Act, 1997 is further indication that s. 2.7.2.2.(1) of the Ontario Fire Code applies to the exit doors at 95 Parkhurst Square, since a fire prevention officer or inspector may issue an order under s. 21(1) of the Fire Protection and Prevention Act, 1997 requiring repairs, alterations, or installations for the purposes of complying with the Ontario Fire Code, which Fire Prevention Officer Van Den Hoek did on December 22, 2015, when she issued an inspection order pursuant to s. 21(1)(g) of the Fire Protection and Prevention Act, 1997 to remove additional locks or latches from all the exit doors at 95 Parkhurst Square that had been in violation of s. 2.7.2.2.(1) of the Ontario Fire Code. And more importantly, under s. 22(2) of the Fire Protection and Prevention Act, 1997, such “repairs, alterations or installations” in respect to those exit doors at 95 Parkhurst Square are deemed to not contravene the Ontario Building Code.

(j) Section 1.2.3.1. of the Ontario Fire Code has expressly provided that the provisions of the Fire Code will prevail over any other provisions in other legislation that is in conflict with provisions of the Ontario Fire Code where the Fire Code has more stringent requirements

[114] Furthermore, s. 1.2.3.1. of the Ontario Fire Code expressly states that where a requirement of an applicable Act or regulation conflicts with a requirement of the Fire Code, then the more stringent requirement prevails, unless the more stringent requirement is in the Fire Code, in which the Fire Code expressly states that the requirement of the Fire Code prevails. Moreover, s. 1.3.1.1 of the Fire Code states that only certain farm buildings used for farming purposes are exempt from the requirements of the Ontario Fire Code [emphasis is mine below]:

Compliance with other applicable law

1.2.3.1. Compliance with this Code does not relieve the owner from compliance with other applicable Acts and regulations, and, where a requirement of an applicable Act or regulation conflicts with a requirement of this Code, the more stringent requirement prevails, unless the more stringent requirement is in this Code and this Code says that the requirement of the other Act or regulation prevails.

Exemption for Farms

1.3.1.1. A farm building with an occupant load of not more than one person per 40 m2 of floor area during normal use and other premises on a farm used for farming purposes are exempt from the requirements of this Code.

[115] Ergo, since the building at 95 Parkhurst Square is not on a farm then the requirements of the Fire Code are applicable to the corporate defendant’s building at 95 Parkhurst Square. But more significantly, there is no expressed provision in the Ontario Fire Code which states that the Ontario Building Code overrides any provision in the Ontario Fire Code, unless a Building Code provision would be in conflict with a provision in the Fire Code, then if the provision in the Building Code is more stringent than the provision in the Fire Code with respect to fire safety, the Building Code provision would prevail. In the present case, the Building Code provision in respect to the door release mechanisms for exit doors under s. 3.4.6.16(1) is not more stringent than the Fire Code provision in respect to the door release mechanisms under s. 2.7.2.2.(1) for exit doors, and as such s.2.7.2.2.(1) does indeed apply to the exit doors at 95 Parkhurst Square.

(k) Conclusion on whether s. 2.7.2.2.(1) of the Ontario Fire Code applies to the emergency exit doors at 95 Parkhurst Square

[116] In using a broad and purposive interpretation of the phrase, “Every exit door required by this Code”, contained in s. 2.7.2.2.(1)(a), that would accord with the fire safety and public safety purposes of the Ontario Fire Code and the Fire Protection and Prevention Act, 1997, then s. 2.7.2.2.(1) of the Ontario Fire Code is indeed applicable and does govern the emergency exit doors at both 73 Parkhurst Square and 95 Parkhurst Square. In short, if there is an expressed legal requirement, stipulation, or measure set out in the Ontario Fire Code for which every exit door has to comply with, then every exit door is “required” by the Fire Code to comply with that specifically expressed legal measure or legal requirement.

[117] On the other hand, the corporate defendant’s argument that the measure related to locks, latches or other devices on exit doors does not apply to the exit doors at 95 Parkhurst Square is a narrow interpretation of the meaning of the phrase, “Every exit door required under the Code”, and does not consider the term “required” in the proper context of the Ontario Fire Code. Nor does the corporate defendant’s interpretation of the phrase take into consideration s. 2.7.2. of the Fire Code which governs the “design and installation” of all exit doors in buildings so that all exit doors are mandated to open in a particular way for the purposes of fire safety and the protection of the public. Nor had it consider s. 2.7.2.2.(1) is a subsection of that “design and installation” mandate contained s. 2.7.2. of the Ontario Fire Code that requires “every exit door” to comply with specific and expressed legal measures or legal requirements mandated under that part or section of the Fire Code for the purposes of public protection and fire safety.

