Norquay Campus Properties Ltd. v. Chatham-Kent Fire Services

2019 ONSC 6888

DIVISIONAL COURT FILE NO.: 35/18

DATE: 20191128

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Pierce, Ducharme, and Tausendfreund, JJ.

BETWEEN:

Norquay Campus Properties Ltd.

Appellant

– and –

Chatham-Kent Fire Services

Respondent

J. Hoffer, for the Appellant

S. Davis, D. Taylor and N. Loeb, for the Respondent

HEARD: November 27, 2019

REASONS FOR JUDGMENT

Ducharme J.

Introduction

[1] This is a statutory appeal arising out of a decision of the Fire Safety Commission finding the Respondent Fire Marshal had the authority to issue a Guideline, that the Guideline was not treated as a regulation and that an inspection order issued by the Respondent Chatham-Kent Fire Services was necessary to ensure fire safety. The Appellant requests the following:

(a) an Order rescinding the Fire Safety Commission’s Decision No. 10850 dated August 22, 2018;

(b) an Order rescinding the Review Order of the Fire Marshal Delegate, Michael Ng dated June 7, 2017;

(c) an Order rescinding the Inspection Order of Scott Sproule dated November 29, 2019;

(d) an Order declaring that the nature, effect and implementation of the Technical Guideline TG-02-2016 titled “Fire Alarm Audibility in Existing Residential Occupancies” is ultra vires the Fire Marshal;

(e) an Order that the subject matter of the Technical Guideline is within the exclusive jurisdiction of the Minister and is ultra vires the Fire Marshal;

(f) an Order that the Fire Inspector unlawfully fettered his discretion in ordering the Appellant to comply with the Guideline; and

(g) in the alternative, if the Guideline is determined to be intra vires the Fire Marshal and that the enforcement of same by the Respondent Fire Service does not contravene the provisions of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 and the Fire Code, O. Reg. 213/07, an Order extending the time for the Appellant to correct the contraventions noted in the Fire Marshal Delegate’s Orders.

[2] Both Respondents request the appeal be dismissed with costs.

Factual Background

[3] The Appellant owns and operates 201 Campus Parkway, a three-storey walk up apartment in Chatham, Ontario (the “Building”). The Building was constructed by the Appellant in 1985. As the Building was constructed before 1998, there is no specific audibility requirement for fire alarms set by regulation. For buildings constructed after 1998, the required sound pressure level in a sleeping room with the door closed is 75 dBA or higher. A licensed testing company attends the Building on an annual basis to inspect fire safety, including fire alarms, fire cabinets, extinguishers and other equipment.

[4] In November 2016, Inspector Scott Sproule of the Chatham-Kent Fire Services went to the building. Inspector Sproule inspected the audibility of fire alarms in the Building using Technical Guideline TG-02-2016 (the “Guideline”). The Guideline was originally developed in 1998 (TG-02-1998) to provide guidance for fire departments on the audibility of fire alarms in residential occupancies because the Fire Code and the Building Code, O. Reg. 332/12 were silent on the issue. The Guideline was amended in 2016 but the 1998 version and the 2016 version are essentially the same. The Guideline recommends that fire alarms in residential units have an audibility rating of at least 60 dBA. The Guideline outlines four ways that an alarm system can provide an acceptable audibility. When an alarm system fails to satisfy acceptable audibility levels, the Guideline prescribes corrective actions to bring audibility levels to an acceptable level.

[5] Inspector Sproule testified before the Commission that his inspection of the Building in November 2016 was done in accordance with the technical instructions in the Guideline. According to the recordings made of the audibility readings conducted by Inspector Sproule, none of the devices used to measure sound levels ever recorded a sound level greater than 47.3 dBA. Most of the measurements during the active alarm were in the mid-30s to low 40s dBA. As a result, Inspector Sproule issued an Inspection Order on November 29, 2016 that required the Appellant to remedy the audibility levels. The Appellants requested a review of the Inspection Order by the Fire Marshal. In its Review Order of June 7, 2017, the Fire Marshal confirmed the Inspection Order. The Appellant then appealed to the Fire Safety Commission (the “Commission”) on June 21, 2017.

[6] At a case conference before the Commission in August 2017, the Appellant raised the issue of whether the Guideline was outside the jurisdiction of the Fire Marshal. The Appellant sought a stay of proceedings before the Commission to permit the Divisional Court to determine the jurisdiction issue and the hearing was adjourned. The Divisional Court issued its decision on April 12, 2018, finding that the Appellant’s application was premature because the Commission had the jurisdiction to determine this question of law.

[7] The Commission released its decision August 22, 2018. The Commission found the Fire Marshal had jurisdiction to issue the Guideline; the Chatham-Kent Fire Services used the Guideline appropriately and not as a regulation; and the measures contained in the inspection order, as confirmed in the Review Order of the Fire Marshal, were necessary to ensure fire safety in the Building.

Issues on the Appeal

[8] The Appellant raises the following issues:

1. What is the appropriate standard of review?

2. Did the Commission err in finding that the Fire Marshal has the statutory authority to prescribe standards and regulate fire protection equipment and systems through its statutory power to issue guidelines?

