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Office of the Fire Marshal	OFM-TG-01-2000
FIRE SAFETY ENFORCEMENT	O F M GUIDELINE
April 2000

Section

Conducting fire safety inspections is a necessary part of achieving a fire safe community. It is the responsibility of fire departments to conduct certain Code enforcement inspections when they receive complaints or when requested to address a fire safety issue. In some instances it may become necessary for the fire department to prosecute individuals or corporations for violation(s) of the Ontario Fire Code or for failure to comply with an order issued under the authority of the Fire Protection and Prevention Act, 1997. This guide will help fire department officials to establish an operational guideline for inspection and enforcement purposes.

For detailed information on prosecuting Fire Code violations under Part I of the Provincial Offences Act, refer to the Office of the Fire Marshal guideline "TG-05-1998, Commencing Proceedings Under Part I of the Provincial Offences Act".

1.0 SCOPE

The Office of the Fire Marshal has developed this guideline to assist fire departments in meeting their inspection and enforcement responsibilities. The guideline is not a complete reference for all fire safety and Code enforcement issues. If you require further information or assistance, please contact the appropriate Regional Office of the Fire Marshal and your legal adviser(s).

This guide consists of:

• a sample enforcement process
• explanation of the process
• decision/flow chart
• a document package complete with instructions

Persons who are designated as an inspector under the provisions of the Fire Protection and Prevention Act (FPPA) must be familiar with the limits of their authority as outlined under the FPPA. Before proceeding further, you should review in detail Section 15 and Parts VI through VIII of the FPPA. P> 

2.0  BACKGROUND

When dealing with Fire Code violations it is important to note that fire officials do not have authority to permit an extension of time to comply. Fire officials commonly notify owners of violations and allow the owner to remedy the violation without initiating a court proceeding. This practice promptly addresses the risks to life safety, educates the owner about the importance of Fire Code compliance and reduces the need for court action. However, where the owner does not correct the hazard or violation within a reasonable period of time, enforcement becomes necessary. In some instances, due to the nature of the deficiency, it may take some time for the owner to correct the deficiency even when they initiate corrective action right away. In situations of this nature, a written commitment made by the owner outlining his/her intent to correct the problem(s) within a specified period of time may be required. Obtaining this commitment is important in order to restore the desired level of fire safety in the property and from a concern for the credibility and liability of the fire department. Comprehensive inspection and enforcement practices should be outlined in fire department standard operating procedures. This would standardize the inspection process and ensure that all persons are dealt with fairly. Taking steps to prosecute is one of the few options available to a fire department when the owner does not comply with the legislation.

Proper training of the individuals responsible for fire safety within your community and a consistent inspection process should reduce the necessity for enforcement to a minimum.

Note that there may be instances where it is necessary to initiate a prosecution immediately. Examples may include repeated violations by the same person or the refusal to immediately correct a serious hazard.

When enforcement does become necessary, you must be as prepared as is reasonably possible.

The following sections of this guideline may assist you in setting up an enforcement process for your department. Each section will provide you with comprehensive information pertaining to important issues involved with this process.

3.0 RECORDS/DOCUMENTATION/FORMS

Taking steps to prosecute will also involve the use of forms prescribed by regulations made under the Provincial Offences Act (POA). The sample forms used in the Appendix of this guideline have been prepared for example purposes only and are not reflective of the actual forms provided by the court. A supply of applicable forms that are prescribed by regulations made under the POA may be obtained from your local court office.

For proceedings under Part III of the Provincial Offences Act, you must obtain the following forms:

• an "information" under section 23 of the POA - Form 105,
• a "summons" under section 24 of the POA - Form 106, and
• a "summons" under section 39 of the POA - Form 109.

For initiating proceedings under Part I of the Provincial Offences Act, ticket book sets are similarly available. For information on commencing proceedings under Part I of the Provincial Offences Act, refer to the Office of the Fire Marshal guideline "TG-05-1998, Commencing Proceedings Under Part I of the Provincial Offences Act".

4.0 INSPECTION PRACTICES

The owner should be notified in writing of any violations of the Ontario Fire Code as soon as possible upon completion of the inspection. This should be done by means of one consistent report form, for example, the Fire Safety Inspection Report (Appendix K-2). Where it is not possible to contact the owner personally, a copy of the notice may be hand delivered to a party representing the owner such as a building superintendent or other employee who may be on site. The owner must always be notified. If necessary, the notice can be mailed to their last known address using regular letter mail, or by another appropriate manner as outlined in Section 77 of the FPPA.