[118] Accordingly, the meaning of the phrase “Every exit door required under this Code” in s. 2.7.2.2.(1)(a) is not restricted to the narrow meaning for that phrase as contended by the corporate defendant, that “exit doors” or the number of exit doors are only necessary or needed in a building as dictated by the provisions of the Ontario Building Code, as well as for the reason that exit doors are not needed or necessary to be installed or constructed in a building under the provisions of the Ontario Fire Code, nor that the Ontario Fire Code dictates or governs the number of exit doors that must be installed or constructed in a building so that the number of exit doors cannot be increased by a provision under the Ontario Fire Code, and as such, s. 2.7.2.2.(1) would not apply to existing exit doors. Therefore, in light of the “design and installation” provisions for exit doors contained in s. 2.7.2.1.(1) of the Fire Code and the “design and installation” provisions for exit doors contained in ss. 3.4.6.16.(3) and 9.9.6.8(1) of the Building Code, and in light of s. 1.2.3.1. of the Fire Code which deals with the situation where there is a conflict between provisions in the Fire Code with other provisions contained in other statutes, it is evident that both the Fire Code and the Building Code have concurrent jurisdiction over exit doors in buildings and that the Building Code does not have exclusive jurisdiction over the regulation of or over the “design and installation” of exit doors in buildings.

[119] On the other hand, if the corporate defendant’s argument were sound, then the Ontario Legislature would not have expressly mentioned or used the term “exit door” or enact measures regulating exit doors in the Ontario Fire Code at least 15 times, if the Ontario Legislature had not intended that the necessary fire safety elements, devices, or mandatory measures stipulated or spelled out for exit doors in the Fire Code would apply to every exit door in a building. Ergo, the door release hardware provisions contained in s. 2.7.2.2.(1) of the Fire Code do indeed apply to the exit doors at 95 Parkhurst Square.

(B) DID THE PROSECUTION PROVE BEYOND A REASONABLE DOUBT THAT THE CORPORATE DEFENDANT DID COMMIT THE ACTUS REUS OF THE OFFENCE OF “FAILING TO COMPLY WITH AN INSPECTION ORDER DATED DECEMBER 22, 2015” BY FAILING TO REMOVE ALL ADDITIONAL LOCKS AND LATCHES ON ALL EMERGENCY EXIT DOORS IN THE BUILDING LOCATED AT 95 PARKHURST SQUARE?

[120] In the circumstance where s. 2.7.2.2.(1) of the [

Brampton (City) v. 1385127 Ontario Inc., 2019 ONCJ 193

Case Summary

1. INTRODUCTION

2. ADDITIONAL BACKGROUND

(a) Inspection Orders in respect to 95 Parkhurst Square (file I.D. No. 60232)

(b) The Building At 95 Parkhurst Square

(c) Exit Door #7 At 95 Parkhurst Square

(d) The Appeal Of The Inspection Orders To The Ontario Fire Marshal’s Office

(e) James Hawley’s Conversation With Yosh Imahori Of The Ontario Fire Marshal’s Office

3. THE CHARGES

4. APPLICABLE LAW

5. ISSUES

6. ANALYSIS AND DECISION

(A) DOES s. 2.7.2.2.(1) OF THE ONTARIO FIRE CODE APPLY TO THE EMERGENCY EXIT DOORS IN THE BUILDING LOCATED AT 95 PARKHURST SQUARE?

(1) Statutory Interpretation

(a) Public welfare legislation is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme.

