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Opinions & Applications for the Fire Code (1997 edition) (revoked November 21, 2007)

9.1.3.1. COMPLIANCE TIME

9.1.3.1. "(1) It is the responsibility of the owner to comply with the requirements of

(a) Sections 9.2, 9.3 and 9.4, as applicable

(b) Sections 9.5 and 9.6, as applicable, by October 9, 1994

(c) Articles 9.8.4.2. and 9.8.4.3. by August 13, 1994, and

(d) Subsections 9.8.1., 9.8.2. and 9.8.3. , Article 9.8.4.1. and Subsections 9.8.5. and 9.8.6. by July 14, 1996.

(2) Sections 9.2, 9.3 and 9.4 of this Regulation do not apply to buildings with respect to which the Chief Fire Official has granted an exemption under a predecessor to this Regulation for so long as the exemption is valid.

(3) Section 9.4 does not apply to buildings with respect to which a life safety study has been approved for implementation."

Intent:

This Article indicates the time frame for compliance of any buildings that may be subject to retrofit requirements, based upon the occupancy of the building.

Sections 9.2 and 9.3 were introduced in 1983 and Section 9.4 in 1987.

In some buildings compliance alternatives were accepted by the Chief Fire Official. Sentence (2) is intended to permit the approved alternatives to remain.

There may also be some buildings under Section 9.4 that are still doing work under an approved life safety study and Sentence (3) is intended to permit that work to carry on.

Buildings covered under Sections 9.5, 9.6 and 9.8 have specific compliance dates identified in this Article but they would also be allowed to extend those dates in accordance with the extension of time and life safety study options as set out in Articles 9.1.3.2. and 9.1.4.1.

Other Resources: OFC 9.1.3.2., 9.1.4.1.

Application:

Q1 How would you deal with an assembly occupancy that has never been retrofitted and has only recently come to the attention of the Chief Fire Official?

A1 As the compliance date has elapsed, the assembly occupancy should be treated as would other buildings where Fire Code deficiencies were found. A Notice of Violation may be issued detailing the work that is required and setting a specific date by which the work must be completed. Where considerable work is required, the owner should develop a schedule of compliance that may be incorporated into a Notice of Violation to ensure that the more critical deficiencies are addressed first.

Another option could be to proceed directly to laying an Information on the owner but careful consideration should be given to the circumstances surrounding the non-compliance.

9.1.3.2. EXTENSION OF TIME

9.1.3.2. "(1) The owner or the owner's agent may apply to the Chief FireOfficial for an extension of time within which to comply

(a) not to exceed two additional years from the date of compliance referred to in Clause 9.1.3.1.(1)(b) for buildings regulated in Section 9.6

(b) not to exceed three additional years from date of compliance referred to in Clause 9.1.3.1.(1)(b) for buildings regulated in Section 9.5, or

(c) not to exceed two additional years from the date of compliance referred to in Clause 9.1.3.1.(1)(d) for buildings regulated in Section 9.8.

(2) A proposed schedule for completion of the work shall be submitted with the application for extension of time.

(3) Upon receipt of the application referred to in Sentence (1) the Chief Fire Official shall, within ten days, review the application and either grant or refuse an extension of the time for compliance.

(4) The Chief Fire Official shall notify the owner or the owner'sagent of the Chief Fire Official's decision in writing.

(5) Notification shall be served either personally or by ordinary mail.

(6) Where notification is by mail, it shall be deemed to have been served on the fifth day after the date of mailing.

(7) Theowner or the owner's agent, within five days of being notified of a refusal to grant an extension of the time for compliance, may request the reasons therefor in writing.

(8) The Chief Fire Official shall comply with the request within ten days after receipt thereof.

(9) Anowner or the owner'sagent who feels aggrieved by the decision to refuse an extension of time for compliance may, within thirty days of the refusal, appeal the refusal in the same manner as though it were anOrder.

(10) Despite Sentence (1), if compliance is not possible within the period of an extension granted under this Article because of a strike, material shortage or other circumstances beyond the owner's control, the Chief Fire Official may grant a further extension of the time for compliance."

Intent:

This Article allows the owner to apply to the Chief Fire Official (CFO) for an additional amount of time in which to do the work required under Retrofit. For lowrise buildings, the owner may apply for up to three additional years to October 9, 1997. For highrise buildings, the owner may apply for up to two additional years to October 9, 1996.

The request for an extension must be based on sound logistical or financial reasons and be accompanied by a schedule for completion of the required work. The CFO may request changes to the plan prior to approval. The CFO may also refuse to grant an extension. The owner may then appeal the refusal to the Fire Marshal or the Fire Code Commission.

There may be circumstances that occur that are beyond the owner's control, such as a work strike or material shortage, and these reasons may also be taken into consideration by the Chief Fire Official (CFO) in allowing a further extension of time for compliance.

Other Resources:

Fire Marshals Act, Section 18; OFM Guideline on Extension of Time

Application:

Q1 What information is required to support the application for extension of time?

A1 In order to effectively evaluate the request for an extension of time, the CFO must be provided with detailed information with respect to deficiencies, the logistics of undertaking that work, any interim measures to reduce life safety concerns for longer term construction or installation items, and documentation for any financial implications where this is a factor in not completing the work within the normal compliance period. All Fire Code deficiencies must be identified and the method and schedule of compliance developed by the owner before an application and review for extension of time is possible by the CFO.

Although not specifically stated in the regulation, the owner should provide a reason why an extension is required in conjunction with the application for extension of time. Such a reason can be deemed an essential component in the ability of the CFO to reach a determination on the application for an extension of time.

Q2 What criteria should be used to determine if an extension should be granted?