Any violations that are a severe hazard should be resolved immediately or alternative measures instituted. For example, the owner could be directed to unlock locked exits or establish a fire watch pending the repair of a fire alarm system. These violations should still be recorded on the Fire Safety Inspection Report, even if corrected while you are present. Where temporary alternative measures have been implemented, a record of these should also be retained.

Where a risk of fire poses an immediate threat to life, the provisions of Section 15 of the FPPA should be used. These provisions allow the fire department to take direct action to remove or reduce the threat under certain circumstances. For instructions on dealing with an immediate threat to life, refer to Office of the Fire Marshal guideline, "TG-01-1999, Orders, Orders To Close and Immediate Threat to Life".

When scheduling a reinspection for compliance, the inspector should consider the severity of the hazard, and the amount of time required to make the corrections. When discussing this with the owner, and the owner indicates a willingness to comply, but scheduling compliance may be a factor, you can ask for a written commitment outlining a schedule for the corrective measures. This will provide the fire official with some comfort that the corrective measures will be addressed and permits the owner to demonstrate due diligence in remedying the hazards/violations. The schedule would then be utilized to monitor compliance. If the owner indicates that they will not comply, indicate that you will proceed with court action.

Where there is no reason for the owner not to be aware of a fire safety hazard and their responsibilities for fire safety, it may be more appropriate to initiate prosecution immediately. Examples of this may include: repeat offences by the same person, a locked exit door in a place of public assembly, or a fire alarm or sprinkler system that has been shut down without valid reason. In other words, if the owner is not able to demonstrate due diligence (i.e., that they have taken every reasonable action to ensure compliance), then they should not be allowed time to achieve compliance since the owner is responsible for complying with the Fire Code at all times unless otherwise noted. They are responsible to ensure that violations and hazards do not occur - not just to correct them when told to by an inspector. When initiating prosecution, issue a notice identifying the violations without reference to a further compliance date and inform the owner that they are being charged for these offences.

Where a hazard has been identified that is not addressed by the Fire Code, it may be appropriate to use an Inspection Order issued under Section 21 of the FPPA. Prior to issuing such Order, you may choose to make the owner aware of your concern, in writing, in order that the issue can be resolved without requiring an Order. If the hazard is not resolved within an allotted time, issue the Inspection Order. For further information regarding the preparation and use of Orders, refer to the Office of the Fire Marshal guideline "TG-01-1999, Orders, Orders To Close and Immediate Threat to Life".

While conducting inspections, several other factors must be considered. It is also necessary to consider the environmental impacts of potential fires when determining if any remedial action should be taken. The risk of a fire occurring in such a situation may be relatively low, but the impact may be significant. Also, situations in which people's health and safety may be seriously endangered must also be considered. The Office of the Fire Marshal is available to assist in assessing these potentially complex situations. Contact the Regional Office of the Fire Marshal serving your area.

5.0 FOLLOW-UP INSPECTION/ENFORCEMENT OPTIONS

If an inspection identified violations/hazards, a follow-up visit to the property is required to determine whether the violations/hazards were corrected. If any additional violations/hazards are noticed, they should be recorded. If not already addressed, an additional notice should be issued to the responsible person.

If you determine that the violations/hazards are corrected, record it and file your report.

Where you determine compliance has not been attained, you should take action using one or a combination of the following:

• obtaining a written commitment from the owner,
• obtaining a compliance order,
• proceeding to prosecute for failure to comply, or
• obtaining an order authorizing the inspector to correct the hazard.

5.1  Obtain Written Commitment From The Owner

Conduct follow-up inspection(s) as necessary to determine whether the violations are being/have been corrected in accordance with the schedule.

5.2  Obtain A Compliance Order

An assistant to the Fire Marshal may apply to the Superior Court of Justice [formerly the Ontario Court (General Division)] for an order requiring the person to comply with an Inspection Order, or to remedy any contravention of a provision of the Fire Code. The authority to apply for a compliance order is outlined under Section 32 of the FPPA. The order would be obtained by way of an original application, which would be commenced by means of a notice of application. Fire officials should consult with their respective legal advisers for assistance in undertaking this action.

A person who fails to comply with a compliance order issued by the courts may be subject to contempt proceedings of that court.

5.3  Prosecuting For Failure To Comply

Every assistant to the Fire Marshal has a duty to take steps to enforce compliance where the "owner" (as defined under the Fire Code) has failed to remedy a contravention of the Fire Code or failed to comply with an Order and is unable to demonstrate due diligence. "Due diligence" means that every effort reasonable in the circumstances has been taken to comply.

