ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2182/10
DATE: 2015/09/10
BETWEEN:
Norquay Developments Limited
Paul Ledroit and Ondrej Sabo, for the plaintiff
Plaintiff
-and-
Lukasz Kasprzyk, Corporation of the City of Woodstock, City of Woodstock Fire Department, Scott Tegler and Jeff Slager
David S. Thompson, for the defendants
Defendants
HEARD: March 23-27, 30, 2015
REASONS FOR JUDGMENT
I. OVERVIEW
1In 2008, the Woodstock Fire Department (the “Fire Department”) issued two inspection orders against the plaintiff. These orders directed the plaintiff to upgrade the fire alarm systems in two of its residential buildings (the “Inspection Orders”) to bring those systems in line with the standards set out in Ontario Fire Marshal’s Technical Guideline OFM-TG-02-98 (“the Guideline”). The plaintiff appealed the Inspection Orders to the Office of the Fire Marshal (“the OFM”), and then to the Fire Safety Commission. In an unusual turn, the Fire Department rescinded both Inspection Orders prior to the appeal to the Fire Safety Commission. It did not participate in that appeal or on judicial review in the Divisional Court, where the Court set the Inspection Orders aside.
2The overarching dispute between the plaintiff and the defendants, left unresolved by the earlier proceedings, is the extent of a fire department’s authority to order building owners to upgrade fire alarm systems to meet new fire safety standards articulated in the OFM guidelines but not set by regulation. This is a question of administrative law and is not before me in this action.
3What is properly before me in this action is whether the defendants’ issuance of the Inspection Orders constitutes either (1) negligence; or (2) misfeasance in public office. For the reasons that follow, I have concluded that it does not.
II. FACTS
4Norquay Developments Limited (“Norquay”) has been in the business of land development and residential construction since 1972, with Michael Howe as its president and sole shareholder. It currently owns and manages nine residential apartment buildings that it has constructed in Southwestern Ontario.
5This action relates to two residential apartment buildings constructed and owned by Norquay, one located at 168 Victoria Street (“168”) and one at 175 Wellington Street (“175”), both in Woodstock, Ontario (collectively, “the Buildings”). The Buildings were constructed in 1988 to the standards of the 1986 Building Code. They received all necessary inspections and approvals before, during, and after construction. At no point prior to the inspections that gave rise to this action did anyone suggest to Norquay that the Buildings were unsafe in any respect.
6The Fire Department and its employees are granted authority by the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (“FPPA”) s. 21(1) to inspect premises and “to take any measure necessary to ensure fire safety”. That grant of authority is governed by the legislative scheme summarized below.
1. The Legislative Scheme
a) The Building Code
7The 1986 Building Code, which was in force at the time of the construction of the Buildings, required that:
s. 3.2.4.14. (1) Audible signal appliances forming part of a required fire alarm system shall be installed in a building so that alert signals, alarm signals and voice messages can be heard intelligibly throughout the floor area in which they are installed. [emphasis added]
8The 1986 Building Code did not specify a required level of audibility for fire alarm signals other than that they are capable of being “heard intelligibly throughout the floor area in which they are installed.” It is not disputed that the Buildings complied with the “heard intelligibly” requirement under the 1986 Building Code when they were built.
9The 1986 Building Code was amended subsequent to the construction of the Buildings to require measureable standards of audibility for fire alarms for new residential construction.
b) The Fire Code
10Section 12(1) of the FPPA authorizes the Minister to establish a Fire Code, “governing standards for equipment, systems, buildings, structures, land and premises, as those standards relate to fire safety”. The Fire Code, O. Reg 213/07, includes, at Part 9, retrofit obligations of building owners to upgrade their buildings. The Fire Code does not impose any retrofit obligations on Norquay with respect to its fire alarms systems in the Buildings.
c) OFM Guidelines
11Among the powers and duties of the Fire Marshal is the power to “to issue guidelines to municipalities respecting fire protection services and related matters” (s. 9(1)(d) of the FPPA) and the duty “to advise municipalities in the interpretation and enforcement” of the FPPA and the Fire Code (s. 9(2)(b) of the FPPA).
12In 1998, the OFM drafted the Guideline, which is intended to assist fire inspectors in determining whether a fire alarm system meets legislated standards. The Guideline sets out four options. Compliance with any one of which “is deemed to provide an acceptable audibility level in an existing building of residential occupancy.” The options can be summarized as follows:
Option 1: “[t]he fire alarm signal measurements in the furnished and occupied building are at or above 60 dBA…”
Option 2: “[w]here the fire alarm signal measurements in the occupied building provide 55-59 dBA,” the fire alarm audibility level is considered acceptable provided that a fire safety plan is adopted which contains “enhanced fire safety procedures” to ensure that all occupants are alerted to the alarm. The enhanced procedures are not specified in the Guideline, but examples include “provisions for voice messages, floor wardens, a buddy system or telephone network to supplement the fire alarm signals.”