A2 In order to ensure equitable treatment, the CFO should use standard and uniform criteria to process applications for extension of time. Although it is not possible to provide an exhaustive list, some of the factors that should be considered when evaluating a request for an extension of time are as follows:

the severity to life safety posed by the deficiencies;

whether the severity to life safety is likely to increase during the extension period;

whether efforts have been made to eliminate deficiencies during the normal compliance period;

the duration of time to which the occupants will be exposed to the hazards;

whether interim steps have been proposed to reduce the hazard until compliance is achieved;

the suitability of the proposed schedule for completion of the work;

soundness of the reasons for requesting the extension;

expected time for evacuation, fire department response and suppression;

the scope and extent of work required to comply.

Q3 What course of action is appropriate for the Chief Fire Official if the request for an extension of time to meet compliance is submitted after the compliance date?

A3 The Fire Code does not specifically restrict the time when an application for an extension may be submitted. Nonetheless, it is implicit that the application be made before the normal compliance period has elapsed. The owner has an obligation to comply with the Fire Code and is deemed to be in violation if compliance has not been achieved and approval for an extension has not been granted when the normal compliance time has elapsed. Under these conditions the owner is subject to prosecution. A Notice of Violation may be used as a mechanism to achieve compliance without prosecution as for other Fire Code violations at the discretion of the CFO. Where special circumstances may warrant consideration for entertaining an application for extension of time submitted after the normal date of compliance, the CFO is advised to consult with their municipal solicitor.

Q4 What criteria should be used to determine the length of the extension?

A4 The Fire Code places limitations on the maximum time for an extension past the normal compliance period. This does not imply that every extension must be of the greatest duration available under Sentence 9.1.3.2.(1), nor does it specifically prioritize the measures that are to be undertaken within the compliance schedule. In other words, the CFO has the discretion to limit the extension for each deficiency based on the nature of the work and the impact on life safety. An important exception is provided in Articles 9.8.4.2. and 9.8.4.3. for Two Unit Residential Occupancies where a specific timetable is imposed for the installation of smoke alarms, a high priority, low cost requirement having significant bearing on the life safety of the occupants.

Q5 Can the municipality require the request for an extension of time to be submitted under the signature and seal of a professional engineer or architect?

A5 There has been some confusion with regard to the role of a professional engineer or architect with respect to an application for extension of time. Subsection 9.1.4. Life Safety Study requires that the Life Safety Study bear the signature and seal of a professional engineer or architect. No such requirement is contained in the provisions for an extension of time under Subsection 9.1.3.. Therefore, the absence of the signature and seal of a professional engineer or architect is not considered valid grounds for rejecting such an application for extension of time. The only condition imposed by the regulation for an extension of time is the requirement to provide a schedule for completion of the work. The CFO has an obligation to assess each application for extension of time provided it is accompanied by a schedule for completion of the work and it has been submitted before the normal compliance time has elapsed as noted earlier. The CFO does however have the right to request sufficient information in order to come to a decision with respect to the application. In some instances, the requested information can best be provided by a professional. The decision to retain the services of a professional must be made by the owner.

Q6 Can the municipality require the owner to sign a waiver of liability before an extension is granted and will such a waiver be effective?

A6 Where the CFO has acted in a fair and reasonable manner and utilized standard criteria to arrive at the decision with respect to discretion in the Fire Code, there should be no need for an indemnification waiver. Indeed, the Chief Fire Official is obligated to review an application and come to a decision whether the owner signs such a waiver or not. Generally speaking, neither the CFO nor the municipality will be held liable for decisions with respect to extension of time that are equitable and reasonable in the circumstances.

Compliance with Retrofit requirements in the shortest amount of time and in a manner that balances the needs of the owner with the safety of the occupants is fair to all parties. Provided that life safety of the occupants has been addressed, discretionary decisions made by the CFO in carrying out Fire Code enforcement are not likely to be successfully challenged in court.

Q7 What are the fire department's duties and owner's rights in processing an extension of time request?

A7 The procedures for filing an application for an extension of time are contained in Article 9.1.3.2. The Fire Code specifies that such an application must be accompanied by a schedule for completion of the work. Provisions contained in Sentences 9.1.3.2.(3) and 9.1.3.2.(4) require that the CFO provide a written decision, within ten days, whether approval is granted or refused. Where the decision cannot be reached within the prescribed time, the CFO should advise the owner of the delay in processing the application. In the event that the request is refused, the owner has the right to request the reasons for that refusal in writing and the CFO again has an obligation to respond within ten days.

Under Sentence 9.1.3.2.(9), the owner may appeal to the Fire Marshal or the Fire Code Commission, within 30 days, where the owner is dissatisfied with the decision to refuse an extension of time. The appeal follows the same process described for an Order under the Fire Marshals Act. A further provision contained in Sentence 9.1.3.2.(10) allows the CFO to grant an extension of time where conditions exist beyond the owner's control, such as a strike or material shortage, that make compliance impossible within the extension period provided by the regulation.

Where the owner has not provided sufficient information with the application for extension of time for the CFO to make a proper determination, the CFO should request additional information prior to arriving at the decision. The request for such information from the owner is part of the review and should not be presented as a refusal with grounds for appeal to the Fire Marshal or the Fire Code Commission under the provision of Sentence 9.1.3.2.(9).

Where the owner has shown due diligence and has demonstrated a willingness to comply with the minimum life safety requirements, the CFO has an obligation to examine the owner's request for an extension of time and to approve an acceptable schedule of compliance. An appeal by the owner to the Fire Marshal or the Fire Code Commission should only be necessary where negotiation between the CFO and the owner has failed and all reasonable avenues permitted under the Fire Code have been exhausted.