After determining that the violations were not corrected during your follow-up inspection, ask the owner if he/she intends to have them corrected. If the owner refuses to provide a written commitment, you would advise him/her that you have no recourse but to proceed to prosecute. Explain why a prosecution would be necessary and for which violations/hazards. Identify to the owner the violations for which charges will be laid, including the potential penalties.

5.4  Obtaining An Order Authorizing The Inspector To Correct The Hazard

When taking steps to:

• obtain a compliance order,
• prosecute for failure to comply, or
• obtain an order authorizing the inspector to correct the hazard,

it will be up to the fire official to prove that a serious hazard exists and/or a contravention of Part VII of the Fire Protection and Prevention has occurred.

Evidence of this nature may often consist of:

• your recollection of the events substantiated by written notes,
• a copy of the fire safety inspection report, an Inspection Order, or other relevant documentation.

It may also be appropriate to introduce other evidence where such information will assist in supporting your statements. This evidence could consist of:

• photographs of the violations (photographs need to have the date they were taken, the photographer's name, and an adequate description written on the back to make it clear what the photograph illustrates, in order to be credible),
• sketches or simple drawings of the site or the building indicating the violations, and
• statements by witnesses.

It is necessary for you to prove that the person(s)/corporation, or other party charged are responsible for the contravention. Normally, the owner of the property is responsible for ensuring compliance. In some circumstances, however, another person such as a tenant, a restaurant or office manager, or an occupant might be responsible for the violation. For our purposes, the person responsible is the person who has control of the thing constituting the hazard. Refer to the definition of "owner" in Part 1 of the Fire Code. For example, where a fire alarm system has not been periodically tested the owner and/or property manager would probably be responsible. A locked exit within a tenant occupied space would probably be the responsibility of the tenant or perhaps the office or restaurant manager.

Evidence that identifies the responsible person(s) may include:

• An admission by the owner (or an officer of the owning company) that they own the premises in question. The admission statement should be documented by the inspector. It is important to ensure that you have clear details. For example, determine if, in fact, the person's spouse owns the property, or they are the treasurer or other executive officer of 123456 Ontario Limited, which owns the property.
• An admission by a person that they have responsibility for the hazard. For example, determining who the manager of the restaurant is and whether they have the key to a locked exit door would establish their responsibility. Detail and record the person's name and position as well as why they are responsible.
• A copy of the municipal tax records that identify the owner or tenant. This can be obtained from the municipal office responsible for property tax collection.
• A certified copy of the Land Title including the legal description of the property. This can be obtained from the Ministry of Consumer and Commercial Relations' Land Registry Office for your area. There is a fee for this service.
• A certified copy of the Articles of Incorporation if the responsible party is identified as a company. The Articles of Incorporation identify the officers of the company, their addresses and the company's address. This can be obtained from the Ministry of Consumer and Commercial Relations' Companies Branch located at 393 University Ave., 2^nd Floor, Toronto (416-314-8880). There is a fee for this service.
• Statements made by witnesses. Such statements could indicate that rents were paid to the subject person, or that the subject person exercised control of the property. Have a witness statement completed for each witness that you intend to use.

There are two versions of the information "Form 105". A long form version is for use when there are two or more charges. A short form version is for use when there is only one charge. The short form version of the Form 105 is preprinted in a snapset format, so that what is typed on the information transfers through to a summons "Form 106" that is attached. This feature reduces the need to prepare a separate summons for the charge.

A summons must be completed and served on the accused to ensure that they may be present in the Court to answer the charge. Complete a summons on a Form 106 for each charge that is listed in a long form version of an information Form 105. Complete the Form 106 in accordance with the appropriate example provided in the Appendix B.

The instructions for Crown, Provincial Prosecutor or Municipal Prosecutor (Prosecutor Brief) provide relevant information necessary for them to present your case. See the attached example in Appendix G. This is not a court document, but should be used as a guide for you to create your own. Determine the format for this through consultation with your applicable Prosecutor.

The inspector's qualifications help the Prosecutor to establish your credibility as a witness by detailing your professional experience, your training and knowledge, and your court experience. Refer to the attached example in Appendix H that may be used as a guide to create your own. (Do not worry if you lack the experience.) Summons to witness ensures that any supporting witnesses will be present at the trial. Summons forms can be obtained from the local court administrator, Justice of the Peace or police service. The witness statement is not a court document. The witness statement indicates what the evidence is expected if the witness attends. The examples in Appendix C and D may be used as a guide to create your own.

