OSHAWA COURT FILE NO.: 77845/12

DATE: 20120719

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROB COLLINS, FIRE CHIEF OF THE MUNICIPALITY OF PORT HOPE, Applicant

AND:

1660524 ONTARIO INC. Carrying on business as POLYFRAME MOULDING and NORTH AMERICAN MOULDING, Respondent

BEFORE: MULLIGAN J.

COUNSEL:
M.M. Miller, Counsel, for the Applicant
J.A. Annen, Counsel, for the Respondent

HEARD: July 13, 2012

ENDORSEMENT

INTRODUCTION

[ 1 ] The applicant, Rob Collins, Fire Chief of the Municipality of Port Hope (“the Fire Chief”), seeks an order directing the respondent Ashkan Arts Limited (“Ashkan”) to comply with violations in a fire safety inspection order. The Fire Chief also seeks an interim and permanent injunction prohibiting Ashkan from entering or occupying the premises until the violations have been corrected. Ashkan seeks an order remitting this matter back to the Fire Marshal’s office for reconsideration or in the alternative a full hearing by this court on the merits. Although no formal Order has yet been taken out, by consent, the parties have agreed that the title of the proceedings be amended to name Ashkan Arts Limited C.O.B as Polyframe Moulding as a responding party.

[ 2 ] As a result of an inspection the Chief Fire Prevention Officer for the municipality ordered the respondent to implement a number of fire prevention measures, pursuant to his authority under the Fire Protection and Prevention Act 1997, S.O. 1997, C.4, s.21(1). The order contained four directives. This first directive dealt with the installation of a sprinkler system to protect the entire building. The other directives have now been resolved to the satisfaction of the Fire Department. The order requiring a sprinkler system was appealed by the respondent to the Office of the Fire Marshal. The Fire Marshal’s delegate upheld the directive but allowed that Ashkan could make proposals for alternative measures through a professional engineer that, if approved by the Fire Department, would constitute compliance with the order. Ashkan has not installed the sprinkler system but has conducted certain works or improvements to its facility. In addition it engaged the services of a professional engineer to correspond with the Fire Department to document the improvements and to request that they be considered as an alternative, constituting compliance with the order. The Fire Department has not accepted the alternatives proposed and brings this application to seek compliance with the order requiring a sprinkler system throughout the building.

LEGISLATIVE FRAMEFORK

[ 3 ] The legislative framework which provides a background for this dispute is contained within the Fire Protection and Prevention Act, 1997. Section 21(1) gives power to an inspector, in this case the local Fire Department, to inspect property and make 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 or other alterations, including material alterations, to the buildings or structures;

(c) to remove combustible or explosive material or anything that may constitute a fire hazard;

(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.

[ 4 ] The Act contains a right of appeal to the Office of the Fire Marshal. Section 25(1) provides as follows:

A person who considers himself or herself aggrieved by an order made by an inspector, other than the Fire Marshal, under subsection 21 (1) or (2) may, within 15 days after the order is served, submit a written request to the Fire Marshal for review of the order.

[ 5 ] The duties of the Fire Marshal are contained within s. 25. Section 25(4) states:

The Fire Marshal may,

(a) refuse to consider the substance of the request and refer the matter to the Fire Safety Commission for a hearing under section 26; or

(b) confirm, amend or rescind the order or make such other order as he or she deems appropriate.

[ 6 ] An appeal of the Fire Marshal’s order lies to the Fire Safety Commission. Section 26 states:

(1) Any person who considers himself or herself aggrieved by an order made by the Fire Marshal under subsection 21 (1) or (2) or section 25 may appeal the order to the Fire Safety Commission.

(2) A notice of appeal from an order referred to in subsection (1) shall be filed with the Fire Safety Commission within 15 days after the order is served.

A further right of appeal of the hearing of the Fire Safety Commission lies to the Divisional Court. As s. 27(1) states:

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.

BACKGROUND

[ 7 ] As part of its application the applicant filed the affidavit of Chris Bihun, Chief Fire Prevention Officer for the Municipality of Port Hope, setting out a history of dealings with the respondent. Prior to the inspection in question there were a number of inspections requiring the owner to conduct work to bring the property into compliance with violations noted in inspection reports.