3. Did the Commission err in concluding that the Guideline is discretionary and not mandatory?

4. Did Inspector Sproule fetter his discretion when he ordered the Appellant to comply with the Guideline?

[9] The Respondents raise no additional issues.

Court’s Jurisdiction

[10] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 27(1) of the FFPA which provides:

Appeal to the Divisional Court

27 (1) Any party to the hearing before the Fire Safety Commission under section 26 may appeal from the decision of the Commission to the Divisional Court in accordance with the rules of court on any question that is not a question of fact alone.

[11] Section 27(3) of the FPPA outlines the following powers of the Divisional Court on appeal:

Powers of court on appeal

(3) The judge who hears an appeal under this section may,

(a) refer the matter back to the Commission for reconsideration by the Commission;

(b) confirm or alter the decision of the Commission; or

(c) make such other order as he or she sees fit, including an order that the Fire Marshal or an inspector do any act he or she is authorized to do under this Act.

Issue 1: Standard of Review

[12] The Appellant submits that the appropriate standard of review is correctness because the question on appeal is one of jurisdiction and therefore a pure question of law. We disagree. In Canadian Human Rights Tribunal v. Canada (A.G.), 2018 SCC 31 at para. 31, the Supreme Court stated that true questions of vires are “confined to instances where the decision maker must determine whether it has the authority to enter into the inquiry before it.” But in this case, the Divisional Court ruled that the Commission had the jurisdiction to decide the issues before it when it referred the matter back to the Commission for that purpose. That decision was not appealed. Therefore, following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the appropriate standard of review is reasonableness and as the Court said at para. 54 “Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.”

Issue 2: Did the Commission err in finding that the Fire Marshal has the statutory authority to prescribe standards and regulate fire protection equipment and systems through its statutory power to issue guidelines?

[13] The Appellant submits that the Fire Marshal does not have jurisdiction to regulate any matters under the FPPA, let alone to regulate fire systems and equipment as it has attempted to do with the publication of the impugned Guideline. The authority to regulate fire safety standards for equipment, systems, buildings, structures, land and premises is assigned to the Minister. The Minister is responsible for prescribing any methods and standards for fire safety. The Appellant submits the Minister has “occupied the field” and the Fire Marshal has no authority to direct standards and methods of a regulatory nature in that field. The Fire Marshal’s authority under s. 9(1)(d) of the FFPA is limited to issuing guidelines to municipalities respecting fire protection services and related matters. The Appellant submits fire alarm systems are not included under such services or related matters.

[14] In our view, the Commission appropriately interpreted subsection 9(1)(d) of the FFPA which grants the Fire Marshal the power to “issue guidelines to municipalities respecting fire protection services and related matters.” This section provides authority to the Fire Marshal to issue the Guideline. The Commission also appropriately interpreted the provisions of the FPPA outlining what is included in “fire protection services” in a liberal manner. The Commission reasonably rejected the Appellant’s suggestion that “fire protection services” does not include fire alarms as too narrow an interpretation.

Issue 3: Did the Commission err in concluding that the Guideline is discretionary and not mandatory?

[15] In our view, the Commission reasonably concluded that the Guideline is non-binding. The Guideline outlines various options for determining if the audibility of a fire alarm is sufficient. These options are not predicated on a minimum standard sound pressure level but consider a variety of factors. Further, the Guideline indicates that where the audibility of a fire alarm is found to be unsatisfactory, the Guideline provides that owners “should take the following corrective actions”, indicating this guideline is not mandatory but permissive. Instead of using language like “shall” that creates an obligation, the Guideline uses language that allows for choice. Both the format and wording of the Guideline make it clear that it is not mandatory, and it does not have the force of law. As well, an inspector has discretion whether to issue an order even where none of the four options for determining audibility produce satisfactory results. If the inspector is satisfied that the audibility level does not pose a risk to the occupants, she can abstain from issuing an order.

Issue 4: Did Inspector Sproule fetter his discretion when he ordered the Appellant to comply with the Guideline?

[16] The Commission correctly determined that it was unnecessary in the context of a de novo hearing to reach a conclusion as to whether Inspector Sproule fettered his discretion. The Commission appropriately found this issue was not relevant to whether the order made was necessary to ensure fire safety and so did not consider it.

Conclusion

[17] The appeal is dismissed.

[18] The Appellant shall have until January 31, 2020 to correct the contraventions noted in the Fire Marshal Delegate’s Orders.

[19] The respondent, Chatham-Kent Fire Services, shall have its costs fixed at $10,000 inclusive and the respondent, Office of the Fire Marshall and Emergency Management, does not seek to recover its costs.

Ducharme J.

I agree _______________________________

Pierce J.

I agree _______________________________

Tausendfreund J.

Released: November 28, 2019

Norquay Campus Properties Ltd. v. Chatham-Kent Fire Services,

2019 ONSC 6888

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Pierce, Ducharme, and Tausendfreund, JJ.

BETWEEN:

Norquay Campus Properties Ltd.

Appellant

– and –

Chatham-Kent Fire Services

Respondent

REASONS FOR JUDGMENT

Released: November 28, 2019