(b) The objectives and purposes of the Ontario Fire Code

(a) The meaning of “Every exit door required by this Code”

(b) Should any weight be placed on expert witness David Hine’s opinion on the meaning of the phrase, “Every exit door required by this Code”

(i) The corporate defendant relies on expert witness David Hine’s opinion that s. 2.7.2.2.(1) of the Ontario Fire Code does not apply to the exit doors at 95 Parkhurst Square

(c) The Phrase, “Every exit door as required by this Code” In s. 2.7.2.2.(1)(a) That Applies To The Present Proceeding Had Been Added to the Fire Code On January 1, 2015

(i) The previous version of s. 2.7.2.2.(1)(a) as it was worded in the Ontario Fire Code (O. Reg. 213/07) for the period from November 21, 2007 (when it came into force) to December 31, 2014:

(ii) Section 2.7.2.2.(1)(a) As It Was Worded In The Ontario Fire Code (O. Reg. 213/07) For The Period From January 1, 2015 To March 18, 2018:

(e) Subsection 2.7.2.2.(1) is contained in s. 2.7.2. of the Ontario Fire Code, which specifies how exit doors are to be designed and installed for the purposes of fire safety

(f) The Ontario Fire Code specifically refers to the Ontario Building Code as applying to specific measures

(g) The Ontario Fire Code has concurrent jurisdiction with the Ontario Building Code over the design and installation of emergency exit doors in buildings

(h) The Ontario Fire Code is legislation that maintains the fire safety and public safety purposes of exits doors that were originally installed in a building so that owners cannot be change the fire safety requirements or purposes of exit doors

(j) Section 1.2.3.1. of the Ontario Fire Code has expressly provided that the provisions of the Fire Code will prevail over any other provisions in other legislation that is in conflict with provisions of the Ontario Fire Code where the Fire Code has more stringent requirements

(k) Conclusion on whether s. 2.7.2.2.(1) of the Ontario Fire Code applies to the emergency exit doors at 95 Parkhurst Square

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 4

1. INTRODUCTION

2. ADDITIONAL BACKGROUND

(a) Inspection Orders in respect to 95 Parkhurst Square (file I.D. No. 60232)

(b) The Building At 95 Parkhurst Square

(c) Exit Door #7 At 95 Parkhurst Square

(d) The Appeal Of The Inspection Orders To The Ontario Fire Marshal’s Office

(e) James Hawley’s Conversation With Yosh Imahori Of The Ontario Fire Marshal’s Office

3. THE CHARGES

4. APPLICABLE LAW

5. ISSUES

6. ANALYSIS AND DECISION

(A) DOES s. 2.7.2.2.(1) OF THE ONTARIO FIRE CODE APPLY TO THE EMERGENCY EXIT DOORS IN THE BUILDING LOCATED AT 95 PARKHURST SQUARE?

(1) Statutory Interpretation

(a) Public welfare legislation is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme.

(b) The objectives and purposes of the Ontario Fire Code

(a) The meaning of “Every exit door required by this Code”

(b) Should any weight be placed on expert witness David Hine’s opinion on the meaning of the phrase, “Every exit door required by this Code”

(i) The corporate defendant relies on expert witness David Hine’s opinion that s. 2.7.2.2.(1) of the Ontario Fire Code does not apply to the exit doors at 95 Parkhurst Square

(c) The Phrase, “Every exit door as required by this Code” In s. 2.7.2.2.(1)(a) That Applies To The Present Proceeding Had Been Added to the Fire Code On January 1, 2015

(i) The previous version of s. 2.7.2.2.(1)(a) as it was worded in the Ontario Fire Code (O. Reg. 213/07) for the period from November 21, 2007 (when it came into force) to December 31, 2014:

(ii) Section 2.7.2.2.(1)(a) As It Was Worded In The Ontario Fire Code (O. Reg. 213/07) For The Period From January 1, 2015 To March 18, 2018:

(d) The term “exit door” or measures related to exit doors are expressly mentioned 15 times in the Ontario Fire Code

(e) Subsection 2.7.2.2.(1) is contained in s. 2.7.2. of the Ontario Fire Code, which specifies how exit doors are to be designed and installed for the purposes of fire safety

(f) The Ontario Fire Code specifically refers to the Ontario Building Code as applying to specific measures

(g) The Ontario Fire Code has concurrent jurisdiction with the Ontario Building Code over the design and installation of emergency exit doors in buildings

(h) The Ontario Fire Code is legislation that maintains the fire safety and public safety purposes of exits doors that were originally installed in a building so that owners cannot be change the fire safety requirements or purposes of exit doors

(j) Section 1.2.3.1. of the Ontario Fire Code has expressly provided that the provisions of the Fire Code will prevail over any other provisions in other legislation that is in conflict with provisions of the Ontario Fire Code where the Fire Code has more stringent requirements

(k) Conclusion on whether s. 2.7.2.2.(1) of the Ontario Fire Code applies to the emergency exit doors at 95 Parkhurst Square

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 4