[ 8 ] On August 17, 2010 there was a small fire at the facility extinguished by employees of the facility. The Fire Department was notified.

[ 9 ] On August 19, 2010 the Chief Fire Prevention Officer issued an inspection order requiring the sprinkler system and other measures. That order was rescinded and a new order was issued September 3, 2010, that order provided in part as follows:

Therefore, pursuant to clause (f) of subsection 1, of section 21 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 it is ordered that:

1. A sprinkler system conforming to NFPA #13 the “Standards For the Installation of Sprinkler Systems” be designed and installed to protect the entire building and the contents within the building. Note: a building permit will be required for the work necessary to comply with this inspection order. Please contact the Municipality of Port Hope Building Department in this regard prior to the commencement of the installation of the sprinkler system.

[ 10 ] The reasons for the inspection order are captured in Appendix A of the reasons for the order of the Chief Fire Prevention Officer:

The building is of non-combustible construction and approximately 115,000 square feet in building area. It is situated near a residential area of the community, a private college, an elementary school and a creek that flows downstream into Lake Ontario. The north end of the building is used to produce plastic frames and to warehouse large quantities of raw and finished plastic material, rigid plastic foam materials for recycling, cardboard and paper products. The south two storey section of the building contains leased office space. A partial sprinkler system has been provided in the area used to manufacture the plastic frames however the remainder of the building is unsprinklered. The north end of the property (exterior) contains a large quantity of combustible waste and recycling material piled adjacent to an out building and a treed area. The property does not have an approved Fire Safety Plan.

A fire once started would develop rapidly and generate large quantities of toxic smoke that would have the potential to endanger the health and safety of persons on and/or near the property. Contaminates in run-off water from fire fighting operations would most likely enter the nearby creek, adjacent lands and potentially Lake Ontario.

[ 11 ] In support of its position, the respondent filed the affidavit of Chain Singh, the manager of Ashkan. The affidavit details the respondent’s appeal of the sprinkler system order to the Office of the Fire Marshal.

[ 12 ] By letter dated March 31, 2011 the Office of the Fire Marshal notified the parties of its decision as a result of its review powers under s.10 of the Fire Protection and Prevention Act , 1997.

[ 13 ] In its decision the Office of the Fire Marshal noted the following reasons for the appeal:

The appellant is appealing item #1 of the Order (Sprinkling the entire building in conformance with NFPA 13) essentially on the basis that it is cost prohibitive and would force the shutdown of its Port Hope operations. The total estimated cost is $280,000, not including electrical wiring, fire alarm or underground water service upgrades. The appellant is proposing an amendment to item #1 of the Order to allow for an alternative solution under the provisions of the Fire Code or, in the alternative, the amendment to allow for a three year compliance schedule.

[ 14 ] The decision of the Fire Marshal’s delegate was as follows:

Item #1 of the order is upheld . [Emphasis in original]

Alternative storage arrangements and/or fire protection measures may be approved by the fire department. The proposal for alternative measures shall be prepared by a professional engineer and/or architect and include a schedule of compliance. Approval by the fire department and implementation of the alternative measures by the owner shall constitute compliance with the order.

[ 15 ] The order required the respondent to submit proposals to the Fire Department by May 31, 2011, with a goal of achieving compliance with the order by September 30, 2011 subject to approval by the Fire Department of a phased in compliance schedule.

[ 16 ] The Office of the Fire Marshal provided written reasons. As to the alternative measures the Order stated:

However, the appellant’s request for consideration of alternative measures to the ordered work is reasonable and has been accommodated in the decision. It is recognized that the risks described above may possibly be alleviated by alternative storage arrangements, process controls and fire protection measures. A review by a qualified professional of the storage and process risks, in the context of the surrounding lands, ground water and nearby waterways, may provide a basis for the Fire Departments approval of alternative measures.

[ 17 ] The respondent did not appeal the decision of the Office of the Fire Marshal to the Fire Safety Commission. Nor did the respondent submit alternative measures to the Fire Department by May 31, 2011 as required in the Fire Marshal’s order.