Option 3: the adoption of in-suite fire alarm signal devices.
Option 4: a professional engineer evaluates the fire alarm signal audibility and reports on whether the fire alarm signals can be heard intelligibly throughout the building.
d) Inspection Orders
13The Guideline provides that where corrective action is not taken and “fire alarm audibility poses a risk to the safety of the occupants, a fire department may issue an order under the Fire Protection and Prevention Act, 1997.”
14Part VI of the FPPA sets out the authority of inspectors, including the authority to make inspection orders:
- (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,
(b) to make structural and other repairs or alterations, including material alterations, to the buildings or structures;
(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;
15The scope of an inspector’s authority in the FPPA is controlled in part by the definition of “fire safety”, which is provided in s. 18:
For the purposes of this Part, fire safety includes the following:
Safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it.
Safety from the risk that the presence of unsafe levels of carbon monoxide on premises would seriously endanger the health and safety of any person.
16Section 21(1)(f) of the FPPA is thus the source of an Inspector’s authority to make orders to ensure fire safety and, specifically, to make orders with respect to fire alarms.
17The scope of an Inspector’s authority is informed by the provisions of the 1986 Building Code, which requires that fire alarms must be intelligibly audible. “Intelligibly audible” makes more clear what is implicit in any standard of audibility: that the signal be sufficiently audible to perform its intended function.
18To further specify what it means for an alarm signal to be intelligibly audible, the OFM drafted the Guideline. There was no evidence before me as to how the Guideline came to be or the science that informed it. The Guideline was presumably intended to assist inspectors in assessing whether an alarm system is safe, having regard to both audibility of the alarm signal and other factors that can compensate for lower audibility.
19If an alarm signal is measured at 60 dBA or higher, the alarm is deemed to be safe. If it is not, then the inspector must consider whether the alarm can nevertheless be sufficiently audible for its purpose by embarking on the inquiries set out in options two through four of the Guideline.
2. The Fire Safety Inspections and Reports
20Inspector Lukasz Kasprzyk joined the Fire Department in 2007. This was his first placement with a fire department. He was assigned to work under the direction of Fire Prevention Officer Jeff Slager with respect to a program of fire safety review of high-density buildings in Woodstock.
21Inspector Kasprzyk noted that building owners were not required to provide a measure of the audibility of their fire alarm systems in the annual fire safety reports they were to submit to the Fire Department. He recommended, and Officer Slager agreed, that audibility levels should therefore be tested as part of the new program of fire safety review.
22168 and 175 were the first, or among the first, buildings inspected as part of this review. There is no allegation that Norquay was specifically targeted, or that there was any ulterior motive in pursuing the review.
23Inspector Kasprzyk conducted a pre-scheduled fire safety inspection of 175 on September 9, 2008, and of 168 on September 15, 2008. These were the first fire safety inspections of these buildings in approximately 14 years. They were also the first solo fire safety inspections conducted by Inspector Kasprzyk. Mr. Howe was not present for the inspections, which were carried out in the presence of Norquay’s property manager for the two buildings, Carolyn Dedreck.
24These inspections resulted in Inspection Reports 08-0205 and 08-0206 (the “Inspection Reports”), dated and delivered to Norquay on September 17, 2008.
25The Inspection Reports itemized various minor infractions for the two buildings such as a fire door being wedged open, fire safety documentation not being stored on site, and some smoke alarms having been intentionally disabled by tenants. These were easily and inexpensively remedied by Norquay.
26It was not disputed that Norquay is a conscientious and diligent landlord. Peter Gentile, the principal of Priority Fire Protection (“PFP”), which provides the annual inspections and maintenance of Norquay’s fire alarms, described Norquay as “tight and very proactive” on fire protection issues and in the top 1% of the hundreds of landlords that PFP services.
27Mr. Howe took issue with several of the infractions, such as the requirement that existing signage for the hose standpipe be supplemented with better signage. He testified that although he was willing to comply with the demands – and he did so – they seemed to him to be petty and unreasonable, and that Inspector Kasprzyk was being overzealous in the discharge of his duties.
28On hearing Inspector Kasprzyk’s explanations for the infractions found in the Inspection Reports, I find that each infraction item identified a legitimate fire safety concern.
