March 25, 2018 | Author: api-60748054 | Category: Fire Safety, Constitutional Law, Common Law, Public Sphere, Virtue



Divisional Court 1847/10ONTARIO SUPERIOR COURT OF JUSTICE (Divisional Court) BETWEEN: 5 NORQUAY DEVELOPMENTS LIMITED and MICHAEL HOWE (Appellants) -andCITY OF WOODSTOCK FIRE DEPARTMENT and LUKASZ KASPRZYK 10 (Respondents) -andOFFICE OF THE FIRE MARSHAL . (Third Party Respondent) 15 ********** REASON FOR DECISION 20 BEFORE THE HONOURABLE CHIEF JUSTICE MADAM PARDU, MR. JUSTICE WHALEN and MADAM JUSTICE HARVISON YOUNG on November 23rd, 2011 at the CITY OF LONDON ********** 25 APPEARANCES: J. Hoffer 30 D. Truelove counsel for Appellants counsel for Respondents B. Whitehead counsel for third party AG 0087 (rev. 07-01) 1. Reason for Decision WEDNESDAY, NOVEMBER 23, 2011 REASON 5 FOR DECISION (orally) PARDU, J. The Appellant is the owner of apartment buildings, and appeals from orders made under the Fire Protection and Prevention Act requiring him to 10 improve the audibility of the fire alarm in two units. The Respondent advised the Fire Safety Commission that it lacked sufficient evidence to support the orders, that it had "rescinded" the original orders, and had no intention of enforcing 15 the amended orders made at the first level of appeal. Despite this, the Appellant urged the Commission to hear the appeals, on the ground that there was no 20 jurisdiction allowing the City to rescind the orders and on the ground that there were legal issues of substantial importance to the rental housing industry in Ontario, which required resolution. 25 The original inspection order required the owner to "Provide audibility levels in all residential suites by implementing one or more of the appropriate options outlined in the Office of the Fire Marshal's technical Guideline TG-02-1998", Fire Alarm 30 Audibili ty in Existing Residential Buildings. AG 0087 (rev. 07-01) 2. Reason for Decision In his factum, the Appellant argued that it was wrong to require compliance with a "guideline" which is not subordinate legislation, that the guidelines were inconsistent with the Fire Code and the Fire 5 Protection and Prevention Act and therefore ul tra vires, and that the guidelines were too uncertain to be enforced. In the course of argument he abandoned these 10 posi tions, submitting instead that the inspector misused the Guidelines. The Fire Marshal has expressed authority under s. 9 (1) (d) of the Fire Protection and Prevention Act to 15 "issue guidelines to municipalities respecting fire protection services and related matters". The issues the Appellant wishes to argue is what use may be made of those guidelines under s. 21 (1) (f) 20 which provides that, "An inspector who has carried out an inspection of land or premises under s. 19 or 20 many order the owner or occupant of the land or premises to take any measure necessary to 25 ensure fire safety on the land and premises and may for that purpose order the owner or occupant, (f) to do anything respecting fire safety 30 including anything relating to the containment of a possible fire, means of egress, fire AG 0087 (rev. 07-01) 3. Reason for Decision alarms and detection, fire suppression and the preparation of a fire safety plan". Ontario Regulation 213/07 defines alarm signal as 5 "an audible signal transmitted throughout a zone or zones or throughout a building to advise occupants that a fire emergency exists." The Guidelines make recommendations as to the 10 decibel level appropriate for fire alarms. The Appellant argues that "because the Fire Protection and Prevention Act does not afford the Fire Marshal the authority to create new law, all 15 guidelines issued by the Fire Marshall ought only to assist fire officials in applying the law, not in creating new rules and regulations for which fire officials then have a discretion to apply and enforce on an ad hoc and retroactive or 20 retrospective basis". Despi te the position of the City of Woodstock that the orders as amended could not be supported, the Commission upheld them in very brief reasons 25 indicating ~The Tribunal concurs with the reasons given by the Fire Marshal's Delegate in his decision". Those reasons provide as follows: ~The fire alarm audibility is an inherent component of fire safety planning and occupant 30 evacuation procedures. Although the Fire Code does not prescribe specific audibility levels in existing residential buildings with respect AG 0087 (rev. 07-01) 4. Reason for Decision to fire alarm systems, the authority for the work prescribed in the Order is identified as clause (f) of subsection 21(1) of the FPPA. Inspector Kasprzyk has therefore acknowledged 5 that the Order does not reflect compliance with the Fire Code, rather it is based on discretionary power which can be applied on a case by case basis where deemed appropriate. 10 Test results for Suite #115, as reported by the fire department, indicate an inadequate audibili ty level based on criteria identified in Office of the Fire Marshal guideline OFM-TG02-1998 "Fire Alarm Audibili ty in Existing 15 Residential Buildings". The appellant has not disputed the recorded audibility level or the test method. However, the single test result does not provide a sufficient basis for application of the Order to the entire 20 building. Therefore, the order is upheld for Suite #115 only. Despi te the above, the single test result suggests the possibility of an audibility level 25 deficiency in other parts of the building. The owner is advised to investigate this issue further particularly for critical areas in the building (e. g. bedrooms)". 30 The position of the Respondent acknowledging that there is no admissible evidence justifying the AG 0087 (rev. 07-01) 5. Reason for Decision orders is a sufficient ground to set aside the orders made. The City of Woodstock wrote to the Commission 5 inviting it to rescind the Orders due to ~no evidence being presented to justify the orders." (see p. 239 Vol. II of the Appeal Book) The Appellant invites us to embark on a broad 10 inquiry as to the use that may be made of guidelines by fire inspectors. We doubt that we can make the broad statements sought by the Appellant. Some inspectors may make 15 appropriate use of guidelines, others may not. The nature of judicial review and appeals requires a case by case approach where the factual context is important. Here where there is no admissible evidence supporting the Orders made, we do not have 20 that context and decline to embark on the hypothetical inquiry proposed by the Appellant. Accordingly, as requested by the Appellant the Commission's Orders of August 24th, 2010, the Ontario 25 Fire Marshal decision of August 18th, 2009 and the Inspection Order of May 29th, 2009 are set aside, but the claims on appeal for a declaration that the Ontario Fire Marshal's Guidelines TG-02-1998 titled Fire Alarm Audibility in Existing Residential 30 Occupancies and the Enforcement of same is ul tra vires of the Ontario Fire Marshal's Office and for a declaration the enforcement of the Guidelines is AG 0087 (rev. 07-01) 6. Reason for Decision void as it contradicts the Fire, Code Ontario Regulation 213/07 is dismissed. ********** 5 10 15 20 25 30 AG 0087 (rev. 07-01)
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