[ 18 ] However, the respondent did retain a professional engineering firm to respond to the issues raised by the Chief Fire Prevention Officer. In its first response dated August 12, 2011 the engineering report indicated a number of steps that the company had taken as an alternative to the sprinkler system.

[ 19 ] The Fire Department replied that the engineer’s proposal was not acceptable. As the letter stated: “For this reason I will not accept these measures as being equivalent to the ordered sprinkler system”.

[ 20 ] The respondent’s engineers wrote back on August 22, 2011 to request that the Fire Department reconsider its alternative submissions.

[ 21 ] By letter dated September 2, 2011 the Fire Department wrote back to indicate:

While your proposal provides some degree of containment it falls short of providing early fire control. For this reason, after careful consideration of your position, I cannot approve your proposal.

[ 22 ] The respondent’s engineers wrote again on October 3, 2011 and submitted further proposals for the Fire Department’s consideration.

[ 23 ] On October 14, 2011 the Fire Department wrote back to indicate:

In terms of the ordered sprinkler system, your proposal still falls significantly short. As I stated in our meeting on September 15, nothing short of complete sprinkler coverage is acceptable.

[ 24 ] The respondent’s engineers wrote again on December 5, 2011 repeating some of the improvements previously brought to the attention of the Fire Department. The letter concluded:

We have already stated that all of the combustible materials on the outside of the building have been removed. We have also taken out a significant percentage of the stored polystyrene materials from inside of the building. Furthermore the recycling materials have been compacted for safer storage. Based on these facts, the situation that existed when the order made does not exist anymore. The quantity of the plastic combustible materials were the reason for the recommendation. Removing the reason for the recommendation is in fact the best solution to the problem.

[ 25 ] It is clear that the respondent did not appeal the order of the Office of the Fire Marshal and instead pursued the option of retaining an engineer to pursue the alternative arrangements suggested by the Fire Marshal. As Chain Singh, the respondent’s manager, stated in his affidavit at paragraph thirty two:

I have been advised by Mr. Emami P. Eng. [the respondent’s professional engineer] and I do verily believe that, in fact, the respondent has complied with the order of the agent of the applicant and that the conditions that gave rise to the issuance of the order no longer exist.

[ 26 ] In submissions counsel for the respondent stated that the respondent’s reason for not pursuing the appeal was that they believed that they could comply with the Fire Marshal’s suggestion of pursuing alternative measures.

ANALYSIS

[ 27 ] Both parties point to the Fire Protection and Prevention Act, 1997 as authority for this court to make an Order.

[ 28 ] Section 32 (1) and (2) of the Fire Protection and Prevention Act, 1997, provides as follows:

The Fire Marshal, an assistant to the Fire Marshal or a Fire Chief may, in addition to any other rights he or she may have under this Act, apply to a Judge of the Superior Court of Justice for an order,

a) Requiring a person to comply with an inspection order made under section 21 or with an order made under section 25 or 26 if the person has failed to comply with the order; or

b) Requiring a person to remedy any contravention of a provision of the fire code.

Upon an application being made under subsection (1), a Judge may make the order requested or such other order as he or she sees fit.

[ 29 ] The applicant’s position is that the decision of the Office of the Fire Marshal was not appealed. Suggested alternate measures by the respondent to the Fire Department were not accepted therefore an order should issue for compliance. The applicant relies on Stevenson v. The Corporation of the Town of Gravenhurst, 2010, ONSC 3922 . On the facts of that case Quinlan J. stated at paragraph 29:

The 14 day appeal period set out in the Building Code Act expired in April 2009. The plaintiffs did not appeal the decision of the Property Standards Committee to the Superior Court of Justice as was their right under section 15.3(4) of the Building Code Act . That was the route to take. The plaintiffs are statute barred from seeking these declarations.

[ 30 ] However Stevenson can be distinguished from the case at bar. The decision in Stevenson was final and did not contain a reference back to the original decision maker to consider alternative measures.

[ 31 ] The respondent’s position is that this matter should be remitted back to the Office of the Fire Marshal for reconsideration pursuant to the provisions of the Fire Protection and Prevention Act , 1997, para. 32(2): “Upon an application being made under ss. (1), a judge may make the order requested or such other order as he or she sees fit”.