8.1  Consult With Crown, Provincial Prosecutor, Or Municipal Prosecutor

Once you have established a relationship with your respective Crown/Provincial/Municipal Prosecutor, the process and the completion of the required information should become much easier. The Crown/Provincial/Municipal Prosecutor will become more familiar with fire safety legislation and you will become more familiar with the type of information and degree of detail required by them.

8.2  Swearing The Information

If the justice is satisfied that the complaint is warranted, the justice signs the information. At this point proceedings are commenced.

Obtain from the Justice of the Peace the court date that they have scheduled for the prosecution.

Determine how the summons will be served. The summons must be served in accordance with the law. Assistants to the Fire Marshal are not authorized to serve summons under Part III of the POA. Assistants to the Fire Marshal have only been appointed as Provincial Offences Officers for the purpose of all offences under the Fire Code commenced under Part I of the POA. Only a Provincial Offences Officer designated to do so (such as a police officer or other person specifically appointed) may serve the summons and summons to witness. Check with the Provincial Offences Officer well in advance of the court date to ensure that the summons was properly served.

8.3  Notice Of Intent And Record Of Previous Conviction(s)

The Prosecutor may determine that a Notice of Intent is necessary. If the Prosecutor advises you that one is required, prepare a Notice of Intent and ensure that it is delivered to the accused and/or their legal counsel. A Notice of Intent is required under the Evidence Act. A Notice of Intent is a notification to the defendant that specific documents will be used in court. It is given to the accused so that they cannot claim that they have not had the opportunity to prepare a proper defence. Without a Notice of Intent, documentary evidence can not be entered into evidence at the trial. Refer to Appendix F for a sample of a letter of intent.

A record of previous conviction(s) should be obtained from the court prior to the court date, if the Prosecutor determines that this would be appropriate. You would request certified copies of the information from a previous trial(s) from the court office. This can then be presented at the completion of the trial to indicate any previous convictions and may affect sentencing. Refer to Appendix E for more information on this subject.

8.4  Pre-Court Inspection

8.5  Attend Court

The following suggestions are to assist you in providing evidence as a credible witness:

• Arrive early, meet with Prosecutor and brief her/him. Make yourself readily available to the Prosecutor during the trial.
• Do not discuss the case with anyone other than the Prosecutor.
• Show respect for the court by being properly dressed (full uniform if possible), removing hat and coat, and addressing all persons in the court with due courtesy.
• Be prepared to take notes.
• Be prepared to advise on acceptable court dates in case of a remand.
• When giving evidence, listen to the complete question before answering. If necessary, request that it be repeated or state that you do not understand, so that the question may be re-phrased.
• Answer only the question asked, adding only necessary clarifications.
• Do not guess at answers, if you do not know the answer, say so.
• Speak clearly, use simple and understandable language, do not try to be funny. Do not lose your temper or argue.
• You can testify only to facts within your own knowledge. Generally, things that others told you or information from telephone conversations cannot be introduced.
• Before referring to your notes, ask permission of the Justice. The defence may ask to review these notes and can question their use if they were not made at the time of the event recorded (or as soon as possible afterward), or if they were not made by you.
• The proper form of address is:
  Justice of the Peace - Your Worship, Sir or Madam Judges -Your Honour, Sir or Madam Lawyers - Sir or Madam
• Discuss with the Prosecutor on an appropriate fine to suggest to the court, and the reasons for your suggestion. Refer to Appendix I-1 for guidance outlining suggested penalties. The Prosecutor and the judiciary should be made aware of the serious consequences that may occur for failure to comply with Fire Code violations. The judiciary should also be informed that by imposing a significant fine, he/she is sending a strong message to would-be offenders that fire safety violations will not be tolerated. Each fire department has received a copy of a video entitled "Ontario's Health and Safety - It's In Your Hands". The video should be reviewed by the Prosecutor sometime in advance of the trial if he/she is not familiar with the Fire Code and the FPPA. The presiding judiciary may also be invited to review the video after a conviction to consider the information before sentencing.

8.6  Obtain A Record Of Conviction(s)

8.7  New Inspection

• if a person who has been convicted for failing to comply with an order has not complied with the order within 30 days of the conviction, or
• if a person who has been convicted of an offence for contravening a provision of the Fire Code has not ceased to contravene the provision or remedied the contravention within 30 days of the conviction.

This application can be made without notice to the person who has been convicted.

The judge may, if in his or her opinion it is necessary in the interest of public safety, order that the Fire Marshal, assistant to the Fire Marshal or fire chief:

• close access to, or remove, the building, structure or premises to which the order relates; or
• remove any substance, material or thing from the building, structure or premises.

Consult with your legal adviser to assist you in undertaking this action.

10.0  INSPECTION FLOWCHART