29The most significant demand, and the one which is at the heart of this action, was item 1 on the Inspection Reports, relating to the audibility of fire alarms:
9.5.4.1.(1) a fire alarm system shall be installed in accordance with Articles 3.2.4.2 to 3.2.4.6, 3.2.4.8, 3.2.4.9 and Sentence 3.2.7.8.(1) to (4) of the 1990 Building Code, where (a) the building is greater than 3 stories in building height, or (b) sleeping accommodation is provided for more than 10 persons
There are no records of testing/inspection available stating the existing fire alarm system meets the Ontario Fire Marshal’s acceptable audibility level of at least 60 dBA.
30The Fire Department thereby demanded proof that the fire alarm system met an audibility standard of 60 dBA.
31That standard was nowhere to be found in legislation or regulation, and this was the first that Norquay had heard of the Guideline.
32There were, of course, no existing records of audibility testing of the fire alarm system because, as of that date, no such tests had ever been carried out or requested. Mr. Gentile testified that although PFP tested the functionality of the fire alarm bells as part of its annual inspections for Norquay, it did not measure audibility.
33The Inspection Reports were not orders, but were to put Norquay on notice to correct deficiencies. If the deficiencies were not remedied, they could be enforced through a prosecution, as noted in the Inspection Reports:
Please note that the above contraventions of the Fire Code constitute offences under the Fire Protection and Prevention Act 1997 and you are advised to take corrective action or risk prosecution.
34At the time the initial inspections were carried out, Inspector Kasprzyk requested that Norquay arrange for a fire alarm audibility test to be conducted at 168 and 175. Norquay made arrangements with PFP and Inspector Kasprzyk attended the Buildings on October 15, 2008 to witness the tests carried out by Mr. Gentile of PFP. Ms. Dedrick and Mr. Witherstone (a Norquay property manager) were also present.
35Mr. Gentile used an analog audible device meter to test the audibility of the alarm in one of the farthest rooms at 175. Inspector Kasprzyk was with him, also reading the meter. On Mr. Gentile’s evidence, which I accept, the needle hovered below 50 dB, which was the starting value for the meter. Inspector Kasprzyk asked to test other suites, but was persuaded by Mr. Gentile that there was no point – if one suite failed the test they likely all would.
36The parties then conducted a similar test with similar results at 168.
37Inspector Kasprzyk thus observed the results and discussed them with Mr. Gentile. He understood that the fire alarms systems did not meet the standard of 60 dBA.
38The results of the tests were recorded in PFP’s invoice to Norquay dated October 15, 2008: “Performed audibility test…in farthest backroom/bedroom as per requirement and found audibility of the fire alarm bells to be less than 50 dB.”
39Mr. Howe’s evidence, which was unchallenged, was that upgrading the fire alarm systems to achieve the standard of 60 dBA would cost approximately $75,000 per building. When multiplied over the number of buildings held by Norquay, the total bill would be significant.
40Mr. Howe and his solicitor Joe Hoffer (who also testified at trial) believed that in demanding audibility of 60 dBA, Inspector Kasprzyk was treating the Guideline as though it were a legislative retrofit requirement. Further, they felt that he was refusing to exercise his judgment as to whether the fire alarms were in fact audible and whether they posed any threat to fire safety.
41Nevertheless, in an attempt to comply, one month later Norquay conducted an experiment to determine whether it could achieve 60 dBA with some comparatively inexpensive modifications to its fire alarm system. On November 17, 2008, PFP replaced an alarm bell with an electronic alarm horn at 175. Although the result was significant improvement, the reading in the farthest room was still only 59 dBA, just short of the 60 dBA standard. Mr. Howe’s evidence was that it would have cost a few thousand dollars per building to switch over to electronic horns.
42Norquay did not advise the Fire Department of this experiment, because it believed that the Fire Department was not willing to consider any result short of 60 dBA. In support of this position, Mr. Howe pointed to e-mail correspondence between Mr. Witherstone of Norquay and Officer Slager dated April 29 and May 5, 2009:
Mr. Witherstone:
We don’t believe we can comply with the options outlined within the Fire Marshal technical guideline OFM-TG-02-1998 … we suggest a conference call to discuss alternatives and help to clarify the situation.
Officer Slager replied:
…as no other solution has been presented, the Woodstock Fire Department is still requiring compliance with one of the options outlined in the guideline.
If Norquay Developments wishes to submit an alternative solution to the Chief Fire Official, Fire Chief Scott Tegler, the requirements for such a submission are listed below. My personal preference is to have the alarm system audibility upgraded to meet current minimum standards identified by the Office of the Fire Marshal. I am not able to