[ 32 ] The respondent submits that the underlying issues of concern to the Fire Department no longer exist and therefore a sprinkler system for the entire structure is no longer required. The respondent further argues that a duty of fairness requires that this matter be sent back to the Office of the Fire Marshal for reconsideration on the basis that it has complied with the order and decision of the Fire Marshal.

DUTY OF FAIRNESS

[ 33 ] The respondent relies on Veri v. Hamilton (City), [2004] O.J. 3932 . a decision of the Divisional Court. At para. 9, Lack J. stated:

There is statutory right of appeal of the Commission’s decision. Under those circumstances it was incumbent upon the Commission to address the reasonableness of the conditions, make appropriate findings of fact in that respect and give reasons for the findings. The Commission failed to do that. The failure was unfair to Mr. Veri and hinders the court in understanding the basis of the Commission’s decision.

[ 34 ] The duty of fairness in the context of administrative decisions was commented on by the Supreme Court of Canada in Nicholson v. Haldamand-Norfolk (Regional) Police Commissioners, 1978 24 (SCC) , [1979] 1 S.C.R. 311 Laskin C.J. speaking for the majority stated at page 9:

He [the appellant] should be treated “fairly” not arbitrarily. I accept, therefore, for present purposes and as a common law principal what Megarry J. accepted in Bates v. Lord Hailsham “that in the sphere of the so-called quasi-judicial the rules of national justice run, and that in the administrative or executive field there is a general duty of fairness”.

[ 35 ] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC) , [1999] 2 S.C.R. 817. L’Heureux-Dubé J. stated at para 21:

The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division 19, 1990 138 (SCC) , [1990] 1 S.C.R. 653, at p.682 “The concept of procedural fairness is imminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness. [citations omitted]

[ 36 ] In Baker L’Heureux-Dubé J. went on to indicate five factors that ought to be considered when determining the common law duty of procedural fairness. The first is the nature of the decision, second is the nature of the statutory regime, third is the importance of the decision to the individual, fourth is the legitimate expectations of the person, fifth is the choice of procedure taken by the administrative agency.

CONCLUSION

[ 37 ] The Office of the Fire Marshal rendered a decision confirming the order of the Fire Department requiring a sprinkler system. However the Fire Marshal’s order allowed for the submission of alternative measures for consideration by the Fire Department in lieu of a sprinkler system. The Fire Marshal left the ultimate decision in the hands of the Fire Department with no provision for an appeal or reference back to the Fire Marshal if the parties could not agree. In my view this was an improper delegation of its power back to the Fire Department without any provision for an appeal or subsequent review thereafter. The decision lacked procedural fairness and contained no mechanism for review or oversight by the Fire Marshal in the event that the parties could not agree or if the aggrieved party felt that the Fire Department was acting in an arbitrary manner. It is clear that the Office of the Fire Marshal has a high degree of expertise in matters such as this. Had the issue been referred back to the Office of the Fire Marshal it could have made a decision with respect to the alternative measures. That decision could have been subject to an appeal to the Fire Safety Commission if the aggrieved party wished to pursue the matter further.

[ 38 ] The respondent’s engineers reported on the changes made by the respondent to its facility and provided alternative measures for consideration by the Fire Department. It is not within the expertise of this court to determine the reasonableness of the changes and suggestions by the professional engineers. Such expertise is available under the statutory regime set out in the Fire Protection and Prevention Act and an appeal lies to the Divisional Court thereafter.

[ 39 ] In my view, referring this matter back to the Office of the Fire Marshal for further consideration, given the order it made, strikes an appropriate balance between the interests of the two parties and respects the common law duty of fairness.

[ 40 ] It is ordered that this matter be referred to the Office of the Fire Marshal for a determination as to whether or not the alternative measures carried out by the respondent, and advanced by their professional engineers, constitute compliance with its order.

[ 41 ] The respondent has thirty days to remit this matter back to the Office of the Fire Marshal for further review under section 10 of the Fire Protection and Prevention Act , 1997.

COSTS

[ 42 ] If the parties are not able to resolve the issue of costs, I will receive brief written submissions within twenty days of today’s date from the respondent with reply submissions from the applicant ten days thereafter.

MULLIGAN J.

Date: July 19, 2012